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FINDINGS OF FACT AND CONCLUSIONS OF LAW
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: July 30, 2014
October 8, 2014
Actual Record Closed Date: October 20, 2014
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 30, 2014
Attorney Parent
Impartial Hearing Representative Department of Education
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 8, 2014
Esq. Attorney Parent
Parent Parent
Impartial Hearing Representative Department of Education
On July 30, 2014 and October 8, 2014, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).
The proceeding was initiated at the request of the parent by correspondence dated May 2, 2014. (Ex. I) I was appointed Impartial Hearing Officer on May 6, 2014, after the recusal of one or more impartial hearing officers. I was available to conduct a hearing within 14 days of appointment. After the conclusion of the resolution period, I was informed that there had been a partial resolution of this matter which included DOE agreement to conduct several additional evaluations. (Ex. II)
At a telephone conference conducted on June 19, 2014, both parties requested an opportunity for the evaluations to be completed and considered by the CSE. The initial hearing was scheduled for July 30, 2014, to enable the CSE review to be completed and its results to be considered by the parent. (T. 4) At a subsequent prehearing conference on July 11, I was informed that the prehearing conference had not occurred because adequate notice to the parent had not been provided. (T. 5).
At the July 30, 2014 hearing, the DOE conceded that it had failed to provide a FAPE for the 2012-2013 and 201-2014 school years. (T. 9) The DOE also stated that the CSE had scheduled an August 6, 2014 review with the expectation of a placement recommendation thereafter.(T. 9) However, the parties agreed evaluation was required but had not been conducted. (T. 10) On August 8, 2014, my Interim Order providing an independent evaluation if the CSE was unable to complete the evaluation by a specified time was issued. (Ex. III) To enable completion of the evaluation, and a placement offer, a CSE review, the next hearing was scheduled for October 8, 2014. (T. 13) At the July 30 hearing, the parties discussed the parent’s request for certain information. Subsequent to the hearing the parent requested issuance of a subpoena and a subpoena was signed by me and thereafter, on August 6, 2014, distributed to the parties by the Impartial Hearing Office. (Ex. IV) On October 8, 2014, the parties informed me that a CSE review had been held and that program had been recommended but that a placement acceptable to the parent had not been provided. (T. 20 The parties moved to extend the compliance date various occasions in light of the conduct of new evaluations and an expected reconvene of the CSE, anticipated testimony, the scheduling of witnesses and submission of evidence and closing arguments. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and my written decisions were provided to the parties. (T. 5-6, 19, Ex. V)
The current compliance date is November 9, 2014. The record closed on October 20, 2014, upon my receipt of the final transcript.
Findings of Fact and Conclusions of Law
In the instant matter the DOE has conceded that it failed to provide a FAPE for the 2012-2013 and 2013-2014 school year. (T. 10) The parent seeks as compensation services missed by the student in the 2012-2013 and 2013-2014 school years DOE funding for forty (40) 30 minute ( in addition to those provided in the student’s current IEP and/or by the student’s placement. The parent also seeks of a parent up for all parent not provided by the DOE during those school years. The parent seeks RSAs for those services to enable utilization of the services, at the DOE’s authorized rate/s for those services, within one year of issuance of the order in this matter at the parent’s sole option by a provider to be selected by the parent. (T. 27-42)
It is well established that compensatory services may be awarded to “make up” for what was missed due to a district failure to provide a FAPE. Appeal No. 11-027. The DOE does not dispute entitlement to the above discussed services and agrees that the student may utilize them as requested by the parent. (T. 27-42)
With regard to all parent’s claims concerning placement, and in view of the CSE’s recommendation of the parent also requests and the DOE agrees that the DOE will provide within two (2) weeks of the issuance of the order in this matter a placement offer for placement with students of similar needs and abilities and that if a second class placement consistent with the foregoing is available the DOE will also offer that placement. Further, the parent requests and the DOE to the placement accepted will be provided as per the IEP with a reasonable amount of travel time for the student. (T. 30-43, 45)
Order
1) The DOE shall immediately issue RSAs that will enable the following at the DOE authorized rate/s: a) Forty (40) 30 minute sessions by an appropriately qualified provider of the parent’s selection to be utilized within one year of issuance of this order at the sole option of the parent; b) Fifteen (15) hours of parent by an appropriately qualified provider of the parent’s selection to be utilized within one year of issuance of this order at the sole option of the parent.
2) The DOE shall provide within two weeks of issuance of this order a placement offer for a with students of similar needs and abilities and if a second class placement consistent with the foregoing is available, the DOE will also offer that placement.
3) The DOE will provide transportation to the placement accepted by the parent as per the IEP with a reasonable amount of travel time for the student.
Dated: November 3, 2014
, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
DOCUMENTATION ENTERED INTO THE RECORD ON
I. Impartial Hearing Request, 5/2/14 Impartial Hearing Officer
II. Resolution Agreement Impartial Hearing Officer
III. Interim Order regarding Impartial Hearing Officer
IV. Subpoena and distribution record Impartial Hearing Officer
V. Compliance date extension decisions Impartial Hearing Officer