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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: October 2, 2015
November 23, 2015
Actual Record Closed Date: December 2, 2015
Hearing Officer: Roslyn Roth, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 2, 2015
For the Student:
parent
Interpreter
Case Planner
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 23, 2015
For the Student:
Interpreter
Case Planner
For the Department of Education:
District Representative
PROCEDURAL BACKGROUND
The hearing was held pursuant to New York Education Law § 4404(1), 20 U.S.C. §1415(f), the Individuals With Disabilities Act (“IDEA”). The Impartial Hearing was requested by letter dated June 19, 2015, and received stamped on July15, 2015. The parent also submitted an amended complaint on August 19, 2015. On October 2, 2015 and November 23, 2015 a hearing was held. Timely extensions were granted. The Department of Education, “DOE”, was represented by the DOE’s Representative, the Parents were represented by their case planner.
The due process complaint alleges that the parent sought evaluations for her child, but the evaluations were not conducted in a timely fashion. The parent also sought compensatory services to make up for the lack of appropriate services the student should have received. (See Exhibit A)
DOE’S POSITION
The CSE received the request to evaluate this student 01/29/2015, and therefore, the compliance date was 3/30/2015. (See email dated 10/2/15, attached hereto as “Attachment 1”)
PARENT’S POSITION
The parent asserts that due to the failure of the DOE to generate an appropriate recommendation in a timely manner the student is entitled to compensatory services, specifically, . The parent seeks compensatory services based on a failure of the DOE to timely evaluate the student and develop an appropriate Individualized Educational Plan, (“IEP”) within the legally required timeframe. The parent seeks those services the student would have received had the DOE complied with the statutory timeframe in connection with the evaluation and placement of the student.
STATEMENT OF FACTS
The student was initially referred to the Committee on Special Education, (“CSE”) for evaluations on 1/29/15. On October 9, 2015 the CSE met and found the student was eligible to be classified as a student with and was recommended for an class and as a related services a week for minutes each session. (See IEP dated 10/9/15, IHO Exhibit I)
CONCLUSION OF LAW
The CSE failed to comply with the most crucial of the procedural requirements of IDEA when it failed to timely evaluate the student and timely develop a written IEP.
With respect to the time period by which the DOE was required to complete its evaluations of the student, the IDEA provides in relevant part that an initial evaluation is to take place within 60 calendar days from the date that consent is received from the parent (20 U.S.C. § 1414[a][1][C][i][I]). In this case, evaluations were not completed within that sixty day period. Additionally, the CSE was required to develop a written IEP within 60 school days from the date that consent is received from the parent (see 8 NYCRR 200.4[d]; Application of a Child with a Disability, Appeal No. 04-112; Application of a Child with a Disability, Appeal No. 04-008; Application of a Child with a Disability, Appeal No. 03-008). The failure to timely evaluate and develop an IEP for the student is a gross violation of the procedural requirements of federal and state law and denied the student a free and appropriate public education, (“FAPE”) for the student.
Accordingly, for the period beginning 3/30/15 through to and including 6/30/15 and from 9/1/15 to 10/31/15 the student was denied FAPE.
ORDER:
The DOE shall immediately issue Related Service Authorizations, (“RSAs”) for the student to receive hours of to compensate her for the lack of services she was otherwise entitled to receive.
Dated: December 7, 2015
ROSLYN ROTH, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be 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. The petition for review shall be served upon the school district 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.” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
I IEP dated 10/9/15 13 pages