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STATEMENT OF AGREEMENT AND ORDER
Case Number: 167193
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Actual Record Closed Date: February 5, 2018
Hearing Officer: Jeffrey Schiro, Esq.
I. JURI DICTION - OVERVIEW OF ADMINI TRATIVE PROCEDURE
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the advocate for the student and the parents in a due process complaint notice dated July 3, 2017. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education (“FAPE”) during the 2015/16 and 2016/17 school years. The parents seek compensatory additional services to remedy the alleged denial of FAPE (Exs. P-A, P-B).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See
N.Y. Educ. Law § 4402; see als 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y.
Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see als 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certai other i dividuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C.
§§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See
N.Y. Educ. Law § 4402(2); see als 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HI TORY
The DOE appointed me to hear this matter on July 11, 2017. See 8 NYCRR § 200.5(j)(3)(i). The parents filed an amended due process complaint notice on July 17, 2017 (Ex. P-B). See 8 NYCRR § 200.5(i)(7). On October 17, 2017, the parties participated in a resolution session meeting (Ex. P-C), see 8 NYCRR § 200.5(j)(2), which resolved most of the issues raised in the amended due process complaint. Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. TATEMENT OF AGREEMENT & ORDER
At the time of the July 17, 2017 amended due process complaint, the student was . For the 2017/18 school year, the student has been privately placed by her parents in the I in I . The student's eligibility for special educatio a d related services as a stude t with a disability is ot i dispute i this heari g (Exs. P-A, P-B).[2] See 34 C.F.R. § 300.8(c); 8 NYCRR §
200.1(zz).
In their amended due process complaint, the parents assert that the student did not receive all services and mandated in IEPs dated April 13, 2016 and August 12, 2016. The parents seek compensatory additional services at an enhanced rate to make up for missed services. The parents also seek independent educational evaluations (“IEEs”) of the student (Ex. P-B at 5).
At a resolution session meeting held on October 17, 2017, the parties agreed to an evaluation not to exceed and an evaluation to be completed by the DOE. Within fourteen (14) days of the completion of the evaluation, the CSE was to convene to review the evaluation data and discuss its recommendation and develop an new IEP (Ex. P-C at 1-2).
The parties also agreed that the DOE would authorize the student’s receipt of . If the DOE was unable to find a provider within ten (10)
calendar days of the Resolution Agreement, the DOE would authorize an enhanced (P-4)
rate to a provider of the parents’ selection not to exceed per hour. The compensatory hours were to be completed by June 30, 2019 (Ex. P-C at 1-2).
Although a DOE representative signed the Resolution Agreement (Ex. P-C at 2), an issue has been raised as to whether the DOE representative had the requisite authority to enter into an agreement that provided for an enhanced rate. The DOE representative assigned to this hearing does not object to an Order containing an enhanced rate for the compensatory . Based on the principle of equitable estoppel, see Applicati n fa
Child with a Disability (Ellenville Cent. Sch. Dist.), Appeal No. 98-9 (SRO March 25,
1998), I will direct the DOE to comply with terms of the October 2017 Resolution Agreement, including the enhanced rate for the compensatory .
NOW, THEREFORE, IT I HEREBY ORDERED ON CON ENT THAT:
1. Within thirty (30) days of the date of this Order, the DOE will issue documentation to the parents for an evaluation not to exceed ;
2. Within thirty (30) days of the date of this Order, the DOE will schedule an evaluation of the student;
3. Within fourteen (14) days of the completion of all evaluations, the CSE will convene to review the evaluation date, discuss recommendations, and develop a new IEP; and
4. Within thirty (30) days of the date of this Order, the DOE will issue a P-4
(enhanced rate) authorization to the parents for compensatory at a rate not to exceed L_J per hour, with services to conclude by June 30, 2019.
Dated: March 1, 2018
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer JS: n
PLEA E TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a tate Review Officer of the New York tate Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, ection 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Directions and forms can be found on the Office of tate Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A. Due Process Complaint Notice/Impartial Hearing Request, 7/3/17, 11 pgs.
B. Amended Due Process Complaint Notice/Impartial Hearing Request, 7/17/17, 9 pgs.
C. Resolution Agreement, 10/17/17, 3 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Student with a disability means a student which a disability as defined in section 4401(1) of the Education Law, who has not attained the age of 21 prior to September 1st and who is entitled to attend public schools pursuant to section 3202 of the Education Law and who, because of mental, physical or emotional reasons, has been identified as having a disability and who requires special services and programs approved by the department. 8 NYCRR § 200.1(zz)