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FINDINGS OF FACT AND DECISION
Case Number: 153220
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 12, 2015
November 18, 2015
Actual Record Closed Date: December 2, 2015
Hearing Officer: James P. Walsh, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 12, 2015
of Student — Parents
(by telephone) — Parents
District and New York State Department of Education Representative — DOE
(by telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 18, 2015
of Student — Parents
Parents
District and New York State Department of Education Representative — DOE
IHO
The Matter of , (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York on August 12, 2015 and November 18, 2015. The proceeding was commenced by Student’s Parent, by the filing of a Due Process Complaint Notice sent to the New York City Department of Education’s Impartial Hearing Office, dated September 16, 2014 and received by said Office on that date.
Impartial Hearing Officer was appointed as the Impartial Hearing Officer having jurisdiction of the proceeding shortly after the Complaint was filed. From the records provided to me by the New York City Department of Education’s Impartial Hearing Office, I am aware that Hearing Officer conducted a hearing on October 30, 2014 (I.H.O. Exhibit II), during which he proposed to Parent that she accept a program of for Student or file an Amended Complaint – and established a date by which Parent selected one of the alternatives. By Interim Order dated November 6, 2014 (IHO Exhibit III), Hearing Officer extended the date by which Parent was to comply with the direction of Hearing Officer . When Parent had not selected one of the alternates proposed by Hearing Officer , Findings of Fact and Decision was issued by Hearing Officer , dated December 24, 2014 and corrected on February 9, 2015 (I.H.O. Exhibit IV), dismissing Parent’s Due Process Complaint. Parent appealed from the Findings of Fact and Decision of Hearing Officer and, by decision dated April 2, 2015, in Application of a Student with a Disability, Appeal No 15-022, the Decision was vacated and the matter remanded to a different hearing officer (Exhibit G).
Thereafter, by notice dated May 29, 2015, the undersigned was appointed as the Impartial Hearing Officer having jurisdiction of this proceeding.
Hearings were conducted on August 12, 2015 and on November 18, 2015. At the conclusion of the proceedings on November 18, 2015, the parties requested additional time to submit a Post-Hearing brief. That request was granted, so long as such briefs were submitted no later than December 1, 2015. Parent has timely submitted a Post-Hearing
Concluding Statement (I.H.O. Exhibit V), which has been read and considered. No submission has been made by the Department of Education. The Record Close Date was December 2, 2015.
Student is presently years of age, having been born on .
However, on , the date of the incident which forms the basis of Parent’s Complaint, Student was . Student has been the recipient of special education from an early age. In a Evaluation that was conducted by on November 22, 2014, a date after the incident which forms the basis of Parent’s Complaint (Exhibit 3), Student was diagnosed as having an ; (sic) ; and an . A conducted on November 15, 2013 (Exhibit 8) focused on Student’s and Student’s ,
.
Student’s Individualized Education Program (I.E.P. ) that was in effect for the 2014-2015 school year (Exhibit7) classified Student as having and recommended that Student receive his special education program in a in a with a staffing ration of , together with the Related Services of , per week, per session, , as well as weekly, per session, ; time per week, per session, ; and ,
, ; and . Student was also
(Exhibit 7). Such I.E.P. also provided that
Student receive a program. During the 2014-2015 school year, Student was registered to attend in .
Parent’s Due Process Complaint Notice, dated September 16, 2014 (I.H.O.
Exhibit I), is extremely brief and specific. Parent described the Problem in full, stating:
“
”
Parent’s Proposed Solution is stated as follows:
“
”
Pursuant to the provisions of Commissioner’s Regulations (8 NYCRR 200.5
(j)(1)(ii)), “The party requesting the impartial due process hearing shall not be allowed to raise issues at the impartial hearing that were not raised in the notice filed under subdivision (i) of this section, unless the other party agrees otherwise.” Thus, the sole issue before me for determination in this proceeding is the allegation by Parent that, on of that date,
. I find and determine that Parent’s statement that: “ ” is not a proper allegation before me to constitute an issue that must be determined. Further, such statement would run afoul of the two-year limitation imposed by Commissioner’s Regulations 8 NYCRR 200.5(j)(i).
District presented the testimony of one witness: . Witness was the during the 2014-2015 school year. Witness testified that she had not witnessed the incident in which Student was involved (T.R.52), but was . Witness testified that she had been told that ,
, , , (T.R. 53). Witness
also stated that (T.R.53).
Parent presented the testimony of one witness: . Witness testified that he serves as a assigned by his employer to work with Student in (T.R.163). According to the testimony of Witness , on , he had
.
(T.R 123). “
” (T.R. 124). Witness related that he then (T.R.124).
Were it necessary for the purpose of this Decision that I determine the factual circumstances surrounding the incident of as it regards Student, I would have to question why District presented only a witness who clearly stated that she had not been a witness to the incident of that date and could only relate what she was told - and not the witness ( ) who had been directly involved with Student. Indeed,
; was an employee of the District and under its control and his absence most probably been subject to a Missing Witness charge (See Devito v. Feliciano 22 NY 3d 159 (2013)). However, it is my determination that my resolution of the factual circumstances surrounding the incident of is unnecessary to the disposition of this matter.
By the provisions of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §1400 et seq.) and the Regulations enacted thereunder by the United States Department of Education (34 CFR §300), jurisdiction of Impartial Hearing Officers is limited to the hearing and determination of issues raised in a Due Process Complaint relating to the identification, evaluation, or educational placement of a child with a disability, or the provision of a free, appropriate public education (FAPE) (34 CFR
§300.507; §300.511). There is no intimation in the proceeding before me that the special education program then being afforded to Student during the 2014-2015 school year was, in any manner, inappropriate or insufficient. Whatever the reality of the incident involving Student, such did not negatively impact upon the educational program envisioned for Student by District or its Committee on Special Education. Even if I were to assume that the actions of were inappropriate in his dealing with a student with a disability, the Impartial Due Process procedure is not, in this instance, the appropriate venue in which to seek relief. The correctness of such conclusion is heightened by Parent’s Post-Hearing submission (I.H.O. V), in which Parent seeks that I order the Department of Education to pay Parent a monetary award of either or ; to order the Department of Education to ; that I order the Department of Education to “ ”; that I order the Department of Education to ; that I order the Department of Education to , ; ; and other reliefs, all such reliefs clearly beyond the power or jurisdiction of an Impartial Hearing Officer.
I note that Student
(T.R.55). Such is unfortunate. However, I note the many attempts by the administrative staff at to meet with Parent to discuss Student’s educational program (Exhibit 2), as well as its offer, in response to Parent’s request (T.R.139), to provide Student with , all of which were thwarted by Parent, who either refused to come in and meet with school authorities (T.R.68; Exhibit 2) or found it did not fit into her schedule (T.R.153).
Parent requested in her Due Process Complaint (I.H.O. Exhibit I), as a part of her
Proposed Solution, that the Department of Education offer an “ ” It is my finding and determination that, whatever the nature of the incident of , such did not make Student’s then-present placement inappropriate – and certainly would not warrant any direction that Student be offered a placement in a .
Based on a review of the Record in this proceeding, it is my finding and determination that the issue raised by Parent in her Due Process Complaint (I.H.O.
Exhibit I) is not proper or appropriate in this venue and beyond my jurisdiction as an Impartial Hearing Officer. Such Complaint, therefore, should be dismissed.
ORDER
Based upon the above review, it is
HEREBY ORDERED that Parent’s Due Process Complaint be, and the same hereby is, DISMISSED.
Dated: December 14, 2015
JamesP. Wal
sh,Esq.
JAMES P. WALSH
Impartial Hearing Officer
JPW:
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 RECORD ON AUGUST 12, 2015
A. Report of, dated 9-8-14 Parent (1 page; Parents)
B. Referral Form for Student by of the Parent, dated 9-8-14 (1 page; Parents)
C. Report from New York –, Parent dated 9-8-14 (6 pages; Parents)
D. Document from Parent to, Parent dated 9-12-14 (2 pages; Parents)
E. Statement: To Whom It May Concern, by Parent, dated 9-15-14 F Not Received (1 page; Parents)
G. Cover Letter to Parent from Secretary of New Parent York State Office of State Review, dated 4-2-15 (1); S.R.O. Decision in Application of a Student with a Disability – Appeal No. 15-022 (7) 1 Not Offered (8 pages; Parents)
2. SESIS Event Log for Student for 2014-2015 school DOE Year (3 pages; DOE)
3. Evaluation of Student by, dated 11-22-14 4 Not Offered 5 Not Offered 6 Not Offered (4 pages; DOE)
7. Student’s I.E.P. as prepared by District’s C.S.E., dated 11-27-13 (15 pages; DOE)
8. of Student, dated 11-15-13, by (3 pages; DOE)
I. Parent’s Due Process Complaint Notice, dated IHO 9-16-14 (1 page; Parents)
DOCUMENTATION ENTERED INTO RECORD ON NOVEMBER 18, 2015
V. Parent’s Post-Hearing Statement, dated 11-28-15 IHO (12 pages; Parents)