New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 32

Hearing Requested By: Parent

Date of Hearing: May 20, 2011

Hearing Officer: Timothy M. Mahoney, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

District Representative DOE 5/20/11

School Psychologist (T)1 DOE 5/20/11

Teacher (T) DOE 5/20/11 Assistant Principal (T) DOE 5/20/11 Parent PARENT 5/20/11 Parent PARENT 5/20/11

(T) denotes telephonic appearance.

On April 26, 2011 I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, concerning a dispute of . (hereinafter “Student”), an ( ) year old child seeking an appropriate education placement from the New York City Department of Education (“DOE”).

BACKGROUND

This case was initiated as a result of a demand for due process (“Demand”) filed by the student’s Parent, and received by the Department of Education Impartial Hearing Office (DOE-IHO) on or about March 18, 2011, and identified as NYC Case No. 132568. (D-A). Thereafter, the initial hearing officer appointed to hear the case recused herself. I was appointed on or about April 26, 2011.

One day of hearing was held on May 20, 2011. The District presented three witnesses, all of whom appeared by telephone: , School Psychologist; , Teacher; and , Assistant Principal. (See Tr. 18, 26, 38) The parents testified on behalf of their child. A full list of all the exhibits accepted into the record appears at the end of this decision. (Tr. 46, 90) The parties elected not to submit post-hearing briefs. (Tr. 87) The compliance date was extend once on the record. (Tr. 89)

DUE PROCESS COMPLAINT NOTICE

The Due Process Complaint Notice contains scant information as to the purpose of the hearing. (D-1) Had the DOE challenged the parents’ Due Process Complaint (P-1), I likely would have found it insufficient and requested that the parents amend their demand.

This is not the first impartial hearing between the parties. The parents’ first demand for due process was dated May 27, 2010 (P-1) and resulted in a decision on or about August 11, 2010 (IHO-I, Case No. ) wherein the Hearing Officer directed the CSE to reconvene and upon appropriate notice to the parents and develop a new IEP. (See IHO-I, pg. 4). The instant hearing is not a continuation of Case No. , and I have not considered any materials or evidence submitted to me outside of the instant hearing. Moreover and after a review of the prior decision, I find it contains no directions or findings that bind my decision here.

For the instant hearing, the parents have rejected the DOE’s classroom recommendation, and request that the student be issued a Nickerson Letter to permit her attendance at a state-approved private school. The parents have not expressly challenged the contents of the IEP, nor does their demand raise any issue as to the contents or formulation of the September 13, 2010 IEP. I therefore decline to consider the appropriateness of the September 13, 2010 IEP.^[2]

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010). Here, the parents are challenging the placement recommendation offered by the DOE, and seek a Nickerson Letter by way of relief. The burden wholly rests on the DOE. The DOE has the burden of demonstrating that it offered the student FAPE.

TESTIMONYAND EVIDENCE

The student is an year-old child currently attending a general education setting in . She has a classification of disability. The CSE recommended a self-contained classroom in a public school setting with no related service, and accommodations consisting of . test-taking time extension and directions read or re-read aloud. (See D-10)

, a bi-lingual psychologist, testified that she administered a psychoeducational evaluation to the student in June 2009. (Tr. 18-19; see D-4) She described the student as exhibiting below-grade level sight word vocabulary. (Tr. 19) The student also was struggling with basic assist fraction problems, solve problems using money or time, or figure out missing number patterns. (Id.) Overall, Ms. stated that the student was found to be “quite delayed in the [sic] areas academically.” (Tr. 20)

The student is described in the evaluation as compliant during the course of testing and attempted all tasks presented. (D-4, pg.1) The student exhibited relative strengths in areas of non-reasoning, but overall performed in the borderline level of the WISC-IV in all domains. (D-4, pg.2-3) The student is described as presenting “extremely low range in overall ability,” and “diverse” in her mathematics abilities, as according to her performance on the WIAT-II. (D-4, pg.4)

Ms. testified she participated in the student’s CSE meeting. (Tr. 20) She stated that she recommended the student be placed in a self-contained class with a strictly academic focus. (Id.) She testified that the CSE also considered a general education setting, an integrated co-teaching class, and a : setting, all of which were rejected as being inappropriate for the student. (Tr. 20, 23) Ms. stated that the class considered for the student was populated with peers who had “ disabilities and and impairments… children who are not behavioral issues.” (Tr. 21, see also D-11) Ms. testified she was familiar with the classroom as well as the teacher. (Id.)

was the DOE’s second witness. Ms. testified she was the student’s then-current grade general education teacher for the 2010-2011 school year. (Tr. 26-27) She stated that there are twenty-four children in the class. (Tr. 33) She testified that the student has made “small progress” during the current school year, and believed that the student should have made more progress. (Tr. 28, 31) described a class-exercise involving counting where the student performed better the smaller the student-teacher ratio became, finally doing very well once the student was in a environment. (Tr. 32)

The DOE’s final witness was , the Assistant Principal for . (Tr. 38) Mr. stated he was familiar with the student since the second grade. (Tr. 38-39) He stated that he does periodic walk-throughs of the student’s current class and reviews student data as a regular part of his duties. (Tr. 44)He testified that he was familiar with the self-contained class that was recommended for the student for the 20102011 school year, and that he believed the smaller class size, the differentiated instruction, and goal of mainstreaming children out of the class made the setting appropriate for the student. (Tr. 40-42)

Mrs. is the student’s mother. She testified that she attended the September 13, 2011 CSE meeting for her daughter. She stated that the CSE meeting lasted approximately 20-25 minutes. (Tr. 74) Mrs. testified that she told the CSE that she disagreed with two of the proposed goals because the student had already mastered those abilities. (Tr. 69-70) Mrs. also stated that she disagrees with the expectations of her daughter being lowered on the most recent IEP. (Tr. 68)

She observed the classroom – including teacher and students – following the September 2011 CSE meeting. (Tr. 48) Mrs. testified she found the class to be inappropriate because the teacher appeared to have no connection to the students in the class, the teacher did not make contact with the student, the other children needed constant intervention, and there were more than twelve students in the class. (Tr. 76-77) She testified that she did not speak to the teacher or any administrators regarding her impressions of the classroom. (Tr. 77, 81-82)

Mrs. stated that her daughter will act she understands a task when she really does not. (Tr. 48) Mrs. testified that her husband works with their daughter four hours a night to complete homework. (Tr. 47) In addition, the student attends Bell tutoring Wednesday through Friday each week, and although there was some type of improvement there was not a significant amount. (Id.) Mrs. testified that she believes the family should not have to change their schedule to accommodate their daughter; “[i]t’s obvious something something’s not right.” (Id.)

Mrs. testified that she hoped to find an appropriate class for her daughter, one that specializes in teaching disabled children with issues. She further stated that she hoped to find a placement that addressed needs in addition to academic needs. (Tr. 85-86)

Overall, I find that all the witnesses offered credible, reliable testimony.

DISCUSSION

The IDEA, among other things, ensures that students with disabilities have available to them a Free Appropriate Public Education, or FAPE. 20 U.S.C. § 1400(d)(1)(A); see also Schaffer v. Weast, 126 S. Ct. 528, 531 (2005). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d); see also 20 U.S.C. § 1414(d); 34 C.F.R. § 300.320. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. Board of Educ. v. Rowley, 458 U.S. 176, at 206-07 (1982).

The initial inquiry as to whether the DOE offered a student FAPE begins with an IEP that accurately reflects a student’s present levels of performance and his or her needs. 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i). Based on this information, the IEP must include annual goals related to those needs. 34 C.F.R. § 300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii). Finally, the IEP must provide for the use of appropriate special education services to address the student’s needs and implement the recommended goals. 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v). Thereafter, the IEP must be implemented. 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.

A Nickerson letter is a letter from the DOE to a parent authorizing the parent to place their child in an appropriate special education program in any state-approved private school, at no cost to the parent. See Jose P. v. Ambach, No. 79 Civ. 270 (E.D.N.Y. Jan. 5, 1982). The remedy of a Nickerson letter is intended to address the situation in which a child has not been evaluated or placed in a timely manner (see Application of a Child with a Disability, Appeal No. 10-011; Application of the Bd. Of Educ., Appeal No. 09-114)

I find that the DOE has met its burden in demonstrating that it offered the student FAPE for the 2010-2011 school year. I find that the 2010-2011 IEP appears facially valid in that it contains a description of the student’s present levels of performance and needs, goals and short-term objectives addressing those needs, and a program recommendation that appears appropriate to meet the student’s needs in the least restrictive environment. (See D-6, Tr. 20-23) Furthermore, the DOE offered an appropriate classroom to implement the student’s IEP. (See D-10, D-11)^[3] No evidence was submitted to suggest that the IEP offered was inappropriate. In addition, no evidence was submitted that demonstrated that the classroom at would have been able to meet the student’s needs or implement her IEP.

The District has met its burden in showing it offered the student FAPE, as well as a placement calculated to provide the student with meaningful benefit. I cannot consider the fact that the student is not performing well as evidence of the inappropriateness of the CSE’s recommended classroom, as both sides seem to agree, in her general education setting when both the DOE (through its IEP) and the parents seek a more restrictive setting.

Now, therefore, it is hereby

ORDERED that the parents’ due process complaint is dismissed in its entirety. Dated: July 20, 2011

TIMOTHY M. MAHONEY, ESQ.

Impartial Hearing Officer TM:gc

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

PARENT

A Demand for Due Process 5/27/10 2 pgs.

DEPARTMENT OF EDUCATION

1 Letter to Request Impartial Hearing 3/17/11 1 pg. 2 Resolution Session Agreement 4/1/11 2 pgs. 3 Social History 4/28/00 4 pgs. 4 Psycho-educational Evaluation 6/11/09 6 pgs. 5 2009-2010 IEP 6/16/09 10 pgs. 6 2010-2011 IEP 9/13/10 10 pgs. 7 Placement Offer (PS 299) 9/30/09 1 pg. 8 Placement Offer (PS 045) 9/30/09 1 pg. 9 Placement Offer (PS 145) 12/11/09 1 pg. 10 Placement Offer (PS 274) 9/16/10 1 pg. 11 Class Roster 3/31/11 1 pg.

IMPARTIAL HEARING OFFICER

I Demand for Due Process 5/27/10 2 pgs.

Footnotes

[2] I note that the student’s parents articulated a number of concerns they had as to the contents of the student’s IEP. These include a number of goals that the student has apparently mastered prior to the start of the 2010-2011 school year. (Tr. 69-70) Assuming arguendo that the parents allegations are true, I would likely not find that the IEP otherwise failed to offer the student FAPE on these facts alone. Not all procedural errors invalidate an IEP under the IDEA. See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(i); 34 C.F.R. § 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

[3] I decline to make a ruling as to whether the classroom offers depicted in D-7, D-8, or D-9 are appropriate in that the placement offers therein are for the prior school year.