NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: 23
Hearing Requested By: Parent
Date of Hearing: July 7, 2011
August 4, 2011
August 22, 2011
Actual Record Closed Date: September 7, 2011
Hearing Officer: Michael S. Lazan, Esq.
Corrected
NAMES AND TITLES OF PERSONS WHO APPEARED JULY 7, 2011
Parents
Department Representative, CSE 5, Brooklyn — DOE
School Psychologist (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 4, 2011
Parents
Parents
CSE Representative — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 22 2011
Mother — Student
Father (Via Telephone) — Student
District Representative — DOE
School Psychologist (Via Telephone) — DOE
By Complaint dated May 15, 2011, the matter of . came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. This hearing was requested to review ’s program for 2011-2012, particularly in terms of the school location and and therapy. The Complaint also requests placement at a private school.
TESTIMONY AND EVIDENCE
, a school psychologist, observed and evaluated . (87-88)
performed quite well on testing, in the average range, with some weakness in terms of verbal IQ. (96-97) In part, the June Committee on Special Education (CSE) team recommended an integrated co-teaching environment for her as a result. (98) The team felt strongly that a was not appropriate for her. (98) The mother was not present at this review. (102) The father was present at the review. (105)
was recommended in a small group, twice a week. (106) The was to address her skills, her and skills. (106)
This Individualized Education Program (IEP) followed a prior IEP dated 4/11/11 which recommended a different placement. (114) The June IEP was issued in response to the mediation process. (115) This IEP was in part based on the testing that was done. (115) The IEP changed from a program and added ; related services were the same. (115)
The first CSE meeting that the District had scheduled was with the mother. (116) She was not able to make the June meeting due to personal reasons. (116) The CSE rescheduled the meeting it to a second date when the father appeared. (117) The father did not indicate that he was unprepared. (127)
When observing and evaluating , Ms. did not see the signs of that the parent had reported. (123-124) She did see a lot of difficulties. (125)
The father testified and indicated that he was told that the June, IEP meeting was for the purpose of going over the different services that the child was entitled to. (135) Nothing was said to the effect that the District was going to generate a new IEP. (134-135) The District said the parents would get a list of schools, but they didn’t receive any such list. (140) They were expecting the mother to show up, and he said that he would take her place. (156)
Later, the parents did receive a letter indicating that they would recommend for her. (141, 146)
They do not want to attend . (148-150) They have problems with delivery of services. (150-154) The school has a failing grade on its website. (153)
The mother testified that she didn’t see the need to return to the District after they didn’t settle the litigation. (158) had been in a preschool class with students and one teacher, with one assistant teacher. (175-176) She did okay with those services. (176-178) was four times a week, then decreased. (178) These services were delivered at the school. (178)
is very overpopulated. (181) She does not agree with the co-teaching class, the class size is too big. (181) She agrees with the . (183) was reduced in the new IEP. (186) She wants services for 12 months. (187) She was told that could not provide related services, including therapy. (189)
The quarterly progress report from (Exh. 1) indicates that receives three times a week.
FINDINGS AND DECISION
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
The District’s main position here is that the June, 2011 IEP supersedes the April, 2011 IEP that was challenged in the hearing request. The District therefore claims that the April, 2011 IEP is moot, and that therefore the parents’ claims are moot.
The dispute between the parties in an appeal must at all stages be "real and live," and not "academic," or it risks becoming moot. Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 (2d Cir. 2005). An IEP may supersede a prior IEP and render such prior IEP to be moot. Application of the Board of Education of the Carmel Central School District, Appeal No. 05-063 (IEP amended in August after prior IEPs in April and May); Application of a Child with a Disability, Appeal No. 05-021 (IEP amended in August after prior IEP in June); see also Application of the Board of Education of the Avon Central School District, Appeal No. 02-076. Moreover, writing IEPs during the litigation process is not prohibited. Application of a Child with a Disability, Appeal No. 07-123.
However, in my view any such amended IEP must be created with adherence to regulatory and statutory requirements. Central to such IEP process is the participation of the parents. Parents of a child with a disability are mandated team members of a CSE. Federal and State regulations governing parental participation require that districts take steps to ensure that parents are present at their child's CSE meetings or are afforded the opportunity to participate. 34 C.F.R. Sect. 300.322 (a); 8 NYCRR 200.5(d). If parents are unable to attend a CSE meeting, the school district must use other methods to ensure parent participation, including individual or conference telephone calls. 34 C.F.R. Sects. 300.322(c), 300.328; see 8 NYCRR 200.5(d)(1)(iii)). A CSE meeting may be conducted without a parent in attendance if the school district is unable to convince the parents that they should attend. 34 C.F.R. Sect. 300.322(d); see 8 NYCRR 200.5(d)(3)). The school district must keep a record of its attempts to arrange a mutually agreed upon time and place, such as telephone call records, correspondence, and detailed records of visits made to the parents' home or place of employment and the results of those visits. 34 C.F.R. Sect. 300.322(d); 8 NYCRR 200.5(d)(3)-(4); Application of a Child with a Disability, Appeal No. 07-017; Application of a Child with a Disability, Appeal No. 03-082).
Here, the IEP in question was created without the participation of the mother. While the father did appear at the review, the testimony suggests that the mother is a very active participant in the child’s education and had been in the past. The District did not detail its efforts to secure the mother’s participation at this meeting, and did not attempt to reschedule the meeting when the mother did not appear. As a result, I agree with the parents that the June CSE meeting is invalid. Accordingly, the June IEP should be deemed a nullity, and the April IEP should be deemed in effect.
In regard to the April IEP, the District now testifies that the April IEP is inappropriate, but such claims are not before me except to the extent raised in the hearing request. The parents’ Complaint mentions that the District “would like to limit ( ) to (a) community based setting where services do not support her needs.” In testimony, the parents explained that this statement is a challenge to the District’s decision to place their child at , not to the program. In support of this claim at the hearing, the mother testified that the school would not be able to provide therapy at the site. The District representative did not disagree with this statement and no witnesses contradicted this statement. Moreover, the District representative at the hearing agreed with the parents that a school should have all the related services on site. (Transcript, page 59).
Accordingly, the District has not shown that it can fully implement the April, 2011 IEP. The District shall therefore provide the parent with a list of available schools in the area that can fully meet the mandates of the April, 2011 IEP.
The parents’ Complaint also alleges that the child should receive three times a week instead of twice a week. The District has the burden, but did not present any evidence from a and provider to rebut this claim. The documents in the record indicate that the child has been receiving and therapy for three times a week and is making progress with such approach. There is nothing in the documentation indicating that a reduction in services is appropriate. I agree with the parents that the District should provide the child with three times a week for the 2011-2012 school year. This therapy should be for thirty minutes in a group of three.
The parents’ Complaint also indicates allegations pertaining to a . However, the parents did not elaborate on these claims during testimony. These claims are dismissed. Finally, the parents’ Complaint also alleges that the child should attend a private school. However, the parents indicated in testimony that they do not object to a District placement. Moreover, there is no testimony from any private school in the record to show that private schools would be appropriate for .
I should point out that a "Nickerson letter" is a letter from the Department of Education (DOE) to a parent authorizing the parent to immediately place the child in an appropriate special education program in any state-approved private school, at no cost to the parent. Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298. The remedy of a “Nickerson letter” is intended to address the situation in which a child has not been evaluated within 30 days or placed within 60 days of referral to the CSE. Application of the Bd. of Educ., Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092. Since the father indicated that the District has sent the parent a final notice of recommendation, the District clearly did designate a placement for this child for 2011-2012. Accordingly, a 2011-2012 “Nickerson letter” is not in order here.
Dated: September 7, 2011
Corrected Date: September 23, 2011 (Corrections made on page 5 and 6)
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer
ML:gc
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the 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 DESCRIPTION
A Parental Notice of Child's Quarterly Progress Report from s 8/11/11, 6 pages
DEPARTMENT OF EDUCATION DESCRIPTION
1 Quarterly Progress Report dated 2/15/11, 6 pages
2 IEP dated 4/11/11, 14 pages
3 Contact Logs dated 9/21/10, 2 pages
4 Notice of Scheduled Resolution Meeting, 6/6/11, 1 page
5 Notice of Scheduled Resolution Meeting, 6/14/11 1 page
6 Notice of Scheduled Resolution Meeting, 6/15/11, 1 page
7 Consent for Evaluation Form, 6/16/11, 1 page
8 Resolution Meeting Document dated 6/16/11, 2 pages
9 DOE History Report dated 6/16/11, 4 pages
10 Psycho-Educational Report dated 6/16/11, 8 pages
11 IEP Review Meeting email reminder dated 6/24/11, 1 page
12 CSE 5 Conference Agenda Sheet dated 6/30/11, 1 page
13 Meeting Notes dated 6/30/11, 9 pages
14 IEP dated 6/30/11, 15 pages
IMPARTIAL HEARING OFFICE DESCRIPTION
1 Hearing Request dated 5/15/11, 2 pages