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FINDINGS OF FACT AND DECISION
Case Number: Student‟s Name: Date of Birth: July 21, 1994 District: 10 Hearing Requested By: Parent Date of Hearing: August 12, 2011
September 16, 2011 Actual Record Close Date: September 23, 2011 Hearing Officer: Daniel M. Ajello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 12, 2011
Attorney — Student
Chairperson — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 16, 2011
Attorney — Student
Grandparent — Student
Niece — Student
Interpreter — Student
Clinician (via telephone) — Student
Social Worker — DOE
— DOE
INTRODUCTION
On July 6, 2011, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education‟s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1) and Florence County School District Four v. Carter BY Carter, 114 S.Ct. 361 (1993).
On August 12, 2011, a pendency hearing was conducted, and on 8/17/2011 a pendency order was issued. On 9/16/2011 a hearing was conducted and completed.
Appended to the record are lists of persons in attendance and the documents received in evidence.
The student (aka ) is a year old student classified with Disturbance. (Exhibit D1) The student was admitted on 09/09/2009, and currently attends the Educational Center ( ) located in . is a private residential school which is approved by the Commissioner of Education as a school which districts may contract to instruct students with disabilities.
Parent has filed a hearing request demanding the New York City Department of Education fund the student‟s residential placement at from 7/1/2011 through 6/30/2012. (Exhibit A)
BACKGROUND
The student was years old at the time of the current IEP, dated 6/10/2011, (Ex. D) which indicates a classification of disturbance and deferred the recommendation to CBST, twelve month school year indicator was left blank, though current placement is a twelve year placement, and related services of were terminated on the IEP.
THE PARENT’S POSITION
Parent hearing request sets forth that the CSE failed to offer the student a free and appropriate public education and as a result the parent demands continued placement, and funding for all education and maintenance tuition charges, at the Center ( ), a private residential program located in , for the 2011-2012 school year.
Parent witness is a clinician at whose qualifications include, a Bachelors degree in psychology, a Masters degree in psychology, a certificate of Advanced Graduate Studies in psychology, and a pending a license for mental health clinician, and for licensure as an alcohol and abuse counselor. (T 36) Mr. testified that his duties at include overseeing the treatment of student progress, providing , writing plans, meeting with students and case managers, the treatment team, and discussing overall improvement for the student. He indicates a caseload of about twenty-one students. The student who is the subject of this hearing has been on his caseload since September 2009. (T 37-39)
The witness testified that the student is enrolled at for and educational needs due to problems at home, school, , and abuse, of family members. (T 39)
The witness testified that academic and progress have been made . When the student arrived at the school the witness testified that the following took place: poor , non-with staff and adult , management issues, at staff, make comments, make related comments, very at times, some staff, staff, with peers, property. (T 40)
The witness continued that presently the student is doing very well and has almost none of the previous , which has enabled the student to gain more independence. Witness described independence as the reward for students who are doing well which enables the student to have access to benefits like time without direct staff supervision. Additionally, the witness testified that the student has been free for the past two years. (T 41)
The witness testified that the student has left the premises for field trips and vocational classes, with supervision. Mr. testified that progress has been made due to a modification program, , contracts, and a self management project, which were uniquely modified to meet the student„s needs. (T 42-43)
Testimony continued to describe that the student‟s life at the . Student lives in a apartment complex about five minutes from the school where he is able to utilize leisure time, through his contracts, by activities such as watching TV, video games, reading books and researching s. (T 46) Witness testified that the student obtained employment three or four months ago in the kitchen of the school as a server, and also has assisted in the education department as a tut or to other students. (T 46)
The witness testified that academically the student is at grade and has improved his typing skills, grammatical skills, sentence structure, passed the science and algebra exams, and is on track to receive a diploma, with an anticipated graduation date of December 2012. Additionally, the witness testified that the student is making vocational progress by researching s, preparing to take the , taking community vocational classes such as cooking and art class. (T 47-48)
Witness testified that the student “…definitely requires an additional residential placement. The way he's going, we have more work to do with him. We are currently preparing him to get into a , and upon speaking with him the other day, he very much would like to stay here to continue working on his academic skills and improvement, so his long-term goal is to get into a . As I mentioned before, we are prepping him for the as well as the three other , so we have more work to do with him, however, he has been very successful so far as well.” (T 49-50)
The DOE did not question the witness.
The next witness to testify was the parent and legal guardian of the student Ms.
. The witness the student after his mother away in . The witness testified that the student had problems with s and sought help through the DOE in 2009. (T 52-54)
Exhibit C, hearing officer decision Case Number , sets forth the events which resulted in the student‟s placement at for the 2009-2010 school year.
The witness testified that she believes the student has made progress at , however, the parent has been reluctant to have the student return home to visit due to the bad influence of his friends. The witness in thinking about having the student come visit at Thanksgiving. (T 55)
The witness indicates that she participated in the 06-10-2011 IEP meeting via telephone, where progress was reviewed and the team wanted to offer another school, while she wished the student to remain at . (T 56-57)
The witness testified that she did receive a phone call regarding changing the student‟s school, which the witness declined. The witness continued to testify that she was not asked to take any further action. She also testified that she had not received any letters or communication regarding placement. (T 59-68)
Parent submitted progress reports from entered as Ex. F through I, and a report card for 2010-2011 school years Ex. M. These document reflect progress. For example, Ex. H indicates the reduction of unwanted .
In closing the parent‟s attorney, Mr. , stated the parent position that the DOE has not provided any justification for changing placement, the IEP clearly indicates progress, DOE has not set forth any information allowing the parent to consider a change in placement, and the parent has cooperated with the DOE by participating in the IEP and consenting to the CBST process allowing documentation to be accumulated for the placement process. The attorney continued to state that a placement recommendation has still not been made, entitling the parent to a Nickerson or P-1 letter. (T 70-72)
DEPARTMENT OF EDUCATION POSITION
Ms. appeared for the DOE. Ms. indicated that a proposed placement recommendation was made at the IEP meeting 6/10/2011 for a day program (T 23) and that a residential program was considered too restrictive (T 24 & Ex. D 10)
It is noted that the IEP also indicated that the class environment recommendation made is for a 24 hour residential program for academic and social/ need. (D 9)
Ms. indicates that there is some discrepancy between the IEP, which recommends a residential program, and the Child Assistance Program which indicates a day program. (T 28-29)
Ms. attempted to clarify the DOE position and indicated that the DOE does recommend a 24 hour residential program. (T 29) She continued to state that the student has made very good progress, has had a good adjustment, is good and the student has continued to progress in the program which he currently attends. (T 31)
Ms. continued the DOE position that two appropriate recommendations were made, by the CBST, and that the parent did not follow up with appointments scheduled for them. (T 31-32) No information was offered as to why either recommendation was appropriate.
The DOE presented two documents into evidence. The first, a Children‟s Center response form, dated 7/26/2011. (Ex 1) The second document presented by the DOE is a - Free School District letter, dated 8/24/2011. (Ex 2) This letter indicates that an contact was sought to set up an appointment for an interview regarding the student. (T 27)
No witnesses were presented by the DOE.
The DOE representative closed by stating that the student has made wonderful progress, a residential program continues to be the recommendation, and asks that the parent cooperate with the DOE to find an acceptable residential program. (T 75)
At the conclusion of the hearing the proceedings were closed with no further testimony taken. There were no post-hearing exhibits submitted.
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A student is offered a FAPE 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). The "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, but school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). A school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Gagliardo v. Arlington Cent. Sch.
Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059.
The burden of proof is on the school district of demonstrating the appropriateness of the program recommended by the CSE. 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]).
Boards of Education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and; (3) equitable considerations support the Parent's claim (School Committee of the Town of Burlington v, Department of Education, Massachusetts, 471 U.S. 359 [1985]; Application of a Child with a Disability, Appeal No. 01-052). Further, the fact that the facility selected by the Parent to provide education services to the Child had not been approved as a school for children with disabilities by the State Education Department of the State of New York is not dispositive. (Florence Co. School District Four v. Carter by Carter, 510 U.S. 7 [1993]).
Parent attorney references a to the parent impartial hearing request, namely a Nickerson letter (P-1). A Nickerson letter (P-1) is a letter from the Department of Education (DOE) to a parent authorizing parental placement of the child, at no cost to the parent, in an appropriate education program in any state-approved private school.
(See Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298) This remedy addresses the circumstance whereby a child has not been evaluated or placed in a timely manner. (See SRO Nos. 06-088, 02-075 & 00-092) Additionally, this remedy is also available when a student has completed all necessary evaluations but a final notice of recommendation is not sent or given to the parent by the student's eligibility date. Again, the parent must be provided a Nickerson Letter entitling the student to be placed in an appropriate non-public school at public expense. Specifically, letters were to be issued to the parents of each eligible child who had not been placed within sixty days of referral or evaluated within thirty days of referral advising parents of their right to place their child in a non-public school at public expense. (Jose P., et al. v. Thomas Sobol, et al., 1995 WL 591304 (EDNY) - Stipulation)
In the instant case the DOE has not presented any witnesses. The DOE representative agrees with a residential placement recommendation and submits that the student is making progress at the current placement. The DOE main contention is that the parent has not cooperated with the placement process and that the DOE has made two placement offers. The DOE puts forth that the documents submitted, as Ex 1 & Ex 2, constituted recommendations to the parent, for which the parent failed to follow up. (T 31)
I find that the DOE failed to make an offer of placement and has failed to provide an appropriate placement for the student. No document or testimony has been provided offering an actual placement for the student. No document or testimony has been presented to contradict the testimony and documents presented by the parent. The only contact made regarding placement seems to be a phone call to the parent made by an undisclosed party. The documents submitted into evidence by the DOE include,
Children‟s Center (Ex. 1), which does not indicate an offer of placement. The document indicates states that the parent indicated no interest in the school, but does not indicate appropriateness. The Free School District letters, Ex 2, seeks to contact the parent, however, the letter does not include the apartment number of the parent and reflects an incorrect zip code (extra digit). Parent testifies that she has not received any correspondence regarding placement.
The failure of the DOE to meet its burden of proof under prong one of Burlington/Carter, moves the analysis to prong two, whether or not the parental placement is educationally appropriate.
I find the current placement and services provided at to be appropriate. Undisputed testimony given by the parent, and the clinician, indicate academic and progress, at the current placement. Furthermore, the testimony provided indicates the he student is anticipated to continue to make progress and obtain a diploma. The DOE representative also indicated progress has been made at the current placement. The placement at also is shown to have to ability to provide a proper plan for the student, who has been shown to make progress. The placement at provides educational benefit sufficient to meet prong two.
I find equitable considerations support the parent‟s claim. The DOE did not show any effort in offering placement to the student or including the parent in the placement process. Additionally, as a timely offer of placement was not made, the parent is entitled to a Nickerson (P-1) letter to utilize in placing the student at the .
ORDER
1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2011-2012 school year.
2. The parent request for a 12 month private residential school placement of her child at the Educational Center ( ) for the 2011-2012 school year is educationally appropriate.
3. The DOE is directed to fund the costs of tuition and other expenses of enrollment for the student for the period from 7/1/2011 through 6/30/2012. and the parent shall document the child‟s actual enrollment and the costs of tuition and other expenses as a condition of payment.
4. The issuance of a Nickerson Letter (P-1 Letter) for non-public school placement in a 24 hour residential program for academic and social/ needs.
5. This decision is subject to appeal and review by the State Review Officer. DATED: September 30, 2011
__________________________
DANIEL M. AJELLO, ESQ.
Impartial Hearing Officer
DMA:jj
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 Impartial Hearing Request, 7/1/2011, 2 pp. B Department of Education Due Process Response, 7/7/2011, 3 pp. C Impartial Hearing Officer Decision, 12/2/2009, 16 pp. D IEP, 6/10/2011, 15 pp. E Charts, 9/9/2011, 7 pp. F Quarterly Progress Report, 6/2010 through 9/2010, 12 pp. G Quarterly Progress Report, 9/2010 through 12/2010, 12 pp. H Quarterly Progress Report, 12/2010-3/2011, 11 pp. I Quarterly Progress Report, 3/2011-6/2011, 14 pp. J Social Summary, 4/5/2010,[2] pp. K Neuropsych Summary, 6/9/2010, 3 pp. L School Psychiatry Report, 7/13/2011, 4 pp. M School Year Report Card, 2010/2011,[1] p. N Program Description, 9/9/2011, 4 pp.
DEPARTMENT OF EDUCATION
Footnotes
[1] Children's Center Response, 7/26/11, 2 pp.
[2] Letter, 8/24/11, 2 pp.