New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: September 8, 2011

Record Close Date: September 23, 2011

Hearing Officer: Leah L. Murphy, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 8, 2011

Attorney — Student

Parents

Paralegal (via telephone) — Student

CSE District Representative — DOE

On July 11, 2011, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Improvement Act (“IDEIA”) of 2004, 20 U.S.C. Section 1415(f)(1), concerning a dispute involving the special education program of .”) a student. (P-Exhibit J, P-A)^[1] The hearing was requested to challenge the recommendations made by the Committee on Special Education (“CSE”) which were contained in a Notice of Final Recommendation dated June 14, 2011. (P-J) The parent alleged that she never received an Individual Education Program and she did not agree with the recommendations reflected in the Notice of Final Recommendation. (P-A) The parent claimed that the District had failed to recommend an appropriate program for the 2011/2012 school year and sought a P-1 letter to secure an immediate placement of her son at an approved school. The parent further requested that an order for pendency be rendered during these proceedings. (P-A) A hearing was held on September 8, 2011 at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York.^[2] A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

As a preliminary matter the parties sought admission of evidence into the hearing record. The Parents sought to introduce and admit Parent Exhibit A-SS into the record. The District representative stated that she did not personally receive the evidence package within five days of the instant hearing and objected to the admission of the documents into evidence. (T-5) Ms. stated that “CSE ” did not receive the documents but she did not make any representation as to whether the Department of Education was in timely receipt. Ms. ’s objection to the admission of the documents was limited to her position that they had not been received compliant with the five day disclosure rule.

To rebut Ms. ’s representation the Parent was permitted to produce a witness who testified that the evidence packet was sent to the Department of Education on July 27, 2011. Ms. , a paralegal working in the office of the parent’s attorney, testified that she sent the documents to the DOE via electronic mail to s email address. (T-15) Ms. testified that when she forwarded the documents to Ms. her cover e-mail inquired as to whether she should send the documents to her attention. Ms. , according to Ms. ’s testimony, said “yes.” (T-15) Based upon the testimony I overruled Ms. ’s objection to the admission of the evidence based upon the five day rule and admitted Parent Exhibits A – SS into evidence.

The DOE declined to submit any documents into evidence.

PENDENCY ORDER

The parties agreed at the start of the hearing that the IEP dated October 18, 2010 (P-B) contained a description of the student’s pendency placement. (T-19) That IEP identified a special class placement for the student with a staffing ratio of for , . In addition, the student would received teacher services per week, , related services of in individual sessions each for thirty minutes, - in a for . The pendency would also include and during school hours. The placement identified on the student’s last agreed upon Individual Education Program was at School. (T-20; P-B) The parties agreed that a pendency placement would be made available for the student at that site if necessary. (T-21) I find that the pendency placement for this student is that described in the IEP dated October 18, 2010 as described above, until such time as a decision is rendered and the due process proceedings have been completed.

PRELIMINARY MATTERS

As a preliminary matter, the DOE representative did state that she would make her best efforts to provide the parent with records from CSE . Ms. indicated that since the student was not familiar to CSE , she would seek those records from CSE . (T-23)

The family also requested certain evaluations be conducted and the DOE represented that evaluations would be done by CSE , including a evaluation, an and a evaluation which would be reviewed by the DOE at a CSE meeting.

Another preliminary matter involved whether CSE would be responsible for this student going forward. The DOE representative stated that the hearing request was submitted both to CSE and CSE . Ms. indicated that she believed that the representative from CSE , , would be responsible for appearing on behalf of the DOE in this matter and that Ms. not she, was “responsible for the entire case.” (T-26) The controversy originated because of a . Until December 2010, the was located within the jurisdiction of CSE . (T-26) CSE was previously responsible for the student’s educational program. Unfortunately, a . (T-27) Since that time, the family has and has . (T-28) I ordered that from this point forward, during the course of this hearing and any orders which are rendered as a result of this hearing, CSE would be responsible for the development of this student’s individual education program. (T-28)

Finally, the DOE requested an adjournment of the hearing on the grounds that the representative believed that this was a case which should have been handled by a representative from CSE . (T-31) The parent vigorously objected to an adjournment and pointed out that the school year had already begun and the student did not have a program. (T-32) The parent’s attorney pointed out that the hearing had been requested on July 8, 2011 in which two months had passed for the DOE to iron out which representative would be handling this matter. (T-33) I note that Ms. forwarded an email to the parties, including me, on July 26, 2011 indicating her availability to appear at this matter on September 8, 2011. Thereafter, this hearing date was scheduled on July 26, 2011. No request for an adjournment was made until the morning of the hearing. I denied the DOE’s request to adjourn and took testimony from the parties.

FINDINGS OF FACTS

The DOE declined to put on a case. Ms. indicated that she did not believe this was a case within the jurisdiction of CSE . The DOE rested without presenting any evidence on this matter. (T-36)

Ms. . testified on behalf of her son. (T-38) Ms. . testified that there was in December 2010 and since that time she and her family had . (T-39) Ms. . informed the representative at CSE whenever her address was changed. (T-40)

. is a child who had been attending at the time that the family requested this hearing. (T-43, 44) . also has . (T-46) . had eight students in his class at the . (T-51) Ms. . testified that she and .’s physicians have seen progress since he began to receive and other related services. (T-46)

Ms. . described . as having difficulty with and stated that her son is not . (T-

49) She stated that he is not and can not . (T-49) She further testified that . is - .” (T-

50) Ms. . testified that her son’s are not age appropriate and he will when . (T-53) She stated “[h]e would just , then , . He up, and he – like, , , . He .” (T-5253)

Ms. . stated that her son received services delivered by a SEIT from October 2010 through August 2011 and would like those services to continue. (T-58) Ms. . stated that the providers would assist her in how to work with . at home. (T-59)

Ms. . testified that she learned that a CSE meeting to review her son’s functioning and program for the 2011/2012 school year was to be held on May 9, 2011. (T-60; P-K) On a Friday afternoon, three days before the meeting, a notice of the meeting the next Monday was placed in her son’s backpack. (T-60) She received no written notice of the meeting despite the fact that she had notified the CSE of her temporary address. (T-60) Ms. . was told by the CSE representative that the proper notice was sent to her prior address – the apartment which was destroyed in a fire. (T-60, 61)

Ms. . attended the meeting. (T-60) She testified that there was no discussion of the need for services at the meeting. (T-63) Ms. . testified that the CSE chairperson, a Ms. , used the CSE meeting to inform Ms. . that the family would be serviced by a different CSE which had jurisdiction over the location of the . (T-63; P-K) Three people were present at the meeting from the DOE, a school who was not familiar with . (P-K, T-72); a special education teacher who did not know . (T-73) and a parent member with no identified experience with children on the . (T-73-74) Ms. . was told that the program would be a class with . Ms. . stated “[t]hat’s all she mentioned to me, but it was not a final, because she said I was being moved to another district. That was what the meeting was about, telling me that I’m going to another district.” (T-63) No IEP was ever generated from that meeting and Ms. . testified that she did not receive an IEP from the DOE for the 2011/2012 school year. (T-63)

Ms. . received no evaluation, documents or assessments of her son at the meeting. (T-68) .’s classroom teacher was not present at the meeting. (T-69) Ms. . testified that at the meeting, the CSE appeared to be classifying her son with a . (T-65) Ms. . objected to that classification and requested that her son’s classification be “ ” which is consistent with his diagnosis and needs. (T-66) She was told that there would be another meeting and she could raise any concerns with CSE 2. (T-73) Ms. . testified that the meeting lasted no more than ten minutes. She said: “I went in – if I was in there ten minutes long, I’m lucky. And I asked the lady for copies of whatever she’s looking at. She said, oh, don’t worry. When you go to District , they’ll contact you.” (T-67-68). Ms. . never received any information, documentation or other contact from CSE . (T68, 73-74)

Ms. . testified that she received a final notice of recommendation on June 14, 2011 at the temporary shelter. (T-74; P-J) Ms. . believed that a placement at had been made without any input from her or those who knew her son best. (T-74) Ms. . visited but found it would not suit the needs of her son. (T-75) She did not receive an IEP reflecting the placement identified in the notice. (T-79) Finally, Ms. . testified that she did not receive parent training during the 2010/2011 school year. The evidence suggests that Ms. . had difficulty scheduling the sessions and in fact did not find them helpful. (T-83) The record does not indicate that the DOE was derelict in providing Ms. . with parent training but that she herself failed to either schedule or follow up with the school psychologist who was conducting the parent training. (P-M)

Ms. . testified that she did not know where her son would be attending school for the 2011/2012 school year. (T-93) Ms. . testified that she had researched several state approved programs for students including School and School. (T-93,94)

The DOE representative did not cross-examine Ms. and presented no evidence to rebut her testimony. (T-96,97)

POSITION OF THE PARTIES

School District

The DOE presented no defense to the challenges of Ms. . to the DOE recommendations for the 2011/2012 school year. There was no response to the allegation that there was no IEP generated for the 2011/2012 school year. The DOE representative’s only position was that “this is not my case.” She presented no evidence and failed to rebut any of the evidence or testimony presented by the parent. Parent

. argued that the DOE failed in its obligation to provide a free appropriate public education for her son for the 2011/2012 school year. She argued that the DOE failed to provide her with proper notification of a CSE meeting held on May 9, 2011 and that the review of May 9, 2011 did not comply with her basic procedural right to participate. She argued that she was denied proper notice of the meeting, denied the ability to review current evaluative information about her son and failed to include anyone who had knowledge of her child’s functioning. Ms. . argued that the brief meeting was held solely to inform her that in fact no IEP was being developed at that time because this matter was being transferred to the CSE ( ) where was located. Ms. . challenged that a proper determination of her son’s classification and program were ever made.

As a remedy, Ms. sought a P-1 or Nickerson Letter to allow her to place her son in a state approved special education school of her choice. The parent further requested that the DOE convene a duly composed CSE to review the evaluations agreed to be conducted and determine with full parental participation the student’s classification, present levels of functioning and goals. The parent also sought to have specific recommendations made with regard to the level of related services that should be ordered and the specific program recommendations for a small class in a special school for students.

LEGAL FRAMEWORK

The Individuals with Disability Education Act (AIDEA@) is a comprehensive statutory framework established by Congress to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”). See,^[20] U.S.C. ' 1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 538, 126 S. Ct. 528 (2005). A Afree appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.@ Board of Educ. Of the Hendrick Hudson Cent. Sch. Dist. V. Rowley, 458 U.S. 176, 188-189 (1982).

In order to demonstrate that FAPE is being provided, the school district must show Athat it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The law expresses a strong preference for students to be educated to the maximum extent appropriate with nondisabled peers and requires that students be segregated only when the nature or severity of the disability is such that education in regular classes cannot be achieved satisfactorily. Walczak v. Florida Union Free School District, 142 F.3d 119 (2d Cir. 1998).

The IDEA requires that the educational needs of a student with a disability and the services required to meet those needs must be set forth annually in a written Individual Education Program (“IEP”) which states present levels of performance, annual goals, specific services to meet those goals, the extent to which the student will participate in regular education, the initiation date and duration of services, and objective criteria for determining whether goals are being achieved. Walzczak, supra at 122 citing Parents play a significant role in the IEP process. They are members of the IEP team and their participation at IEP meetings must be “meaningful.” Schaffer v. Weast, 126 S.Ct. 538, 532 (2005). For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, however, must be meaningful i.e., more than mere trivial advancement. Walczak, supra. The student's recommended program must also be provided in the least restrictive environment. Application of Child with a Disability, Appeal No. 05-061.

Adequate compliance with the procedures prescribed by the IDEA will in most cases satisfy what is required substantively in an IEP. Where a procedural violation is alleged, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies impeded the child’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(2)(E).

When determining the appropriateness of a school district IEP recommendation, Congress now requires that a hearing officer render a decision on substantive grounds based on a determination of whether the child received FAPE. Where a procedural violation is alleged, a hearing officer may find that a child did not receive FAPE only if the procedural inadequacies impeded the child’s right to FAPE, significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits. 20 U.S.C. §1415 (f)(2)(E)

The Parents’ request for due process challenges the student’s public program because, they claim, the DOE failed to conduct a procedurally compliant CSE meeting with proper notice and review of the student’s current level of functioning. In fact, the parent alleges that no IEP was ever generated for the student and as such they are entitled to relief under the law. I agree.

The DOE failed to provide the student with a free appropriate public education (“FAPE”) for the 2011/2012 school year. Although the DOE representative did not actually concede that it denied the student FAPE, the legal consequence for its failure to develop an Individual Education Program and make a formal recommendation for the student leads to such a finding. As of the date of the hearing, the parent had still not received an IEP for her son. The DOE violated federal and state regulations because it did not provide the Student with a valid IEP in effect at the beginning of the 2011-2012 school year. 34 C.F.R. § 300.323[a]; 8 N.Y.C.R.R. § 200.4[e][l][ii]. Despite its failure to provide V.T. with an appropriate placement in a timely manner, the DOE did not offer the parent a Nickerson letter pursuant to which she could enroll her son in any New York State approved nonpublic school at the DOE expense. The only reason given for the DOE’s lapse in providing this student with an appropriate program is an administrative dispute between the different CSEs which may or may not have jurisdiction over the student based on his temporary residence.

A “Nickerson Letter” (also known as a P-1 letter) is a letter from the 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]. The remedy of a Nickerson Letter is intended to address the situation, like here, in which a child has not been evaluated or placed in a timely manner. (Application of a Child with a Disability, Appeal No. 05-072; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092)

In the instant matter, the DOE failed to present any evidence that it had made a formal placement recommendation for . I find that under these circumstances the parent is entitled to receive a Nickerson Letter from the DOE, CSE 2 for the 2011/2012 school year. The program to be implemented until such time as the evaluations are conducted and the CSE has an opportunity to convene will be that which is detailed in the October 18, 2010 IEP for this student. Namely, a small class in a specialized school with the following related services: individual sessions; minute sessions; and therapy sessions. The student is also to be provided with at home by a Special Education Itinerant Teacher. The parent requested parent training but I am going to decline to order the DOE to provide parent training until the matter is reviewed by the CSE at which time the parent’s schedule and availability should be reviewed to find a reasonable means of delivering the service to Ms. .

I also find that since the CSE failed to properly convene, I will order that within two weeks of the completion of the evaluations and reports which have been agreed to be conducted by the DOE, a CSE meeting be convened with proper notice to the parent for the purpose of reviewing all current information about the student, determining a proper classification for this school age child and developing goals to be implemented in his current school program. I order that the student’s current teacher and any other persons the parent wishes to be included be invited to participate in that review.

ORDER

The parent’s request for a Nickerson Letter is granted for the 2011/2012 school year. The program for the student will consist of a small class in a specialized school with a staff to student ratio of . The student will be entitled to receive the following related services: sessions; ; and sessions. The student is also to be provided with of at home by a Special Education Itinerant Teacher.

The DOE is further ordered to expeditiously conduct the evaluations it agreed to, namely therapy evaluations.

Within two weeks of the completion of the evaluations and reports, the DOE will schedule a CSE meeting to review the student’s present level of functioning and determine an appropriate classification. The CSE will also make any necessary and appropriate changes to the student’s program at that time. Dated: October 7, 2011

______________________________

LEAH L. MURPHY, ESQ.

Impartial Hearing Officer

LM;dl

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 ON SEPTEMBER 8, 2011

PARENT

P-A Demand for Due Process Hearing, 7/8/11, 6 pp. P-B IEP, 11/18/10, 18 pp. P-C IEP, 7/10/09, 17 pp. P-D IEP (loose pages), 6 pp. P-E IEP (loose pages), 4 pp. P-F IFSP pages, 1/4/09, 3 pp. P-G IFSP Addendum, 10/31/08, 1 p. P-H IFSP, 10/31/08, 15 pp. P-I Letter from , MD with consult Reports, 6/15/11, 4 pp. P-J Final Notice of Recommendation, 6/14/11, 1 p. P-K CSE Meeting Notice with Fax Cover Sheet, 5/6/11, 2 pp. P-L Progress Report Cover Letter, 2/11/11, 1 p. P-M Letter from , PsyD., 2/10/11, 4 pp. P-N Authorization of the IEP Change, 10/15/10, 1 p. P-O Final Notice of Recommendation, 10/15/10, 1 p. P-P Final Notice of Recommendation, 8/31/10, 1 p. P-Q Notice of BOE Approval, 8/31/10, 1 p. P-R CSE Meeting Notice, 8/2/10, 2 pp. P-S Progress Report Cover Letter, 6/8/10, 1 p. P-T IEP Goal Progress Report, 6/20/11, 4 pp. P-U IEP Goal Progress Report, 6/11, 4 pp. P-V IEP Goal Progress Report, 3/3/11, 11 pp. P-W Quarterly CPSE Progress Report, 6/10/11, 2 pp. P-X Quarterly CPSE Progress Report, 2/20/11, 1 p. P-Y 12 Month Rationale, 1/20/11, 1 p. P-Z Annual Review, 1/20/11, 3 pp. P-AA Educational Progress Report, 1/20/11, 4 pp. P-BB Progress Report, 1/11/11, 4 pp. P-CC Quarterly Progress Report, 11/1/10, 11 pp. P-DD Quarterly CPSE Progress Report, 6/14/10, 1 p. P-EE Educational Progress report, 5/24/10, 4 pp. P-FF 12 Month Rationale, 5/24/11, 1 p. P-GG Progress Report, 5/22/10, 4 pp. P-HH Progress Report, 5/20/10, 3 pp. P-II Calendar, 6/09, 2 pp. P-JJ Consultation Reports, 5/15/09, 6 pp. P-KK Evaluation Summary Report, 4/8/09, 2 pp. P-LL Evaluation, 3/29/09, 3 pp. P-MM CPSE Evaluation, 3/16/09, 4 pp. P-NN Evaluation, 3/27/09, 8 pp. P-OO Classroom Observation, 3/17/09, 3 pp. P-PP Bilingual Social History Intake, 3/16/09, 5 pp. P-QQ Intake Sheet, 12/5/08, 1 p. P-RR Parental Consent for Evaluation, 12/5/08, 1 p. P-SS Bilingual Supplemental Psychological Evaluation, 12/5/08, 6 pp.

DEPARTMENT OF EDUCATION

None

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Footnotes

[1] Exhibits will be referred to as follows: Joint Exhibits as “J-__”; Parent Exhibits as “P-__” and Board of Education Exhibits as “B-__”. Citations to the transcript of the record in this proceeding will be referred to as “R-__” followed by the page number.

[2] An extensions of time for a decision were requested by the parties and granted pursuant State regulations (8 N.Y.C.R.R. §200.5 [i][3]).

[20] U.S.C. § 1401(a)(20); Application of the Board of Education, Appeal No. 00-005.