Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: October 5, 2011

October 11, 2011

Actual Record Closed Date: October 19, 2011

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 5, 2011

Esq. Attorney — Parents

District Representative Department of Education

Mother

Sister Assistant Principal Department of — Student

(via telephone) Education

Unit Coordinator Department of

(via telephone) Education

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 11, 2011

Esq. Attorney — Parents

District Representative Department of Education

Mother

Unit Coordinator Department of

(via telephone) Education

INTRODUCTION

On October 5, 2011 and October 11, 2011 an impartial hearing was conducted pursuant to the Individuals With Disabilities in Education Act (“IDEA”), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, (“the child”). The hearing commenced at 12:30 a.m. and 11:30 a.m., respectively. The hearing was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

BACKGROUND

The child, who is classified on his Individualized Education Program (“IEP”) as having “ years old months old and attends a program at . In a letter dated August 11, 2011, the child’s mother, by her attorney, , Esq., filed a due process request for an impartial hearing. In that request, Ms. maintained that the Department of Education had not offered the child a Free and Appropriate Public Education (“FAPE”) for the 2011-2012 school year and she requested that the Committee on Special Education (“CSE”) reconvene and place the child at the . School or another state approved school that can provide the child with the therapeutic supports that he needs. Alternatively, Ms. requested that the Department of Education provide the child with a teaching assistant with (“ ”) training under the supervision of (“ ”) throughout the school day in the current recommended program. In addition, Ms. requested transportation for the child in minibus with a transportation (Parent’s Ex. A).

The impartial hearing request was filed on August 16, 2011 and I was assigned as the impartial hearing officer on September 6, 2011, after recusal by a previously assigned hearing officer. The compliance date was October 17, 2011 and the case was scheduled for a hearing on October 5, 2011. At that hearing the compliance date was extended to November 14, 2011 at the request of both parties because of extensive testimony and issues. The hearing was continued and completed on October 11, 2011.

THE PARENTS’ POSITION

, Esq., represented the parent at the hearing. Ms. alleged that the District did not provide the child with a FAPE for the 2010-2011 school year and requested the relief described above.

THE DEPARTMENT OF EDUCATION’S POSITION

represented the Department of Education at the hearing and he maintained that the Department of Education provided the child with a FAPE for the current school year.

THE EVIDENCE AT THE HEARING

The Department Of Education’s Case

is the assistant principal of . She testified that there is at the school but that the child is not currently receiving in school ( : 25, 48). Ms stated that if, for any reason, a child does not receive a service indicated on his or her Individualized Education Program (“IEP”) at school, the parents are provided with a Related Services Authorization (“RSA”) letter with a list of for the parents to contact “and try and find outside services” (Berger: 25, 48-49). The IEP coordinator at the school is responsible for providing that information to the parent; for the 2010-2011 school year that person was named “ ” and she retired in June 2011. The current IEP coordinator at the school is . However, upon reflection Ms. was not “a hundred percent sure” that Ms. is the person who would be sending the RSA to the parent. Rather, she stated that she believed the RSAs “come from” the District office ( : 50-52; : 84).

Ms. testified that “usually,” if a child is not being picked up for a service on his or her IEP the teacher will “let everyone know” and the school “will find out” from the District “that the child is getting an RSA letter” ( : 53-55). She stated that in “most case scenarios” the child’s teacher will tell the parent that the child is not being picked up for services; however, she did not know whether, in this case, the child’s teacher told the parent that he was not being provided with ( : 55-56). If a teacher does not tell the parent that a child is not receiving a mandated service, the parent would find out when she received the RSA (Berger: 56-57). In the “worst case scenario” the parent would not receive an RSA and might never know that the child was not receiving his or her mandated service (Berger: 57).

Ms. testified that during the 2010-2011 school the child did not begin to receive the services on his IEP until January 21, 2011 ( 122-123). She stated that she was “having difficulty” finding out whether the child received his therapy services during the summer of 2011 – from July 6th to August 15, 2011. She explained that she would have to “look into it” but that she “can’t say right now” whether he received those services. Ms. testified that as of the date of the hearing - - October 11, 2011 - - the child had not yet begun to receive therapy. However, she noted that an RSA for the services was issued the prior Thursday or Friday ( : 124). The Parent’s Case The parent did not present any evidence at the hearing.

PARENT’S MOTION ON THE SECOND DAY OF THE HEARING

Following testimony by the Department of Education witnesses, Ms. made a motion asking that the Department of Education be ordered to issue a Nickerson letter. She asserted that the parent discovered for the first time at the hearing that the child did not receive all of the occupational therapy services on his IEP during the 2010-2011 school year and that he had not yet begun to receive the therapy services on his IEP for the current school year. Thus, she argued, the Department of Education “has not been timely and fully implementing all of the services that are on the IEP, and therefore” a Nickerson letter is warranted (Hearing: 126-127).

Mr. responded that the child “was served for the second half” of the 2010-2011 school year and that the Department of Education issued a RSA for therapy during the current school year on October 6, 2011. He also stated that the school was “still trying to determine for sure that services were given in therapy over the summer.” Mr. indicated that the District was not “agreeing” to a Nickerson letter but noted that it is “not in dispute” that no services were provided to the child during the first half of the 20102011 school year and “at least” the first month of the current school year. However, he stated that “there is no evidence” to “show whether” services were provided over the summer (Hearing: 127-129).

FINDINGS OF FACT AND DECISION

The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment. 20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005, citing Rowley, 458 U. S. at 203.

If the CSE fails to offer a child an appropriate placement within 30 days from the day of the CSE review that made the program recommendation, the Department of Education is required to provide the parent with a Nickerson letter authorizing the parent to place the child at any state approved non-public school that accepts the child for the remainder of the school year at Department of Education expense. Jose P. v. Ambach, 669 F.2d 865 (E.D.N.Y. 1982); Application of a Student with a Disability, Appeal No. 11-046 fn.1; Application of the Department of Education., Appeal No. 09-114, fn.8.

The child’s IEP dated June 13, 2011 mandates that he receive individual sessions of therapy twice a week for 30 minutes beginning on June 27, 2011 (Parent’s Ex. B at 12). However, the evidence presented at the hearing failed demonstrate that the Department of Education provided the child with those mandated from July 6th through August 15th, the beginning of the 12-month 2011-2012 school year. Ms. Ramirez, the IEP coordinator of the school, testified that she did not know whether the child had received occupational therapy during that time and that she would “have to look into it” (Hearing: 124). In light of the hearing testimony I find that the child did not receive his therapy services during any part of the summer session and thus not within 30 days of CSE review on June 13, 2011. Moreover, Ms. testified, and the District conceded, that the child has not been receiving his services since school started in September 2011. Rather, it was only after the first day of the hearing on October 5, 2011 that the parent was provided with an RSA for those services; the RSA is dated October 6, 2011 (Hearing: 124, 127-128; DOE Ex. 16).

In light of the Department of Education’s failure to provide the child with his occupational therapy services from July 6, 2011 through August 15, 2011, the summer session marking the beginning of the 12-month 2011-2012 school year, as mandated by the child’s IEP dated June 13, 2011, and its failure to issue an RSA for those services until October 6, 2011, almost four months after the date of the CSE meeting at which the IEP was developed, I find that the Department of Education did not provide the child with a FAPE in a timely manner. Therefore, I find that the Department of Education is required to provide the parent with a Nickerson (P-1) letter so that the child may attend any state approved school to which he is accepted. See Jose P. v. Ambach, 669 F.2d at 865.

ORDER

In light of the above findings of fact, it is hereby ordered that:

Immediately upon receipt of this Order the Department of Education is to issue a Nickerson letter to the child’s mother so that she can place the child in a New York State approved school that can meet the child’s educational needs. Dated: October 25, 2011

Impartial Hearing Officer

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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 EXHIBITS

A. Parent’s Request for Due Process, 8/11/11, 3 pages

B IEP, 6/13/11, 22 pages

C IEP, 6/15/10, 28 pages

D IEP, 10/19/09, 19 pages

E Evaluation, 6/7/10, 3 pages

F Evaluation, 6/18/07, 3 pages

G Letter from , N.P.P., 4/4/11, 1 page

H Photocopy of Post It, undated, 1 page

I Classroom Observation, undated, 1 page

J Comprehensive Bilingual 2 Hour Evaluation, 4/18/06, 4 pages

K Assessment, 10/26/09, 3 pages

L Preschool Placement Documents, 8/13/09, 3 pages

M Progress Notes from , undated, 3 pages

N CPSE IEP Goals, Jan, 2003, 8/13/03 and 4/17/02, 29 pages

O Notebook Entry, 9/23/11, 2 pages

P Notebook Entry, 6/19/11, 2 pages

DEPARTMENT OF EDUCATION EXHIBITS

1. Omitted Duplicate

2. IEP, 6/13/11, 11 pages

3 Student Progress Report, various, 6 pages

4 Progress Report, various, 1 page

5 Progress Report, 1 page

6 Reinforcer Checklist, 1/4/11, 5 pages

7 Motivation Assessment Scale, undated, 3 pages

8 , undated, 4 pages

9 , 6/13/11, 1 page

10 Parent Training and , various, 2 pages

11 of Early Development, various, 10 pages

12 Data Sheets, various, 5 pages

13 2010-2011 NYSAA Student Page, various, 23

14 Monthly Logs, various, 13 pages

15 Monthly Logs, various, 16 pages

16 RSA for , 10/11/11, 1 page