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: August 15, 2012

Actual Record Close Date: August 24, 2012

Hearing Officer: Daniel M. Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 15, 2012

Case No.:

For the Parents:

Attorney

Mother

For the Department of Education:

School Psychologist

INTRODUCTION

On July 5, 2012, 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).

On August 15, 2012, a hearing was conducted. Appended to the record are lists of persons in attendance and the documents received in evidence.

Parent has filed a hearing request, alleging no IEP meeting has taken place for the 2012-2013 school year, and demanding the New York City Department of Education fund the student’s residential placement at for the 2012-2013 school year. (7/1/2012 through 6/30/2013) (Exhibit A)

BACKGROUND

The student is presently a . Since 12/15/2011, the student has been attending a twelve month residential placement at the ) located in , . is a private residential school approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities. (8 NYCRR 200.1[d], 200.7) (Ex A)

THE PARENT’S POSITION

Parent attorney (AP), presented the parent’s case. “…since there is a concession that no placement has been offered in the beginning of the school year, which, for the student, started on July 1st, 2012. The parent respectfully requests - - the DOE to continue effectuating the Nickerson letter that was issued for the 11-12 school year. So admissions of a Nickerson letter would resolve the main issue in this case, which is of the funding for the child's current placement at a New York State approved residential school. And that obviously doesn't stop the DOE's obligation to find an appropriate placement for the student, so as soon as DOE finds an approved school…or any other alternative placement that will be an issue for another proceeding, which may or may not even take place. But at this time, we believe that the parent is clearly entitled to a Nickerson letter, which will go out into place the child in any New York State approved nonpublic school…at the Department's expense.” (T 7)

DEPARTMENT OF EDUCATION POSITION

( ), school psychologist, presented the DOE position at hearing. No documents or witnesses were presented. stated that presently no offer pf placement existed from the DOE. set forth the DOE position: “At this point right now, we met with the parent in July 16th, and we indicated to the parent that this has to go forward and is in the process of CBST so that she can be offered a placement.” (T 6)

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 special 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 special 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 special 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 special 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 states that an IEP meeting took place on July 16, 2012, but an actual IEP, or placement, has not been provided. (T 6)

I find that, for the 2012-2013 school year, 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.

Student is currently enrolled at .

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 2012-2013 school year.

2. The DOE shall issue a Nickerson Letter (P-1 Letter) for payment of the cost of the student’s attendance at the student’s current New York State approved residential school for the 2012-2013 school year (July 1, 2012 through June 30, 2013).

3. This decision is subject to appeal and review by the State Review Officer.

Dated: August 29, 2012

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, 7/2/12, 2 pp.

B DOE Due Process Response, 7/12/12, 3 pp.

C IHO Finding of Fact and Decision, 5/14/12, 7 pp.

D Form P-1 Nickerson Letter, 1 p.