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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: Hearing Requested By: Parent
Date of Hearing: August 20, 2011
Actual Record Closed Date: August 27, 2012
Hearing Officer: Daniel Ajello Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 20, 2011
Parent Advocate — Student
Parents
Student
Administrator — DOE
INTRODUCTION
On July 9, 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 20, 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 demanding the Individualized Education Plan (IEP) of March 13, 2012 be recognized as the IEP of record, and demanding a Nickerson Letter (P-1).
BACKGROUND
The student is currently . He started the 2011-2012 school year as a general education student in a collaborative team teaching class, and was moved to a dual language classroom. An Individualized Education Plan was developed on March 13, 2012, recommending a Special Class placement, with related services. Parent has yet to receive a placement offer for the 2012-2013 school year. (T 11, Ex A 1-2 & C)
Parent received another IEP, dated April 20, 2012, recommending an Integrated Co-Teaching Program (ICT), and related services. Parent never attended a meeting relative to this IEP. (Ex A 2 & B 7-8)
Parent rejects the April 20, 2012 IEP and seeks confirmation of the March 13, 2012 as currently effective, and seeks a Nickerson Letter (P-1) to obtain placement for her child. (Ex A 2)
Though not in parent Due Process Complaint, testimony included possibility that parent may seek a different placement in the future and would require additional evaluations. DOE representative email is included as Hearing Officer Exhibit I. Email indicates evaluation is in process and another IEP meeting may take place regarding the student. Regarding this matter, the record was closed on August 27, 2012, and any information stemming from such evaluations or a future IEP meeting will not be considered herein. (Ex I)
THE PARENT’S POSITION
Parent agreed with IEP placement recommendation of the March 13, 2012 IE. (Ex C) (T 12)
Parent does not yet have a placement for the 2012-2013 school year. (T 15)
Parent raised her concerns for her child and provided some additional information regarding her son:
“… , because he was , because he felt like they . He already had a condition, and it was making . So I feel, as his parent, he needs--I need to find a school, a private school, or he needs to be in a day treatment, so that he could be able to deal with his different issues, because , you know, and he really , you know, his academics as well as learning how to . Because we've been through a lot. I have another disabled child. And we relocated . And it's just--it's a lot for a because it's a lot for me, and I'm an adult. So just finding a school-- because we live in , it's a , you know.” (T 20)
DEPARTMENT OF EDUCATION POSITION
( ), Administrator, presented the DOE case.
DOE position presented at hearing includes:
“The Department of Education wants what's best , and has offered a complete reevaluation, a new IEP considered deferral to Central Based Support Team (CBST).” (T 9)
“It appears that mom went to a meeting, got a draft of the recommendation, and then had received an IEP that was not what she had.” (T 9-10)
“…I was unable to find an appropriate attendance for the IEP that she ultimately received. And therefore, I cannot - - vouch for the appropriateness of that second IEP.” (T 11, Ex B)
DOE acknowledged that the student was not issued a Final Notice of Recommendation (FNR). (T 13)
DOE acknowledged that the parent was not invited, nor was part of the IEP developed on April 2012. (T 14)
DOE concluded the presentation of its case with the following statement: “I'm going to conclude my case, because there--I can't present no witness to speak to the parent, nor can I produce documentation that the parent's case is not valid.” (T 15)
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 Free Appropriate Public Education (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 Committee on Special Education (CSE) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 20607; 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.
Parent seeks 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 stateapproved 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, or evidence to contradict parent position.
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.
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.
I find that the IEP dated April 2012 (Ex B) was improperly composed and composed without parent notice or attendance at a properly constituted meeting, and is therefore invalid.
The IEP dated March 13, 2012, is found to be the IEP currently in effect for the student. This IEP and related services therein are found to be the student‘s currently effective IEP. (Ex C)
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 immediately issue a Nickerson (P-1) letter to the parent to enable non-public school placement, and delivery of related services and transportation, as indicated in the March 13, 2012 IEP. Said documentation shall be issued no later than September 05, 2012.
3. The IEP dated March 13, 2012, is found to be the IEP currently in effect for the student. (Ex C)
4. This decision is subject to appeal and review by the State Review Officer. DATED: August 31, 2012
_________________________________
DANIEL AJELLO, ESQ.
Impartial Hearing Officer DA: mv
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. Parent hearing request, dated June 18, 2012, 3 pages
B. IEP, dated April 2012, 14 pages
C. IEP, dated March 13, 2012, 10 pages
DEPARTMENT OF EDUCATION
NONE
IMPARTIAL HEARING OFFICER
I. Email from DOE, dated August 23, 2012, 1 page