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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 21, 2012
September 5, 2012
September 13, 2012
September 21, 2012
Record Close Date: September 25, 2012
Hearing Officer: Linda Agoston, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 21, 2012
For the Student:
Advocate
For the Department of Education:
CSE District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 6, 2012
For the Student:
Advocate
Parent (via telephone)
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 13, 2012
For the Student:
Advocate
For the Department of Education:
CSE District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 21, 2012
For the Student:
Advocate
parent
Special Educator (via telephone)
For the Department of Education:
District Representative
Chairperson's Designee (via telephone)
Unit Coordinate (via telephone)
The matter of . (“ ”) came on for hearing before me on August 21, 2012. On July 16, 2012, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, (“IDEA”) 20 U.S.C. §1415(f)(1).
The request was received on July 13, 2012. On August 13, 2012, I scheduled a pre-hearing conference for August 20, 2012 to find a barrier free placement. Hearings were held on August 21, 2012, September 6, 2012, September 13, 2012 and September 21, 2012.
On September 21, 2012, the parties moved to extend the compliance date for the parent to submit further evidence and a closing statement. In considering the request I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the request for extension of the compliance date was granted.
The current record close date is September 25, 2012 and the compliance date for issuing a decision is October 10, 2012. This hearing was convened at the request of the parent through her representative. Appended to the record are lists of persons in attendance and of documents submitted into evidence including the written decisions for the request for extension and post hearing closing statement.
On September 6, 2012, the parent’s representative requested that the Department of Education (“DOE”) provide with a barrier free placement pursuant to the Individualized Education Program (“IEP”) dated August 30, 2012 (Exh. B) and requested that be placed at , a NYS approved private school for children during the pendency of this case (trans. 26).
On September 6, 2012, the DOE representative agreed the pendency placement of was (trans. 29) while the DOE searched for a barrier free placement.
The sole issue for this hearing is whether the parent is entitled to a Nickerson Letter to pay for (Exh. A), a barrier free non-public school approved by New York State of Education Department for students.
DOE
The Committee on Special Education (“CSE”) held an IEP review on March 7, 2012, and District 20’s CSE classified ,a student as and recommended a special class with a staffing ratio of school (Exh. C at 8). CSE further recommended the related services of and (“ ”) times a week for minutes per session, (“ ”) times a week for minutes per session and (“ ”) times per week for minutes per session (Exh. C at 13).
The DOE Representative maintained that CSE was not aware that required a barrier free placement until the parent submitted the letter from ’s dated August 20, 2012 (Exh. E) and the district representative submitted the letter to CSE (trans. 6;63).
On August 30, 2012, District 20, CSE classified as and recommended school and recommended the related services of in a barrier free site (B at 14).
On or about September 13, 2012, CSE offered a barrier free placement at . The DOE’s sole witness acknowledged that she was the unit coordinator for the specialized school at and she provided related service authorizations (“RSA”) letters to the parents when the related services could not be provided at school (trans. 73).
Parent
The parent testified that she requested a barrier free placement at the IEP meeting on March 7, 2012 as her daughter had and was not able to The parent stated that she was familiar with the schools and was afraid her daughter would be placed in the second floor of a school. She stated that she knew that her daughter could not of her and she informed the March 7, 2012, IEP team (trans.53-55) and she submitted a letter from her daughter’s pediatrician from for a barrier free school indicating required a barrier free placement (trans. 59) at the March 7, 2012 IEP meeting and signed her name to the letter. She submitted a letter from her daughter’s pediatric neurologist dated March 14, 2012 stating required a barrier free placement (IHO Exh. III).
The then current special teacher at the testified that she participated in person at the March 7, 2012 IEP meeting and she personally requested a barrier free placement at the March 7, 2012 IEP meeting for because the was a barrier free school. She stated that required a barrier free school for safety reasons; however, the CSE did not agree that required a barrier free placement and did not explain their reasoning (trans. 48-49).
On cross examination the then current special education teacher stated she believed that the parent submitted the for a barrier free placement (trans. 50).
The parent stated she visited public school placement, a barrier free placement special class in a specialized school at and and was told on September 19, 2012, that the related services of would not be provided at the school and would have to be provided after school through a RSA letter (trans. 57).
The parent stated that she could not utilize a voucher for the related services due to her (trans. 55)
FINDINGS OF FACT AND CONCLUSION OF LAW
Under IDEA, New York State law and both the federal and State regulations, the right to a Free Appropriate Public Education (“FAPE”) is guaranteed. There is no obligation on the part of the school district to provide the best education for the Student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide “all children with disabilities” a “free and appropriate public education” (20 U.S.C. Section 1400[d][1][A]). (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. Section 300.13). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
A board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].
The parent asserted in her due process request that the March 7, 2012 IEP team failed to consider the information give by her and the then current special education teacher to place her daughter in a barrier free school by recommending a placement on the sixth floor of the a public school (Exh. A at 2).
In matters alleging a procedural violation, a hearing officer may find that a child did not receive FAPE only if the procedural inadequacies: (i) impeded the student’s right to FAPE; (ii) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE for the student; or (iii) caused a deprivation of educational benefit.( 20 U.S.C. § 1415(f)(3)(E); 34 C.F.R. § 300.513(a)(2); 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Distr., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep’t of Educ, 2010 WL 324234 at 2 [2d Cr. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at 7[N.D.N.Y. Aug. 21, 20080; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff’d, 2008 WL 3852180 [2d Cir Aug. 19, 2008]).
The March 7, 2012 IEP was the IEP in effect when the parent requested this due process hearing. Therefore, I need not address the August 30, 2012 IEP except to note that it was undisputed that required a barrier free placement.
Under the Burlington analysis I find the parent established she was untitled to a Nickerson Letter for . I credit the testimony of the parent and ’s then current preschool school special education teacher. I find both the parent and the preschool teacher requested a barrier free placement Accordingly, I find the March 7, 2012 IEP failed to provide FAPE because the parent was not provided an opportunity to participate in the decision making process and the lack of a barrier free placement caused a deprivation of educational benefits. It was stipulated that the placement was appropriate as both the parent and the DOE representative requested as the pendency placement. I find the parent fully cooperated.
Moreover, I find the parent is entitled to a Nickerson Letter because the school district was not able to provide a FAPE within the mandatory timelines. In Appeal No. 12-021, the SRO held that a "Nickerson letter" is a remedy for a denial of FAPE and is “a remedy is available to parents and students who are class members in accordance with the terms of a consent order (see R.E. v. New York City Dept. of Educ., 785 F.Supp.2d 28, 44 [S.D.N.Y. 2011]). The Nickerson letter remedy authorizes a parent to immediately place the student in an appropriate special education program in a State-approved nonpublic school at no cost to the parent (see Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]). The remedy provided by the Jose P. decision is intended to address those situations in which a student has not been evaluated within 30 days or placed within 60 days of referral to the CSE (id.; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 279 [E.D.N.Y. Aug. 25, 2010]; see Application of the Bd. of Educ., Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092; see also Tr. pp. 146-47).”
I find the parent provided with CSE with medical documentation for a barrier free placement at the March 7, 2012 IEP meeting and further provided medical documentation for a barrier free ABA private setting on March 14, 2012 (IHO Exh. III). I find CSE failed to find a barrier free school on September 6, 2012. I find the school district was not able to place in a barrier free program in a timely manner as was not placed within 60 days of the referral to the CSE. I find the parent is entitled to a Nickerson Letter and to use the Nickerson Letter for .
ORDER
I order that the DOE shall provide a Nickerson Letter to fund the for the 2012-2013 school year.
Dated: October 1, 2012
LINDA AGOSTON, ESQ.
Impartial Hearing Officer
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 6, 2012
PARENT
A Impartial Hearing Request, 7/12/12, 3 pp.
B IEP, 8/30/21, 16 pp.
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 21, 2012
PARENT
C IEP, 3/7/12, 15 pp.
D Letter from , 3/2/12, 1 p.
E Letter from , 8/20/12, 2 pp.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICE
I Extension, 9/21/12, 1 p.
II Ms. Closing Statement, 9/24/12, 2 pp.
III Letter from , 3/14/12 1 p.