New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTAND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: October 25, 2012

Actual Record Closed Date: November 16, 2012

Hearing Officer: Dora M. Lassinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 25, 2012

Attorney — Student

Attorney — Student

Attorney — Student

Stepfather — Student

District Representative — DOE

Principal (Via Telephone) — DOE

ESL Teacher — DOE

Social Studies Special Ed Teacher — DOE

The parent of . requested an impartial hearing on August 17, 2012, seeking the issuance of a P1 (Nickerson) letter. (Par. Ex. A). I was designated to hear this matter on September 21, 2012 pursuant to 20 U.S.C. Section 1415(f)(1), after the prior hearing officer recused. A pre-hearing conference was held on September 27, 2012. (IHO Ex. I). The compliance date was extended to November 21, 2012, at the request of both parties. (IHO Ex. I). An impartial hearing was held on October 25, 2012.

SUMMARY OF THE EVIDENCE

is a old young man who was born in and came to the United States at the age of seven. When he was in , his mother referred him for evaluation due to her concerns about his difficulties with reading comprehension in Spanish and English. Overall ’s academic skills were described as “very limited”. (Par. Ex. K). On May 4, 2010, Marco was recommended for a special class in a community school. (Par. Ex. J). On June 10, 2011, the Committee on Special Education (CSE) continued to recommend that he be placed in a Special Class in a Community School with related services. (Par. Ex. I). For the 2011-2012 school year was placed at the . (Tr. pp. 24, 26).

On November 1, 2011, when he was in the , was evaluated at the for , Inc. His math skills were determined to be at the level, demonstrating no improvement since the prior testing. His basic reading skills were at an early third grade level, showing some improvement, but his decoding skills appeared to have declined. (Par. Ex. B).

On May 9, 2012, the CSE reconvened and continued to recommended placement in a special class (15:1) for math, social studies and sciences, with related services of counseling once per week. He was also recommended for ESL services. Integrated CoTeaching Services (ICT) were considered and rejected due to . (DOE Ex. 4). ’s placement continued to be at the . (Tr. pp. 24, 26).

was not placed in any special classes during the current school year. (Tr. p. 58). He receives academic instruction in math, science and history in a general education class, with the support of a special education teacher, in an ICT model. (Par. Ex. F; Tr. pp. 54-58 ). He receives one period per day of ESL services, but does not receive any additional ELA services. (Par. Ex. F; Tr. p. 77).

According to Ms. , ’s ESL teacher, tested at the advanced level on the LAB-R NYSESLAT, entitling him to one session per day of ELA, in addition to his ELA services. (Tr. pp. 85, 89). Nevertheless, he has not been provided with that service. (Par. Ex. F; Tr. p. 77).

DOE POSITION

The DOE concedes that has not been placed in a Special Class, as provided by his IEP, but maintains that is benefiting from his current program. (Tr. pp. 139-141; 151).

PARENT’S POSITION

The parent’s position is that is entitled to the issuance of a P-1 letter as his IEP has not been implemented, and is not receiving ELA services to which he is entitled. (Tr. pp. 148-151).^[1]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The recommended school must be capable of satisfying the student’s IEP requirements. See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009). A denial of FAPE (Free Appropriate Public Education) occurs if the district deviates from substantial or significant provisions of the student’s IEP in a material way. Application for the Review of a Determination of a Hearing Officer, Appeal No. 12-021. There is no dispute that the DOE has failed to offer at a school that can provide him with the special classes (15:1), three periods per day, as recommended in his IEP. ’s placement in ICT classes, deviates from his IEP in a material way and constitutes a denial of FAPE. (Id.).

More than 60 days have passed since was recommended for placement in a special class with a staffing ratio of , and the DOE has failed to offer him a placement consistent with his IEP. Nor has he been provided with an additional period of ELA instruction as required by State Regulation, Part 154 (d)(1)(i). I find that issuance of a Nickerson letter is the appropriate remedy. See Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]; Application for the Review of a Determination of a Hearing Officer, Appeal No. 12-039, p. 13

In addition, both parties agreed that pursuant to a prior Resolution Agreement, the DOE shall immediately conduct a evaluation of . (Tr. pp. 19-20).

Therefore, it is hereby ordered as follows:

1. The DOE shall forthwith issue a P1 letter to .

2. The DOE shall forthwith conduct a evaluation. Dated: November 7, 2012

DORA M. LASSINGER, ESQ.

Impartial Hearing Officer DML:gc

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, 8/17/12, 7 pages B Northside Evaluation, 11/1/11, 9 pages C Northside Reevaluation, 10/9/12, 5 pages D Due Process Response, 9/5/12, 3 pages E Resolution Agreement, 6/26/12, 2 pages F Student Schedule 2012-2013 Term 1, 10/18/12, 1 page G Student Writing Sample, undated, 3 pages H Withdrawn I IEP, 6/10/11, 12 pages J IEP, 5/5/10, 11 pages K DOE Evaluation, 3/10/10, 10 pages L Community High School Letter of Acceptance, 9/6/12, 2 pages M Community High School Information Packet, undated, 16 pages N Community High School Elective and Special Subjects Packet, undated,

8 pages O Tax Return 2011, 2 Pages

DEPARTMENT OF EDUCATION

1 Overview, 9/5/12, 1 pages 2 IEP Meeting Invitation, 4/19/12, 5 pages 3 IEP, 5/9/12, 12 pages 4 DOE Student’s Permanent Record, 9/5/12, 1 page 5 P-4, 8/24/12, 1 page 6 Attendance Report, 12/18/12, 1 page 7 LAB-R Exam History Report, 4/5/12, 1 page 8 New York State Education Department Credential Report, undated, 1 page 9 Contact Form, 10/10/12, 1 page 10 Student Report Card, 10/15/12, 2 pages 11 Reading Teacher’s Report, 10/18/12, 1 page

IMPARTIAL HEARING OFFICER

I Prehearing Conference Summary, 9/27/12, 1 page II Case follow-Up Sheet, 9/24/12, 1 page III Email Correspondence dated 10/26/12, 1 page

Footnotes

[1] The parent’s counsel represented that had been accepted at a State Approved Private School, and requested that I direct the issuance of a Nickerson Letter on an expedited basis, so as to secure his seat at the school. While I initially indicated that I would issue an Interim Order directing the issuance of a Nickerson Letter, to be followed by formal findings of fact and decision, I subsequently advised the parties that it would be inappropriate for me to grant this type of relief via an Interim order which is not appealable. Instead, I ordered an expedited transcript, and rendered my decision as soon as the transcript became available. (Tr. pp. 154-156; IHO Ex. III).