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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: September 27, 2012
October 22, 2012
Actual Record Closed Date: November 20, 2012
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 27, 2012
None — Student
District Representative (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 22, 2012
ESQ., Attorney — Student
Parents
District Representative — DOE
— DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. Counsel for the student and the parent requested this impartial due process hearing in a letter dated August 29, 2012.[1] The parent seeks a Nickerson letter authorizing the student‟s placement in a State-approved non-public school at public expense (Ex. SD-3).
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
On August 29, 2012, I was appointed by the New York City Department of Education (the “DOE”) to hear this matter. In due process response dated September 22, 2012, the DOE denied each and every allegation contained in the parent‟s due process complaint (Ex. SD-4). A pre-hearing conference was held with the parties on September 27, 2012 to clarify the issues and select dates for the impartial hearing. See 8 NYCRR § 200.5(j)(3)(xi). Thereafter, a hearing in this matter was held on October 22, 2012 2 . Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
2
Following my appointment to this case, the parties moved to extend the case compliance date in this matter twice in light of the extensive issues raised in the parent‟s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that allowing for adequate time for my consideration of the extensive issues raised in the parent‟s due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 74-75; Exs. IHO-I, IHOII).
At the time of the August 29, 2012 due process complaint, the student was ) years old. The student has received general education services at the (“ ”) in for the years (Exs. SD-1, SD-10). The student's eligibility for special education and related services as a student with an is not in dispute in this hearing (Exs. SD-1 at 11, SD-3, SD-4).3 See 34 C.F.R. § 300.8(c)(4); 8 NYCRR § 200.1(zz)(4).
The student attended a program from . The student then attended School from until she completed the . The student reportedly did well in school, got along with her peers and (Ex. SD-7 at 2).
The student enrolled in in September 2009. The student has earned ( ) required for with a . The student reportedly and had her first year at (2009/10), but her in subsequent school years. School records indicate that for the 2011/12 school year, the student of ). Even on those occasions when the student , she reportedly and . According to the student‟s teachers, she is a but she (Ex. SD-1 at 1).
The parent reports that the student that she to days at a time . In addition, the parent reported that her daughter has . The student is and the parent is concerned that the student is . The parent is that the student is that places her in and is concerned for the (Ex. SD-1 at 2).
In 2011, the parent sought assistance for her ) to no avail. In June 2011, the parent called the . The student was taken to the of The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance. 8 NYCRR § 200.1(zz)(4).
”) and diagnosed with a by the . The student was to an for , but she did not attend those services. The diagnosis of was later confirmed on February 22, 2012 when the student was evaluated at the (Ex. SD-1 at 2).
The parent reported that in August 2011, the student continued to so the parent initiated a with the when the student, (Ex. SD-7 at 1).
Due to concerns about the and , the parent referred the student to the DOE‟s Committee on Special Education (the “CSE‟) on September 14, 2011 for evaluation and consideration of a (Ex. SD-1 at 1, P-B).
In October 2011, the student became towards the parent, which resulted in an on the parent‟s behalf. The student went for several months as a result of the (Exs. SD-1 at 2, SD-7 at 1).
On November 29, 2011, the student‟s guidance counselor referred the parent to for . offered a to the student, but the . In addition, referred the family to the for services and they also services. The student, however, (Exs. SD-1 at 2, P-C).
In January and February of 2012, a was conducted in response to the parent‟s September 2012 initial referral. Results of testing found that the student‟s general cognitive ability as measured by the WISC-IV was in the . The students‟ while her were each in the (
On subtests on the WIAT-III Educational Achievement Test battery, used to measure the student‟s educational achievement, the student‟s academic skills fell within the Specifically, her ( ) and her (reflecting her understanding of what she ) was in the ). In (Exs. SD-1 at 1, SD-5).
On March 5, 2012, the student‟s educational program was deferred by the CSE to the DOE‟s Central Based Support Team (“CBST”) for consideration of a State-approved setting for the student (Exs. SD-1 at 12, SD-3 at 2). On March 13, 2012, an unidentified DOE employee called a Central DOE Representative, presumably affiliated with the CBST, requested that a psychiatric evaluation of the student be produced and opined that the student may require “ but not for .” On March 20, 2012, the Central DOE Representative made the following determination:
After review of the documents, it has been determined that this case is not appropriate for NPS recommendation as this student‟s can be met in a . The student , has earned at least and has at Refusal to attend school is not a sufficient reason to recommend NPS placement. The of the student need to be addressed by outside agencies. The student as an case, the student refuses placement, has offered voluntary placement in the past which the parent refused, and the parent is requesting a secure placement which
CBST cannot provide. If it is determined that this student requires a , it is suggested that this be pursued through or , which may be able to . This case is inactive at CBST (Ex. SD-2 at 1)
On September 12, 2012, the parent met with a school social worker. The student‟s concerns have . Although the student had in in an effort to catch up on day program. The student has in meeting her due to (Exs. SD-1 at 2, SD-8).
The school guidance counselor has worked with the parent and this student the academic year (2012/13) to and . The guidance counselor reviewed the student‟s the student in selecting requirements. The student was enrolled in a during the day. While the guidance counselor also fair on “ ,” the (Exs. SD-1 at 2, SD-11).
The parent also reported to the that the student has become even more and . The parent has had to and reports as the for . The parent feels that put the . Specifically, the parent reported that a few days prior to meeting with the school social worker, she learned that the student by and . The student has also become more Exs. SD-1 at 2, SD-8).
At a meeting held on September 12, 2012, the CSE recommended that the student attend a “ ” supplemented with school-based counseling and deferred the student‟s educational placement to the CBST (Ex. SD-1 at 10-12). On October 4, 2012, Ms. , an Education Administrator, indicated that the CBST had accepted the referral (Ex. SD-2 at 2).
IV. POSITIONS OF THE PARTIES
A. The Parent
The student is a student. The student has attended a operated by the DOE for the . Last school year (2011/12), the failed all of her courses and had to be retained. The parent requested a CSE review to consider the student‟s eligibility to receive . At a meeting held on March 5, 2012, the CSE recommended that the student be placed in a class program in a New York Stateapproved nonpublic school. Although the student‟s placement assignment was deferred to the CBST, the parent never heard back from that component of the DOE (R. 44-45).
The parent is entitled to a P-1 or Nickerson letter which would allow the student to attend any New York State-approved school of the parent‟s choice for one year at public expense (R. 45; Ex. SD-3 at 3). If the DOE ultimately disagrees with the school selected by the parent for the student, an administrative mechanism exists by which the DOE can seek review of the parent‟s school selection (R. 46-48).
B. The DOE
The DOE concedes that it had denied the student a free appropriate public education (R. 29).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the 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.[4] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
A FAPE is offered to a student 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. See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student‟s right to a FAPE; (b) significantly impeded the parents‟ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).
The 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. See 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.” See Rowley, 458 U.S. at 203. However, 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, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, 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, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also 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), quoting Rowley, 458 U.S. at 192.
The student‟s recommended program must also be provided in the least restrictive environment (the “LRE”). See 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); Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).
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), 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).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).
B. Jose P. Relief
The parent seeks, inter alia, a Nickerson letter allowing the student to attend a State-approved nonpublic school at the DOE‟s expense (Ex. SD-3 at 2-33). A Nickerson letter is a letter from the DOE authorizing a parent to place a student in a State-approved non-public school at no cost to the parent (Exs. P-E, P-F, P-G, P-H, P-I, P-J). See Jose P. v. Ambach, No. 79 Civ. 270, 553 IDELR 298 (E.D.N.Y. Jan. 5, 1982). The remedy of a “Nickerson letter” is intended to address the situation in which a student has not been evaluated within thirty (30) days or placed within sixty (60) days of referral to the CSE. See M.S. v. New York City Dep’t of Educ., 734 F. Supp. 2d 271, 279 (E.D.N.Y. 2010).
I find that the student is entitled to a Nickerson letter authorizing the parent to place the student at a State-approved nonpublic school, namely the Neither the CSE, nor any other component of the DOE, has placed the student within sixty (60) days of the parent‟s September 14, 2011 request for a “CSE review for the purpose of residential placement.” See 8 NYCRR § 200.4(e). Indeed, as of the final date of hearing in this matter, October 22, 2012, it had been well over a full calendar year since the parent referred the student to the CSE for a special education placement (Ex. P-B). As the is a school that has been approved by the Commissioner of Education as a school with which public school districts may contract to provide special education instruction and services to students with disabilities, see 8 NYCRR §§ 200.1(d), 200.7, the student‟s placement there at public expense is authorized by Jose P. in the absence of any recommended placement by the CSE.[5]
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
The parent shall receive a Nickerson letter authorizing the student‟s placement in a New York State-approved nonpublic school for the 2012/13 school year. Dated: November 28, 2012
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
JJS: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 ON SEPTEMBER 27, 2012
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 22, 2012
PARENT
A. [Reserved]
B. Letter to from parent, 9/14/11, 1 pg.
C. Letter from , 2/22/12, 2 pgs.
D. Summary ( ), 2/22/12, 19 pgs.
E. Jose P. v. Ambach, 79 Civ. 270 (EDNY) Special Master‟s Report No. 8, with Appendix comprised of order with exhibits 1 & 2, executed by Eugene H.
Nickerson, USDJ, 1/5/82, 21 pgs.
F. Jose P. v. Ambach, 79 Civ. 270 (EDNY) Memorandum & Order, 1/5/82, 4 pgs.
G. Jose P. v. Ambach, 79 Civ. 270 (EDNY), Order, with exhibits 1 & 2, 7/2/82, 7 pgs.
H. Jose P. v. Ambach, 79 Civ. 270 (EDNY), Stipulation, 7/28/88, 5 pgs.
I. Jose P. v. Ambach, 79 Civ. 270 (EDNY), Judgment, 12/14/79, 10 pgs.
J. Jose P. v. Ambach, 79 Civ. 270 (EDNY), 553 IDELR 298, unofficial publication of composite of Memorandum & Order, Special Master‟s Report No. 8 with
Appendix and Exs. 1 & 2; and Special Master‟s Report No. 9, 1/5/82, 12 pgs.
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), 9/12/12, 13 pgs.
2. Central Response for Consideration of a State Approved , 9/12/12, 2 pgs.
3. Impartial Hearing Request/Due Process Complaint Notice, 8/29/12, 3 pgs.
4. Due Process Response, 9/11/12, 3 pgs.
5. Evaluation, 2/15/12, 7 pgs.
6. Educational Update Report, 10/11/12, 4 pgs.
7. Social History Evaluation, 1/3/12, 3 pgs.
8. Addendum to Initial Social History, 9/20/12, 3 pgs.
9. Attendance History Inquiry, 9/5/12, 3 pgs.
10. Student Permanent Record, 9/4/12, 1 pg.
11. Student Intervention Log Report, 9/5/12, 3 pgs.
IMPARTIAL HEARING OFFICER
None
POST HEARING SUBMISSIONS
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 10/22/12, 1 pg.
II. Confirmation of Extension, 11/13/12, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[4] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[5] Unlike the situation in Application of the New York City Sch. Dist., Appeal No. 10-115 at 13 (SRO January 24, 2011), where relief under Jose P. was denied, the parent here has alleged that the student was denied a FAPE and the DOE has conceded that point at the hearing (R. 29; Ex. P-B).