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: December 14, 2012

Actual Record Close Date: December 14, 2012

Hearing Officer: Timothy M. Mahoney, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 14, 2012

Mother — Student

CSE Representative — DOE

On October 5, 2012, I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, concerning a dispute of a student (“student” or “ .”) seeking an appropriate educational placement from the New York City Department of Education (“DOE”) for the 2012-2013 school year.

I. BACKGROUND

This case was initiated as a result of a demand for due process (“Demand,” see IHO-I) filed by the student’s Parent and received by the Department of Education Impartial Hearing Office (DOE-IHO) on or about October 2, 2012, and identified as NYC Case No. 141296.

In her demand for due process, .’s mother alleges that the hearing officer in the prior hearing1 ordered the CSE to refer the student to the Center Based Support Team (“CBST”) for placement in a “residential therapeutic school” instead of a private day school, as sought by both the DOE and the parent. See IHO-III, pg. 6; see also December 14, 2012 hearing transcript. The DOE agrees with the parent’s position.

A list of hearing dates and attendees precede the body of the decision. A list of the exhibits accepted and included in the record as evidence follows.

II. STANDARD

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. 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). Here, the burden rests solely with the school district.

The IDEA directs that my decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 415(f)(3)(i). The statue requires this basic floor. The IDEA, among other things, ensures that students with disabilities have available to them a Free Appropriate Public Education, or FAPE. 20 U.S.C. § 1400(d)(1)(A); see also Schaffer v. Weast, 126 S. Ct. 528, 531 (2005). A FAPE includes special education and related services designed to meet the student's unique

NYC Hearing No. 139382. needs, provided in conformity with a written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d); see also 20 U.S.C. § 1414(d); 34 C.F.R. § 300.320. 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. Board of Educ. v. Rowley, 458 U.S. 176, at 206-07 (1982).

The initial inquiry as to whether the DOE offered a student FAPE begins with an IEP that accurately reflects a student’s present levels of performance and his or her needs. 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i). Thereafter, the IEP must be implemented. 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.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); see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007).

III. DISCUSSION

Here, there is no dispute between the parties. The DOE and the parent agree with what must be done, i.e., the previous Hearing Officer’s Order must be corrected to direct the CBST to find a private day school instead of a residential placement.

The strongest concern I have is that there exists no genuine controversy for me to make a determination. In determining whether a controversy has become moot or whether a dispute even exists, the relevant inquiry is whether the facts alleged, under all the circumstances, show that there is a substantial controversy of sufficient immediacy and reality to warrant relief. Christopher P. v. Marcus, 915 F.2d 794, 802 (2d Cir. 1990). Administrative decisions rendered in cases that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student. See Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 (5th Cir. 1989); Application of a Child with a Disability, Appeal No. 07-139. For example, New York State Review Officers have determined that there is no need to decide issues on appeal that are no longer in controversy, or to make a determination that would have no actual effect on the parties. Application of a Child with a Disability, Appeal No. 07-066; Application of a Child with a Disability, Appeal No. 05-018; Application of a Child with a Disability, Appeal No. 02-110; Application of a Child with a Disability, Appeal No. 9873; Application of a Child Suspected of Having a Disability, Appeal No. 95-60. However, a claim may not be moot despite the end of a school year for which the student's IEP was written, if the conduct complained of is "capable of repetition, yet evading review." See Honig v. Doe, 484 U.S. 305, 318-23 (1988).

The purpose of the impartial hearing process is to resolve disputes between the parties. The Commissioner’s Regulations specify that “[a] parent or school district may file a due process complaint with respect to 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.” 8 NYCRR 200.5(i)(1). Intrinsic to this is “a description of the nature of the problem of the student relating to such proposed or refused initiation or change, including facts relating to such problem.” 8 NYCRR 200.5(i)(1)(iv). In this matter, the parties have no dispute. They agreed at the last hearing what should be written in an Impartial Hearing Officer’s Order, and continue to be in agreement that the solution they previously sought does not presently effectuate their desires.

In reviewing the August 17, 2012 hearing transcript, the record is replete with the parties requesting a residential placement. Ms. testified previously that the parent’s preferred placement, the New York Institute for Special Education, requires a residential placement recommendation, and that “[t]here was no way over the summer time that we could get a residential recommendation from any team because the teams in the schools are gone.” IHO-II, pg. 12. Hearing Officer Schiff asked Ms. to clarify what language the DOE was requesting to be included in any Order:

HEARING OFFICER SCHIFF: All right. So the order that’s being asked, as I -- you’ll speak in a minute. But the order as I understand it, will be that I recommend the .

MS. : Right.

HEARING OFFICER SCHIFF: I name – you want me to name the particular school, which I would do, but it still becomes a deferral –

MS. : (Interposing) Right.

HEARING OFFICER SCHIFF: --in terms of the formalities and the administration –

MS. : (Interposing) That’s correct.

HEARING OFFICER SCHIFF: -- a deferral back to , which is expected to follow through on my order. IHO-II, pg. 13.

IHO Schiff issued the order as requested. See IHO-III. There was no error on the hearing officer’s part, yet the parties are back seeking a modification. During the December 14 hearing day, the parties testified that IHO Schiff issued the wrong relief; upon close review of the evidence submitted herein, it is clear that the parties received what they had sought. I have no faith that any order I might issue would achieve the result the parties are seeking.

’s mother already has a Nickerson Letter from the previous hearing (Aug. 12, 2012 transcript, pg. 26), which IHO Schiff affirmed remained in effect for the 2012-2013 school year. Id. at 27, 28. Now, the parties are requesting that the matter be referred to the CBST for a private day school placement – the very same type of placement that a Nickerson letter, or P-1 letter, is designed to remedy. .’s mother testified in both hearings that what she needs is a referral letter from the DOE, specifically issued apparently by the CBST, to the New York Institute for Special Education. And in the instant hearing, the DOE representative agrees that this is referral letter is what is necessary for the student to receive FAPE. See December 14, 2012 transcript.

What is most troubling is that the parties agree what must be done to offer the student FAPE, but seem unsure how to work together to accomplish their desires. If the parties do not like the result of IHO Schiff’s decision, all that needed to occur was an agreement between the parties to do something different.

The only problem that exists is one of the parties own creation. Further hearing decisions will exacerbate this situation, not improve it. IHO Schiff permissively issued a decision matching the parties’ joint testimony. The proper resolution to address ‘buyer’s remorse’ is through the cooperative committee process, not further hearings. Moreover, the parties had the opportunity to implement their agreement at the mandatory resolution session. I further note that the temporal situation that led to the rush of seeking an administrative order is no longer present. The school year is in full swing; it is no longer summer. The barrier that Ms. testified to, i.e. the absence of members to serve on summer CSEs, is no longer an issue.

Even was I to find that there was a justiciable controversy, I would be troubled by one remaining issue. The parties seek me to either correct or modify a fellow hearing officer’s decision. I can find no authority for me to do so. Parties aggrieved by an impartial hearing officer’s decision must seek an appeal to the Office of State Review. See 8 NYCRR 200.5 (k)(1). No appeal was filed.

Therefore, I find that there exists no controversy that may be resolved by the impartial hearing process. I further find that I lack the authority to modify or correct IHO Schiff’s prior decision. The parties are directed to meet, whether in committee or otherwise, and take such steps that both sides concede are necessary to provide this student with FAPE.

Now, therefore, it is hereby

ORDERED that the parent’s Nickerson Letter for the 2012-2013 school year remains in effect notwithstanding any action taken by the parties or order to the contrary; and it is further

ORDERED that the DOE shall immediately, but no later than ten days after the issuance of this order, convene a committee on special education to make any and all appropriate recommendations for the student for the 2012-2013 school, including whether it is appropriate to place the student in a private day school program, and whether the student’s program and/or placement should be referred to the CBST, and it is further

ORDERED that the parties are directed to work together in good faith to place . in an appropriate placement for the 2012-2013 school year. Dated: December 17, 2012

________________________________

TIMOTHY M. MAHONEY, ESQ.

Impartial Hearing Officer TMM: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 ON DECEMBER 14, 2012

IMPARTIAL HEARING OFFICER

I Due Process Demand, 10/2/12, 1 p. II Transcript, 8/17/12, 54 pp. III Decision by IHO Martin Schiff, 9/16/12, 9 pp.