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: November 28, 2011

February 15, 2012

March 6, 2012 Actual Record Close Date: April 9, 2012 Hearing Officer: Timothy M. Mahoney, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 28, 2011

Attorney — Student

Parents

Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 15, 2012

Attorney — Student

Parents

Parents

Attorney — DOE

District Representative (via telephone) — DOE

Teacher, (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 6, 2012

Attorney — Student

Parents

Parents

Elementary School Director (via — Student

telephone) — Student

Teacher (via telephone) — Student

Attorney — DOE

Principal (via telephone) — DOE

BACKGROUND

On September 14, 2011, I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 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 seeking an appropriate education placement from the New York City Department of Education (“DOE”).

This case was initiated as a result of a demand for due process (“Demand”) filed by the on behalf of the student and her Parents, and received by the Department of Education Impartial Hearing Office (DOE-IHO) on or about September 12, 2011, and identified as NYC Case No. 134933. Thereafter, , Esq., appeared on behalf of the student. , Esq. filed a Notice of Appearance on behalf of the DOE on or about October 13, 2011.

Three days of hearing were held: November 28, 2011, December 23, 2011 (telephone conference), February 15, 2012, and March 6, 2012. A telephone conference was also conducted on December 23, 2011, off the record and attended to by myself and the attorneys, to address the preliminary motion and Interim Order. Three witnesses testified on behalf of the DOE: , District Representative and IEP Teacher (Tr. 26), , classroom teacher (Tr. 77), and , School Principal (Tr. 140). Three witnesses testified on behalf of the student: mother (Tr. 217), , Teacher (Tr. 182), and , Director (Tr. 168). At the outset, I credit the witnesses’ testimony and find them to be reliable witnesses to the extent of the offered testimony.

DISCUSSION

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).

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 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).

Two theories have been presented by the parents: 1) that the DOE failed to make a placement offer, resulting in a denial FAPE and warranting the remedy of Nickerson Letter, or in the alternative 2) the DOE’s proposed IEP for the 2011-2012 school year fails to offer the student FAPE, and that the parent is entitled to tuition reimbursement for the student’s attendance at the Child School, a New York State-approved private setting. See P-A. Interim Order

The first day of hearing was held on November 28, 2011. A list of exhibits accepted into the record follows. There, the Parents moved to preclude the DOE from Prong I of the Rowley/Carter standard on the grounds that the DOE failed to make a timely offer of placement to the student for the 2011-2012 school year. The parties submitted legal arguments in support of their positions on or about December 21, 2011. Thereafter, the attorneys for the parties and I held a phone conference on December 23, 2011 to discuss my determination. This decision reflects the substance of that discussion and functions as my formal decision on the posed issue.

The parties are in agreement that the DOE did not send the student’s family a final notice of recommendation (“FNR”) for the 2011-2012 school year – the year at issue in this matter.

I noted that a failure to provide an FNR itself, even should a placement offer otherwise be shown to have made in an alternative form, may constitute a procedural violation. In matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies:

(i) Impeded the child’s right to a FAPE;

(ii) Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent’s child; or

(iii) Caused a deprivation of educational benefit. See 20 U.S.C. § 1415(f)(3)(E); 34 C.F.R. § 300.513(a)(2). Similarly, the question of whether the DOE’s deviation from its standard practice of issuing an FNR may be a FAPE violation under similar analysis.

In my Interim Decision, I granted leave to the DOE to present testimony on the factual question of whether a placement offer was made to the family at the challenged CSE meeting, and if so whether the form and manner of the offer constituted a violation or violations rises to the level of a FAPE denial. Failure to Offer Placement

At the hearing, the DOE failed to present evidence that a placement offer was made for the student for the year in question. was the “IEP Teacher” present at the student’s April 7, 2011 CSE meeting. Tr. 26, 28-29. On direct examination, Ms. testified that she could not recall whether the student’s anticipated placement for the 2011-2012 school year was discussed. Tr. 55. The parties agreed that the DOE failed to issue a final notice of recommendation; none was offered into evidence. Therefore I am constrained by the facts presented to find that the DOE failed to make a placement offer to the student for the 2011-2012 school year, resulting in a in a denial of FAPE. See A ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 417 (S.D.N.Y. 2011).

Under the Jose P. consent decree, students are entitled to a "Nickerson letter," a letter from the New York Department of Education authorizing a parent to place a student in a New York State approved nonpublic school at no cost to the parent, in the situation in which a student has not been evaluated or placed in a timely manner . See Jose P. v. Ambach, No. 79 Civ. 270 (E.D.N.Y. Jan. 5, 1982), 553 IDELR 298; see also Application of the Dep't of Educ., Appeal No. 09-114; Application of a Student with a Disability, Appeal No. 08-020. I find that the student is entitled to the remedy of Nickerson letter in this situation, where the DOE has failed to present evidence that a placement offer was made.

The DOE has argued that the letter from Principal containing items relevant to the start of school year and sent to the student’s family over August 2011 should be deemed sufficient notice of placement. See P-7. After reviewing the letter, I find that document does not constitute an offer of placement that would meet the demands of the statute, nor put the parents on notice of their child’s placement in which to implement the IEP for the 2011-2012 school year.

Inasmuch as the remedy of Nickerson letter is independent of the appropriateness of the parents’ private school placement – any placement must be state-approved for funding to even occur – there is no need to address the Burlington/Carter prongs.

Now, therefore, it is hereby

ORDERED that the DOE shall provide the family with a Nickerson Letter for the student for the entirety of the 2011-2012 school year, commencing September 9, 2011. Dated: April 23, 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

PARENT

A Impartial Hearing Request, 9/9/11, 5 pp. B Due Process Response, 9/21/11, 4 pp. C IEP, 4/7/11, 14 pp. D Parent Correspondence to CSE, 2011, 9 pp. E The Child School Payment Schedule, 4/28/11, 1 p. F Proof of Payment, 5/11/11, 1 p. G Report, 10/4/10, 18 pp.. H The Progress Report, 10/2011, 10 pp. I Mid-Year Progress Report, 2/2012, 15 pp. J Proof of Payment, 11/2011, 1 p.

DEPARTMENT OF EDUCATION

1 IEP, 4/7/11, 14 pp. 2 Letter from Parent, 5/12/11, 1 p. 3 Therapy Screen, 1/24/11, 2 pp. 4 Therapy Evaluation, 3/11/11, 5 pp. 5 Evaluation, 10/4/10, 17 pp. 6 Evaluation, 11/15/10, 5 pp. 7 Letter, 8/2011, 2 pp. 8 Future Class List, 6/28/11, 1 p.

IMPARTIAL HEARING OFFICER

I Parents’ Memorandum of Law, 12/21/11, 8 pp. II DOE’s Memorandum of Law, 12/21/11, 3 pp.