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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: January 10, 2012
January 17, 2012
January 30, 2012
February 10, 2012
Actual Record Closed Date: February 22, 2012
Hearing Officer: .
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 10, 2012
Attorney — Parents
Parents
Parents
Student
Interpreter
Representative — DOE
Director of Special Education — DOE
School Psychologist — DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 17, 2012
Attorney — Parents
Parents
Parents
Student
Interpreter
Representative — DOE
Assistant Principal — DOE
(via telephone)
Special Education Teacher — DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 30, 2012
Attorney — Parents
Parents
Parents
Interpreter
Law student — Parents
Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10, 2012
Attorney — Parents
Parents
Parents
Interpreter
Representative — DOE
PROCEDURAL HISTORY
On January 10, 2012, January 17, 2012, January 30, 2010 and February 10, 2012, I conducted an impartial hearing at the offices of the Department of Education located at 131 Livingston Street, Brooklyn, New York pursuant to the Individual with Disabilities Education Act (“IDEA”), 20 C.F.R. 1400 et seq., regarding the special education program of (hereinafter referred to as “the student”). A list of persons in attendance and documents received in evidence are appended hereto.
The proceeding was initiated at the request of the parent by correspondence dated October 5, 2011 wherein the parent seeks a private placement (Ex. B) .1 I was appointed as hearing officer on October 7, 2011. The parties were unable to resolve the matter during the resolution period and on October 31, 2011 as per the mutual agreement of the parties a hearing date was scheduled for December 14, 2011. I was available to conduct a hearing within fourteen days of the end of the resolution period.
By email dated November 29, 2011, the parent’s newly appointed attorney submitted a notice of appearance and requested an adjournment of the hearing date to allow the parent sufficient time to prepare its case. On November 30, 2011, subpoenas on behalf of the parent were received and executed. The parent’s unopposed request for an adjournment of the hearing date was granted.
An amended request was filed on behalf of the parent on December 12, 2011 wherein it is alleged that the Department of Education (“DOE”) failed to offer the student a free and appropriate public education (“FAPE”) for the 2011/12 school year. At the time the hearing request was filed, the parent sought among other relief a Nickerson Letter, tutoring, a paraprofessional, independent educational evaluations and an Individualized Education Program (“IEP”) meeting (Ex. A).
Again the parties were unable to resolve the matter during the resolution period and on December 28, 2011 as per the mutual agreement of the parties a hearing date was scheduled for January 10, 2012. I was available to conduct a hearing within fourteen days of the end of the resolution period.
References to Hearing Exhibits are prefaced with “Ex.”
Due to the availability of witnesses the hearing was scheduled to continue on January 17, 2012. Two additional hearing dates were required in order to provide the parties with a full and fair opportunity to present their positions in accordance with due process. During the course of the proceeding a comprehensive set of independent educational evaluations were conducted (Ex. 9-12). The Committee on Special Education (“CSE”) reconvened on February 3, 2012 to develop an IEP for the student (Ex. 14). The hearing continued and concluded on February 10, 2012.
During the course of the proceeding, the parties unilaterally2 moved to extend the compliance date due to the availability of witnesses or the extensive testimony and issues in the instant proceeding. The parties credibly represented that additional time was required for the full disclosure of additional documentary evidence and witnesses that could not be immediately secured and were necessary for a full and fair hearing in order to arrive at a decision.
In considering each and every request I weighed the cumulative impact of the relevant factors, specifically the impact on the student’s educational interest and wellbeing; the need of the parties to present their position at hearing in accordance with the requirements of due process; any financial or detrimental consequences likely to be suffered by a party in the event of a delay; if there had already been a delay in the proceeding through the actions of the parties; and if there was a compelling reason or specific showing of substantial hardship by the party requesting the extension.
As stated previously, in considering each and every request for an extension of the timeline, I fully considered the cumulative impact of the relevant factors as set forth in 8 NYCRR § 200.5(j)(5)(ii) and found that the need of the parties for additional time to prepare and present its positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Furthermore, throughout the entire pendency of this proceeding the student’s educational interest and well-being were in no form or manner impacted by any delay occasioned by the extension of the timeline.
2 It is noted for the record, that during the course of the hearing I would at times state the compliance date and inquire of the parties, something to the effect of, “is there a joint motion to extend the timelines”. This was only intended to suggest that this might be an appropriate time in the hearing record to interpose the previously requested motion to extend the timelines to accommodate additional hearing dates or briefs as opposed to concluding the hearing at that point. At no time did I initiate or encourage either or both parties to request an extension of the deadline. Finally, neither party at any time demonstrated any financial or other detrimental consequences that were likely to be suffered by a party in the event of a delay nor had there been a delay in the proceeding through the actions of one of the parties.
Accordingly, the requests for extensions of the compliance dates were granted due to the availability of witnesses or the extensive testimony and issues presented in this proceeding. Each request for an extension of time was responded to in writing and for each extension granted, the parties were notified in writing of the reason for the extension and the new date for the rendering of my decision.3 Each written response is documented in this administrative record collectively as hearing officer exhibit i. 4 The record close date was February 22, 2012 and the compliance date for issuing a decision is March 7, 2012.
BACKGROUND
The student is a attending a class in a specialized school setting located within the (Ex. 12; Tr. 205). The student is classified with an intellectual disability (Ex. 14 at 16). The Committee on Special Education (“CSE”) convened on February 9, 2011 and recommended a class in a special class in a community school with related services consisting of and (Ex. C). Based on evaluations conducted on September 21, 2008, the student’s instructional levels were at the level (Ex. C at 3). His overall intelligence is classified as delayed (Ex. C at 2-3).
Pursuant to the hearing request, the student was referred for reevaluations (Ex. A; Ex. 9-12). Subsequent to completion of the evaluations, the CSE reconvened on February 3, 2012 (Ex. 14 at 15). As per a assessment report conducted on January 18, 2012, the student’s overall ability as measured by the (“ falls within the range (Ex. 12 at 4; Ex. 14 at 1). Testing completed for the evaluation on January 12, 2012, revealed the student’s receptive and expressive language skills are (Ex. 11 at 4; Ex. 14 at 2). Testing conducted on January 13, 2012 and as reported in the report indicate that the student continues to demonstrate , which contributes to his , (Ex. 10 at 9-10; Ex. 14 at 2).
8 NYCRR § 200.5(j)(5)(iv).
8 NYCRR § 200.5(j)(5)(i).
Based on results of testing conducted, the CSE rejected a program placement in a special class in a community school due to the fact that the student requires a greater level of support (Ex. 14 at 16). The team deferred the student’s placement to the central based support team (“CBST”) for a small structure class setting in a twelve month program and recommended related services of , and parent training and (Ex. 14 at 16). Although not indicated on the IEP, the DOE also provided the parent with five hours per week of Special Education Teacher Support Services (“SETSS”) in the form of a P-4 (Ex. 13).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The purposes of the IDEA (20 U.S.C. §§ 1400-1482) are to ensure that students with disabilities have available to them a 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 to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A][B]; Schaffer v. Weast, 546 US 49 [2005], Board of Education of the Hendrick Hudson Central School Disrict v. Rowley,458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when the board of education complies with the procedural requirements set forth in the IDEA, and the Individualized Education Program (“IEP”) developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (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 an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). 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 impeded the student's right to a FAPE, significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; 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 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 (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" (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 11, 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (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 [citations omitted]; see
P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). 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]; see Rowley, 458 U.S. at 192). 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 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; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
In this case the DOE failed to provide the student with FAPE for the 2011/12 school year. The IEP developed by the CSE on February 9, 2011 for the 2011/12 school year recommends a 15:1 placement in a community school (Ex. C). Although the CSE did not have current evaluations5 when it convened on February 9, 2011, it was apparent even from the information contained in the student’s IEP, that the student requires a greater level of support that a special class in a community school could effectively provide (Ex. C).
, Director of Special Education, testified that in a special class in a community school district, there is an expectation that the student will be able to travel from classroom to classroom in a high school setting and is diploma bound (Tr. 55). Based on the student’s academic performance, learning characteristics and management needs, the student clearly requires a greater level of support. Moreover, due to in areas of , and , the student (Ex. C; 14).
, the student’s teacher for the last three years, testified that the student in currently attending6 her 7 class (Tr. 172). Ms. testified that the student is at a that he is just (Tr. 174). She also testified that a was appropriate to meet this student’s educational needs and a could be appropriate depending on the class (Tr. 204).
Based on the foregoing, I find the student’s IEP dated February 9, 2011 is substantively flawed in that the program offered is not appropriate to met the student’s needs. The CSE recently convened on February 3, 2012, and made recommendations consistent with recently conducted evaluations; however, to date a placement is not offered to the student. Deferring the case to CBST for a New York State approved nonpublic school is not a completed final program recommendation. As a result the student remains in a class based on a CSE recommendation presumably from over three years prior (Ex. 14 at 16).
The parent seeks a Nickerson letter from the DOE authorizing the parent to place the student at a state approved school, at no cost to the parent. (see Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298). The remedy of a Nickerson
5 The parent refused to provide consent for evaluations and did not in fact provide consent for evaluations until January 9, 2012, well after the hearing request was filed (Ex. 1; Ex. 9). 6 It is noted that in general the student’s attendance record is abysmal (Ex. 5-6). The student does not attend summer school, although a 12-month program is recommended and the student did not return to school for the 2011/12 school year until October 7, 2011 (Ex. 6; Tr. 136-137; 139-141; 172). 7 The student’s prior IEP dated January 29, 2010 recommended a 12:1:1 staffing ratio stating that the student requires a highly structured setting to address delays in his , delays (Ex. H). Apparently, the parent was unable to find a or placement, so the student remained in his last agreed upon placement (Tr. 79-80; 172-173). letter is intended to address the situation in which a child has not been evaluated or placed in a timely manner (see Application of the Bd. Of Educ., Appeal No. 06-088; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092).
In this case although the parent was offered many placements, at its core the program recommendation was inappropriate. Although the CSE reconvened and recommended a program consistent with current evaluations, the DOE has not to date offered the student a placement. As such, I find the DOE failed to offer the student an appropriate placement in a timely manner and under the circumstances, I find that a Nickerson letter is an appropriate remedy.
The parent also seeks an additional five hours of SETSS per week. I am not persuaded that the student requires ten hours of SETSS per week. I find the student’s teacher’s testimony credible to establish that the student is not achieving his goals due to poor attendance (Tr. 176). I find the testimony of student’s teacher and assistant principle credible to rebut the contradictory, inconsistent and self-serving testimony of the parents with regard to the while attending school and preventing him from attending thereafter (Tr. 177-179; 146-147; 219-224; Tr. (January 30, 2012)[8] 36-38; 82-92; Tr. (February 10, 2012) 117-120; 123; 133-134; 138-143; 145; 148-149).
The parent’s updated request as set forth in closing statement for a Nickerson letter and an additional five hours of tutoring is granted in part and denied in part (Tr. 157158). Any other remaining requests are deemed moot or denied.
ORDER
1. The DOE shall provide the parent with a Nickerson letter authorizing the student to attend a New York State non-public day school at no cost to the parent for the 2011/12 school year.
2. The CSE is ordered to amend the student’s most recent IEP dated February 3, 2012 to include five hours of SETSS per week and to indicate a staffing ratio that is appropriate for this student and consistent with the findings and recommendations of the 10 and 17, 2012, the pagination begins with page number one and the hearing transcript for the February 10, 2012 hearing date continues the numbering from the January 30, 2012 hearing transcript. evaluations mostly recently conducted. Dated: March 5, 2012
_____________________________
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 RECORD
A Amended Hearing Request, 12/12/11, 3 pp. Parent
B Hearing Request, 10/5/11, 2 pp. Parent
C IEP, 2/9/11, 14 pp Parent
D Class profile, 12/12/11, 2 pp Parent
E Class records, 10/11, 6 pp. Parent
F Letter from Dr. , 7/6/11, 1p. Parent
G Enrollment Forms, 2/11-3/11, 5 pp. Parent
H IEP, 1/29/10, 18 pp. Parent
I Letter from Ms. , 12/13/10, 1 p. Parent
J Letter from Mr. , 11/1/10, 1 p. Parent
K Bilingual report, 9/08, 18 pp. Parent
L Letter from Ms , 2/10/04, 1 p. Parent
M 1/2/03, 1 p. Parent
N Letter from Dr. , 10/1/02, 1 p. Parent
O Letter from , 10/1/02, 1 p. Parent
1 Consent for reevaluation, 1/24/11, 1p. DOE
2 Final notice of recommendation, 2/9/11, 1 p. DOE
3 SRO #09-126, 12/22/09, 4 pp. DOE
4 Memorandum from , 1/4/10, 2 pp. DOE
5 , 2010/11, 1 p. DOE
6 , 2011/12, 1p. DOE
7 Motivation Assessment Scale, 10/13/11, 1p. DOE
8 , 10/13/11, 3 pp DOE
9 Consent for evaluations, 1/9/12, 1p. DOE
10 therapy evaluation, 1/13/12, 32 pp. DOE
11 evaluation, 1/12/12, 4 pp. DOE
12 evaluation, 1/18/12, 10 pp. DOE
13 P-4 Form and Affidavits, 2/3/12, 4 pp. DOE
14 IEP, 2/3/12, 18 pp. DOE
Footnotes
[8] Although the hearing transcript for the January 30, 2012 hearing date is a continued hearing from January