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: May 17, 2012

Actual Record Close Date: June 1, 2012

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 17, 2012

Attorney — Parents

Parents

Cousin — Parents

Director- (via telephone) — Parents

Administrator of Special Education — DOE

Classroom Teacher (via telephone) — DOE

Teacher (via telephone) — DOE

SETSS Teacher (via telephone) — DOE

On November 30, 2011, I was appointed the Impartial Hearing Officer (“IHO”) to conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 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 and Section 504 of the Rehabilitation Act, concerning dispute between the Parent of a ( ) year old student attending public school and the New York City Department of Education (“DOE”) - District , regarding that student’s special education program. After a “resolution period”, adjournments granted on consent or for cause, the filing of an amended Due Process Complaint (“DPC”) and another resolution period, the hearing was held on May 17, 2012. The Parent’s counsel opted to submit a written closing statement which was received on or about June 15, 2012. A list of the witnesses testifying at the hearing and documents received into evidence is attached to this decision.

BACKGROUND

This case involves a ( ) year old student . (DPC) The student is attending public school and said to be . (Id.) The Parent is challenging the student’s 2011-2012 IEP as . (Id.) Accordingly, in sum, substance and relevant part, the Parent requests the following relief:

(a) a finding that the student was deprived of a “free and appropriate public education” (“FAPE”); and

(b) a finding that the Parent was from participating in the ; and

(c) that the student receive an appropriate IEP that includes a deferral to “CBST” recommendation or alternatively that the Parent receive a “Nickerson letter”; and

(d) that an order be issued that provides the student additional services in an amount, scope, and nature to be determined by the hearing officer for the DOE’s failure to provide an appropriate placement and program from September 2010 to the date of the hearing request, plus additional hours as warranted by the evidence for the failure to provide an appropriate program during the litigation of this matter; and

(e) the payment of the Parent’s attorney’s fees and expenses.

THE DOE’S CASE

The DOE argues that the student is classified with a as per his IEP dated June of 2012. (T-12) The student is making towards meeting some of the goal in her IEP. (Id.) The student is receiving all of her services including “SETSS” services. (Id.) The agency argues that it has provided the student with a FAPE for the 2011-2012 school year. (T-13)

The DOE called (3) witnesses to testify on its behalf and submitted (13) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness is the student’s . (T-17) She is a “Teacher for Students with ” for years. (T-20) She sees the student for “ ” sessions. (T20-1) The student is grade level and her grade level. (T-21) They use a lot of with the student, as well as . (Id.) She speaks with the student’s teacher about once a week in regards to the student’s progress. (T-21-2)

The witness stated that the student currently has three goals that revolve around . (T-22) The student has made progress in . (Id.) She does not anticipate that the student will meet her goals at this time. (T-23)

There was no substantive testimony developed during the witness’ cross examination. (Id.) On re-direct examination, the witness testifying that she assesses the student by personally tracking her “percentage” from her baseline and by doing progress reports. (T-24) There was no re-cross examination of the witness. (Id.)

The DOE’s second witness has a special education license since 2011. (T-28) She is the student’s SETSS teacher. (T-29) She sees the student teams in week - - , although it’s supposed to be in a . (Id.) The student can . (T-29-30) The student . (T-30) She requires to . (Id.) She is “ ” the student’s at a time. (T-30-1) She also gives the student a lot , . (T-31) The student is . (T-32) The student’s days per week. (T-32) Currently, the student does not have goals on her IEP for SETSS. (Id.) If you do not give the student’s , she cannot . (T-33) The student does but she does not know how to . (Id.)

On cross examination, the witness testified that it is not that the student , it’s that she . (T-34) There was no re-direct examination of the witness. (T-35)

The DOE’s third and final witness has a special education license for ( ) years. (T-38) The student is in her school class. (T-38-9) The student is at the level . (T-39) The student . (Id.) She uses a lot of , and with the student. (Id.) She has ( ) other students and adults including herself in the class. (T-

40) The student works in a . (Id.) Progress reports are given times per year. (Id.) The student is getting extended time and prompts. (T-41) There was no cross examination of the witness. (T-42)

THE PARENT’S CASE

The Parent argues that the student is ( ) years old and in the grade at a public school. (T-13) The student is in and doing classroom. (T-14) The student’s IEP is “ .” (Id.) Her family is currently but the Parent is actually for his . (T-15)

The Parent called (3) witnesses to testify on his behalf and submitted (9) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness is a certified teacher in the State of California. (T-45) She is the director of the Center for ( ) years. (T-46) The Center provides supplemental instruction in skills for students’ grade. (Id.) They provide individualized instruction based upon entrance testing. (Id.) The instruction is provided on either a basis. (T-47) The teachers are certified and the Center is accredited by the “Middle States Association.” (Id.)

The witness stated that the Center evaluated the student in February of this year. (Id.) Based on the testing, she believes that the student would benefit tremendously from instruction at the Center. (T-48 & P-I) The testing suggests that the student has in school and with . (T-50-1) On the subtest the student placed in the grade, second month which is the percentile among her peers in terms of age and grade level. (T-54) In both her , the student has deficiencies with her being more . (T-59) She is a grader in terms of her and a grader in terms of her . (Id.) It is pretty clear that the student at a grade level. (Id.) Based on the size of her , she anticipates that the student would require approximately ( ) hours of instruction to . (T-60)

On cross examination, the witness testified that the Center’s assessment takes up to three hours. (T-61) She was not given any specific information about the student’s , but it does not her that the student requires . (Id.) They were not attempting to do a , but rather just to get a sense of the extent to which the student’s . (T-62) There was no re-direct examination of the witness. (Id.)

The Parent’s second witness is the student’s father. (T-63) He stated that the student is in a special education class with kids and who are “ ” her. (T-64) The student is . (Id.) She does much. (T-64-5) The family is currently living . (T-65-6) He does not think the public school is good for the student. (T-66) The student has years. (T-67) He sat in on the student’s classroom and does not believe that there. (Id.)

On cross examination, the witness testified that he did not know that the student was in a special education class. (T-68) He does not believe that the school has made accommodations for the student, because they have given her grade and then a grade test. (T-70) The student home. (Id.) He does not know about “SETSS.” (T-70-1) There was no re-direct examination of the witness. (T-71)

During voir dire, the witness stated that the student has a ( ) year old student and aged ( ), ( ) and ( (Id.) He mother. (T-71-2) The “ .” (T-72-3)

The Parent’s third and final witness is the student’s father’s cousin. (T-74) She advocates for the student. (Id.) The student is an ( ) year old who is and . (T-75) She has and is . (Id.) The student was not in her class. (Id.) She has attended Committee on Special Education (“CSE”) meetings for the student. (T-76) For the 2011-2012 school year, the program has not met the student’s needs. (Id.) She believed that the student needed a paraprofessional. (Id.) The student needed . (T-77) The the previous year. (Id.)

On cross examination, the witness testified that the student was in a class with accommodations. (T-78) She believes that the student has “SETSS” but her progress . (Id.) There was no re-direct examination of the witness. (T-79)

During voir dire, the student stated that she knows the student is in a class and that she is “ .” (Id.) The student’s the student with her . (T-79-80)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Parent herein has alleged that the DOE failed to offer the student a FAPE for the 2011-2012 school year and requests relief in the form of a “Nickerson letter” and “additional services” (i.e., compensatory services) for the student.

A “Nickerson letter” is a letter from the DOE to a Parent authorizing the Parent to place the child in an appropriate special education program in any state-approved private 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 letter is intended to address the situation in which a child has not been evaluated or placed in a timely manner. (See SRO Nos. 06-088, 02-075 & 00-092) The remedy is also available when a student has completed all necessary evaluations but a final notice of recommendation is not sent/given to the parents by the student’s eligibility date. There again, the parent must be sent/given a Nickerson Letter entitling the student to be placed in an appropriate nonpublic school at public expense. (Jose P., et al. v. Thomas Sobol, et al., 1995 WL 591304 (EDNY) - Stipulation)

Here, there is nothing in the record to indicate that the student has not been evaluated or placed in a timely manner. The student’s is dated June 17, 2011. (D-4) A classroom observation of the student was conducted on June 22, 2011. (D-5) Her Speech Progress Report is dated June 24, 2011 and her Academic History Report is dated June 23, 2011. (D-6 & D-3) Accordingly, I find that the student has been timely evaluated. The student has been placed in a public school “ ” setting in a special class in a community school since the beginning of the 2011-2012 school year. Accordingly, I also find that the student has been placed in a timely manner.

There is no evidence in the record that a “Final Notice of Recommendation” (“FNR”) was sent or not sent in this case. However, the student’s placement at the public school, as recommended by the relevant IEP renders that issue moot. (D-8) Thus, for all of the reasons stated above, I find that the Parent is not entitled to a “Nickerson Letter” in this case.

The Parent herein also request “additional services” (i.e. “compensatory services”) for the student. It is well settled that compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. (See Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]) Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA. (See 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5])

In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 C.F.R. § 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; SRO No. 05-084 & 05-037), or until the conclusion of the school year in which he or she turns age (21). (See Educ. Law §§ 3202[1], 4401[1], 4402[5]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 C.F.R. § 300.102[a][1], [a][3][ii] & SRO No. 04-100)

Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. (See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001] & SRO No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]) (emphasis added)

Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA. (See 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]) Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE. (See Newington, 546 F.3d at 123 [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at *23 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see also R.C. v. Bd of Educ., 2008 LEXIS 113149, at *38-40 [S.D.N.Y. March 6, 2008])

Likewise, State Review Officers have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. (See Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; SRO No. 09-111 [adding summer reading instruction to an additional services award]; SRO No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; SRO No. 09-044 [awarding "make-up" counseling services to remedy the deprivation of such services]; SRO No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; SRO No. 08-072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE]; SRO No. 08-060 [upholding additional services awards of physical therapy and speech-language therapy]; SRO No. 08-035 [awarding ten months of home instruction services as compensatory services] and SRO Nos. 06-074, 05-041 & 04-054)

The Parent’s most compelling argument is that the student is in her levels. On the subtest the student placed in the grade, second month which is the percentile among her peers in terms of age and grade level. (T-54) In both her , the student is said to have , with her being more profound. (T-59) She tested as a grader in terms of her skills and a grader in terms of her skills. (Id.) It is evident that the student is not performing at a grade level. (Id.) Based on the size of her , the director of the Center anticipates that the student would require approximately ( ) hours of instruction to close the gap. (T-60) The student’s and his both corroborated the director’s testimony concerning the student’s deficiencies. (T-64 & 75)

Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school ; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school ; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school , the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school , if specifically requested in writing by the parent of the student or by a member of the school at least hours prior to the meeting; (8) an additional parent member of a student with a in the school district or a , whose child has not been or for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and

(10) if appropriate, the student.

Here, the student’s IEP meeting was attended by a special education teacher, general education teacher, the Parent, the Parent’s cousin, a district representative, a social worker, a school , a parent member, an and a guidance counselor. As such, I find that the student’s IEP team was duly constituted under law.

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 (2005)) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2nd Cir. 2005))

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 (2nd Cir. 2000)) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 (1982)) 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. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09). Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO 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. § 300.550(b), 8 NYCRR §200.6(a)(1))

The parent bears the burden of showing that the private school placement (here “additional services”) selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The parent must show that the additional services offer an educational program that meets the student’s special education needs. (See Burlington, 471 U.S. at 370 & SRO No. 94-20) The additional services need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 (1993)). It is also not required that they employ certified special education teachers, or have their own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the parent’s request for additional services. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-

102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-

049).

The student’s evaluation dated June 17, 2011 found that the student’s ”, which ranks at the . percentile and is considered . (D-4) The student is said to be “… and regard from authority figures and appears to be a youngster who .” (Id.) The student is said to also be . (Id.)

The student’s academic report notes that at the time of the student’s evaluation in 2008, the school recommended her placement in a class where she can readily receive ample individual assistance. (D-3) A re-evaluation in April of 2010 also recommended a class in a community school. (Id.) The student’s classroom observation noted that she had with in , which was attributed to her . (D-5) The student is said to have “ skills.” (Id.) Her Speech Progress Report recommended continuation of services and additional support in the classroom setting. (D-6)

The student’s IEP addresses all of her evaluation’s concerns and or recommendations. The student was recommended, and indeed placed in special class in a community school. (D-8) The student was provided with Special Education Teacher Support Services (“SETSS”), times per week, individually and times per week in a group. (Id.) The student was given related services of , and , as well as testing accommodations. (Id.) The student also received a modified performance criteria. (Id.) All in all, the student’s DOE program appears reasonably calculated to enable her to receive educational benefits. (See Bd. of Educ. V. Rowley, 458 U.S. 176, 206-7 (1982)) Accordingly, I find that the DOE did offer the student a FAPE for the 2011-2012 school year. Having so found, the necessary inquiry is at an end and I need not determine whether the Parent’s request for additional services is appropriate, or whether equitable considerations bar an award on behalf of the Parent.

Despite the finding above, there is evidence that the student continues to be . (T-54, 59, 64, 75, P-D & P-I) Nevertheless, although troubled by the student’s delays, I am constrained by the record before me. State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination. The decision shall reference the hearing record to support the findings of fact." (See 8 NYCRR 200.5[j][5][v]) (emphasis added)

NOW, therefore, it is hereby

ORDERED that the Parent’s request for a Nickerson Letter and/or additional services for the student is DENIED; and it is further

ORDERED that the CSE shall forthwith completely re-evaluate the student and immediately reconvene to produce a new IEP that considers all of the student’s available and new evaluations and recommend a new placement and related services the 2012-2013 school year. Dated: August 20, 2012

______________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

ED: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 Hearing Request, 11/30/11, 1 p. B IEP, 4/7/10, 10 pp. C Evaluation Testing Results, 2009-2010, 4 pp. D Report Card, 2011-2012, 1 p. E Report Card, 2010-2011, 1 p. F Report Card, 2010-2011, 1 p. G Report Card, 2009-2010, 1 p. H . Letter, 2/16/12, 1 p. I Academic Evaluation Summary, 2/18/12, 3 p.

DEPARTMENT OF EDUCATION

1 Amended Impartial Hearing Request, 3/1/12, 4 pp. 2 Due Process Response, 12/8/11, 3 pp. 3 History Report, 6/23/11, 3 pp. 4 Evaluation, 6/17/11, 6 pp. 5 Classroom Observation, 6/22/11, 1 p. 6 Progress Report, 6/24/11, 2 pp. 7 Meeting Notice, 6/22/11, 2 pp. 8 IEP, 6/28/11, 13 pp. 9 Authorization To Attend, 9/14/11, 1 p. 12 NYS P-12 Common Core Learning Standards/ , 1/9/11, 33 pp. 13 NYS P-12 Common Core Learning Stand/ , 1/9/11, 9 pp.