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: January 30, 2012

February 10, 2012

February 22, 2012

March 2, 2012 Actual Record Close Date: March 13, 2012 Hearing Officer: Roslyn Roth, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 30, 2012

Advocate — Student

Parents

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10, 2012

Parent Advocate — Student

Parents

Observer — Student

Witness — Student

Chairperson Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 22, 2012

Parent Advocate — Student

Parents

Parents

Note Taker — Student

Supervisor of School Psychologists — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 2, 2012

Advocate — Student

Witness — DOE

PROCEDURAL BACKGROUND

This hearing was held pursuant to New York Education Law § 4404(1), 20 U.S.C. §1415(f), the Individuals with Disabilities Act (“IDEA”). In accordance with the parent’s request for a hearing dated November 18, 2011, which was received by the Department of Education on December 27, 2011, I was appointed by the Department of Education, (hereinafter referred to as “DOE”), to hear this matter. The parent’s due process complaint describes the problem and remedy sought as the provision of a “Nickerson Letter P-1 letter” and seeks an order placing the child in a private school with suitable transportation. Further, the complaint alleges that the Committee on Special Education, “CSE”, was improperly constituted and thus, the Individual Education Program, “IEP” that was generated from the child’s annual review meeting held on May 6, 2011 was invalid. The complaint alleges that since the CSE met without a parent member the DOE was out of compliance and as a result, the parent is entitled to a Nickerson letter. The interim solution requested was for the child to go to , and to continue the pendency order issued by a prior hearing officer until the hearing is resolved. (See Exhibit F)

By email dated February 23, 2012, the Parent submitted a request to amend the due process complaint to the Impartial Hearing Office. (See IHO Exhibit 2.) However, the DOE representative stated that she did not receive the request to amend the due process complaint. (TR 174) The amended request sought a determination that the DOE failed to conduct an IEP review based upon the parent’s November 18, 2011 request for a re-evaluation. The amendment also asserted that the DOE failed to provide the related services of speech, occupational therapy, “ ”, , “ ”, and Special Education Teacher Services, “SETTS”. The amended complaint alleges that the DOE was in default and out of compliance. The proposed solution was the issuance of a Nickerson letter, and an order for compensatory services of , “ ” and “SETTS” for 10 hours per week for six months at home. Additionally, the complaint sought permission to sue in federal court.

The hearing took place over the following days: January 30, February 10, February 22, and March 2, 2012. Pendency orders were issued, continuing the prior hearing officer’s determination and special education instruction was added to the student’s pendency placement. The DOE was represented by Ms. and Ms The parent was represented by Mr. The parent submitted exhibits, hereinafter referred to as “Exhibits A-F”, The Department of Education submitted exhibits numbered 1-4. Additionally, 2 documents were entered as Impartial Hearing Officer Exhibits (the list of exhibits is attached hereto as “Attachment A”). The DOE representative and the parent testified.

The student was initially classified as a who transitioned to the CSE for the 2011-2012 school year. On May 6, 2011 the CSE met and classified the child as having a and recommended an integrated co-teaching class with the related services of . The CSE members included the child’s special education teacher, the parent and the district psychologist, who also served as the district representative. (See Exhibit 2) The child was described as having skills and significant difficulties with articulation and phonological skills. He was reported to have a . (See Exhibit 2)

The Final Notice of Recommendation dated June 9, 2011 placed the child in an integrated co-teaching class in PS 316. (See Exhibit 3) The parent disagreed with the recommendation to place the child , which she asserted was a failing school. The parent was not offered a choice of other public schools. The child was unilaterally placed in an unapproved private school for the 2011-2012 school year. The parent asserts that the placement of the child in a failing school does not provide the child with a free and appropriate public education, “FAPE” and further, she alleges that because her son’s annual review occurred subsequent to the DOE’s deadline to select a school as part of its’ “parent choice” program, she was denied access to the DOE’s “parent choice” program.

On January 30, 2012, the first day of hearing, the designated representative from the DOE had an emergency and was unable to attend. The email from the designated DOE representative indicated among other things, “that the student is not receiving his services and is entitled to pendency services” and that “Perhaps instead of discussing the merits in this case …a pendency hearing can be conducted instead?” (See IHO Exhibit 1) The parent did not consent to an adjournment and a pendency hearing was conducted. The parent submitted a portion of the prior hearing officer’s decision to support her claim that the DOE should continue funding the child in his current private setting during the pendency of the proceedings. A pendency order was issued which continued the prior hearing officer’s determination of pendency.

On February 10, 2012, the parent testified that she was locked out of parent choice and that she was not allowed to make a proper school choice for her son in June.

(TR63) She testified that the issue was the school and that she accepted the recommendation of an integrated co-teaching program with the related services of and ; she also testified that if the student wasn’t placed in , she wanted a private school. (TR 70-72) She further testified that in consideration of her withdrawal of her prior hearing demand and at the request of the DOE representative, she amended her due process complaint and requested three public schools. (See DOE Exhibit 1) One of the schools, , had an integrated o-teaching kindergarten class. She testified that she spoke to the principal of , took a tour of the school, saw the actual class where her son would be placed and that she selected the school. She also testified that the school was in close proximity to her mother in law’s employment, who provides child care to the student. (TR 65)

The DOE representative testified in support of the DOE’s position that the student was offered an appropriate placement. She testified that the CSE met and offered the student a timely recommendation. The DOE representative further testified that the recommendation of an integrated co-teaching class with and would meet the child’s needs. (TR 48-49) Additionally, the DOE issued Related Services Authorizations to the parent to allow her to secure the related services that were recommended pursuant to the child’s May 6, 2011 IEP. (TR 75)

On February 22, 2012, the hearing continued, however, because it was a school holiday, the DOE was unable to secure its witnesses. The DOE submitted the 9/16/11 amended impartial hearing request, the 5/6/11 IEP and the Final Notice of Recommendation dated 6/9/11. (See DOE Exhibits 1, 2, 3).

On March 2, 2012, the hearing continued, however, the parent was not present. The DOE requested that the hearing be dismissed based on its offer of . The Final Notice of Recommendation dated February 27, 2012, which offered the parent an integrated co-teaching class at was submitted into evidence. (See DOE Exhibit 4) The parent’s advocate objected to the submission and requested a settlement.

DUE PROCESS COMPLAINTS DATED SEPTEMBER 16, 2011 AND

NOVEMBER 18, 2011

The instant hearing was at least the third hearing requested by the parent wherein she challenged the student’s placement for the 2011-2012 school year. (TR 73) Her first request was August 17, 2011, Her second request was September 16, 2011. (TR 103) Seemingly dissatisfied with the way the first hearing was proceeding, the case was withdrawn without prejudice and a new request was simultaneously submitted. (TR 73) The second due process complaint dated 9/16/11 indicates that the parent is rejecting and is seeking a placement in . (See DOE Exhibit 1) In her 11/18/11 request for due process she is seeking a Nickerson letter and as an interim solution to go to . (See Parent’s Exhibit E)

WHETHER THE AMENDED COMPLAINT DATED 2/23/12 MAY BE ACCEPTED

The amended request sought a determination that the DOE failed to conduct an IEP review based upon the parent’s November 18, 2011 request for re-evaluation. The amendment also asserted that the DOE failed to provide the related services of speech, occupational therapy, “ ”, and Special Education Teacher Services, “SETTS”. The amended complaint alleges that the DOE was in default and out of compliance. The proposed solution was the issuance of a Nickerson letter, and an order for compensatory services of speech, “ ” and “SETTS” for 10 hours per week for six months at home. Additionally, the complaint sought permission to sue in federal court.

The District representative did not see the amendment to the due process complaint submitted by the Parent and in any case, did not consent to the amendment.

Pursuant to 34 C.F.R. § 300.508(d)(3) A party may amend its due process complaint only if--

(i) The other party consents in writing to the amendment and is given the opportunity to resolve the due process complaint through a meeting held pursuant to § 300.510; or

(ii) The hearing officer grants permission, except that the hearing officer may only grant permission to amend at any time not later than five days before the due process hearing begins.

Furthermore, there is a statutory bar to the consideration of issues not raised in the demand for a due process hearing, see 20 U.S.C. § 1415(f)(3) (B), absent the district's or IHO's consent to a timely amendment, see id. § 1415(c)(2)(E); 34 C.F.R. § 300.508(d)(3). M.R. v. South Orangetown Cent. School Dist. Slip Copy, 2011 WL 6307563 S.D.N.Y.,2011. December 16, 2011, 20 USC 1415 (c)(2)(E)(i) allows a party to amend its due process compliant notice only upon either of the following two circumstances: 1) the other party consents in writing to such amendment and is given the opportunity to resolve the complaint through a resolution session; or 2) the hearing officer grants permission (except that the IHO may only give such permission not later than five days before a due process hearing occurs). 34 CFR 300.508 (d)(3).

The right to amend a complaint is limited and in this case, there is no basis in law or equity to permit the amendment. Accordingly, the complaint shall not be amended.

WHETHER THE IEP IS INVALID BECAUSE THERE WAS NO CSE PARENT

MEMBER PRESENT AT THE CSE REVIEW

According to the Regulations of the Commissioner, the lack of a parent member at a CSE review does not invalidate the meeting unless the failure of the parent member’s presence " significantly impeded the parent's opportunity to participate in the decisionmaking process regarding the provision of a free and appropriate public education, “FAPE”, or caused a deprivation of educational benefits" (See 8 NYCRR 200.5[j][4][ii]). Even if there was no parent member present at the CSE review and the parent did not waive the presence of the additional parent member at the CSE meeting, the testimony of the parent established that she is extremely articulate and knowledgeable. The parent does not challenge the recommendation of an integrated co-teaching class, but rather, she disputes placing her child in a failing school. Although she claimed that she was denied the opportunity to participate in the DOE’s “parent choice” program because she was offered a placement after the period of parent choice ended, there was no evidence that the lack of a parent member denied the child a FAPE. Accordingly, since there was no evidence to conclude that the failure to include an additional parent member in the CSE meeting impeded the student's right to a FAPE, significantly impeded the parents' opportunity to participate in the decision-making process, or caused a deprivation of education benefits, the lack of a CSE parent member does not invalidate the IEP developed at the May 6, 2011 CSE meeting. Upon consideration of the foregoing, the lack of an additional parent member at the May 6, 2011 CSE meeting did not rise to the level of a denial of a FAPE and thus, did not invalidate the student's 2011-2012 IEP. (See Application of a Child with a Disability, Appeal No. 07-107)

WHETHER THE PARENT IS ENTITLED TO A “NICKERSON LETTER P-1

LETTER”

According to the order issued in the Jose P. litigation, parents of handicapped students who have requested special education services but have not received a timely placement recommendation are entitled to enroll their children in appropriate approved programs conducted at non-public schools at public expense. (See Jose P. v Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]). This authorization, referred to as a “Nickerson letter”, is not generated in those circumstances where a timely recommendation has been made but the parent disagrees with the recommendation. 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 Application of a Student with a Disability, Appeal No. 08-020; 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). The parent’s claim that she is entitled to a Nickerson letter ignores the fact that she received a timely final notice of recommendation; her disagreement with the offered placement does not entitle her to a Nickerson letter. Accordingly, I find that the DOE offered the student a timely recommendation, and therefore, the parent’s request for a Nickerson letter is denied

WHETHER THE OFFER OF AN INTEGRATED CO-TEACHING CLASS AT PS 261

RESOLVES THE CASE OR CONTROVERSY

The Parent testified that she believes in public education and that she did not request a private placement, but a better choice of a public school and, she identified as an appropriate choice for her son. (TR 157, 160) She testified that the location was convenient for child care and that it was her choice for her son. At the time, she met with the principal of , there was an appropriate placement in an integrated co-teaching classroom. I am persuaded by the parent’s testimony that the integrated co-teaching class at is an appropriate setting.

It is well settled that the dispute between the parties in an appeal must at all stages be "real and live," and not "academic," or it risks becoming moot (see Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]; J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 [W.D.N.Y. Sept. 30, 2008]; see also Chenier v. Richard W., 82 N.Y.2d 830, 832 [1993]; Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 [1980]; Application of a Child with a Disability, Appeal No. 07-139). The offer of a co-teaching class in PS 261 effectively provides the parent with the relief she was seeking at the impartial hearing. Furthermore, based on the parent’s testimony I find that placement in PS 261 provides the child with an FAPE.

Order:

1. The integrated co-teaching class in provides the child with an FAPE.

2. The parent is not entitled to a Nickerson Letter.

3. The student shall continue to be eligible for make-up sessions of those related services that were recommended in his May 6, 2011 IEP but were not provided, such make-up sessions may be provided either with an RSA or if appropriate, by school based therapists. The make-up sessions may be provided through August 30, 2012. Dated: April 20, 2012

_____________________________

ROSLYN ROTH, ESQ.

Impartial Hearing Officer RR: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 IEP, 11/17/10, 6 pp. B Advocate Intake Form, Letter of Complaint, 1/20/12, 4 pp. C Excerpt from IHO Decision D Order of Pendency, 9/21/2011, 2 pp. E Due Process Request, 11/18/11, 1 p.

DEPARTMENT OF EDUCATION

1 Amended Impartial Hearing Request, 9/16/11, 1 p. 2 IEP, 5/6/11, 14 pp. 3 Final Notice of Recommendation, 6/9/11, 1 p. 4 Final Notice of Recommendation, 2/27/12, 1 p.

IMPARTIAL HEARING OFFICER

I Email, 1/3/12, 1 p. II Amended Complaint Email, 2/23/12, 1 p.