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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: June 8, 2012
July 30, 2012
Record Close Date: November 7, 2012
Hearing Officer: William J. Wall, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 8, 2012
Attorney — Student
Parents
Sister — Student
Attorney — DOE
Administrator of Special Education — DOE
Administrator of Special Education — DOE
School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 30, 2012
Attorney — Student
Clinician (via telephone) — Student
Administrator of Special Education — DOE
PRELIMINARY MATTERS
I conducted an impartial hearing, pursuant to the Individuals with Disabilities Education Act, (“IDEA”) 20 U.S.C. §1415(f)(1), regarding the special education program of . at the Department of Education, (“DOE”) 131 Livingston Street, Brooklyn, NY 11201 on June 8 and July 30, 2012. A list of persons in attendance and documents accepted into evidence on the various dates are attached to this decision. The decision took longer than expected because of some health problems that delayed my ability to complete my decision. I wish thank both parties for their patience, including several requests for extension which permitted me time to recover and finally issue this decision.
This matter involved the allegation by the parents that the Department of Education failed to provide the student with a free and appropriate public education (“FAPE”). As a result, the parent took unilateral action and placed the student in the (“ ”) for the 2012/2013 School year. has been approved by the NYS Commissioner of Education as a non-public school which has been approved to accept NYS students with certain disabilities He was admitted to the Center in June 2012. The parents seek both reimbursement of tuition and costs at the Center and additional services for the student as well as transportation for the student for the 12 month school year of 2012-2013. They also request prospective payment of any unpaid tuition, fees and costs through the issuance of a P-1 “Nickerson Letter”.
THE DISTRICT’S POSITION
The District’s position is in its Answer (Exhibit E), it denied all allegations made in the parents’ request for an Impartial Hearing. It stated that on December 10, 2010 an Individualized Education Program (“IEP”) was developed that classified the student as a child with an Emotional Disturbance (Ex. C). The Response alleged the IEP did offer a FAPE to the student.
THE PARENTS’ POSITION
The parent contends that the Department of Education failed to provide the student with a free and appropriate public education (“FAPE”) based on the 12/10/10 IEP (Ex.C.) As a result, the parent took unilateral action and placed the student at the Judge (“ ”) commencing on June 12, 2012. The parent seeks reimbursement of tuition and costs at the Center and additional services for the student as well as transportation for the student for the 12 month school year of 2012-2013. She also requests prospective payment of any tuition, fees and costs that have not yet been paid for the 2012-2013 school year.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The main issues presented by the Request for the Impartial Hearing are as follows: The Committee on Special Education (“CSE”) meeting of 12/10/10 was convened after the parent referred h student for reevaluation and change in placement in the Spring of 2010. Based on the new evaluations and reports the CSE found that the student was eligible for a 12 month program after changing his classification to that of “Emotional Disturbance”. The CSE recommended a twelve month placement at a NYS approved non-public school. Such a recommendation was not forthcoming. No such recommendation had been made for the student at the time the request for the Impartial Hearing was made. The parent seeks tuition reimbursement for tuition already paid or payment by means of a contract between the DOE and JRC for any remaining fees and tuition due for the 2012/2013 school year. The Impartial Hearing request proposes that the student is entitled to compensatory education for the failure of the Department of Education to provide the student with a FAPE for the last half of the 2010/2011 school year and the 2011/2012 school year. Alternatively, the parent is entitled to P-1 “Nickerson Letters” for the covering the student’s enrollment in June 2012 and the entire 2012/2013 school year.
This case is a Burlington/Carter case Sch. Comm of the Town of Burlington v. Dep’t of Educ. 471 U.S.359, 105 S. Ct. 1996, 85 L. Ed.2d 385 (1985); Florence County Sch. Dist IV v. Carter, 510 U.S. 7, 114 S. Ct. 361126 L. Ed. 2d. 284 (1993) and also a case where the requirements of Jose P. must be considered. A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). Application of a Child with a Disability. 02-055. In a more recent SRO decision (Application of a Child with a Disability, Appeal No. 09-067) there was an articulation of what an appropriate IEP should contain.
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 (34 C.F. R. §300.320[a][4]… Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087)
To reach that IEP, a CSE must be duly constituted and then properly analyze the materials that have been developed and make recommendations that result in a program that is “likely to produce progress, not regression and affords the student with an opportunity greater that mere ‘trivial advancement’ (Cerra, 427F.3d at 195, quoting Walczak, 142 F 3d at130. (Appeal No. 09-067). In this case the CSE developed an IEP on12/10/10. (Ex. 3). The CSE review team was comprised of the necessary personnel. Regulations require that a broad spectrum of evaluation instruments be considered in establishing a student’s educational status in preparation for the CSE Review.
be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student's disability. In accordance with paragraph (5) of this subdivision, the reevaluation shall be sufficient to determine the student's individual needs, educational progress and achievement, the student's ability to participate in instructional programs in regular education and the student's continuing eligibility for special education. The results of any reevaluations must be addressed by the committee on special education in a meeting to review and, as appropriate, revise the student's IEP. To the extent possible, the school district shall encourage the consolidation of reevaluation meetings for the student and other committee on special education meetings for the student.
The CSE met these requirements and determined that the student was to be reclassified as a student with an “ ” (EX. C). They also recommended the student be placed in a NYS non-public twelve month residential placement. The residential placement recommendation is not found on the IEP but on the accompanying documentation called the assurance check list, which was sent by the CSE to the CBST for a placement. The school psychologist who participated at the CSE meeting testified that it was the intention of the team to recommend the twelve month residential placement. His testimony is found on pages 33 and 34 of the transcript.
The CSE’s recommendation for a residential program was declined by the CBST. The parent wrote to the district reminding them that a residential placement was recommended but she had heard nothing and again was requesting such a placement. That letter was written on 4/9/12.(EX. H)
There is no question that based on the CSE recommendation and the failure of the CBST to make a timely response with an offer of placement in a residential placement the child was denied FAPE. It is worth noting in response to the mandated Resolution meeting held in connection with this Impartial Hearing the DOE offered a day placement and not a residential placement after acknowledging it could not provide the necessary educational accommodations to the student in a public school setting. There was no explanation for the denial of the residential replacement.
The second prong of Burlington focuses on the appropriateness of the placement chosen by the parent for the student. “In a case where a court determines that a private placement desired by the parents was proper under the Act and that an IEP calling for placement in a public school was inappropriate, it seems clear beyond cavil that "appropriate" relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school.” (Burlington) The refined the court’s thinking and it determined that strict compliance with the requirements of the state’s education agency were not necessary for a unilateral private placement to be “appropriate”. Nor do we believe that reimbursement is necessarily barred by a private school's failure to meet state education standards. Trident's deficiencies, according to the school district, were that it employed at least two faculty members who were not state-certified, and that it did not develop IEPs. As we have noted, however, the 1401(a)(18) requirements - including the requirement that the school meet the standards of the state educational agency, 1401(a)(18)(B) - do not apply to private parental placements. Indeed, the school district's emphasis on state standards is somewhat ironic. As the Court of Appeals noted, "it hardly seems consistent with the Act's goals to forbid parents from educating their child at a school that provides an appropriate education simply because that school lacks the stamp of approval of the same public school system that failed to meet the child's needs in the first place." 950 F.2d, at
164. Accordingly, we disagree with the Second Circuit's theory that "a parent may not obtain reimbursement for a unilateral placement if that placement was in a school that was not on [the State's] approved list of private" schools. Tucker, 873 F.2d, at 568 (internal quotation marks omitted). Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (Carter )
Parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate, even if the proposed school is state approved.
Subject to the foregoing exceptions, the same considerations and criteria that apply in determining whether the School District's placement is appropriate should be considered in determining the appropriateness of the parents' placement. Ultimately, the issue turns on whether a placement — public or private — is "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); Muller ex rel. Muller v. Comm. on Special Educ., 145 F.3d 95, 105 (2d Cir. 1998). While the IDEA does not require states to "maximize the potential of handicapped children," Rowley, 458 U.S. at 213, 102 S.Ct. 3034, it must provide such children with "meaningful access" to education, Walczak,142 F.3d at 133. With these goals in mind, we have held that for an IEP to be reasonably calculated to enable a child to receive an educational benefit, it must be "likely to produce progress, not regression." Id. At 130 (quoting Cypress-Fairbanks Indep. Sch. Dist. v. Michael F.,118 F.3d 245, 248 (5th Cir. 1997)). Courts must, therefore, "examine the record for any ‘objective evidence' indicating whether the child was likely to make progress or regress under the proposed plan." Id. (quoting Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 (2d Cir. 1997). Thus, "in the regular classrooms of a public school system, the achievement of passing marks and regular advancement from grade to grade will be one important factor in determining educational benefit." Rowley, 458 U.S. at 207 n. 28, 102 S.Ct. 3034; see also Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 (2d Cir. 2003) (noting that "[p]assing grades are . . . often indicative of educational benefit"). Although it is more difficult to assess the significance of grades and regular advancement outside the context of regular public classrooms, these factors can still be helpful in determining the appropriateness of an alternative educational placement. See Walczak, 142 F.3d at 130.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207, 102 S.Ct. 3034. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. See Page 365 Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir. 2001) (holding that a unilateral private placement was appropriate where, inter alia, class sizes were small, the student made progress, and his improved significantly). To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. See M.S., 231 F.3d at 105 ("The test for parents' private placement is not perfection.") (internal quotation marks omitted). They need only demonstrate that the placement provides "educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction." Rowley, 458 U.S. at 188-89, 102 S.Ct. 3034 (internal quotation marks omitted). Frank G. v. Board of Educ. Of Hyde Park, 459 F. 3d 356,364,365 (2nd Cir. 2006) With this recent articulation of the law we can now turn to the facts of the placement of the student to determine if the placement for . was appropriate. A clinician for testified that is a New York State approved residential school (Trans. p. 44) He also testified that it was approved to meet the needs of students who were classified with an”Educational Disturbance” (Trans. p.44) The clinician went on to testify the student was making progress from the day he entered. The clinician opined that his progress was “a combination of all the factors that we have here. The structure and supports are definitely the foundation to facilitate progress.” He also testified that the student is pulled out of his classroom for specific therapies or intstruction. His complete testimony shows his familiarity with the student and the actual knowledge of the progress that the student has made since his attendance at . He also testified that the ages of the students in . class were 15-17 in compliance with NYS regulations. I conclude that the is an appropriate school for the student. The last prong of Burlington/Carter deals with the equities. No testimony or evidence presented by the district indicated that the parents failed to cooperate in the entire evaluation progress. In this matter where there was no offer of placement for several months after the CSE and referral to CBST and no residential offer of placement despite the recommendations of the CSE. I conclude that the equities clearly favor the parent.
From an analysis of the Burlington/Carter three prong test to determine the requirements for the parent to obtain reimbursement for tuition for an individual private placement, there is no doubt they are entitled to the payment of tuition and fees for . The Jose P. Case
The parent also asserts that it she is entitled to a P-1, “Nickerson Letter” which would commit the Department of Education to pay tuition and fess to from the time of the child’s enrollment until the conclusion of the 2012/2013 school year. The relevant citations to various parts of the Jose P.v. Ambach 79 Civ.270 (USDC EDNY) are found in Exhibits O through T of the parents’ exhibits. Essentially, the Jose P. settlement and various orders that arose from that matter clearly entitle the parents of a student who has not been offered a placement after a referral within 60 days thereof is entitled to have the child’s tuition paid ed by the Department of Education so long as the school is a NYS approved non-public school, regardless of location. (EX. O) Because no placement was offered within 60 days in conformity with the recommendations of the IEP and the placement that was offered resulted in a real failure of education for the student. I must conclude that the student is entitled to a P-1 Nickerson Letter which permits him to attend for the last days of the 2011/2012 school year and the 2012/2013 school year.
The Department of Education has argued that Impartial Hearing Officers have no authority to issue P-1 “Nickerson Letters”. I agree. IHOs do not issue such letters; the Department of Education does, many times on orders from IHOs. The Nickerson Letter is an instrument ordered by the court to be employed to assure prompt placement for a disabled student in a NYS -public school.
I know of no case law or statute which prohibits IHOs from issuing such orders for “Nickerson Letters”. I find the arguments in the DOE brief on the subject without merit.
The second argument raised by the DOE is that the alleged Nickerson letter issued by the DOE as a result of the Resolution meeting held in connection with meeting (EX.2. p 3) explicitly excludes placement of the student in a residential program. The DOE has provided no evidence that this change of policy with respect to Nickerson letters has been authorized or agreed to by the federal court. The residential element of the Nickerson letter is an essential part of the Order. If a child requires a residential program, and all other terms of the Jose P. decision apply, the child is to have a residential placement in a NYS approved residential program. There is no new law on the subject. The change in policy by the DOE was not supported by any showing of case law or even NYS regulation to be a lawful interpretation of the Jose P. case. The parents are entitled to a P-1 “Nickerson letter permitting the child to be enrolled and attend the JRC for June 2012 and the school year 2012/2013 commencing on July 1, 2012.
One last point, for the Department to argue that . was raised by me, sua sponte, or that it was not properly addressed in the parent’s request reflects poorly on the DOE’s knowledge of how Nickerson letters came into existence. Essentially, they are exhibits in the original federal case and have been used repeatedly. If a Nickerson letter is mentioned in a request, . is part of the hearing.
ORDER
The Department of Education is to pay tuition for . from the date of his enrollment in in June of 2012 until the endo fo the school year 2012/2013 in accordance with the terms of the contract between and the NYC Department of Education, is a suitable placement for the student and CSE shall that school as the student’s placement for this acdemic year.
Dated: December 10, 2012
_______________________________
WILLIAM J. WALL, ESQ.
Impartial Hearing Officer
WW:dl
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 JUNE 8, 2012
PARENT
A Impartial hearing Request, 4/20/12, 3 pages B DOE Due Process Response, 5/16/12, 3 pages C IEP, 12/10/10, 11 pages D Social History, 5/12/10, 4 pages E Evalution, 5/20/10, 17 pages F Student's Attendance Report, 2/15/12, 1 page G Student Report Card, 2011 – 2012SY, 1 page H Parent's Referral Letter With Proof of Delivery, 4/9/12, 1 page I Acceptance Letter, 4/13/12, 1 page J Tuition , Various dates, 2 pages K Behavioral Education Procedures at Undated, 7 pages L Distinguishing Features, Undated, 11 pages M Positive Programming Procedures, May 2002, 16 pages N Educational Progress For 's Students, 1/28/10, 9 pages O Jose P. v. Ambech Special Master Report, 12/14/81 and 1/5/82, 21 pages P Jose P. v. Ambech Memorandum and Order, 1/5/82, 4 pages Q Jose P. v. Ambech Order with Exhibits 1 and 2 (7/2/82), 7/2/81, 7 pages R Jose P. v. Ambech Order Stipulation, 7/28/88, 5 pages S Jose P. v. Ambech Judgment Excerpts 1 through 9 & 45, 12/14/79, 10 pages T Jose P. v. Ambech Memorandum and Orders Nos. 8 and 9, 12 pages
DEPARTMENT OF EDUCATION
1 Motion to Dismiss Claim, 5/16/12, 2 pages 2 Resolution Agreement, 5/16/12, 3 pages 3 Education Evaluation, 5/6/10, 5 pages 4 DOE Request for a Report, 11/3/10, 1 page 5 Report, 1/27/11, 2 pages 6 DOE Request for Reevaluation, 3/16/12, 1 page; 7 Student Current Class Schedule, 5/10--5/15/12, 1 page 8 Teachers Progress Reports, 3/7/12, 3 pages 9 Student Attendance Reports, 5/21/12, 7 pages
Footnotes
[8] NYCRR 200.4. Procedures for referral, evaluation, individualize education program (IEP) development, placement and review is the section that specifies the procedures to be followed. The specific regulation dealing with reevaluations is 8 NYCRR 200.4 states (4) A committee on special education shall arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation, but not more frequently than once a year unless the parent and representatives of the school district appointed to the committee on special education agree otherwise; and at least once every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary. The reevaluation shall