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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: July 17, 2013
August 5, 2013
Actual Record Closed Date: August 7, 2013
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 17, 2013
ESQ., Attorney — Student
Advocate — Student
Parents
Parents
Interpreter — Student
DR., DOE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 5, 2013
ESQ., Attorney — Student
Advocate — Student
Parents
Parents
Student
Interpreter — Student
Center Director, (via telephone) — Student
DR., DOE Representative — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the attorneys for the parents and the student on May 8, 2013. The primary issues to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to provide the student with compensatory additional services and a Nickerson (P-1) letter authorizing the student’s placement in a New York State approved nonpublic school at public expense (Exs. P-A).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forth-five (45) days after the expiration of the resolution period unless an extension of the case compliance date has been granted. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the forty-five (45) day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
On May 8, 2013, the parents filed the due process complaint notice which triggered this hearing (Ex. P-A). See 8 NYCRR §§ 200.5(i)(1), (j)(1). On May 13, 2013, the DOE appointed me to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). On June 14, 2013, the parties entered into a resolution agreement which resolved many of the issues raised in the parents’ May 8, 2013 due process complaint (Ex. P-B). See 8 NYCRR § 200.5(j)(2)(iv). A pre-hearing conference with the parties was held on June 20, 2013 to clarify the remaining issues and set dates for the hearing (R. 3-17). See 8 NYCRR § 200.5(j)(3)(xi). Hearing in this matter were thereafter held on July 17, 2013 and August 5, 2013.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the May 8, 2013 due process complaint, the student was thirteen
(13) years old and had been diagnosed with (“ ”) (Exs. P-A at 1). Since September 2012, the student has attended school in The student's current eligibility for special education and related services as a student with is not in dispute in this hearing (Exs. PA at 1, P-S at 1). See 34 C.F.R. § 300.8(c)(6); 8 NYCRR § 200.1(zz)(6).[3]
The student reportedly missed a large amount of classes during the years between (Ex. P-Q at 2). The student repeated during the 2007/08 school year (Ex. P-R at 1). During the 2008/09 school year, the student attended the . The student attended a general education classroom with daily special education pullouts in an eight-to-one (8:1) classroom. The student also received therapy three (3) times per week at school, both in an individual and group format (Ex. P-R at 1).
In the fall/winter of 2008, when the student was old, the student was referred for a due to . The student’s then-current levels of intellectual functioning were assessed by the Wechsler Intelligence Scales for Children - Fourth Edition (“WISC-IV”). His Full Scale IQ fell in percentile). This composite score was comprised of his Verbal Comprehension Score (Impaired percentile), his Perceptual Reasoning Score ( percentile), his Working Memory Score ( percentile) and his Processing Speed Score (Impaired ). The student’s working memory, which is the ability to mentally manipulate information and which heavily , was in ( , 16th percentile). Overall, the student’s were quite low (Ex. P-R at 3).
matter and was in accordance with the requirements of due process. Accordingly, the request for an extension of the case compliance date was granted (Ex. IHO-I). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
The student also displayed significant discrepancies in his academic functioning evidencing a wide-range language-based learning disorder. Specifically, he had the most difficulty with mathematics (WJ-III Calculation Standard Score = percentile; Applied h Problems Standard Score = ) and reading comprehension (WJ-III Passage Comprehension = 78, 7th percentile). From an interview with the student’s parents, there was no indication of the presence of significant . However, there was an indication for some . The evaluator recommended, among other things, that the student be educated in a special class program for children with , supplemented by individual speech/language therapy four-to-five times per week (Ex. P-R at 5-6).
In June of 2010, at the end of the student’s fourth grade, the student achieved a Level 2 on the NYS Math Exam (640) and a Level 1 on the NYS ELA Exam (625) (Ex. P-C at 1).
During the 2010/11 school year, the student was enrolled in . The student’s teacher at that time reported that he in . The student was on medication at that time, i.e . The saw a tutor in school four (4) times per week and had to express himself and in school. The student’s first quarter report card demonstrated scores ranging from one-tothree. The teacher comments on the report card indicate that the student’s performance had improved, but that it took too long for the student to settle down (Ex. P-Q at 1-2).
In February of 2011, when the student , he was referred for another due to poor performance in school. The student’s , as evaluated by the WISC-IV, could not easily be summarized because his nonverbal reasoning abilities were much better developed than his reasoning abilities. The student’s reasoning abilities on verbal tasks were generally in the ), while were significantly higher and in ( ). The student’s general working memory abilities were in the ( ), and general processing speed abilities were in ). The student’s ability to process visual material his abilities to . The student’s ability to process visual material quickly was also a to his . The student’s diagnosis confirmed via the testing (Ex. P-Q at 4-6).
problems that are primarily the result of visual, hearing, or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage. 8 NYCRR § 200.1(zz)(6).
The Wechsler Individual Achievement Test - Third Edition (“WIAT-III”) was administered to the student to assess his writing, reading and math skills. The student’s then-current academic functioning, as measured by the WIAT-III, indicated mathematical skills at the second and third grade levels. The student’s reading skills were within the first through third grade levels and his writing skills were in the second through fourth grade levels. Targeted academic were among several recommendations made for the student (Ex. P-Q at 4-6).
At a meeting held on March 17, 2011, the CSE convened to review the student’s functioning and develop an IEP for him for the 2011/12 school year (his ). The student was said to have made “significant progress” in reading, advancing from Grade 2 to Grade 4 level books (from Fountas & Pinnel “H” to “Q” between September 2010 and January 2011). While the student’s decoding and recall were said to have been “excellent,” he often failed to comprehend more subtle aspects of a text. It was also reported that the student had made progress in the mechanics of writing, including spelling and organization. While the student could write a three (3) paragraph essay independently if given an outline, he lacked the attention and focus to properly edit his writing independently. In math, the student and concepts (Ex. P-C at 1). Two IEPs from the March 17, 2011 meeting were produced at the hearing, one calling for the student to receive the majority of his instruction in a special class in a community school, the other for his instruction in an integrated co-taught (“ICT”) classroom, supported by related services of group therapy and (Exs. P-C at 1, 6, P-D at 5). The parents assert that the student received instruction in an ICT setting during his sixth grade (the 2011/12 school year) (Ex. P-A at 1-2).
In May of 2011, at the end of the student’s , the student achieved a Level 2 on the NYS Math Exam (655) and a Level 1 on the NYS ELA Exam (629) (Ex. P-F at 1).
At a meeting held on April 3, 2012, the CSE convened to review the student’s levels of functioning and recommend an IEP for him for the 2012/13 school year (his seventh grade). At that time, the student was said to have made “slight improvement” in the ICT program but still in his and often . The student was easily distracted and struggled with being able to sit for the duration of class on his work. The student preferred ELA and social studies to math and science, as his reading skills were more developed than his math skills. While the student could decode and retell a text, overall comprehension presented a challenge. He often had difficulty identifying the main idea and supporting details. When writing, the student due to This combined with his distractibility limited his ability to write a five (5) paragraph essay. The student also struggled with editing his spelling, punctuation and grammar mistakes. In math, the student struggled with computation and general number sense. For the 2012/13 school year, the CSE recommended that the student receive the majority of his instruction in ICT classes, along with related services of group therapy and individual counseling (Exs. PF at 1-2, 6, 11, P-N at 1).
On May 20, 2012, the principal of M.S. 326, Ms. , submitted a written request for the student to be reevaluated for special education services. Ms. Weissbrot reported that the student was not completing his work in class and cutting classes. Ms. Weissbrot requested that the CSE consider moving the student from CTT classes to a special class in a community school. Notwithstanding Ms. s request, neither the CSE, nor any other component of the DOE, reevaluated the student at that time (Exs. P-M, P-W).
In August of 2012, at the end of the student’s , the student achieved on the NYS Math Exam and a Level 1 on the NYS ELA Exam (Ex. P-G).
On November 9, 2012, the student’s mother submitted a written request for revaluation of the student due to the family’s concerns about his lack of academic progress (Exs. P-N, P-W). In February of 2013, a psychoeducational evaluation of the student was conducted. His general , as estimated by the WISC-IV was in the Low Average range ( ). The student’s and perceptual reasoning abilities were also both in the range ( ). The student general working memory abilities were in the Borderline range ( ), and general processing speed abilities were in the range ( ). The student abilities to sustain were a weakness relative to his ability to process visual material quickly (Exs. P-P at 4, P-S at 1). The student was also administered a set of tests from the Woodcock-Johnson III as part of the same February 2013 psychoeducational evaluation. When compared to others at his grade level, the student’s academic skills (with the exception of math fluency) were within the average range , the student was said to be suffering from due, in part, to the onset of adolescence and family discord (Ex. P-P at 4).
On a February 12, 2013 evaluation, the student presented with intelligible articulation skills, adequate oral motor skills along with voice and fluency appropriate for his age and gender. The Clinical Evaluation of Language Fundamentals - Fourth Edition (“CELF-4") was administered to the student as part of the evaluation to assess his expressive and receptive language skills. The student Receptive Language score and Expressive Language indicated performance in the severe-to-marginal range. The student’s Language Content Index and Language Memory indicated performance in the moderate range. The student’s scores indicated overall marginal/borderline language skills generally in the severe-to-moderate performance range , content, and memory. Continued group therapy intervention was recommended to continue at a rate of two
(2) times per week for (45) minutes per session (Exs. P-O at 2-3, P-S at 1-2).
On April 9, 2013, the CSE reconvened to review the results of the reevaluation and develop a program for the student for the 2013/14 school year. For the student’s eighth grade, the CSE recommended that he receive the majority of his instruction in a 12:1 special class supported by special education teacher support services (“SETSS”), five (5) times per week. The CSE also recommended that the student receive related services of: special education transportation, , one (1) time per week for forty (40) minutes per session; and individual therapy, three (3) times per week for forty (40) minutes per session (Ex. P-S at 8-9, 12-13).
As stipulated by the parties in a June 14, 2013 resolution agreement, the CSE reconvened on June 17, 2013 and increased the recommended frequency of individual counseling to two (2) times per week. Make-up sessions for therapy and counseling were also authorized (Exs. P-B, P-T at 8-9).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE failed to make any presentation at the hearing because it understood the matter to be settled-in-principle. To put the DOE’s position in context, I feel that some description of the efforts to schedule this matter is warranted. At the June 20, 2013 prehearing conference, the parties agreed to hold the hearing on July 17, 2013 and August 8, 2013 (R. 14). Later on June 20, 2013, counsel for the parents and student advised me that the student’s mother was scheduled for surgery on August 8, 2013, and so that hearing date was adjourned on consent. On July 11, 2013, the DOE requested an adjournment of the July 17, 2013 hearing date due to the availability of witnesses and the parties’ effort to settle the remaining issues in dispute. The parents objected to an adjournment of the July 17, 2013 hearing date and I denied the DOE’s adjournment request. The July 17, 2013 hearing date proceeded as scheduled with the marking of evidence and clarifying of the remaining issues in dispute. While I encouraged the parties to continue their good faith efforts to settle the matter, hearing dates were set for July 30, 2013 and August 5, 2013
(R. 23-58). On July 24, 2013, I received a status report from the parties on their efforts to settle the matter. On consent of both parties, the July 30, 2013 hearing date was stricken from the calendar based on settlement progress, but the August 5, 2013 hearing date was confirmed. On August 2, 2013, the DOE requested an adjournment of the August 5, 2013 hearing date due to progress of settlement negotiations and witness availability (R. 6667). The parents objected to an adjournment of the August 5, 2013 hearing date and I denied the DOE’s adjournment request (R. 67).
At the August 5, 2013 hearing, the DOE stated that matter had been settled-inprinciple (R. 67-68, 79). The parents objected to the DOE’s characterization of their settlement discussions and asserted that as no settlement (in principle or otherwise) had been achieved before the August 5, 2013 hearing date, the matter should proceed as scheduled (R. 68, 70-71, 74-75). In light of the parents’ position, the DOE requested an adjournment of the August 5, 2013 hearing date, or in the alternative, for an additional hearing date on which to produce available witnesses (R. 85). The parents objected to an further adjournment or delay in the conclusion of the matter (R. 85-86). As I determined that additional delay in the completion of the hearing would likely result in educational detriment to the student, see 8 NYCRR § 200.5(j)(5), I denied the DOE’s request and the hearing record was closed after receiving testimony offered on the parents’ direct case (R. 86-89, 187-192).
B. The Parents
The student has suffered significant educational harm due to the DOE’s failure to provide him with a free appropriate public education during the 2011/12 and 2012/13 school years. To remedy this denial of FAPE, the parents request that the DOE provide the student with 661 hours of one-to-one tutoring at . As the DOE failed to timely evaluate the student and arrange for appropriate special education services, the parents also seek a Nickerson (P-1) letter authorizing the student’s placement in a New York State-approved nonpublic school at public expense (R. 47-55; Ex. P-A at 2-4).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General Legal Standards
Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“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 (2) to ensure that the rights of students with disabilities and parents of such students are protected.[4] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
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. See 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 and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). 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: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).
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. See 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.” See 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 Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See 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; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). 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), quoting Rowley, 458 U.S. at 192.
The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 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); 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. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).
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); 8 NYCRR § 200.4(d)(2)(v).
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. See N.Y. Educ. Law § 4404(1)(c).
B. Compensatory Additional Services
Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded 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 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
State Review Officers also 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 Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); 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); Board 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); Application of a Child with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
I find that the student has suffered significant educational harm due to the DOE’s failure to provide him with a FAPE during the 2011/12 and 2012/13 school years. For the past two (2) school years that the CSE has recommended ICT classes for the student, he has struggled academically and his report cards and standardized exams reflect his failure to meet grade level standards (Exs. P-D at 4-5, P-E, P-F at 1, 5-6, P-G, P-H, P-I, P-J). While scheduled to enter the eighth grade in the fall, the student is currently functioning on a fourth grade level in reading and mathematics (Exs. P-F at 10, P-S at 13). While the student has advanced from grade-to-grade, that promotion has been based on a modified criteria (Exs. P-D at 9, P-F at 10-11, P-G, P-S at 13-14).
On March 17, 2011, the CSE recommended that the student receive instruction in an ICT . The student failed to make adequate educational progress throughout the sixth grade. The student’s performance on New York State standardized exams demonstrate that he failed to meet grade level standards. Despite evidence that he , the CSE continued to recommended that the student enroll in an ICT class with related services the following year (Exs. P-D at 4-5, P-E, P-F at 1).
On April 3, 2012, the CSE reconvened and recommended the same special education program that had proven inadequate throughout the student’s year: ICT with related services. The CSE failed to meaningfully consider other options to help the student make academic progress (Ex. P-F at 5-6, 10).
In September of 2012, the parents enrolled the student at the . Since then, the student had continued to receive failing grades in all of his core subjects. His promotion to the eighth grade was in doubt during the course of the school year. Although the parents requested better academic and special education supports for their son, no changes in the student’s educational program were recommended (Ex. P-H, P-I, P-N).
To remedy this denial of FAPE, the DOE shall be ordered to provide the student with 661 hours of one-to-one tutoring at the ”) and reimburse the parents for the cost of s baseline diagnostic testing (R. 92-135; Ex. P-V).
C. Jose P. Relief
In this appeal, the parents also seek a "Nickerson letter" pursuant to Jose P. v. Ambach, No. 79 C 270, 3 EHLR 553:298 (E.D.N.Y. January 5, 1982). In Jose P., the Board of Education of the City School District of the City of New York was found to have failed to act in a timely manner in its evaluation and/or placement of thousands of children with disabilities. A Nickerson letter authorizes a parent of a disabled student within the DOE to immediately place the student in an appropriate special education program in any State-approved nonpublic school at no cost to the parent. See Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 (E.D.N.Y. Jan. 5, 1982). The remedy provided by the Jose P. decision is intended to address those situations in which a student has not been evaluated within thirty (30) days or placed within sixty (60) days of referral to the CSE. See id.; M.S. v. New York City Dept. of Educ., 2010 WL 3377667, at *8 (E.D.N.Y. Aug. 25, 2010); Application of the Bd. of Educ., Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092).
I find that the facts entered into the hearing record establish that the parents are entitled to a Nickerson letter authorizing the student’s placement in a New York Stateapproved nonpublic school at public expense. On May 29, 2012, while the student was in the sixth grade at , Principal Sharon Weissbrot submitted a written request to reevaluate the student for appropriate special education services (Exs. P-M, P-W). Despite this request, the DOE took no action to evaluate the student. Later during the 2012/13 school year, on November 9, 2012, the student’s mother submitted a written request for revaluation (Exs. P-N at 1, P-O at 1, P-P at 1, P-W). Again, the DOE failed to timely evaluate the student. Not until mid-February 2013, almost nine (9) months after Principal Weissbrot’s May 2012 request, and more than three (3) months after the parent’s November 2012 request for reevaluations, did the DOE finally comply and commence revaluations. On February 12, 2013, the DOE completed a social history evaluation, evaluation and evaluation of the student (Exs. P-N, P-O, P-P).
According to 8 NYCRR §§ 200.4(d), (e), the DOE is required to arrange for appropriate special education programs and services to be provided to a student with a disability within sixty (60) school days of the referral for review of a student with a disability. This includes implementing the student’s IEP. As the CSE did not convene until April 9, 2013, several months after the parents’ repeated requests for an IEP meeting, I find that the DOE failed to timely arrange for the appropriate special education programs and services to be provided to the student within the required sixty (60) school day timeline after receiving a referral for review from on May 29, 2012 and the parent’s written request for evaluation on November 9, 2012 (Exs. P-M, P-S, P-W). As relief for the DOE’s failure to timely evaluate the student and arrange for appropriate special education services, the DOE shall be directed to issue the parents a Nickerson (P-1) letter authorizing the student’s placement in a New York State-approved nonpublic school at public expense for the 2013/14 school year.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
(1) The student shall receive compensatory additional services in the form of 661 hours of one-to-one tutoring at a rate of $95 per hour Corporation d/b/a upon submission of monthly invoices to the DOE to redress the DOE’s failure to provide the student with a FAPE during the 2011/12 and 2012/13 school years;
(2) The DOE shall reimburse $295 for the cost of diagnostic testing and $100 for
HLC’s standard registration fee; and
(3) the parents shall immediate receive a P-1 Nickerson letter for the DOE’s failure to timely evaluate the student for special education services and arrange for the delivery of appropriate services during the 2011/12 and 2012/13 school years after receiving March 29, 2013 referral for evaluation and the parent’s November 9, 2012 request for reevaluations. Dated: August 22, 2013
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
JJS:gc
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 JULY 17, 2013
PARENT
A. Impartial Hearing Request/Due Process Complaint Notice, 5/8/13, 8 pgs.
B. Resolution Agreement, 6/14/13, 2 pgs.
C. Individualized Education Program (IEP), 3/17/11, 12 pgs.
D. [Reserved]
E. Letter to parents from ), 1/25/12, 2 pgs.
F. Individualized Education Program (IEP), 4/3/12, 13 pgs.
G. Letter to parents from ), 8/21/12, 1 pg.
H. , Quarter 1 Report Card, 2012/13, 2 pgs.
I. , Quarter 2 Report Card, 2012/13, 2 pgs.
J. Letter to parents from ), 1/30/13, 1 pg.
K. Letter to parents from ), 1/3/13, 1 pg.
L. [Reserved]
M. Assessment Planning, 5/29/12, 2 pgs.
N. Social History Update, 2/12/13, 2 pgs.
O. Evaluation, 2/12/13, 6 pgs.
P. Evaluation Report, 2/12/13, 4 pgs.
Q. Evaluation, 2/23/11, 8 pgs.
R. Confidential Neuropsychological Evaluation, 12/30/08, 10 pgs.
S. Individualized Education Program (IEP), 4/9/13, 15 pgs.
T. Individualized Education Program (IEP), 6/17/13, 14 pgs.
U. Authorization for Independent Provider for Special Education Teacher Support
Services (SETSS), 5/6/13, 8 pgs.
V. [Reserved]
W. Letter to (CSE 10 Chair) from , 3/15/13, 3 pgs.
X. Letter to from , 2/6/13, 4 pgs.
Y. Letter to ), 2/6/13, 4 pgs.
Z. Letter to ), 2/6/13, 4 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 5, 2013
PARENT
D. Individualized Education Program (IEP), 3/17/11, 10 pgs. V Huntington Student Academic Evaluation Results, 3/6/13, 57 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 6/20/13, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter once in order to allow for adequate time to present their available witnesses on the extensive issues raised in the parents’ due process complaint. In considering that request, I weighed the cumulative impact of the relevant factors and found that allowing the parties adequate time to present their available witnesses on the extensive issues raised in the parents’ due process complaint justified the delay in the resolution of the
[3] Learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning
[4] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.