NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: July 23, 2013
Actual Record Closed Date: August 1, 2013
Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 23, 2013
Parents
Student
AC Special Education — DOE
, ASE
Ms. ., the mother of . filed a request for an impartial hearing on May 28, 2013 requesting placement for her daughter in a private school.[1] I was designated to hear this matter on May 29, 2013. The compliance date was extended on one occasion to allow for receipt of the transcript and rendering of the decision, with a final compliance date of August 16, 2013. (IHO Ex. II).
Nicole is a nineteen year old young woman with a classification of Learning Disability. Her classification is not in dispute. (Par. Ex. A). At the time the hearing was requested, ’s Individualized Educational Program (“IEP”) provided for Integrated CoTeacher Services (“ICT”) for all core subjects with related services of counseling in a group of five once per week. (Par. Ex. K). [2]
DEPARTMENT OF EDUCATION’S (DOE) POSITION
, the Department of Education (“DOE”) representative, testified that Nicole previously received Therapy (“ ) however that service was discontinued in 2009. (Tr. p. 9). She testified that at a resolution session held on June 10, 2013, the DOE offered compensatory tutoring services for however the parent rejected that offer. (Tr. pp. 10, 59).
The parent previously requested an impartial hearing with regard to the 2011-2012 school year, and a resolution agreement was reached on November 18, 2011. It was agreed that the DOE would conduct a social history update and a evaluation. Following the agreement, was transferred to , an alternative evening program. (Par. Ex B; Tr. pp. 9, 17).
A social history update was performed on December 2, 2011. It was reported that was evaluated in February 2011 and as well as a . It was further reported that she has not attended school at all this year, and that she would like to attend . (DOE Ex. 6). On or about December 15, 2011, transferred to . (Tr. p. 17).
No further evaluations were performed by the DOE. According to Ms. this is due to the fact that did not ; and that the testing would have been performed when she was in attendance. (Tr. p. 19). During the 2011-2012 school year, was present a total of 25 days and absent a . (Doe Ex. 3). The DOE failed to present any evidence that there were specific appointments for evaluations which were missed.
The DOE concedes that needs to be re-evaluated, and both parties agreed that Nicole should have a comprehension independent evaluation at DOE expense, including a neuropsychological evaluation, evaluation, and evaluation, and such further evaluations that may be indicated by said evaluators. (Tr. pp. 12, 65-66).
PARENT’S POSITION
Ms. . testified that received special education services since kindergarten, and that her first evaluation indicated . She attended special classes in elementary school and middle school. (Tr. pp. 22-23). She began high school in . (Tr. p. 24).
During her year, a triennial evaluation was performed indicating that her oral language was level, her reading skills grade level, and her writing skills were at a level. Her math skills were at level. (Par. Ex. H). A CSE review was held on March 18, 2009. was recommended for a Special Class, Special Education Teacher Support services and related services of , twice per week. (Par. Ex. I).
Ms. testified that was starting to get depressed and she wasn’t on track in school. (Tr. p. 26). An independent evaluation was performed on February 1, 2011. It was noted that has limited communication skills. She was and referred for a psychological evaluation. (Par. Ex. G). A evaluation was performed on February 3, 2011. ’s intellectual functioning was found to be mildly delayed. Her adaptive behavior was reported to be in the moderately low range. Her mother reported that she has noticed . A more was recommended to rule out and specific . (Par. Ex. F).
A evaluation was performed in November and December 2011, revealing a moderate to characterized by deficits spoken language, recalling important information and . It was recommended that she per week and that she be placed in a small classroom for . (Par. Ex. D). In an update dated May 2, 2012, additional test results were reported, consistent with a diagnosis of moderate to severe receptive/expressive language disorder. (Par. Ex. E).
Ms. . testified that she brought all of the evaluations to Ms. , who was in charge of the IEP’s , and was told “we can help her”. She testified that Ms. made copies of the evaluations and placed them folder. She thought would get the additional help that she needs. (Tr. pp. 30-31). She testified that she did not learn was removed IEP until she was informed of that fact by Ms. . (Tr. p .49).She testified that Nicole gets depressed and does not want to leave the house. She has attended school only sporadically for the past two years. (Tr. pp. 31-32).
A CSE review was held on June 13, 2012. Ms. participated by telephone. It was reported that has very which significantly hinders her progress. It was further reported that she does not attend counseling. (Par. Ex. K, p. 1). The CSE reported that the mother was aware of ’s which keeps her home; and that she continues to look for help. It was recommended that be “counseled on her attendance”. (Id. at 2). Her IEP did not include any social/emotional goals. (Id.).[3] Ms. did not bring up her independent testing at the June 2012 CSE meeting, because she had given the testing to Ms. (Tr. p. 34).
Ms. is requesting be evaluated independently and placed in a private school which services learning disabled students. (Tr. p. 39).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its Committee on Special Education (CSE) must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982]. The special education provided by a district must be meaningful, and provide the opportunity for more than only trivial advancement. Walczak v. Fla Union Free School District, 142 F. 3d 119 (2d Cir. 1998).
The record indicates that the DOE has been aware, since December 2, 2011, that was diagnosed , and that this is a to attend school. The DOE failed to complete evaluation in accordance with a November 18, 2011 Resolution Agreement. While to attend school may have been a factor in the DOE’s failure to evaluate her, it does not excuse its failure to schedule appointments for the evaluation, and to pursue the evaluation; particularly in light of the fact that I also credit Ms. . that she shared her private evaluations with school district personnel. These evaluations indicated that in addition to suffering from depression, Nicole has a moderate to for which she requires and a special class placement. has not received services since 2009. Although the most recent psychological testing in evidence indicates that her , her current placement is in an ICT class.
A hearing officer may find that a child did not receive a free and appropriate public education (FAPE) if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education, (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education (“FAPE), or (III) caused a deprivation of educational benefits. 20 U.S.C. Sec. 1415(f) (3) (e) (ii).
I find that the DOE’s failure to evaluate , in accordance with the Resolution Agreement; and after being put on notice of her depression and significant language delay caused a deprivation of educational benefits and constituted a denial of FAPE.
Substantively, I find that the recommended program, which fails to adequately address her language delay is not reasonably calculated to enable to receive educational benefits.
The parent has failed to present any can be appropriately educated Transitions or that the school has offered her a placement. I find, however, that the parent is entitled to the issuance of a Nickerson letter, which will enable her to in an appropriate stateapproved private school at public expense, has not been evaluated in a timely manner. See Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]; Application of a Student with a Disability Appeal No. 10-052, p. 7); Application of a Child with a Disability, Appeal No. 05-115, .
In addition, both parties agree that the DOE shall provide independent psychiatric, neuropsychological and speech/language therapy evaluations at public expense, and such other evaluations as may be indicated by said independent evaluations.
Following the receipt of the independent evaluations, the CSE must reconvene to review the evaluations, develop an appropriate IEP, and recommend an appropriate placement .
ORDER
For all of the foregoing reasons, it is hereby ordered as follows:
1. Within 10 days, the CSE shall fund independent psychiatric, neuropsychological, and such other evaluations as may be indicated by said independent evaluations; provided, however, that if the parties cannot mutually agree upon independent evaluators to conduct the evaluations, the CSE shall provide the parent with information about where such independent evaluations may be obtained, as well as criteria applicable to independent evaluations; See Application for Review of a Determination of a Hearing Officer, Appeal No. 12-
033.
2. Within 10 days following the completion of the foregoing evaluations and reports, the CSE shall reconvene to review the evaluations, develop an appropriate IEP, and recommend an appropriate .
3. The DOE shall forthwith issue a Nickerson letter, to attend a New York State approved private school at public expense. Dated: August 9, 2013
_______________________
DORA LASSINGER, ESQ.
Impartial Hearing Officer DL;mv
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 Request for Hearing, dated 5/27/13 (2 pages) B Resolution Agreement, dated 11/18/11 (2 pages) C Transcript, 12/13/11 (2 pages) D Evaluation, dated 12/2011 (5 pages) E Addendum, dated 5/2/12 (2 pages) F Psychological Evaluation, dated 2/3/11 (4 pages) G Evaluation, dated 2/1/11 (5 pages) H Tri-annual Evaluation, dated 12/18/08 (6 pages) I IEP, dated 3/18/09 (10 pages) J IEP, dated 4/15/10 (13 pages) K IEP, dated 6/13/12 (11 pages) L IEP, dated 6/17/13 (9 pages) 1 Request for Impartial Request for Reevaluation, dated 10/2011 through 12/2011 (5 pages) 2 Student’s Admittance Record and Parental Contact regarding student attendance, various dates (7 pages) 3 Student Attendance Records for 2010 through 2013 (5 pages) 4 Student Transcript for 2008 through 2012 (2 pages) 5 IEP for 2010/2011 school year (10 pages) 6 Social History Update, dated 12/2/11 (2 pages)
HEARING OFFICER
I Summary of Prehearing Conference, dated 6/25/13 (1 page) II Compliance Date Extension to 8/16/13, 1 pp
Footnotes
[1] In her complaint, the parent specifically stated program is appropriate for her daughter. (Par. Ex. A).At the hearing, however, the parent did not present any evidence about the appropriateness of , but simply requested a private school placement. She was given the opportunity to request an adjournment to present additional testimony from , but decided not to request an adjournment. (Tr. pp. 42-43)
[2] Following the filing of this complaint, the CSE met on June 17, 2013 and recommended the same program (except that counseling is recommended to take place in a group of three). (Par. Ex. L).
[3] The June 17, 2013 includes a counseling goal to address her depressive moods and lack of attendance, in weekly with a guidance counselor. (Par. Ex. L).