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: September 6, 2012

March 8, 2013

Record Close Date: March 19, 2013

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 6, 2012

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 8, 2013

Attorney — Student

IRIS ROSA, — Parents

District Representative (via telephone) — 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 requested by the attorneys for the student and the parent in a due process complaint notice dated July 2, 2012. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to maintain the student’s educational placement, at public expense, at the ”) for the 2012/13 school year (Ex. 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 45 days after the expiration period or adjusted period for the resolution process. 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 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 subsequently appeal 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

I was appointed by the DOE to hear this matter on July 5, 2012. In a due process response dated July 11, 2012, the DOE denied each and every allegation contained in the parent’s complaint (Ex. P-B). See 8 NYCRR §§ 200.5(i)(4), (5). At a hearing held on September 6, 2012, the parent moved for an interim order on pendency, see 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m), based on the Findings of Fact and Decision rendered by Impartial Hearing Officer Esther Mora on April 11, 2012 concerning the 2011/12 school year (R. 7; Ex. P-C). The DOE did not oppose the parent’s motion (R. 10). In an Interim Order on Pendency rendered on October 1, 2012, I ordered that the student continue to , at public expense, effective July 2, 2012, until such time as the due process proceedings in this matter were completed (Ex. IHO-I at 6). Another hearing in this matter was held on March 8, 2013 to hear the merits of the case.^[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

The parties’ familiarity with the student’s educational history prior the 2012/13 school year, as fully set forth in Impartial Hearing Officer Esther Mora’s April 11, 2012 Findings of Fact and Decision, is assumed and will not be restated here (Ex. P-C at 4-7).

At the time of the July 2, 2012 amended hearing request, the student was nearly seventeen (17) years old and educationally classified as having (Exs. P-A at 1, P-B at 1).^[3] The student attends school at the , which the Commissioner of Education has approved as a school with which public school districts may contract to instruct students with disabilities (Ex. P-A at 1). See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing (R.23; Exs. P-A, P-B). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).

With regard to the parent’s current claim, it is undisputed that the CSE failed to develop an IEP for the student for the 2012/13 school year prior to March 1, 2013 (R. 9, 22-24; Exs. IHO-I at 5-6, P-A at 1, P-B at 1). The CSE reportedly conducted a evaluation of the student and a took a social history in November of 2012 (R. 23). The CSE convened on March 1, 2013 and recommended that the student receive the majority issues raised in the parent’s due process complaint. In considering those requests, 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 parent’s due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (Exs. IHO-II, IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO-VIII). of her instruction in a special class setting in a New York State approved nonpublic school on a twelve (12) month basis. The CSE deferred the selection of a specific placement to the DOE’s Central Based Support Team (“CBST”). As of the last hearing date in this matter, i.e., March 8, 2013, no specific educational placement had been recommended for the student by the DOE (R. 22-24).

IV. POSITIONS OF THE PARTIES

A. The DOE

The parent’s claim seeking the student’s continued placement at the should be denied. According to the DOE’s July 11, 2012 due process response, “the parent’s claim is not yet ripe because no actual case or controversy exists. Specifically, no IEP has yet been developed and/or no placement offered, and the DOE is not yet out of compliance” (Ex. P-B at 4).

B. The Parents

The DOE should be ordered to continue the student’s special education program and placement at at public expense. The DOE failed develop an IEP for the student for the 2012/13 school year until March 1, 2013. To date, the DOE has failed to identify or recommend an educational placement for the student for the 2012/13 school year. The student currently attends , which is a New York State approved nonpublic school. Given these facts, the parent is entitled to a P-1 or Nickerson letter authorizing the student’s continued attendance at a New York State approved nonpublic school of the parent’s choice, at public expense, through the balance of the 2012/13 school year (R. 24-25; Ex. P-A).

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 an emotional disturbance. 8 NYCRR § 200.1(zz)(4). 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. Proposed Public Program

As previously noted, an appropriate special education program typically beings with “an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” See, e.g., Application of the Bd. of Educ., Appeal No. 10-129 at 15 (SRO March 28, 2011). With certain exceptions, a student's IEP is required to be reviewed periodically, but not less frequently than annually, and revised as appropriate. See 20 U.S.C. § 1414(d)(4)(A); 34 C.F.R. § 300.324(b)(1)(i); N.Y. Educ. Law § 4402(2); 8 NYCRR 200.4(f). Public school districts must ensure that a student’s IEP be in effect by the beginning of the school year and that parents are provided a copy. See Cerra, 427 F.3d at 194.

I find that the DOE’s failure to develop an IEP for the student here for the 2012/13, until on or about March 1, 2013, and its continued failure to identify or recommend a specific educational placement for the student, has denied her a free appropriate public education. See Rowley, 458 U.S. at 206-07. Given the CSE’s (belated) recognition that the student requires a twelve month (or extended school year) educational program and that the twelve month school year began on July 1st, see N.Y. Educ. Law § 2(15), I find that the DOE’s affirmative defense of ripeness is without merit

(R. 23-24).^[5]

C. Jose P. Relief

The parent seeks a Nickerson letter allowing the student to attend a Stateapproved nonpublic school at the DOE’s expense (R. 24-25; Ex. P-A). A Nickerson letter is a letter from the DOE authorizing a parent to place a student in a State-approved nonpublic school at no cost to the parent. See Jose P. v. Ambach, No. 79 Civ. 270, 553 IDELR 298 (E.D.N.Y. Jan. 5, 1982). The remedy of a Nickerson letter is intended to address the situation in which a student has not been evaluated within thirty (30) days or placed within sixty (60) days of referral to the CSE. See M.S. v. New York City Dep’t of Educ., 734 F. Supp. 2d 271, 279 (E.D.N.Y. 2010).

I find that the student is entitled to a Nickerson letter authorizing the parent to place the student at a State-approved nonpublic school, (R. 25-27). At a meeting held on or about March 1, 2013, the CSE determined that the student requires a special class program in a residential setting, on a twelve-month special basis (R. 23-24). Neither the CSE, nor any other component of the DOE, however, has placed the student within sixty

(60) days of the onset of the 2012/13 school year, i.e., July 1, 2012. See 8 NYCRR § 200.4(e). Indeed, as of the final date of hearing in this matter, i.e., March 8, 2013, it had been over seven (7) months since the onset of the 2012/13 school year and the CSE had just referred the student’s case to the CBST for identification and/or recommendation of a specific educational placement (R. 24). As is a nonpublic residential school that has been approved by the Commissioner of Education as a school with which public school districts may contract to provide special education instruction and services to students with disabilities, see 8 NYCRR §§ 200.1(d), 200.7, the student’s placement there at public expense is authorized by Jose P. in the absence of any recommended placement by the DOE.

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED THAT: The parent shall receive a Nickerson (P-1) letter authorizing the student’s placement in a New York State approved nonpublic residential school, at public expense, for the 2012/13 school year. Dated: March 25, 2013

______________________________

JEFFREY J. SCHIRO, ESQ.

Impartial Hearing Officer

JS: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 SEPTEMBER 6, 2012

PARENT

A Impartial Hearing Request, 7/2/12, 2 pages B Due Process Response, 7/11/12, 4 pages C Findings & Fact & Decision, 4/11/12, 13 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 8, 2013

PARENT

None

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I Interim order on pendency, 10/1/12, 8 pages

DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING

PARENT

None

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

II Confirmation of Extension, 9/20/12, 1 page III Confirmation of Extension, 10/22/12, 1 page IV Confirmation of Extension, 11/13/12, 1 page V Confirmation of Extension, 12/27/12, 1 page VI Confirmation of Extension, 1/21/13, 1 page VII Confirmation of Extension, 2/20/13, 1 page VIII Confirmation of Extension, 3/18/13, 1 page

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 several times in order to allow the parties adequate time to present their available witnesses on the extensive

[3] Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance: (i) an inability to learn that cannot be explained by intellectual, sensory, or health factors; (ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood of unhappiness or depression; or (v) a tendency to develop physical symptoms or fears associated with personal or school problems. The term includes . The term does not apply to students who are , unless it is determined that they have

[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.

[5] Twelve month special service and/or program means a special education service and/or program provided on a year-round basis, for students determined to be eligible in accordance with sections 200.6(k)(1) and 200.16(i)(3)(v) of this Part whose disabilities require a structured learning environment of up to 12 months duration to prevent substantial regression. A special service and/or program shall operate for at least 30 school days during the months of July and August, inclusive of legal holidays, except that a program consisting solely of related service(s) shall be provided with the frequency and duration specified in the student’s individual education program. 8 NYCRR § 200.1(eee).