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: October 24, 2012

November 8, 2012

December 6, 2012

January 8, 2013

Record Close Date: January 25, 2013

Hearing Officer: Daniel M. Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 24, 2012

Attorney — Student

Parents

CSE- District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 8, 2012

Attorney — Student

District Representative — DOE

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

Attorney — Student

District Representative, CSE — DOE

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

Attorney — Student

Parent (via telephone) — Student

Teacher (via telephone) — Student

District Representative CSE — DOE

INTRODUCTION

On October 17, 2012, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f).

Pendency hearing was conducted on October 24, 2012, and Order issued on 10/25/2012. (Ex I)

Prehearing conference was conducted on November 8, 2012, date to commence hearing was scheduled.

A hearing on the merits was conducted and appearances made by the parties as indicated herein.

Appended to the record are lists of persons in attendance and the documents received in evidence.

On December 6, 2012, Parent representative requested, and was granted, an extension of the compliance date, due to witnesses being unavailable. Compliance date was extended to January 9, 2013.

On January 8, 2013, both parties requested and were granted, an extension of the compliance date, in order to receive a copy of the transcript. Compliance date was extended through February 9, 2013.

BACKGROUND

Parent commenced this matter through hearing request, dated October 11, 2012, seeking funding, or Nickerson Letter, to enable student to attend the (“ for the 20122013 school year. Alternatively, parent seeks an order directing the Department of Education (‘DOE”) to enter into contract with and place the placement on the student‘s Individualized Education Program (“IEP”). (Ex A 1-2)

is a school that has been approved by the Commissioners of Education as a school with which school districts may contract to instruct students (8 NYCRR 200.1 [d], 200.7).

Parent contends that Department of Education (DOE), upon procedural and substantive grounds, failed to offer the student a Free and Appropriate Education (“FAPE”) for the 2012-2013 school year. (Ex A-1)

Student is a , and had attended for the 2011-2012 school year. (Ex A & C)

Preset levels of academic achievement, functional performance and learning characteristics are reflected in IEP dated April 8, 2011. (Ex C1)

THE PARENT’S POSITION

Attorney ”) presented the case for the parent and student.

Parent position was outlined in hearing request, dated October 11, 2012. (Ex A)

IEP was completed at a meeting of April 24, 2012 which recommended a twelve month placement in a self contained class in a specialized D school, staffing ratio with related services of . Parent rejected the recommended placement. (Ex A2, & C)

On July 1, 2012 parent requested an alternative placement. CSE reconvened on 10/02/12, and recommended a twelve month placement in a New York State approved non-public day school (“NPS”) and deferred the case to the Central Based Support Team (“CBST”). Parent has not received a placement offer related to this recommendation. (Ex A-2, E-2)

Parent believes is an appropriate program. (Ex A-2)

PARENT WITNESS

(“ ”) described her professional and educational background, and testified as a special education teacher at , an approved New York State Education Department provider of special ed services to children with disabilities. (T 40-41)

The program is a twelve month program. (T 41)

taught the student in the 2011-2012 school year and teaches the student for the current year in an ungraded class of students on the ages 6 through 8. (T 4143)

Most students function on a kindergarten through level and all . (T 43-44)

Student , in the program as mandated in the April 8, 2011 IEP, by licensed providers. (T 44-45, Ex D)

The students benefits from the specialized instruction in the program. (T 45)

“…the method that I used in my classroom is a total communication approach, which is provided with visual repetition, peer models, teach adult models. Any topic or theme that's covered is reviewed or an extended period of time to be sure that the students are gaining the information an retaining the information that's being presented to them.“(T 45-46)

was asked how she knows progress is being made:

“Based on her demonstration of the knowledge during our group discussions, based on work, past work, class activities, that's usually how I can determine whether or not she's retaining the information if she does have some understanding of it.” (46)

Student can be , but does not exhibit with student learning or the learning of others. (T 46)

Two students in the class have individual paraprofessionals. (T 47)

was asked if the classroom environment is appropriate for the student:

“Yes…She's receiving adult support, which she needs, as I said previously because of her tendency . So because of the number of adults that are in the room, she's being provided with, you know, a little more support than she may receive in a different type setting. So that's why I believe it's an ideal setting for her because she is getting the support that she needs. We are able to work in small groups when we address academic areas.” (T 48)

Applied Behavior Analysis (“ABA”) is not used in the program, instead; “…what we use, where's she's provided with visuals. She's provided with--if there's a need for sign language, all of these things to help bring across the information and to because of a problem with processing or being distractible, all of these components assist in, you know, helping her to learn.” (T 49)

has not seen any IEP more recently dated than the 04/08/2011 IEP. (T 50, Ex D)

could not envision the student in a less restrictive environment. (T 51-52)

testified as to student program components and student growth.

“…when she first came to me…(student)…was . She wasn't a lot. There wasn't evidence . But as the school year went on and as I see this school term, she's relating more to peers. She's relating more to familiar adults. She's connecting to things that are going on in her environment. So I see growth and I see progress. Information that was presented to her in the past and currently she's retained some of that information, and I believe it's because it's in a small setting and because she's getting adult support, consistent adult support. And there are many other experiences provided here in this school that I think also contribute to her growth and her progress.” (T 51-52)

A music program, gym class, related services, and field trips also contribute to student growth and progress. (T 52-53)

When class is divided into groups it is typically divided into groups of two students and one adult. (T 54)

PARENT WITNESS

(“ ”) the student’s mother testified, confirming the student currently attends , and has done so since being referred to the school since . (T 57-58)

The April 8, 2011 IEP meeting resulted in a recommendation for . (T 58, Ex D)

The April 24, 2012 IEP meeting resulted in a recommendation, which parent rejected. (T 59, Ex C)

Reconvene of the CSE took place in October of 2012 and a private school setting was recommended. (T 59)

Another IEP meeting was conducted in October 2012, this time on 10/19/2012, to which the parent was notified to attend. (T 60)

continues to provide an appropriate program for her child and that it suits her unique needs. (T 62)

Parent did not receive a Final Notice of Recommendation (“FNR”) after the October IEP meeting. (T 64-65)

DEPARTMENT OF EDUCATION POSITION

Dr. ”), District Representative, CSE 3, presented the DOE case.

At hearing, December 6, 2012, advised the hearing officer that the matter had been submitted for settlement and to his knowledge the DOE had no placement offer for the student. (T 21)

DOE did not present any evidence or call any witnesses.

Regarding the October 2, 2012 CSE meeting stated: “…we had a deferral to CBST on the 2nd of October. That deferral to CBST was rejected by CBST due to LRE. It went back to the same team for a reconvene on October 19th, which a final IEP was created. The October 2nd minutes and the meeting held that day reflect that there was a deferral. So when there's a deferral, there's not a finalized IEP. The District is just submitting this as a record that we do have a finalized IEP on October 19, 2012. It was for a recommendation for a District school. And that final notice of recommendation went out on October 22. So we just want to state for the record that there is a finalized IEP out there. There is a final notice of recommendation out there. That after it came back from CBST, that there was action taken by the District.” (T 31-32)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A student is offered a FAPE 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 (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 an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative hearing 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

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 (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" (Rowley, 458 U.S. at 203). 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, but school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). 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 v. Pawling Cent. Sch. Dist., 427 F.3d 186, at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see 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]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (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]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]).

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]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), 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]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059. 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).

The burden of proof is on the school district of demonstrating the appropriateness of the program recommended by the CSE. A parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

Boards of Education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and; (3) equitable considerations support the Parent's claim (School Committee of the Town of Burlington v, Department of Education, Massachusetts, 471 U.S. 359 [1985]; Application of a Child with a Disability, Appeal No. 01-052). Further, the fact that the facility selected by the Parent to provide special education services to the Child had not been approved as a school for children with disabilities by the State Education Department of the State of New York is not dispositive. (Florence Co. School District Four v. Carter by Carter, 510 U.S. 7 [1993]).

The parent bears the burden of proof concerning the appropriateness of their unilateral placement. A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]; see also Educ. Law § 4404[1][c]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010]).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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. 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. 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.

(Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-

65).

DOE PROPOSED IEP AND FAPE

DOE acknowledged that a placement offer had not been made to the student for the 2012-2013 school year. advised the hearing officer that the matter had been submitted for settlement and to his knowledge the DOE had no placement offer for the student. (T 21)

APPROPRIATENESS OF THE PLACEMENT

Witnesses outlined student program as , including modifications made to accommodate the student and student progress. Each witness substantiated the appropriateness of the program for the student.

The program is a twelve month program, an ungraded class of students on the most students function on a through level and all are verbal, and the student receives , in the program as mandated in the 04/08/2011 IEP, by licensed providers. (T 41-45, Ex D)

The students benefits from the specialized instruction in program, the student is making progress, and the classroom environment is appropriate. (T 45 -48)

could not envision the student in a less restrictive environment. (T 51-52)

testified as to student program components and student growth. (T 51-52)

I find that provides an appropriate placement and services for the student.

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting and did not deny the DOE any request for information or attendance at any meeting.

NICKERSON LETTER

Parent attorney request a remedy, among others, of a Nickerson Letter (P-1). A Nickerson letter (P-1) is a letter from the Department of Education (DOE) to a parent authorizing parental placement of the child, at no cost to the parent, in an appropriate special education program in any state-approved private school. (See Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298) This remedy addresses the circumstance whereby a child has not been evaluated or placed in a timely manner. (See SRO Nos. 06-088, 02-075 & 00-092) Additionally, this remedy is also available when a student has completed all necessary evaluations but a final notice of recommendation is not sent or given to the parent by the student's eligibility date. Again, the parent must be provided a Nickerson Letter entitling the student to be placed in an appropriate nonpublic school at public expense. Specifically, letters were to be issued to the parents of each eligible child who had not been placed within sixty days of referral or evaluated within thirty days of referral advising parents of their right to place their child in a nonpublic school at public expense. (Jose P., et al. v. Thomas Sobol, et al., 1995 WL 591304 (EDNY) - Stipulation)

In the instant case the DOE acknowledges that placement was not offered to the student for the 2012-2013 school year.

I find that the DOE failed to offer an appropriate placement for the student, for the 2012-2013 school year and the parent is entitled to a Nickerson Letter.

NON PUBLIC PLACEMENT

In the instant case analysis was applied regarding a Nicerson Letter, and unilateral placement, each resulting in student placement at .

I note that tuition reimbursement analysis applicable to unilateral placement need not be applied, as the student’s last agreed upon placement has not changed. Under the circumstances of this case, the student was not unilaterally placed without the consent of state or local school officials. (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 373-74 [1985]; see 34 CFR 300.148[c]).

The hearing record indicates that the student was initially placed at at the age of through the process. (T 58)

This public placement remained the student's last agreed-upon placement at the time of the IHO pendency decision. (Ex I) The student was initially placed in the approved nonpublic school setting by the district, I find that the student's continued placement did not constitute a unilateral placement. Instead, was the student's mutually agreed upon placement at the time this proceeding was commenced (see Application of a Child with a Disability, Appeal No. 96-48; SRO No. 12-062).

The district failed to develop an appropriate IEP and placement of the student for the 2012-2013 school year.

Regarding the recent referral to states that; “The deferral to CBST was looked over by the administrator there and that particular deferral was rejected.” (T 70)

Though DOE may state that is no longer the student's LRE, there is no evidence contained in the hearing record supporting this position.

I do not find it necessary to order a reconvene of the CSE for further action, as relief is provided to the parent for the 2012-2013 year, within the order contained herein.

ORDER

1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2012 -2013 school year.

2. The student’s current placement at the 2012-2013 school year is educationally appropriate.

3. The DOE is directed to fund the costs of tuition and other expenses of enrollment for the student as attended during the twelve month 2012-2013 school year.

4. The issuance of a Nickerson Letter (P-1 Letter) for non-public school placement in or similar program as requested by the parent for the 2012-2013 school year.

5. This decision is subject to appeal and review by the State Review Officer. Dated: February 6, 2013

____________________________

DANIEL M.AJELLO, ESQ.

Impartial Hearing Officer

DA: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 OCTOBER 24, 2012

PARENT

A Impartial Hearing Request, dated 10/11/12, 3 pages B Due Process Response, dated 10/19/12, 3 pages C IEP, dated 4/24/12, 17 pages D IEP, dated 4/8/11, 18 pages E CSE Meeting Minutes, dated 10/2/12, 2 pages

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I Order on Pendency, dated 10/25/12, 8 pages