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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: December 19, 2012
Actual Record Closed Date: December 19, 2012
Hearing Officer: James P. Walsh, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 19,
2012
Parent — Parents
Esq. Attorney Associated with Legal Services of Attorneys for Parent — Parents
District and Department of Education Representative — DOE
Assistant Principal at — DOE
The Matter of (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York on December 19, 2012. The undersigned had been appointed by the Impartial Hearing Office of the Department of Education of the City School District of the City of New York, after the recusal of a previously-appointed Impartial Hearing Officer, to preside over this matter on December 12, 2012. The Record Close Date was December 19, 2012.
The proceeding was initiated by Legal Services NYC- by the filing of a Due Process Complaint Notice on behalf of Parent, dated November 15, 2012 and received by the New York City Department of Education’s Impartial Hearing Office on that date (Exhibit 1). Parent’s Complaint focused primarily on issues arising from Student’s suspension related to an incident at Student’s school and a resulting Manifestation Determination Review (MDR). However, Parent’s Complaint also alleged a denial of Student’s entitlement to a free, appropriate public education (FAPE) arising from District’s failure to place Student in the special education setting mandated by the provisions of his Individualized Education Program (I.E.P.) Pursuant to Commissioner’s Regulations, Student was entitled to an Expedited Hearing on the matters involving Student’s suspension and the findings of the MDR (8 NYCRR 201) and a hearing on the issues alleging a denial of FAPE (8 NYCRR 200). Customarily, there would be a bifurcation of the issues so that an Expedited Hearing could address those matters appropriate to a Part 201 hearing, followed, in due time, by a hearing on the merits of Parent’s claim of a denial of FAPE, both before the same Hearing Officer. However, such was not the case in this proceeding, as one Hearing Officer was appointed to hear the Expedited Hearing issues and the undersigned appointed to hear the non-expedited issues. Thus, after excising those issues that were appropriately before the Hearing Officer in the Expedited Hearing, this Decision shall deal with the very limited issue of whether Student was denied his right to a free, appropriate public education because of District’s failure to place Student in the special education setting mandated by the provisions of his Individualized Education Program (I.E.P.) and the relief sought by Parent because of such deprivation.
Student is presently , having been born on . During the 2011-2012 school year, Student attended the at . Pursuant to an I.E.P. developed by District’s Committee on Special Education (CSE) on October 29, 2010, Student was classified as having an and was recommended for a Special Class in a Community School with a staffing ratio of , with the Related Service of Counseling once weekly, forty minutes per session, in a group of three and once weekly, forty minutes per session, individually (Exhibit 14). On January 21, 2011, District’s C.S.E. again met and, again, classified as having an Emotional Disturbance and was recommended for a Special Class in a Community School with a staffing ratio of , with the Related Service of once weekly, forty minutes per session, in a group of three and once weekly, forty minutes per session, individually (Exhibit 14). According to Exhibit 12, District’s C.S.E. again met – although Parent denies any awareness of this meeting and claims she never saw the I.E.P. emanating from this meeting until the MDR conduced in November of 2012, and certainly disagrees with the statement contained in that portion of the I.EP. dealing with Social Development that “There are no concerns of the Parents at this time”. Regardless, the I.E.P. continued Student’s classification and recommendation that Student receive his special education program in a setting, with the Related Service of , forty minutes per session, once weekly in a group of five and once weekly, individually. The I.E.P. reflects that the Committee specifically considered General Education and Integrated Co-teaching services but deemed the not suitable to address Student’s academic needs (Exhibit 12).
In September of 2012, Student transitioned to the at the School for the 20122013 school year. As explained by District’s only witness, Assistant Principal Roman, the school had only four students whose I.E.P’s required placement in a Special Class and that it deemed it a poor use of its resources to establish a Specialized Class. Student was placed in an Integrated Co-teaching class. Witness Roman testified that she saw the need to change Student’s I.E.P. and so sent a Notice to Parent scheduling a C.S.E. meeting for October 22, 2012. However, seeing Parent in the building the day before the scheduled meeting, Assistant Principal Roman suggested to Parent that the Committee be convened immediately and that Parent attend. Parent acquiesced. The C.S.E. then proceeded to amend Student’s I.E.P., retaining Student’s classification as having an but placing Student in an Integrated Co-teaching class and reducing Student’s to once weekly in a group (Exhibit 11).
District has the obligation to bear its burden of proof that it offered to Student a free, appropriate public education (N.Y.S. Education Law§4404(1). It is clear that, when Student arrived at his school in September of 2012, he was mandated to be placed in a classroom. This District did not do. Parent has successfully established that Student was deprived of his appropriate special education program at that time.
Further, I find that District, in conducting a C.S.E. meeting to change Student’s recommended placement to an Integrated Co-teaching class, further deprived Student of his entitlement to a free, appropriate public education. It is my finding that District’s C.S.E. meeting of October 23, 2012 is a nullity and its determinations made at that meeting void. I accept Parent’s testimony that she was unaware of the purpose of the Committee meeting and unaware that it had changed Student’s program from a setting to an Integrated Co-teaching setting. Further, the C.S.E. had before it no documentation or newly-completed evaluations that would sustain the Committee’s action. Indeed, I note that the I.E.P. of January 12, 2012 (Exhibit 12) specifically rejected Student’s placement in an Integrated Co-teaching program as such “was not suitable to address [Student]’s academic needs”. I find that District’s C.S.E. rendered its recommendation without reason – except to conform Student’s program to the classes available at the High School. Its determinations were inappropriate and must be annulled. Student remained entitled to receive his special education program in a setting. To the extent that District has maintained and continues to maintain Student in a setting other than a program, it continues to violate Student’s right to a free, appropriate public education.
Parent seeks, as relief in this proceeding, an Order requiring District to issue a Nickerson Letter. As noted by the State Review Officer in Application of Blank, Appeal No 12-039, the Nickerson letter remedy authorizes a parent to immediately place the student in an appropriate special education program in a 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 30 days or placed within 60 days of referral to the CSE (id.; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 279 [E.D.N.Y. 2010]; see 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). In this proceeding, testimony has established that Student has not been provided with his special education program since his entry into the Alfred E. Smith High School in September of 2012 – a total, as of this date, of almost four months. It further appears that if nothing further transpires, Student will continue to be deprived of the special education program to which he is entitled.
In light of the fact, established at the hearing, that Student has not been receiving his special education program in a setting since arriving at the School in September of 2012, I have deemed it appropriate to issue this Decision without awaiting the receipt of the Transcript. Thus, no references to the Transcript are provided.
ORDER
Based upon the above review, it is
HEREBY ORDERED that District and the New York City Department of Education issue a Nickerson Letter or equal authorization to Parent sufficient to permit Parent to place Student in an appropriate non-public but New York State-approved educational facility at District expense; and it is
FURTHER ORDERED that such be issued to Parent immediately. Dated: January 9, 2013
________________________
JAMES P. WALSH, ESQ.
Impartial Hearing Officer.
JW;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
A. Special Education Superintendent’s Notice, Parent dated 10-18-12 (4 pages; Parents)
B. Officer’s Decision, dated Parent 11-9-[12] (4 pages; Parents)
C. Notice of Counseling Schedule, dated 10-3-12 (1 page; Parents)
D. Notice of I.E.P. Meeting, dated 10-16-12 Parent (2 pages; Parents)
E. Consent Form, dated 3-2-10 Parent District (1 page; Parents)
1. Parent’s Due Process Complaint Notice, dated 11-15-12 (3 pages; DOE)
2. Student Intervention Log Report, dated 12-12-12 (2 pages; DOE)
3. Notes by Assistant Principal, undated (1 page; DOE)
4. Special Education Plan: Part 1 (1 page; DOE)
5. Manifestation Determination Worksheet (4 pages; DOE)
6. Notice of Referral to Conduct an MDR, dated 11-7-12 (1 page; DOE)
7. MD Attendance Sheet, dated 11-7-12 (1 page; DOE)
8. Notice of Voluntary Transfer Placement, dated 11-20-12 (1 page; DOE)
9. Resolution Agreement, dated 12-11-12 (2 pages; DOE)
10. Copy of Citywide Standards (29 pages; DOE)
11. Student’s I.E.P., dated 10-23-12 (11 pages; DOE)
13. Student’s I.E.P., dated 1-21-11 (12 pages; DOE)
14. Student’s I.E.P., dated 10-29-10 (13 pages; DOE)
15. Student’s I.E.P., dated 10-29-09 (15 pages; DOE)
Footnotes
[12] 12 Student’s I.E.P., dated 1-20-12 DOE