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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: February 4, 2013
March 6, 2013
Actual Record Closed Date: March 15, 2013
Hearing Officer: Daniel Ajello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 4, 2013
For the Student:
, PARENT
For the Department of Education:
DR. , CSE REPRESENTATIVE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 6, 2013
For the Student:
, PARENT
For the Department of Education:
DR. , CSE REPRESENTATIVE
, UNIT COORDINATOR (Via Telephone)
INTRODUCTION
On December 27, 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)(1).
On February 04, 2013 and March 06, 2013, a hearing was conducted.
Appended to the record is a list of persons in attendance and the documents received in evidence.
The student is presently a male whose last Individualized Education Program (IEP) of record, dated June 15, 2011, classified him with a , recommended a special class with a ratio of and related service of once weekly for a 30 minute individual session. (E-1)
Student is in . (T 9)
Parent has filed a hearing request, dated December 17, 2012, alleging the Department of Education (DOE) failed her child, did not seeking a school that best fits her child’s needs for a better education. (Ex A)
THE PARENT’S POSITION
Parent is unhappy with the child's current placement. An IEP meeting was held in September of 2012. Mother did not agree to the IEP, feels her child is not progressing well and requires additional services. Parent feels the student might be appropriate for a non-public school setting and has been exploring some of those options. (T 7)
( ) described how she views her son’s current educational difficulties.
“My son is an , and I'm seeking for another school, because he's about to graduate, and we spoke to Miss at the school and Miss (phonetic), and she agreed that the best thing or would be a setting, and they gave me information on how to go about going. I have to first go to an impartial hearing, and then seek the school that will be fitted for him, a setting, and that's why I'm here today.” (T 33)
Staff at the current school has been assisting her in seeking out and visiting schools for her son. (T 33)
Student has spent the day at one school and has an interview at another school. (T 33)
OD confirmed that the school has helped facilitate some of the process by sending out some applications for her, parent has gone to look at some of the state-approved schools and she believes she would be able to implement the placement with a Nickerson
Letter. (T 33)
Parent did attend a meeting in September of 2012, but has not received a copy of the IEP. (T 34)
She believes a recommendation for a was made and the school is trying to meet his needs. (T 34)
While she is happy with the help of the staff at the school, she does not feel the placement is appropriate for her son. (T 35)
DEPARTMENT OF EDUCATION POSITION
Dr. appeared for the DOE.
Having appeared at the hearing on February 04, 2013 without prior notice of the case he accepted documentation from the parent regarding the student so that he could review the case and see if there is any action he can take to resolve this matter. Parties agreed to adjourn the hearing and would communicate to set another date. (T 8)
DOE WITNESS ALEXANDRA MAUS
( ) reviewed her educational and professional background and testified as support services coordinator of the student’s current placement, the School. (T 1617)
“I coordinate the IEPs, the referral process for all student with special education services in grades K through 8, I work with the Committees on Special Education (CSE)
to arrange all of the IEP meetings. I also support the special education teacher here in their planning.” (T 17)
is acquainted with the student, his services and his learning needs. (T 17)
believes an IEP meeting was conducted September 14, 2012 and a more recent IEP has been developed for the student. reports that this IEP also recommended a general education class with Special Education Teacher Support Services (SETSS). (T 18 & 23-24)
AM described the student: “…primary deficits are in his decoding abilities for reading. When he came at the start of the school year, he was at a Level F, which is a reading level. He has made improvements in his reading that he's demonstrating in his small groups SETSS support, which he receives with Mr. Nickerson, our special education teacher. He is now reading with support at a , however, even though he's demonstrating that growth in a small group with individualized support, it is not carrying over into the general education classroom for him, so we are seeing growth in his decoding abilities, but because he was so far behind, he is still significantly far behind within the general education class.” (T 19)
The student does not have a specific deficit in math. Student . (T 20)
Student class has approximately twenty students. (T 20)
Student does better in small group instruction. (T 21)
A large class setting is not meeting the student’s academic needs. (T 21)
The current placement has Special Education Teacher Support Services (SETSS) but does not have self contained classes. (T 21)
Currently “The SETSS support that he's getting is meeting his needs in that small setting, but it’s not--his general education class is not meeting his needs.” (T 21)
Student would benefit from a smaller full class, full time. (T 22)
Student is presently in a general education class with SETSS support..
SETSS support is four times weekly pull out and two times weekly push in. (T 22 -23)
describes the current placement recommendation made at the September 14, 2012 IEP meeting: “We felt that it was appropriate, given that we had previously recommended a class setting, and Miss wasn't comfortable with that recommendation, so given our current abilities as a , we felt that this was the maximum support we could give him, so yeah, we did think that it would be the best support we could give him within our school, however, we had previously recommended the , because we felt that that would be a better support for him.” (T 25)
confirmed the impression she gave through her testimony that though she felt the current recommendation was not appropriate, it was the maximum level of support her school could offer. (T 25)
confirmed that the current placement is not meeting the academic needs of the student and has not met his needs since September. (T 28)
‘In the large general education setting where there are students who are so far ahead of him, he gets very defensive and isn't as open to support from teachers in that setting…while I feel that our SETSS support has been good for him and has supported him educationally, when he's back in the general education classroom, which is the majority of his school day, he isn't getting that support…he seems that down because he is in the grade level in that gen ed setting.” (T 30-31)
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 free and 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 (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]).
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]; 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]).
Parent attorney references a to the parent impartial hearing request, namely 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 non-public 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 non-public school at public expense. (Jose P., et al. v. Thomas Sobol, et al., 1995 WL 591304 (EDNY) - Stipulation)
In the instant case the DOE has not presented any current IEP. DOE witness agrees with the parent that the student is not appropriately placed and has not been appropriately placed since September.
Most recent IEP was drafted while the student was in , 06/15/2011. (Ex E)
I find that the DOE failed to make an offer of placement and has failed to provide an appropriate placement for the student. No document or testimony has been provided offering and defending an actual placement for the student for the current 2012-2013 school year.
The DOE failed to meet its burden of offering an appropriate placement for the student for the 2012-21013 school year.
I find equitable considerations support the parent’s claim. Parent has been appearing at any requested meetings and communicates with the current school to advocate for her son.
The DOE did not show any effort in offering placement to the student or including the parent in the placement process. Additionally, as a timely offer of placement was not made, the parent is entitled to a Nickerson (P-1) letter to utilize in placing the student at an appropriate program.
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. DOE shall immediately issue a Nickerson Letter (P-1 Letter) for nonpublic school placement for the 2012-2013 school year.
3. This decision is subject to appeal and review by the State Review Officer. Dated: March 21, 2013
___________________________
DANIEL AJELLO, ESQ.
Impartial Hearing Officer DA;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 Parent's hearing request, dated 12/17/12, 2 pages B Letter from DOE to Ms , dated 11/17/12, 1 page C evaluation, date of testing 11/1/11, 18 pages D educational evaluation, date of Exam 4/7/10, 5 pages E IEP, dated 6/5/11, 12 pages
DEPARTMENT OF EDUCATION
None
Footnotes
[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. 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