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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: April 12, 2013
May 21, 2013
June 4, 2013
June 13, 2013
Actual Record Closed Date: June 28, 2013
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 12, 2013
Parent Advocate — Student
Attorney — Student
Parents
CSE Rep — DOE
Social Worker, — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 21, 2013
ESQ., Attorney — Student
Parents
CSE Chairperson's Designee — DOE
School Psychologist (Via Telephone) — DOE
CBST Educational Administrator (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 4, 2013
Attorney — Student
Parents
Clinician (Via Telephone) — Student
Caseworker Supervisor — Student
, CSE REP
, Coordinator, School (Via Telephone) , School Psychologist (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 13, 2013
Attorney — Student
Parents
Chairperson Designee CSE Region — DOE
By recusal of numerous other Impartial Hearing Officers (IHO), the matter of . came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1) on May 8, 2013. Appended to the record are the names of the persons who appeared.
The Complaint in this matter is dated March 8, 2013. This Complaint alleges that the District denied the Student a free appropriate public education (FAPE) through its Committee on Special Education (CSE) review dated December 21, 2012, which recommended a 12 month program for the Student. Placement was indicated for a New York State approved non-public residential school. The Complaint alleges that the District failed to provide the Student with placement to implement the Individualized Education Program (IEP), and seeks relief of placement at Judge Rotenberg Center.
A prehearing conference was held on May 13, 2013. (IHO Exh. 1) Hearing dates were held on May 21, 2013, May 30, 2013, June 4, 2013, and June 13, 2013.
On June 13, 2013, the parties moved to extend the decisional timelines. The reason given was the need for the IHO to review the transcript and render a decision. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. The new decision date was July 15, 2013. There was no showing here of any impact on the child’s educational interest or well-being in connection to this application or order. There was also no showing of any financial or other consequences to the parties. There was no showing of any prejudice to the District. (IHO Exh. 2)
FINDINGS OF FACT
The Student is old who is eligible for services as a Student (Exh. A)
The Student’s intellectual abilities are in the except . (Exh. A) The Student has in school. He has difficulty with therapy. He . When he is , he is more apt to act . He does not understand about his feelings. He can work well with peers individually or in small groups, but will
He is a . (Exh. D) He with his brother, . He requires a small, structured environment with clearly stated rules and expectations, and needs to understand . He needs a consistent reinforcement schedule in the classroom and in the dorm, and benefits from low levels of conversation with staff .
The Student was in a residential placement for the 2011-2012 school year at , and there was significant progress made at this program. (114) There was no paraprofessional during this school year. (290)
The Student began the 2012-2013 school year in the day , where his behavior deteriorated. (114) He had a on the bus. (272) He was the program. (272)
The IEP meeting of December 21, 2012 recommended a “deferral to CBST” for consideration for placement in a residential program with related services of speech and language therapy, counseling. (Exh. D) This was a draft IEP. (116) The team agreed to place the Student in a residential setting. (273)
On January 17, 2013, the parent visited . (204, 230) Going with the parent was a representative from the . (204)
On January 18, 2013, the Student was accepted at school. (Exhs. 11, 12) The parent did not want to accept this placement until she had viewed other placements. (153) The provides residential wrap-around services, and offers a family an opportunity to visit. (214)
On January 25, 2013, the Student was accepted at (Exh. F)
This school provides computerized instruction and a behavioral modification program where Students earn points or tokens. (Exh. G) Noncompliance is met by an attempt to with . (Exh. H) There is daily charting of all behaviors. (Exh. H) There is behavioral counseling, instruction in basic skills. (Exh. H)
Students live in residences. (Exh. H) The school provides behavioral contracts to students. (249) The school has licensed social workers. (255) The school could provide the Student with related services. (256) The school was able to provide the Student with a professional for 16 hours a day, all waking hours. (245)
In mid-March, there was a CSE meeting, and indicated that a bed was no longer available for the Student. (155, 172, 277) Shortly thereafter, a seat opened up at . (155)
An IEP meeting was held on April 4, 2013, wherein the Student was recommended for a paraprofessional “daily, full time.” (Exh. 8, 110) This meant during the school day only. (236, 300, 307) This was clear from the meeting. (307) This IEP “finalized” the IEP of December 12, 2012, which did not recommend a particular placement. (116) indicated that it could provide the paraprofessional during the school day. (128-129, 233, 237) They indicated that they could not provide the 1:1 crisis management professional full time, meaning during the residential portion of the day as well. (234)
The parent rejected because it did not provide the Student with a crisis paraprofessional during evenings, it wasn’t structured enough, and the program could not handle a “runner.” (280)
A psychiatric evaluation dated April 24, 2013 indicated increased problems at school with extreme mood swings and aggressive behavior toward family, children and adults. (Exh. 2)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
On the first criterion, the District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District 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. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
The parent’s main argument is that the District failed to provide the Student with an educational placement within 30 days of the CSE review dated December 21, 2012. See 8 NYCRR Sect. 200.4(e)(1). The parent also contends that a 2013-2014 “Nickerson letter” is in order here. A "Nickerson letter" is a letter from the Department of Education (DOE) to a parent authorizing the parent to immediately place the child in an appropriate special education program in any state-approved private school, at no cost to the parent. Jose P. v. Ambach, No. 79 Civ. 270 (E.D.N.Y. Jan. 5, 1982), 553 IDELR 298. The remedy of a “Nickerson letter” is intended to address the situation in which a child has not been evaluated within 30 days or placed within 60 days of referral to the CSE. 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. 00092.
The “Nickerson letter” may be enforced by a third party beneficiary of the Jose P. consent decree. See M.S. v. New York City Department of Education, 734 F. Supp.2d 271 (E.D.N.Y. 2009)(explaining the scope of relief in Jose P.) Third party beneficiaries of the Jose P. consent decree include students who were not timely evaluated or placed at a school.
Notwithstanding the parent’s argument, the record indicates that a placement was found for the Student in timely fashion. On January 18, 2013 accepted the Student. The record establishes that this school could implement the Student’s IEP of December 21, 2012. The parent contends that the Student was not formally offered the school at that time, but to this IHO, this argument raises a procedural violation only. If the parent had accepted the offer of in January, the Student could have attended the school in timely fashion. However, the parent did not accept a placement , indicating that she wanted to look at other schools. The parent continues to resist placement at , and advocates sending her child to the .
It is noted that, throughout the hearing, the parent contended that the Student requires a full time paraprofessional during waking hours. In this connection, the parent references three April 4, 2013 CSE meeting, which produced an IEP that requires a paraprofessional “full time.” As a result, the parent contends, the Student needs to be placed at the , which can provide the Student with a paraprofessional during waking hours.
However, the record makes clear that the IEP team from April 4, 2013 was adding a paraprofessional for the school day only. Moreover, there is nothing in the record to suggest that this Student requires a paraprofessional after the school day. To the contrary, the record indicates that the Student did well in a residential setting in 2011-2012 without any paraprofessional at all.
The parent also contends that the District violated Section 504 of the Rehabilitation Act.
The Rehabilitation Act of 1973 provides:
No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .
29 U.S.C. Section(s) 794(a).
To establish a violation of Section(s) 504, the parents must demonstrate that (1) the Student is disabled as defined by the Act; (2) the Student is "otherwise qualified" to participate in school activities; (3) the school or the Board receives federal financial assistance; and (4) the Student was excluded from participation in, denied the benefits of, or subject to discrimination at, the school. Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir. 1991)
The parent did not argue these points during closing, and the evidence indicates that the Student was not excluded from participation in school, denied the benefits of school, or was subject to discrimination at the school.
Accordingly, I find that the District offered the Student a FAPE by offering the Student a placement at within 30 days of the CSE meeting of December 21, 2012. The parent’s claim is hereby dismissed with prejudice. Dated: July 12, 2013
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer
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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 RECORD
PARENT
A IEP, 8/22/12, 14 pages B Impartial Hearing Request, 3/8/13, 3 pages C Final Notice of Recommendation, 4/9/13, 1 page D IEP, 12/21/12, 16 pages E DOE Response, 3/12/13, 4 pages F JRC Acceptance Letter, 1/25/13, 1 page G Behavioral Education Procedures at JRC, 7 pages H Distinguishing Features, 11 pages I May 2002 JRC Positive Programming Procedures, 16 pages J Educational Progress for Students,
9 pages K Stipulations and Orders, 12/14/81 and 1/5/82, 21 pages L Order, 7/2/82, 7 pages M Order, 7/28/88, 5 pages N Sigh-in Sheet, O Letter from Thomas Bo, 2/7/13, 1 page
DEPARTMENT OF EDUCATION
1 Complaint, 3/8/13, 4 pages 2 Evaluation, 4/24/12, 2 pages 3 Teacher report from , 2 pages 4 Incident Report, 10/11, 12 pages 5 Psychoeducational and Vocational Evaluation, 12/1/12, 12 pages 6 Social Update, 12/1/12, 2 pages 7 Parent Referral, 11/121/12, 1 page 8 IEP, 4/4/13, 19 pages 9 CSE IEP Rationale, 12/21/12, 1 page 10 Memorandum of Notice of Securement, 3/21/2013, 1 page 11 CBST Log, 3/21/13, 5 pages 12 Letter of Acceptance, 1/8/13, 1 page 13 Articles, 5 pages
IMPARTIAL HEARING OFFICER
1 Prehearing Conference Transcript, 5/13/13, 23 pp. 2 Timelines Notice, 1 page.