Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 30, 2013

Actual Record Closed Date: May 1, 2013

Hearing Officer: Esther Mora, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 30, 2013

Father

Mother

Translator Parent

Cousin School Administrator of Sp. Ed. Parent

School Psychologist Department of Education

GE. Ed. Teacher Department of Education

The parent’s due process complaint requesting this hearing was received on March 21, 2013. I was appointed to hear this matter on April 18, 2013, after a recusal by at least one other hearing officer. The original compliance date was April 20, 2013. The same day of my appointment as hearing officer, I scheduled a prehearing conference for April 22, 2013. I also scheduled hearing dates for May 1 and May 14, 2013.

A prehearing conference was held on April 22, 2013. I granted the school district’s motion to adjourn the May 1st hearing date for good cause shown and April 30 was added as the first hearing date. I also issued an Interim Order, which included interim services for the student, who is not attending school. The hearing was held on April 30, 2013.

SCHOOL DISTRICT

A school psychologist and the student’s former general education classroom teacher testified on behalf of the school district. They testified regarding the student’s needs and the efforts made by the school district to find an appropriate class for the student in public school.

The latest Individualized Education Program (IEP) recommends placement in a special class. (Exh. 7) By Final Notice of Recommendation dated September 28, 2012, the school district offered to place the student in a . The parents did not consent. A second Final Notice of Recommendation dated January 4, 2013, offered to place the student in a . The parents also rejected that offer.

The school psychologist testified that the school district continued to work with the parents to find an appropriate class. They visited a . The school psychologist opined that the class is appropriate and would meet the student’s needs. However, the parents did not consent to placement in that class.

PARENTS

The parents testified on their own behalf. They contend that school district failed to provide a FAPE for the 2012-13 school year. The parents question the appropriateness of the classification but asserted that they would have considered placing the student in a class for . However, none was offered that was appropriate. The parents testified at length about the classes they visited and why they were not appropriate. The parents want to place the student in a non-public school, at school district expense.

FINDINGS

Two 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 free appropriate public education (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 Committee on Special Education (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 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]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at 2 [2d Cir. Aug. 16, 2010]; 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]).

In the instant case, I find that the record before me supports the relief requested by the parents, in part. The record reveals that the school district failed to offer a FAPE for the 2012-13 school year because although the school psychologist opined that a class was the appropriate setting for the student, the IEP recommends class and the formal offers were only classes. The latest IEP does not recommend class and no formal offer was made for a class. The parents are therefore entitled to a Nickerson letter.

As was stated in Appeal No. 12-039, a "Nickerson letter" is a remedy for a systemic denial of FAPE that was imposed by the U.S. District Court based upon a class action lawsuit, and this remedy is available to parents and students who are class members in accordance with the terms of a consent order (see R.E., 785 F. Supp. 2d at 44). 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.

The parents request that the student attend the , a non-public school. I make no ruling as to is an appropriate setting or whether the school can or will accept a Nickerson letter.

I also find that because the school year will end soon, if the student is placed in a non-public school pursuant to the Nickerson letter, he should remain there for at least one full school year, through at least the end of the 2013-14 school year, to avoid interrupting his studies before the end of the school year. I also find that because the parents may be unable to locate an appropriate non-public school for the student, the school district should continue its efforts to offer a FAPE to the student.

ORDER

1. Within one week of the date of this Order the school district is to issue to the parents a Nickerson letter so that they may attempt to place the student in an appropriate non-public school, school district expense.

2. If the student is placed in a non-public school he is to remain there through the end of the 2013-14 school year.

3. My Interim Order for the following services is to remain in effect until the student begins attending a school-based program:

a. SETSS, 5x60, b. Speech and Language Therapy, 3x30, c. Physical Therapy, 2x30, d. Occupational Therapy, 3x30, e. Counseling, 1x30,

4. The school district is to continue its efforts to offer a FAPE to the student until the student is placed either pursuant to the Nickerson letter or by agreement of the parties.

Dated: May 3, 2013

ESTHER MORA, ESQ.

Impartial Hearing Officer

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

1. Impartial Hearing Request, 3/21/13

2 Due Process Response, 3/26/13, 3 pages

3 Independent Evaluation, 1/23/12, 3 pages

4 Independent Evaluation, 7/9/12. 3 pages

5 Independent Evaluation, 3/4/13, 2 pages

6 Psychological Update, 1/20/12, 1/24/12, 4 pages

7 Individualized Education Program (IEP), 1/22/13, 24 pages

8 Final Notice of Recommendation, 4/4/13, 1 page

9 Final Notice of Recommendation, 9/28/12, 1 page

10 Functional Behavior Assessment, 9/16/11, 3 pages

11 Behavior Intervention Plan, 9/23/11, 1 page

12 Attendance Record for School Year 2012-13, 4/22/13, 1 page

13 Placement Inquiry (20, 4/24/13, 4 page