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: May 16, 2013

June 4, 2013

Actual Record Closed Date: June 13, 2013

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/16/2013

Parents

Friend of Family — Student

No appearance by — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/04/2013

Friend of Family — Parents

Deputy Network Leader — DOE

, CFN

INTRODUCTION

On April 8, 2013, 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) and Article 89 of the Education Law of the State of New York.

On April 8, 2013 and June 4, 2013 hearing was conducted. Appended to the record are lists of persons in attendance and the documents received in evidence.

I note that Exhibit G, Independent Provider Registry for Special Education Teacher Support Services (SETSS), March 2011, is actually 63 pages, not 64 as entered into the Transcript.

BACKGROUND

This matter was instituted by the impartial hearing request dated March 25,2013. (Ex F)

Student was a fourth grade when the most recent Individualized Education Plan (IEP) was developed. Said Individualized Education Program (IEP), dated November 28, 2012, indicated student was eleven years old, classified as a child with not meeting fourth grade benchmarks, performing below grade level generally at the second grade level, recommendation was made for a program with Special Education Teacher Support Services (SETSS) five times weekly, speech-language therapy (speech) twice weekly in a group of three students for thirty minute sessions, counseling services (counseling) once weekly in a group for thirty minute sessions, and counseling services (counseling) once weekly individually for thirty minute sessions. Student instructional levels were indicated as second grade for reading and math. (Ex E 1-2, 11-12, & 16)

Parties were contacted at the end of the resolution period and hearing was scheduled to commence on May 16, 2013. DOE representative Cynthia Felix (CF) indicated on May 6, 2013 she had another appointment that day, therefore was not available, and that no one would appear from the DOE.

On May 16, 2013 DOE representative did not appear. Parent submitted her documents into evidence, as indicated herein and another date was set to continue the hearing.

Parent had notified the Impartial Hearing Office that she did not believe the Transcript of May 16, 2013 was accurate. Parent was advised at hearing of June 4, 2013 to send any inaccuracies she felt existed in writing to the case manager. The IHO reviewed the transcript of 05/16/2013 and did not find any inaccuracies. (T 34-36)

PARENT POSITION

) the student’s mother presented her position at hearing.

Student is attending class of 35 total students. (T 11)

Parent received a recommended placement, dated March 26, 2013, for PS 56 to a placement. This placement was made beyond 60 days of the IEP recommendation placement. Parent received the actual placement letter in April. (T 11-12 & 13-14, Ex B)

Parent agreed with the recommendation but did not accept the placement since it was beyond the 60 days by which placement should have been offered and the school year was almost finished. (T 13)

For the summer of 2011 parent received approval from DOE for SETSS services in the amount of three one hour sessions weekly for July through August 12, 2011. (T 14, Ex A)

Parent provided SETSS Independent Provider Registry which she attempted to utilize to obtain services for her child, but was unsuccessful. Parent marked up the document with her efforts to obtain the services indicating various reasons for the lack of success, such as awaiting a call back, or provider does not travel, or provider no longer provides such a service. (T 14-15, Ex G)

I note that though IEP was drafted on November 28, 2012, it indicates recommended services are to start on June 21, 2012. (Ex E 11 & 16)

Parent at hearing of June 4, 2013 provided previous IEP of 03/31/2011 which had indicated an Integrated Co-Teaching Class (ICT). (Ex I)

Parent was able to obtain the services of Everyone Reading and paid them for services provided for the summer of 2011, in the amount of $400.00. (T 15 & 53, Ex D)

DOE would not provide parent with SETSS authorization for the summer of 2012. Parent retained the services of for the summer of 2012 for an hour each day, for about 20 days. (T 16 & 53, Ex C)

Parent seeks reimbursement of the amounts paid for summer services and Nickerson Letter for failure to offer timely placement for the 2012-2013 school year.

(T 18-19)

Parent provided additional information services for summer of 2011. (T 54 & 61, E H)

Parent recalls an IEP meeting was to take place in June prior to the summer of 2012. Parent requested and was sent to Queens for an evaluation of her child. She has never received the evaluation results. Parent believes the IEP meeting took place without her. (T 62-63)

Parent testified that her son was not doing well in school prior to the summer of 2012. Parent had seen some improvement resulting from the previous summer services, so she obtained services again for the summer of 2012. (T 63-64 & 72)

Parent states were successful and her child’s reading and math picked, though he is still behind. (T 72)

Evaluation information may be what is contained in the 11/28/2012 IEP. (T 68)

DEPARTMENT OF EDUCATION POSITION

Deputy Network Leader, and , ( CFN, presented the DOE position.

confirmed the parent’s contention that the student had been overdue awaiting placement: “…they went over their 60 days, put my son--and it's been going on for two years. He's still in the wrong placement.” (T 38)

confirmed the parent was provided the SETSS Authorization for the summer of 2011, but not for the summer of 2012. (T 41)

was not able to present any evidence disputing the parent claim to the summer 2012 SETSS services. (T 43-44)

was able to provide some information regarding the 2012-2013 placement, which included the delayed offer . (T 44-48 & 76, Ex B)

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]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 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] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability enabling him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). The burden of proof is on the school district during an impartial hearing. (Educ. Law § 4404[1][c]).

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).

SUMMER SETSS SERVICES 2011

For the summer of 2011 parent received approval from DOE for SETSS services in the amount of three one hour sessions weekly for July through August 12, 2011. (T 14, Ex A)

Parent provided SETSS Independent Provider Registry which she attempted to utilize to obtain services for her child, but was unsuccessful. Parent marked up the document with her efforts to obtain the services indicating various reasons for the lack of success, such as awaiting a call back, or provider does not travel, or provider not longer provides such a service. (T 14-15, Ex G)

Parent was able to obtain the and paid them for services provided for the summer of 2011, in the amount of $400.00. (T 15 & 53, Ex D)

Parent seeks reimbursement of the amounts paid for the 2011 summer services. (T 18-19)

Parent provided additional information regarding services for summer of 2011.

(T 54 & 61, E H)

Parent had seen some improvement resulting from the summer services. (T 63-64 & 72)

IEP of 03/31/2011 indicates SETSS services for three hours weekly during the summer of 2011. (Ex I-2)

I find parent acted reasonably to obtain mandated services for her child and is entitled to reimbursement for the cost incurred in the amount of $400.00.

SUMMER SETSS SERVICES SUMMER 2012

DOE would not provide parent with SETSS authorization for the summer of 2012. Parent retained the services of for the summer of 2012 for an hour each day, for about 20 days. (T 16 & 53, Ex C)

Parent seeks reimbursement of the amounts paid for 2012 summer services.

(T 18-19)

Parent recalls an IEP meeting was to take place in June prior to the summer of 2012. Parent requested and was sent to Queens for an evaluation of her child. She has never received the evaluation results. Parent believes the IEP meeting took place without her. (T 62-63)

Parent testified that her son was not doing well in school prior to the summer of 2012. Parent had seen some improvement resulting from the previous summer services, so she obtained services again for the summer of 2012. (T 63-64 & 72)

Parent states that were successful and her child’s reading and math picked, though he is still behind. (T 72)

IEPs entered into evidence include IEPs dated March 31, 2011 and November 28, 2012. (Ex I & E)

No explanation is offered as to why an IEP over a year and a half ran between the two IEP dates. IEP of March 31, 2011 includes the mandate for summer SETTS services as they relate to the summer of 2011.

No justification appears that would call for discontinuing the SETSS services for the summer of 2012. The same Individualized Education Program (IEP), and data contained therein, used to determine the mandated 2011 services, was all that appeared for review prior to the summer of 2012. Student parent, noted that her child had made some progress due to the services obtained in the previous summer and felt justified to obtain similar services for the 2012 summer to aid her child’s education.

I find the parent acted appropriately. Without any IEP meeting or resultant evaluations to counter her belief the services were warranted, parent acted reasonably.

I find the parent is entitled to reimbursement for services in the amount of 1,540.00.

EVALUATIONS

Parent testified that evaluations had been completed, but that she had not received a copy. (T 62-3)

Order herein shall contain that the DOE provide parent with results of any evaluations conducted outside of the school during 2012.

NICKERSON LETTER

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)

Parent IEP meeting took place on November 28, 2012 and referred to services commencing June 12, 2012.

Parent did not receive offer of placement until April of 2013, letter dated 03/26/2013. (Ex E & B)

I note the parent hearing request is dated 03/25/2013, the day after parent hearing request, a placement letter was generated. (Ex B & F)

I find parent is entitled to a Nickerson letter for the 2012-2013 school year.

ORDER

1. The DOE shall reimburse parent for the cost of summer 2011 Everyone Reading services in the amount of $400.00.

2. The DOE shall reimburse parent for the cost of summer 2012 services in the amount of $1,540.00.

3. The DOE shall provide the parent with a copy of any evaluations conducted outside of the school during 2012.

4. DOE shall issue a Nickerson Letter (P-1 Letter) for non-public school placement for the student for the 2012-2013 school year.

5. This decision is subject to appeal and review by the State Review Officer. Dated: June 17, 2013

DANIEL AJELLO, ESQ.

Impartial Hearing Officer DA:gc

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 Special Education Teacher Support Services approval letter, summer

2011, two pages, & RSA. B Enrollment Disposition Letter dated 3/26/13, one page. C Receipt for dated 4/24/12, one page. D Receipt dated 5/8/13, one page E IEP dated 11/28/12, 17 pages. F Due Process complaint dated 3/25/13 G Independent Provider Registry for SETSS, March 2011, 63 pages. H Receipt from , Summer 2012, 1 page I IEP, dated March 2011, J Functional behavior assessment, dated 3/31/11

DEPARTMENT OF EDUCATION

NONE

HEARING OFFICER

NONE