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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: September 20, 2013
October 23, 2013
January 7, 2014
Actual Record Closed Date: January 27, 2014
Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 20,
2013
Attorney — Student
Mother — Student
Representative — DOE
Special Education Teacher (Via Telephone) — DOE
(Did Not Testify) — DOE
Administrator (Did Not Testify) — DOE
(Did Not Testify) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 23, 2013
Attorney — Student
Attorney — Student
Rep — DOE
Administrator (Via Telephone) — DOE
Services (Via Telephone) — DOE
Coordinator (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 7, 2014
Attorney — Student
Parent/Mother — Student
(Via Telephone) — Student
Coordinator (Via Telephone) — Student
Representative (Via Telephone) — DOE
The parent of filed a request for an impartial hearing on August 1, 2013 challenging the Department of Education’s (“DOE”) recommended as an equitable remedy for the DOE’s failure to provide an appropriate placement in a timely manner. (Par. Ex. A). I was designated to hear this matter on August 1, 2013. An impartial hearing was held before me on September 20, 2013, October 23, 2013 and January 7, 2014. The compliance date was extended on four occasions due to the availability of witnesses and the extensive testimony and issues, with a final compliance date of February 10, 2013. (IHO Ex. III, IV, V, VI).
EVIDENCE AT HEARING
is a year old boy with a classification of
DOE’S POSITION
The DOE’s position is that an IHO lacks authority to order the issuance of a Nickerson Letter. (Tr. p. 254). The DOE cited Application of a Student with a Appeal No. 13-167 and Application of a Child with a , Appeal No. 13-209, as support for this position. (IHO Ex. VII). While acknowledging that the DOE failed to offer a placement until July 22, 2013, the DOE maintains that there were some unforeseen difficulties in the interview process. (Tr. p. 254). The DOE argues that should have stayed until a placement could be secured. (Tr. p. 257). The DOE further argues that the DOE should not have to fund the placement, as there is no contract in evidence past October 2013. (Tr. p. 258).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
NICKERSON LETTER
No. 10-052, p. 7; Application of a Child with a , Appeal No. 05-115.
I agree with the parent’s argument that it is the role of the IHO to determine the parent’s rights, including the right to a Nickerson Letter, without necessity for enforcement of that right in federal court. In these proceedings, the need for a prompt placement was compelling. waited in facility from December 20, 2012, until a site could be identified for him, on July 31, 2013. As more than passed from the time was recommended for placement in a New York State approved residential placement, I find that issuance of a letter is the appropriate remedy. See Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]; Application for the Review of a Determination of a Hearing Officer, Appeal No. 12-039, p. 13.
FUNDING PURSUANT TO BURLINGTON
As an alternative, however, I find that the parent is entitled to funding for her unilateral placement at , a New York State Approved residential program, under School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.
S. 359 (1985).
A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra).
In evaluating whether a school district has complied with the procedural requirements of the Individuals with Disabilities Education Act (IDEA), a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education, (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or (III) caused a deprivation of educational benefits. 20 U.S.C. Sec. 1415(f) (3) (e) (ii).
I find that the recommended program is inappropriate as it does not include a valid BIP. The BIP in evidence was not created until February 20, 2013, and was not attached to either IEP in evidence. However, even if it were attached to the July 31, 2013 IEP, I would find that it did not satisfy the regulatory requirement, as it does not include any . See 8 N.Y.C.R.R. 200.1(mmm).
in the IEP caused a deprivation of educational benefits as the IEP did not identify strategies to address ’s behaviors. See In R.E. v. New York City Department of Education, 694 F. 3d 167, 193 (2d Cir. 2012);
The IDEA requires that the school district have an IEP “in effect” at the beginning of the school year. 20 U.S.C. Sec. 1414(d)(2)(a). I find that the DOE failed to demonstrate that the either the February 5, 2013 or the July 31, 2013 IEP was in effect at the start of the 2013-2014 school year. The February 5, 2013 IEP had no implementation date. Even though was recommended for programming the July 31, 2013 IEP sets forth a date for implementation of September 9, 2013, two months after the commencement of the 2013-2014 school year.
For all of the foregoing reasons, I find that the DOE failed to prove the appropriateness of the recommended program.
APPROPRIATENESS OF PARENTAL PLACEMENT
To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128
S. Ct. 436 (2007).
EQUITABLE CONSIDERATIONS
In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007]. I find that the parent cooperated with the DOE by participating in IEP meetings, discussing her concerns and going to view the recommended site. Alternative means were offered to interview , including coming to or interviewing via skype. The record indicates that the delay in offering a placement was due in part to a clerical error by the CBST, in first seeking a day placement, rather than a residential placement; and not to any lack of cooperation by the parent.
The mother provided timely notice of her intent to place at and seek funding. She demonstrated that she is unable to pay the tuition at and seek reimbursement.
Therefore, it is hereby ordered that the DOE shall forthwith issue a Nickerson letter for the 2013-2014 school year; or shall directly fund ’s tuition at for the 2013-2014 school year. Dated: February 4, 2014
________________________
DORA LASSINGER, ESQ.
Impartial Hearing Officer DL;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 Impartial Hearing Request dated 8/1/13, 4 pages B IEP dated 2/5/13, 12 pages C Parent Referral Letter to CSE and Proof of Delivery dated 12/20/12, 2 pages D dated 12/14/81 and 1/5/82, 21 pages E dated 7/2/82, 7 pages F dated 7/28/88, 5 pages G Withdrawn H dated 9/10/13, 9 pages I 2012-2013 Report Card, 1 page J Classroom Schedule, undated, 1 page K 10 day letter with proof of delivery dated 3/22/13, 2 pp. L placement agreement dated 7/24/13, 13 pp. M letter from dated 8/6/13, 1 pp. N subpoena dated 9/12/13, 4 pp. O benefits statement, Undated, 1 pp. P fax transmittal from CBST dated 5/24/13, 21 pp. Q progress report March 2013 to June 2013, 8 pp. R memorandum from the CBST dated 3/4/13, 1 pp. S Progress Report 9/14/13, 8 pages
DEPARTMENT OF EDUCATION
1-3 Withdrawn 4 IEP dated 2/5/13, 13 pages 5 Notes from IEP Meeting dated 7/31/13, 2 pages 6 Acceptance Letter dated 7/22/13, 1 page 7 Notice of IEP Meeting dated 7/24/13 5 pages 8 dated 6/6/11-8/2/13 6 pages 9 dated 1/24/13, 2 pages 10 dated 1/18/13, 3 pages 11 dated 1/18/13, 1 page 12 dated 2/10/13, 2 pages 13 dated 2/20/13, 1 page 14 Due Process Response dated 9/13/13 3 pages 15 Assurance Checklist dated 2/20/13, 5 pages 16 Defer to dated 2/20/13, 4 pages 17 Defer dated 2/20/13, 3 pages 18 dated 1/30/13, 1 page 19 dated 1/23/13, 2 pages 20 Readmission dated 12/20/12, 36 pages 21 dated 12/21/12, 3 pages 22 dated 12/3/12, 23 pages 23 dated January 2011, 3 pages 24 dated 12 January 2011, 4 pages 25 2013 Student Attendance Record , 1 page 26 Program Description dated 6/3/13, 3 pages 27 Classroom Profile, 1 page 28 dated 2/21/13- 5/30/13, 2 pages 29 dated May 2013, 3 pages 30 Policy for dated 4/8/13, 4 pages 31 s from dated 8/16/13, 13 pages 32 from dated 4/22/13, 1 page 33 dated 4/23/13, one page 34 Intake from dated 5/31/13, 4 pages 35 Final Notice dated 7/31/13, 1 page 36 Memorandum dated 3/4/13, 1 pp.
IHO
I Prehearing Conference Summary dated 8/28/13, 1 page II Parent's 11 dated 9/12/13, 3 pages III Case Follow-Up Sheet 9/20/13, 1 page IV Case Follow-Up Sheet 10/23/13, 1 page V Case Follow-Up Sheet with Attachment, 12/15/13, 2 pages VI Case Follow-Up Sheet 1/7/14, 1 page