NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 6, 2014
April 1, 2014
Actual Record Closed Date: March 13, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 6, 2014
ESQ., Attorney — Student
Parents
Student
None — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 1, 2014
ESQ., Attorney — Student
Administrator, — DOE
Guidance Counselor — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parents in a due process complaint notice dated September 6, 2013. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) denied the student a free appropriate public education during the 2011/12, 2012/13 and 2012/13 school years (Exs. IHO-I).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y.
Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y.
Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See
N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
On October 10, 2013, the DOE appointed me to serve as the IHO in this matter.
See 8 NYCRR § 200.5(j)(3)(i). Hearings in this matter were thereafter held on March 6, 2014 and April 1, 2014.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the September 6, 2013 due process complaint, the student was ( ) years old and has been diagnosed with (Exs. IHO-I at 1, P-
D at 1-2, P-E at 3, P-G at 6, P-H, P-I, P-VV at 2, P-AAA at 2, P-BBB at 2). For the 2013/14 school year, the student attended the at in the (Exs.
IHO-I at 1, P-HH, P-II, P-WW, P-XX, P-YY, P-ZZ). The student's current eligibility for special education and related services as a student with a or is not in dispute in this hearing (Exs. IHO-I, P-F, P-G at 1, P-VV at 1, P-AAA at 1, P-
BBB at 1). See 34 C.F.R. § 300.8(c)(11); 8 NYCRR § 200.1(zz)(11).[3]
The student received as a result of and
. He began attending in . During the
, the student attended a class and was provided and in school (Ex. P-E at 2-3).
On a March 2, 2010 and evaluation, conducted when the student was years old and in the , it was noted that he had good attendance at school, but had “ ” The student was administered the (Ex. P-C). On these assessments, the student’s
(Ex. P-C).
On a March 16, 2010 psychoeducational evaluation, it was noted that the student “has [made] little academic progress this school year and currently exhibits . He has also exhibited concerning that have involved .” The
- were administered to assess the student’s then-current academic . The student exhibited well developed
. The student’s overall mathematical skills were significantly underdeveloped. The student’s overall abilities were considered to be within . As to the student’s social emotional performance, the school psychologist stated:
He displayed an
. [He] exhibits a the classroom setting. . . . An assessment of [the student’s] current
(Ex. P-D).
On March 23, 2010, the CSE convened to develop and IEP for the student through March 23, 2011. The CSE recommended that the student receive the majority of his instruction in a setting, supported by direct
(“ ”), provided ( ) times per week in a setting no larger than . The CSE also recommended that the student receive related services of:
/ , (2) times per week for ( ) minutes per session, and individual , ( ) times per week for ( ) minutes per session (Ex. P-G at 1-2, 13). In a final notice of recommendation (“FNR”) also dated March 23, 2010, the DOE informed the parents that the student’s recommended program would be implemented at (Ex. P-F).
For the 2012/13 school year, the student attended a classroom and received as well as and at .
During a November 14, 2012 classroom observation, the student “ ” (Ex. P-UU). On a November 27, 2012 psychoeducational evaluation, it was noted that the student “gets
. He works best
in with his teachers. For the most part, he gets along well with adults and peers with the exception of a few altercations with a couple of other male students in his classroom (Ex. P-TT at 1, 3).
As of November 2012, the student was
. On an administration of the
(Ex. P-TT at 3).
At a meeting held on November 27, 2012, the CSE convened to develop an IEP for the student through November 25, 2013. The CSE recommended that the student receive (“ ”) services for month basis.[4] The CSE also recommended that the student receive related services of ( )
/ , times per week for ( ) minutes per session (Ex.
P-VV at 1, 6-7, 9-12).
At a meeting held on March 4, 2013, the CSE convened to develop an IEP for the student through March 3, 2014. The CSE recommended that the student receive services for . The CSE also recommended that the student receive related services of: (
(Ex. P-AAA at 6-7, 9-10).
At a meeting held on January 27, 2014, the CSE convened to develop and IEP for the student through January 30, 2015. The CSE recommended that the student receive the majority of his instruction in a school on a ( month basis. The CSE also recommended that the student receive related services of: (
(Ex. P-BBB at 5, 7-8).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE waived making any opening statement, other than to state that it was conceding that it had failed to provide the student with a free appropriate public education during the 2011/12, 2012/13 and 2013/14 school years (R. 41).
B. The Parents
The DOE denied the student a free appropriate public education for the 2011/12, 2012/13 and 2013/14 school years. To remedy this prolonged denial of appropriate education and services, the student is entitled to compensatory additional services and a Nickerson Letter (Exs. IHO-I, IHO-II).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free 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 (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A ., 557 U.S. 230, 239 (2009); B oard of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176,
206-07 (1982).[5]
A 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 CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New Y ork City D ep't.
of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June
10, 2013); M.H. v. New Y ork City D ep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Paw ling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" W alczak v. Florida
Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. M amaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009).
While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; 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.
Carm el Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are 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. See 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); R.E., 694 F.3d at 190; M .H., 685 F.3d at 245; 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), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); 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).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 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." See Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."
W alczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See W alczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.
Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; W alczak, 142 F.3d at 132. Nonetheless, 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.'" See Cerra, 427 F.3d at 195 (quoting W alczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See M rs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 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); see also Newington, 546 F.3d at 114; Gagliardo v.
A rlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); W alczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patsk in v. B oard of Educ., 583 F. Supp. 2d
422, 428 (W.D.N.Y. 2008).
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 C.F.R. § 300.320(a)(1);[8] NYCRR § 200.4(d)(2)(i); Tarlow e v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New Y ork City D ep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Adequacy of Evaluations
The parents allege that the CSE failed to properly evaluate the student prior to developing its IEPs for the student for the 2011/12, 2012/13 and 2013/14 school years (Ex. IHO-I at 4).
An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of and factors, in addition to or factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).
Based on the evidence entered into the hearing record I find that the CSE had inadequate evaluative information of the student’s functional, developmental and academic needs upon which to premise its programs for the student for the 2011/12, 2012/13 and 2013/14 school years (Exs. P-G, P-VV, P-AAA). The hearing record reflects that the student has not been evaluated by the CSE in his primary area of deficit, i.e., / , since 2010 (Exs. P-B, P-C, P-D, P-TT). The CSE will, therefore, be ordered to perform an updated psychoeducational evaluation, a / evaluation, a social history, a classroom observation, a , a and such measures necessary to determine whether the student is limited consistent with State regulations.[6] The CSE shall be ordered to reconvene within ( ) days of completing said evaluations and develop an appropriate IEP for the student.
C. Compensatory Additional Services
Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. See Somoza v. New Y ork City D ep't of Educ., 538 F.3d 106, 109 (2d Cir. 2008); M rs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); Student X v . New Y ork City D ep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); B oard of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); A pplication of a Child with a Disability , Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M .C. v.
Central Reg’l Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem”). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Id. at
526.
The DOE has conceded that it failed to provide the student with a FAPE for the 2011/12, 2012/13 and 2013/14 school years (R. 41). The evidence entered into the hearing record also reflects that the CSE failed to provide the student with personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. On a November 2012 administration of the , the student performed (Ex. P-TT at 3). During the 2011/12 school year, the student’s , he performed
(Ex. P-J). During the 2012/13 school year, the student’s , the student was
(Exs. P-N, P-T, P-U). During the 2013/14 school year, the student’s , the student was
(Ex. P-ZZ).
1.
Given the student’s failure to make meaningful progress over a period of ( )
years (Exs. P-J, P-N, P-T, P-U, P-ZZ), and
(Ex. P-P), the DOE will be ordered to authorize the student’s receipt of . By my calculation, this figure represents of the this student was due during the 2011/12 through 2013/14 school years (Exs. P-G, P-VV, P-AA).[7]
2. /
The student’s classification as a student with a or is not in dispute (Exs. IHO-I, P-F, P-G at 1, P-VV at 1, P-AAA at 1, P-BBB at 1). It does not appear, however, that the student’s / needs have been assessed since March of 2010. At that time, the student’s all measured as being
(Ex. P-C). The hearing record reflects that for each of the disputed school years, the student was entitled to receive / ( times per week for ( ) minutes per session (Exs. P-G at 13, P-VV at 6, P-AAA at 6). If multiplies
( ) minutes per week of service by weeks ( school year), that yields minutes or hours of service per year. Applying a quantitative approach to this component of the remedy, the DOE will be ordered to authorize the student’s receipt of hours of compensatory / .
3.
The hearing record reflects that the student has that went unaddressed by the CSE prior to the 2013/14 school year (Exs. P-D, P-V, P-Y, P-Z, P-AA, P-BB, P-CC, P-DD, P-EE, P-TT). Using the March 2013 CSE’s recommendation, i.e., ( ) time per week for ( )
minutes per session (Ex. P-AAA at 6), as a benchmark, the DOE will be ordered to authorize the student’s receipt of ( ) hours of compensatory services.8
4. ESL
While the parents, in their post-hearing brief, request hours of compensatory
ESL services (Ex. IHO-II at 18-19), the September 6, 2013 due process complaint notice cannot be reasonably read to include a demand for such service (Ex. IHO-I). The parents’ request for compensatory ESL services is, therefore, beyond the scope of this hearing.
See A pplication of a Student with a Disability , Appeal No. 14-019 at 7-10 (SRO Feb. 28,
2014).[9] To hold otherwise would render meaningless the IDEA's statutory and regulatory provisions concerning due process complaint notices. See 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. §§ 300.511(d), 300.508(d)(3)(i);[8] NYCRR § 200.5(j)(1)(ii); see also B.P. v. New
Y ork City D ep't of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012) (explaining that "[t]he scope of the inquiry of the IHO . . . is limited to matters either raised in the . . .
impartial hearing request or agreed to by [the opposing party"); M.R. v. South
Orangetow n Cent. Sch. Dist., 2011 WL 6307563, at *13 (S.D.N.Y. Dec. 16, 2011); C.D.
v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *13 (S.D.N.Y. Sept. 22, 2011) (holding that a transportation issue was not properly preserved for review by the review officer because it was not raised in the party's due process complaint notice); R.B. v. Dep't of Educ. of City of New Y ork, 2011 WL 4375694, at *6 (S.D.N.Y. Sept. 16, 2011) (“By requiring parties to raise all issues at the lowest administrative level, IDEA affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.").
D. Nickerson Letter
In their post-hearing brief, the parents request, for the first time, a Nickerson letter (Ex. IHO-II at 19-20). In this regard, 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.., 694 F.3d at 192 n.5. 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. A mbach, 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 thirty (30) days or placed within sixty (60) days of referral to the CSE. See Jose P., 553 IDELR 298; see also R.E., 694 F.3d at 192 n.5; M.S. v. New Y ork City D ep't of Educ., 734 F. Supp. 2d 271, 279
(E.D.N.Y. Aug. 25, 2010).
As the September 6, 2013 due process complaint notice cannot be reasonably read to include a demand for a Nickerson letter (Ex. IHO-I), I find that this issue is beyond the scope of this hearing. See A pplication of a Student with a Disability , Appeal No. 14-019 at 7-10 (SRO Feb. 28, 2014).
Alternatively, even if the request for a Nickerson letter was properly plead in the parents’ due process complaint, I would find that I lack the jurisdiction to issue such a remedy. See A pplication of the New Y ork City Dep’t of Educ., Appeal No. 13-063 at 10-
11 n.6 (SRO Oct. 17, 2014). Jurisdiction over class action suits and consent orders (and by extension, stipulations containing injunctive relief) issued by the lower federal courts rests with the district courts and circuit courts of appeals. See 28 U.S.C. § 1292(a)(1); Fed. R. Civ. P. 65; Weight W atchers Intern., Inc. v. Luigino's, Inc., 423 F.3d 137, 141-42 (2d Cir. 2005); W ilder v. Bernstein, 49 F.3d 69 (2d Cir. 1995); Pediatric Specialty Care, Inc. v. A rkansas Dep't of Human Serv., 364 F.3d 925, 933 (8th Cir. 2004); M.S., 734 F.
Supp. 2d at 279; E.Z.-L. v. New Y ork City D ep't of Educ., 763 F. Supp. 2d 584, 594
(S.D.N.Y. 2011), aff'd, R.E., 694 F.3d 167, and "it has been held that violations of the Jose P. consent decree must be raised in the court that entered the order," see F.L. v. New
Y ork City D ep't of Educ., 2012 WL 4891748, at *11 (S.D.N.Y.), aff'd, 553 Fed. App'x 2; see also P.K. v. New Y ork City Dept. of Educ. (Region 4), 819 F. Supp. 2d 90, 101 n.[3]
(E.D.N.Y. 2011). Therefore, as an IHO, I lack the jurisdiction to resolve a dispute regarding whether the student is a member of the class in Jose P., the extent to which the DOE may be bound or may have violated the consent order issued by a district court, or the appropriate remedy for the alleged violation of the order. See R.K. v. New Y ork City D ep't of Educ., 2011 WL 1131492, *17 n.29 (E.D.N.Y. Jan. 21, 2011), adopted at 2011 WL 1131522, at *4 (Mar. 28, 2011), aff'd, R.E., 694 F.3d 167; W .T. v. B oard of Educ., 716 F. Supp. 2d 270, 289-90 n.15 (S.D.N.Y. 2010); F.L., 2012 WL 4891748, at *11-*12; M.S., 734 F. Supp. 2d at 279
(addressing the applicability and parents' rights to enforce the Jose P. consent order).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
1. The parents’ claim that the student was denied a free appropriate public education for the 2011/12, 2012/13, and 2013/14 school years is SUSTAINED; and, within thirty (30) days of the date of this Order, the CSE shall request the parents’ informed written consent to conduct the following evaluations: (a) a psychoeducational evaluation; (b) a / evaluation; (c) a social history; (d) a classroom observation; (e) a ; (f) a ; and (g) such measures necessary to determine whether the student is consistent with State regulations;
2. Within thirty (30) days of the completion of said evaluations, the CSE shall convene to develop an appropriate IEP for the student; and student’s receipt of the following compensatory additional services at public expense:
(a) hours of instruction;
(b) hours of ; and
(c) hours of services.
Dated: March 27, 2015
, 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
PARENTS
A. Letter from parent, 1/26/10, 1 pg.
B. Authorization for Evaluation, 1/27/10, 1 pg.
C. / Progress Report, 3/2/10, 3 pgs.
D. Psychoeducational Evaluation, 3/16/10, 5 pgs.
E. Social History Update, 3/22/10, 4 pgs.
F. Final Notice of Recommendation (FNR), 3/23/10, 2 pgs.
G. Individualized Education Program (IEP), 3/23/10, 13 pgs.
H. Letter from , M.D., 4/2/12, 1 pg.
I. Plan, 10/24/12, 2 pgs.
J. Parent Report, , 2012, 2 pgs.
K. Parent Report, , 2012, 2 pgs.
L. Letter from , 11/2012, 1 pg.
M. Letter from Principal of ( ), undated, 1 pg.
N. Report Card, 2012/13, 1 pg.
O. Compact, , undated, 7 pgs.
P. Parent/Guardian Question/Concern, 4/3/13, 2 pgs.
Q. Parent/Guardian Question/Concern, 4/3/13, 1 pg.
R. Parent/Guardian Question/Concern, 4/4/13, 1 pg.
S. Request for Records, 6/5/13, 1 pg.
T. Report Card, 11/9/12, 1 pg.
U. Report Card, 6/18/13, 1 pg.
V. Parent/Guardian Question/Concern, 2/22/13, 1 pg.
W. [Reserved]
X. [Reserved]
Y. Parent/Guardian Question/Concern, 12/14/12, 1 pg.
Z. Parent/Guardian Question/Concern, 1/24/13 - 1/28/13, 1 pg.
AA. Parent/Guardian Question/Concern, 1/29/13, 2 pgs.
BB. Parent/Guardian Question/Concern, 1/31/13, 2 pgs.
CC. Parent/Guardian Question/Concern, 2/4/13, 2 pgs.
DD. Parent/Guardian Question/Concern, 2/8/13, 1 pg.
EE. Parent/Guardian Question/Concern, 2/11/13, 2 pgs.
FF. Parent/Guardian Question/Concern, 2/12/13, 1 pg.
GG. Parent/Guardian Question/Concern, 2/13/13, 1 pg.
HH. Parent/Guardian Question/Concern, 9/10/13, 2 pgs.
II. Parent/Guardian Question/Concern, 9/10/13, 2 pgs.
JJ. Parent/Guardian Question/Concern, 4/4/13, 1 pg.
KK. Parent/Guardian Question/Concern, 4/5/13, 2 pgs.
LL. Parent/Guardian Question/Concern, 4/5/13, 1 pg.
MM. Parent/Guardian Question/Concern, 4/5/13, 2 pgs.
NN. Parent/Guardian Question/Concern, 4/5/13, 2 pgs.
OO. Account, 4/11/13 1 pg.
PP. Parent/Guardian Question/Concern, 4/18/13, 2 pgs.
QQ. Account, 3/5/13, 3 pgs.
RR. Parent/Guardian Question/Concern, 5/17/13, 2 pgs.
SS. Parent/Guardian Question/Concern, 5/17/13, 2 pgs.
TT. Psychoeducational Evaluation, 11/27/12, 3 pgs.
UU. Classroom Observation, 11/14/12, 1 pg.
VV. Individualized Education Program (IEP), 11/27/12, 13 pgs.
Parent/Guardian Question/Concern, 9/17/13, 2 pgs.
XX. Parent/Guardian Question/Concern, 10/3/13, 2 pgs.
YY. Parent/Guardian Question/Concern, 103/13, 2 pgs.
ZZ. Progress Report, 12/20/13, 2 pgs.
AAA. Individualized Education Program (IEP), 3/4/13, 13 pgs.
BBB. Individualized Education Program (IEP), 1/27/14, 10 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Due Process Complaint Notice/Impartial Hearing Request, 9/6/13, 7 pgs.
II. Petitioner’s (Parents) Closing Brief, 5/16/14, 21 pgs.
III. Confirmation of Extension, 11/25/13, 1 pg.
IV. Confirmation of Extension, 12/26/13, 1 pg.
V. Confirmation of Extension, 1/9/14, 1 pg.
VI. Confirmation of Extension, 2/26/14, 1 pg.
VII. Confirmation of Extension, 3/24/15, 1 pg.
VIII. Confirmation of Extension, 4/17/14, 1 pg.
IX. Confirmation of Extension, 5/15/14, 1 pg.
X. Confirmation of Extension, 6/23/14, 1 pg.
XI. Confirmation of Extension, 6/27/14, 1 pg.
XII. Confirmation of Extension, 8/18/14, 1 pg.
XIII. Confirmation of Extension, 9/25/14, 1 pg.
XIV. Confirmation of Extension, 10/25/14, 1 pg.
XV. Confirmation of Extension, 11/24/14, 1 pg.
XVI. Confirmation of Extension, 12/24/14, 1 pg.
XVII. Confirmation of Extension, 1/26/15, 1 pg.
XVIII. Confirmation of Extension, 2/23/15, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to allow the parties adequate time to present their available witnesses and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and that the reasons for the requested extensions were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 30-31, 43-45; Exs. IHO-III - IHO-XVIII) . See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] or means a , such as , a or a voice , that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(11) .
[4] State regulations define services as the "provision of specially designed instruction and academic instruction provided to a group of students with disabilities and non-disabled students," and require such classrooms to be "minimally" staffed with both a regular education teacher and a special education teacher . See 8 NYCRR §§ 200.6(g), (g)(2). Recently, the Second Circuit described services as a placement "somewhere in between a regular classroom and a segregated, special education classroom." See M .W . v . New Y ork City D ep't of Educ., 2013 WL 3868594, at *9-*12 (2d Cir. July 29, 2013).
[5] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[8] NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v). The burden of proof is on the school district during an impartial hearing, except
[6] See 8 NYCRR §§ 154.2(a)-(b) (defining limited and identifying various assessments used to determine such proficiency, including the ( ), the New York State for ( ), and the New York State Test ( ).
[7] For the 2011/12 school year, the CSE recommended that the student receive ( periods of per week (Ex. P-G at 1). Assuming that each period lasted ( ) minutes, the student was entitled to receive per week of . If multiplies per week by weeks ( school year), that results in or hours of per year. For the 2012/13 and 2013/14 school years, the student was recommended to receive ( ) periods of per day (Exs. P-VV at 6, P- AAA at 6). Assuming that each period lasted ( ) minutes, the student was entitled to receive per day or per week of . If multiplies per week by weeks ( school year), that results in or hours of per year. Over the ( ) year period between September 2011 and June 2014, the student was entitled to receive hours of specialized instruction ( hours of + hours of + hours of ).
[8] This component of the remedy was calculated by multiplying per week of service by weeks ( school year) which yields or hours of service per year.
[9] The IDEA provides that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in the due process complaint notice unless the other party agrees, see 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. §§ 300.508(d)(3)(i), 300.511(d); 8 NYCRR § 200.5(j)(1)(ii), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five (5) days prior to the impartial hearing, see 20 U.S.C. § 1415(c)(2)(E)(i)(II); 34 C.F.R. § 300.508(d)(3)(ii); 8 NYCRR § 200.5(i)(7)(i)(b); see also K.L. v. New Y ork City D ep't of Educ., 530 Fed. App'x 81, 87, 2013 WL 3814669 (2d Cir. July 24, 2013).
[3] Within thirty (30) days of the date of this Order, the DOE shall authorize the