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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 1, 2015
Actual Record Closed Date: April 7, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 1, 2015
Attorney — Student
Parents
Clinician — Student
District Representative — DOE
Witness (Via Telephone) — DOE
The parent by her attorney requested an impartial hearing on February 12, 2015. I was appointed on March 17, 2015. On March 18, 2015 I scheduled a hearing for April 1, 2015. The district was represented by.
The student is year old student ( ) who is classified as
The date of the challenged IEP is March 7, 2014. The — Student currently is in a placement at the. The — Parents requests tuition for the for the 2014 – 2015 school year and a
Nickerson Letter. (Exh. A)
The Individualized Education Program (IEP) dated March 7, 2014 recommends a New York State approved non-public school. (Exh. 3-8)
A prior hearing occurred on October 28, November 24, and December 29, 2014.
IHO issued and opinion on January 14, 2015. According to that opinion,
( ) had custody of the student in March 2014.
(Exh. II-5) On December 19, 2014 the student to the adoptive mother.
(Exh. Y)
Prior to custody, the student was admitted to on February 12, 2014. She was on March 24, 2014. Upon her she was given and had appointments with , a . An appointment would be scheduled with Dr. after the appointment. (Exh. III) The parent testified that the student had in 2014 and several in 2012 – 2013. (T 31 – 34)
In a psychoeducational evaluation report dated July 3, 2013 the student reported that she had been diagnosed with . The student stated to the evaluator that she was taking medication for and began seeing a a week and a a month. (Exh. E-1) The student’s
This score is . “The chance that her true score falls within the range is .” (Exh. E-2) In the Social History Update dated July 3, 2013, the parent stated that during the 2012 – 2013 school year, when the student was in the , she had received complaints about the student. The student is
. The
. (Exh. F-1) Teacher reports
indicate the student has had
. (Exh. F-1) In July 2013 the student was receiving a week with Ms. and was from Dr. ,a from . (Exh. E)
The parent testified the student always received special education from the time she started school. (T. 25)
In 2012 the student was a student enrolled in . (T. 25) At the end of the 2012 – 2013 school year, the student . (T. 27, Exh. E) The student at . (T. 30) The parent testified that the student was in 2014 . (T. 31) In 2014 had custody for approximately months. (T. 34, 51) The parent testified that some of the district’s recommended schools called the student and interviewed her. (T. 57) During the months that the student has been at she has not been taken to a or been involved in . The parent believes the student is making progress. (T. 58) The parent provided with hospital records and IEPs. (T. 73 - 74) On December 20 or 21, 2014 picked up the student and other family members and took them all to in
Massachusetts. (T. 84)
, an employee from testified that he
received a referral on the student on February 6, 2015. (T. 36) Mr. stated that on February 27th, there was a telephone conversation with Mom, and the district was asked to follow up with her on , March 2nd. On March 2nd the district called and left a message with Mom; no response. On March 4th there was an attempt to leave her a voicemail, and the voicemail was full. On March 5th another call to the mother, and voicemail was full. On March 9th there was a telephone conversation, but her daughter stated to call back. A call was made 20 minutes later, but there was no answer. On March
10th, there was a certified letter sent. If there was no response the referral would be closed out. On March 20th, the referral was closed, considered parent refusal, as the parent did not respond to any letters or call back. (T. 37) Mr. testified they do not interview students by Skype. (T. 42)
testified that she has a master’s degree in special education. (T.
109) She is the student's treating, primary clinician and has sessions with the student approximately or times a week. (T. 110, 117) Ms. stated that she designs the student’s . She meets with her weekly. She provides the student with . (T. 111) Ms. was aware the student was . (T. 112) Ms. testified that when the student first arrived, she made multiple . It often led to . (T. 114) Now with a plan the student would receive from the staff working with her. And the severity of it depends on if . (T. 115) The student receives group a week for and for with a . (T. 117) There have beeninstances of . Also, there was an incident where she . There's a peer that she likes, and she intervened and she required the use of at that time as well. There have been occasions she exhibits
a
. (T. 120) Ms.
didn’t remember any particular medical records that she reviewed besides record. (T. 143) Ms. testified that interviewed the student. (T. 144) reviews the student's profiles, historical documentation IEPs, any hospital information like , prior placements. (T. 147)
DISCUSSION
Tuition Reimbursement
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 (Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.
2005]).
The district failed to meet their burden of proof.
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]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252).
The student currently attends . In 2014, the student had a for days. There was a conducted at in February 2014. (Exh. III) After the student’s transferred custody to the ( ).
(Exh. II) the student to the parent on December 19, 2014. (Exh. Y)
The parent applied to before August 1, 2014, when she did not have custody of the student. (Exh. G) reviewed hospital records and other documents and interviewed the student at some time before August 1, 2014. (Exh. G) Three days after the student was to the parent, drove and picked up the student. (T. 84)
is not an appropriate placement because the student has a that is not addressed at . The student has a history of , however no records were provided to the district or submitted into evidence. In March 2014, the student was treated by a , who and received . (Exh. III) In July 2013, the student received from Ms.
from a week and had been from a
. (Exh. F)
At , the student does not received from a or or visit a . (T. 164)
is not an appropriate placement because there was no evidence or testimony submitted on how addresses the student’s academic needs. In addition to the student’s , she also has an . (Exh. E-2)
There was no testimony or evidence of the student’s class or teaching methods to address the student’s deficits.
Additionally, I find the equitable considerations do not support the parent’s claim.
The parent refused to speak with Mr. from so that an appointment for an interview could be scheduled. (T. 36 - 42) Additionally, conducted a evaluation of the student on or about February 12, 2014. (Exh. III) The parent has not presented that evaluation to the district. The student was in the . There is a , which the parent has not produced. (Exh. III) The parent submitted documents to but not to the district. (T. 147) Prior to December 19, 2014, the parent had no custody and no authority to place the child at a school.
days later, the student was relocated to , located in Massachusetts. The district did not get notice that the student’s custody had been transferred to the district till January 20, 2015. (Exh. W) The district has not been provided with adequate information to conduct a CSE and make an appropriate recommendation.
I find no basis to issue a Nickerson letter for the reasons set forth above.
Additionally, an IHO exceeds jurisdiction in directing the district to issue a Nickerson letter to the parent because neither an IHO, nor an SRO, have jurisdiction over matters related to the stipulation reached in the Jose P. class action suit. The remedy provided by the Jose P. decision was intended to address those situations in which a student had not been evaluated within 30 days or placed within 60 days of referral to the CSE (Jose P.,
553 IDELR 298; see R.E., 694 F.3d at 192, n.5; M.S., 734 F. Supp. 2d at 279; see also 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. 00-
092). 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; see, e.g., Luigino's, Inc., 423 F.3d at 141-42; Wilder v. Bernstein, 49 F.3d 69, 75 [2d Cir. 1995]; Pediatric Specialty Care, Inc. v. Arkansas Dep't of Human Serv., 364 F.3d
925, 933 [8th Cir. 2004]; M.S., 734 F. Supp. 2d at 279; E.Z.-L., 763 F. Supp. 2d at 594;
Application of a Student with a Disability, Appeal No. 12- 039 [indicating that "[n]o provision of the IDEA or the Education Law confers jurisdiction upon a state educational agency or a local educational agency to sit in review of or resolve disputes over injunctions or consent orders issued by a judicial tribunal"]), and "it has been held that violations of the Jose P. consent decree must be raised in the court that entered the order" (see P.K. v. New York City Dep't of Educ., 819 F. Supp. 2d 90, 101 n.3 [E.D.N.Y.
2011]). Consequently, neither the IHO nor SRO have the jurisdiction to resolve a dispute regarding whether the student is a member of the class in Jose P., the extent to which the district 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 (R.K. v. New York City Dep'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 sub nom. R.E., 694 F.3d at 167; W.T. v. Bd. of Educ., 716 F. Supp. 2d 270, 289-90 n.15 [S.D.N.Y. 2010]; see F.L. v. New York City Dep't of Educ., 2012 WL4891748, at *11-*12 [S.D.N.Y. Oct. 16, 2012]; M.S., 734 F.
Supp. 2d at 279 [addressing the applicability and parents' rights to enforce the Jose P.
consent order]).
The parent’s request for a Nickerson letter is denied.
The parent has failed to meet their burden.
The parent’s request for tuition for is denied.
It is hereby ORDERED that
The parent must make the student available for a evaluation, psychoeducational evaluation and any other necessary testing within 30 days from the date of this order. The parent must provide the district with the evaluation from 2014 and all records from . The district is required to conduct an IEP meeting
45 days from the date of this order.
Dated: April 9, 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 RECORD
PARENT
2 , Letter for an Interview Placement, 3/10/15
3 IEP, 3/3/15
5 Checklist, list, 2/4/14
7 Assessment 7/3/13
8 IEP, 11/13/13
DEPARTMENT OF EDUCATION
A Impartial Hearing Request 2/12/15 3 pgs
B DOE Due Process Response 2/23/15 4 pgs
C Various School Logs/occurrences 11 pgs
D Classroom Observation 6/17/13 1 pg
H Education procedures 7 pgs
I Distinguishing Features 11 pgs
J Positive Program Procedures 16 pgs
K Educational Process for ED 9 pages
L Jose P. Special Masters Report
M Jose P. Order 7 pgs
N Jose P. Stipulation 5 pgs
O and , dated
2/18/15, 10 pages
P Chart 3/25/15 7 pgs
Q Clinician Notes, 2 pages, 3/24/15
R Treatment Summary 3/25/15 3 pgs
S Classroom Schedule 1 pg
T Assessment Report 1/15/15 2 pgs
U Letters to Schools, 8 pages, dated 3/13/15
V Various Parent/Agency Contact Form 4 pgs
W Letter from January 20, 2015, Email or fax communication with CBST
4 pages. X Letter from dated March 31st, 2015, 2 pages
Y Undated Letter 1 pg
IMPARTIAL HEARING OFFICER
I Fax Cover Letter; Letter from to Ms. . Response
Form, 2-page Letter from the dated
March 9th To Whom It May Concern, 5 pages
II IHO Decision dated 1/14/15
III Discharge 3 pgs