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:
District:
Hearing Requested By: Parent
Date of Hearing: February 6, 2015
March 25, 2015
Actual Record Closed Date: April 2, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 6, 2015
For the Student:
Attorney
parent
For the Department of Education:
Impartial Hearing Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 25, 2015
For the Student:
Attorney (Via Telephone)
Parent (Via Telephone)
For the Department of Education:
District Representative (Via Telephone)
The parent filed an amended ten page, single spaced request for a hearing dated May 20, 2014. (Exh. M). It contains many allegation and assertions of fact. In summary, the parent made the following assertions regarding her claim:
1. The Department of Education (DOE) failed to evaluate her son.
2. The DOE failed to provide the parent with procedural safeguard notices.
3. The DOE failed to provide the child with his related services. (The parent seeks compensatory service.)
4. The DOE failed to provide parent training.
5. The DOE failed to identify the child as having a disability in the 2013-2014 school year. The DOE failed to create an Individualized Education Program (IEP) for the 2013-2014 school year. [This led to the DOE issuing a “Nickerson” letter that was not utilized by the parent as discussed below.]
6. The IEPs did not provide appropriate goals.
7. The IEP meeting for the 2013-2014 school year was improperly constituted.
8. The DOE failed to provide the child with a .
9. The child did not make progress and he is entitled to hours of [The mother wants the to be provided by the ]
The child is . At the first and only day of hearing, the DOE representative stated that the matter was being processed for settlement and therefore she was not prepared to go forward. This position is understandable but the case was rather old and the hearing officer stated that settlement discussions are not a valid reason for an adjournment as stated by the SED. In a professional manner, the DOE representative therefore went forward with the case and did the best she could under the circumstances.
It appeared that the parent’s real or substantial claim was to have the child’s placement submitted to the Community Based Support Team (CBST) for private school placement and to be given compensatory related services the child did not receive as per her IEP’s. She also sought compensatory at the based upon the child’s failure to progress and regression. (No witness was presented from the and no evaluations were completed by that organization.)
Based upon the discussion of the parties, there appeared to be indications that they were close on the issues regarding substantive matters. Knowing they had discussed settlement on prior occasions, the hearing officer, with their agreement, left the room and let them discuss the matter for about ½ an hour to see if they could reach some sort of consensus on the facts.
The DOE agreed, after the private discussions with the parent’s counsel, to stipulate to hours of for the child but did not agree to the parent’s request to use the . The DOE representative felt assured that the parent could secure the appropriate through use of a “P-3” letter from the DOE. The parent stated she was not happy with the issuance of a P-3 letter for services since she had experience with trying to employ the providers with the DOE voucher and she found it was difficult to get available providers. In addition, she believed that the was especially suited to provide services to children. The DOE representative was correct in stating there was no evidence from the that they are especially capable of providing services to an child. And, as noted above, there were no witnesses or evaluations submitted from the to lend support to that fact. The DOE representative was again confident that the services should be provided from the DOE list of eligible providers.
In addition to the compensatory services, the Parent also wanted related services, which were denied to the child up to February 2014. The parties stated that the services the child is presently receiving from February, 2014 should be the norm for any determination of the amount of compensatory related services the child should have received for the period prior to February covered by the statutory time limitations imposed by law on the parent’s request for a hearing.
It was pointed out, correctly, by the DOE representative, that the hearing officer had no authority to pre-determine that the Committee on Special Education (CSE) shall refer the child to the CBST. She initially wanted the CSE to reconvene and see if such a need existed. However, in the context of the discussion on this issue it became evident that the parent did receive a “Nickerson” letter when the DOE failed to give the child an IEP for the 2013-2014 school year. The DOE in effect admitted that the parent was entitled to this remedy. The parent stated however, based upon her understanding (because of the wording of the letter) the offer of a placement in the letter became voided by time. She could not accomplish a placement for her son mid-school year. The DOE stated that the parent’s reading was not correct and that the letter did not become automatically voided by the passage of time.
The DOE representative in the hearing recognized the child ’s request for compensatory services, as did her concession of hours (Tr. 118) but requested the hearing officer use discretion in ordering the relief to the extent that “it be reasonably calculated to provide the educational benefits that would have accrued from the services that the DOE should have supplied….” (Tr. 102) The parties also agreed that in determining the compensatory related services the IHO should use the services the child received as of February as the norm in calculating what he should have received prior to February. In particular on the record the following weekly services were recited and agreed upon:
, , and . (Tr. 108.) This would calculate in a combined form to hours per week for approximately school years or weeks or hours. ( hours of , hours of and hours of ) Compensation does not have to be on an hour for hour basis or account for every hour allegedly lost. Under this order the child will receive plus hours of compensatory instruction and related services combined) in addition to the current services he receives.
Based upon the evidence and discussions/agreements of the parties as to substantive issues, as stated above it is hereby ordered that the:
1. DOE provide the parent with written authorization for for hours (P-3 letter). The parent shall have the authority to engage a qualified to instruct children in such methods as , and be authorize to employ the up to the maximum amount of per hour. It is understood the DOE can provide the mother with the names of available qualified who will be ready, able and willing to at the time the P-3 authorization is issued who are willing to accept a lower per hour rate.
2. The CSE shall issue a “Nickerson Letter” appropriate for the placement of the child in a private school which shall allow the parent to place the child for the 2015-2016 school year. However, the CSE shall have the discretion to refer the matter to the CBST for a possible private school placement, if it deems that course to be more appropriate,. However, if the CSE does so and the private school placement does not become a reality by the CBST in a timely manner then the child can use the Nickerson Letter for placement for the 2015-2016.
3. The CSE shall issue authorizations to the parent to secure the related services the child was denied up to February 2014 and the authority to engage providers up to the maximum rate of per hour. The combined number of hours are hours covering school years. ( hours of , hours of and hours of ) Again, if the DOE can provide other individuals who are qualified, ready and willing to provide the same services at the time the authorization is issued at a lower rate it or the parent can employ those individuals.
4. All other issues raised in the request are resolved herein with this order.
So Ordered
, 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
B Teacher Report, 1/27/13, 5 pages
C Psycho Ed. Notice, 12/10/13, 1 pg
D Psycho Ed. Eval., 12/10/13, 12 pgs
E . Eval. 12/16/13, 3 pgs
F IEP, 2/12/14, 17 pages
G CSE Effort to Place Student, 2/14/14, 2 pages
H IEP Team Efforts to Place Student, 2/14/14, 2 pages
I P-1R Letter, 3/18/14, 2 pages
J P-2 Letter, 3/18/14, 2 pages
K Email to, 3/5/14, 2 pgs
L Email Response, 3/12/14, 1 page
M Due Process Complaint, 5/20/14, 10 pgs
DEPARTMENT OF EDUCATION
1 Hearing Reschedule Notice, 12/2/14, 1 pg
2 Adjournment Request, 12/2/14, 2 pgs
3 Ms. Email, 12/4/14, 1 pg
4 Hearing Reschedule Notice, 12/23/14, 1 pg
5 Hearing Reschedule Notice #2, 12/23/14, 1 pg
6 Hearing Reschedule Notice, 2/3/15, 1 page
7 Email re: Hearing Reschedule 2/3/15, 3 pages
8 Email re: Hearing Reschedule 2/4/15, 3 pages
9 Adjournment Request, 2/4/15, 2 pages
10 Email re: Adjournment Request, 2/4/15, 2 pages
11 Email re: Hearing Reschedule, 2/5/15, 4 pages
12 Email re: Hearing Reschedule, 2/15/15, 4 pages