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FINDINGS OF FACT AND DECISION
Case Number: 162471
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: October 7, 2016
Actual Record Closed Date: October 7, 2016
Hearing Officer: Barbara Ebenstein, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 7, 2016
ESQ., Attorney — Student
ESQ., Attorney — Student
Parents
(Via Telephone) — Student
District Representative — DOE
This is New York City . On October 7, 2016, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. Section 1415(f)(3), regarding the special education of at the New York City Department of Education (DOE) Impartial Hearing Office at . , impartial hearing representative, represented the New York City Department of Education (DOE), while , Esq. and , Esq. of the , represented the Parent. A list of documents received into evidence and the witness who testified is attached to this decision.
ISSUE
The issues in this impartial hearing are whether the DOE denied a “free and appropriate public education” (FAPE) to during the 2014 – 2015, 2015 – 2016, and 2016 – 2017 school years, and if so, what constitutes an appropriate remedy.
The Parent requested the following relief:
THE PARENT’S POSITION
The Parent believes that the DOE has denied a “free appropriate public education” (FAPE) during the 2014 – 2015, 2015 – 2016, and 2016 – 2017 school years. She is requesting a new placement for him, evaluations, and compensatory educational services.
DEPARTMENT OF EDUCATION’S POSITION
The DOE conceded that it did not offer FAPE to during the three contested school years. (Tr. 19) The DOE representative did not put on a case, submit evidence, or cross-examine witnesses in this impartial hearing. (Tr. 24) She did make some objections on the record.
FINDINGS OF FACT
is a student who has
. ,
.
. (Tr. 34) has that include: “ ”( ), “
” ( ) ,
, and “ ”( ). (Ex. I, Ex. S at 3)
, and
. (Ex. S at 1)
, and . (Tr. 44, 49; Ex. BB, CC)
attended in , where he has an “individualized education program” (IEP) since . (Tr. 34) In April 2014,
and
. (Ex. A at 1) . (Tr. 35-6)
The DOE conducted a evaluation of in the spring of 2014. (Ex. HH) A established the following : , , and .
(Ex. HH at 4) His on a revealed
, ,
. (Ex. HH at 4)
The DOE “Committee on Special Education” (CSE) initially convened for on June 18, 2014. It classified ’s disability as “ ” ( ), and the appropriateness of that classification is not an issue in this impartial hearing. The June 18, 2014 IEP notes that has “
” (Ex. GG at 1-2)
has attended several DOE schools since April 2014. He attended one school from April 2014 until December 2014
. (Tr. 38) He attended a second school from January 2015. (Tr. 39) By
March 2015, . At one point,
. (Tr. 43) The Student had an
. (Tr. 44)
. Instead, his Parent briefly placed him in a charter school that he attended in May and June 2015. (Tr. 46)
In September 2015, started for . (Tr. 46) On , there was . (Tr. 47-8)
(Ex. CC, Y; Tr. 49) Afterwards, he returned to . (Tr. 50) On
January 29, 2016, the CSE placed in a class in his school and recommended a for him. (Tr. 54) Before the new program started, on
,
. (Tr. 52-4, 55)
. (Tr. 54)
.
. (Tr.
60) On or about ,
. (Tr. 61) T
. (Tr. 62)
. (Tr. 65)
Meanwhile on July 29, 2016, the DOE conducted another evaluation of , but used different instruments than previously used in 2014. (Ex.
E) This makes it difficult to assess his progress, so I will use ranges rather than specific scores. , on a .
( ), the Student scored with all other scores in the . (Ex. E at 3) His score of . His scores are as previously established on the 2014
.
The Student’s previous on a reveals
, , with all other scores in the
. (Ex. HH at 4) Two years later, on the
, his , his
, and his
. These scores establish .
CONCLUSIONS OF LAW
As the DOE has conceded that it did not offer FAPE to during the 2014 – 2015, 2015 – 2016, and 2016 – 2017 school years, the sole remaining issue before me is the determination of an appropriate remedy. Hearing officers have authority to fashion a remedy that they deem appropriate in each case to ensure that the student receives a FAPE. Sch. Comm. Of Burlington v. Dep’t of Educ. 471 U.S. 359 (1985)
(IDEA empowers courts [and hearing officers] with the broad authority to fashion appropriate relief, considering equitable factors, which will effectuate the purposes of
IDEA); Forest Grove Sch. Dist. v. T.A ., 129 S. Ct. 2484, 2494, n.11 (2009) (the remedial authority of a court under § 1415(i)(2)(C)(iii) to award reimbursement also extends to hearing officers); Letter to Riffel, 34 IDELR 292 (OSEP, 2000) (a hearing officer has authority to fashion a compensatory education award.).
In this case, the Student is as his school cannot address his needs. The Parent has
.
.
. I find this to be an emergency situation. I have fashioned a remedy that accounts for this Student’s needs recognizing the urgency of the current situation.
Placement
The Parent now requests a for is the most restrictive option on the continuum of special education placements. C.T. v. Croton-Harm on Union Free Sch. Dist., 812 F. Supp. 2d 420, 57 IDELR 37 (S.D.N.Y. 2011) is appropriate for students who cannot be educated in a day program. M .H. v. Monroe-W oodbury Cent. Sch. Dist., 296 F. App’x
126, 51 IDELR 91 (2d Cir. 2008), cert. denied, 129 S. Ct. 1584 (2009). In the matter before me, missed days of school last year due to and . This constitutes of the school year. The DOE’s own testing establishes that he is not making progress. He is not receiving educational benefit in a day placement as he is not available for instruction. Furthermore, there are issues as . I find that is educationally necessary for as a matter of fact.
I also find that is a member of the certified class in the 1979 class action suit. See Jose P. v. A mbach, 557 F. Supp. 1230 (S.D.N.Y. 1983). The certified class in Jose P. encompassed “all handicapped children between the ages of five and twenty-one living in New York City . . . who have not been evaluated within thirty days or placed within sixty days of [notification to the Department].” (Ex. O, P, Q) When the New York City DOE fails to provide a timely evaluation or a timely placement, it issues a P-1 Nickerson Letter based upon Jose P.
“A ‘Nickerson letter’ is a letter from the New York Department of Education authorizing a parent to place a student in a New York State approved non-public school at no cost to the parent (see Jose P. v. A mbach, No. 79 Civ. 270 [E.D.N.Y. Jan.
5, 1982], 553 IDELR 298). The remedy of a "Nickerson letter" is intended to address the situation in which a student has not been evaluated or placed in a timely manner.”
A pplication of a Student with a Disability, SRO Appeal No. 10-011
In the case before me, the DOE has failed to evaluate in all areas of suspected disability since April 2014 when he first entered the DOE. The only evaluations the DOE conducted were brief evaluations. Furthermore, the DOE concedes that it has not appropriate placed since April 2914 when the Student first entered the DOE public schools.
I find that the DOE has failed to comply with the IDEA and the Jose P. consent decree in the provision of a timely evaluation and timely placement. The Parent is entitled to an immediate P-1 Nickerson Letter for a for an from October 17, 2016 to June 30, 2017.
Evaluations
The DOE has agreed to conduct the evaluations the Parent requested in her complaint. (Tr. 15) The focus of the remedy I have fashioned in this case is a speedy
. It is not appropriate to conduct extensive evaluations at this time at that would only delay placement. Therefore:
1) Any evaluations required by potential schools should be conducted immediately and funded by the DOE at an enhanced rate.
2) The remaining evaluations, including the evaluation and the assessment and any others not immediately required by potential schools, shall be conducted once the Student is in his new . The DOE will fund these evaluations. Who conducts these evaluations and the cost depends upon the location of the school and the services available there and in the locale.
Compensatory Education
Compensatory education is an equitable remedy. As such, the impartial hearing officer has discretion to fashion an appropriate compensatory education award. See Reid
v. Dist. of Columbia, 401 F.3 516 (DC Cir. 2005) Compensatory education is tailored to meet the unique circumstances of the case. W enger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). A pplication of a Child with a Disability, Appeal No. 02-019
In the instant case, the Parent requested which is a reasonable compensation for missed special education instruction. There are 180 days in a school year. As is more intensive than the missed services, I am ordering to compensate for the of missed group instruction.
The Parent also requested compensatory and .
These are not reasonable compensatory services under these unique facts and circumstances. First, the Student will receive sufficient in the new school and providing more than the Student needs would not be helpful or appropriate.
Second, requiring would limit the Student’s placement options as many schools do not offer . Furthermore, there is no testimonial or documentary evidence that the Student needed . I have deliberately not ordered a or as these services are part of a school so that the new school will provide them. Lastly, I have not ordered legal fees as I do not have authority to do so.
Order
I hereby order the DOE to:
1) Immediately issue a P-1 Nickerson Letter for in any school from October 18, 2016 to June 30, 2017. A spring 2017 CSE meeting with the Student’s new teachers will determine whether he is entitled to “ ” ( ) services
.
2) Immediately fund any and all evaluations required by potential approved schools at an enhanced rate to expedite ’s application and admissions into an approved .
3) Once is attending a school, fund a and -
evaluation.
4) Fund for at ’s new school to be completed by October 18, 2017.
Dated: October 24, 2016
BARBARA EBENSTEIN, 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
DOE
None
PARENT
A Impartial hearing request, 9/6/16, 9 pages
B Prior written notice, 8/22/16, two pages
C IEP, dated 8/15/16, 17 pages
D , dated 8/10/16, 12 pages
E evaluation, dated 7/29/16, three pages
F Letter from , dated 7/29/16, one page
G Final report card for 2015/'16, two pages
H email, dated 6/16/16, two pages
I Letter from , 5/28/16, one page
J DOE assessment planning, dated 5/20/16, two pages
K Request for reevaluation, dated 5/20/ one page
L Parent letter, reevaluation request, dated 5/20/16, one page
M WITHDRAWN
N , dated 5/10/16, two pages
O Results of , 5/11/16, two pages
P letter, dated 3/10/16, five pages
Q email, dated 2/8/16, two pages
R , dated 2/5/16, one page
S evaluation, dated 1/30/16, one page
T update, dated 1/8/16, two pages
U Educational evaluation report, dated 1/8/16, four pages
V email, dated 1/5/16, three pages
W Parent letter, 11/2/15, one page
X , 11/16/15, three pages
Y , 11/2/15, one page
Z , dated 7/11/15, nine pages
AA , 7/7/15, five pages
BB , 5/6/15, three pages
CC , dated 4/29/15, one page
DD , 3/14/14, seven pages
EE IEP, New York City DOE, dated 1/29/16, 12 pages
FF DOE IEP, dated 6/16/15, nine pages
GG New York City DOE IEP, dated 6/18/14, 16 pages
HH DOE evaluation, dated 6/13/14, five pages
II , nine pages
JJ Curriculum vitae, , six pages
Footnotes
[1] Although the Parent requested in her impartial hearing complaint dated September 7, 2016, . The Parent is now requesting for him. (Tr. 64)