Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Hon. Michael Cardozo, Corporation Counsel, attorney for petitioner, Steven Goldstein, Esq., of counsel
Petitioner, Board of Education of the City School District of the City of New York (district), appeals from an impartial hearing officer's decision which, inter alia, ordered the district to place respondent's daughter at the Greenwich Village Middle School. The appeal must be sustained.
The record in the instant case is notably sparse. Respondent and her daughter reside in school district ten, but the child was enrolled in elementary school at Public School 176 (PS 176) in petitioner's school district six (Exhibit 1). When respondent's daughter was nine years old and in the fourth grade she began exhibiting difficulty in reading and writing, and on September 21, 2000 she was first referred to petitioner's Committee on Special Education (CSE) by one of her teachers and the child's mother (Exhibit 3). Standardized tests revealed that on the Wechsler Intelligence Scales for Children – III (WISC-III) the child achieved a Verbal IQ of 107 (68th percentile), a Performance IQ of 98 (45th percentile), and a Full Scale IQ of 103 (58th percentile) (Exhibit 2). An education evaluation was performed, wherein the Kaufman Test of Educational Achievement (KTEA) was administered, which revealed that the child was functioning at the second grade level in decoding, reading comprehension, spelling, writing, and problem solving (Exhibits 7, 1). The evaluation found that the child's oral language skills, including oral receptive and expressive skills, were age appropriate (Exhibit 7). On December 6, 2000 petitioner's CSE met and, based on these evaluations, developed an individualized education program (IEP) for the child for the remainder of the 2000-01 fourth grade school year which classified her as learning disabled, continued to place her in regular education classes at PS 176, and provided her with special education services consisting of one period of resource room services, five times per week (Exhibit 1). The student continued to attend PS 176 for the 2001-02 and 2002-03 school years, where she repeated fourth grade and completed fifth grade (Transcript pp. 28, 16). No new IEPs were written for either the 2001-02 or the 2002-03 school years (Transcript pp. 12, 24-25).
The child graduated from PS 176 in June 2003 (Transcript pp. 16, 26), whereupon the child's mother attempted to enroll her daughter in the Greenwich Village Middle School (Greenwich) in school district two for the 2003-04 school year, but missed the deadline (Transcript pp. 17, 36). She investigated other middle schools, but was unable to obtain a seat for her daughter (Transcript pp. 17-18). Petitioner volunteered to enroll the student in its district six middle school, IS 176 (Transcript p. 15), but respondent refused, believing the school to be unsuitable (Transcript pp. 16, 40). Petitioner did not develop an IEP or placement for the student for the 2003-04 school year (Transcript pp. 12, 24-25). In September 2003, still without a placement for her daughter, respondent hired private tutors and began home schooling her daughter (Transcript pp. 7, 19). On September 25, 2003 (Transcript p. 43), respondent requested an impartial hearing to obtain a "Nickerson Letter"1, or, in the alternative, an order directing petitioner to place her daughter at Greenwich for the 2003-04 school year (Transcript pp. 6-7).
The hearing commenced and concluded on October 8, 2003. The hearing officer rendered her decision at the end of the hearing (Transcript pp. 46-48), and reduced it to writing on November 1, 2003. In her decision the hearing officer ordered that (1) petitioner immediately issue respondent a Nickerson Letter for the 2003-04 school year, (2) petitioner place the student at Greenwich by November 10, 2003, and (3) petitioner's CSE must reevaluate the student and prepare a new IEP by December 5, 2003. Petitioner only appeals from the second order.
An impartial hearing officer's decision is final and binding upon the parties unless appealed to the State Review Officer (34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][ii]). In the instant case, the only portion of the hearing officer's decision that petitioner appeals from is the order for petitioner to place the student at Greenwich. Consequently, the part of the decision which ordered petitioner to provide respondent with a Nickerson Letter is final and binding, and I do not reach the issue of the propriety of that order (34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][ii]); Application of a Child with a Disability, Appeal No. 03-108; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-073). The Nickerson Letter allows respondent to place her daughter immediately in an appropriate special education program in a private school which has been approved by the New York State Education Department (SED) for the remainder of the 2003-04 school year; all tuition and transportation costs will be paid by the New York City Department of Education and SED (Petition, Exhibit A; IHO Decision, p. 4). Likewise, neither party appealed the hearing officer's order that required the CSE to meet by December 5, 2003 to reevaluate the student (i.e., conduct a triennial evaluation) and develop a new IEP for her; hence, that order is also final and binding upon the parties. If it has not already done so, petitioner must immediately comply with these two unappealed orders.
Concerning the conflicting part of the hearing officer's decision which ordered petitioner to place the student immediately at Greenwich, I agree with petitioner that it was improper for the hearing officer to make this determination in the instant case, if for no other reason, because there was no evidence in the record upon which to base this determination. The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][A]). A FAPE consists of special education and related services designed to meet the child's unique needs, which enables him or her to be involved in and progress in the general curriculum (34 C.F.R. § 300.1[a]; 34 C.F.R. § 300.347[a][i]). The student's program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). It is well settled that a hearing officer must ensure that there is an adequate record upon which to premise his or her decision and permit meaningful review of the issues (Application of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 03-001; Application of a Child with a Disability, Appeal No. 02-003; Application of a Child with a Disability, Appeal No. 01-087). In the instant case, the hearing officer improperly based her decision solely on a single statement by the assistant principal of PS 176 that the program at Greenwich would have been "a very good match" for the child (Transcript p. 30, see Transcript p. 47), without any description or evidence of the school's program upon which to make an independent finding concerning the appropriateness of Greenwich school's services in addressing the individual needs of respondent's daughter. Under the circumstances, I find that neither the hearing officer nor I have any basis for deciding the issue raised in this appeal; there simply is no evidentiary support in the record for the order requiring petitioner to place the child at Greenwich. Accordingly, I find that the record before me does not afford an adequate basis for granting the relief which respondent requested, i.e., an order compelling petitioner to place the child in a school in another school district (Application of a Child Suspected of Having a Disability, Appeal No. 00-061). Therefore I will annul that portion of the hearing officer's decision that directed petitioner to place the child at Greenwich.
Lastly, although the issue was not specifically raised by the pro se parent in this case, I note that petitioner's CSE failed to meet or prepare an IEP for the child for two consecutive years.2 Petitioner is reminded that the IDEA requires the CSE to review and revise a student's IEP at least annually (20 U.S.C. § 1414[d][A][i]; 34 C.F.R. § 300.343[c]; 8 NYCRR 200.4[f]; see also20 U.S.C. § 1414[d][A]; 34 C.F.R. § 300.342[a] [an IEP must be in effect for each child with a disability at the beginning of each school year]). I strongly admonish petitioner for failing to follow these regulations and remind it that compliance with these provisions is not only mandatory, but also an integral part of assuring that a FAPE is provided to each child with a disability within its jurisdiction.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the portion of the hearing officer's decision that ordered petitioner to place respondent's daughter at Greenwich Village Middle School is hereby annulled.
1 A "Nickerson Letter" is a letter from the Board of Education to a parent authorizing the parent to immediately place the child in an appropriate special education program in any state-approved private school, at no cost to the parent (see Jose P. v. Ambach, No. 79 C 270, 3 EHLR 553:298 [E.D.N.Y. January 5, 1982]). The remedy of a Nickerson Letter is intended to address the situation in which a child has not been evaluated within 30 days or placed within 60 days of referral to the CSE (id.; see Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092).
2 The only IEP petitioner developed for the child specified on its face that its duration was from December 6, 2000 to December 6, 2001 (Exhibit 1), and the district's representative admitted that no IEPs were prepared for the student for either the 2001-02 or 2002-03 school years (Transcript pp. 12, 24-25).