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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth: District: 7 Hearing Requested By: Parent Date of Hearing: May 16, 2011 Hearing Officer: Daniel Ajello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 16, 2011
Attorney — Student
Interpreter — Student
(via telephone) — Student
Parents
Administrator of Education — DOE
INTRODUCTION
On March 5th, 2011, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the S t at e of New York.
On April 16 , 2011 , the impartial hearing was conducted . The hearing commenced at 12:14 p.m. Appended to the record are lists of persons in attendance and the documents received in evidence.
The NYC DOE submitted a Partial Motion to Dismiss on May 16, 2011, seeking to limit the scope of the Hearing to the 2010-2011 school year. Parent attorney agreed at hearing to limit his request to the 2010-2011 school year. (Transcript Page 11, Lines 3 through 10)
BACKGROUND
is a year old student whose most current IEP, dated 2/4/2011, classifies him with , and recommended placement in a th
School, with a deferral to CBST. The IEP reflects that he is repeating the Grade. He currently attends School . Previously, he attended the , & Industries School, from September 2010 through December 3, 2010. problems prompted his removal from the School and resulted in his current placement. (Exhibit 1, pages 1-2)
The IEP indicates average intellectual functioning (Exhibit 1 page 3) and a wide disparity in skills with and skills in the grade range and Skills at a grade range. (Exhibit 1 page 4)
The IEP reflects and development with a history of defiant and disrespectful towards adults, good peer relationships, , possession, his family with a , and, several principal’s . (Exhibit 1 page 4)
The IEP continues to reflect management needs of modification techniques to be used twenty-four hours a day, seven days a week to decrease inappropriate s. (Exhibit 1 page7)
THE DEPARTMENT OF EDUCATION’S POSITION
The DOE acknowledges the creation of the most current IEP of February 4th, 2011, (Exhibit1), developed due to parent’s request for a more restrictive twenty-four hour educational setting. (Transcript Page 129, Line 23-24) The IEP recommendation prompted the creation of the CBST Assurance Checklist (Exhibit 4) which reflects the setting recommendation and states that a Evaluation is scheduled for 2/28/2011. evaluation did not take place. Clinic where appointment was made did not perform the type of evaluation required. (Transcript Page 15 Lines 14 – 18)
The DOE contends that the CBST cannot make a site placement recommendation without completion and review of a evaluation. (Transcript page 131, Lines 2-3)
The DOE continues to support the deferral to CBST for the student and intends to complete a evaluation on May 18, 2011 and reconvene to amend the IEP based on the new evaluation and defer at that time to CBST with what would then be a complete package with which to obtain a site placement. (Transcript Page 15 Lines 14 – 25, Page 16 Line 1-2 and Page 131, Lines 13-14)
THE PARENT’S POSITION
Parent seeks implementation of IEP created 2/4/11. (Exhibit 1) The failure of the CBST to make site placement prompted Parent to seek a Nickerson Letter for remainder the 2010-2011 school year. (Transcript Page 130, Lines 8-11) Additionally, parent has provided Evaluation as Exhibit S.
Two witnesses appeared on behalf of the parent. The first, Dr. , is a board certified analyst and clinician at the Center ( ), a private school for children and adults severe disorders. His testimony documented his opinion confirming the need for placement for the student, and his opinion that the could meet the needs of the student. (Transcript pages 26 through 79).
The second witness, , is the mother of the student. Her testimony confirmed difficulties the student has had such as classes, showing towards his teachers, use and towards his family. (Transcript page 86)
The witness confirmed her agreement with the placement contained in the IEP of 2/4/2011. (Transcript Page 91 Line 24)
FINDING FACTS AND DECISION
The Parent seeks resolution of the alleged failure of the DOE to provide Placement for the 2010-2011 school year, and proposes resolution by the issuance of a P-[1] Nickerson Letter. A Nickerson letter is a letter from the Department of Education (DOE) to a parent authorizing parental placement of the child, at no cost to the parent, in an appropriate education program in any state-approved private school. (See Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298) This remedy addresses the circumstance whereby a child has not been evaluated or placed in a timely manner. (See SRO Nos. 06-088, 02-075 & 00-092) Additionally, this remedy is also available when a student has completed all necessary evaluations but a final notice of recommendation is not sent or given to the parent by the student's eligibility date. Again, the parent must be provided a Nickerson Letter entitling the student to be placed in an appropriate non-public school at public expense. (Jose P., et al. v. Thomas Sobol, et al., 1995 WL 591304 (EDNY) - Stipulation)
There is no dispute regarding the current IEP dated 2/4/11 and the current recommendation. The only issue raised by the DOE regarding issuance of a Nickerson Pof an acceptable Evaluation. No correspondence or evidence was disclosed to indicate efforts made to correct this situation (assuming it needed to be corrected at all) except for attempting to resolve setting up an appointment for a Evaluation while at the Impartial Hearing, for two days later. (Transcript Page 120 Lines 19-25)
At any time the DOE wished to obtain additional information to facilitate the placement process, it could have called for another meeting or contacted the parent. As of the date of hearing DOE has not made any placement recommendation.
There is no indication that parent acted in any way to frustrate the DOE or the CBST process and continues to attempt to accommodate the DOE request for another Evaluation and a reconvene. Therefore, there are no equitable considerations that would prevent the parent from the requested relief.
I conclude that the Department of Education did not meet its burden of demonstrating that it placed the child in an appropriate program in a timely manner. Therefore, I order the Department of Education to issue a Nickerson (P-1) letter to the parent for placement in a non-public school for the remainder of the 2010-2011 school year.
ORDER
The issuance of a Nickerson (P-1) Letter for a non-public school placement is so ordered. The Department of Education will provide the parents with the Nickerson P-1 letter immediately upon receipt of this Order and no later than June 14th, 2011. Dated: June 6, 2011
______________________
DANIEL AJELLO, ESQ.
Impartial Hearing Officer
DA:jj
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
PARENT
A Hearing Request, 4/4/2011, 3pp B Mother’s Financial Information, 4/23/2011, 4pp C Attendance Records, 2010-2011, 2pp, D 2009-2010 School Year Cards, 2009-2010, 3pp E None F None G Student Transcript, 1/4/2011, 1p H Teacher Report, 1/5/2011, 1p I Transition Interview, 1/7/2011, 1p J Observation, 2/3/2011, 1p K Acceptance Letter, 4/1/2011, 1p L 2009-2010 Tuition Information, 9/2010, 2p M al Education Procedure, Undated, 7pp N Distinguishing Features, Undated, 11pp O Positive Programming, 5/2002, 16pp P Educational Progress Students, 1/28/2010, 9pp Q Jose P. vs. Emba Decision, 1/5/1982, 12pp R Jose P. vs. Emba, Order, 7/8/1982, 5pp S Evaluation, 4/19/2011, 5pp
DEPARTMENT OF EDUCATION
1. IEP, 2/4/2010, 17pp
2. educational Report, 12/17/2010, 6pp
3. Social History, 12/17/2010, 5pp
4. CBST Checklist, 2/4/2011, 1p
5. Adjustment Services Agreement, 12/15/2010, 1p
6. Student Intervention Log Report, 1/6/2009 – 4/7/2011, 2pp
7. Report Card and Record, 5/6/2011, 2pp
8. Social Worker Observation, 2/3/2011, 5pp
9. Attendance, 9/8/2010 – 5/5/2011, 1p
10. Admission and Discharge History, 5/6/2011, 1p
Footnotes
[1] Letter is that claim that the CBST could not make placement without a Evaluation. The only evidence offered to refute the Evaluation provided by the Parent was that, according to Ms. , it was “…somewhat unprofessional…”. (Transcript Page 16, Line 22) DOE does not offer any explanation as to how it could make a recommendation of placement complete the IEP (Exhibit 1) and the CBST Assurance Checklist (Exhibit 4) without any disclosure or warning to the parent that each seemed conditional upon receipt