New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth: District: 26 Hearing Requested By: Parent Date of Hearing: June 6, 2011 Hearing Officer: Daniel M. Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 6, 2011

Attorney — Student

Parent (via telephone) — Student

Clinician (Listed but did not appear) — Student

NONE

INTRODUCTION

On April 28th, 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 Article89 of the Education Law of the State of New York.

On June 9th , 2011, an impartial hearing date was scheduled to take place, however, that date was adjourned to June 6, 2011. On June 6, 2011, the impartial hearing was scheduled to commence at 1:00 P.M. Parent and attorney were present and I awaited a DOE representative until 1:56 P.M., at which time the hearing commenced. Hearing ended at 2:30 P.M. Prior to the commencement of the hearing calls were placed to the DOE representative of record and inquiries left as to the whereabouts of the DOE representative. To this date no response has been received, from DOE, by my office, or myself. Appended to the record are lists of persons in attendance and the documents received in evidence.

BACKGROUND

- is a year old student, whose most current IEP, dated October 6, 2010, classifies him with disturbance, and recommended placement in a General Education Class with Education Teacher Support Services from a District 75 School with Paraprofessional Support and . (Exhibit P-1) The IEP indicates that the student is in his second year of the inclusion program a School and he is progressing well having acquired . credits in his first year. However, in the second semester he has only attended school for a brief time (about a week) and then was . The IEP indicates that work has been sent to him. (Exhibit P-3)

Present performance indicates he is capable of comprehending grade level reading material and in math he is at a “superior level”. The IEP does not indicate what the actual instructional levels are for Reading and Math. (Exhibit P-3) Present performance indicates the student has improved skills so that he could collaborate with other students, however, the student continues to have difficulty maintaining eye contact, responding to extended conversations, and is frequently with others. (Exhibit P-5) The IEP notes that the student has been over the past summer, noting inappropriate during his stays, defiant, oppositional, non-compliant at home, failure by the student to return home until late at night without permission, and the initiation of a crises counselor being provided by ACS following a complaint made by the student. (Exhibit P-5)

The student is in overall good physical health, does have the trait for , takes to help him control and modulate his , and presents with and disorder. (Exhibit P-7)

On or about 3/8/2011 the student was transferred from , where he had been in the ward since November 2010, into a long term program at the Children Center. (Exhibit A-2)

The CSE met on 2/10/2011 to develop an appropriate educational program, the parent participated in the meeting, and the parent requested the CSE to consider placement in a residential school so the student could be discharged from the and placed in a residential school setting. The CSE did not change the placement and instead added two hours of instruction a day to the IEP. The parent submitted a written request for re-evaluation on the day of the IEP meeting, 2/10/2011. (Exhibit Hearing Request A-2, and Parent Request for re-evaluation Exhibit B-1) An IEP dated 2/10/2011 has not been provided. Whether or not the meeting was concluded and an IEP completed, or the meeting was deferred until receipt of the re-evaluation is unclear.

THE PARENT’S POSITION

Parent hearing request sets forth that the CSE failed to offer the student a free and appropriate public education and as a result the parent demands placement at the Center ( ), a private residential program located in ,

, or in the alternative, Parent seeks a Nickerson Letter for remainder the 2010-2011 and 2011-2012 school year, as relief for alleged untimely evaluation and placement, pursuant to the orders and stipulations of Jose P. v. Ambach, 79 Civ. 290 (EHN) (E.D.N.Y. 1979). (Exhibit A-1)

DOE responded to parent re-evaluation request (Exhibit B) and performed Psychological examination entered into evidence by parent as Exhibit C. Examination conducted 3/2/11 indicates a recommendation to refer the placement to the CBST, and for the student to attend a residential therapeutic environment which can provide for coordinated educational and growth in one single setting, and provide ongoing management in order to optimize interpersonal and educational functioning. (Exhibit C-3)

Psychological report indicates the mother has requested the re-evaluation seeking a more restrictive setting, due to the students extended . (Exhibit C-1)

Parent Exhibits D, E & F, Psychiatrist letters, each recommend a residential treatment facility.

Ms. - testified that the student has been off and on since June 2010. (T 9) Ms. - continued to testify that the student is presently in a facility that is not meeting his needs. She requested a residential program so that the student can have his needs addressed and he can get on the “ road to independent living.” (T-10) Ms. - testified that no one from the DOE has contacted her since the 3/2/2011 Psychological Exam was conducted. (T11)

FINDING OF FACTS AND DECISION

The Parent's seeks resolution to the alleged failure of the DOE to provide Placement for the 2010-2011 and 2011-2012 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)

Though no IEP has been entered into evidence which would have result ed from the 2/10/2011, the Psychological Report (Exhibit C) clearly indicates the evaluation was conducted due to parent request. Parent request was made on 2/10/2011, at a CSE meeting.

The parent has testified that she has not had any contact from the CS E regarding the student since the 3/2/2011 exam by the Psychologist.

The CSE has not provided an offer of placement as a result of the 2/10/2011 CSE meeting, nor has it provided an offer of placement relative to the parent request for re-evaluation dated 2/10/2011.

DOE did not appear or submit any documents into evidence to dispute the Parent’s position. No correspondence or evidence was disclosed to indicate efforts made to offer placement to the student.

There is no indication that the parent acted in any way to frustrate the DOE or the CSE. 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.

Once the parent has provided appropriate documentation from a state approved non public school the CSE shall reconvene to reflect said placement upon the student’s IEP for the 2010-2011 and consider at that time placement options for the 2011-2012 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 30th , 2011. CSE shall reconvene to reflect on the student’s IEP, the approved nonpublic school which has accepted student for the 2010-2011 school year and consider placement options for 2011-2012 school year. DATED: June 21, 2011

_________________________

DANIEL M. AJELLO, ESQ.

Impartial Hearing Officer

DMA: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, 4/26/11, 3pp B Parent’s Request for Re-Evaluation, 2/10/11, 1p C Psychological Report, 3/2/11, 3pp, D Recommendation Letter from , 7/29/11, 1p E Evaluation, 8/4/11, 4pp F Discharge Letter from , 8/19/11, 2pp G Letter from Center, 3/28/11, 1p H Acceptance Letter, 3/17/11, 1p I Tuition Information of , Various Dates, 3pp J Educational Progress Students, 1/28/2010, 9pp K al Education Procedure, Undated, 7pp L Distinguishing Features, Undated, 11pp M Positive Programming, 5/2002, 16pp N Jose P. vs. Emba Decision, 1/5/1982, 12pp O Jose P. vs. Emba, Order, 7/8/1982, 5pp P Individualized Education Plan, 10/6/10, 14pp

DEPARTMENT OF EDUCATION

None