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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth: District: 29 Hearing Requested By: Parent Date of Hearing: August 12, 2011
August 19, 2011 Actual Record Close Date: September 12, 2011 Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 12, 2011
Attorney — Student
Mother — Student
Interpreter — Student
Social Worker/CSE-3 Representative (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 19, 2011
Attorney — Student
Mother — Student
Interpreter — Student
Clinician at (via telephone) — Student
Admissions Coordinator (via telephone) — Student
District Representative — DOE
Placement Officer CBST (via telephone) — DOE
Placement Officer District 75 (via telephone) — DOE
By Complaint dated June 23, 2011, the matter of . came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. This hearing was requested to review ’s program for 2011-2012, and to request placement at the Center for 2011-2012.
TESTIMONY AND EVIDENCE
, from the NYC DOE’s Central-Based Support Team, indicated that this child’s file was sent to her attention. (45-47) Placement in a non-public school was to be made in 30 days. (47) She sent his file to 8-10 schools. (47-48) The referral letter date was in March, 2011. (55, 60) They were in receipt of the file at CBST in mid-
July, so they were out of compliance with the timelines. (55) She is not sure why there was no Nickerson letter issued to the parent. (56)
She has heard from two schools, both of which rejected . (56-57) They do think that they could find the child a residential placement eventually. (57-58)
, who places children with disturbance in public schools, testified generally about public school placements that might available through District 75 of the Department of Education. (65-69)
, ’s parent, indicated that has had difficulty with school since grade. (74) He was in a group home after having done poorly in a District 75 program and at a program at ’s Center. (75) He went to a group home because he would start to escape from the house, he would hit her. (76) After the group home, he went to - school for the 2010-2011 school year. (77-78) He would escape from the school, associate with peer , use . (78) She contacted the District with a referral letter in March, 2011. (82)
In Spring and Summer, 2011, he was hospitalized as a result of his elopements.
(81) After the hospitalizations, he was calmer. (82)
She participated in the CSE review of June 16, 2011. (83) The meeting was quite long; a representative of the - school participated by phone. (84) They recommended sending the case to the CBST. (85) Schools have rejected him through the CBST process. (85)
She learned about Center through the computer. (87) The child first started attending the school on the day before the testimony. (92)
She has visited other schools, and they were messy, children were all over the place. (104)
, a clinician at Center, testified that about 60-65 percent of the school’s population is disturbed, about 30-35 percent and . (109) The purpose of the program is to decrease inappropriate and to increase positive by the principles of analysis. (109-111)
Students engage in very structured and highly routinized programs. (112) There are rewards, “positive punishments,” “negative punishments” which involve removal of privileges. (113)
New York State students are not allowed to have aversive interventions. (115-116)
The first week introduces the children to the program; this allows the school to observe the student and learn what motivates the student. (118) Then they put the actual program in place. (118)
contracts are the crux of the programs. (119)
The program contains IEP based with a social worker, and with the clinician. (120) They provide students with their medications. (123-124)
Academics are based on “precision teaching” which is a computer based program specific to an individual. (125-126) He is the sixth student in his classroom. (126) There can be up to two additional students in the classroom. (127) There is an teacher and TA in the classroom. (127)
Group activities are done in the classroom with the teacher. 27) There are also individual teachers on a pull-out basis in subject matter areas. (128)
The school secures the facility by preventing children from leaving without permission. (132)
There are cameras installed in every classroom or hallway. (132) There are multiple searches of a child’s belongings for and are sent through the residences. (133-134)
A treatment plan is created for each student. (135) There is a treatment team for each student. (135-136) Transitional services are available. (138, 144-146)
, admissions coordinator at Center, testified that they communicated with Hospital about . (150) The hospital supports the placement at the Center. (151)
Documents include a document from Hospital dated 8/5/11 indicating that the student is diagnosed with disorder , has a history of going AWOL, bullying, altercations, s and . (IHO Exh. 1) It indicates that he is not at risk for elopement based on questions and answers from an elopement assessment.
The minutes from the 6/11/11 CSE review indicates that he needs a more secure residential setting. (Exh. 1).
The IEP recommends a placement of “Defer to CBST.” (Exh. 2)
A report dated 6/10/11 indicates that the child misses time due to hospitalizations, is AWOL, refuses to go to school, has limited interest in forming relationships. (Exh. 5) He has made progress in seeking out staff for support. He does not perform up to his potential academically. He is a willing participant in .
A teacher’s report from - Free School District indicates that little work was done in classes. (Exh. 7)
A letter from the parent dated March 1, 2011 asks for an immediate CSE review to address placement. (Exh. D)
A letter from at recommended that the student be placed in an acute facility as a result of high risk and instability.
(Exh. E)
FINDINGS AND DECISION
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of
2007.
The parent contends that a 2011-2012 “Nickerson letter” is in order here. A "Nickerson letter" is a letter from the Department of Education (DOE) to a parent authorizing the parent to immediately place the child in an appropriate education program in any state-approved private school, at no cost to the parent. Jose P. v.
Ambach, 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 child has not been evaluated within 30 days or placed within 60 days of referral to the CSE. Application of the Bd. of Educ., Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092.
The Impartial Hearing Officer has “broad discretion” to order relief to insure that a child receives the FAPE that they are entitled to. Application of the New York City Department of Education, Appeal No. 05-113.
The testimony and evidence here indicate that this child has not received a placement from the District although the parent requested a placement back in March. As of the date of this decision, the District still has not informed me that the student has a placement. There is no dispute that this child requires a non-public residential placement.
The parent has shown that she has found such a placement in the Center, a state-approved school that employs appropriate interventions through a system of rewards and punishments designed to insure that the child does his work. The record indicates that the school provides intensive structure for the student and will not employ “aversive interventions” for this student. I agree with the parent that the facts here dictate that a “Nickerson letter should be issued here for the 2011-2012 year.
Dated: September 12, 2011
_________________________
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer
MSL: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, 6/23/11, 3 pp. B IEP, 6/16/11, 14 pp. C Letter from , 1/21/11, 1 p. D Parent Letter, 3/1/11, 1 p. E Letter from , 3/3/11, 1 p. F Letter from School District, 3/29/11, 1 p. G Updated Social History, 6/7/11, 3 pp. H Student Report Card, 6/28/11, 1 p. I Acceptance Letter, 4/8/11, 1 p. J Tuition at , Undated, 2 pp. K Education Procedures at , Undated, 7 pp. L Distinguishing Features, Undated, 11 pp. M Positive Programming Procedures, May 2002, 16 pp. N Educational Progress for 's Disturbed Students, 1/28/10, 9 pp. O Jose P Decision, 1/5/82, 12 pp. P Jose P Order, 7/8/82, 5 pp. Q Recommendation Letter from Hospital, 7/26/11, 4 pp. R Letter from SSA, 7/26/11, 4 pp. S 2009 Parent's 1040 Form, 2 pp. T Psychological Evaluation, 9/2/08, 6 pp.
DEPARTMENT OF EDUCATION
1 Minutes of CSE Review, 6/16/11, 2 pp. 2 Stricken 3 Hospital Aftercare Plan, 5/11/11, 1 p. 4 Stricken 5 Report, 6/10/11, 3 pp. 6 2010-2011 Transcript, 1 p. 7 Teacher's Report, 5/31/11, 2 pp. 8 Hospital Admission and Discharge Plan with FBA and BIP, 6/7/11, 6 pp. 9 IEP, 5/31/11, 10 pp. 10 Minutes, 7/18/11, 1 p.
IMPARTIAL HEARING OFFICER
I Psychiatric Admission Evaluation, Undated, 6 pp.