NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: October 7, 2011
Actual Record Closed Date: November 10, 2011
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 7, 2011
Attorney — Student
Parents
Clinician (Via Phone) — Student
Interpreter, — Student
District Representative — DOE
By Complaint dated August 7, 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 for 2011-2012.
TESTIMONY AND EVIDENCE
, a clinician at , indicated that the school works with individuals with and .
(25) The school uses a positive, and is approved by NYSED. (25-26)
’s history of , including , could be accommodated at the school. (30) Records indicate that have not resulted in progress. (31) The school accommodates students with , as is reported to have. (32) are available at the school with credentials in working with . (34) There is constant digital monitoring of the premises to insure that there are no drugs on site. (34) There are searches of the students. (34)
The proposed classroom would have 6 students, going up to . (36) Students are about his age, have similar diagnostic profiles and . (37) Classes would focus on writing, math, science, social studies, global studies, reading; he would be working for a . (37-38) There would also be sessions or small group sessions with a teacher. (39)
He would likely reside with eight other students, with 5-6 staff members there. (40)
A ) would be conducted, and the clinician would create a ( ). (41-42) This would include , reinforcement contracts, “self management projects.” (43)
Non compliance would be met with on the spot, , reward systems. (55-56, 6769)
could possibly witness a student being “shocked” by a General Education Development ( ) device. (58)
He would come under the care of a , who would assess and work with him to determine the best course of action for him. (59-60)
He would be exposed to a variety of methodologies including computer work. (61)
There are transition services available at the school. (65-67)
The parent testified that would not go to school over the summer. (77-78) Previously, he had school, including private schools. (79-80) He went to a private school called grade. (80) and . (80) He was not , he was . (82) He doesn’t want to go to a . (83-84)
She asked for a placement from the District, but did not hear back from them. (8384)
The student’s Individualized Education Program (IEP) reflecting the meeting dated 3/31/11 indicates that the student has , . (Exh. C) Reading scores were in the average range, while there were mild delays in math. revealing average range scores. An evaluation indicated with statements such as “ , .” He is at school and is not . The recommended program is a special class in a specialized school. A was rejected.
A letter from of dated December, 2010 indicated r during the 2010-2011 year including , e. (Exh. D) He was told .
A note and letter from , L.C.S.W.-R., of , indicated that the student has been diagnosed with . (Exh. F) The child is , has , has been . He is a “ ” who is at risk of .
A report card from indicates that but library for the second marking period of 2010-2011. (Exh. G)
A report from , M.D., of , Inc., indicated that physically and that his control him. (Exh. J) It indicates that he is treatment in a . (Exh. J)
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 special 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 “Nickerson letter” may be enforced by a third party beneficiary of the Jose P. consent decree. See M.S. v. New York City Department of Education, 734 F. Supp.2d 271 (E.D.N.Y. 2009)(explaining the scope of relief in Jose P.) Third party beneficiaries of the Jose P. consent decree include students who were not timely evaluated or placed at a school.
The testimony and evidence here indicate that this child has not received a placement from the District. Moreover, there is significant support in the record, in particular through the evidence, to the effect that the student is and has increasingly , including . The record therefore suggests it would be appropriate to place this student in a issues and can also address through . The record indicates the is such a school. The record does not indicate that the District presents any alternative educational placement to the . I agree with the parent that the facts here dictate that a “Nickerson letter” should be issued here for the 2011-2012 year.
Alternatively, 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. It is appropriate, under these facts, to order placement of the child at as a remedy to insure that the child receives a FAPE for the remainder of the 2011-2012 year. Dated: November 10, 2011
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer MS:gc
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 DESCRIPTION
A Hearing Request, 8/7/11, 3 pages B Response, 8/22/11, 3 pages C IEP, 3/31/11, 11 pages D Principal of Letter, 12/2010, 2 pages E Student's Conduct/Homework Log, 1/10/11, 1 page F Recommendation Letter, 7/26/11, 1 pg G Report Card, 2/18/11, 1 page H Attendance Record, 3/4/11, 2 pages I Report, 3/17/11, 8 pages J Recommendation, 6/14/11, 1 page K Recommendation Letter, 6/15/11, 1 page L Parent's Letter to SBST, 7/31/11, 1 page M Acceptance Letter, 7/8/11, 1 page N Educational Procedures, undated, 7 pages O Distinguishing Features, undated, 11 pages P Positive Programming Procedures, May 2002, 16 pages Q Educational Progress for 's Students, 1/28/10, 9 pages R Jose P. Versus Ambach Decision, 12 pgs S Jose P. Case Order, 7/8/82
DEPARTMENT OF EDUCATION DESCRIPTION
None