New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: September 4, 2012

Actual Record Close Date: September 11, 2012

Hearing Officer: Mary Noe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 4, 2012

Attorney — Parents

Attorney — Parents

Father — Parents

District Representative — DOE

The parent requested an impartial hearing on July 11, 2012. I was appointed on July 12. On July 17 I contacted the parent’s attorney and the hearing was scheduled for August 13. I left a voicemail for the district and was on contacted. Prior to August 13, the district requested an adjournment and it was granted. The new hearing date was September 4, 2012. On July 12 I issued a pre-hearing order (IHO Exh. 1) ordering inter alia that pursuant to New York Regulations of the Commission 2000.5(3)(xii)(f) direct testimony should be taken by affidavit. According to the case manager’s record, the parties received the order on July 17. The parent’s attorney was familiar with such an order which he received on a previous case.

The parent is represented by Anton Papakhin Esq. and the district is represented by . The student’s date of birth is October 21, 1997. The last IEP is dated April 30, 2012 and classified the student as autism. In June 2012 the student was registered at 104 but did not attend.

The parent in their complaint request that the student be immediately transferred to JRC, that the DOE failed to provide the student with FAPE for the 2012–2013 school year on substantive and procedural grounds; the parent is entitled to a P-1 or Nickerson Letter; the IEP be amended to reflect the placement at ; the DOE enter into a contract with JRC for 2012–2013 school years; in the alternative direct tuition funding at the Judge Rotenberg Educational Center; parent’s costs and fees.

The parent also makes a motion for an order directing the issuance of a Nickerson letter based on the parents’ request for special education services and not receiving a placement recommendation within sixty days of referral for evaluation or placement.

The district and parent did not follow my order of July 12 and obtain affidavits on direct testimony. Neither party called any witnesses. There was a stipulation as to the facts as stated on the record. “The student is . He was attending special education class at for the '12-13 school year. His classification was and language. The classification was changed [to] . As a result of his numerous psychiatric hospitalizations, there was a referral letter to the Committee on Special Education dated February 17th, 2012 for a change in classification and for a new program recommendation. As a result of that referral letter, dated February 17th, 2012 which is parent's Exhibit H, the Committee on Special Education held an IEP meeting on April 30th, 2012. and it's no longer in dispute. It's not in dispute in this proceeding. And they made a program recommendation for 12month New York State approved placement in a residential non-public school. The case was deferred to the Central Base Support Team to locate an appropriate non-public residential school. The IEP also indicates that the projected date of initiation of the IEP is July 1st of 2012, because that's the new school year. As of today, the parent has not received a formal placement recommendation for any New York State approved residential school. There was a potential placement located by the Central Base Support Team that the parent was invited to. However, that placement has not been finalized because the case would have to go back to the Committee on Special Education, the Committee on Special Education would have reconvene an IEP meeting and decide that that placement is appropriate and so forth. So the final stipulation that as of to date, there was no Final Notice of Placement Recommendation finalized by the Department of Education.” (T. 44 – 48)

Both parties agree with the recommended placement of residential non-public State approved school and services.

The district offered one document into evidence dated August 30, 2012. The parent objected to the document and the district conceded. Therefore the document was marked for identification. (T. 7) The parent offered exhibits A through R and the district did not object to any document.

The student’s IEP is dated April 30, 2012. The student is classified Autism and recommended for twelve month services at a NYSED Approved non-public school residential. The Edition were administered on March 5, 2012. The results are as follows: nonverbal IQ – ; verbal IQ – ; full scale IQ – . (Exh. B2) Under the category , and it indicates that the student attended school in September 2011 and October 2011, sporadically in November 2011 and only two days in December 2011. The student has refused to attend school since January 2012. The student has made no educational progress over two years. In November 2011, he was assaulted by three students outside the school with subsequent school refusal. He has been the and . The possibility of is considered in addition to : , , , , with unspecified in remission. The Evaluation dated April 4, 2012 indicates that the student has and . He is . He has not been ). He and also going outside in his neighborhood. Currently he has been stabilized on . He reports . He has had at home. There is no . (Exh. B 12) The recommendation is for Residential Day Treatment Center. (B 13)

Exhibit C 1 is a Brief Summary for the student from Dr. , School Assessment Team Psychologist at MS104M. The recommendation is for NYS Approved non-public school – residential deferred to CBST. The Summary indicates that the student cannot meet the demands of the public school environment. He requires highly structured learning situations and intensive supervision for , to with his educational progress, and maintain educational progress. (Exh. C)

According to Exhibit F Center Chart Review Print, the student was admitted to the hospital on December 14, 2011. His , disorder. The student’s is recorded as follow: 12/04 seen at failed trials of on ; 3/05 increased, ; 6/05 started on for 11/05 continued; 9/06 , discontinued, , 11/06 continue; 5/07 started, on discontinued; 10/07 started, discontinued; 11/07 restarted, discontinued; 5/08 discontinued, 7/08 , ; 10/08 for ; 11/08 discontinued; 12/08 ; 12/09 – , , ; 5/09 , restarted , continue ; 9/09 stopped; 11/09 , continued; 4/10 stoped; 6/10 , and continued, , stopped, started; 8/10 , 10/10 discontinued, cellcept, ; 11/10 stoped, , 12/10 discontinued, ; 1/11 ; 9/11 discontinued, ; 10/11 increased 12/7 discontinue , ; 12/15 increased; 12/21 . The record does not specify the date of discharge, however it states that the student is stable for discharge home to mother and father and Dr. would follow patient at outpatient clinic on January 10, 2012. The diagnosis is listed as follows: , with , Parent’s Exh. G is from Department of Child and Adolescent Psychiatry Discharge and Aftercare Plan draft 3. This document indicates a discharge date of February 17, 2012.

Parent’s Exh. H is a letter to PS 104 dated February 17 from Dr. . He states that he is the pediatrician for the student and he has an incorrect IEP. He specifies that he is misclassified as but has a history and is followed by Dr. at . He has been hospitalized at three times in the last three months. He needs immediate IEP reclassification. He is a at home. Please address this immediately.

In response to Dr. ’s letter, Dr. and Ms. wrote a letter to Dr. and Ms. , Social Worker Pediatric Emergency, . (Exh. I) The letter states that the student is not in school and because , they are referring the student to emergency for an evaluation. The school asks whether the student is “…sufficiently stable to undergo a comprehensive Evaluation at this time.”

Exhibit J is and Attendance Record dated March 15, 2012 indicating that the student was absent 63 days for the school year and present 53 days.

Exhibit K is a Evaluation dated April 4, 2012 however the evaluation is in script and not readable.

DISCUSSION

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA and State regulations require that a district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability (34 CFR 300.323[a]; 8 NYCRR 200.4[e][1][ii]; Cerra, 427 F.3d at 194; Tarlowe, 2008 WL 2736027, at *6). The IDEA and State regulations also provide parents with the opportunity to offer input in the development of a student's IEP, but they do not permit parents to direct through veto a district's efforts to implement each student's IEP (see T.Y. v. New York City Dep't of Educ., 584 F.3d at 420 [2d Cir. 2009], cert. denied, 130 S. Ct. 3277 [2010]). Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320).

In order to implement a student's IEP, however, the assignment of a particular school is an administrative decision, provided it is made in conformance with the CSE's educational placement recommendation (see K.L.A. v. Windham Southeast Supervisory Union, 2010 WL 1193082, at *2 [2d Cir. Mar. 30, 2010]; T.Y., 584 F.3d at 419-20; White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 [5th Cir. 2003]; see Veazey v. Ascension Parish Sch. Bd., 2005 WL 19496 [5th Cir. Jan. 5, 2005]; A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 [4th Cir. 2004]; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 [2d Cir. 1980]; Tarlowe, 2008 WL 2736027, at *6; Appeal No. 09-082; Application of a Student with a Disability, Appeal No. 09-074; Application of a Student with a Disability, Appeal No. 09-063). Nothing in the IDEA, State law, or the regulations implementing these statutes, however, requires a district to formally provide parents with a notice of placement recommendation in a specified format in order to either offer the student a FAPE or in order to implement the student's IEP. Appeal No. 09-082; Application of a Student with a Disability, Appeal No. 09-074; Application of a Student with a Disability, Appeal No. 09-063). In New York State, the school year is defined as the "period commencing on the first day of July in each year and ending on the thirtieth day of June next following" (Educ. Law § 2[15]).

With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way and thereby precludes the student from the opportunity to receive educational benefits (A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; see Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341 at 349 [5th Cir. 2000]). In addition, a delay in implementing an otherwise appropriate IEP may form a basis for finding a denial of a FAPE only where the student is actually being educated under the plan, or would be, but for the delay in implementation (see E.H., 2008 WL 3930028, at *11). The sufficiency of the district's offered program is to be determined on the basis of the IEP itself (see R.E v. New York City Dep't of Educ., 785 F. Supp. 2d 28, 42 [S.D.N.Y. 2011]). If it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of a FAPE due to the failure to implement it (id.; see also Grim, 346 F.3d at 381-82 [holding that the district was not liable for a denial of a FAPE where the challenged IEP was determined appropriate, but the parents chose not to avail themselves of the public school program]).

If there is a denial of FAPE due to the school’s failure to provide a placement for the student, the parent did not provide any information as to the relief they requested except a P-1 or Nickerson letter. Therefore I will now address the parent’s request for a Nickerson letter.

The parent has requested both in his motion and in the complaint a Nickerson letter. A Nickerson letter is a remedy for a systemic denial of FAPE that was imposed by the U.S. District Court based upon a class action lawsuit, and this remedy is available to parents and students who are class members in accordance with the terms of a consent order (see R.E., 785 F. Supp. 2d at 44). The Nickerson letter remedy authorizes a parent to immediately place the student in an appropriate [emphasis added] special education program in a State-approved nonpublic school at no cost to the parent (see Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]). The remedy provided by the Jose P. decision is intended to address those situations in which a student has not been evaluated within 30 days or placed within 60 days of referral to the CSE (id.; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 279 [E.D.N.Y. 2010]; see 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. 00092). The student’s IEP projected service date is July 2, 2012.

A "Nickerson letter" is a letter from the New York Department of Education authorizing a parent to place a student in a New York State approved nonpublic school at no cost to the parent (see 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 student has not been evaluated or placed in a timely manner (see Application of the Dep't of Educ., Appeal No. 09-114; Application of a Student with a Disability, Appeal No. 08-020; 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). Jose P. relief provided by the Court to the individuals falling within the class of plaintiffs was intended to remedy those situations in which a student has not been evaluated within 30 days or placed within 60 days of referral to the CSE (Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]; see 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). Both parties agree on the district’s recommendation of non-public school approved residential placement. And both parties agree that the student did not have a placement until possibly the date of the hearing, September 4, 2012. The parent requests a Nickerson letter based on the district’s failure to provide the student with a placement pursuant to the following documents in evidence: Exh. L 12/14/81 & 1/5/82 Jose P. v. Ambach; Exh. M 1/5/82 Jose P. v. Ambach; Exh. N 7/2/81 Jose P. v. Ambach; Exh. O 7/28/88 Jose P. v. Ambach; Exh. P 12/14/79 Jose P. v. Ambach; Exh. Q 1/5/82 Jose P. v. Ambach. The student’s IEP was drafted on April 30, 2012. The date of implementation of the IEP is July 2, 2012. As of the hearing date, September 4, the parent had not received a placement for the student.

After a review of Exhibits L, M, N, O, P, Q, there is repeated referral to a parent’s right, after the district failed to find a placement for the student sixty days after referral to the CSE to find an “appropriate” placement and agreeing to rely on the district’s own determination of appropriateness. (Exh. L7, L17, N2, N3, Q4)

At the hearing parent’s attorney failed to present any information as to the school the student would attend. The parent in his complaint state that the student be placed at and it is an appropriate school; in the least restrictive environment (LRE) for the student. However, there was no testimony or documentary evidence submitted in support of the school and parent’s attorney never mentioned

Therefore, I am unable to determine whether the parent’s choice of a school meets the needs of this student. The parent’s request for a Nickerson letter is denied. It is Ordered that the Committee on Special Education should provide a placement for the student within twenty four hours of receipt of this decision. Dated: September 13, 2012

______________________________

MARY NOE, ESQ.

Impartial Hearing Officer

MN: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 Impartial Hearing Request, 7/11/12, 3 pp. B IEP, 4/30/12, 49 pp. C CBST Briefcase Summary, Undated, 2 pp. E Student Attendance Report, 2/10/12, 1 p. F Discharge Summary, 2/15/12, 9 pp. G Discharge and Aftercare Plan, 2/17/12, 3 pp. H Request for Reclassification, 2/17/12, 1 p. I Letter from School Assessment Team, 2/17/12, 2 pp. J Student Attendance Report, 3/15/12,^[1] p. K Evaluation, 4/4/12, 8 pp. L Jose P. Special Masters Report, 12/14/81 and 1/5/82, 21 pp. M Jose P. Memorandum and Order, 1/5/82, 4 pp. N Jose P. Order, 7/2/82, 7 pp. O Jose P. Stipulation, 7/28/88, 5 pp. P Jose P. Judgment, 12/14/79, 10 pp. Q Jose P. Unofficial Composite of Memorandum and Order, 12 pp. R Motion, 8/28/12, 4 pp.

DEPARTMENT OF EDUCATION

Footnotes

[1] Memorandum of a Notice of Securement, 8/30/12 IMPARTIAL HEARING OFFICER I Pre-Hearing Order, 7/17/2012