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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 21, 2012
Actual Record Close Date: September 21, 2012
Hearing Officer: Barbara Ebenstein, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 21, 2012
Attorney — Parents
Parents
Parents
, ASE CFN
On September 21, 2012, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. Section 1415(f)(3), regarding the special education of . at the New York City Department of Education Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York 11201. , administrator of special education services, represented the Department of Education (DOE) and Anton Papakhin, Esq. represented the parents. A list of documents received into evidence and the witness who testified is attached to this decision.
ISSUE
The sole issue in this impartial hearing is whether the DOE placed B. for the 2012 – 2013 school year in a timely manner. If not, the parents are entitled to a Nickerson Letter to place in a New York State approved residential school.
DEPARTMENT OF EDUCATION’S POSITION
The DOE admits that the Committee on Special Education (CSE) convened in the spring of 2012 and recommended a residential private school. The CSE deferred to the Central Based Support Team (CBST), but “it did not approve the placement.” (Tr. 6) The DOE is willing to reconvene the CSE. (Id.) It put on no case. (Tr. 13)
THE PARENT’S POSITION
The Parents’ position is that the DOE failed to offer B. a school placement in a timely manner, and that they are entitled to a Nickerson Letter. They are unsure that the CBST has authority to reject a CSE recommendation. (Tr. 9)
FINDINGS OF FACT
old child who from until September 2012. (Tr. 22, 26) . A document proporting to be a evaluation describes ’s behavior , .” (Ex. D at 1) The disorder.
I note that this document is really just a checklist. There is no evidence that the physician, whose name is not legible, met with for any length of time. This unknown physician wrote no narrative, and made only general and generic recommendations. I gave this document no weight. A social worker at on January 6, 2012. (Ex. F)
attended general education classes at where her . (Ex. A; Ex. E; Tr. 14) While , her Mother wrote to the school on April 26, 2012 requesting an emergency CSE meeting to review ’s “individualized education program” (IEP). (Ex. C) The school responded immediately and held a CSE meeting the same day. The CSE decided to place in an approved residential school, and referred to the “central based support team” (CBST) to arrange a school for . (Ex. B a 8; Tr. 15-6) As , the CBST rejected the request and it did not place . (Tr. 19) The CBST failed to notify the parents of this rejection. (Tr. 17-8)
The parents had a friend find , . (Tr. 22-3) When returned home in September 2012 . The parents quickly placed her in the ), a New York State Education Department approved on September 11, 2012. (Ex. R; Tr. 23-4) , M.D., a physician at summary report on September 20, 2012.[1] (Ex. R) This document stresses ’s need for to address her . (Id.)
The parents requested this impartial hearing on July 26, 2012 while was still missing to get a residential placement for her. (Ex. A)
CONCLUSIONS OF LAW
School districts are supposed to place students in accordance with their IEP’s in a timely manner. When the New York City DOE fails to do so, it issues a Nickerson Letter based upon Jose P.
“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 non-public school at no cost to t he 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.”
Application of a Student with a Disability, SRO Appeal No. 10-011
In the case before me, the CSE recommended a residential placement for on April 26, 2012. While a board of education has authority not approve a recommendation of the CSE, I find no legal authority for the CBST to reject the recommendation of the CSE for a non-public school. To the contrary, I find authority that it may not do so. See Louis M. v. Almbach, 714 FSupp 1276, 1283 (NDNY 1989) The New York City DOE CBST is supposed to be merely an office that does the paperwork involved in locating a particular non-public school once the CSE makes such a recommendation. It is not an entity that makes decisions on the nature of the appropriate placement. If the CBST had such authority to reject a CSE recommendation, it would be a clear violation of 34 C.F.R. Section 300.501(c) and Jose P. as it would involve a placement decision in which the parents do not participate.
I find that the DOE has failed to comply with the IDEA, and the parents are entitled to an immediate Nickerson Letter for a residential placement for the 2012 – 2013 school year.
ORDER
I order the Board of Education to issue a Nickerson Letter for a residential placement for B. for the 2012 – 2013 school year immediately.
I suggest that the DOE review its use of the CBST and make sure that it has no authority to reject a CSE recommendation.
Dated: September 26, 2012
___________________________________
BARBARA J. EBENSTEIN, ESQ.
Impartial Hearing Officer
BJE: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, 7/26/12, 3 pp.
B. IEP dated 4/26/12, 8 pp.
C. Letter to CBST, 4/26/12, 1 p.
D. Evaluation, 11/19/11, 5 pp.
E. Student Attendance Report, 4/18/12, 1 p.
F. Recommendation, 6/30/12, 1 p.
G. Tuition at , various dates, 2 pp.
H. Behavioral Education Procedures, Undated, 7 pp.
I. Distinguishing Features, undated, 11 pp.
J. Positive Programming Procedures, May 2002, 16 pp.
K. Educational Progress for Students, 1/28/10, 9 pp.
L. Jose P., 12/14/91 and 1/5/82, 21 pp.
M. Jose P., 1/5/82, 4 pp.
N. Jose P. Order, 7/2/81, 7 pp.
O. Jose P. Stipulation, 7/28/88, 5 pp.
P. Jose P. Judgment, 12/14/79, 10 pp.
Q. Jose P. Memorandum and Order, 1/5/82, 12 pp.
R. Summary, 9/20/12, 3 pp.
DEPARTMENT OF EDUCATION
1. CAP Screen, 9/20/12, 1 p.
TRANSCRIPT CORRECTION: Page 6, Line 7: Begins the DOE representative’s opening statement. The transcript indicates that I am the speaker. It is an obvious error. Mr. was the speaker.
Footnotes
[1] The DOE representative graciously consented to the admission of this document into evidence at this impartial hearing although it was not released to the DOE in compliance with the “five day rule.”