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: July 10, 2013

Actual Record Closed Date: August 5, 2013

Hearing Officer: Barbara Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 10, 2013

Attorney — Student

Clinician — Parents

Attorney — DOE

This is New York City case . On July 10, 2013, 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. , Esq. represented the Department of Education (DOE), while , Esq. represented the Mother. A list of documents received into evidence and the witness who testified is attached to this decision. I note that the parties jointly moved for an adjournment to permit them to research legal issues in closing statements. (Ex. I, Ex. P)

ISSUE

The issue in this impartial hearing is whether the Mother is entitled to a remedy for the DOE’s admitted denial of a “free and appropriate public education” (FAPE) to ., and if so, what constitutes an appropriate remedy. The Mother placed in the (JRC) which is a New York State Education Department approved residential school , (Tr. 10) The Mother requests that this impartial hearing officer order the DOE to , or in the alternative, issue a P-1 Nickerson Letter to the Mother to fund placement (Tr. 10)

DEPARTMENT OF EDUCATION’S POSITION

The DOE concedes that it did not provide with a “free and appropriate public education” (FAPE) and it put on no case. (Tr. 13) The DOE contends that this impartial hearing officer does not have authority to issue a P-1 Nickerson Letter and that the Mother did not establish that the private school in which she placed Jessica is appropriate for her. (Ex. 1 at 3)

At the beginning of this impartial hearing, the DOE representative stated that he had received information . had just been accepted at , an approved out-of-state residential school . (Tr. 14) I note that there is no documentary evidence of that acceptance, nor any other acceptance, in this impartial hearing. (Tr. 15)

THE MOTHER’S POSITION

The Mother believes that should be placed at ) or that this impartial hearing officer should order the DOE to issue a P-1 Nickerson Letter due to a delay in placing in her third special education residential school.

FINDINGS OF FACT

. is a old student who has a long history issues. (Ex. G at 4 and 6) She was in her home on July 22, 2011. (Tr. 68-9) Although her full scale IQ score is in the her verbal comprehension, perceptual reasoning, and processing speed are all . (Ex. G at 5) s math skills are . (Ex. G at 3 was diagnosed with and ultimately with (Ex. F at 1) She has . (Ex. F at 2) The DOE “Committee on Special Education” (CSE) classified ’s disability as “ ” ( ) and that classification is not an issue in this impartial hearing.

The Mother for , but she returned to public school where she repeated seventh grade. (Tr. 19-20) The CSE convened on March 27, 2012, and it developed an IEP that placed Jessica in a general education program with Special Education Teacher Support Services (SETSS) and counseling. (Ex. O at 3) The Mother filed for an impartial hearing, and the impartial hearing officer ordered an approved residential school for in a decision dated June 15, 2012. (Ex. O at 4) The CSE then reconvened on June 26, 2012, and the CSE deferred to the Central Based Support Team (CBST) to select a residential school for Jessica D. (Ex. C)

The CBST found , an approved residential special education school for emotionally disturbed girls on , and she began attending school there in approximately August 2012. (Tr. 25)1 attended , but she school, several times. While missing from school, appeared at her s home the evening before Thanksgiving. (Tr. 43)

The Mother requested another residential placement for Jessica, and the DOE placed in St. , another approved residential school for emotionally disturbed girls in Albany. attended School from February 14, 2013, but in only three weeks. (Tr. 28-30) She was , but returned to her Mother’s home sometime in March 2013. (Tr. 31, 70)

The CSE reconvened on April 15, 2013, and again it recommended a residential placement ., and again it deferred to the CBST for a location. The CBST did not find a location for . although her IEP includes a summer “extended school year” (ESY) program. On May 22, 2013, the CBST had not located another residential school for , and she was receiving no educational services at all. There was a huge risk that would run away from home. On May 22, 2013, the at JRC. (Tr. 70)

I note that the Mother was uncertain of specific dates.

is a New York State Department of Education approved residential special education school for children with . is a therapeutic residential school for 235 students between the ages of seven and adulthood. (Tr. 129) Students reside in community residences near the school rather than in dormitories. The school provides intense supervision, including video monitoring in the school and in the residences. (Tr. 123) School staff can review videotapes of specific incidents and use them to counsel the students involved in the incident. (Tr. 52, 56; Ex. I, Ex. J) Even though the student residences are homes as far away as a thirty minute drive from the school, there are roving mid-level administrators who go from home to home checking on students and available when there is a problem. (Tr. 128)

develops a plan with data collection and positive reinforcement that appeals to each particular student for each student. (Tr. 130) Students may from the games, and use of a pool table. (Tr. 81-2) The school also uses aversives, but they would not use aversives with Jessica. (Tr. 114)

developed a behavioral plan and contract for that requires her to:

“. . . refrain from that we've been discussing, aggression, . So she has to refrain from those and participate in her treatment and academics. And if she does so for the specified intervals, then she can contact the reward specified in the contract.” (Tr 104)

There is a reward system with the behavior plan so earns school money that she can spend on attractive items when she complete academic work and behavior. (Id.)

has remained at for over two months .

The Mother requested this impartial hearing through her attorney on May 3, 2013.

(Ex. A) In her complaint, the Mother requested placement or in the alternative, a P-1 Nickerson Letter to fund such placement. (Ex. A at 3)

CONCLUSIONS OF LAW

School districts are supposed to evaluate students and place them in accordance with their IEP’s in a timely manner. When the New York City DOE fails to do so, it issues a P-1 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 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.”

Application of a Student with a Disability, SRO Appeal No. 10-011 The DOE argues that:

A "Nickerson letter" is a remedy for a systemic denial of FAPE that was imposed by the U.S. District Court based upon the Jose P. 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. Application of the NYC DOE, Appeal No. 12-021; see also R.E. v. New York City Dept. of Educ., 785 F.Supp.2d 28, 44 (S.D.N.Y. 2011). and that:

“Neither a impartial hearing officer nor a state review officer has jurisdiction to resolve a dispute regarding whether the student is a member of the class in Jose P., the extent to which the district may be bound or may have violated the consent order issued by a district court, or the appropriate remedy for the alleged violation of the order.”

(Ex. 1 at 2)

I find that the impartial hearing officer does has the authority to order the DOE to issue a P-1 Nickerson Letter, but it is not necessary in this case.

I find as a matter of fact that the DOE failed to comply with the IDEA and provide special education services to . from March 2013 to May 22, 2013 when the Mother placed at I further find that the CBST did not locate an approved residential school for in a timely manner, and the Mother did locate one. I find that is an appropriate placement for . in that it provides her a monitored secure environment in which she has remained for over two provides with appropriate academic support, social/emotional counseling, and a behavior intervention plan. The fact that has remained there when she .

The DOE attorney’s representation that an approved private school in has accepted is not convincing without a Final Notice of Recommendation and other documentation that is has , has space for her now, and that it is secure enough so that and a carefully implemented behavior intervention plan to to stay at school and develop academic and social/emotional skills. Furthermore, the CBST may have located an outof-state approved residential , but the Mother did locate one in a timely manner.

ORDER

I order the DOE to .’s residential placement at from May 22, 2013 through the end of the 2013 – 2014 school year. Dated: August 12, 2013

________________________

BARBARA J. EBENSTEIN, ESQ.

Impartial Hearing Officer BE;mv Transcript Correction: Page 11, Line 7 should read “Jose P.” and not “Jose Pilo”

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

EVIDENCE

DOE

1 DOE Closing Statement, undated, 4 pages

PARENTS

A Impartial hearing request dated 5/3/13, 3 pages B Due process response dated 5/13/13, 3 pages C IEP dated June 26, 2012, 11 pages D Final notice of recommendation dated 1/7/13, 1 page E IEP dated April 15, 2013, 8 pages F Social history dated 9/15/11, 3 pages G evaluation dated 10/14/11, 6 pages H procedures at JRC, 7 pages I distinguishing features, 11 pages J positive programming procedures, dated 5/2002, 16 pages K Educational progress for students dated 1/28/10, 9 pages L Copy of . decision, 21 pages M . Exhibits 1 and 2 dated 7/2/82, 7 pages N order dated 7/28/88, 5 pages O Finding of fact and decision dated 6/15/12, 6 pages P Closing Statement, undated, 26 pages