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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: November 13, 2012
January 11, 2013
January 14, 2013
Record Close Date: January 25, 2013
Hearing Officer: James P. Walsh, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 13, 2012
Parent — Parents
Esq. Attorney for Parent — Parents
Representative of District and New York — DOE
City — DOE
School — DOE
(via telephone) Assistant Principal of
(via telephone) Interpreter IHO
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 11, 2013
Parent — Parents
Esq. Attorney for Parent — Parents
Student’s Aunt — Parents
Advocate — Parents
(via telephone)
Representative of District and New York — DOE
City — DOE
Representative of District and New York — DOE
City — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 14, 2013
Parent — Parents
Student — Parents
Esq.. Attorney for Parent Clinician at (via telephone) — Parents
Representative of District and New York — DOE
City — DOE
The Matter of (hereinafter referred to as “Student”), came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act, (“IDEA”) 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York, on November 13, 2012, January 11, 2013 and January 14, 2013. The undersigned was appointed as the Impartial Hearing Officer authorized to preside over this matter by notice dated August 20, 2012. The Record Close Date is January 25, 2013
The proceeding was initiated by correspondence filed on behalf of Parent by the Law Office of , P.C., dated August 20, 2012 and received by the Department of Education’s Impartial Hearing Office on that date. Parent’s Due Process Complaint alleges that District failed to offer Student a free, appropriate public education (“FAPE”) for the school years of 2011-2012 and 2012-2013 and, as a result thereof, demands placement of Student at Educational Center at District and Department expense. Parent further alleges that District failed to respond appropriately to Parent’s request of February 22, 2012 (Exhibit 3) that its Committee on Special Education reconvene so as to obtain an urgent Committee on Special Education review of Student’s program for the purpose of offering Student her program in a residential facility (Exhibit A).The Due Process Complaint also alleges that District and its Committee on Special Education failed to provide Student with a free, appropriate public education during the 2011-2012 school year, in that it failed to offer a program sufficient to meet Student’s behavioral needs. Parent seeks an Order directing District and the New York City Department of Education to issue a P-1 or “Nickerson Letter” or, in the alternative an Order directing District to fund Student’s placement at .
Student is presently , having been born on May 1, 1996. Student reportedly had evidenced some behavior problems beginning in the of her elementary school placement. Student, during the 2011-2012 school year, had been truant on an extraordinary number of days which, because Student was , has had a effect on her academics.; During the 2011-2012 school year, Student for (Exhibit 15). During the current school year, a report issued on November 5, 2012 indicated day reporting period (Exhibit 15). Student has resided with her paternal grandparent, who is also her legal guardian, since Student was but two years of age, as Student’s biological mother when Student . From the testimony of Parent, Student appears as a very and . According to the testimony of Parent (Student’s grandmother and legal guardian is referred to herein as “Parent” in accord with Commissioner’s Regulations (8 NYCRR 200.1(ii)(1)), Student simply refused to arise and attend school, although told by Parent to do so. Student would leave her residence at night, refusing to advise Parent where she was intending to go or do. Again according to Parent, Student , with persons of , to .
Student’s special education program as prepared by District’s Committee on Special Education on February 11, 2011 and which was to commence implementation on February 14, 2011 and continue through a portion of the 2011-2012 school year (Exhibit
1) classified Student as and directed that Student receive her educational program in a General Classroom setting, with Special Education Teacher Support Services (“SETSS”) four times per week and once weekly, fifty-five minutes per session, in a group setting. District’s Committee on Special Education (“C.S.E.”) reconvened on January 17, 2012 to prepare Student’s special education program for the balance of the 2011-2012 school year and for a portion of the 2012-2013 school year. The Committee made no changes to Student’s recommended program, except to increase Student’s SETSS to five times per week and reduce (!) Student’s to forty-five minutes per session (Exhibits 2 and B). Parent was asked on cross-examination, if, when Parent had gone to the meeting in February (presumably February of 2011), she had sought to have the Committee that met consider a residential placement for Student. According to Parent, she had done so, but that her request was denied, with the statement that such could not be done (T.R. 159). Parent claims that she had spoken to the Building Principal at the time of the February 21, 2012 I.E.P. meeting about a residential placement for Student. Then, by letter written by Parent to Building , dated February 22, 2012 (Exhibit 3 and G), Parent stated that she was requesting an urgent C.S.E. review for the purpose of residential placement for Student. The letter continued with the request that a C.S.E. review “be scheduled as soon as possible.” Parent, unfortunately, gave little testimony regarding her letter, even to the point of ever saying that such was sent. However, such may be inferred from the testimony of , Student’s aunt, who was considerably involved with Parent in her attempts to deal with Student and her . It was Ms. ’s testimony that, when Building Principal had received such letter:
“…[T]hey called my mother into the school because they wanted to have a one-on-one meeting with her.
And when my mother explained what she was trying to accomplish, they told her that absolutely not, this is not something that she needed. And that the residential school that we wanted to get her into,
, was not a good place for her, or for any other child for that matter.”
I also infer the receipt of Parent’s correspondence of February 22, 2012 from the fact that such was placed in evidence by District (Exhibit 3) and that District called no witnesses, including Principal Sullivan, either on direct or rebuttal, to challenge such evidence.
It appears that the action taken by Student’s school administration in advising Parent that Student did not need such placement and that such was not good for her were considered by District as sufficient response to Parent’s concerns. Such, however, is not the case. Parent has the right to request a C.S.E. review for the purpose stated in Parent’s letter. Parent specifically requested that a C.S.E. Review be scheduled as soon as possible. Once such request was made by Parent, compliance was mandatory. The Committee on Special Education had the responsibility to commence and conclude such review within sixty days of Parent’s request.(8 NYCRR 200.4(b). District has failed to establish that it complied with such requirement. Indeed, it appears that, while some evaluation may have been undertaken well after Parent filed her Due Process Complaint, District’s C.S.E. has yet to reconvene and conclude its review. There is absolutely no question but that District has failed to act well beyond months after its receipt of Parent’s request of February 22, 2012.
As noted by the State Review Officer in Application of Blank, Appeal No 12-039:
The Nickerson letter remedy authorizes a parent to immediately place the student in an appropriate special education program in a State-approved non-public 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. 00-092).
Therefore, as District has failed to conduct its mandated review with the time constraints established by Commissioner’s Regulation, Parent’s request that District be required to issue Parent a P-1 (Nickerson) Letter shall be granted. In accord with the relief requested by Parent’s attorney, such letter shall be limited to the balance of the 2012-2013 school year (T.R.265).
In light of such disposition, I find it unnecessary to address all of Parent’s challenges to the appropriateness of the I.E.P.’s established by District for Student’s 2011-2012 or 2012-2013 school years, or to address all of Parent’s remaining requests for relief.
I find nothing before me to establish that District in any way discriminated against Student nor violated Student’s rights under the provisions of Section 504 of the Rehabilitation Act.
ORDER
Based upon the above review, it is
HEREBY ORDERED that District issue a P-1(Nickerson) Letter to Parent authorizing Parent to immediately place Student in an appropriate special education program in a State-approved non-public school at no cost to Parent, for the balance of the 2012-2013 school year. Dated: February 1, 2013
__________________________________
JAMES P. WALSH, ESQ.
Impartial Hearing Officer
JW:dl
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 ON NOVEMBER 13, 2012
PARENT
No.: # of Pages Description: Offered by:
A 3 Parent’s Due Process Complaint Notice, Parent dated 8-20-12
B 11 Student’s I.E.P., dated 1-17-12 Parent
C 1 Notice, dated 2-1-12 Parent
D 1 Letter to Parent Regarding , Parent
dated 2-7-12
E 1 Letter to Parent , Parent
dated 5-18-12
F 1 Cumulative Cut List for Student for 2011- Parent
2012 school year
G 1 Letter from Parent to , dated Parent
2-22-12 – Request for Meeting
H 7 Report from , dated Parent’
3-14-12
I 1 Student’s Report Card for 2011-2012 school Parent year
J 1 Letter from Parent
to Parent, dated 8-17-12
K 2 Letter from , dated Parent
8-19-11
L 7 Publication: Behavioral Educational Parent
Procedures, by the , undated
M 11 Publication: Distinguishing Features of the Parent
N 16 Publication: Powerful Positive Programming Parent
Procedures, by the
DEPARTMENT OF EDUCATION
No.: # of Pages Description: Offered by:
1 10 Student’s I.E.P., dated 2-14-11 DOE
2 14 Student’s I.E.P, dated 1-17-12 DOE
3 1 Letter from Parent to , dated DOE
2-22-12 – Request for Meeting – Same as
Exhibit G
4 1 Case Closing, dated 5-25-12 DOE
5 2 Resolution Agreement, dated 9-5-12 DOE
6 1 Letter to Parent regarding New Assessments, DOE
dated 9-21-12
7 3 Social History Update, dated 10-2-12 DOE
8 6 Evaluation Report by , DOE
dated 10-18-12
9 3 Evaluation Report by DOE , , dated 10-4-12
10 2 Teacher Report by , dated 10-12-12 DOE
11 2 Teacher Report by , dated 10-12-12 DOE
12 2 Teacher Report by , dated 10-12-12 DOE
13 2 Teacher Report by , dated 10-12-12 DOE
14 3 Event Report for Period beginning 1-4-11 and DOE concluding 11-2-12
15 1 Attendance Detail for Student, as of 11-5-12 DOE
16 2 Student’s High School Transcript, as of DOE
11-5-12
17 3 Assessment Detail for Student, as of 11-5-12 DOE
18 1 Fax from , dated DOE
11-6-12