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: February 21, 2013

Actual Record Closed Date: February 21, 2013

Hearing Officer: Barbara J. Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 21,

2012

Attorney — Student

Parents

Clinician (Via Telephone) — Student

CSE Representative — DOE

This is New York City case On February 21, 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. Dr. represented the Department of Education (DOE), and Esq. represented the Mother. A list of documents received into evidence and the witness who testified is attached to this decision.

ISSUE

The issues in this impartial hearing are whether the DOE provided an appropriate placement for in September 2012, and whether the DOE conducted a timely evaluation and convened a timely Committee on Special Education (CSE) meeting for her. If not, whether the Mother is entitled to a Nickerson Letter to in a New York State approved residential school. (Tr. 10)

DEPARTMENT OF EDUCATION’S POSITION

The DOE contends that it convened the CSE on February 8, 2013, and it recommended a residential private school . The CSE deferred to the Central Based Support Team (CBST), and it has thirty days to place her. The thirty days have not yet lapsed. (Tr. 5) It put on no case.

THE MOTHER’S POSITION

The Parents’ position is that the DOE failed to convene a timely CSE; it failed to offer an appropriate placement in a timely manner; and that the Mother is entitled to a P-1 Nickerson Letter to in an approved private residential school.

FINDINGS OF FACT

who has a long history in and out of school. It appears that she has range skills, although she is non-compliant with testing so that it is difficult to assess. She “has a rather toward peers and strong .” (Ex. G at 2) has attended the ( ), which is an approved private special education day school, for three years. She has “extended school year” (ESY) services so she is there over the summers. She has repeatedly, and the private school has several times. spent five or six months in a placement in 2011 or

2012. (Tr. 19, 31) She was

The CSE reconvened on January 17, 2012, and it developed an Individualized Education Program (IEP) that with . (Ex. B at 8) This IEP does not address and noncompliance with rules and medication.

was then on July 23, 2012 for three days for getting with another student. (Ex. C) This states: “ continues to and has had an increasingly difficult time.” (Ex. C) She with the school program although she had already been there for two years, and .

Following the , the Mother sent a letter to the DOE requesting a CSE meeting to consider in a residential school on August 14, 2012. She wrote:

“She is from school . She roams the hallways in school and refuses to follow directions. She is also .” (Ex. D)

The DOE representative in this impartial hearing stated that the CSE convened for on September 12, 2012. (Tr. 6) The DOE’s own evidence establishes that the DOE sent a notice of an IEP meeting to the Mother on September 7, 2012, but there is no evidence that a CSE meeting was held in September 2012. (Ex. 2 at 4; Ex. 2 at 3) There is no IEP from September 2012 in the evidence in this impartial hearing. The DOE’s own log notes that on November 27, 2012, the DOE was still “in the process of completing her evaluation.” (Id.) There were repeated efforts to receive teacher and progress reports as late as December 5, 2012. (Id.) Finally, the Mother did not attend a meeting in September 2012 or on any other date in the fall of 2012. (Tr. 23) I find that there was no

CSE meeting for . in September 2012 as a matter of fact.

In the fall of 2012, the DOE was still “ in order to conduct an IEP conference” on October 19, 2012. (Ex. 2 at 3) A is not one of the assessments mandated by federal or state law. The DOE called the Mother to “follow up ” on November 21, 2012 and November 26, 2012. (Id.) The DOE attempted to of and there are notes concerning their continuing efforts to do so, but the child was non-compliant. The DOE finally relied upon because there was still an file from one of the . (Ex. 2 at 2-3, date December 14, 2012)

The long-awaited was conducted at on September 15, 2012, but the report is undated. (Ex. H at 1, at 9) I cannot discern when and the Mother received this report.

The DOE received it from the Mother on January 10, 2013. (Ex. 2 at 1) The evaluation is a nine-page document. (Ex. H) The first six and a half pages of this document just reviews existing information, but it adds nothing new. The last pages include an impression that:

“It is of note that her problems over the years despite placement into special education, and later treatment in . At present ’s problem expanded problems out

.” (Ex. H at 8)

The psychiatric evaluation further reports:

“Her father with and maternal grandmother has a which creates .”(Id.)

These impressions still merely report information that was already known, or should have been known, by the Mother, the staff . (Ex. H at 9) The recommendation is for a twelve month structured therapeutic residential school. (Id.)

Meanwhile, and her Mother visited the ), a New York State Education Department approved residential school in , sometime between September and December 2012. (Tr. 57) has been accepted at The CSE finally reconvened on February 8, 2013 two and a half months after the Mother filed the impartial hearing complaint and almost six months after the Mother requested the CSE review. The CSE recommended a twelve-month residential placement. (Ex. 1) The CSE deferred to the Central Based Support Team (CBST) on February 11, 2013. (Ex. 2 at 1) On the impartial hearing date of February 21, the CBST had not yet located a residential school for . (Tr. 58) If it does not find a residential placement within thirty days of the deferral, Dr. stated on the record that the DOE would issue a P-1 Nickerson letter then. (Tr. 17)

The Mother requested this impartial hearing through her attorney on November 28, 2012 before the CSE met in response to the Mother’s August 14, 2012 request that it reconvene. (Ex. A) In her complaint, the Mother requested placement at or a P-1 Nickerson Letter. (Ex. A at 3) is a therapeutic residential school for 236 students between the ages of eight or nine and adulthood. (Tr. 49, 53) Classes range in size from and cover the full array of academics. (Tr. 38) Approximately half the students there have an educational classification of “ ). (Tr. 38) The school provides intense supervision, including video monitoring in the school and in the residences. (Tr. 41-2,

54) The school develops a for each student with positive reinforcement that appeals to the particular student. Reinforcers include privileges such as making purchases at a school fashion store, beautician services, and use of a pool table. (Tr. 46-7) The school also uses aversives, but they would not use aversives with . (Tr. 56) is not a lock down facility. (Tr. 51)

CONCLUSIONS OF LAW

The New York Commissioner of Education regulations require:

(e) IEP Implementation. (1) Within 60 school days of the receipt of consent to evaluate for a student not previously identified as having a disability, or within 60 school days of the referral for review of the student with a disability, the board of education shall arrange for appropriate special programs and services, except that if such recommendation is for placement in an approved in-state or out-of- state private school, the board shall arrange for such programs and services within 30 school days of the board's receipt of the recommendation of the committee. Section 200.4(e) This means that the DOE must conduct the evaluation and convene the CSE within sixty school days of receipt of the Mother’s referral. The DOE may not delay the CSE meeting. The CBST then has another thirty school days in which to place the student when the child will attend an approved private school. This gives the DOE a total of ninety days in which to evaluate, convene the CSE, and place the child in a private school.

In the case before me, the Mother sent the referral on August 14, 2012. The CSE did not convene until February 8, 2013. This delay left , who is , who may still be using , and who has already spent months in a , without appropriate therapeutic support and structure for months. Although an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, the CSE cannot delay its meeting over an extended period of time waiting for an evaluation to be completed. 34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; 34 C.F.R. §300.320[a][2]; 8 NYCRR 200.4[d][2][iii] Furthermore, the CSE for was waiting for a that is not a mandated assessment. While best practices might include a of an with , the CSE cannot delay its meeting and the provision of a “free and appropriate public education” (FAPE) while waiting for a evaluation. Lastly, the in this case just reports information that was already known to the participants at the CSE meeting. The CSE could have convened to discuss the circumstances without the added recommendation of a psychiatrist and the further delay it caused.

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

In the case before me, the CSE did not convene within sixty school days of the Mother’s request for a CSE meeting. The DOE’s contention that it has thirty days from the CSE meeting for the CBST to find a placement is correct only if the CSE has met within sixty days of the referral. The DOE has a maximum of ninety school days in which to evaluate the child, convene the CSE, and place the child in the new private school. In this case, the CSE failed to meet until six months after the August 2012 referral for a CSE meeting. This delay further denied a FAPE while she remains at I find that the DOE has failed to comply with the IDEA and the Jose P. consent decree in the provision of a timely evaluation, timely CSE meeting, and timely placement. The Mother is entitled to an immediate P-1 Nickerson Letter for a residential placement for an in-state or out-of-state residential school for the rest of the 2012 – 2013 school year.

ORDER

I order the DOE to issue a Nickerson Letter for a residential placement for for the 2012 – 2013 school year immediately. Dated: February 26, 2013

________________________

BARBARA J. EBENSTEIN, ESQ. BJE;mv Impartial Hearing Officer

Transcript Error: Page 2, the parent’s evidence is listed as the DOE evidence and visa versa Page 6, line 20, should read: “The parents are not . . . “ The word “not” is omitted in the transcript.

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

DEPARTMENT OF EDUCATION

1 IEP 2/8/13, 13 pages

2 Events log 10/28/11 and 2/11/13, 5 pages 11

PARENT

A Impartial Hearing Request 11/28/12, 3 pages B IEP dated 1/17/12, 15 pages C 7/23/12, 1 page D Parent referral to the CSE, 8/14/12, 2 pages E Proof of delivery 8/16/12, 1 page F Social history update 6/6/12, 2 pages G evaluation dated 9/12/12, 3 pages H dated 9/15/12, 9 pages I Material about Jose P. 1981 and 1982, 21 pages J Jose P. order 7/2/81, 7 pages K Jose P. stipulation 7/20/88, 5 pages