NY IHO #2013-ih-606: New York City...

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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: April 3, 2013

Actual Record Closed Date: June 3, 2013

Hearing Officer: Michael Lazan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 3, 2013

Supervising Attorney — Student

Legal Intern — Student

Parents

Social Work Intern — Student

District Representative — DOE

By Complaint dated November 27, 2012, the matter of Jared J. came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. This hearing was requested to review Steven’s placement for 2012-2013, and to request a “Nickerson letter” as relief. (Impartial Hearing Officer (IHO) Exh. 1)

The matter did not resolve during the resolution. This IHO held a prehearing conference on this case on January 9, 2013. (IHO Exh. 3) A hearing date was scheduled for January 15, 2013. The parented an adjournment because of witness availability, which was granted.

Another hearing date was scheduled for February 8, 2013. The parent secured counsel on February 4, 2013, when a notice of appearance was filed. The parent’s counsel then sought an adjournment to further review the new file. This adjournment request was granted.

On February 11, 2013, the parent sought to extend the decisional timelines. The reason given was witness availability. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. The new decision date was March 10, 2013. There was no showing here of any impact on the child’s educational interest or well-being in connection to this application or order. There was also no showing of any financial or other consequences to the parties. There was no showing of any prejudice to the District. The parties were provided with written notice of this extension. (IHO Exh. 4)

Another prehearing conference was held, on March 7, 2013. (IHO Exh. 5)

On March 11, 2013, the parent sought to extend the decisional timelines. The reason given was witness availability. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. The new decision date was April 10, 2013. There was no showing here of any impact on the child’s educational interest or well-being in connection to this application or order. There was also no showing of any financial or other consequences to the parties. There was no showing of any prejudice to the District. The parties were provided with written notice of this extension. (IHO Exh. 6)

The matter came to hearing on April 3, 2013. On April 4, 2013, the parties sought to extend the decisional timelines. The reason given was to allow the IHO to review the transcript to render a decision. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. The new decision date was May 9, 2013. There was no showing here of any impact on the child’s educational interest or well-being in connection to this application or order. There was also no showing of any financial or other consequences to the parties. There was no showing of any prejudice to the District. The parties were provided with written notice of this extension. (IHO Exh. 7)

The parent sought to submit a brief, which was received by this IHO on April 22, 2013. (IHO Exh. 8) This brief referenced the District’s SOPR, which had not been admitted into evidence. This IHO brought this to the attention of the parties.

On May 7, 2013, the parent sought to extend the decisional timelines. The reason given was to allow the parent to submit additional evidence. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. The new decision date was June 10, 2013. There was no showing here of any impact on the child’s educational interest or well-being in connection to this application or order. There was also no showing of any financial or other consequences to the parties. There was no showing of any prejudice to the District. The parties were provided with written notice of this extension. (IHO Exh. 9)

The parties agreed to admit the SOPR into the record on or about May 13, 2013. The SOPR was provided to this IHO on June 3, 2013. (IHO Exh. 10)

TESTIMONY AND EVIDENCE

The Student is an with . (21) He also has been diagnosed with (Exh. R) The Student began during 2011-2012, his year, when he started to have issues in the classroom. (31-32) He attended at this time. (21) The school did not know how to control the . (20-213) The parent was frequently called to school at this time, and had to send her niece to the school to look after the Student. (24) The Student was sent to the on one occasion. (Exh. M, AA).

The Student’s academic levels show a with higher scores in letter/word identification ( ). (Exh. P) The Student can read text at a level even though he is in third grade. (Exh. Q) Overall, there was significant variability in performance for the Student. (Exh. P) The Student’s thinking and reasoning abilities, and his ability to manage the classroom, have deteriorated. (Exh. Q) He has developed a number of idiosyncratic behaviors. (Exh. Q)

The parent requested a re-evaluation of Jared on February 17th, 2012. (Exh. K) A evaluation was conducted of the Student. (Exh. R) Other assessments were also completed in connection to the Student. (Exhs. O, P, Q, S) The Student was in the emergency room of on March 5, 2012. (Exh. L) For 2011-2012 the Student’s report card showed 1 (below standard) grades in all core subjects. (Exh. V)

A teacher report indicated that the Student refused to cooperate in class and is making no progress in his current setting. (Exh. O)

The Student’s final notice of recommendation for a for 2012-2013 was sent to the parent on October, 3, 2012. (Exh. W) The parent visited the school and determined that it was unsafe for her child and that the other students in the classroom were functioning at different levels from the Student. (30) A paraprofessional was then assigned to take care of the Student , but that paraprofessional quit after 1 day. (31) After a second emergency room visit the parent removed the Student from school. (35) A second final notice of recommendation was issued, but for the same school setting. (Exh. HH)

A psychiatrist has confirmed that it would be unsafe for the Student to go back to . (35-36)

FINDINGS AND DECISION

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The parent contends that a 2013-2014 “Nickerson letter” is in order here. A "Nickerson letter" is a letter from the Department of Education (DOE) to a parent authorizing the parent to immediately place the child in an appropriate special education program in any state-approved private school, at no cost to the parent. 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 child has not been evaluated within 30 days or placed within 60 days of referral to the Committee on Special Education (CSE). 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.

The “Nickerson letter” may be enforced by a third party beneficiary of the Jose P. consent decree. See M.S. v. New York City Department of Education, 734 F. Supp.2d 271 (E.D.N.Y. 2009)(explaining the scope of relief in Jose P.) Third party beneficiaries of the Jose P. consent decree include students who were not timely evaluated or placed at a school.

The testimony and evidence here indicate that this child did not receive a placement from the District within 60 days of the consent to evaluation. During this time, the Student has had that the parent has been . The Student in all his classes during 2011-2012, with mostly grades.

When the 2012-2013 school year began, the Student still did not have a placement. As a result, this Student was forced to start the 2012-2013 school year in the same school with that he had previously. Though the District ultimately offered a placement in October, all all the testimony in the record indicates that this placement was for the Student. There is no evidence relating to this placement in the record. The District did not call any witness from this placement or present any evidence to this IHO to establish its appropriateness of the placement – even though it has the burden of persuasion. Indeed, the District did not call any witness at all here and did not present a closing brief to this IHO after trial.

The District’s SOPR indicates that a “Nickerson letter” issued between March 16 and June 15 of a given year should provide the Student with a non-public school for the subsequent school year. Also, the Impartial Hearing Officer has “broad discretion” to order relief to insure that a child receives the FAPE that they are entitled to. Application of the New York City Department of Education, Appeal No. 05-113. In Sch. Comm. of Town of Burlington, Mass v. Department of Education of Mass., 471 U.S. 359 (1982), the Supreme Court stated:

The statute directs the court to “grant such relief as [it] determines is appropriate.” The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be “appropriate.” Absent other reference, the only possible interpretation is that the relief is to be “appropriate” in light of the purpose of the Act. As already noted, this is principally to provide handicapped children with “a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.” The Act contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as nonhandicapped children, but the Act also provides for placement in private schools at public expense where this is not possible. Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. at 369; see, e.g., Dracut Sch. Comm. v. Bureau of Spec. Educ. Appeals, 737 F. Supp.2d 35, 5657 (D. Mass 2010)(ordering a District to hire consultants to address student’s special education needs); Letter to Eig, Bureau of Educ. for the Handicapped, 211 IDELR 174 (1980).

Given the hardship that this Student has been through in 2011-2012 and 20122013, and given the record before this IHO, I agree with the parent that it is appropriate to order that the Student benefit from a Nickerson letter for the remainder of 2012-2013 and 2013-2014.

I note that the parent’s brief does not mention certain relief requests mentioned in the closing statement, including Related Services Authorizations and home instruction. Since these requests for relief are not mentioned in the brief, I will deem these requests withdrawn. Dated: June 10, 2013

______________________________

MICHAEL LAZAN, ESQ.

Impartial Hearing Officer ML;mv

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 Social History, 11/24/10, 3 pp. B Evaluation, 12/10 ,8 pp. C Assessment, 2/8/11 ,15 pp. D Final Notice of Recommendation, 4/1/11, 1 pg. E IEP, 4/1/11, 15 pp. F Final Notice of Recommendation, 6/14/11, 1 pg. G IEP, 6/14/11, 16 pp. H Grade 2 Report Card, 6/20/11, 1 pg. I Dr. Appointment Summary, 12/22/11, 1 pg. J Request for CSE Reevaluation, 12/22/11, 1 pg. K Request for CSE Reevaluation, 2/17/12, 1 pg. L Assessment Authorization Evaluation, 3/1/12, 7 pp. M Emergency Room Visit Follow-up Instructions, 3/5/12, 2 pp. N Grade 3 Report Card, 3/9/12, 1 pg. O Confidential Teacher Report from DIAL, 3/15/12, 5 pp. P Evaluation, 3/27/12, 5 pp. Q FBA, 4/19/12 ,2 pp. R Evaluation, 5/2/12 ,4 pp. S Occupational Therapy Progress Report ,5/23/12, 2 pp. T IEP and BIP dated 5/25/12, 17 pp. U IEP, 5/25/12 ,17 pp. V Grade 3 Report Card, 6/11/12, 1 pg. W Final Notice, 10/3/12 ,1 pg. X Letter Rejecting , 10/11/12, 3 pp. Y 10/18/12 IEP and Final Notice of Recommendation, 17 pp. Z Notice of IEP Meeting, 10/22/12, 1 pg. AA Note to Patients Employer School, 10/23/12, 1 pg. BB Grade 4 Report Card, 11/7/12 ,1 pg. CC IEP, 11/8/12 ,19 pp. DD 11/21/12 Student Attendance Report, 1 pg. EE Letter from , 12/26/12 ,1 pg. FF Anecdotal Accounts from DIAL, 14 pp. GG Anecdotal Records for the Student, undated, 1 pg. HH Final Notice of Recommendation, 1/11/13,^[1] pg. II Letters from dated 11/29/12 and 12/12/12, 2 pp.

DISTRICT

Footnotes

[1] Chancellor’s Regulations IHO I Complaint, 11/16/12 ,2 pp. II Jose P. Stipulation, 8/3/88 ,69 pp. III PHC Summary, 1pp IV Timeline Notice, 1 pp. V PHC Summary, 1 pp. VI Timelines Notice, 1 pp. VII Timelines Notice, 1pp. VIII Brief of parent, 4/22/13, 11pp. IX Timelines Notice , 1 page X SOPR, 305 pp.

New York City Department of Education, Impartial Hearing Decision