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: June 18, 2014

Actual Record Closed Date: June 23, 2014

Hearing Officer: James P. Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 18, 2014

Esq. Attorney for Parent — Parents

Parent of Student — Parents

Clinician at the Educational — Parents

Representative of District and New York — DOE

City — DOE

Administrator with the New York City Department of Education’s Central Based Support Team — DOE

Child Protective Specialist with the New York City Administration for Children’s Services — 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, 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York, on June 17, 2014. The undersigned was appointed as the Impartial Hearing Officer authorized to preside over this matter by notice dated March 12, 2014. The Record Close Date is June 23, 2014

The proceeding was initiated by correspondence filed on behalf of Parent by the Law Office of ., dated March 10, 2014 and received by the Department of Education’s Impartial Hearing Office on March 11, 2014. However, Parent thereafter filed an Amended Due Process Compliant, dated June 2, 2014 and filed with the Department of Education’s Impartial Hearing Office on that date (Exhibit A). and accepted by District. As such, the Amended Due Process Complaint is the only valid Complaint before me in this proceeding.

Parent’s Due Process Complaint (Exhibit A) alleges that District failed to offer Student a free, appropriate public education (FAPE) for the 2013-2014 school year and, as a result thereof, demands residential placement of Student at , a private residential school located in Canton, Massachusetts at District and Department expense or, in the alternative, the issuance of a Nickerson Letter permitting Parent to place Student in any New York State-approved non-public school at District and Department of Education Expense for one year, or, in the alternative, an Order directing the New York City Department of Education to enter into a Contract with the for the remainder of the 2013-2014 school year (Exhibit A).

Student has recently turned . Student has been classified by District’s Committee on Special Education as having an . There is no dispute as to the correctness of such classification. According to the testimony of Parent, Student had been truant and running the streets, stealing and being involved with drugs during the 2012-2013 school year. At some point, Student was found by the to be a and was placed in , a residential facility, for one year (T.R.72). Student exited that placement sometime in September of 2013 (T.R.74) . However, according to Parent, Student to school, school, or (T.R.77-78). Again according to Parent, District’s Committee on Special Education (C.S.E.) convened on November 26, 2013 and prepared an Individualized Education Program (I.E.P.) that contained the recommendation that Student’s placement be deferred to the Department of Education’s Central Based Support Team (CBST) for placement in a residential facility (T.R.81-82), the District having first obtained a Psychiatric Evaluation of Student on November 6, 2013 (Exhibit E).. (I note that such I.E.P. was not offered into evidence, although an I.E.P. with a similar recommendation, dated January 31, 2014, is in evidence as Exhibit B). Again according to the testimony of Parent, a recommendation was made by CBST that Student be placed at (T.R.83). A representative from that facility conducted an interview at Student’s home, as Student refused to attend such interview As a result of that interview, Student was accepted at and arrangements were made to transport Student to that facility (T.R. 88-89). Student was picked up at his home by a representative of on February 6, 2014 and taken to the Graham School, but after but a and returned home (T.R.98). All parties to this proceeding concur that Student is in need of residential placement due to Student’s severe behavioral concerns. Indeed, it appears that District does not contest that the Judge Rotenberg Educational Center would be an appropriate facility for Student.

Parent further testified that, upon Student’s release from in September of 2103, Student had been obligated to and had not done so. As a result, on December 18, 2013, Student and , from which Student was to be released the following day. Parent was called on contending that Student should be returned by the some agency that took him away (T.R.85-86). As a result of Parent’s refusal, her son, a health and safety conference and proceeded which had already exercised jurisdiction over Student on previous occasions, and requested a remand of Student – explaining that a “remand” is a legal document placing the child in the it could find a placement for Student (T.R.4041). The agency never achieved physical custody of Student, as holding him and the agency has never been able to (T.R.41).

According to District, the has been given custody of Student precludes it from placing Student at the or any other residential facility. testified that has custody of a student, the CBST of the Department of Education does not have the authority to facilitate a placement for such student (T.R.27). opined that such position was based upon provisions of New York State Education Law, which he was unable to cite, but that he had come to learn of such provision through training by supervisors at CBST (T.R.28). Also, while representation was made by the District Representative that a document existed, promulgated by the New York State Education Department, to such point, which could be placed in evidence (T.R.29-30), it never was.

, while admitting had never been able to secure physical custody of Student, it had the obligation to continue as best to try to locate the child (T.R.42) and continued to have custody (T.R43). also opined that if Parent came to Family Court to annul the remand, ACS would not oppose such or the placement by the Department of Education (T.R.68).

Received into evidence as I.H.O. Exhibit I was the Order issued by the Family Court which purportedly transferred custody of . To the extent that such was readable, I find that such Order is not to be interpreted so as to confer all of the powers that are equitable with parental rights. Indeed conceded that Parent still retains her rights as Student’s parent.

It is my finding and determination that the “remand” ordered by the Family Court (I.H.O. Exhibit I) was not intended to preclude Parent from seeking an appropriate placement from the District nor to bar the New York City Department of Education from authorizing a placement for Student sufficient to meet his needs. I find this especially true in this case, where Student’s conduct is such as to cause Parent to fear that it may be only a question of time before Student loses his life on the streets of the city. According to Witness Welker, he discussed Student’s placement issues Supervisor in February of 2014 (T.R.27-28). Yet, done nothing to secure an appropriate placement for Student. I simply cannot accept the explanation that, until the Student is located, it cannot consider placement (T.R. 69).

I find it unnecessary to review the testimony of , who described the program afforded by , and the ability of to meet the needs of Student. is a therapeutic residential facility approved by the State Education Department. I find that its location is significant in insuring that Student, with his proven , requires the technical ability of the Center to

As previously noted in this Decision, Parent’s Due Process Complaint sought a number of reliefs, including the placement of Center for the 2014-2015 school year, the issuance of a Nickerson Letter permitting Parent to place Student in any New York Stateapproved non-public school at District and Department of Education Expense for one year, or, in the alternative, an Order directing the New York City Department of Education to enter into a the remainder of the 2013-2014 school year (Exhibit A).

Clearly, the last above request, directing the New York City Department of Education to enter into a Contract with for the remainder of the 2013-2014 school year (Exhibit A), is now moot, as the 2013-2014 school year has ended.

As to Parent’s request for the issuance of a Nickerson Letter permitting Parent to place Student in any New York State-approved non-public school at District and Department of Education Expense for one year, it was noted by the State Review Officer in Application of Blank, Appeal No 12-039, that 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]), where 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). I find neither of those conditions present in this proceeding. Therefore, the request that I direct District and the New York City Department of Education to issue a Nickerson Letter is denied.

However, I shall order that the District and the New York City Department of Education immediately effectuate Student’s placement at the Judge Rotenberg Educational Center and that Student remain at such facility for the entire 2014-2015 school year.. However, before actually transporting Student to his placement, the issue of custody and jurisdiction must be addressed with . Assuming Student is still required to meet on a regular basis with a Probation Officer, arrangements must be made to address Student’s anticipated absence from Kings County, due to his placement at , and his resultant inability to meet with a regular weekday basis. Should decide not to a working arrangement to permit Student to be placed in a program that Student clearly requires as soon as possible.

ORDER

Based upon the above review, it is

HEREBY ORDERED that District and the New York City Department of Education immediately effectuate Student’s placement at and continue Student’s placement at such facility for the entire 2014-2015 school year, subject only to the actions or determinations to be hereafter made by the Family Court of the State of New York, County of Kings. Dated: July 3, 2014

James P. Walsh, Esq. gc

JAMES P. WALSH, ESQ.

Impartial Hearing Officer

JPW:gc

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 RECORD JUNE 18, 2014

A. Parent’s Amended Due Process Complaint Parent Notice, dated 6-2-14 (4 pages; Parents)

B. Student’s I.E.P., dated 1-31-14 Parent (12 pages; Parents)

C. Social History, dated 5-15-12 Parent (1 page; Parents)

D. Evaluation of Student by Parent, dated 5-23-12 (4 pages; Parents)

E. of Student by, Parent M.D., dated 11-6-13 (4 pages; Parents)

F. Educational Update by, dated Parent 12-5-13 (1 page; Parents)

G. Letter from of Parent, dated 3-24-14 (1 page; Parents)

H. Acceptance Letter from Parent, dated 10-26-12 (1 page; Parents)

I. Publication: Behavioral Educational Procedures Parent by the ` undated (7 pages; Parents)

J. Publication: Distinguishing Features of the Parent, undated (11 pages; Parents)

K. Publication: Powerful Positive Programming Parent Procedures by the undated (16 pages; Parents)

L. Publication: Educational Progress of Educational Center, undated M Not in Evidence N Not in Evidence O Not in Evidence (9 pages; Parents)

P. Letter from Parent, Chair of Parent CBST, undated (1); Transmission Receipt, dated 2-11-14 (1) (1 page; Parents)

I. Kings County Order of IHO 12-20-13 (2 pages; Parents)