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: September 10, 2014

September 19, 2014

Actual Record Closed Date: September 29, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 10, 2014

Advocate — Student

Parents

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 19, 2014

Advocate — Student

Parent/Mother (Via Telephone and in person) — Student

Committee on Special Education Representative — DOE

The parent requested an impartial hearing on June 19, 2014 by their advocate . The district was . I was appointed on August 6th, 2014.. On August 7th, I scheduled a hearing date on September 3rd, which was adjourned due to the parent’s unavailability. A hearing was held on September 10th. Parent’s advocate requested that I recuse myself. The request was denied. (Exh. I) No request for an extension of the compliance date was made.

The student (IEP) challenged is October 31st, 2013. The student has not been in school since 2013. The District concedes prong one. (T. 8, 55)

Parent’s Proposed Resolution in her complaint states the following:

-an interim order that will increase the student’s home instruction to reflect an additional two hours a day of

-immediate pendency order to the

-instruction and related service that the student is receiving -additional two hours a P-4 voucher at a

-

-a Nickerson Letter

Parent’s advocate stated she was unprepared to proceed on the first day of the hearing. (T. 9) The parent’s advocate requested an adjournment on the second day of hearing. (T. 114)

Her request was denied. (T. 115)

The parent agrees with the IEP recommendation for the New York State approved school. (T. 14)

The district’s representative stated that there is no school that the child can go to fulfill the IEP that the parent is in agreement with. The parent’s stated that the parent has been unable, in this timeframe, to get acceptance from a school. (T. 61)

In October 31, 2013 a was administered. (Exh. C) The report indicates that the student is mostly non-verbal except for signing words “ .” All information was provided in the report by the parent. According to the parent, the student is able to put on his clothing without fastening it although he may put it on backwards. He is able to use a fork and spoon properly to eat.

The student appears to have a with regard to a hot stove or fire but he is not aware of street safety and . The student was unable to recognize letters or numbers. He was not able to .

According to the report the student did after October 4, 2013. (Exh. C)

On October 31, 2013 a Social History was conducted. (Exh. D) The student previously attended a program . The reason for referral indicated that there was a request for reevaluation and to assess transportation paraprofessional and possibly a new school.

The parent testified that her son was in school Sometime in September there was an incident with the were called and the student was taken (T. 65-66) The student receives home instruction program two hours a day. In school, the parent stated her son had . The parent testified that the home provider does . (T. 72)

She stated that . He used to Previously, he used to communicate , he is not able to do that. (T. 69) The parent stated that her son has been on home hospital instruction since November 20, 2013. The and his

The parent testified that she received progress reports during the school year. The reports most likely stated that the related services continue at the same amount and that he had made progress. (T. 101)

An IEP was developed on November 13, 2013. (Exh. B) The parent has applied to , but he has not been accepted. has requested evaluations. (T. 106)

DISCUSSION

The parent requests “-an immediate pendency order to the current home and and related service that [the student] is receiving.” The student’s current placement . The district has conceded that they did not offer a FAPE since they are unable to find an appropriate school for this student. (T. 61) The parent does not want to send the student and continues to seek a school for the student to attend. Since the date of the complaint, June 2014 the parent has been unable to find a school. (T. 61) Assuming arguendo that I would order the the parent has not agreed to such placement. The district testified extensively at the hearing of the schools that have not accepted the student. (T. 84 – 95)

The Federal and State statutes refer to the child’s "then current educational placement", which has been defined to mean the last mutually agreed upon placement at the time when the due process proceeding was commenced (Zvi D. v. Ambach , 694 F. 2d 904 [2d Cir., 1982]; Drinker v. Colonial School District, 78 F.3d 859 [2d Cir., 1996]). Implicit in the concept of a pendency placement is the requirement that a school district must continue to finance an educational placement which it made, and to which the child's parents agreed, prior to the parents' request for a hearing. The U.S. Office of Education has opined that a child's then current placement would " … generally be taken to mean current special education and related services provided in accordance with a child's most recent individualized education program (IEP)" (EHLR 21:48), (see also Zvi

D. v. Ambach, 694 F. 2d 904 [2d Cir., 1982]; Drinker v. Colonial School District, 78 F. 3d 859 [3d Cir., 1996]; Gregory K. v. Longview School District, 811 F. 2d 1307 [9th Cir., 1987] ).

In the present case, the agreed upon placement is home instruction. Therefore the request for a pendency order is denied.

The parents request “an interim order that will increase the student’s home instruction to reflect an additional two hours a day of Special Education Teacher Support Service .” (Exh. A)

The parent testified that the student in September 2013. (T. 72) The evaluation records indicate that the student’s last day of class was October 4, 2013. (Exh.

C) The parent stated the student 2013. (T. 72) She testified in that he is . (T. 69) The report dated evaluator that the student put his clothes on backwards. Although this student received services from November 2013 through August 2014 no reports from the providers were submitted. The parent stated that the service providers gave her progress reports regarding the student’s progress. (T. 101)

I found the parent’s . Based on the evidence and testimony, I find that the parent failed to meet their burden for increased home instruction.

The parent has requested compensatory education. Compensatory education, i.e., special education services provided to a student after he or she is no longer eligible because of age to receive such services, is a permissible remedy under the Individuals with Disabilities Education Act (IDEA) when the student has been excluded from school or denied appropriate educational services for an extended period of time (Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Mrs. C. v. Wheaton , 916 F.2d 69 [2d Cir. 1990]; Lester H. v. Gilhool, 916 F.2d 865 [3d Cir. 1990]; Miener v. State of Missouri, 800 F.2d 749[8th Cir. 1986]). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F, Supp. 147 [N.D. N.Y. 1997]).

According to the school documents in evidence submitted by the parent, the student stopped attending school on October 4, 2014. The parent testified that after the incident she contacted the news media. (T. 68) Additionally, she retained an attorney.

(T. 73) The district conducted evaluation on October 31, 2013 for the purposes of understanding and addressing the . (Exh. D) The date of the IEP was November 13, 2013. The parent testified that the student began receiving services on November 20, 2013.(T. 71)

In light of the circumstances I cannot find that this student has been denied a program for an extended period of time. The parent’s request for compensatory education is denied.

Parent requests a Nickerson Letter. The Nickerson letter remedy authorizes a parent to immediately place the student in an appropriate special education program in a State-approved nonpublic 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]).

In this case, an IHO has no jurisdiction indirecting the district to issue a Nickerson letter to the parent because neither an IHO, nor an SRO, have jurisdiction over matters related to the stipulation reached in the Jose P. class action suit. The remedy provided by the Jose P. decision was intended to address those situations in which a student had not been evaluated within 30 days or placed within 60 days of referral to the CSE (Jose P., 553 IDELR 298; see R.E., 694 F.3d at 192, n.5; M.S., 734 F. Supp. 2d at 279; see also 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. 00092). Jurisdiction over class action suits and consent orders (and by extension, stipulations containing injunctive relief) issued by the lower federal courts rests with the district courts and circuit courts of appeals (see 28 U.S.C. § 1292[a][1]; Fed. R. Civ. P. 65; see, e.g., Luigino's, Inc., 423 F.3d at 141-42; Wilder v. Bernstein, 49 F.3d 69, 75 [2d Cir. 1995]; Pediatric Specialty Care, Inc. v. Arkansas Dep't of Human Serv., 364 F.3d 925, 933 [8th Cir. 2004]; M.S., 734 F. Supp. 2d at 279; E.Z.-L., 763 F. Supp. 2d at 594; Application of a Student with a Disability, Appeal No. 12-039 [indicating that "[n]o provision of the IDEA or the Education Law confers jurisdiction upon a state educational agency or a local educational agency to sit in review of or resolve disputes over injunctions or consent orders issued by a judicial tribunal"]), and "it has been held that violations of the Jose P. consent decree must be raised in the court that entered the order" (see P.K. v. New York City Dep't of Educ, 819 F. Supp. 2d 90, 101 n.3 [E.D.N.Y. 2011]).

Consequently, neither an IHO nor SRO have the 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 (R.K. v. New York City Dep't of Educ., 2011 WL 1131492, *17 n.29 [E.D.N.Y. Jan. 21, 2011], adopted at 2011 WL 1131522, at *4 [Mar. 28, 2011], aff'd sub nom. R.E., 694 F.3d at 167; W.T. v. Bd. of Educ., 716 F. Supp. 2d 270, 289-90 n.15 [S.D.N.Y. 2010]; see F.L. v. New York City Dep't of Educ., 2012 WL 4891748, at *11-*12 [S.D.N.Y. Oct. 16, 2012]; M.S., 734 F. Supp. 2d at 279 [addressing the applicability and parents' rights to enforce the Jose P. consent order]).

The parent’s request for a Nickerson letter is denied. Dated: September 29, 2014

, ESQ.

Impartial Hearing Officer

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 Impartial Hearing Request, dated 6/19/14, 5 pages B IEP, dated 11/13/13, 15 pages C Report, dated 10/31/13, 11 pages D Social History, dated 10/31/13, 3 pages

DEPARTMENT OF EDUCATION

IMPARTIAL HEARING OFFICER

I IHO Order, dated 8/11/14, 2 pages 7 8