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: April 24, 2015

Actual Record Closed Date: April 24, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 24, 2015

For, psychologist (via telephone), psychologist (via telephone) — DOE

For — Parents

Parents

Dr., Director, at

(via telephone)

This is New York City case # . On April 24, 2015, 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 (DOE) Impartial Hearing Office at . , impartial hearing representative, represented the Department of Education (DOE), while , Esq. represented the Parent. Ms. brought with her , a new DOE representative, to observe this impartial hearing. Although the Parent agreed to have her observe this hearing, I had her leave because she had participated in this case by writing the DOE due process response. (Tr. 6-7) It is possible that she could be called as a witness in this impartial hearing or its appeal. The interpreter was . A list of documents received into evidence and the witness who testified is attached to this decision.

ISSUE

The issue in this impartial hearing is whether the DOE denied a “free and appropriate public education” (FAPE) to during the 2013 – 2014 and 2014 – 2015 school years, and if so, what constitutes an appropriate remedy. The Parent requests compensatory education in the form of a placement now through the end of the 2015 – 2016 school year. The Parent requests that this impartial hearing officer order the DOE to place in the ( ) or in the alternative, issue a P-1 Nickerson Letter to the Parent to fund ’s placement there.

DEPARTMENT OF EDUCATION’S POSITION

The DOE contends that this impartial hearing officer does not have authority to issue a P-1 Nickerson Letter and that the Parent must consider schools before placing in an school. (Tr. 136) The DOE claims that “ ” because there are schools that are willing to consider for placement now. (Tr. 14)

THE PARENT’S POSITION

The Parent believes that the DOE has denied a FAPE for two years. She contends that should be placed at the ( ) now, or that this impartial hearing officer should order the DOE to issue a P-1 Nickerson Letter to let her place there.

FINDINGS OF FACT

is a old student who has a issues.

(Ex. G at 4 and 6) A evaluation by a doctor at the dated April 4, 2013 provided with a diagnosis of and suggests rule out of and a rule out of . (Ex. F at 2) ’s history includes and months earlier. (Ex. F at 1) The notes indicate that is “ ” (Ex. F at 3) The DOE “ ”

(CSE) originally classified ’s disability as “ .” Later, the CSE reclassified “ ”( ) and the appropriateness of that classification is not an issue in this impartial hearing.

In school, presented as a student with “

” “ ”

. (Ex. H at 2) The Individualized Education Program (IEP) Team at his

School changed his disability classification to “ ” recommended a school placement, and deferred to the “Central Based Support Team” (CBST)

to select a school site for . But the August 8, 2013 IEP indicates that ’s disability classification was “ ” ( ). (Ex. C at 1) Yet the IEP also states:

“

” (Ex. C at 2)

The CSE deferred to the “Central Based Support Team” (CBST) on August 9, 2013, and the referral form states that ’s disability classification is “ ” (Ex. 6 at 1, Ex. 8) There is an inconsistency in classification on the paperwork between the IEP and the CBST deferral form completed the following date.

The CBST rejected the placement “due to classification of which was changed during the IEP meeting in School but not written in his IEP.” (Ex. H at 2, Tr. 43) The DOE witness stated that “ students are not appropriate for placement.” (Tr. 43) In the DOE’s opening statement in this impartial hearing, the DOE admitted that:

“The Central Based Support Team rejected this placement, due to the fact that the student was classified as Classification of is necessary for residential placement.” (Tr. 12)

I find that was not placed in a placement following

, at least partially, due to a clerical error on his August 8, 2013 IEP as a matter of fact.

The DOE provided three additional reasons for the CBST’s rejection of ’s placement in addition to the disability classification. First, the Principal did not sign a defer to CBST checklist (Tr. 34, 42) A DOE school psychologist testified that she “sent emails to him” and “that is all the steps that I can take.” (Tr. 51) The SESIS

Events Log does not establish any efforts to get the Principal to sign the checklist. (Ex. 10)

Second, the DOE did not have “recent updated documents of ” because fall of 2013. (Tr. 34, 46) A DOE witness testified that “. . . There was no possible way to gain any updated information of ” (Tr. 34-5) But the DOE school psychologist witness did not realize that , and she admitted that is itself . (Tr. 47, 51) Third, the DOE wanted an updated evaluation before placing .

“ : And where would the – how would the school obtain

– where would the school get a evaluation?

: From the parent. Theparent is supposed to bring it to the school assessment team, to submit the document to the team for us to acquire and upload it into the SESIS system.” (Tr. 35-6; See also Tr. 54)

All of these reasons to reject the placement recommendation are based upon missing or incorrect paperwork rather than the needs of the Student, (Tr. 45-6) The DOE contends that it was missing documents because did not cooperate by attending school and evaluations and his Parent did not provide a timely evaluation of .

The CSE reconvened on December 16, 2013 four months after the CBST rejected the placement for The CSE drafted another IEP dated December 16, 2013 that placed in a in a school although the IEP also states “Other Options Considered . . . in a school is not appropriate for the Student, and the Student needs a more restrictive placement such as school or placement.” (Tr. 41-2, Ex. 5) In this impartial hearing, the DOE admitted that, “The District recognizes that the program was not the most appropriate recommendation for the student. However, this goes towards a denial of FAPE and it does not justify the awardance (sic) of a Nickerson Letter”. (Tr. 13)

Instead of the CSE-recommended placement, attended the in the during the 2013 – 2014 and 2014 – 2015 school years. He was . On October 26, 2014,

. (Ex. H

at 1) was supposed to , but he refused to . (Ex. H at

1) In October 2014, he was the subject of a manifestation determination review, and the CSE found to be a manifestation of ’s disability. (Tr. 70-1)

A social history dated October 29, 2014, establishes that Mr. , the school principal, and ’s Mother wrote a letter requesting a reconsideration of ’s school placement to a more restrictive setting. (Ex. H at 1)

.

“

” (Ex. H at 1)

The Parent has been to various agencies, including , to seek help for . (Tr. 110)

On December 16, 2014, a conducted a re-evaluation of His document review established that ’s scores are in the range, but his was level in and . (Tr. I at 4-5) The gave the diagnosis of

, ,

, , , and . (Ex. I at 9)^[1] The

“ ” recommended placement in a:

“. . . program with component. He requires a placement in school because he needs and in order to benefit from instruction and make academic progress. The classes should be to ensure individual attention and throughout the school day.

The student needs ongoing program with a focus on

.”

(Ex. I at 11)

The CSE finally reconvened again on March 9, 2015, and it deferred to the CBST for a placement for a second time. This time, the CBST accepted the referral.

(Tr. 66-7) In this impartial hearing, the DOE representative stated on the record that two in-state approved schools are now “interested” in as of the night before this impartial hearing opened. (Tr. 15) These schools require to come for a visit as part of their admissions process, and has not been willing to cooperate with that process. (Tr. 114-5) already accepted based on a review of documents without requiring to visit the school.

Meanwhile, still attends a class at the in the when he attends school at all. attended during the 2013 – 2014 school year, but had to during the 2014 – 2015 school year. He is still , but has some strengths. He is , and he has intelligence. (Ex. I at 10) was also willing to participate in an evaluation. (Tr. 72-3)

The Mother visited the in 2012, and she would like to send there. He has been accepted there. (Tr. 116; Ex. J) The

( ) is a New York State Department of Education approved special education school for children with disabilities, including , in . (Tr. 78) Most students are , and students - . (Tr. 102) The school provides , including

.

(Tr. 100, 102) has a environment as suggested for by the evaluation. (Tr. 84)

uses a system so that students may “

” “ ” that include

. (Tr. 82, 87) offers a “ ” system, including

s. (Tr. 87) avoids or minimizes

, . (Ex. L at 2; Ex. M at 12; Tr.

84-5) Daily school attendance is required so

. (Ex. L at 2; Tr. 86) tries to maintain

environment and . (Tr. 95) does not accept all applicants, as it rejects students with issues. (Tr. 96)

fits the profile of a student at , and believes that the School can address ’s needs. (Tr. 80-2) can implement ’s March 9, 2015 IEP and provide him an . (Ex. 3; Tr. 87-8, 89-91, 93) still has an opening and has room for now. (Tr. 103)

The Parent requested this impartial hearing through her attorney on March 27, 2015. (Ex. A) In her complaint, the Parent requested placement at , or in the alternative, a P-1 Nickerson Letter to fund such placement. (Ex. A at 3)

CONCLUSIONS OF LAW

The basic principle of the IDEA is the development and implementation of an

“Individualized Education Program” (IEP) for each IDEA eligible student. Subsequent to its development, an IEP must be properly implemented. See New York State Commissioner of Education Regulation Section 200.4(e)(7) A pplication of a Child with a Disability , Appeal No. 08-087, and A pplication of a Child with a Disability , Appeal No.

09-111.

The Second Circuit recognized that in New York City, parents participate in a CSE meeting but then the DOE determines the school location and sends the parents a Final Notice of Recommendation with the name of the school.

“The Department’s practice is to provide general placement information in the IEP, such as the staffing ratio and related services, and then convey to the parents a final notice of recommendation, or FNR identifying a specific school at a later date. The parents are then able to visit the placement before deciding whether to accept it. We have held, however, that the term “educational placement” refers “‘only to the general type of educational program in which a child is placed.’” (cites omitted) The Department may select the specific school without the advice of the parents so long as it conforms to the program offered in the IEP. (emphasis added)

R.E. v. New Y ork City D ep't of Educ., 694 F.3d 167, 191-192 (2d Cir. N.Y. 2012).

When the CSE recommendation is for an approved in-state or out-of-state private school, the DOE has an additional thirty days in which to place the student.

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.

New York Commissioner of Education Regulation Section 200.4(e)

In this case, the CSE developed an August 9, 2013 IEP that placed in a nonpublic placement, and the CSE deferred to the CBST to select an approved school site. The "CBST" has been described as an office that receives cases from the CSE and then works with families and non-public schools to find appropriate programs for students. See A pplication of the Departm ent of Education, Appeal No. 09-

033. The CBST identifies State-approved nonpublic schools where a student’s IEP will be implemented. A pplication of A Student With A Disability , Appeal No. 12-235.

Instead of locating a nonpublic school for , the CBST rejected the CSE’s 2013 placement of in a school due to missing and incorrect paperwork so the DOE never implemented the August 8, 2013 IEP. Rather than contact the CBST to confirm the reasons for the rejection and correct the paperwork, the CSE waited four months to reconvene and came up with a school placement for . The CSE admitted that it was an inappropriate placement on the IEP itself.

This failure to implement the August 8, 2013 left in an inappropriate school placement for two years during which time he was from the known inappropriate placement, was in that school setting, and .

In this impartial hearing, the DOE provided four reasons why the CBST rejected the placement in August 2013 and they all involve missing paperwork. The DOE contends that the CBST: 1) does not place students whose disability classification is in schools; 2) the Principal did not sign a checklist; 3)

’s at precluded the DOE from reporting on there, and 4) the Parent failed to provide the DOE with a timely evaluation of . None of these reasons are valid.

1) Classification

The DOE contends that a student with a disability classification of cannot be placed and ’s August 8, 2013 IEP indicated a classification of In this impartial hearing, the DOE representative cited no federal or state statute, regulation, or case law that prohibits placement for students whose disability has been classified as “ ” The representative did not even refer to a DOE policy to that effect.

Classification is not supposed to drive placement.

“I remind the parties that a student's special education programming, services and placement must be based upon a student's unique special education needs and not upon the student's disability classification.”

A pplication of a Student with a Disability, Appeal No. 09-126 Furthermore, had a disability classification of “ ” not “ ” at the time. There was a clerical error on the August 8, 2013 IEP so that it indicates instead of . All other documents and testimony in this impartial hearing establishes that this was a clerical error.

2) Principal’s Checklist

In this case, the Principal and the Mother wrote a letter to the DOE requesting a more restrictive placement for but there was testimony that the Principal was also supposed to complete a checklist for the CBST and he did not do it. State regulations mandate timelines for placement and for the implementation of IEP’s that cannot be delayed waiting for paperwork. DOE procedures cannot be so extensive and lengthy that it does not comply with mandated timelines.

3) Update

The DOE claims that it did not have “

” or reports because was

. Some of this time, he was because .

Furthermore, the DOE witness admitted that could have comprised the update report. Lastly, there is a lack of reason in putting a student in a placement the CSE admits is not appropriate right on the IEP, and then penalizing the Student when he is truant from that inappropriate placement.

4) Updated evaluation

The DOE wanted an updated evaluation before placing in August 2013. The evaluation was to support his classification as . (Tr. 53) First, the classification of is based upon a student’s in school rather than a diagnosis so no diagnosis or evaluation is necessary. See Commissioner of Education Regulation 200.1(zz)(4). Second, the only evidence of this requirement in this impartial hearing is a statement on an Assurance Checklist that reads under the heading of “Evaluations,”

“Date of (required for any student classified as unless a written justification is submitted indicating why it is not needed”” (Ex. 7 at 1)

So the DOE did not really need an updated evaluation of in 2013.

There was an alternative option of simply writing a justification and there was more than enough information to write a justification. Lastly, if the DOE wanted a evaluation to determinate appropriate classification, the DOE was supposed to conduct one itself at no cost to the Parent.

The IDEA requires “Local Educational Agencies” (LEA’s) to provide medical services as a related service when those services: are provided by a licensed physician to diagnose a child’s disability, determine the need for special education, and determine the type and extent of related services that may be needed; and are permitted for diagnostic reasons, but do not include direct, on-going medical treatment by a physician.

"Medical services" are those provided by a licensed physician, including a psychiatrist. See 34 CFR §§300.16(a), (b)(4), (b)(11); Irving Independent School Dist. V .

T atro, 468 U.S. 883, 892-894 (1984) Under the IDEA, LEA’s must provide those "medical services" that are needed for diagnostic or evaluation purposes, Cedar Rapids

Community School District V . Garret F. 526 U.S. 66 (1999)

I find that the DOE violated the basic mandate of the IDEA when it failed to implement the August 8, 2013 IEP and place in a placement. The fact that the DOE is finally taking steps to find a placement for now in the spring of 2015 does not remediate its failure to appropriately place during the 2013 – 2014 and 2014 – 2015 school years. The failure to implement the CSE’s recommendation in the summer of 2013 left in an inappropriate class in a public school for two years where he during the 2013 – 2014 school year and again during the 2014 – 2015 school year.

Compensatory Education

Compensatory education is an equitable remedy that may be awarded to students who are no longer IDEA eligible when there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. B urr v. A mbach, 863 F.2d 1071 (2d Cir. 1988); M rs. C. v. W heaton, 916 F.2d 69 (2d Cir. 1990), Somoza v. New Y ork City D ep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 (2d Cir. 2008); P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008)

Compensatory education in the form of “additional services” may be awarded when, as in the instant matter, the student is still IDEA eligible.

An impartial hearing officer has discretion in fashioning an award of compensatory education. Compensatory education is tailored to meet the unique circumstances of the case. W enger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).

A pplication of a Child with a Disability , Appeal No. 02-019 Although "[t]here is no obligation (under IDEA) to provide a day-for-day compensation for time missed," most courts routinely do so, in the absence of evidence that such relief would be inappropriate or overcompensatory. (Id.) See M anchester Sch. Dist. v. Christopher B., 807 F. Supp.

860, 871-72 (D.N.H. 1992); M iener v. State of M issouri, 558 IDELR 123 (8th Cir. 1986).

Remedy

The Parent requested compensatory education in the form of a placement at for the 2015 – 2016 school year because the 2014 – 2015 school year is almost over. is a member of the certified class in the 1979 class action suit. See

Jose P. v. A mbach, 557 F. Supp. 1230 (S.D.N.Y. 1983). The certified class in Jose P.

encompassed “all handicapped children between the ages of five and twenty-one living in New York City . . . who have not been evaluated within thirty days or placed within sixty days of [notification to the Department].” (Ex. O, P, Q) When the New York City DOE fails to provide a timely evaluation or a timely placement, 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.”

A pplication of a Student with a Disability , SRO Appeal No. 10-011

In the case before me, the DOE has not placed in a timely manner since 2013. The

DOE representative questioned whether an impartial hearing officer has authority to issue a P-1 Nickerson letter although she could cite no statute, regulation, or case law that supports her position. I find that the impartial hearing officer does have the authority to order the DOE to issue a P-1 Nickerson Letter.

I find that can provide with a environment with appropriate , and . Furthermore, takes steps to ensure that so that will not be . Lastly, also takes steps to . I find that is an appropriate placement for I found that the DOE denied a FAPE to during the 2013 – 2014 and 2014 – 2015 school years. This denial of FAPE led to his failure to over a two year period of time. Although a gross violation is not necessary to order additional services as compensatory education, I find that the DOE did commit gross violations of the IDEA in failing to place in 2013; in relying on classification to drive placement; in requiring the Parent to provide the DOE with a evaluation rather than conducting one itself; and in focusing on forms, paperwork, and procedures rather than ’s individual needs and appropriate education.

Order

I order the DOE to immediately issue a P-1 Nickerson Letter for placement in any New York State Department of Education approved school from May 1, 2015 to June 30, 2016.

Dated: May 4, 2015

, 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

DOE

1 Due Process Complaint, dated March 27, 2014, 4 pages

2 Due Process Response dated 4/6/15, 3 pages

3 IEP dated 3/9/2015, 11 pages

4 Prior Written Notice, dated 3/30/15, 7 pages

5 IEP dated 12/16/2013, 13 pages

6 Final Notice of Recommendation, dated 8/9/2013, 2 pages

7 Deferral to Central Based Support Team, dated 8/9/13, 5 pages

8 Form, dated 12/17/13, 1 page

9 IEP dated January 11, 2013, 10 pages

10 SESIS Events Log, various dates, 15 pages

PARENTS

A Omitted as duplicate

B Due Process Response, 3 pages, dated April 6, 2015

C IEP dated 8/9/2013, 11 pages

D Omitted

E Omitted

F Evaluation, dated April 4, 2013, 3 pages

G Student Report Card, dated 9/12/2014, 1 page

H Social History update, dated 10/29/14, 4 pages

I Evaluation, dated December 16, 2014, 11 pages

J Acceptance Letter, dated 9/4/2014, 1 page

K Education Procedures at , 7 pages, undated

L Features, 11 pages, undated

M Procedures, dated May 2002, 16 pages

N Educational Progress for ’s , dated January 28,

2010, 9 pages

O Jose P., 21 pages

P Jose P. Order, dated 7/2/82, 7 pages

Q Jose P. Stipulation dated 7/28/1988, 5 pages

Footnotes

[1] I note that this and the use of “ ” diagnoses establishes that the used the instead of the that went into effect on January 1, 2014. Therefore, while I gave considerable weight to the information and recommendation in this evaluation, I did not give weight to the diagnoses because they are based on outdated criteria.