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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: August 11, 2011 Actual Record Close Date: September 22, 2011 Hearing Officer: Edgar De Leon, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 11, 2011
Attorney — Student
Parents
Interpreter — Student
Representative — DOE
On June 23, 2011, I was appointed the Impartial Hearing Officer (“IHO”), to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Parts 200 and 201 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act, regarding a dispute between the Parent of a (15)
year old student attending a New York State approved out-of-state residential school, and the New York City Department of Education (“DOE”), Home District: 30, Service District: 75, concerning the student’s special education program.
After the “resolution period” and adjournments having been granted either on consent or for cause, the impartial hearing was held on August 11, 2011. A list of the witnesses testifying and documents received into evidence are attached to this decision.
BACKGROUND
This case involves a ( year old student classified with “ .” (P-A) She has been on numerous occasions as a result of symptoms. (Id.) The student has received special education services since . (Id.) She has a . (Id.) On December 23, 2010, the student she had with her brother. (Id.) The recommended a placement for the student upon her . (Id.) On April 8, 2011, the Committee on Special Education (“CSE”) recommended that the student be placed in a New York State approved non-public school as a 12-month student. (Id.) The CSE then differed the student’s case to the Central Based Support Team (“CBST”) in order to locate an placement. (Id.) As of the filing of the in this case, the Parent alleges that the CSE/CBST has not made an appropriate residential placement recommendation for the student. (Id.)
THE DOE’S CASE
The DOE conceded Prong I of the “Burlington/Carter” test for tuition reimbursement and declined to make an opening statement at the hearing. (T-7-8) The DOE also declined to make a closing statement. (T-32) The agency did not call any witnesses on its behalf and did not submit any documents into evidence. During voir dire, the agency stated that it did not see a dispute in this case because the student’s current school is a New York State approved school and the student needs a 12-month residential non-public school based upon her history. (T-14) The DOE also argued that there is currently no seat in the school it recommended for the student, because the Parent did not accept the offer. (T-15) Nevertheless, the agency does not feel that it would have made a significant difference because the Parent has the option to accept or reject an offer anyway and both the DOE recommended school and the student’s current school are approved by New York State. (T-17 & 27-8)
THE PARENT’S POSITION
The Parent argues that the hospital treatment team realized that the student would need a long-term placement after discharge from the . (T-8) On April 8, 2011, the Committee on Special Education (“CSE”) and the Parent agreed with the s position that the student needs a at a New York State approved non-public . (T-9)
In June of 2011, the CBST recommended a school that is about ( ) hours away from New York City. (Id.) The Parent visited the school but was not given the opportunity to actually see the facility for confidential reasons. (T-10) The recommended school issued an acceptance letter indicating that a placement would be determined. (Id. & P-Q) After waiting approximately two or three weeks, the Parent unilaterally placed the student at her current New York State approved residential school for the 2011-2012 school year. (Id.) The Parent seeks tuition reimbursement for the student’s placement thereat under either the Burlington/Carter test or the issuance of a “Nickerson Letter” pursuant to the so ordered stipulation in Jose P. v. Ambach. (T-11) It has been more than (650 days from when the CSE recommended a placement for the student on April 8, 2008, and the agency has yet to identify an appropriate placement.
(T-12 & P-B)
The Parent called one witness to testify on her behalf and submitted (16)
documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:
The student’s mother was the only witness to testify at the hearing. (T-19) She remembered participating at the IEP meeting on April 18, 2011. (T-19-20) She was told that a residential program would be recommended. (T-20) The student was in the at the time. (Id.) Two days after she sent the student to school on July 18th, she received a call from District saying that she had to come back to sign some papers. (T-21) She believes she visited the recommended school in June. (T-21-2) It took to reach the recommended DOE school. (T-21)
The witness stated that she was not satisfied with the visit because everything was very quick. (T-23) She did not have the opportunity to see the actual classrooms. (Id.)
She was not allowed to see any of the . (Id.) She wants the student to stay at her current because it is a safe place. (T-25)
On cross examination, the witness testified that she learned about the student’s current residential school through the computer. (T-26) On re-direct examination, she testified that a social worker at the hospital told her about the program. (Id.) There was no re-cross examination of the witness. (T-27)
During voir dire, the undersigned noted that the letter in evidence from the recommended school to the Parent states that the student has been accepted until an admission date can be set. (T-28 & P-O) The date would be confirmed by the school once the school knew that the Parent was interested. (Id.) The witness stated that she called the recommended school, received no reply and then had no further contact with anyone. (T-29) In a letter dated July 20, 2011, the Parent states that she visited the recommended school and did not like it because it was a long travel and she did not feel like she was welcomed. (T-30 & P-P) She likes the school because she feels that it is a secure environment, they don’t use of teaching is excellent. (T-30)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A “Nickerson Letter” is a letter from the DOE to a parent authorizing the parent to place the child in an appropriate special education program in any state-approved private 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 child has not been evaluated or placed in a timely manner. (See SRO Nos. 06-088, 02-075 & 00-092) The remedy is also available when a student has completed all necessary evaluations but a final notice of recommendation is not sent/given to the parents by the student’s eligibility date. There again, the parent must be sent/given a Nickerson Letter entitling the student to be placed in an appropriate non-public school at public expense. (Jose P., et al. v. Thomas Sobol, et al., 1995 WL 591304 (EDNY) -Stipulation)
State Review Office Decision No. 02-110 defines the standard of review to decide whether a case is “moot:”
“In general, a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome
(Murphy v. Hunt, 455 U.S. 478, 481 [1982]). In determining whether a controversy has become moot, the relevant inquiry is whether the facts alleged, under all the circumstances, show that there is a substantial controversy of sufficient immediacy and reality to warrant relief
(Christopher P. v. Marcus, 915 F.2d 794, 802 [2d Cir. 1990]). The State Review Officer is not required to determine issues which are no longer in controversy or to make a determination which would have no actual effect on the parties (Application of a Child with a Disability, Appeal No. 97-17;
Application of a Child with a Disability, Appeal No. 94-9).
An exception to mootness exists for claims that are "capable of repetition, yet evading review" (Honig v. Doe, 484 U.S. 305, 318 [1988]).
The exception applies only in exceptional situations (City of Los Angeles
v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed (Knaust
v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]). Controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again
(Weinstein v. Bradford, 423 U.S. 147, 149 [1975]). To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Russman v. Bd. of Educ., 260 F.3d 114, 120 [2d Cir. 2001]). …
Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation of recurrence (Video Tutorial Services, Inc. v. MCI Telecommunications
Corp., 79 F.3d 3, 6 [2d Cir. 1996]).
The record makes clear that there is no “substantial controversy” in this case. The
DOE did not call any witnesses, submit documents into evidence or even make an opening or closing statement. (T-8 & 32) The agency stated that it did not see a dispute in this case because the student’s current school is a New York State approved school and the student needs a school based upon her history. (T-14) Finally, the agency does not feel that there is a significant difference between the school it recommended and the student’s current school; because the Parent has the option to accept or reject an offer anyway and both schools are approved by New York State. (T-17 & 27-8) For all of these reasons, substantively, I hold that the issues raised in this case are moot.
NOW, therefore, it is hereby
ORDERED that the DOE shall issue a “Nickerson Letter” to the Parent to pay for the costs of the student’s attendance at her current New York State approved residential school for the 2011- 2012 school year.
DATED: October 4, 2011
___________________________
EDGAR DE LEON, ESQ.
Impartial Hearing Officer
ED:jj
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 Hearing Request, 6/22/11, 3 pp. B IEP, 7/20/11, 18 pp. C Evaluation, 7/19/11, 4 pp. D Addendum to . Evaluation, 11/1/10, 2 pp. E Summary, 2/14/11, 4 pp. F Acceptance Letter, 6/10/11, 1 p. G Program Description, 8/4/11, 4 pp. H Behavior Charts, 8/4/11, 7 pp. I Tuition, Various Dates, 2 pp. J Behavioral Educ. Proc., Undated, 7 pp. K Distinguishing Features, Undated, 11 pp. L Positive Prog. Procedures, 5/2002, 16 pp. M Jose P. v. Ambach Decision, 1/5/82, 12 pp. N Jose P. v. Ambach Order, 7/8/82, 5 pp. O Letter from Hillside, 6/20/11, 1 p. P Letter from Parent, 7/20/11, 1 p.