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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: September 15, 2011
November 28, 2011 Actual Record Close Date: November 30, 2011 Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 15, 2011
Dr. CSE Representative — DOE
(via telephone)
Attorney — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 28, 2011
Dr. CSE Representative — DOE
Attorney Mother — Parents
Dr. Clinician — Parents
PROCEDURAL HISTORY
On September 15, 2011 and November 28, 2011, I conducted an impartial hearing at the offices of the Department of Education located at 131 Livingston Street, Brooklyn, New York pursuant to the Individual with Disabilities Education Act (“IDEA”), 20 C.F.R. 1400 et seq., regarding the special education program of U.I. (hereinafter referred to as “the student”). A list of persons in attendance and documents received in evidence are appended hereto.
The proceeding was initiated at the request of the student’s attorney by correspondence dated July 1, 2011 wherein it is alleged the Department of Education (“DOE”) failed to offer the student a free and appropriate public education for the 20112012 school year and seeks an order directing the DOE to pay all education and maintenance tuition charges for the student’s residential placement at (“ ”) from July 1, 2011 through June 30, 2012 (Ex. A) 1.
I was appointed as hearing officer on July 5, 2011. To my knowledge the DOE did not interpose a response to the due process complaint notice. The parties were unable to resolve the matter during the resolution period and a pre-hearing telephone conference was held on or about August 5, 2011, 2011 wherein a pendency hearing date was scheduled. A pendency hearing was held on September 15, 2011. An interim order on pendency dated August 25, 2011, ordered that until such time as this matter is withdrawn or a final decision is rendered, that the pendency placement of this student as of the date when this due process proceeding was commenced on July 5, 2011, is embodied in the Findings of Fact and Decision dated August 25, 2010 in case number , to wit, the continued funding of the student’s placement at the
The impartial hearing continued on November 28, 2011 and concluded on that date. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors pursuant to the Regulations of the Commissioner § 200.5(j)(4)(ii-iii) and found that the need of the parties for additional time to prepare and present its positions in accordance with the requirements of due process was greater than any delay in the resolution of the
References to Hearing Exhibits are prefaced with “Ex.” matter especially in light of the fact that the student’s educational interest and well-being was in no way affected by granting the requests. Accordingly, the requests for extensions of the compliance dates were granted due to the availability of witnesses on the part of the DOE and Parent. The current record close date is November 30, 2011 2 and the compliance date for issuing a decision is December 14, 2011.
BACKGROUND
The student’s mother testified that the student is years old and is currently attending (Tr. 46). The student’s mother testified that the student began attending the in September of 2010 (Tr. 47). The parent is of the opinion that is an appropriate placement and she would like her daughter to continue attending for the current 20112012 school year (Tr. 48). The parent also testified that she did not participate in Committee on Special Education review meeting for the 2011-2012 because she never received notice of an annual review (Tr. 47).
THE PARENT’S POSITION
It is the Parent’s position that because the DOE fail to offer the student a placement of the 2001-2012 school year, the DOE should issue a Nickerson (P-1) letter that would entitle the student to be placed at a New York State approved school at the DOE’s expense, to wit . In the alternative, the Parent asserts that the District failed to offer the student a free appropriate public education for the 2010-2012 school year, that is an appropriate placement and that the equities support prospective funding for that placement (Tr. 18).
THE DISTRICT’S POSTION
The DOE concedes that a placement was not offered to the student for the 20112012 school year (Tr. 16). At hearing the DOE had no knowledge or information with respect to whether an Individualized Education Program (“IEP”) was developed for this student for the 2011-2012 school year.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Parent seeks a Nickerson (P-1) letter from the DOE authorizing the parent to place the student at , a state approved school, at no cost to the parent. (see Jose P. v.
1 I note for the record that the hearing transcript from the November 28, 2011 hearing date was not received until December 8, 2011. 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 Application of the Bd. Of Educ., Appeal No. 06-088; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092). In this case I find the DOE failed to offer the student a placement (Tr. 16). Under the circumstances, I find that a Nickerson letter is an appropriate remedy.
ORDER
1. The DOE shall provide the parent with a Nickerson letter authorizing the student to attend the at no cost to the parent for the 2011-12 school year. Dated: December 12, 2011
_____________________________
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 ON
PARENT
A Impartial Hearing Request, 7/1/11, 2 pp. Parent B Findings of Fact and Decision, 8/25/10, 27 pp. Parent C Quarterly Progress Reports, 9/10-12/10, 6pp. Parent D Quarterly Progress Reports, 12/10-3/11, 7 pp. Parent E Quarterly Progress Reports, 3/11-6/11 8 pp. Parent F and , 7/21/11, 10 pp. Parent G Charts, 11/18/11, 7 pp. Parent H Student Report Card, 2010-11, 1 p. Parent I Program Description, 11/18/11, 5 pp. Parent J Treatment Summary, 11/18/11, 3 pp. Parent K Classroom Schedule, undated, 1 p. Parent L Education Procedures, undated, 7pp. Parent M Distinguishing Features, undated, 11 pp. Parent N Positive Programming Procedures, 5/02,16pp Parent O Jose P. v. Ambach Decision, 1/5/82, 12 pp. Parent P Jose P. v. Ambach Order, 7/8/82, 5 pp. Parent