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: October 4, 2011

October 27, 2011 Actual Record Close Date: October 27, 2011 Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 4, 2011

Attorney — Student

Representative (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 27, 2011

Attorney — Student

Representative (via telephone) — DOE

On July 6, 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 and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parents of a ( ) year old student attending a New York State approved residential private school and the New York City - Department of Education (“DOE”) - Home District , Service District: , regarding the student’s special education program.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”)

made by the student’s Parents through her attorney(s), the Law Offices of and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about July 6, 2011. (P-A) The DPC is carried under New York City (“NYC”) Case No.

133853. A motion for an Order on Pendency was made by the Parent’s attorney(s) a hearing was held on the same on October 4, 2011. On that date, the hearing was completed and the following Order on Pendency was issued on consent of the parties:

ORDERED on CONSENT and pursuant to the pendency provisions under the IDEA, the student shall immediately continue to receive the services provided under the decision of IHO James McKeever dated September 14, 2009, the costs of which are to be paid by the DOE upon the agency’s receipt of reasonably satisfactory proof of said services having been rendered; and it is further

ORDERED on CONSENT, that a copy of IHO ’s decision dated September 14, 2009, shall accompany this order for reference.

The matter was next set down for a hearing on the merits on October 27, 2011. A list of the persons who appeared at the hearing and the documents entered into evidence is annexed hereto. The following Final Order is issued on consent of the parties.

FINAL ORDER ON CONSENT

The Parents’ DPC having been duly filed pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education; and

Notice having been duly given to the DOE; and

The matter having come on for a hearing on the merits before this IHO, at which time the Parents appeared by their attorney(s), , Esq., and the DOE by its representative, Dr. ; and

The Parent having requested the issuance of a “Nickerson Letter” and/or “P-3 Letter”; and

A “Nickerson Letter” and/or “P-3 Letter” being 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); and

The remedy of a “Nickerson Letter” and/or “P-3 Letter” being 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); and

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. (Jose P., et al. v. Thomas Sobol, et al., 1995 WL 591304 (EDNY) Stipulation); and

The DOE agreeing to waive a hearing on the merits and the issuance of a “Nickerson Letter” and/or “P-3 Letter” on behalf of the Parent; and

A proposed Final Order consented to by all the parties having been presented to this IHO on the record as being in the best interest of both parties; and

This IHO having determined that the parties’ consent to the proposed Order on Pendency was made knowingly, intelligently and voluntarily;

Now, therefore, it is hereby

ORDERED on CONSENT that the DOE shall immediately issue a “Nickerson Letter” and/or “P-3 Letter” and pay for the costs of the student’s attendance at the New York State approved private residential school for the 2011-2012 school year. Dated: November 7, 2011

___________________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

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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, 7/1/11, 2 pp. B DOE DPC Response, 7/14/11, 3 pp. C IEP, 5/4/11, 12 pp. D Findings of Facts and Decision, 9/14/10, 6 pp. E , 6/1/11, 15 pp.