Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student‟s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: February 14, 2011

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED

Parents

(via telephone) — Parents

Representative — DOE

Representative — DOE

(via telephone) — DOE

JURISDICTIONAL STATEMENT AND PROCEDURAL CONTEXT

By letter dated June 24, 2010 I was appointed to hear the Matter of pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA‟), 20 US Code §1415 (f)(1). It is noted that this is a Parental request, dated June 23, 2010, asserting that the Department of Education stands in abrogation of its duty to provide the child with a placement as recommended on his Individualized Education Program of January 20, 2011. To this end, the Parent maintains that more than 65 days have elapsed since was referred to the Committee on Special Education („CSE”) for re-evaluation and more than 30 days have transpired since the CSE made an explicit recommendation for residential placement in a New York State approved facility. As such, the Parent asserts that the Department of Education has violated its mandate pursuant to 20 US Code Section 1412 [a][3] and 8 NYCRR 200.6 (i)(1)(iii)(e). On February 14, 2011 a hearing on the merits was held. A list of persons in attendance and of evidence is appended hereto.

STATEMENT OF FACTS

is a year old child who presents with and , having been diagnosed with and . He is classified as . The child presents with , with substantial in the area of Most notably, is characterized by episodes of and which have required in the past. In January 2010, the child was admitted to a where he remained without appropriate educational services until July 2010. Exh. A. On July 26, 2010, the child was accepted and placed at the where he has remained to date.

, testified on behalf of the Department of Education. is the of the Central Based Support Team (hereinafter “”). Although she was personally unfamiliar with as a student, she testified regarding the ‟s protocol for placements. In particular, she testified that a Nickerson Letter as well as supporting documentation from the had been submitted to the twice on behalf of Tr. at 11-12. The second submission had been necessitated by a clerical error in the first CSE package reflecting inconsistent recommendations for the assignment of a . Upon appropriate re-filing of the child‟s application, recalled approving the child‟s placement at and forwarding the child‟s funding application, the “ ”, to the New York State Education Department for final approval. Ibid.

While the witness acknowledged that there is some question as to whether a Nickerson Letter may be utilized for a residential placement, this issue remains under discussion with New York State. Nevertheless, agreed that the Department of Education was the local education entity and would most likely be the responsible entity for tuition expenses incurred where a child has been admitted pursuant to Nickerson Letter. Ibid. at 15.

is the of the (hereinafter “”) She additionally testified that is currently a student at , having been admitted on July 26, 2010. is an approved New York State placement and had been accepted based upon the Parent‟s presentation of a P-1 Nickerson Letter. To date, has not received any reimbursement for either the maintenance or educational component of its program. Tr. at 23.

DISCUSSION

The remedy of a "Nickerson letter" is intended to address the situation in which a child has not been evaluated within 30 days or placed within 60 days of referral to the Committee on Special Education (see Application of a Child with a Disability, Appeal No. 05-048; Application of the Bd. of Educ., Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 02-075).

Clearly, as per the provisions of Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298) the child was entitled to a Nickerson Letter authorizing the parent to immediately place the child in an appropriate special education program in any state-approved private school, at no cost to the parent. Exh. B.

In fact, the P-1 Nickerson Letter was issued to the Parent through the CSE, forwarded to the School Based Support Team and ultimately submitted to New York State for final funding approval along with supporting P-2 documentation from . In reasonable reliance thereof, the Parent placed her child at , a New York State approved residential placement for special education.

A review of the Nickerson Letter offered to the Parent does not indicate any limitations in terms of the residential nature of the selected program. Rather, it authorizes placement in an appropriate special education program which can address the child‟s individual needs. The child‟s needs are amply described within the Individualized Education Program (“IEP”) of January 20, 2011 which states, “ classes in public schools and special classes in specialized public schools were rejected as was reported to need more support while attending the level programs due to in skills, as well as and - . . . Nonpublic day school programs were rejected as appears to need on a

24 hr basis.” Exh. 1 at 15. A P-2 letter submitted by credibly supports the Parent‟s claim that is equipped to meet educational needs. Exh. C. Given the Parent‟s reasonable reliance upon the Department of Education‟s issuance of a Nickerson Letter, the Department of Education, as the local educational authority, must be held responsible for the educational expenses borne by the Parent at .

Wherefore it is hereby Ordered that:

The Department of Education shall directly reimburse the for all tuition expenses as of July 26, 2010 and continuing prospectively during the 20102011 school year, pursuant to Connors v. Mills, 34 F.Supp. 2nd 795 (N.D. N.Y. 1998).

The CSE shall reconvene within 14 days of this Order for the purpose of amending the student‟s IEP to reflect placement at the .

The Parent shall be deemed the prevailing party. Dated: February 23, 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 FEBRUARY 14, 2011

PARENT

A Impartial Hearing Request, 6/23/10, 3 pages B P-1 Form and Resolution Agreement, 6/23/10, 4

pages C P-2 Form, 11/17/10, 2 pages

DEPARTMENT OF EDUCATION

1 NYC BOE IEP, 1/20/11, 17 pages