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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: December 1, 2011
Record Close Date: December 1, 2011
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 1, 2011
For the Student:
parent
Translator
For the Department of Education:
Administrator for Special Education the mother of., (“ ”) requested an impartial hearing on September 27 2011.
I was designated to hear this matter on October 1, 2011 pursuant to 20 U.S.C. Section 1415(f) (1). An impartial hearing was held on December 1, 2011. is an year old boy with a classification of . In his most recent Individualized Education Program (“IEP”) dated April 8, 2011, was recommended for placement in a with a staffing ratio of , with related services of and Services. The projected date for the IEP to be implemented was April 29, 2011. (DOE Ex. 1). DOE Position , an Administrator for Special Education, testified that in September 2010, the Department of Education (“DOE”) initiated “Phase 1 initiative”, pursuant to which students with disabilities were supposed to receive their mandated services at their home zoned schools. Pursuant to this initiative, was assigned to and placed in a general education class with Special Education Teacher Support Services (“SETSS”), rather than the mandated in his IEP. She acknowledged that his current placement at is not appropriate, and that a new placement must be offered, in accordance with his IEP.
During the hearing, Ms. secured a list of the schools within the parent’s school district which have openings in classes within s age range, and provided it to the parent. She stated that she will work with the parent to secure an appropriate class for Oliver.
Parent’s Position
The parent is seeking an appropriate class for as mandated in his IEP.
Findings of Fact, Conclusions of Law and Order
An IEP is required to be implemented if the student is enrolled in a district’s recommended placement. Application of a Student with a Disability, Appeal No. 11-055. Where a student has not been placed, within 60 days of referral to the Committee on Special Education, (“CSE”) the parent is entitled to a “Nickerson letter”, authorizing the parent to place the child in an appropriate special education program in a state-approved private school, at no cost to the parent. See Application of A Child with a Disability, Appeal No. 05-045, citing Jose P. v. Ambach, Nol. 79 Civ. 270 [E.D.N.Y.. Jan. 5, 1982].
There is no dispute that has not been placed in a in accordance with his April 8, 2011 IEP. Therefore, it is hereby ordered as follows:
1. The DOE shall forthwith offer an appropriate placement in a in accordance with his IEP. The DOE shall forthwith issue a Nickerson letter, authorizing the parent to place in an appropriate state approved private school, at public expense.
Dated: December 2, 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 DECEMBER 1, 2011
PARENT
None
DEPARTMENT OF EDUCATION
1 IEP, dated 4/29/11, 12 pp.