NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 27, 2012
Record Close Date: October 3, 2012
Hearing Officer: Christine Moore, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 27, 2012
Attorney — Student
CSE- District Representative — DOE
Education Administrator (via telephone) — DOE
PROCEDURAL HISTORY
On September 27, 2012, 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 (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 parent’s attorney by correspondence dated July 2, 2012 wherein the family seeks public funding for a residential placement of at the (“ ”), a New York State approved school (Ex. A).1 I was appointed as hearing officer on July 3, 2012.
The parties were unable to resolve the matter during the resolution period and on August 6, 2012, a pre-hearing conference was held via telephone with the parent’s representative. A Department of Education (“DOE”) representative could not be reached via telephone; nevertheless, the matter was scheduled to proceed to hearing on August 17, 2012. The DOE requested an adjournment of that hearing date stating a scheduling conflict. As the matter was scheduled without consultation with DOE, the request for an adjournment was granted and the matter was rescheduled to proceed on September 27,
2012. I was available to conduct a hearing within fourteen days of the end of the resolution period.
On September 25, 2012, the DOE and the parent jointly requested an adjournment of the hearing date due to the unavailability of witnesses. That request was denied. The hearing commenced and concluded on September 27, 2012.
The parties unilaterally moved to extend the compliance date due to the availability of witnesses. In considering the request I weighed the cumulative impact of the relevant factors, specifically the impact on the student’s educational interest and wellbeing; the need of the parties to present their position at hearing in accordance with the requirements of due process; any financial or detrimental consequences likely to be suffered by a party in the event of a delay; if there had already been a delay in the
References to Hearing Exhibits are prefaced with “Ex.” proceeding through the actions of the parties; and if there was a compelling reason or specific showing of substantial hardship by the party requesting the extension.
Having fully considered the cumulative impact of the relevant factors as set forth in 8 NYCRR § 200.5(j)(5)(ii) 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 matter. Finally, neither party at any time demonstrated any financial or other detrimental consequences that were likely to be suffered by a party in the event of a delay nor had there been a delay in the proceeding through the actions of one of the parties.
Accordingly, the request for an extension of the compliance date was granted due to the availability of witnesses in this matter. The request for an extension of time was responded to in writing and the parties were notified in writing of the reason for the extension and the new date for the rendering of my decision.2 This written response is documented in this administrative record as hearing officer exhibit i. 3 The record close date was October 3, 2012 and the compliance date for issuing a decision is October 17, 2012.
BACKGROUND
The student is a -year old male initially placed at in 2009 pursuant to an order directing the DOE to issue a Nickerson Letter (Ex. A, B). The student is classified with an (Ex. D).
THE DOE’S POSTION
It is the DOE’s position that it is in the process of obtaining a final placement for the student (Tr. 12).4
THE PARENT’S POSTION
It is the parent’s position that the CSE convened on January 30, 2012 and agreed to continue the recommendation for a New York State approved residential school (Tr. 12). However, as of the date of the hearing, the parent is unaware of any placement 8 NYCRR § 200.5(j)(5)(iv).
8 NYCRR § 200.5(j)(5)(i).
References to the hearing transcript are prefaced with “Tr.” recommendation for the 2012/2013 school year (Tr. 12-13). The parent seeks an order directing the DOE to issue a Nickerson Letter, because the DOE failed to offer a placement within 65 days of the referral (Tr. at 13).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The purposes of the IDEA (20 U.S.C. §§ 1400-1482) are to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A][B]; Schaffer v. Weast, 546 US 49 [2005], Board of Education of the Hendrick Hudson Central School Disrict v. Rowley,458 U.S. 176, 206-07 [1982]).
The parent seeks a Nickerson 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. 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).
The evidence adduced clearly establishes that the DOE failed to provide the student with a placement for the 2012/2013 school year. , Education Administrator with the DOE, credibly testified that this student was assigned to her and that as of the date of this hearing, the student was not accepted into an in-state non-public school (Tr. at 16). Further testimony indicated that a request was interposed to have the student continue in his current placement at , but that request was denied for tuition but approved for maintenance (Tr. 17). The request has since been renewed, but to date, the state has not responded (Tr. 17).
Pursuant to the student’s IEP, he is mandated for a twelve month school year and as such, since more than 65 schools days have passed since the referral without a placement, the parent is entitled to a Nickerson Letter authorizing attendance in a State approved non-public school at DOE expense.
ORDER
1. The DOE shall issue a Nickerson Letter or P-1 Form authorizing the student to attend an approved New York State non-public school, to wit , at no cost to the parent for the 2012/2013 school year. Dated: October 12, 2012
____________________________________
CHRISTINE MOORE, ESQ.
Impartial Hearing Officer
CM:dl
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 SEPTEMBER 27, 2012
PARENT
A Impartial Hearing Request, dated 7/2/2012, 2 pages B Findings of Fact and Decision, dated 8/11/2009, 19 pages C -3 Approval Notice, dated 9/4/2012, 2 pages D IEP, dated 1/30/2012, 15 pages
DEPARTMENT OF EDUCATION
1 Omitted as duplicative 2 Case Assignment E-mail, dated 9/27/2012, 2 pages 3 Omitted 4 IEP dated 1/30/2012, 12 pages 5 Region Conference Agenda Sheet, dated 1/30/2012, 1 page 6 Form, dated 7/1/2012, 1 page 7 Form, dated 9/1/2012, 2 pages
IMPARIAL HEARING OFFICER
I IHO Decision on Request for Extension, dated 9/17/12, 1 page