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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: October 9, 2012
Actual Record Closed Date: October 11, 2012
Hearing Officer: Dora M. Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 11, 2012
Attorney — Student
Father — Student
Mother — Student
DOE Attorney — DOE
The mother of requested an impartial hearing on August 1, 2012 for the purpose of seeking implementation of her son’s Individualized Educational Program (“IEP”). (IHO Ex. 1). I was designated to hear this matter on September 25, 2012 pursuant to 20 U.S.C. Section 1415(f) (1) after the prior hearing officer recused. An impartial hearing was held before me on October 9, 2012.
year old boy with a classification . He is . He mostly by and , and . As student, he attended . Several IEP meetings were held in connection with program for the 2012-2013 school year. While the Committee on Special Education (“CSE”) recommended that the case be deferred to the Central Based Support Team (CBST), the CBST rejected non-public school placement twice. On August 1, 2012 met to review program. He was recommended for placement in a special class with a staffing ratio of , with related services of . (IHO Ex. II).
The parents do not dispute the recommended program. (Tr. p. 6). Both parties agree that the Department of Education (“DOE”) offered a placement at ; but that the school was unable to, as of the start of the 2012-2013 school year, and up until the date of hearing, provide the special class ( ) recommended in his IEP. (Tr. p. 7).
has not attended school since August 1. (Tr. p. 6).
According to the DOE’s attorney, if were to enroll at , the school would provide him with his related services, and might place him in an ICT class with a special education teacher “so that he’s receiving something in between trying to work it out for him”. (Tr. p. 10). The DOE cannot state within what time frame would be provided with a special class. (Tr. p. 11).
PARENT’S POSITION
The parents are requesting the issuance of a Nickerson letter. (Tr. p. 13).
DEPARTMENT OF EDUCATION POSITION
Although the DOE concedes that the recommended site is unable to provide with a special class in accordance with his IEP, and is unable to specify a date when the IEP can be implemented, its position is that an Impartial Hearing Officer (“IHO”) does not have the authority to order the issuance of a Nickerson letter. The DOE cites Application for the Review of a Determination of a Hearing Officer, Appeal No. 12-021, in support of hits position. (Tr. pp. 13-14).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The recommended school must be capable of satisfying the student’s IEP requirements. See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009). A denial of FAPE (Free Appropriate Public Education) occurs if the district deviates from substantial or significant provisions of the student’s IEP in a material way. Application for the Review of a Determination of a Hearing Officer, Appeal No. 12-021. There is no dispute that the DOE has failed to offer placement at a school that can provide him with the program recommended in his IEP. The school’s offer to accept as a student, and provide him with his recommended related services, and possibly place him in an ICT class, deviates from his IEP in a material way and constitutes a denial of FAPE. (Id.).
In Application for the Review of a Determination of a Hearing Officer, Appeal No. 12-021, the State Review Officer held that the IHO erred in concluding that the school district failed to offer the student a FAPE based upon the issuance of a Nickerson letter, and ordering the district to pay for the student’s tuition costs at a non-state approved private school. The facts of the instant case are distinguishable. My finding that there has been a denial of FAPE is not based upon the issuance of a Nickerson letter. It is based upon the fact that the DOE has failed to provide with a school placement that can implement his IEP.
While the State Review Officer stated in In Application for the Review of a Determination of a Hearing Officer, Appeal No. 12-021, that an IHO does not have jurisdiction to resolve a dispute regarding whether the student is a member of the class in Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], he later stated in Application for the Review of a Determination of a Hearing Officer, Appeal No. 12-039, p. 13 as follows:
“In a proper case, however, nothing would preclude a party to an administrative due process proceeding form developing a hearing record with regard to the individual needs of a student and asserting arguments regarding appropriate relief, which may, in some cases, be similar to the relief granted to individual plaintiffs in Jose P.”
More than 60 days have passed since was recommended for placement in a special class with a staffing ratio the DOE has failed to offer him a placement consistent with his IEP. I find that issuance of a Nickerson letter is the appropriate remedy.
ORDER
For all of the foregoing reasons, it is hereby ordered that the DOE shall forthwith issue a Nickerson letter authorizing the parents to place at a state approved private school at DOE expense. Dated: October 12, 2012
DORA M. LASSINGER, 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
HEARING OFFICER
1 Due Process Request dated 8/1/12, 2 pages
2 IEP dated 8/1/12, 15 pages