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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: November 9, 2012
Actual Record Close Date: November 30, 2012
Hearing Officer: Elise B. Kestenbaum, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 9, 2012
Mother — Student
Psychologist (via telephone) — Student
Representative — DOE
Teacher (via telephone) — DOE
School Psychologist (via telephone) — DOE
Introduction: — DOE
This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by ., the Parent (“Parent”) on behalf of ., the student (“Student”), by filing a Due Process Complaint dated September 4, 2012 with the District.
The Parent is alleging that her son, , was denied a free and appropriate public education (“FAPE”) for the 2012-13 school year and is requesting a Nickerson letter to enroll him in a private school.
There was one day of hearing in this matter. The hearing was conducted on November 9, 2012. Extensions were granted in this case making the final compliance date December 17, 2012. A list of Exhibits is attached as Exhibit A. The District, the Parent and the impartial Hearing Officer submitted exhibits.
Background
This case involves an old student who is classified with . Tr. 60. During the 2012-13 school year . attended .
With respect to the 2012-13 school year, an Individualized Education Program (“IEP”) was developed on May 5, 2012. This IEP was subsequently revised. P-H. The Special Education Program recommended for . was an special education classroom for Math, (five times per week), ELA (ten times per week); Social Studies (two times per week); Science (three times per week); and for Art, Health and Computer (one time per week). P-H. He would also receive , two times per week, for 40 minutes each time as a group service; Occupational Therapy, two times per week for 30 minutes each time, and , , one time per week, for 30 minutes as a group service. P-H.
The Parent filed a Due Process Complaint on September 4, 2012. IHO-I. I was appointed as an Impartial Hearing Officer on September 4, 2012.
Position of the Parties Parent’s Case
The Parent called two witnesses, and the mother and placed sixteen (16) documents in evidence. P-A – P-P.
The first witness was Dr. . He has a doctorate in child and school psychology and has been working for the past 15 years with a specialty in child psychology. Tr. 85. He has been qualified as an expert witness in court proceedings as a forensic evaluator. Tr.
86. The first time he saw . was in November of 2010 and he has continued to see him once a week for the past two years. Tr. 85. He testified that is a child with a lot of that needs a school environment that can handle children on the spectrum, with and with . Tr. 86. He also stated that . needs extensive structure, a very small student to teacher ratio, a lot of focus on social skills, behavioral and emotional regulations, and a setting that can focus on impulse control issues and frustration tolerance. Tr. 87.
On cross examination, Dr. testified that he has been working with him on social skill issues, frustration tolerance, decision making and how they impact on other people with limited progress. Tr. 88. He has also worked with . on techniques to manage his anger and frustration and the acting out and has introduced different breathing and relaxation techniques. Tr. 88. He has also worked with the Parents to help deal with these issues since it can be very significant and draining. Tr. 89. He also indicated that there are periods that is better and then other periods when he is worse. Tr. 89. He testified that he works with .’s neurologist and the Parent, hand in hand, but that . has significant that sometimes can be very resistant to the kinds of interventions they are implementing. Tr. 89. Dr. testified that it’s a once a week therapy and he also needs something that is a very program based structure that he would find in the kind of academic setting that is being recommended. Tr. 90.
Dr. does not believe that a CTT setting, like . was in last year, would be appropriate, nor did he think a CTT setting with a paraprofessional would be appropriate. Tr. 90. Dr. stated that . needs “probably three teachers in a room and maybe three or five kids in a room, or maybe they can make due with a few more kids, but he needs a tremendous amount of focus.”. Tr. 91. Dr. did state that although he did not know the intimately, from the description, an environment with the ability to work as needed is much more structured than the environment he is in and the school appears to have good experience working with students with . Tr. 91. Dr. stated that in terms of regulating his , it is difficult to get him . He can be physical and roll around on the things. Tr. 92. Dr. stated that it’s almost like there’s both a physical and . Tr. 93.
The next witness was ., the mother. She testified that she believes that the most appropriate placement for her son would be the program at the with the related services that are on his IEP. Tr. 109. She stated that the process for finding a placement has taken a long time and the District has not done so in a timely manner. Tr. 109. Although she requested that be reevaluated in March 2011, it was not completed until December 2011. Tr. 109. Even though the material for the IEP meeting was received in February 2012, the IEP meeting was not held until May 2, 2012, more than a year after the Parent requested the evaluation. Tr. 110. The paperwork was then sent to CBST in May and although a determination was made to deny placement on June 28, 2012, the date that the Parent received the document was August 21, 2012. P-A. In the CBST response it said was not appropriate for a non-public school recommendation for the following reasons:
(1) “programs and interventions in less restrictive environment be sought for the student in the public school system before seeking such a highly restrictive program recommendation of defer to CBST”; (2) “social history was dated 7/20/11 and is therefore not within the six month guideline for a case deferred to the CBST”; (3) “the IEP does not indicate whether this student requires an FBA or a BIP and whether these interventions were tried” and (4)” the team can consider a para in the current setting”. Tr. 111. The CBST indicated that if “these interventions are unsuccessful, a small class can be looked into”. Tr. 111.
The mother testified that all the interventions suggested have been tried including a and a and the fact that the Social History was not up to date was the District’s responsibility. Tr. 111.
The mother also stated that she never received the response from CBST, therefore, in August, she went to the CSE office and they printed out the rejection letter. Tr. 113. She then called , the chairperson of the Region 10 Committee on Special Education and asked for a Nicherson letter so she could find a suitable placement for P-
A. She also sent a letter to him requesting this. P-A. He responded by email stating that she needed to speak to the personnel at his school. Tr. 114. She immediately called the school to arrange a meeting and they scheduled it after the start of school on September 10, 2012. She met with Ms. , the psychologist and Ms. , the social worker. Tr. 115.
Since the student was not given a placement after CBST rejected the referral, . continued at PS 210. Tr. 115. Ms. and Ms. stated that they would update the Social History and re-refer the case to the CBST. Tr. 115. The mother testified that the psychologist and social worker stated that they would also change the IEP to include the . Tr. 116. The meeting that took place on September 10, 2012 and was not a CSE meeting. The mother stated that the amended IEP (P-H) was given to the mother on October 1st but was never finalized. Ms. did not submit the amended IEP to CBST as promised. Tr. 117. In this regard, on November 7, 2012 the mother received a letter from Mr. the assistant principal (P-A) indicating that the case would not be resubmitted to the CBST until the hearing took place. Tr. 117.
The mother also stated that in September 2012 she began the process of looking for an appropriate placement for . She submitted an application to , a state approved school in Manhattan for children with and was rejected. Tr. 118. She then contacted . Tr. 119. They went for an interview and was evaluated by Ms. the director of admissions. He was accepted to the program on October 24 subject to making minor changes to his IEP. Tr. 119. The changes would not require the District to pay additional funds. Tr. 119. The only change from the May 2nd IEP would be from class to an class since that is the size of the classes at the . Tr. 120; P-H. She testified that this would not be a change in funding or services, just size. P-E, P-F. The mother stated that during the past two years, . did not have a para, though he continued with the Behavior Intervention Plan. The mother testified that .’s problems do not involve behavior issues though he benefits from behavior management. Tr. 125. She testified that his main issues are the social skills deficits and the language problems which cause the frustration. Tr. 125. She testified that the para did not make a difference in managing his the past two years and he didn’t require one. Tr. 125-126. The mother testified that his needs have gotten more intense this year. Tr. 126.
The mother stated that language needs are significant and the evaluation prepared by Comprehensive Consultants in December 2011 indicates that the CELF-4 shows moderate and significant delays in his receptive and expressive language skills which are approximately 2 and 2.5 standard deviations, respectively below the mean average for his chronological age level. Receptively, presents with noted delays in his auditory processing skill. Tr. 127; P-I. In an evaluation done in February 2011, . received a receptive language index of 76 which is in the fifth percentile, which indicated that his receptive skills are very impaired for his age. Tr. 128. An auditory processing evaluation was done in March of 2011 indicated that . has difficulties with decoding, bineural integration and separation, short term auditory memory and organization. Tr. 128, P-M. The evaluation recommends monitored classroom use and continued and . Tr. 128. Even though FM system was recommended prior to the last IEP meeting, the mother testified that it was not placed on his IEP. Tr. 129. In addition, although adaptive technology was approved and is on his IEP, he hasn’t received it. Tr. 129.
The mother testified that he is in a dual language school and that he is exposed to Spanish at home. Tr. 129. She testified, however, that his are and there has been no indication by professionals that his exposure to another language has . Tr. 129.
The mother testified that she had a meeting with current special education teacher in his present CTT class, and the teacher advised her that she was spending sixty percent( 60%) of her time one on one because of his . She stated that the teacher indicated that if . were to continue in the setting he is in, even though it is not the right setting, he would need a para since he is unable to keep up with the classroom work and requires separate work. Tr. 131. The mother also addressed the letter sent by .’s neurologist who has been seeing him since 2010. She stated that Dr. stated that “[ .] has failed his current placement in the NYC public school system” and that he should be referred for immediate placement since he is not making progress in his current setting. P-O; Tr. 132. He specifically recommended the . Tr. 132. District Case The District called one (2) witnesses, and placed two (2) documents into evidence. D-1 – D-2.
Ms. has a Bachelor’s degree in Psychology and Education, a Masters in bilingual Special Education and a bilingual extension. Tr. 69. She has been working as a teacher for the District for seven years and has been in for the last three years. Tr. 70.
Ms. is familiar with . because she was teacher in his CTT class with a coteacher. Tr. 70. She testified that he has amazing and can in his head, is very outgoing and eager to join learn. Tr. 76. His and tends to when he . Tr. 71. He also has . Tr.
71. Ms. testified that it “is hard for him to really know with other kids.” Tr. 71.
Ms. testified that the “biggest area of progress that they saw was…how he dealt …” Tr. 72. She indicated that he found losing a game very difficult and would have . Tr. 72. She feels that it is hard to see progress in Reading or Math. She attributed this to the fact that his and his would go up and down and the . Tr. 73. Ms. testified that he can read at a level and if he is in a small group working with a teacher guiding him, he can talk about the book. Tr. 73. She further testified that for writing, he always needed a teacher next to him and one to one support. Tr. 73. He was always in a small group for Reading, Writing and Math sitting next to the teacher giving the lesson or sitting in the back with the other teacher. Tr. 73. He had a with him to facilitate his day. Tr. 73. He had a so they would use the to get him . They had a whole procedure with respect to this, however Ms. stated that “it worked sometimes and other times it didn’t, and it was really a lot of one on one…”. Tr. 74.
Ms. testified that in .’s present CTT class there are between 27 and 30 students and last year there were 22 students (11 with IEPs). Tr. 75. Ms. stated that has quite frequently whenever there . Tr. 75. She stated that it usually happens at least once a day during . Tr. 76.
Ms. testified that she was part of the team that created the IEP for . on May 2, 2012. Tr. 76-77. She participated in the meeting and provided observations as his coteacher. Tr. 77. With respect to that IEP, Ms. testified that there were certain changes including a change in diagnosis to and a change in placement to a smaller setting of in a special education school that would be able to better support and that dealt students that are on . Tr. 78. Ms. stated that “needs to be in a special education setting…” Tr.
79. She also testified that she did not think and other skill were being addressed appropriately. Tr. 79. She specifically said that “he needs to be in a setting where more attention can be given to him so that he can succeed.” Tr. 79.
On cross examination, Ms. stated that his did not just stem from his symptoms and but also his . Tr. 80. She also stated that she thought his placement at the ,a private school that works with students would be “ideal” for .. Tr. 81. Ms. testified that at the CSE, the team deferred the case to CBST to provide him with a small setting in a special education school. Tr. 82.
The next witness was . She has a special education degree and a Master’s degree as a school psychologist. Tr. 97. She presently works as a bilingual school psychologist for the District and has been employed in this position for the last 16 years. Tr. 97. Ms. testified that she is familiar with . because she has been at for the last two years. Tr.
97. She was part of the team that took part in the May 2nd CSE meeting and helped develop his program. The program that they recommended was an in a state approved non-public school. Tr. 98. Ms. testified that “it was best to defer to CBST because a District was not really going to address the issues that [ .] has, because [K.G.] has so many issues that basically no one specific class in District was going to be able to address”. Tr. 99. She also felt that the present placement, in a CTT class could not address the child’s behavior and the academic delays. Tr. 99. The parties that were on the team that made the decision to defer his case to the CBST were a social worker, a classroom teacher, the assistant principal, the mother and a parent member. TR. 100.
Ms. testified that she observed in the classroom and his was unpredictable in the classroom and the cafeteria. Tr. 100. She testified that in her professional opinion she felt that . would benefit from a smaller setting in a specialized school that will address his , his academics and offer him . Tr. 102. The school that is presently at, has worked with his mother, the in regards to interventions and strategies. Tr. 102. They also were involved with the Ms. testified that .is a lovely child and if they find the right placement for him, he would succeed but right now she feels that in the school he is presently in since , he is not better regardless of what everyone has done to improve his . Tr. 103. Ms. testified that based on her awareness of the and his placement in an class, she thinks that he could excel in that class and make more progress in that setting. Tr. 104. She also testified that the programs in the District are for . is not a child with those issues.
Findings
Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. 1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516 , 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. Of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see, Rowley, 458 U.S. at 189). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and …affords the student with an opportunity greater than mere ‘trivial advancement’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see, Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.93-9).
The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).
The Parent alleges that the District failed to provide FAPE to . since there was no IEP in effect at the beginning of the school year. It is clear from the hearing record that a CSE meeting took place on May 2, 2012 and at that time, the team determined that the appropriate placement for . would be an class in a New York State approved private school to address his special needs. Accordingly, the CSE deferred the case to CBST for their review. P-G. On June 28, 2012 a package was sent to the CBST by the District. D-
1. The Parent was never notified that CBST denied the application for a non-public school recommendation even though there is a letter from the CBST dated June 28, 2012. P-A. The Parent received this notification on August 21, 2012, upon inquiring about the status of her son’s application. On August 23, 2012, she sent a letter to Mr. requesting a placement for her son. P-A. On September 6th, she received an email from Mr. , advising her to address the placement issue with the personnel at her child’s school. P-A. A meeting was held at the school on September 10th, after school had started. Tr. 114. was attending since he was not given another placement after CBST rejected the referral. Tr. 115. A new CSE meeting never took place, however changes were made to the May 2nd IEP following the meeting on September 10, 2012 between Ms. , Ms. and the Parent. This IEP was never finalized. Accordingly, the failure to have an IEP in effect at the beginning of the year and a placement constitutes a denial of FAPE.
In addition, his continuation at in a CTT class was inappropriate and did not meet his unique needs in the least restrictive environment and did not enable him to receive educational benefit. The District did not provide evidence that this setting was appropriate for In fact, at the hearing, the District’s witnesses, Ms. and Ms. clearly indicated that the student did not belong in a CTT class, nor a District placement and that the appropriate placement would be a state approved non-public school. It was also clear from the record that all parties at the CSE meeting believed that placement in a CTT class was inappropriate and that . belonged in a state approved non-public school designed to meet his special education needs. First, Ms. , his classroom teacher for the 2010-11 and 2011-12 school years testified that . belonged in a smaller setting of in a special school that could support kids on the autistic spectrum. Tr. 78. She also stated that she did not think his language needs and socialization needs were being addressed appropriately in a CTT class and that he needed “to be in a setting where more attention can be given to him so he can succeed.” She stated that she believed that the School would be an appropriate program for him. Tr. 81. Ms. , the social psychologist also testified that she felt he belonged in a state approved private school. Tr. 98. She felt that he was getting worse in his present placement and did not feel that a District school could appropriately address his needs since it is not geared for children with his issues. Tr. 103. She testified that based upon her awareness of the , she thought it would be an appropriate placement and that he could make progress in that setting. Tr. 104.
It is clear from the record that the District has not met its burden in demonstrating that it provided FAPE to First there was no IEP in place at the beginning of the 2012-
13 school year and second, the placement that he was in by default, a CTT class, was inappropriate to meet his needs. Although CBST indicated in their response to the CSE dated June 28, 2012 (and provided to the Parent on August 21, 2012) that the CSE should consider adding a para to the present setting and a and , the hearing record indicates that all of these interventions have been used and have not been successful. It is true that under State regulations, when considering more restrictive programs or placements as a result of a student’s behavior, a CSE “should consider the development of a behavior intervention plan” (8NYCRR 200.22[b]), however, it should be noted that . has had in effect since 2007, and he was being considered for a more restrictive program due to his , his difficulties as a result of his , his , and also, his . A para was in effect for several years and then was removed from his program for the past two years since it was not needed. Although he was not given a para this year, testimony was provided by Ms. indicating that his special education teacher in his present CTT class spends 60% of her time working with and they have not found this be appropriate. Therefore, the addition of a para would not make the CTT setting appropriate.
The Parent seeks a Nickerson (P-1) letter from the District authorizing the Parent to place the student at the , a NYS approved non-public school, at no cost to Parent. In this situation, the student was not given a placement for the 2012-13 school year when school started.[1] In this case I find that the District failed to offer the student a placement for the 2012-13 school year and failed to provide student with FAPE.. Under the circumstances, I find that the Nickerson letter is an appropriate remedy for placement of in a NYS approved private school for the 2012-13 school year. Based upon the foregoing, it is hereby ORDERED, that the Parent’s application for a Nickerson letter is hereby granted and the Student shall be placed in the for the 2012-13 school year at no cost to the Parent and the District shall fund s placement at said school. In this regard, a CSE meeting must be convened in order to amend the IEP for this recommendation. The IEP shall be amended to include placement at the in a 12 month program in a class staffing ratio of with related services as follows: one time per week, 40 minutes each time, ; , two times per week, 40 minutes each time, and one time per week, 40 minutes each time, and , two times per week, , 30 minutes each time. Dated: December 10, 2012
___________________________________
ELISE B. KESTENBAUM, ESQ.
Impartial Hearing Officer
EBK:jj
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 Series of Letters, Various Dates, 17 pp. B Individualized Education Program, 3/14/07, 23 pp. C Progress Report, 6/2007, 2 pp. D Individualized Education Program, 3/19/08, 17 pp. E Progress Report, 6/2008, 2 pp. F Individualized Education Program, 3/19/09, 12 pp. G Individualized Education Program, 5/2/12, 18 pp. H Revised Individualized Education Program, 5/2/12, 23 pp. I Evaluation, 12/16/11, 8 pp. J Evaluation, 10/10/11, 9 pp. K Evaluation, 2/2/11, 7 pp. L Diagnostic Report, 2/17/11,[2] pp. M Processing Evaluation, 3/14/11, 5 pp. N , K-Present, Various Dates, 42 pp. O Letter from and Dr. 10/30/12,[1] p. P Social History Update , 9/10/12, 3 pp.
DEPARTMENT OF EDUCATION
Footnotes
[1] A Nickerson letter is a letter from the Department of Education authorizing a parent to place a student in an New York approved non-public school at no cost to the parent (see Jose P. v. Ambach, No. 79 Civ. 270 [EDNY January 5, 1982], 553 IDELR 298] The remedy of a Nickerson letter is intended to address the situation in which a student has not been evaluated or placed in a timely manner. (see Application of a Student with a Disability, Appeal No. 11-046; Application of the Dep’t of Educ, Appeal No. 09-114; Application of a Student with a Disability , Appeal No. 08-020; Application of the Bd. of Educ. Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092.
[1] Defer to Central Package Checklist, 6/28/12, 3 pp.
[2] Individualized Education Program, 4/1/11, 45 pp. IMPARTIAL HEARING OFFICER I Impartial Hearing Request, 9/4/11*, 3 pp. *Incorrectly dated-was signed 9/4/12