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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 25, 2012
December 5, 2012
Actual Record Closed Date: December 7, 2012
Hearing Officer: Sharyn Finkelstein, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 25, 2012
FOR THE STUDENT
Parent
FOR THE DEPARTMENT
No appearance
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 5, 2012
FOR THE STUDENT
Parent
FOR THE DEPARTMENT
No Appearance
INTRODUCTION
I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the special education of for the 2012-2013 school year. The parent appeared pro se. I held a prehearing conference on October 18, 2012. The District was represented by A hearing was held on October 25, 2012 and no one appeared for the district. The case was adjourned to give the parent an opportunity to look for schools. The hearing was concluded on December 5, 2012 and no one appeared for the district.
The parent had moved to extend the compliance date on one occasion. The parent had appeared pro se and was unfamiliar with the procedure. The parent wanted to have an opportunity to look at potential schools. In considering the request I weighed the cumulative impact of the relevant factors and found that the need of the parent for additional time to prepare and present their position in accordance with the requirements of due process was greater than any delay in the resolution in this matter. Accordingly, the request for extension of the compliance date was granted.
BACKGROUND
is a . On March 5, 2012 an Individualized Education Program (IEP) meeting was held for the 2012-13 school year. (Exhibit B) They recommended a New York City Department of Education (NYC DOE) Specialized School. (Exhibit B page 11) At the pre-hearing conference Ms. acknowledged that a placement had not been offered. (Tr.
15) has been attending his zoned school. She acknowledged that he requires which is a District placement and not available in the zoned schools. (Tr. 17) Mrs. brought this hearing request (Exhibit A) in order to obtain a private school placement.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A Nickerson letter is a letter from the district authorizing a parent to place a student in a state approved non public 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 student has not been evaluated or placed in a timely manner. Application of the Dept. of Educt., Appeal No. 09-114; Application of a Student with a Disability, Appeal No. 08-020; A.T. v. New York State Educ. Dept, No. 99 CV 4166, 1998 WL 765371 at *1 n. 2{E.D.N.Y. Aug. 4, 1998) (citing Jose.P. v. Ambach, 669 F. 2nd 865 (2d Cir. 1982).
The testimony is undisputed that no placement was offered to for the 2012-13 school year. Even as late as December the parent testified that there has still been no placement. She testified that is not making progress and that she is currently seeking out other possible schools. In this case, I find that the District has failed to place in a timely manner, triggering the legal remedy of a Nickerson letter.
ORDER
The District shall immediately issue a Nickerson letter for for the 2012-13 school year. Dated: December 11, 2012
________________________
SHARYN FINKELSTEIN, ESQ.
Impartial Hearing Officer SF;mv
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 Impartial hearing request September 10, 2012 2 pages B IEP March 5, 2012 14 pages