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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 11, 2012
Actual Record Closed Date: December 11, 2012
Hearing Officer: James P. Walsh, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 11,
2012
Father of Student — Parents
Mother of Student — Parents
Committee On Special Education Designee — DOE
The Matter of (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York on December 11, 2012. The undersigned had been appointed by the Impartial Hearing Office of the Department of Education of the City School District of the City of New York to preside over this matter on October 16, 2012, after the recusal of a number of previously-appointed Impartial Hearing Officers (IHO)s. After the conclusion of proceedings on December 11, 2012, the record was closed. The Record Close Date is December 11, 2012
Parent initiated this proceeding by the filing a Due Process Complaint Notice (I.H.O. Exhibit I), dated September 17, 2012 that was received by the New York City Department of Education’s Impartial Hearing Office on September 18, 2012 (I.H.O. Exhibit I). Parent alleged in his Due Process Complaint that Student had failed to receive his special education program during the 2011-2012 school year. In light of such, Parent requested the issuance of a “Nickerson Letter”. Parent, noting that Student’s needs had changed since his previous assessment, also expressed that he would like Student’s Individualized Education Program (I.E.P.) reviewed and upgraded and a twelve-month program considered (I.H.O. Exhibit I).
At the Hearing of December 11, 2012, District proffered twenty exhibits it sought to have entered into evidence. Parent consented to the admission of seventeen of such and those exhibits were received into evidence. (As neither party sought to make Parent’s Due Process Complaint Notice an exhibit in this proceeding, I have made it I.H.O. Exhibit I) (A listing of all such exhibits appears at the end of this Decision). District representative was advised that District could offer the exhibits not consented to by Parent upon the establishment of a proper foundation, after which I would rule on objections, if any, to the entry of such into evidence.
District then moved to dismiss Parent’s Due Process Complaint upon the ground that Parent had sought, as relief, the issuance of a “Nickerson Letter”, but that, by Decision issued by the State Review Officer in Application of Blank, Appeal No. 11-105, it had been ruled that Hearing Officers were not permitted to order the issuance of a “Nickerson Letter”. No prior Notice of Motion had been afforded Parent. Decision on the Motion was reserved; it is now denied. As was noted by the State Review Officer in Application of Blank, Appeal No. 11-105:
“A “Nickerson letter” is a letter from the district authorizing a parent to place a student in a New York State approved nonpublic school at no cost to 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 (see Application of a Student with a Disability, Appeal No. 11-046; Application of the Bd. 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)
Parent alleges in his Due Process Complaint (I.H.O. Exhibit I) that:
“[Student] was originally recommended for services October 31, 2011 the Department of Education Failed to place him in the appropriate setting therefore I would like to request a Nickerson Letter the DOE went well over the 60 day time frame to place [Student].”
Such is precisely the situation which a “Nickerson Letter” is intended to address. District misreads the State Review Officer Decision which purported to be the basis for District’s Motion to Dismiss.
District, after the admission into evidence of exhibits, called no witnesses and rested. District Representative Levine did, however, concede that District had never placed Student in the recommended special education placement required by the provisions of the Individualized Education Program (I.E.P.) that District’s Committee on Special Education (C.S.E.) had enacted for Student for the 2011-2012 school year. That I.E.P. (Exhibit 7) had classified Student as having a and recommended that Student receive his special education program in a Special Class in a Community School, having a staffing ratio of , with the Related Service of Counseling once per week in a group of three, thirty minutes per session (Exhibit 7). District Representative stated that such mandated placement was not provided because Parent had never signed a Consent for the initiation of special education services. However, such contention is disproved by District’s own Exhibit 9, which is a Final Notice of Recommendation and sets out Student’s special education program. Such document contains the signature of Student’s mother, dated October 31, 2012 directly next to a checked box “I consent to the recommended services”. (see also Exhibit 1 at p.3). Further, Parent testified that Student’s mother had been informed by the Building Principal that Student would have to be put on a waiting list, as there was no room for him in a special education classroom (I.H.O. Exhibit I). Such position by Parent was again recited in correspondence from Parent to Ms. , dated October 9, 2012 (Exhibit 2).
I conclusively find that Parent signed consent for Student to begin his special education program on October 31, 2011 and that District failed to provide Student with both his special education placement and his Related Service during the period beginning October 31, 2011 and concluding on the last day of the 2011-2012 school year.
The majority of District’s exhibits were created long after the filing of Parent’s Due Process Complaint, and appear to address the actions taken by District and its C.S.E. since the date of Parent’s filing of his Due Process Complaint. Such appear to have been the result of the mandated Resolution Session. District’s Representative and both of Student’s parents agree that Student has been placed, at some time during the 2012-2013 school year, and currently is in, a class setting. However, such post-filing actions by District do not enter into my decisions in this matter. I consider Parent’s Due Process Complaint as only addressing Student’s educational program during the 2011-2012 school year. Parent’s statements in his Due Process Complaint as to a hoped-for review of Student’s I.E.P. and his desire that a twelve month program for Student might be discussed, do not constitute issues presented for determination in this proceeding.
Having concluded that District failed to provide Student with his mandated program during the 2011-2012 school year, I turn now to a consideration of to what remedy, if any, Parent or Student might be entitled because of such failure. I do not find an Order requiring District to provide Student or Parent with a “Nickerson Letter” to be appropriate, in light of the fact that the 2011-2012 school year has now concluded. Moreover, Student has now been placed in an appropriate class, with which both parents are satisfied. However, as is evidenced by Student’s I.E.P. as prepared by District’s C.S.E. for the 2011-2012 school year (Exhibit 7), Student displayed significant academic deficits that were to be addressed by the provision of Student’s special education program. Student, because of the failure of District to provide such services, has been deprived of educational instruction for thirty-one of the forty weeks of the 20112012 school year. It is, I find, appropriate to provide Student with the opportunity to make progress in his deficit areas by the provision of ninety-three hours of remedial private one-to-one tutor instructional services at District expense. Such instructional services may be provided by or similar facility and at a rate not to exceed One Hundred Fifteen ($115.00) dollars per hour. Such hours must be used in full during the 2012-2013 school year or be forfeited. To facilitate Student’s attendance at the facility selected by Parent, Parent and Student shall be provided public transportation authorization or MetroCard to be used solely in transit to and from such location.
In similar fashion and for the same reasons, I find it appropriate to require District to provide Student with thirty-one sessions of Counseling, which may be provided by Student’s present school (in which case such shall be in addition to any Counseling services Student’s present I.E.P. mandates) or by the issuance to Parent of a Related Service Authorization
I recognize that Parent did not request such remedy in the Due Process Complaint filed (I.H.O. Exhibit I). However, the provisions of both Federal and New York State law require that a Due Process Complaint set out, among other things, the proposed resolution of the problem to the extent known and available to the party at the time (34 C.F.R. §300.153(4)(v)); 8 NYCRR 200.5(i)(1)(v)) (Emphasis is mine). Equitable considerations require that the failure by District to provide Student with his mandated program for a major portion of the school year not be permitted to go unaddressed in some remedial fashion.
ORDER
Based on the foregoing, it is HEREBY ORDERED that District #19 and the New York City Department of Education provide for Student to receive, at District and Department expense, ninetythree hours of remedial private tutorial instructional services at District expense. Such instructional services may be provided or similar facility and at a rate not to exceed One Hundred Fifteen ($115.00) Dollars per hour; and it is
FURTHER ORDERED that such hours as aforesaid must be used in full during the 2012-2013 school year or be forfeited; and it is
FURTHER ORDERED that, to facilitate Student’s attendance at the facility selected by Parent, Parent and Student shall be provided by District or Department of Education with public transportation authorization or MetroCard to be used solely in transit to and from such location; and it is
FURTHER ORDERED that District # and the Department of Education provide Student with thirty-one sessions of , which may be provided by Student’s present school (in which case such shall be in addition to any Student’s present I.E.P. mandates) or by the issuance to Parent of a Related Service Authorization Dated: December 17, 2012
___________________________
JAMES P. WALSH, ESQ.
Impartial Hearing Officer
JW;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
1. Letter from Parent, dated 11-13-12 2 ` 2 Letter from Parent to Ms. dated DOE 10-9-12 (4 pages; DOE)
3. Document List from SESIS re: Student (1 page; DOE)
4. Document List from SESIS re: Student Events 5 Not in Evidence (3 pages; DOE)
6. Resolution Agreement, dated 9-25-12 (1 page; DOE)
7. Student’s I.E.P. dated 7-20-11 (13 pages; DOE)
8. Final Notice of Recommendation, dated 11-7-12 (2 pages; DOE)
9. Final Notice of Recommendation, dated 10-14-11 (1 page; DOE)
10. Request for Reevaluation, dated 9-25-12 (1 page; DOE)
11. School Progress Report, dated 10-16-12 12 Not in Evidence 13 Not in Evidence (4 pages; DOE)
14. Student Progress Report, dated 11-6-12 (2 pages; DOE)
15. Letter to fro Consent to New Testing, dated10-9-12 and signed 10-21-12 (1 page; DOE)
16. Classroom Observation, dated 7-12-12 (1 page; DOE)
17. Psycho-educational Evaluation of Student by, dated 7-19-12 (4 pages; DOE)
18. Social History Evaluation by, dated 7-12-12 (2 pages; DOE)
19. Copy of Email between and DOE, dated 9-21-12 (1 page; DOE)
20. Copy of Email between and DOE, dated 9-10-12 (2 pages; DOE)
I. Parent’s Due Process Complaint Notice, dated 9-17-12 (2 pages; Parents)