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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: February 7, 2012
Record Close Date: May 3, 2012
Hearing Officer: Edgar De Leon, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 7, 2012
Attorney — Student
Parents
District Representative — DOE
On November 23, 2011, I was appointed the Impartial Hearing Officer (“IHO”), to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(1), Article 89 of the New York State Education Law, Parts 200 and 201 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act, regarding a dispute between the Parent of a
(19) year old student attending a New York State approved out-of-state residential school, and the New York City Department of Education (“DOE”), Home District: Service District: , concerning that student’s special education program.
After the “resolution period” and adjournments having been granted either on consent or for cause, the impartial hearing was held on February 7, 2012. A list of the witnesses testifying and documents received into evidence are attached to this decision.
BACKGROUND
This case involves a n accordance with her last IEP dated September 8, 2010, the student was differed to the Central Based Support Team (“CBST”) for an alternative placement recommendation. (Id.) The CBST was unable to offer the student alternative placement. (Id.) Consequently, the student was placed . (Id.) On or about April15, 2011, the Committee on Special Education (“CSE”) reconvened in order to provide the student with an appropriate placement educational program for the 2011-2012 school year. (Id.) The CSE recommended a twelve month placement in a New York State approved residential site. (Id) As of the filing of the DPC, the Parent alleges that the CSE/CBST has not made an appropriate residential placement recommendation for the student. (Id.)
THE DOE’S CASE
The agency argues that the parent's letter to the CSE was post dated November 9, 2011, and that on December 27, 2011 the DOE sent a letter to the Parent scheduling a psychological evaluation of the student for January 17, 2012. (T-24-25) The DOE alleges it was unaware the child had been evaluated elsewhere. (T-24) The DOE acknowledges that the Parent should be entitled to a Nickerson Letter; however, the DOE’s only objection to the same is that the Parent wishes to place this student at a residential school. (T-27-28) The DOE proffers that the Parent cannot receive a Nickerson Letter for a residential school. (Id.) The parties were given an opportunity to submit a Memorandum of Law on whether or not a Nickerson Letter can be issued for a residential placement, a New York State approved school that is residential placement. (T-29) The DOE did not submit a memorandum of law.
THE PARENT’S POSITION
The Parent argues that on July 20, 2011, she submitted a letter to the CSE requesting a CSE review meeting to address the child's educational program. (T-10) The Parent further argues that although there is a factual dispute as to whether the letter was mailed on July 20, 2011 or November 9, 2011, as the DOE argues, the DOE still failed to have a CSE review meeting for this student and it has been more than (65) day from whichever date is used. (T-24). The Parent requests placement for the student at the ”). (P-A) The Parent did submit a Memorandum of Law.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A “Nickerson Letter” is a letter from the DOE to a Parent authorizing the Parent to place the child in an appropriate special education program in any state-approved private 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 SRO Nos. 06-088, 02-075 & 00-092) The remedy is also available when a student has completed all necessary evaluations but a final notice of recommendation is not sent and/or given to the Parents by the student’s eligibility date. There again, the Parent must be sent/given a Nickerson Letter entitling the student to be placed in an appropriate nonpublic school at public expense. (Jose P., et al. v. Thomas Sobol, et al., 1995 WL 591304 (EDNY) - Stipulation)
The record makes clear that there was a CSE review meeting on April 15, 2011, for the 2011-2012 school year. (T-16) The Parent also alleges that as of today, the CSE/CBST has not offered the student an appropriate educational placement. (T-16-17) The agency concedes that if the student had a CSE meeting in April, then by June there should have been an offer and placement. (T-27) The DOE only object to giving the Parent a Nickerson Letter for a residential school. (T-27-28) is a non-public out-of State residential school that has been approved by the Commissioner of Education for students with disabilities. (See 8NYCRR 200.1[d], 200.7)
NOW, therefore, it is hereby
ORDERED that the DOE shall issue a “Nickerson Letter” to the Parent to pay for the costs of the student’s attendance at her current New York State approved residential school for the 20112012 school year. Dated: May 14, 2011
___________________________________
EDGAR DE LEON, 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 ON FEBRUARY 7, 2012
PARENT
A Hearing Request, 11/22/11, 3 pp. B Due Process Response, 11/28/11, 3 pp. C Report, 8/13/10, 10 pp. D Social History Update, 8/13/10, 5 pp. E Parent Letter to CSE, 7/20/11, 1 p. F Recommendation Letter, 8/15/11, 1 p. G Evaluation, 9/13/11, 14 pp. H Evaluation, 9/19/11, 7 pp. I Recommendation Letter from Clinic, 9/21/11, 1 p. J Weekly , 1/31/12, 7 pp. K Program Description, 1/31/12, 4 pp. L Treatment Summary, 1/31/12, 3 pp. M Class Schedule, Various dates,[1] p. N Tuition at , Various dates, 2 pp. O Educational Procedures at , Undated, 7 pp. P Distinguishing Features, Undated, 11 pp. Q Positive Programming Procedures, May 2002, 16 pp. R Educational Progress for , 1/28/10, 9 pp. S JoseP v. Ambach, Report with Appendix, 12/14/81, 21 pp. T JoseP v. Ambach, Memorandum and Order, 1/5/82, 4 pp. U JoseP v. Ambach, Order, 7/2/81, 7 pp. V JoseP v. Ambach, Stipulation, 7/28/88, 5 pp. W JoseP v. Ambach, Judgment, 12/14/79, 10 pp. X JoseP v. Ambach, Memorandum and Order Report Number 8, 1/5/82, 12 pp.
DEPARTMENT OF EDUCATION
Footnotes
[1] Envelope from Letter from Parent, 11/9/11, 1 p.