New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 30, 2012

Actual Record Close Date: May 4, 2012

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 30, 2012

For the Student:

Attorney — Student

Mother — Student

Father — Student

For the Department of Education:

District Representative — DOE

District Representative — DOE

On February 27, 2012, 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 (13) 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 March 30, 2012. A list of the witnesses testifying and documents received into evidence are attached to this decision.

BACKGROUND

The following are undisputed facts in this case. (T-6-8) This case involves a ( ) year old student classified with “ .” (T-6) A Committee on Special Education (“CSE”) meeting was held February 14, 2012, wherein the student was recommended to be placed in a New York State approved school. (T-4) As of the date of the impartial hearing, a Final Notice of Recommendation (“FNR”) had not been issued by the DOE. (Id.) The Parents placed the student in a New York State approved non-public residential school on or about March 28, 2012. (Id.) The CSE does not dispute the recommendation. (Id.) However, when the case was sent to the Community Based Support Team (“CBST”) for approval, it was rejected. (T-4-5)

The Parents requested relief in the form of a “Nickerson Letter.” (T-7) As an alternative, the Parents requested an order directing the DOE to formally place the student at the New York State approved school for the remainder of the 2011-2012 school year. (Id.)

The issues to be decided do not involve questions of facts, as the above facts are not in dispute. (T-6-8) As such, a motion schedule was assigned, wherein the following issues would be addressed: (1) Does the CBST have the authority to reject the CSE’s recommendation? (2) Can a “Nickerson Letter” be issued in this case? (3) Is the New York State approved non-public residential school an appropriate placement for this student? (T-5-7) The Parents’ motion in support of their request was due by April 25, 2012. (T-10) The DOE’s opposition to the same, if any, was due on April 27, 2012. (Id.) The Parents’ reply, if any, the any opposition filed by the DOE, was due on April 30, 2012. (Id.)

THE DOE’S CASE

The DOE did not call any witnesses or submit any documents into evidence. (T3-12) The agency also did not file any opposition to the Parents’ motion in support of their request for relief. In an e-mail dated April 27, 2012, the director of Student Services CFN 604 stated the following:

We have read the affidavit from the [name of NYS approved non-public residential school] and we are concerned that nowhere in the affidavit do they speak about providing the mandated services of Occupational Therapy nor Hearing Ed Services. Can you clarify for us if they are providing these services that are mandated on IEP?

THE PARENT’S POSITION

The Parents called the “Masters Level Clinician Supervisor” of the New York State approved school to testify via affidavit. (IHO-3) The Parents’ attorneys submitted a Motion in Support of Parents’ Request for Nickerson Letter or Direct Tuition Funding at [name of NYS approved school] (IHO-1) and the Affirmation of [name of Parents’ attorney] in Support of Parents’ Motion. (IHO-2) All three documents were received as a part of the Parents’ motion in support of their request for relief.

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) - So Ordered Stipulation)

The record makes clear that there was a CSE review meeting on February 14, 2012, for the 2011-2012 school year. (T-6) The Parent also alleges that as of today, the CSE/CBST has not offered the student an appropriate educational placement. (T-7) The agency concedes that it has no objection with the student’s Individualized Education Program (“IEP”) recommendation for the student’s 12-month placement in a New York State approved residential school. (T-4) The student was placed in such a school by the Parents on or about March 28, 2012. (T-4)

IHO’s have authority to entertain and determine motions. (Dist. City 1 & Dist. City 2 Pub. Sch., 24 IDELR 1081 (SEA MN 1996)) In New York State, the formal rules of evidence and motion practice that are applicable in civil proceedings generally do not apply in impartial hearings. (See Cowan v. Mills, 34 A.D.3d 1166, 1167 [3d Dep't 2006]; Tonette E. v. New York State Office of Children and Family Servs., 25 A.D.3d 994, 995-96 [3d Dep't 2006] [strict formal rules of evidence need not be observed at administrative hearings]; Matos v. Hove, 940 F. Supp. 67, 72 [S.D.N.Y. Sept. 25, 1996], citing Silverman v. Commodity Futures Trading Comm'n, 549 F.2d 28, 33 [7th Cir. 1977 [Federal Rules of Civil Procedure do not apply to administrative proceedings] and SRO Nos. 05-007, 99-5 & 96-45)

Nevertheless, analogies to certain court rules in some situations do provide adequate guidance and might be drawn upon. New York’s Civil Practice Law & Rules (“CPLR”) authorize the entry of a default judgment where there has been a failure to appear in the action, a failure to plead, or a failure to proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed. (See CPLR § 3215(a)) Except in a matrimonial action, no finding of fact in writing shall be necessary to the entry of a judgment on default. (CPLR § 3215(b))

Nothing in the law precludes an IHO from considering a motion by either party under appropriate circumstances. (See SRO Nos. 96-45, 05-007 [motion for a directed verdict], 04-061 [motion to identify the issues], 04-046 [motion for recusal], 04-018 [recognizing motion for summary judgment could be used in IDEA proceedings in certain circumstances if there is a lack of any genuine issue of material fact and both sides have had an opportunity to present evidence]).

Here, both sides have been given the opportunity to present evidence. What’s more, I find the arguments of Parents’ counsel persuasive and incorporate them herein as findings of facts on default.

NOW, therefore, it is hereby

ORDERED that the DOE shall issue a “Nickerson Letter” to the Parents to pay for the costs of the student’s attendance at his current New York State approved school for the 2011-2012 school year; and it is further

ORDERED that IHO Exhibits (1), (2) & (3) shall accompany this decision and are adopted herein as findings of facts on default.

DATED: June 5, 2012

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

IMPARTIAL HEARING OFFICER

I Motion for Nickerson Letter, 4/25/12, 8 pp.

II Affirmation in Support, 4/24/12, 16 pp.

III Affidavit of, 4/23/12, 14 pp.