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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: June 1, 2012
June 20, 2012 Actual Record Close Date: July 2, 2012 Hearing Officer: Christine Moore, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 1, 2012
Attorney — Student
Parents
Clinician (via telephone) — Student
Representative, CFN — DOE
School Psychologist, (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 20, 2012
Attorney — Student
Attorney — Student
Parents
Representative, CFN — DOE
Guidance Counselor- (via telephone) — DOE
Social Worker (via telephone) — DOE
PROCEDURAL HISTORY
On June 1, 2012, and June 20, 2012, I conducted an impartial hearing at the offices of the Department of Education located at 131 Livingston Street, Brooklyn, New York pursuant to the Individual with Disabilities Education Act (“IDEA”), 20 C.F.R. 1400 et seq., regarding the special education program of . (hereinafter referred to as “the student”). A list of persons in attendance and documents received in evidence are appended hereto.
The proceeding was initiated at the request of the great grandmother and legal guardian (or “parent”) by correspondence dated April 6, 2012 wherein the parent seeks public funding for a residential placement for her great grandson at the (“ ”), a New York State approved school (Ex. A).[1] I was appointed as hearing officer on April 9, 2012. The parties were unable to resolve the matter during the resolution period and on April 26, 2012 a pre-hearing conference was held via telephone wherein the parties represented their availability to proceed to hearing on June 1, 2012. I was available to conduct a hearing within fourteen days of the end of the resolution period.
On May 31, 2012, the day before the scheduled hearing date, the Department of Education (“DOE”), through its representative, requested an adjournment of the hearing date due to the unavailability of its witnesses. That request was denied. On the morning of the scheduled hearing date, the DOE renewed its request for an adjournment of the hearing date due to the fact that the case was assigned and reassigned to her at the last minute. The request for adjournment was again denied. Attached to the DOE email requesting an adjournment of the hearing scheduled for that afternoon was a motion to dismiss (IHO Ex. i).
The hearing commenced on June 1, 2012 and two witnesses testified, one for the parent and one for the DOE. The DOE submitted that it was unable to call it final witness until June 13, 2012. The parent declined calling the parent as a witness until the DOE rested its case (Tr. 131).2 The DOE credibly represented that this was a material witness necessary for the DOE to present their position in accordance with the requirements of due process. Accordingly, the matter was scheduled to continue on June 13, 2012 (Tr. 131).
The DOE unilaterally 3 moved to extend the compliance date due to the availability of witnesses and the extensive testimony and issues in the instant proceeding. The parties credibly represented that additional time was required for the full disclosure of additional documentary evidence and witnesses that could not be immediately secured and were necessary for a full and fair hearing in order to arrive at a decision. The parties also requested additional time to submit opposition to the motion dismiss and a reply.
In considering the request I weighed the cumulative impact of the relevant factors, specifically the impact on the student’s educational interest and well-being; the need of the parties to present their position at hearing in accordance with the requirements of due process; any financial or detrimental consequences likely to be suffered by a party in the event of a delay; if there had already been a delay in the proceeding through the actions of the parties; and if there was a compelling reason or specific showing of substantial hardship by the party requesting the extension.
Having fully considered the cumulative impact of the relevant factors as set forth in 8 NYCRR § 200.5(j)(5)(ii) and found that the need of the parties for additional time to prepare and present its positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Given the student’s current placement as a result of his incarceration at Passages and Crossroads, I determined that a short delay in this proceeding occasioned by the extension of the timeline would not adversely impact the student’s educational interest and well-being (Tr. 17). Finally, neither party at any time demonstrated any financial or other detrimental consequences that were likely to be suffered by a party in the event of a delay nor had there been a delay in the proceeding through the actions of one of the parties.
Accordingly, the request for an extension of the compliance date was granted due to the availability of witnesses and the extensive testimony and issues presented in this matter. The request for an extension of time was responded to in writing and the parties
3 It is noted for the record, that during the hearing on June 1, 2012, the DOE requested clarification regarding the timelines and the compliance date to accommodate an additional hearing date as opposed to concluding the hearing at that point. However, at no time did I initiate or encourage either or both parties to request an extension of the deadline. were notified in writing of the reason for the extension and the new date for the rendering of my decision.4 This written response is documented in this administrative record as hearing officer exhibit ii. 5
Also at hearing on June 1, 2012, the DOE was granted leave to clarify its motion to dismiss and the parent was granted leave to submit opposition to the motion. The DOE renewed its motion to dismiss on June 5, 2012 (IHO Ex. iii). The parent submitted a memorandum of law in opposition to the DOE’s motion to dismiss dated June 11, 2012 (IHO Ex. iv). The DOE filed a reply to the parent’s opposition dated June 14, 2012 (IHO Ex. v). An interim order dated June 17, 2012 denied the DOE’s motion to dismiss in its entirety.
On June 8, 2012, the DOE requested an adjournment of the June 13, 2012 hearing date based on the fact that the witness was unavailable to testify due to a class trip. The DOE credibly represented via email that the classroom teacher was a material witness in that she had created the student’s Individualized Education Program (“IEP”), was familiar with outreach to the parent and communication with the home, academic progress and behavior in class and truancy issues. The DOE’s request was granted and the hearing was scheduled to continue on June 20, 2012. The hearing continued and concluded on June 20, 2012.
The record close date was July 2, 2012 and the compliance date for issuing a decision is July 11, 2012.
BACKGROUND
The student is a grade class in Public School (“PS”) 216 (Ex. B at 1; Tr. 153; 190). The student was classified with a (Ex. B at 1). The student’s classification was in dispute in that the parent contends the student should be classified with an .[6] As of the filing of the due process complaint, the parent was of the belief that the last known IEP for the student was developed by Committee on Special Education (“CSE”) on June 14, 2010 (Tr. 190; Ex. A). The IEP developed at that meeting recommends an class in a
8 NYCRR § 200.5(j)(5)(iv).
8 NYCRR § 200.5(j)(5)(i). general education class with special education teacher supports services (“SETSS”) (Ex. B).
The parent and the student’s classroom teacher for the second half of the 20102011 school year and the 2011-2012 school year, testified that during or the 2010-2011 school year, the student was removed from general education with SETSS and placed in her special education class (Tr. 148; 152; 189). It does not appear the CSE convened to modify the student’s program until sometime in November 2012 (Tr. 152-153).
The classroom teacher testified an evaluation was done and “they took him from general ed to special ed student” (Tr. 152). The classroom teacher further testified that the CSE convened in November 2011, and at the meeting she served in the capacity of the district representative and special education teacher (Tr. 148). The classroom teacher testified that the meeting was held without the parent (Tr. 154). Neither the DOE, nor the parent offered into evidence the IEP that was allegedly developed at this meeting (Tr. 149-151).
Further testimony indicated that the classroom teacher sent the required five-day notice of the meeting home to the parent with the student and also attempted to contact the parent via telephone (Tr. 155). The witness testified that a copy of the notice was not retained in the student’s file (Tr. 155). The parent testified that she was unaware of the CSE meeting and had previously requested notices be mailed home as it had been proven that she did not receive notices sent home with the student (Tr. 190). Further testimony indicated that the parent had spoken to the classroom teacher on the telephone a couple of times, but not with regard to the scheduling of an IEP meeting (Tr. 190).
The parent testified that at the beginning of February 2012, she became very concerned about changes in the student’s and met with the school principal (Tr. 197198). During this meeting she requested the student be re-evaluated for a change in his school placement and as per the principal’s instruction submitted a hand written letter to him requesting same (Tr. 197-199). This meeting and the substance of the discussion is memorialized in a letter from the school principal to the parent dated February 7, 2012 (Ex. C at 2). Thereafter the parent submitted a second letter dated February 15, 2012 requesting an emergency IEP meeting (Ex. F).
The school psychologist initially testified that the student’s case was “closed” in April or May “as we were approaching compliance and he (the student) was not here.” (Tr. 63). But she later testified that the case was “closed” at the end of March or beginning of April (Tr. 68).7 Further testimony indicated that the school psychologist “closed” the case subsequent to discussion with the Central Based Support Team (“CBST”) because they did not have any evaluations (Tr. 72-73). The witness also testified that she spoke to the parent and explained to her that they would have to close the case because the school was unable to evaluate the student because he was (Tr. 57; 63-64).
The parent testified that she recalled speaking to the school psychologist on or about March 30, 2012 and was told that the re-evaluations would take a little time and that the student had to be in attendance (Tr. 200). The parent further testified that the school psychologist did not discuss with her at any point “closing” the case; the parent was certain of this because she did not know what it meant to “close” the case as it was clear the student needed a new IEP (Tr. 201; 214).
A request for an impartial hearing was filed on behalf of the parent and is dated April 6, 2012. The parent alleges the DOE failed to provide the student with a FAPE during the 2011-2012 school year and seeks among other relief a Nickerson Letter or P-1 Form to allow the student to attend or in the alternative funding for tuition at JRC
(Ex. A).
On April 27, 2012, the parent attended a Manifestation Determination Review
(MDR) for the student and for third time requested a re-evaluation (Tr. 64; 203; 215; 221222; Ex. 5). A school social worker testified that an updated social history was conducted on April 27, 2012 and at that time the parent was provided with a copy of her parental rights (Tr. 182). A was conducted on May 10, 2012 diagnosing the student with a “ disorder not otherwise specified (“NOS”)(Ex. 4). A residential setting was recommended (Id.).
As per the DOE representative the case was closed on March 30, 2012 (Tr. 213).
The parent testified that on May 10, 2012, the student was arrested on attempted robbery charges and was remanded to a juvenile detention facility for pretrial detention (Tr. 209-210). An IEP meeting was scheduled for June 25, 2012 and an IEP was developed at that meeting reclassifying the student with an and deferring placement to the CBST (IHO Ex. viii).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The purposes of the IDEA (20 U.S.C. §§ 1400-1482) are to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A][B]; Schaffer v. Weast, 546 US 49 [2005], Board of Education of the Hendrick Hudson Central School Disrict v. Rowley,458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when the board of education complies with the procedural requirements set forth in the IDEA, and 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 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 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 impeded the student's right to a FAPE, significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; 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]).
The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a 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 11, 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, 2007 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 (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 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]).
In this case the DOE failed to provide the student with a FAPE for the 2011-2012 school year. Because the IEP allegedly developed by the CSE in November of 2011 for the student’s 2011-2012 school year is not in evidence, it is difficult if not impossible to determine if the recommended program was reasonably calculated to enable the student to receive educational benefits and make meaningful progress. The classroom teacher testified that the meeting occurred and she participated in the capacity of district representative and special education teacher (Tr. 148). There is no evidence to establish who else may have been in attendance at the meeting.
There is credible testimony that the CSE meeting was held without the parent (Tr. 154; 190). The student’s classroom teacher testified that she sent notice of the meeting home with the student and attempted to telephone the parent (Tr. 155). It is entirely unclear why the parent was not mailed notice of the meeting and why a copy of the notice allegedly sent home was not retained in the student’s file (Tr. 155). It is also unclear why notice of the meeting was with the student despite the parent’s request that notices be mailed home as it had been proven that the parent did not receive notices sent home with the student (Tr. 155; 190).
The classroom teacher also testified that she attempted to telephone the parent but was unable to contact her; however, the parent testified that she had spoken to the classroom teacher on other occasions via telephone (Tr. 155; 190). It is, therefore, fair to conclude that the parent’s telephone and telephone number were in good working order.
The classroom teacher’s testimony was somewhat vague as to when she attempted to contact the parent via telephone to notify her of the CSE meeting (Tr.155). It is clear the CSE failed to provide the parent notice of the CSE meeting in accord with the Commissioner’s Regulations (8 NYCRR §200.5 [c]).
The parent is a critical member of the CSE and the parent at this stage, in early November of 2011, could have provided valuable input into the student’s filed by the parent in July 2011, her continued efforts to get help for her son with the assistance of a social worker and the student’s psychiatrist and therapist of three years at Premier Health Care (also known as ) (Tr. 191-193; 204-206). This was a missed opportunity that might have changed the trajectory of the student’s course. If proper procedures had been adhered to, the likelihood of a changed outcome was quite possible at this juncture.
Nevertheless, the DOE contends the student was provided with a FAPE for the 2011-2012 school year (Tr. 26). There is, however, scant evidence to support this assertion. The classroom teacher testified that the student was placed in her 12:1:1 special education class in and appeared to be receiving mandated services of counseling (Tr. 153; 175).
The classroom teacher also testified that at the time of the meeting the student displayed a lack of motivation, did very little work and was barely passing (Tr. 143-144). But, accordingly to the classroom teacher the student did not present with issues at the time of meeting in November (Tr. 143). The school psychologist testified that in November the student , was not doing much work in class, , not completing his work and often late or absent (Tr. 46). However, there is also testimony that there was a report of the student outside of school in September (Tr. 52).
By the end of December, the classroom teacher testified that the student was excessively absent, failing all of his subjects and having problems with other teachers, administrators and the security officer (Tr. 144-145). The school psychologist testified that in response to the escalation in student’s conferences were held with the guidance counselor and principal (Tr. 47). In addition, the parent and Administration of Children Services were called regarding the student’s truancy (Tr. 49). According to the school psychologist there was a Response to Intervention (“RTI”), however, the witness was not a part of the team and testified that from what she understood the team attempted to address the (Tr. 53).
However, the classroom teacher testified that no additional intervention or accommodations were provided to address the student’s lack or motivation and refusal to perform academic tasks (Tr. 160-161). Moreover, a (“BIP”) was not developed for the student because according to the student’s teacher the student was not a behavioral issue until January (Tr. 158-159). Yet the classroom teacher could not identify a reason why a BIP was not developed in January (Tr. 158-159). The school psychologist testified a BIP was not developed because the student was not in school (Tr. 48).
While it appears the DOE attempted to take some action to address the student’s needs, the program clearly lacked sufficient support services to permit the student to benefit educationally from that instruction. Based on the foregoing, I find the DOE failed to provide a FAPE to this student for the 2011-2012 school year.
The parent seeks a Nickerson letter from the DOE authorizing the parent to place the student at a state approved 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 Application of the Bd. Of Educ., Appeal No. 06-088; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092).
In this case the parent initially requested a re-evaluation and an alternate placement on February 7, 2012 (Ex. C at 2). This request was renewed on February 15, 2012 (Ex. F). It appears the DOE unilaterally “closed” the case on March 30, 2012 (Tr. 213). During the time period between the initial request and the “closing” of the case, the parent was not provided with notice of her rights and responsibilities under IDEA, in fact the parent did not receive notice of same until a social worker conducted a social history update on April 27, 2012 (Tr. 70; 182).
The DOE asserts that the case was “closed” because the student could not be evaluated due to the student’s from school (Ex. 1; Tr. 57-58). I find this to be disingenuous. There is no evidence that the DOE attempted to conduct any evaluations during this time period, including the update of the social history that did not necessarily require the student’s presence. Moreover, the student’s failure to attend school and his behaviors escalated as time progressed and yet he was present for the (Ex. 1; 4; Tr. 64).
The school psychologist testified “[W]e couldn’t ask the to come until the grandmother ensured us that she would be able to get him here” and that they were not able to get that confirmation from her until May (Tr. 80). The school psychologist also testified that the when the case was reopened by the MDR, they knew that the parent was able to get the student to school because he had come for state tests (Tr. 64). But then, the school psychologist testified that the only thing she could think of that changed between when the re-evaluation was initially requested and actually conducted, was that “the principal pushed that he (the student) be here” for state tests (Tr. 80-81). I find the explanations offered by the DOE as to why the evaluations were not timely conducted to be either implausible or irrelevant and somewhat contradictory. It was the parent’s testimony that the student “took himself” to school on the date was first scheduled and ultimately conducted on May 10, 2012 (Tr. 204; Ex. 4).
Nevertheless, prior to May 10, 2012 no specific date for evaluations was ever proposed to either the parent or the student (Tr. 74). I am not persuaded that had the evaluation been scheduled in February or March 2012, the student would not have been present. But more importantly, I find the justification for why the required evaluations were not conducted in a timely manner, does not excuse the district’s failure to conduct the evaluations in a timely manner. The fact that the school psychologist concluded that the parent could not ensure the student’s regular attendance to school does not relieve the district of its obligation to at least attempt to evaluate the student.
It is also extremely disturbing, that the case was “closed” in spite of the fact that the school psychologist was aware of the fact that the student had been receiving out patient therapy for three years and was in possession of two letters: one from the student’s psychiatrist dated February 6, 2012 recommending a residential placement due to severe defiant conduct problems; and a second more detailed report from the student’s mental health therapist, also recommending a residential placement to maintain the student’s safety and to escape the possibility of extreme consequences (Tr. 77; 80; Ex. D; E). The school psychologist also testified that she did not inform the CBST of the contents of those letters (Tr. 77).
And still the school psychologist unilaterally or in discussion with CBST “closed” the student’s case. The school psychologist testified that she telephoned the parent and explained to her that the case had to be “closed” because they were not able to evaluate the student (Tr. 63). Further testimony indicated that she explained that the effect of the closing would be that her great grandson would remain in his current setting without changes to his IEP (Tr. 70). The school psychologist testified that the parent agreed that the case should be closed (Tr. 63). No written documents were submitted and the case was closed based on this (Tr. 64).
The parent on the other hand, testified that she did not know that the case was “closed”, in part because she does not even know what it means to close the case in light of the fact that each student has an annual review and an IEP is developed (Tr. 201). Further testimony indicated that there was no conversation about closing a case because had there been she would have asked the what she meant because the student still needed an IEP (Tr. 214). I find the parent’s testimony credible with regard to the conversation that ensued between her and the prior to the closing of the student’s case. There is ample evidence in the record that the parent was pursuing every course available to her to address the student’s needs and was seeking a residential placement (Tr. 201; 204-207). Rather, it appears that as the compliance deadline approached, the school psychologist in conversation with CBST unilaterally “closed” the case (Tr. 63).
On April 27, 2012, the parent for the third time requested an evaluation for her great grandson (Ex. 5; Tr. 221-222). This time the DOE’s social worker updated the social history and provided the parent with notice of her rights on the same day the request was filed (Tr. 182-182). Perhaps in part because as the school psychologist had testified, the student’s (Tr. 64). As per the school psychologist, the great grandparent was at the school to attend an MDR for the student and, the case was reopened by the MDR (Tr. 64-65; 203). A was conducted on May 10, 2012 recommending a residential setting for the student (Ex. 4).
The student was arrested on May 10, 2012 and is in a facility for pretrial detention (Tr. 208-209).
A CSE meeting was scheduled to occur on June 6, 2012 and it was the school psychologist’s understanding that the recommendation would be to defer to CBST for a residential placement (Tr. 59). The CSE meeting actually occurred on June 25, 2012, and the student’s classification was changed from to and a twelve-month residential placement in a New York State approved non-public school was recommended (IHO Ex. viii).
The evidence adduced clearly establishes that the DOE failed to evaluate the student in a timely manner or offer the student an appropriate placement. To date the DOE has not provided the student with a final notice of placement recommendation. The IEP developed at the most recent CSE meeting on June 25, 2012, does not offer an identified placement in an identified program (IHO Ex. viii). The student was initially referred to the CSE on February 7, and 15, 2012 and then again on April 27, 2012, clearly the requisite time period for the DOE to provide an appropriate placement recommendation has expired. As such, I find a Nickerson Letter is an appropriate remedy.
The DOE is ordered to issue a Nickerson Letter or P-1 Form that will allow the student to attend any New York State approved non-public residential school, including JRC8, at the DOE expense for the entire 2012-2013 school year (Jose P., Stipulation, July 28, 1988). The student has been without a FAPE from sometime in the middle of the 2010-2011 school year, when he was transferred from a general education class to a special education. The DOE has failed in its obligation under federal and state law to reevaluate the student and provide him with an appropriate placement. The parent became eligible for the Nickerson Letter after March 15th, and as such tuition at the nonpublic school is guaranteed for the balance of the current school year, which has ended, and the ensuing school year, to wit the 2012-2013 school year (Id. at ¶ 30 [e]).
ORDER
1. The DOE shall issue a Nickerson Letter or P-1 Form authorizing the student to attend a New York State non-public residential school, to wit , at no cost to the parent for the 2012-2013 school year. Dated: July 6, 2012
_____________________________
CHRISTINE MOORE, ESQ.
Impartial Hearing Officer
CM: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
The student was accepted into the residential program at on April 13, 2012 (Ex. G). 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, 4/6/12, 3 pp. B IEP, 6/14/10, 10 pp. C Suspension Letters, Various Dates, 2 pp. D Letter from Psychiatrist, 2/6/12, 2 pp. E Letter from therapist, 2/8/12, 4 pp. F Parent Referral Letter, 2/15/12, 1p. G Acceptance Letter , 4/13/12, 1 p. H Tuition at , Various Dates, 2 pp. I Behavioral Education Procedures, Undated, 7 pp. J Distinguishing Features, Undated, 11 pp. K Positive Programming, May 2002, 16 pp. L Progress Students, 1/28/10, 9 pp. M Jose P. v. Ambach, Special Master’s Report12/14/81 and 1/5/81, 21 pp. N Jose P. v. Ambach, Memorandum and Order, 1/5/82, 4 pp. O Jose P. v. Ambach, Order, 7/2/81, 7 pp. P Jose P. v. Ambach, Stipulation, 7/28/88, 5pp. Q Jose P. v. Ambach, Judgement, 12/14/79 R Jose P. v. Ambach, Composite, 1/5/82, 12 pp.
DEPARTMENT OF EDUCATION
1 Attendance Record, 2011-2012 School Year, 17 pp. 2 Article , 4/23/12, 4 pp. 3 Article , 8/24/11, 5 pp. 4 Evaluation, 5/10/12, 7 pp. 5 Letter to Principal from Parent, 4/27/12, 1 p.
IMPARTIAL HEARING OFFICER
I Motion to Dismiss, Undated, 2 pp. II Decision on Request for Extension of Time, 6/11/12, 1 p. III Motion to Dismiss, 6/5/12, 3 pp. IV Opposition to Motion to Dismiss, 6/11/12, 8 pp. V Reply to Opposition, 6/14/12, 4 pp. VII Parent Post-Hearing Memorandum of Law, 6/29/12, 22 pp. VIII IEP, 6/25/12, 15 pp. IX Post Hearing DOE Objections and Parent Response, 6/29/12 and 7/2/12
Footnotes
[1] References to Hearing Exhibits are prefaced with “Ex.” References to the hearing transcript are prefaced with “Tr.”
[6] An IEP meeting was held on June 25, 2012 wherein the student’s classification was changed to (IHO Ex. viii).