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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: August 7, 2013
Actual Record Closed Date: August 21, 2013
Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 7, 2013
For the Student:
parent
For the Department of Education:
Sr. Special Services Mgr.
Ms. ., the mother of filed a request for an impartial hearing on July 9, 2013 requesting a Nickerson Letter so she could place for her daughter in a private school. (IHO Ex. I). I was designated to hear this matter on July 9, 2013, pursuant to 20 U.S.C. Section 1415(f)(1). An impartial hearing was held before me on August 7, 2013.
EVIDENCE AT HEARING
is an old young girl with a classification of . Her classification is not in dispute. ’s January 27, 2012, Individualized Educational Program (“IEP”) provided for placement (to be implemented on February 3, 2012) in a special class with a staffing ratio of and ”) in a group of two, times per week. (IHO. Ex. 2). Both parties stipulated that was not placed in a special class in accordance with the January 27, 2012 IEP; and was instead placed in an Integrated Collaborative Teaching (“ICT”) Class. (Tr. p. 5).
On January 25, 2013, the Committee on Special Education (“CSE”) met and noted that Aleyah is currently repeating the third grade for the third time in an ICT class. She was reading on a level. Her writing skills . (IHO Ex. II, p. 1). The CSE again recommended placement in a special class with a staffing ratio of . Special Education Teacher Support Services (“SETSS”) five times per week was added to her IEP, to provide more support. SLT in a group of three, three times per week, was also recommended. (Id.; Tr. p. 11)).
During the first week of March 2013, was placed in a special class, as recommended in her IEP. (Tr. p. 7).
The parent’s position, is that was deprived of a special class from February 2012 until March 2013, a Nickerson letter should be issued. She testified that has suffered as a result of being the oldest and biggest student in her class. Sometimes she does not want to go to school. (Tr. p 10). Ms. is not seeking compensatory services for her daughter. (Tr. p. 11).
FINDINGS OF FACT AND, CONCLUSIONS OF LAW AND ORDER
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982].
The remedy of a Nickerson letter, is intended to address the situation in which a child has not been evaluated within 30 days or placed within 60 days of referral to the Committee on Special Education. Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]; Application of a Student with a Disability Appeal No. 10-052, p. 7; Application of a Child with a Disability, Appeal No. 05-115. While issuance of Nickerson letter would have been appropriate during the time period was not placed in accordance with her IEP; at this point is placed in a special class, in accordance with her IEP. Therefore, the parent is not entitled to the requested relief. Application of a Child with a Disability, Appeal No. 05-115.
ORDER
For all of the foregoing reasons, the parent’s request for the issuance of a Nickerson letter is denied.
Dated: August 23, 2013
DORA LASSINGER, ESQ.
Impartial Hearing Officer
DL: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
IHO
I Parent's request for impartial hearing dtd 6/29/13, one page
II IEP dtd 1/25/13, 15 pages.
II IEP dtd 1/27/12, 12 pages.