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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: September 19, 2012
December 11, 2012
Actual Record Close Date: December 28, 2012
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 19, 2012
Attorney — Student
Chairperson Designee-CSE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 11, 2012
Attorney — Student
Chairperson's Designee-CSE — DOE
By Complaint dated July 1, 2012, the matter of . came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C.
Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.
This hearing was requested to review ’ s program for 2012-2013 and to request placement at for 2012-2013. The Complaint alleges that the District has recommended a 12 month residential placement in a non-public school and that the District also has not changed the Student’s educational placement for 2012-2013. The Complaint alleges that the Student’s educational placement for 2011-2012 was .
On July 18, 2012, a prehearing conference was scheduled. There were no appearances. A prehearing conference order was issued. (IHO Exh. 1)
On September 19, 2012, the parties appeared at a hearing and agreed to pendency services. Orders on pendency services were thereafter issued. (IHO Exh. 2, 3) The issues in the Complaint were clarified at such hearing date.
On August 26, 2012, the parent moved to extend the decisional timelines because of witness availability. There was no objection from the District. This IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to September 26, 2012. (IHO Exh. 4)
On September 21, 2012, the parent again sought to extend the timelines again because of the need for witness availability. Again, there was no objection from the District. This IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to October 26, 2012. (IHO Exh. 5)
On October 18, 2012, the parent again sought to extend the timelines, again because of witness availability. Again there was no objection from the District. This
IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to November 25, 2012. (IHO Exh. 6)
A hearing date was set for November 2, 2012. However, this date was cancelled due to the imact of Hurricane Sandy on the region.
On November 26, 2012, the parent sought to extend the timelines again because of difficulties occasioned by Hurricane Sandy. There was no objection from the District.
This IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to December 25, 2012. (IHO Exh. 7)
At the hearing date on December 11, 2012, the parties appeared and presented their positions on the record. The District indicated that it did not make a timely placement recommendation for the Student and did not dispute the parent’s claims for relief. (Tr. At 17) The parties did not present witnesses. The parties had not previously provided this IHO of any notice that they were not presenting witnesses. On the contrary, the parties had requested and/or consented to timelines extensions as a result of witness availability.
After the the hearing date on December 11, 2012, the parent provided a copy of order of Special Master Marvin Frankel in Jose P. v. Ambach. (IHO Exh. 8)
On December 21, 2012, the parent sought to extend the timelines again to allow the IHO to review the transcript and write a decision. There was no objection from the District. This IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to January 225, 2013. (IHO Exh. 9)
FINDINGS AND DECISION
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of
2007.
The parent contends that a 2012-2013 “Nickerson letter” is in order here. A "Nickerson letter" is a letter from the Department of Education to a parent authorizing the parent to immediately place the child in an appropriate special education program in any state-approved private school, at no cost to the parent. 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 within 30 days or placed within 60 days of referral to the CSE. 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.
The “Nickerson letter” may be enforced by a third party beneficiary of the Jose P.
consent decree. See M.S. v. New York City Department of Education, 734 F. Supp.2d
271 (E.D.N.Y. 2009)(explaining the scope of relief in Jose P.) Third party beneficiaries of the Jose P. consent decree include students who were not timely evaluated or placed at a school.
There is no question that this child has not received a timely placement from the District. I have reviewed the relevant case law, including Special Master ’s 1981 order adopted by Judge Nickerson. This IHO is not aware of any restrictions placed on relief pursuant to the orders in Jose P. I agree with the parent that the facts here dictate that a “Nickerson letter” should be issued here for the 2012-2013 year to the benefit of the
Student here.
Dated: January 10, 2013
______________________________
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer
MSL: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 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 Complaint, 7/2/12, 2 pp. B Response, 7/6/12, 4 pp. C IEP, 3/29/12, 9 pp. D Findings, 8/19/09, 10 pp. E STEAC Form, 2009-2010, 2 pp. F STEAC Form, 2010-2011, 2 pp. G STEAC Form, 2011-2012, 2 pp. H STEAC Form, 2012-2013, 2 pp.
IMPARTIAL HEARING OFFICER
I PHC Summary, 9/18/12, 1 p. II Interim Order, 10/31/12, 1 p. III Pendency Order, 1/7/13, 4 pp. IV Timelines Order #1, 1/8/13, 1 p. V Timelines Order #2, 1/8/13, 1 p. VI Timelines Order #3, 1/8/13, 1 p. VII Timelines Order #4, 1/8/13, 1 p. VIII Frankel Decision, 12/14/81, 21 pp. IX Timelines Order #5, 1/8/13, 1 p.