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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 28, 2012
November 30, 2012
January 11, 2013
Actual Record Close Date: January 15, 2013
Hearing Officer: Dora M. Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 28, 2012
Attorney — Student
District Representative (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 30, 2012
Attorney — Student
CSE Representative (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 11, 2013
Attorney — Student
Parent/Mother — Student
Director (Did Not Testify) — Student
Representative-CSE — DOE
The parents of . filed a request for an impartial hearing on August 31, 2012. I was designated to hear this matter on September 4, 2012, pursuant to 20 U.S.C. Section 1415(f)(1).
In their hearing request, the parents challenged the recommendation made at a March 13, 2012 IEP meeting, recommending placement in an Integrated co-teaching (“ICT”) class. They requested the issuance of a P-1/Nickerson Letter. (Parent’s Exhibit “A”).
An impartial hearing commenced before me on September 28, 2012, on the issue of pendency. As a result of the pendency hearing, it was agreed and ordered that would receive Ten hours per week of SEIT, three thirty minutes sessions of Therapy and two thirty minute sessions of , during the pendency of all due process proceedings. (Tr. p. 4; IHO Ex. III). On November 7, 2012, at the request of both parties, the compliance date was extended to December 14, 2012. (IHO Ex. I).
A hearing on the merits was scheduled for November 30, 2012; however the Department of Education (“DOE”) did not appear on the date scheduled for hearing, due to some miscommunication as to which region was assigned to the case. (Tr. pp. 9-10). The hearing was rescheduled for January 11, 2013, and at the request of the school district, the compliance date was extended to January 13, 2013. (IHO Ex. II).
In the interim, on December 14, 2012, the parents filed an amended complaint alleging that in November 2012, the CSE recommended that the case be deferred to the Central Based Support Team (“CBST”) for placement in an appropriate non-public school, but that no such placement had been made. The previously scheduled hearing date was canceled, and then reinstated, after both parties waived the resolution period.
On January 11, 2013, the DOE appeared by Dr. , and requested an adjournment as it was not prepared to proceed with the hearing. Dr. explained that if the adjournment was granted, the DOE would present testimony regarding a placement offer in an ICT class, made, pursuant to the March 13, 2012 IEP. (Tr. pp. 18-19, 21). He testified that after the CSE recommended that the placement be deferred to the CBST, the case was sent back to the CSE to explore a less restrictive environment. On December 20, 2012, the CSE reconvened and recommended placement in a class with a staffing ratio of , but no placement has yet been identified. (Tr. pp. 1921).
As of January 11, 2013, was receiving the services provided in the Interim Order of Pendency, but was not attending school. (Tr. pp. 20, 23-24).
The parent opposed the DOE’s request for an adjournment, arguing that the placement offer made pursuant to the March 13, 2012 IEP is no longer relevant, as the CSE has since recommended a more restrictive placement. The parent requested the issuance of a Nickerson Letter, in light of the fact that the child was entitled to a placement as of September 1, 2013. (Tr. pp. 21-22).
The DOE argued that as was not entitled to a placement until his sixth birthday (January 16, 2013); and that therefore the parents are not entitled to a Nickerson letter. (Tr. pp. 20-21, 23).
I find that the parent’s position is correct. was entitled to a full-time special education program as of September 1, 2012, as it is undisputed that he is a student with a disability who requires a full-time special education program. (See Education Law 3202). The DOE will be unable to satisfy its burden of proving the appropriateness of an ICT class, where it has subsequently recommended placement in a more restrictive setting. Therefore, there would be no purpose in adjourning the hearing for the DOE to present testimony regarding an ICT class.
More than 60 days have passed since was entitled to placement in a special education class. I find that issuance of a Nickerson letter is the appropriate remedy. See Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]; Application for the Review of a Determination of a Hearing Officer, Appeal No. 12-039, p. 13.
Therefore, it is hereby ordered that the DOE shall forthwith issue a Nickerson letter. Dated: January 16, 2013
_____________________________
DORA M. LASSINGER, ESQ.
Impartial Hearing Officer
DML: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 Impartial Hearing Request, 8/31/12. 2 pp. B IEP, 6/4/12, 23 pp. C Amended Impartial Hearing Request, 12/14/12, 2 pp. D Omitted E Parent Letter to CSE w/fax confirmation, 6/20/12, 2 pp. F Parent Letter to CSE w/fax confirmation, 8/8/12, 2 pp. G Parent Letter to CSE w/fax confirmation, 8/22/12, 2 pp. H Letter from , 12/19/12, 1 p. I Progress Report, 11/2012, 6 pp. J Programs New York City, Undated, 9 pp.
IMPARTIAL HEARING OFFICER
I CFU with Related correspondence, 11/9/12, 2 pp. II CFU, 11/30/12, 1 p. III Interim Order on Pendency, 10/2/12, 5 pp.