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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: December 26, 2012
Actual Record Closed Date: December 27, 2012
Hearing Officer: James McKeever, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 26, 2012
Parents
Maternal Aunt
CSE Designee — DOE
BACKGROUND
On October 22, 2012, the parent filed a due process complaint (DPC) requesting a P-1 Nickerson Letter for the Student’s placement at the , a state approved non-public school for the 2012-2013 and 2013-2014 school years (Exhibit 4). The Department of Education (DOE) advised that the Student’s Individualized Education Plan (IEP) dated April 21, 2012, provided for a class for the Student’s placement during the 2011-2012 and 2012-2013 school year. Since the date of the IEP, the Student has been placed in an Integrated Co-Teaching class (ICT). In April of 2012, the DOE issued a P-1 Nickerson letter. The parent could not locate an approved non-public school for the Student until October 2012, at which time the Nickerson Letter had expired. Thereafter, the DOE “Placement Office” refused to issue another Nickerson Letter to the parent.
FINDINGS OF FACT
Based upon the evidence adduced at the Due Process Hearing, I make the following findings of fact:
The Student is a impairment (Exhibit 2). The Student currently attends an ICT class at . The Student was placed in this class following an IEP meeting held on January 24, 2012.
The Student’s IEP dated January 30, 2012, recommended placement in a class for the 2011-2012 and 20120-2013 school years with therapy services two times per week for 30 minutes in a group of three (Exhibit 2).
Since January of 2012, the DOE has failed to provide the Student with a class (Tr. 3).
In April of 2012, the DOE issued a P-1 Nickerson letter to the parent for the Student’s placement in a state approved non-public school (Tr. 3).
On October 2, 2012, the Student was accepted to the , a state approved, nonpublic school (Exhibit 1). However, at that time, the Nickerson Letter had expired and the DOE refused to issue another Nickerson Letter to the parent (Tr. 4).
CONCULSION OF LAW
Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) 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 (2) 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]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) 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]).
The DOE bears the burden of proof in due process hearings brought under the IDEA in New York State (See, N.Y. Educ. Law Section 4404.)
As indicated above, the DOE conceded that the Student was not offered a class for the 2011-2012 and 2012-2013 school years as per the Student’s IEP dated January 30, 2012.
The parent requests an Order directing the DOE to issue a P1 Nickerson letter for placement of the Student at the Hallen School during the 2012-2013 school year (Exhibits 1, 4).
In Jose P., the Board of Education of the City School District of the City of New York was found to have failed to act in a timely manner in its evaluation and/or placement of thousands of children with disabilities. Judge Nickerson ordered the board to issue letters to the parents of each eligible child who had not been placed within 60 days of referral or evaluated within 30 days of referral, advising the parents of their right to place their child in an approved nonpublic school at public expense (Jose P., 79 C 270, EHLR 553:303, Appendix, Exhibit 1). The remedy of the "Nickerson letter" was intended to address the situation in which the child had been referred to the CSE and the child had not been evaluated within 30 days or placed within 60 days of referral (Application of a Child with a Disability, Appeal No. 00-092). A Nickerson letter authorizes a parent to immediately place the student in an appropriate special education program in a State-approved nonpublic school at no cost to the parent (see Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]; Application of the Dep't of Educ., Appeal No. 12-021).
In this case, the evidence shows that the DOE did not offer the Student a 12:1 class as per the Student’s IEP, dated January 30, 2012. Although the evidence shows that the DOE issued a Nickerson Letter to the parent in April of 2012, the evidence shows that the parent could not locate a state approve school for the Student until October 2012 and that the Nickerson Letter had at that time expired. To date, the DOE has failed to offer the Student a class as per her IEP dated January 30, 2012. As such, based on Jose P., I find that the parent is entitled to a P1 “Nickerson for the 2012-2013 and 2013-2014 school years (see Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]; Application of the Dep't of Educ., Appeal No. 12-021).
ORDERED that the Department of Education shall issue the parent a P1 “Nickerson” letter for the remainder of 2012-2013 school year and for the 2013-2014 school year upon receipt of this decision.
Dated: January 4, 2013
JAMES MCKEEVER, ESQ.
Impartial Hearing Officer
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
Department of Education
1-Acceptance Letter from the , 10/2/12 1 page
2-IEP, 1/30/12 22 pages
3-Evaluation, 1/5/11 4 pages
4-DPC, 10/22/12 1 page