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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: January 3, 2014
February 3, 2014
February 7, 2014
March 25, 2014
Actual Record Closed Date: March 31, 2014
Hearing Officer: James McKeever, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 3, 2014
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 3, 2014
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 7, 2014
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 25, 2014
Attorney — Student
District Representative — DOE
PROCEDURAL HISTORY
On November 21, 2013, I was appointed to this matter. The parent filed an Amended Request on February 10, 2013, which was accepted by the Department. The current compliance date is April 14, 2013.
BACKGROUND AND FINDINGS OF FACT
On the above listed dates, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), regarding a parent’s request for the DOE to place the student in an approved, non-public school (NPS).
On December 13, 2013, the District referred this matter to the Central Based Support Team (CBST) for placement in an NPS (Tr.10).
On February 7, 2014, I issued a pendency Order for 10 hours per week of homebased special education teacher support services at the enhanced rate of $120 per hour.
The student’s is currently attending a class is a public school The Student is a ten-year-old boy classified as a child Classification is not at issue (Exhibit 2).
The parties agree that the student requires an NPS. However, the CBST, who has accepted the case, has not yet located a placement.
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).
In the event the student is not placed by the CBST by March 28, 2014, the Student is entitled to a Nickerson Letter for the remainder of the 2013-2014 school year and the 2014-2015 school year
ORDERED that, in the event the Student is not placed by the CBST in a non-public school by March 28, 2014, the Department of Education shall issue the parent a P1 “Nickerson” letter for the Student to attend a state approved, non-public school for the remainder of the 2013-2014 school year and the 2014-2015 school year. Dated: April 2, 2014
James McKeever mv
JAMES MCKEEVER, ESQ.
Impartial Hearing Officer JM;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
Departments Exhibits:
1 Hearing Request, dated 11/20/13, 1 page
2 Request for Re-evaluation, dated 12/18/13, 1 page
3 Student Progress Report, dated 12/2/13, 1 page
4 Progress Report for Counseling, dated 12/12/13, 2 pages
5 FBA, dated 3/22/13, 5 pages
6 Educational Update, dated 7/13/13, 2 pages
7 Evaluation, dated 7/13/11, 5 pages
8 Evaluation, dated 7/29/11, 4 pages
9 Motivation Assessment Scale, 12/9/13, 2 pages
10 ABC Data Collection Sheet, various dates, 6 pages
11 Deferral to CBST Package, dated 12/4/13, 12/13/13, 5 pages
12 IEP, dated 12/4/13, 13 pages
13 IEP, dated 11/19/12, 12 pages
PARENT’S EXHBIT:
A.IEP DATED 12/4/13 13 PAGES