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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 10, 2014
Actual Record Closed Date: January 10, 2014
Hearing Officer: Daniel Ajello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 10, 2014
For the Student:
, ATTORNEY
, PARENT
, STUDENT
For the Department of Education:
, DISTRICT REPRESENTATIVE
, CSE OBSERVER
INTRODUCTION
On November 18, 2013, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article89 of the Education Law of the State of New York.
On January 10, 2014, the hearing commenced pursuant to Individuals with Disabilities Education Act (IDEA) at 20 U.S.C. §1415(f). Appended to the record are lists of persons in attendance and the documents received in evidence.
The proceeding was commenced by Attorney for Parent filing of a Due Process Complaint (DPC) with the Impartial Hearing Office of the New York City Department of Education, dated 11/15/2013. (Ex A)
BACKGROUND
DPC alleges the Department of Education (DOE) failed to provide the student with a Free and Appropriate Education for the 2010-2011 and 2011-2012 school years. (Ex A 2)
Parent seeks immediate Committee on Special Education (CSE) evaluations of the student or payment of private parent obtained evaluations, a for the student to meet his individual needs, alternatively DOE payment or reimbursement for privately obtained placement. (Ex A 5)
Student is in , currently attending ), has been diagnosed with without , student , suffers from , lack of interest in activities, and has engaged in . (Ex A 3)
Student has been affected . (Ex A 3-4)
Student functioning levels differ significantly from other (Ex A 4)
During the 2012-2013 school determined the student was not properly placed, and that a less restrictive more therapeutic environment would be appropriate. (Ex A 5)
AGREEMENT OF THE PARTIES
The morning of the hearing parties continued settlement discussions. Agreement was reached regarding several areas as outlined below. Agreement to these issues was stated on the record and parties acknowledged their agreement on the record.
CSE shall issue authorizations for and evaluation to be completed by the , at a total cost not to exceed $3,200.00.
CSE shall reconvene within 30 days of receipt of the above assessment and evaluation, to develop an appropriate IEP.
DOE shall provide parent a copy of the packet sent by Central Based Support Team (CBST) to the potential placements.
THE PARENT’S POSITION
Parent attorney outlined the parent’s position via hearing request and at hearing. (Ex A)
CSE meeting was held in October of 2012. CBST has not made an offer of placement for the 2013-2014 school year. Parent seeks appropriate placement, or DOE payment or reimbursement for privately obtained placement. Attorney asserts that since no placement has been offered parent seeks Nickerson (P1) letter to seek out appropriate placement for the student. (Ex A)
DOE POSITION
DOE does not have a placement to defend, or offer the student at the current time. DOE will not agree to a Nickerson (P1) letter. DOE will continue to seek out an appropriate placement.
FINDING OF FACTS AND DECISION
The Parent's seeks resolution to the alleged failure of the DOE to provide Placement for the 2013-2014 school year, and proposes resolution by the issuance of a P-
1 Nickerson Letter. A Nickerson letter is a letter from the Department of Education (DOE) to a parent authorizing parental placement of the child, at no cost to the parent, in an appropriate special education program in any state-approved private school. (See Jose
P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298) This remedy addresses the circumstance whereby a child has not been evaluated or placed in a timely manner. (See SRO Nos. 06-088, 02-075 & 00-092) Additionally, this remedy is also available when a student has completed all necessary evaluations but a final notice of recommendation is not sent or given to the parent by the student's eligibility date. Again, the parent must be provided a Nickerson Letter entitling the student to be placed in an appropriate non-public school at public expense. (Jose P., et al. v. Thomas Sobol, et al., 1995 WL 591304 (EDNY) - Stipulation)
DOE has no offer of placement for the student in response to the parent’s claims asserted in the hearing request. (Ex A)
DOE did not submit any documents into evidence to dispute the Parent’s position.
There is no indication that the parent acted in any way to frustrate the DOE or the CSE. Therefore, there are no equitable considerations that would prevent the parent from the requested relief.
I conclude that the Department of Education did not meet its burden of demonstrating that it placed the child in an appropriate program in a timely manner. Therefore, I order the Department of Education to issue a Nickerson (P -1) letter to the parent for placement in a non-public school for the remainder of the 2013-2014 school year.
Once the parent has provided appropriate documentation from a state approved non public school the CSE shall reconvene to reflect said placement upon the student’s IEP for the 2013-2014 school year.
ORDER
1. CSE shall issue authorizations for a and evaluation to be completed by the , at a total cost not to exceed $3,200.00.
2. CSE shall reconvene within 30 days of receipt of the above assessment and evaluation, to develop an appropriate IEP.
3. DOE shall provide parent a copy of the packet sent by Central Based Support Team (CBST) to the potential placements.
4. DOE shall issue a Nickerson (P-1) Letter for a non-public school placement. The Department of Education will provide the parents with the Nickerson P-1 letter immediately upon receipt of this Order and no later than January 24th , 2014. Dated: January 13, 2014
_________________________
DANIEL AJELLO, ESQ.
Impartial Hearing Officer DA:gc
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 Hearing Request, 11/15/13, 5 pages B Notice of Appearance, 11/15/13, 1 page
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I Subpoena , 12/23/13, 4 pages II Subpoena NYS DOE District 29, 12/23/13, 3 pages