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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: October 22, 2014
December 10, 2014
January 14, 2015
February 10, 2015
Actual Record Closed Date: February 26, 2015
Hearing Officer: J. , Esq.
Corrected
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 22, 2014
Attorney — Student
CSE- and Chairperson Designee — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 10, 2014
Attorney — Student
District Representative - by phone — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 14, 2014
Attorney — Student
DOE Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10, 2014
For the Student:
DID NOT APPEAR
For the Department of Education:
DID NOT APPEAR
INTRODUCTION
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as the District, the parents as the Parents and the student will be referred to as the Student. The case was assigned to me on October 1, 2014 after the hearing officer who had been appointed recused him/herself.
PARENTS’ POSITION
In the complaint notice, dated July 1, 2014, the Parent stated that the Committee on Special Education did not reconvene to provide the Student with an appropriate Individualized Educational Plan (IEP) for the 2014-2015 school year.
DISTRICT’S POSITION
The District conceded FAPE and did not put on a case.
STUDENT HISTORY
The Student is a - year old and classified with . She attends a placement at a Private School that has been approved by the New York State Education Department as a non-public school for children with intellectual disabilities.
BACKGROUND OF THE CASE
At the beginning of the 201`3-2014 school year the Student attended a class in a School within the District. By January 2014 the Parent sought to change the placement to the Private School. The matter was contested and the Parents requested an impartial hearing to address the Student’s placement for the balance of 2013-2014 school year. An IHO issued a Findings of Fact and Decision, dated April 22, 2014, finding the District failed to provide the Student a FAPE and ordering the District to pay the cost of the Student’s tuition for the balance of 2013-2014 school year.
In the instant matter pendency was sought by hearing on October 22, 2014, and a pendency decision was issued on October 28, 2014 giving the Student pendency at the Private School that she was attending.
Two hearing dates were scheduled for December 10, 2014 and January 14, 2015.
The Parent’s attorney requested an adjournment on December 10, 2014, to allow time for settlement discussions in hopes of approval of the Student’s placement. On January 14, the District Representative requested an adjournment because of illness.
Both parties participated in a hearing on February 10, 2015. The District conceded the issue of FAPE and the Parent went forward on the theory that a Nickerson Letter would be the approved relief.
DISCUSSION
In this case the Parent presented two theories of relief. The equitable remedy of reimbursement or prospective funding based upon the unilateral parental placement of the Student in a non-public school of 2) the request for a Nickerson letter.
A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim.
Florence County Sch. Dist. Four v. Carter. 510 U.S. 7 (1993); Sch. Comm. Of Burlington
v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). This relief would necessarily entail the development of a factual record concerning “Prong 2” – the appropriateness of the Private School and a weighing of the equities known as “Prong 3”. The
Parent opted to forgo this theory of relief and present the more expeditious case for the issuance of a “Nickerson Letter”.
A "Nickerson Letter" is written authorization from the Department of Education (DOE) to the parent of a child with a disability to place the child, at respondent's expense, in a private school which has been approved as a school for children with disabilities by the New York State Education Department (see 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 or placed in a timely manner (see Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability , Appeal No. 00-092). This is precisely the circumstance that the instant case presents. Accordingly,
It is ORDERED
The District shall issue a P-1 Authorization known as a “Nickerson” letter for placement in any New York State approved non-public residential school for the 2014- 2015 school year.
So Ordered,
Dated: February 26, 2015
Corrected Date: March 12, 2015
, 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
A Impartial Hearing Request, 7/1/14, 3 pages
B DOE Due Process Response, 7/15/14, 3 pages
C IHO Findings of Fact and Decision (IHO Case No. ), 4/22/14, 18 pages
D and , 5/23/14, 10 pages
E Charts, 2014-2015, 9 pages
F Program Description, 2/4/15, 4 pages
G Class Schedule, undated, 1 page
H Quarterly Progress Report, 6/14-9/14, 16 pages
I Evaluation Report, 1/1/14, 6 pages
J Social Summary, 7/15/14, 2 pages