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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: March 4, 2015
Actual Record Closed Date: March 11, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 4, 2015
For the Student:
Attorney
Mother
Legal Intern
Legal Intern
MSW Intern
For the Department of Education:
- IHRO
On March 4, 2015, the parties appeared for an Impartial Hearing regarding the parents’ request for a P-1 “Nickerson Letter” for the Student’s placement at a state approved, non-public school for the remainder of the 2014-2015 school year and for the 2015-2016 school year. is a -old receiving special education services who is currently attending located in the . 's is classified as a Student with (Tr. 10).
The Department of Education (DOE) conceded that they failed to comply with the timelines set for in Jose P and conceded that the Student was not offered a FAPE for the 2013-2014 and 2014-2015 school years (Tr. 13-14). (Jose P., 79 C 270, EHLR 553:303,).
However, the Department contends that pursuant to NYC DOE policy, the Student is not entitled to a P-1 Nickerson letter because the Student had not previously been placed in a “self-contained” setting. (Tr. 11). The DOE also contends that under SRO decision 12-021, the IHO does not have the authority to determine whether the Student falls in the class of student’s set forth in Jose P (Tr. 12). I disagree.
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). As indicated above. the DOE does not dispute that they failed to comply with the Jose P timelines. Here, the issue as to whether a P1 Nickerson letter is valid for student who had not previously been placed in a self-contained classed was expressly addressed in Jose P. Nevertheless, the DOE has failed to present any authority to support its assertion other than its own policy.
Thus, I find that its position is without merit. Additionally, with respect to RE, the DOE submitted SRO decision 12-021, where the SRO found that the issuance of a Nickerson Letter was not a per se acknowledgment of FAPE. The Decision included a discussion about who may be in a class under Jose P (SRO 21-021, pages 8-9). However, I note that unlike the SRO decision 21-021, in this case, the DOE conceded that they did not offer FAPE for two school years and that they did not comply with the times-lines in Jose P with respect to a referral for a revaluation (Tr. 13). As such, I find the DOE’s argument is without merit. Consequently, I find that the Student is entitled to a P-1 Nickerson letter. I further note that the issue as to whether or not the Student belongs to a “class,” of plaintiffs is not before me.
ORDERED that 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 2014-2015 school year and for the 2015-2016 school year.
Dated: March 13, 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.