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STATEMENT OF AGREEMENT AND ORDER
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: December 22, 2014
Actual Record Closed Date: December 22, 2014
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 22,
2014
Attorney — Student
Parents
District Representative — DOE
INTRODUCTION
On 11/18/2014, 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) (1).
Appended to the record are lists of persons in attendance and the documents received in evidence. Parent commenced this matter through hearing request, dated 11/07/2014, alleging the Department of Education (DOE) failed to offer the student a Free and Appropriate Public Education (FAPE) for the 2014-2015 school year. (Ex A)
Parent seeks relief that provides proper placement for the 2014-2015 or P-[1] (Nickerson Letter). (Ex A)
BACKGROUND
Parties appeared at hearing of 12/22/2014 and advised the hearing officer that an agreement had been reached regarding this matter.
DOE acknowledged a FAPE had not been offered for the 2014-2015 school year.
Parties indicated on the record the agreement. This included the DOE issuing the requested relief of a P-1 or Nickerson letter to allow parent to place the student in a New York State Approved non public, school setting.
AGREEMENT OF THE PARTIES
Parties engaged in on and off the record discussions and indicated on the record the following agreement to resolve the Impartial Hearing Request: 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]). The remedy provided by the Jose P. decision is intended to address those situations in which a student has not been evaluated within 30 days or placed within 60 days of referral to the CSE (id.; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 279 [E.D.N.Y. Aug. 25, 2010]; see Application of the Bd. of Educ., Appeal No. 03110; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092; see also Tr. pp. 146-47).
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. 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)
Above remedy has been agreed to as appropriate by the parties.
ORDER
1. DOE shall issue a P-1, Nickerson Letter allowing the parent to place the student in a New York State Approved non public school setting. Dated: January 5, 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
PARENT
A Impartial Hearing Request, 11/07/2014, 3 pages B Parent letter to CSE, 07/10/2014, 2 pages C Recommendation letter, 03/21/2014, 1 page D Diagnosis, 09/05/2014, 1 page E Acceptance letter, 10/10/2014, 1 page F Procedures, 2014-2015, 7 pages G Distinguishing features, 2014-2015, 11 pages H procedures, May 2002, 16 pages I Effective programs for , , 2010, 28 pages J Jose P. v Ambach, 12/14/1981 & 01/05/1982, 21 pages K Jose P Exhibits, 07/02/1982, 7 pages L Jose P Stipulation, 0728/1988., 5 pages M IEP, 09/11/2014, 13 pages
DEPARTMENT OF EDUCATION
NONE
IMPARTIAL HEARING OFFICER
I Notice of Appointment, 11/18/2014, 3 pages
Footnotes
[1] DOE shall issue a P-1, Nickerson Letter allowing the parent to place the student in a New York State Approved non public school setting. A "Nickerson letter" is a remedy for a systemic denial of FAPE that was imposed by the U.S. District Court based upon a class action lawsuit, and this remedy is available to parents and students who are class members in accordance with the terms of a consent order (see R.E. v. New York City Dept. of Educ., 785 F.Supp.2d 28, 44 [S.D.N.Y. 2011]). The Nickerson letter remedy authorizes a parent to immediately place the student