NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 15, 2015
Actual Record Closed Date: May 27, 2015
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 15, 2015
Attorney — Student
Parents
Student
Clinician (Via Telephone) — Student
Hearing Representative — DOE
By Complaint dated February 3, 2015, the matter of came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.
The matter did not resolve during the resolution period. A prehearing conference was held on March 27, 2015, during which the parties discussed the issues in the case.
The Complaint alleges that the Student has not received any educational program for the past two years. The Complaint requests that the Student be transferred to an appropriate placement at for the remainder of the 2014-2015 school year.
The District concedes free appropriate public education (FAPE) denial. (Tr. @ 27) The only issue here is the appropriate remedy. (Tr. @ 27)
The District contends that the request for placement at (“ ”) is inappropriate because the hearing officer does not have the jurisdiction to order a Nickerson letter and because is inappropriate because it is . The
District contends that in New York State have expressed interest in the student. (Tr. @ 41)
Upon the application of the parties, the decision date in this matter was reset several times. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that these were appropriate matters for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being.
There was no showing of any prejudice to the any prejudice to the prejudice to the
District.
FINDINGS OF FACT
The Student is a old who is classified as eligible for services as a student with an . (Exh. C)
She has a of , and reads at approximately the level.
(Exh. C) Her and scores are , about at the level. (Exh. C)
She is “ ” in that she
. Because of , she is not
. (Exh. C) She has
. She has ,
, and . (Exh. C)
She has been diagnosed with , , ,
, , , and
. (Exh. C)
The Student’s IEP dated April 26, 2013 provided the Student with pending deferral to the Central Based Support Team, to be placed in a school. (Exh. C)
She on . (Exh. D)
She was in from February 2014 through August, 2014, with a teacher and a every week. (50-51)
Then parent then she went to the local Committee on Special Education (CSE)
and sought placement there. No placement was provided. (53) Then in Fall, 2014, the Student at , where she stayed at until November, 2014. (54) She has been ever since. (54-55)
is a New York State approved
center that services children with . (65) There are students at the school, mostly from . (66) The school has accepted the Student for admission. (66)
The school provides a “ ” environment with other students aged .
(68-69)
She would be placed in a classroom, with a teacher, a , and other students. (69) If she is showing
, they will assign her a staff member for hours a day. (69) They provide and . (70) There is a program and . (71) There is a . (72) Staff are also trained in . (75-76) There is also
. (78)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of
2007.
A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect.
300.513(a)(2).A free appropriate public education “must include ‘special education and related services' tailored to meet the unique needs of a particular child, and be ‘reasonably calculated to enable the child to receive educational benefits.’ ” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted). While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C.
Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
The District concedes that it did not provide a FAPE to the Student for the 2014- 2015 school year.
The parent contends that a 2014-2015 “Nickerson letter” is in order here. A "Nickerson letter" is a letter from the Department of Education to a parent authorizing the parent to immediately place the child in an appropriate special education program in any state-approved private school, at no cost to the parent. 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 within 30 days or placed within 60 days of referral to the CSE. Application of the Bd. of Educ., Appeal No.
03-110; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092.
The “Nickerson letter” may be enforced by a third party beneficiary of the Jose P.
consent decree. See M.S. v. New York City Department of Education, 734 F. Supp.2d
271 (E.D.N.Y. 2009)(explaining the scope of relief in Jose P.) Third party beneficiaries of the Jose P. consent decree include students who were not timely evaluated or placed at a school.
There is no question that this child has not received a timely placement from the District. I have reviewed the relevant case law, including Special Master Marvin
Frankel’s 1981 order adopted by Judge Nickerson. This IHO is not aware of any restrictions placed on relief pursuant to the orders in Jose P. I agree with the parent that the facts here dictate that a “Nickerson letter” should be issued here for the remainder of the 2014-2015 year to the benefit of the Student here.
Alternatively, where Districts have failed to offer students a FAPE, courts have wide discretion to insure that students receive a FAPE going forward. As the Supreme Court stated in Burlington:
The statute directs the court to “grant such relief as [it]
determines is appropriate.” The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be “appropriate.” Absent other reference, the only possible interpretation is that the relief is to be “appropriate” in light of the purpose of the Act. As already noted, this is principally to provide handicapped children with “a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.
School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359, 371 (1985). This point was underscored by Judge Paul Gardephe in a case which involved a parent with an autistic child who was seeking funding to attend Rebecca
School. Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F.Supp.2d 403 (S.D.N.Y.
2011). Judge Gardephe explained that parents of modest means must have the same options under the IDEA as more wealthy parents. Judge Gardephe indicated that a contrary ruling would be “entirely inconsistent with IDEA’s statutory purpose, including the goal of ensuring a FAPE to the least privileged of disabled children in our nation.” Id.
at 428. Judge Gardephe stated: “Sect. 1415(i)(2)(C)(iii) is sufficiently broad” to encompass the direct payment relief the plaintiffs sought. See also Branham ex rel
Branham v. District of Columbia, 427 F.3d 7 (D.C. Cir. 2005); Application of a Student with a Disability, Appeal No. 08-103 n.9.
Here, there is still no site offer from the DOE, with the Student still without school. It is incumbent on this IHO to fashion a remedy so that this Student can derive educational benefit from school in 2014-2015 and beyond. The
District objects, but presents no alternatives to , which, from the record, provides the Student with services that she needs. The school provides and . The school is on the New York State Department of Education’s approved list. The Student should attend forthwith.
ORDER
As a result of the foregoing, a Nickerson letter shall issue allowing the Student to benefit from the for the remainder of the 2014-2015 school year.
Dated: June 10, 2015
MICHAEL S. LAZAN, 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 RECORD
PARENT
B Response
E List, dated 3/6/14, 2 pages
F Acceptance Letter, dated 1/30/15, 1 page
G Procedures at , 7 pages
H Distinguishing Features
I Procedures, 16 pages
J Educational Progress for 's ,
9 pages, dated 1/28/10
K José P. Order, '81 & '82, 21 pages
L José P. Stip, 7/2/82, 7 pages
M 7/28/88 José P. Case order, 5 pages
DEPARTMENT OF EDUCATION
1 Due Process Complaint, dated 2/3/15, 3 pages
2 IEP Meeting Notice, dated 4/9/13, 4 pages
3 IEP, dated 4/26/13, 13 pages
7 Final Notice, dated 9/24/13, 1 page