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FINDINGS OF FACT AND DECISION
Case Number: 164712
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: February 6, 2017
Actual Record Closed Date: February 21, 2017
Hearing Officer: Audrey Daniel, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 6, 2017
For the Student:
, Parent
, Interpreter
,
For the New York City Department of Education:
District Representative
I. Introduction
On December 8, 2016, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of ("Student").
II. Background and Relevant Facts
. Student is and is classified as. According to the due process request, two telephonic Committee on Special Education meetings were held on October 17, 2016 and November 18, 2016, in which Student was recommended. (Exh. A). An Individualized Education Program (“IEP”) dated November 4, 2016 recommended. (Exh. 1). Parent unilaterally researched and applied to the, who reviewed Student’s application and determined that it could meet her need and seeks immediate placement at. (Exh. A).
The following facts have been stipulated between the parties (Tr. pages 8-9). On November 4, 2016, the IEP team recommended. The compliance date for locating an appropriate was January 6, 2017. On January 19, 2017, the Central Based Support Team received and accepted the package. As of the date of this hearing, no has been provided by the CBST. Further, the is a New York Stated Education Department approved non-public school.
III. Applicable Law
New York State regulation §200.49(e)(1) provides:
(e) IEP Implementation. (1) Within 60 school days of the receipt of consent to evaluate for a student not previously identified as having a disability, or within 60 school days of the referral for review of the student with a disability, the board of education shall arrange for appropriate special programs and services, except that if such recommendation is for placement in an approv ed in-state or out-of-state priv ate school, the board shall arrange for such program s and services within 30 school days of the board's receipt of the recommendation of the committee. 8 NYCRR §200.4(e)(1) (Italics added).
It is undisputed that the Committee on Special Education recommended a for Student. (Tr. page 8-9). It is also undisputed that a placement was not arranged within thirty school days of the receipt of the recommendation. (Tr. page 8-9). The parties stipulated to the fact that the compliance date for locating a was January 6, 2017, and that no such placement was located. (Tr. page 8). Therefore, the DOE has violated this regulation and Student is entitled to the relief requested.
Parent and the DOE agree (Tr. page 8-10) that the appropriate remedy in this case is to issue a “Nickerson Letter”. A Nickerson Letter is a remedy for a systemic denial of a free appropriate public education (FAPE) that was imposed by the United States District Court for the Eastern District of New York based upon a class action lawsuit, available to parents and students who are class members in accordance with the terms of a consent order (see Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]).
The Nickerson Letter remedy authorizes a parent to immediately place the student in an appropriate special education program in a State-approved nonpublic school at no cost to the parent. Id. 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. 2010]; see 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).
Therefore, as the stipulation of facts indicate a violation of the regulations requiring placement of a child within thirty school days of the receipt of the recommendation, and the appropriate remedy is to issue a Nickerson Letter so that Parent can immediately place Student in an, I order the DOE to immediately issue a Nickerson Letter.
IV. Order
IT IS THEREFORE ORDERED THAT:
1. The New York City Department of Education failed to provide a Free and Appropriate Public Education to Student for the 2016-2017 school year.
2. The New York City Department of Education shall issue a Nickerson Letter to Student within two weeks of receipts of this Order for placement in a New York State approved non-public school.
Dated: February 24, 2017
AUDREY DANIEL, ESQ.
Impartial Hearing Officer
AD:
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOCUMENTATION ENTERED INTO THE RECORD
Parent’s Evidence
A. Impartial Hearing Request, dated 12/2/16, 4 pages
B. DOE Due Process Response, dated 12/6/16, 3 pages
C. Parent Letter to CSE, dated 2/5/16, 2 pages
D. Recommendation Letter from the , dated 6/28/16, 1 page
E. , dated 6/21/16, 1 page
F. , dated 7/6/16, 7 pages
G. , 7/20/16, 6 pages
H. Acceptance Letter, 9/9/16, 1 page
I. , undated, 7 pages
J. , undated, 11 pages
K. , May 2002, 16 pages
L. Jose P. v. Ambach, 79 Civ. 270, 21 pages
M. Jose P. v. Ambach, 79 Civ. 270, 7 pages
N. Jose P. v. Ambach, 79 Civ. 270, 5 pages
Department of Education Evidence
1. IEP dated 11/9/16, 11 pages.
Impartial Hearing Officer Evidence
None