New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 555196 - NYC: 211282

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: REDACTED

Record Close Date: February 25, 2022

Hearing Officer: Alena Weiserbs, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED AT THE HEARINGS

For the Student:

REDACTED, Attorney

For the Department of Education:

REDACTED, District Representatives

On July 22, 2021, REDACTED (the “Parent”) of REDACTED (the “Student”) filed a due process complaint (“DPC”) under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”). I was appointed as impartial hearing officer (“IHO”) on July 30, 2021. Hearings went forward in this case on multiple dates from August 24, 2021 to February 16, 2022.

The Parent presented the testimony of two witnesses at the February 16, 2022 hearing. The DOE left the hearing on February 16, 2022 due to lack of preparation and having other hearings to attend(Tr. 64-65).

The Student is a REDACTED year-old male who is classified as other health impairment with some emotional disabilities and depressive disorder (DPC; Tr. 71). His classification and eligibility for special education supports and services are not in dispute (Tr. 90). In the DPC, the Parent requested that the DOE (1) provide tuition reimbursement and/or direct funding of the Student’s unilateral private placement at the REDACTED (“Private School”) for the 2021-2022 school year due to the DOE’s alleged denial of a Free Appropriate Education (“FAPE”) for the Student; (2) contract with the Private School, which is a New York State approved non-public school (“NPS”) to provide the Student with an appropriate placement for the 2021 to 2022 school year; or (3) provide a Nickerson letter to allow the Student to attend the Private School due to the DOE’s failure to conduct a timely IEP to determine an appropriate placement for the Student during 2021 to 2022 school year.

By the second hearing date on September 2, 2021, the DOE had issued a Nickerson letter to the Parent. She utilized this letter to enroll her son in the Private School and the Student was soon enrolled at the school as of August 31, 2021 (Tr. 9).

At the September 2, 2021 hearing, the Parent requested that the DOE conduct an IEP meeting for the purpose of formalizing the Student’s placement at the Private School (Tr. 10). This IHO directed the DOE to hold the IEP at that time. When the DOE failed to do so by the September 30, 2021 hearing, this IHO issued an Interim Order on October 7, 2021 for the CSE to convene an IEP meeting for the Student. (IHO Ex. I).

An IEP meeting was held on or about October 28, 2021, but the DOE alleged that they were unable to finalize this IEP due to procedural requirements required by the New York State Education Department (Tr. 26-27). On December 1, 2021, the Parent informed this IHO that the DOE required a social evaluation of the Student. At the time of the hearing, the District was not able to provide this IHO with any additional information regarding processing of the IEP or of the evaluations. The Parent was not aware if the DOE had evaluated her son since the October 28, 2021 IEP. At the next hearing on January 7, 2021, the DOE still had not finalized the IEP and CSE was still “in the process of identifying the New York State approved nonpublic school” despite that in October the CSE had stated “that the recommendation was for a New York State approved non-public school, residential” which the District Representative had verified in SESIS and with the supervisor (Tr. 42). The DOE asserted that CSE needed the Student to be evaluated before finalizing the IEP (Tr. 44) even though the Nickerson letter had already been issued for the Student, and the Student was already enrolled at a NYS Board approved private school.

As of February 16, 2022 hearing, the Parent had still not received the October 28, 2021 IEP, and requested that an order be issued directing the DOE “to complete this Student’s IEP for the 2021 to 2022 school year and to order the Department of Education to include the following services in his IEP: Special Education class of 12:1:1; related services of counseling, once for 45 minutes individually and once for 45 minutes in a group; testing accommodations to include extended time, separate location, and frequent breaks; and also, authorize the parent for at least four visitations of the Student at the REDACTED or to pay for the transportation costs for him to come and visit the Parent at home. And the program should be a 12 month school year program” (Tr. 90).

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982); 34 CFR §300.550(b); 8 NYCRR§200.6(a)(1). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).

A Nickerson Letter is a letter from the DOE to a Parent authorizing the Parent to place the child in an appropriate special education program in any state-approved nonpublic school, at public expense. (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 SRO Nos. 06-088, 02-075 & 00-092). The remedy is also available when a student has completed all necessary evaluations but a final notice of recommendation is not sent and/or given to the Parents by the student’s eligibility date. There again, the Parent must be sent/given a Nickerson Letter entitling the student to be placed in an appropriate state approved private school at public expense. ( Jose P., et al. v. Thomas Sobol, et al., 1995 WL 591304 (EDNY) - Stipulation).

In this case, a Nickerson letter was issued to the parent to address the fact that the DOE had not timely convened a timely IEP for the 2021 to 2022 school year. Despite the issuance of this Nickerson letter, the CSE has failed to change the Student’s IEP to reflect the Nickerson Order despite these ongoing hearings. The Private School the Student is attending is a New York State approved non-public residential school (Tr. 43, 71). The Private School provides the appropriate services for the Student and has qualified professionals (Tr. 73-75). The Private School has received funding from the DOE through the Nickerson letter for the 2021 to 2022 school year (Tr. 74).

This IHO notes that the remedy of a Nickerson letter is available to address the situation where a child has been referred to the CSE for evaluation, an IEP has not been created and/or the student has not been offered a placement within 65 days. It is contemplated that after the relief of the Nickerson letter issued, the DOE would issue a new IEP and placement to reflect the ordered program at a non-public New York State Board of Education approved school, and not further compound their failure to provide the Student with a FAPE as required under the IDEA.

Because of the DOE’s failure to formalize the placement at the Private School, the DOE must continue to fund the placement and program at the Private School pursuant to the Nickerson letter and immediately create a new IEP to reflect this program.

ORDER

AS SUCH IT IS HEREBY ORDERED based upon the evidence presented, and findings and discussions of law that the DOE shall change and complete the Student’s IEP for the 2021 to 2022 school year within fourteen days of this Order to reflect the twelve month program and placement at the Private School as follows:

• • Special Education class of 12:1:1;
• • Related services of counseling, once for 45 minutes individually and once for 45 minutes in a group setting;
• • testing accommodations to include extended time, separate location, and frequent breaks; and
• • Fund the family for five four days visits to the Student at the Private School for educational and/or family counseling purposes; that the funding shall include round trip airfare, train-fare and include carfare to and from the airport or train; and/or reimbursement for gas; and up three hundred twenty-five dollars ($325.00) per night stay for the cost of lodging and meals for up to 4 days each visit; or to pay for the transportation costs for him to come and visit the parent at home; and the DOE shall reimburse the Parent for the cost of these visitation within fifteen days of the Parent’s submission of receipts to the DOE.

Dated: March 7, 2022

So Ordered

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.