Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, John P. Hewson, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied her request to be reimbursed for tutoring services obtained for her son during the 2003-04 and 2004-05 school years. The appeal must be dismissed on procedural grounds.
At the time of the impartial hearing, the student was 11 years old and attending sixth grade in respondent's middle school (Tr. p. 129; Dist. Ex. 15). The student's eligibility for special education programs and services as a student with a speech impairment is not in dispute (see 8 NYCRR 200.1[zz]). Respondent did not have an individualized education program (IEP) in place for petitioner's son for the 2003-04 or 2004-05 school years at the commencement of those school years (Tr. pp. 99-100, 103-104). Respondent issued a "Nickerson letter"1 to petitioner for the 2004-05 school year in January 2005 (Tr. pp. 19, 103-04). At the time of the impartial hearing, the student's special education program, pursuant to an IEP dated January 26, 2005, provided for placement in a general education program with collaborative team teaching (Dist. Ex. 15 at p. 1). Related services of speech and language therapy and occupational therapy were also provided to the student (Dist. Ex. 15 at p. 14).
By letter dated November 16, 2004, petitioner requested an impartial hearing alleging that respondent had failed to evaluate the student and failed to conduct annual and triennial reviews, and also that his placement was ineffective in successfully remediating his educational deficiencies (Dist. Ex. 9). The impartial hearing was held on December 13, 2004 and February 2, 2005. The impartial hearing officer, in a decision dated March 17, 2005, found that petitioner's son had been denied a free appropriate public education (FAPE) by respondent for the 2004-05 school year, as well as for two of the three most recent school years, but that petitioner was not entitled to reimbursement for the tutoring services she obtained for her son because she failed to prove that the privately obtained services were appropriate (IHO Decision, pp. 11-12). The impartial hearing officer extended respondent's Nickerson letter to the 2005-06 school year and ordered a neuropsychological evaluation to be conducted of the student at respondent's expense (IHO Decision, p. 12).
On May 2, 2005, petitioner's advocate filed with the Office of State Review a petition for review that had been verified by the advocate instead of the petitioner. Additionally, the petition for review had been personally served on the school psychologist who represented herself as a district representative, but who did not meet the regulatory requirements for accepting service for the district. By letter dated May 25, 2005, the Office of State Review rejected the petition for review while granting leave until June 8, 2005 to file a properly verified and properly served amended notice of petition and petition for review. Petitioner was further informed by the letter that the petition for review was required to be properly verified and properly served in compliance with 8 NYCRR 279.7, 279.2, and 275.8[a]. Petitioner was also advised that "[a]lthough you are granted permission to resubmit, respondent is not precluded from raising any affirmative defenses pertaining to your initial April 22, 2005 service." On June 10, 2005, petitioner's advocate resubmitted to the Office of State Review the original unverified petition, along with a "power of attorney" form, and failed to serve respondent.
The Office of State Review forwarded to respondent the documents filed by petitioner. Respondent's attorney submitted an answer and objected to the improper verification, in addition to the improper service, and also asserted that the impartial hearing officer's decision should be upheld on the merits. Petitioner did not reply to the procedural defenses interposed by respondent as permitted by regulation (8 NYCRR 279.6). Petitioner's advocate contends that he was authorized to verify petitioner's pleading and thus that verification was proper. I disagree. Verification of the petition for review by the oath of a petitioner is required with one exception, which is not applicable to the instant appeal (8 NYCRR 279.7; see, e.g., Application of a Child with a Disability, Appeal No. 04-081; Application of a Child with a Disability, Appeal No. 98-33). Additionally, ". . . [i]f a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service" (8 NYCRR 275.8[a]).
Petitioner was given the opportunity to correct the improper verification and improper service. Petitioner did not do so. Moreover, petitioner failed to respond at all within the extended time granted by the Office of State Review for refiling. Under the circumstances, I decline to accept the petition for review.
THE APPEAL IS DISMISSED.
1 A "Nickerson letter" is a letter from the Department of Education (DOE) 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 (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 within 30 days or placed within 60 days of referral to the CSE (id.; 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).