Application of a CHILD WITH A DISABILITY, by her 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, Huria S. Naviwala, Esq., of counsel
Petitioner appeals from a decision of an impartial hearing officer which determined that the educational program respondent's Committee on Preschool Special Education (CPSE) had recommended for his daughter for the 2004-05 school year was appropriate but ordered respondent to pay for 30 hours of private speech therapy. The appeal must be dismissed.
At the outset, I shall address a procedural issue. Respondent asserts that petitioner did not serve the Notice of Intention to Seek Review and the Petition for review in a timely manner. A Notice of Intention to Seek Review and Petition for review to a State Review Officer must comply with the timelines specified in section 279.2 of the Regulations of the Commissioner of Education (8 NYCRR 279.13). 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 (8 NYCRR 279.2[b]). The Petition for review shall be served upon the respondent within 35 days from the date of the decision sought to be reviewed (id.). 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 (id.). A State Review Officer, in his or her sole discretion, may excuse a failure to timely file a petition for review within the time specified for good cause shown (8 NYCRR 279.13). The reasons for such failure shall be set forth in the petition (id.).
The impartial hearing officer's decision is dated August 29, 2005 (IHO Decision, p. 5). There is no indication in the record as to whether the decision was mailed to the parties. Respondent contends that petitioner served the notice of intention to seek review and the petition for review together upon respondent on November 3, 2005. Petitioner has submitted an Affidavit of Service stating that the "notice" and petition for review were served upon respondent on October 17, 2005. Under the applicable provisions of 8 NYCRR 279.2(b), I find that petitioner did not timely serve these documents upon respondent regardless of whether the decision of the impartial hearing officer was mailed and regardless of whether respondent was served on October 17, 2005 or November 3, 2005. Even assuming that the decision was served by regular mail and petitioner was entitled to the presumptive additional "date of mailing and four subsequent days thereto" exclusion in calculating the time for service of a petition, the petition should have been served by October 10, 2005.1 Furthermore, good cause is not stated in the petition. The petition is, therefore, dismissed (Application of a Child with a Disability, Appeal No. 05-078; Application of a Child with a Disability, Appeal No. 05-066; Application of a Child with a Disability, Appeal No. 05-048; Application of a Child with a Disability, Appeal No. 04-103; Application of a Child with a Disability, Appeal No. 04-067; Application of a Child with a Disability, Appeal No. 03-109; Application of a Child with a Disability, Appeal No. 02-096).
Although I will dismiss the petition for review as untimely, I have reviewed the impartial hearing record and the merits of petitioner's appeal.
At the time of the impartial hearing on August 19, 2005, the child was five years old and attending respondent's Children's Learning Center, Special Education Preschool (Tr. pp. 25, 31; see Dist. Ex. 4 at p. 1). Respondent's CPSE initially classified the child as a preschool student with a disability on September 18, 2003 (Dist. Ex. 20). This classification is not is dispute. Prior to her initial classification, the child attended an early intervention program, where she received special instructions, speech therapy and occupational therapy (Dist. Ex. 26 at p. 3).
Evaluations were conducted by the CPSE in June 2003 (Dist. Exs. 23-27). Results of a psychological evaluation indicated that the child exhibited global delays (Dist. Ex. 24 at p. 6). Results of a speech and language evaluation revealed that the child exhibited receptive and expressive language delays (Dist. Ex. 25 at p. 3). An occupational therapy (OT) evaluation identified delays in the child's grasping skills and visual motor integration skills, and indicated that the child demonstrated significant deficits in all sensory processing areas (Dist. Ex. 27 at pp. 4-5). An educational evaluation informed that the child functioned severely below her age level in the areas of development (Dist. Ex. 26 at p. 3).
On September 18, 2003, the CPSE recommended placement of the child in a 12-month half-day program for the 2003-04 school year with related services of 1:1 speech and language therapy three times per week for 30 minutes, as well as 1:1 physical and occupational therapy two times per week for 30 minutes (Dist. Exs. 12, 20). The child began attending this program on October 21, 2003 (Tr. p. 15). On December 22, 2003, the CPSE changed the child's placement from a half-day to a full-day program with the same level of related services (Dist. Exs. 11, 18). The child's placement and level of related services remained unchanged for the duration of the 2004-05 school year after an annual review by the CPSE on November 29, 2004 (Dist. Ex. 8).
The child was evaluated by the CPSE for kindergarten special education services in January and February of 2005 (Dist. Exs. 3-7). Evaluation results revealed that the child had severe speech and language delays (Dist. Ex. 1 at p. 3) and was functioning below her age level academically and in social/emotional performance (Dist. Ex. 1 at pp. 4, 5). The child's current individualized education program (IEP), developed on June 24, 2005, maintained the child's placement in a 12-month full-day preschool program with the same level of related services, except for speech and language therapy services, which were increased by an additional 60 minutes of therapy two times per week (Dist. Exs. 1 at p. 23; 2).
Petitioner initiated the impartial hearing by letter received by the Impartial Hearing Office on July 19, 2005. In the letter, petitioner expressed disagreement with the child's program and alleged that the child did not obtain speech services at her preschool placement between February 4, 2004 and January 5, 2005 as mandated (Tr. pp. 8, 11; IHO Decision, p. 2). Petitioner requested that the child be placed in a private school (Tr. pp. 8, 12). At the impartial hearing on August 9, 2005, respondent's program director stated that the child did not receive any speech and language therapy between March 22, 2004 and May 27, 2004 due to the resignation of the child's speech therapist (Tr. p. 16). Respondent's program director testified at the impartial hearing that between June 1, 2004 and June 30, 2004, the child received speech and language therapy one time per week due to the schedule of the replacement speech therapist (Tr. p. 17). She further indicated that the child received speech and language therapy in July and August 2004 when present at the preschool (Tr. p. 21) and received all of her speech and language therapy from September 27, 2004 to January 13, 2005, when a new speech therapist began working with the child at petitioner's request (Tr. pp. 23-24, 28-30).
In a decision dated August 29, 2005, the impartial hearing officer ordered respondent to pay for a private speech therapist for the child, at a rate not to exceed $90.00 per hour, for a total of 30 hours (IHO Decision, p. 4). The impartial hearing officer found that petitioner did not claim that the program was inappropriate (IHO Decision, p. 3). He further found the child's IEP and recommended program to be appropriate but not properly implemented (IHO Decision, p. 4).
Petitioner disagrees with the decision of the impartial hearing officer and contends, on appeal, that his daughter is not receiving an adequate education and that a "Nickerson letter" should be issued that would allow the child to attend a state-approved private school at respondent's expense. Respondent asserts that petitioner's claim for a "Nickerson letter" is inappropriate. Respondent also concedes that petitioner's daughter did not receive all of the mandated speech and language services and agrees to provide the additional speech therapy as directed by the impartial hearing officer.
Petitioner requests that a "Nickerson letter" be issued for the child to attend private school. 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. January 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 Committee on Special Education (CSE) (id.; see Application of a Child with a Disability, Appeal No. 05-048; Application of the Bd. of Educ., Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 02-075). The facts of this case do not raise the issue of an untimely placement or evaluation relative to the child. Accordingly, I find that petitioner is not entitled to this requested relief.
I find no reason to modify the impartial hearing officer's order or to grant the additional relief requested by petitioner.
THE APPEAL IS DISMISSED.
1 Calculating 35 days from the date of the decision, excluding the date of mailing and subsequent 4 days thereto, leads to an October 8, 2005 service due date. However, because October 8, 2005 was a Saturday, service on Monday, October 10, 2005, would have been permitted as the final day for timely service (8 NYCRR 279.11).