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FINDINGS OF FACT AND DECISION
Case Number: 125343
Student’s Name:
Date of Birth:
District: 3
Hearing Requested By: Parent
Date of Hearing: June 9, 2010
September 21, 2010
Hearing Officer: Ralph Pennington, Jr., Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
0N JUNE 9, 2010
For the Parents:
Parent
Parent
Parent
Parent
Parent
For the Department of Education:
CSE Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
0N SEPTEMBER 21, 2010
For the Parents:
Parent
parent
Parent
Parent
Parent
Parent
Parent
For the Department of Education:
CSE Representative
PARENT’S POSITION
The parent contends that the New York City Department of Education (hereinafter referred to as “Department”), has failed to identify and properly classify this student for the 2007, 2008 & 2009 school years. The department failed to neither provide the student with an adequate Individualized Education Program (IEP) nor properly implement an IEP for the 2008 and 2009 school years.
With respect to relief, the parent seeks: an related services authorization (“RSA”) to receive a minimum of one hundred and ninety-eight hours of compensatory education in the form of to compensate for missed services; an RSA to receive three hundred and sixty hours of compensatory education in the form of reading and writing instruction; Committee on Special Education (CSE) to reconvene to draft an appropriate IEP with a deferral to Central Based Support Team (CBST) so that the student may be placed in a school setting with transportation provided; and the parent seeks placement at the School for and Development.
DEPARTMENT’S POSITION
The Department is silent as to any argument in opposition, except that if the requested placement is not available then that a comparable placement be made immediately. Secondly, the department argues that the RSA’s are provided for specific with a and not for a -specified. Evidence presented: On Behalf of the Department; The department presented no documentary or testimonial evidence. On Behalf of the Parent;, Parent, testified that she is the parent of the student (Tr.26). She first noticed that the student had around ages or (Tr.27). The student was not and (Tr.27). He had with his homework (Tr.28). He had with his homework every day (Tr.29). It would take him five or six hours to do his homework (Tr.29). The student has made no progress in the past five-six years (Tr.32). Said witness requested to the department that the student be reevaluated and never received a response (Tr.32). She feels that the student requires a small class (Tr.32). She has no difference from last school year to this school year (Tr.33). She would like to be more involved in the IEP process and more in contact with his (Tr.33). Moreover, the student has at (Tr.34). Often, she has to repeat herself when requesting him to do something (Tr.35). The student is currently failing his academic classes (Tr.35). No cross examination was conducted of this witness.
FINDINGS FACTS AND CONCLUSIONS OF LAW:
I find that the evidence clearly establishes that the student is a ( ) year old student who is classified as and on the October 2, 2009 IEP. The most recent IEP of August 2010 classifies the student with an. The student presents with poor comprehension, spelling, reading and math skills. Exhibit twenty-two shows that academically, the student performs in a range from 2.6 to 6.0 grade equivalent in various academic domains. The student is and has his. He has been diagnosed with and. Compensatory education, i.e., special education services provided to a student is a permissible remedy under the Individuals with Disabilities Education Act (IDEA) when the student has been excluded from school or denied appropriate educational services for an extended period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Lester H. v. Gilhool, 916 F.2d 865 [3d Cir. 1990]; Miener v. State of Missouri, 800 F.2d 749 [8th Cir. 1986]). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Application of the Bd. of Educ., Appeal No. 02-047). While, compensatory education is a remedy that is available to students who are no longer eligible for instruction, I note that State Review Officers have awarded additional services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 05-096; Application of a Child with a Disability, Appeal No. 04-054; Application of the Bd. of Educ., Appeal No. 02-047; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030). Based upon my review of the record, I find that a gross violation of FAPE was committed by the department for the 2008-2009 and 2009-2010 school years. Therefore, I agree with the parent’s attorney that the student is entitled to and has the opportunity to receive the additional services requested. The parent’s credible testimony along with exhibits nine, ten, twelve, fourteen and twenty-two, establish the student’s delays and lack of progress. Further, the record establishes that the student’s classification has been changed numerous times. The department presents no evidence and no witnesses in this matter. Further, the record substantiates that the student has not been properly evaluated. Exhibits twelve, fourteen and fifteen improperly classify with the non-existent classification of “mentally deficient”. A category that does not exist under the IDEA or any applicable New York State Law provisions. The fact that such improper classification was repeated in more than one IEP is proof that the department failed to properly develop an appropriate IEP over a substantial period of time. Moreover, a review of exhibit fourteen reveals that the IEP team of March 17, 2007 was not properly composed. Said IEP team did not have a special education teacher, a district representative, a parent or a parent member. Said IEP team clearly was missing mandatory members of the team. This evidence further corroborates the parent’s argument that the department has not only failed to provide FAPE to this student but failed to develop an appropriate IEP and properly classify this student over a number of years. Furthermore, the parent did not attend the CSE meeting that resulted in exhibits fourteen and fifteen; therefore said IEP’s were developed without meaningful participation of a key CSE member, the parent.
Clearly, as a result of the above-noted discussion, the student has been deprived of instruction over a substantial period of time which the department does no refute. Although it is alleged by the parent that the student was not provided with numerous sessions, the department fails to present any evidence to rebut and or counter said argument. On the basis of exhibits sixteen and twenty-two, it appears that the student has missed at least one hundred and ninety-eight hours of. Furthermore, to remedy the denial of FAPE and the lack of instruction and services, under these circumstances, the parent seeks additional services of private tutoring. The record reveals that the student has reading and writing skills (Exhibit 30). The parent requests three hundred and sixty hours of at the rate of one hundred ten dollars per hour. However, the parent does not submit any evidence to justify the requested enhanced rate, inclusive of a particular, for said. Therefore, the will be provided at the department rate. Thus, I direct the department to provide the student with the additional services, noted above to allow him to make up for instruction and services that he missed. Thus, the student is to be provided with up to one hundred and ninety-eight hours of and and three hundred and sixty hours of, to commence from the date of this decision until June 30, 2012. The is to be provided at the department rate. If necessary, the department is to provide the parent with a Related Services Authorization (RSA) so that she may acquire the necessary additional services noted above. Lastly, pursuant to the parent’s request, a duly constituted CSE team is to reconvene, within two-three weeks, and said CSE team is to consider all evaluations and also consider a deferral to CBST for placement/program and/or the School for and as a proposed placement. The parent further requests that the student be placed at the School for and. However, the record is devoid of any evidence to substantiate the appropriateness of said placement. The parent did not testify as to the proposed school nor was any other witness presented to testify to such. There is no documentary evidence to substantiate the appropriateness of the proposed placement. Therefore, the CSE team is to consider said potential placement. It is hereby:
So Ordered, The department is to provide the student, as compensatory education, with up to one hundred and ninety-eight hours of and three hundred and sixty hours of private tutoring, to commence from the date of this decision until June 30, 2012. The is to be provided at the department rate. Also, a duly constituted CSE team is to reconvene, within two-three weeks, to develop an appropriate IEP. Said CSE team is to consider all evaluations and also consider a deferral to CBST for placement/program and/or the School for and as a proposed placement. If necessary, the department is to provide the parent with an RSA so that she may acquire the necessary additional services noted above.
Dated: December 30, 2010
RALPH PENNINGTON, JR., ESQ.
Impartial Hearing Officer
RPJ:jj
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
1 Rating Scale, 2003, 4 pp.
2 Social History, 2003, 3 pp.
3 Psycho-Educational Evaluation, 1/12/2004 and 2/04/2004, 3 pp.
4 Psycho-Educational Evaluation, 1/12/2004 and 2/04/2004, 2 pp.
5 and Evaluation 2004, 4 pp.
6 Structured Classroom Observation Record, 004, 3 pp.
7 IEP, 2/25/2004, 13 pp.
8 IEP, 1/11/2005, 10 pp.
9 and Progress Report, 3/01/2005, 1 p.
10 IEP, 3/10/2005, 18 pp.
11 Interim Service Plan, 2005, 2 pp.
12 IEP, 3/17/2006, 14 pp.
13 IEP, 3/17/2006, 14 pp.
14 IEP, 3/17/2007, 15 pp.
15 IEP, 3/20/2008, 13 pp.
16 IEP, 11/13/2008, 13 pp.
17 Social History, 2009, 4 pp.
18 Parent's Letter to Department, Undated, 1 p.
19 Progress Report, 2009, 4 pp.
20 2009, 7 pp.
21 Psycho-Educational Evaluation, 9/25/2009, 17 pp.
22 IEP, 10/02/2009, 12 pp.
23 Evaluation Results 3/30/2010, 1 p.
24 Evaluation Summary 2010, 5 pp.
25 Evaluation Full Report 2010, 13 pp.
26 Progress Reports, 2010, 4 pp.
27 Report, 5/27/2010, 27 pp.
28 Neuropsychological Evaluation Report, 4/26/2010, 10 pp.
29 Results of , 08/18/2010, 1 p.
POST HEARING
30 IEP, 8/10/10, 14 pp.