New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 8, 2010

December 2, 2010

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 8, 2010

Student

Parents

District Representative — DOE

-, of (via telephone) — DOE

School (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 2, 2010

Student

Parents

DOE

Student

District Representative — DOE

On September 1, 2010, I was appointed the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(1), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act, regarding a dispute between the Parent of a ( ) year student attending public school and the New York City Department of Education (“DOE”) District concerning the student’s special education program. After having adjournments granted for cause or on consent, the impartial hearing was held on November 8, 2010 and December 2, 2010. A list of the witnesses appearing at the hearing and the documents taken into evidence is annexed hereto.

BACKGROUND

This case concerns the Parent’s allegation that the student was denied a “Free and Appropriate Public Education” (“FAPE”) for the 2008-09 and 2009-10 school years. (See Parent’s Due Process Complaint - “DPC”) The Parent seeks a - school recommendation with “ qualified ” for the student’s 2010-11 school year and an unspecified amount of at the to make up for the student’s “academic delays.” (Id.)

THE DOE’S CASE

The DOE did not serve and file an answer to the Parent’s DPC. Neither did the agency make an opening statement at the impartial hearing. (T-13) In its closing statement, the DOE stated that the student’s March 14, 2008 and June 23, 2010 Individualized Education Programs (“IEP”) consisted of full Committee on Special Education (“CSE”) reviews and superseded the student’s triennial reviews. (T-310) At both meetings, (“ ”) were created for the student. (Id.) The DOE put in many supports for the students including at- , additional in the classroom and assigned a certified education to work one-on-one with the student. (Id.) The student was placed in a classroom in a school with a “ ” ratio with a . (Id.) Despite all of this, there has been no overall sustained improvement in the student’s . (T-310-1) Accordingly, the DOE stands by its recommendation of a “ ” class in a education school for the student. (T311)

The DOE called (2) witnesses to testify on its behalf and submitted (6) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness is the student’s . (T-18) She stated that as per the student’s English Language Arts (“ELA”) assessment, the student barely demonstrates a partial understanding of the knowledge and skills that are expected at a grade level. (T-20) In math, the student scored in the “ ” level. (Id.) His independent reading is in the beginning of the grade expectations. (Id.) The student is able to attempt unknown words. (Id.) His comprehension demonstrates a partial understanding of what he reads. (T-21) The is year his grade levels, although he has made some progress. (Id.)

The witness stated that the student other who respond and then does not take for his . (Id.) The does not others . (T-21-2) In the he would too close to other . (T-22) The has other in the . (T-23) He was early in the school year because he another . (Id.) The student was and becoming at the beginning of the school year him to be from the . (Id.)

The witness was scheduled to receive at- last year, but his Parents refused. (T-24) A was initiated for the student in November. (Id.) An “ ” was assigned to the student’s classroom who was a education . (Id.) There were three adults with students in the class. (Id.) An “ ” is one who does not have a regular placement, but is assigned to the school. (T-25) All tolled, there were two certified education and a in the students class. (Id.) She, the school and the met with the student regularly. (T-26) Based on the , he may be allowed to be in the and to go to . (T-27) She does not believe the 12:1:1 program in the school addresses the student’s academic and needs because he requires . (Id.) She believes that a class and a school is the “ ” (“ ”) for the student at this time. (T-28)

On cross examination, the witness testified that the student’s attendance is fairly good. (T-29) As a grader, the student was very, very attached to his . (T-29-

30) He was not considered for a District program as a grader. (T-30) The student was permitted to use the as a grader, but was not permitted to participate in field trips. (Id.) Parents are allowed to go on field trips if they are volunteering to work with other classes. (T-31) Later, the witness conceded that the student was allowed to go on some field trips as a grade student. (Id.)

The witness stated that she was not a part of the student’s November, 2009 meeting. (T-32) A “ ” (“ ”) was conducted for the November, 2009 which was initiated in March. (Id.) She believes that District was first considered for the student in December. (T-33) For his last school year, the student’s “ charts” were collected. (T-34) There was a daily progress report that was sent to the Parent every day. (Id.) The school also consistently tried to call the Parent regarding the student’s . (T-35) In the student’s grade classroom there was a who is a certified education . (T-36)

The witness stated that the provided at- for the student. (T-37) It was suggested to the Parent that the school provide the at- , but the Parent declined for reasons unknown to her. (Id.) The Parent said that she was getting the student . (T-38) Eventually, the at- was provided to the student by the school based support team earlier in the year. (Id.) was on the student’s IEP at the time. (Id.)

The witness stated that - is not on the student’s IEP, but was recommended by the . (T-39) The Parent declined the services saying that the student was getting . (Id.) The Parent said that she heard the DOE pays for students to attend school and that is where she wants the student to go. (T-39-40) When the student’s was called to report his , the student would the if he answered it. (T-40) When the DOE called back, the about the student up the telephone. (Id.) Sometime between September and October of last year, the Parent said she was tried of the DOE calling her at work to talk about the student’s . (Id.)

The witness stated that the school provides weekly support to in their and student , throughout the course of the year. (T-43) Based on his , the student could not go to the because they did not have enough there to maintain a for all of the students. (T-44) It was “easier” for the student not to be there. (Id.)

On re-direct testimony, the witness stated that most of the conversations involving the student occurred between the school-based support and the school . (T-45) On recross examination, the witness testified that the student was completely from participating in field trips as a grader because he had into several . (T-47-8) In October on a he had a and also in November. (T-48) The student also on the , presentations, his , a child’s lunch, tried to the off a , and classmates and would not listen to direction. (Id.) After the student was from , his did not improve. (T-49) The student received a for the last (10) days of school for a twice. (Id.) The witness stated that the student was not making progress under his . (T-50)

The DOE’s second and final witness was doing at- with the student since March of 2010. (T-54 & 57) She got to know the student in the fall of 2009. (T-

56) She observed the student and started to put together his . (Id.) She believes the school started to develop a in November or December of 2009. (T-57) An was conducted before the was created. (Id.) The student’s was not consistent via any pattern. (T-59) They provided the student with support by placing him in a class with a total of ( ) , ( ) , had someone work one-on-one with the student and gave him at- . (Id.)

The witness stated that she was present at the student’s June 23, 2010 IEP meeting. (T-60) The student’s classification was changed to “ .” (Id.) He was also diagnosed with “ ” and wanted to initiate but the Parent objected. (Id.) They then gave the student “school-based support team ” and recommended a District placement. (Id.) The student’s was actually implemented in March. (T-61) In April, they met with the Parent and her and “tweaked” the . (T-62) The Parent felt that the student was becoming too dependent on people to get his work done and wanted him to be more independent. (T-63) A was put in place on April 29, 2010. (T-64) The first focused on his or , and his , on the , and . (Id.)

The witness stated that the student would have two or three good days and then really days. (T-65) The student made some progress, but when they tried to make him independent his . (Id.) She believes a District placement is appropriate for the student because the school doesn’t have the to meet his needs at this point. (T66-7) The Parent told her that the District offer was to far away. (T-67) The June 23rd meeting was the only had for the student to her recollection. (T-68)

On cross examination, the witness testified that she has been a school with the DOE for (18) years. (T-70) In the fall of 2009, the student’s really . (T-71) An was started in November for the . (Id.) The school asked her to conduct an observation of the student. (T-72) Data on the student’s was collected once they decided to do the . (T-74) Her role in the was to do observations and try to find out the antecedents of the . (T-75) The became effective in March. (T-76) There were no specific for the student’s . (Id.) The student is attention-seeking, and likes to instigate with other people. (Id.)

The witness stated that she began at- for the student in March of 2010 and is still providing that service. (T-77) They wanted the student to be more independent but he did not want to have more independence. (T-78) From March 10th to April 29, 2010, the student improved under the first in that he was no longer on the and having . (T-81) The student’s in the classroom had also decreased. (Id.) However, the student did not those improved to the whole school. (T-81-2) It was more just in the classroom. (T-82) The effort to make the student more independent began after the April meeting. (Id.)

The witness stated that the school has a “positive ” and a point system in the class that was in place prior to the . (T-83) The student made progress under the because he had someone sitting with him at all times and he liked that. (T-83) They worked on the student’s independence from April until the end of the school year. (T-85) At the IEP meeting on June 23rd they reviewed the student’s and . (T-85-6) The student did not like for them to talk to his . (T-87) The student’s had a very good relationship with him and was involved and attended the parent meetings. (Id.) The student was not expected to achieve his three goals in six weeks, although they did expect to see some progress. (T-89) The assigned to the student was involved in the student’s to become independent. (T-90)

The witness stated that the student is recommended to have a . (T-91) However, the would be more for the student’s than the . (Id.) The March 14th meeting was a CSE review meeting. (T-95) This is when the student was changed from “ ” to a “ ” setting. (T-96) Her sessions with the student succeeded “day by day.” (T-98) is an essential service to the student’s progress. (T-99)

The witness stated that the the student’s most . (T-101) Prior to the , there were times the student’s rose to a level. (T-101-2) One time, while in the library, the student got into an “ ” with another student. (T-102) Another time he got with a and went into a . (Id.) When it comes to with his , the student can be very . (T-103)

On re-direct examination, the witness stated that the began in November, but the was not implemented until March. (T-105) The student’s previous classification was “ impaired.” (T-110) On re-cross examination, the witness stated that the student’s may have because the was no longer with him. (T-111) A chart was used to motivate the student to progress and was sent to his Parents on a daily basis. (T-111-2) The student was seen by her on a weekly basis. (T-113)

THE PARENT’S CASE

The Parent argues that the student is attending a school in the grade and was recommended for a District program on June 23, 2010. (T-13) He is classified as “ .” (Id.) It is doubtful that the student’s was preceded by a (“ ”). (Id.) Records demonstrate that the student’s is manageable. (Id.) Nevertheless, he was not permitted to attend lunch or school field trips. (T-13-4) Without reviewing or amending the student’s , he was recommended to a District program. (T-14) The student should have had a for the 2008-09 and 2009-10 school years. (Id.) The Parent further argues that the student should be placed in a “ ” or a school. (T-15)

The Parent called (4) witnesses to testify on her behalf and submitted (19) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness stated that the student “…attends from ,a school for which I’m a in.” (T-129) She has worked at since it opened two years ago. (T-132) She has worked for the DOE for (4) years. (T-132-3) She has attended two training sessions provided by the DOE. (T-133) She has conducted (4) . (T-134)

The witness stated that she worked with the student last year. (Id.) There is a committee at the school that reviews students and can recommend before an is prepared. (T-135) If the does not work, then an would be conducted. (Id.) The process can also be initiated by the school-based committee, the regular school and/or the Parent. (T-136) The can be gathered within a (30) day period. (T-136) The student’s initial date was delayed because there was a request for “mediation” and due to the DOE’s representative in this case schedule. (T-138)

The witness stated that the DOE does not need the Parent’s consent to initiate the itself. (T-139) The Parent can say that they do not want a . (Id.) It’s her understanding that the school and Parent agreed that a was necessary at meetings that took place in October and November. (T-140-1) She was not a part of that discussion initially. (T-141)

The witness stated that the team consisted of the , the student’s , his Parent, the DOE Representative and the Parent’s . (T-

142) There was another who is a that worked with the student as a grade . (Id.) The reason for the student’s poor is his and attention seeking. (T-145) Sometimes the student was responding to other students, other times there was no antecedent . (Id.)

The witness stated that the student used to work with his almost exclusively. (T-230) The student did make significant improvement in his goal to stop after lunch. (T-231) The first phase of his started on March 11th and ran until March 29th. (Id.) There was data collected in a six week period. (T232 & P-Q) There were charts used in the classroom. (T-233 & P-O) Certain were targeted because they interfered a lot with the student getting his work done or interfered with the class process. (T-236) In selecting the targeted , the “team” was trying to address the student’s that really created a lot of havoc for the student. (T-237-8) Other that the Parent was aware of were not included in the plan, like the student’s taking other students and . (T-239)

The witness acknowledged that in the “second phase” of the plan, the student’s responsibility to keep his own charts was not successful. (T-241) As soon as the student’s was no longer with him, he just said “no.” (Id.) In May they realized that the student was just not going to do the second phase of the . (T-243) However, by mid-June the student was still being asked to complete the charts. (T-244) The student was making some progress under the first phase of the with his . (T-245)

The witness stated that she does not know how the student was because she was not him. (T-247) She did see the student on a weekly basis in the classroom. (T-247-8) Sometimes the student could be re-directed, and other times not. (T-248) The student was receiving “at- ” through the school-based support team. (T-249) In the CSE review, the would be provided by a related service provider. (Id.) The student’s charts were going with him to the Parent. (T-251) His after April 29th. (Id.) The student’s was . (T-252) The CSE review was conducted because the student needed additional services that had been discussed with the Parent. (T-253) The Parent had requested to add services. (Id.) The student is receiving this year. (T-255) They were going to give the six months to work, but reviewed it after three months. (T-257)

On cross examination, the witness testified that the should be completed within (30) days. (Id.) That is not a legal time frame. (Id.) She first spoke to the Parent about completing the Parent’s part of the on February 8th. (T-259) On re-direct testimony, the witness stated the student’s rise to the level of warranting a District program. (T-263) She has seen different District classes. (Id.) There was no re-cross examination of the witness. (T-264)

The Parent’s second witness is his special education . (T-146) This is her first full year of teaching. (T-150) She teaches the “ “ grade class. (Id.) There are ( ) students in the class with her and a . (Id.) The students range from having “ ”, “ ”, “ and ” and some students have . (T-

151) She has received some training from the school in . (Id.) However, is not used in the classroom. (T-152) They use individual plans and “ .” (Id.)

The witness stated that she is familiar with the student’s individualized

. (T-153) At this point, the student’s progress is fairly limited. (Id.) The student wants extreme one-on-one help with most assignments, is and has .

(Id.) The student also has with giving people their . (T-154) The student is from the next trip. (Id.) The student’s “ ” are to work independently in the classroom, not engage in and to the space of other . (T-

154-5) She tries to give the student all of his assignments and with explanation, cues him into using the charts and give him the personal attention he needs to get started. (T-

155) She gives the student a lot of time limits and constantly re-directs him. (Id.) The methods she uses are research based. (T-157)

The witness stated that she has worked in a lot of that use “ ” . (Id.) She uses strategies, reads case studies that have worked and tries to use them with the student. (Id.) Although the student’s IEP does not show that he has , she knows that he demonstrates . (T-158) The student is only responsible for bring his charts to and from school every day. (Id.)

The witness stated that the student is not frequently . (T-160) His current goals on his are appropriate. (Id.) She has met with the school and/or on a regular basis to discuss the student’s . (T-161) Formally, they have met once. (Id.) She created the charts. (T-162) She also received charts from the school-based support team but they were unsuccessful. (Id.)

The witness stated that she did not believe they filed any occurrence reports this year in the daily system, but she does keep anecdotal notes on occurrences she feels would constitute a step before filing an occurrence report. (T-164) The student was not “keeping” his charts, his “in charge” was keeping them, so “it wasn’t working.” (Id.) It is functioning better with her keeping track of his charts. (T-165) The student needs to get his straight first before his academics. (T166)

The witness stated that “ ” is used for students with a variety of disabilities. (T-167) She would use it with students with and the student in this case. (T-167) The “anecdotal” notes are the “data” that she uses. (Id.) The student does not need a because that’s going to limit his ability to become independent and there is already a in the room. (Id.) There are only ( ) students in the class but they could have up to (12). (T-168) She believes the student might become more and angry at the fact that somebody’s there always telling him what to do. (Id.) The student did not get along well with his , who ended up doing all the work for him because the student would not do it. (T-169)

The witness stated that she met with the Parent for Parent/ Conference. (Id.) They talked about strategies to help the student stay more focused in class. (Id.) She knows that the Parent wants the student to be in a general education class with “ ”, or something like that. (T-171) The student cannot be in an “ ” because of his , his with other students and his (lack of) for and adults. (Id.) That is why she talked to the Parent about getting the student some outside , because these only started occurring last year. (Id.) The student is with a general population in lunch, field trips and recess. (T-172) However, he is not making any improvement and so he is not able to be in a general education class. (Id.) “Math lab” is with a general education and it is not working because it is not beneficial to the other students or to this student. (Id.)

The witness stated that she recommended outside so that the student could get more one-to-one assistance from somebody who is not biased because they don’t know the student or his school. (Id.) She has only known the student since September. (Id.) She knows from the Parent and the school that the student’s started in the grade. (T-173) The Parent does not allow the student to meet with the school , but does meet once a week with “Ms. .” (Id.) That is not nearly enough. (Id.) The student is grade level, so she does not know if constantly pulling him out for would help him. (T-174)

The witness stated that the student is using the cafeteria this year. (T-176) There are other staff members that she can get support from for the student’s instructional and . (T-177) She does not believe that she filled out any “occurrence reports.” (T-181) In October, the student was another student and she called the . (T181-2) The student was also from a school trip because he was by being too close and the , , not following instructions, students and on the . (T-

183) She does not believe the student ever had of or , but he does have with students. (Id.) She is not sure if the school environment is enough to meet the student’s needs. (T-184) Her classroom is a 12:1:1. (Id.) She does not believe the student’s current placement is appropriate. (Id.) The student needs an where the classroom environment allows the student to be on a basis so that he does not distract other students. (T-185)

On re-direct testimony, the witness stated that she has not seen the placement that the school recommended last year. (Id.) For the field trips there were ( ) and about ( ) students. (T-187) She did not discuss a more placement with the Parent. (T-188) Right now the student is not meeting his expectations. (Id.) This year the student has her and (5) “cluster .” (T-190) The student only leaves his class for gym. (T-191) The student has difficulty transitioning from reading to writing. (T-

193) When the student is upset or feels angry and cannot focus, he can move into their “peace place.” (Id.) They do “Simon Says”, stretch and put music on when transitioning between reading and writing to release energy. (T-194) The witness acknowledged that the student is being measured for his overall in the classroom. (T-196) There was no re-cross examination of the witness. (T-198)

The Parent’s third witness “looked” at the student’s . (T-199) She is a licensed “master .” (T-201) She is employed at in the & . (T-201) She provides individual and group and works with children that have diagnosis like and . (Id.) She also works in a School two days a week and leads a team of professionals. (T-202)

The witness stated that the core of an is the “ .” (T-203) Without a , the becomes very general. (T-204) People the are , have a lack of and limited . (T-204-5) She has (15) years of experience with ’s and ’s. (T-205) About two months after its implementation, the is refined. (T-206)

The witness stated that there are different levels of . (T-207) Commenting on the , the witness stated that the are somewhat general. (T-212) She would also want to know in what of the the student is . (Id.) She would want to know if the are occurring in structured or unstructured settings. (T-213) When strategies are very specific they become more attainable for the child. (Id.) Therefore, the smaller the goal, the sooner the child will feel more successful. (T-215) It’s when you are . (Id.)

The witness stated that seeking are for with . (T-

217) She does not think that it is realistic to ask a student to keep his chart. (T-219) Two months is a reasonable amount of time to review a . (T-220)

On cross examination, the witness testified that she last received training on and about (6) years ago. (T-221) However, she continues to meet with school , school and school to put together ’s. (T-221-2) She was not a part of the development of the student’s . (T-222) She has not discussed the student or his with any school personnel. (Id) academically, the student is not showing extreme academic delays. (T-223) What needs to be looked at is whether the child can benefit from an . (Id.) Although she does not know the student personally, by just looking at the that are targeted on his , she has the impression of students that she has worked with who are a part of District who do attend to more of a setting. (T-224) Based on his and looking at the anecdotals, the student does not impress her as someone that is a to . (T-224-5) The witness stated that it is not realistic for a child, even under the of an , to document their own progress for the day on their progress report. (T-228) There was no re-direct testimony taken from the witness. (Id.)

The Parent’s fourth and final witness is the student’s . (T-265) The student has been in a 12:1:1 since the grade. (Id.) Prior to the 12:1:1 he was in a “ ” class. (Id.) The student did not have a in the grade that she was aware of. (Id.) She received charts while the student was in the grade. (Id.) She does not recall an being done in the grade. (Id.) At the student’s annual review on March 14, 2008, he was not considered for a district program. (Id.)

The witness stated that she doesn’t know if the student had severe problems in the grade. (T-266) In September of 2009, began to complain to her about the student’s . (Id.) The complaints continued throughout the entire year, about three times per week and with meetings possibly every other week. (Id.) The last meeting was held on October 19th where she was asked to talk to the student and given a very general list of hospitals and services. (T-268) She was told the school could not offer any services because they were not listed on his IEP. (Id.) In November, the student had a “ ” and they started taking him to . (T-269)

The witness stated that in the student’s classroom everyone is “ the .” (T-270) The student has been in this situation for two years already. (Id.) An was not discussed with her between the months of September through November. (T-271) In November she found out about the “ .” (T-271-2) She visited the district around November. (T-272) She was told that the student could not be transferred. (Id.) The DOE also refused to do a triennial review. (Id.) The student was due a triennial review that coming March. (T-273) She also requested evaluations from the school. (Id.) She was told that an evaluation of the student was not due until March. (T-274) She found a private therapist for the student. (Id.) That was not involved in the student’s . (T-275)

The witness stated that over she was told that the school was not the place for the student. (Id.) The school does not know anything about an . (T-277) She just wanted to do an IEP, but the Parent requested an . (T-278 & P-B) It was her idea to have “mediation” and discuss the and . (T-279) If she honestly felt the student belonged in District she would place the student there. (Id.)

The witness stated that she did not want the school doing the student’s . (T-280) She does not recall signing any papers consenting to the IEP. (T-281) The student was permitted to go on two school trips last year. (Id.) Then the student was from field trips. (T-282) At the end of October, he was no longer to use the . (T-

283) The witness stated that there was no way for the student to earn his way back to using the cafeteria and going on field trips, although she never discussed it with the school. (T-284)

The witness stated that the student has had a in his class for two years. (T-285) He had an opportunity to mix with - students at lunch and while on recess. (Id.) The student “ ” in the because he . (T-286) All of this started because the school perceived that she had at her when she called her and the student on her. (Id.) That happened at the end of September or the beginning of October. (Id.)

The witness acknowledged receiving charts regularly after the IEP was implemented. (T-287-8) The DOE refused to give her work sheets or to do the charts. (T-288) In the grade the student used similar charts. (T289 & P-S) October, November and December she was meeting with the school . (T-290) The student was first assigned a on his IEP on June 23, 2010, because she is against it. (T-291) She believes the student’s helped the student because of the -on- attention. (T-292) However, she wants the student to be independent. (Id.) His role under the is to be a partner to the working with the student. (T-293) She reviews the student’s charts. (Id.) The student receives an allowance and is allowed to go outside and play by himself when his is good. (Id.)

The witness stated that she has not received any other calls from the DOE except for complaints about the student’s . (T-294) The student is diagnosed with that comes with a . (T-295) The DOE has not done its part to determine whether the student has a . (Id.) The student’s appears to be very much in of her classroom. (T-295-6) Last year, the student’s had a couple of “ ” (T-296)

The witness stated that she would prefer to see the student in a “ ” class. (T-297) The school is a “ .” (Id.) The student needs a special education or some one who works with special education children to show them different techniques so they can work through the student’s . (Id.)

On cross examination, the witness testified that she does not believe “ ” is good and that she made it very clear she did not want the student to go to a 12:1:1. (T-

299) At the time of the student’s March 14, 2008 IEP he was having . (Id.) A was not created at that time. (T-300) In March, it was not a surprise to her that the student’s was a concern to the school. (T-301) She did get the student services outside of school. (Id.) Around September/October, she stopped getting the student outside . (T-302)

On re-direct testimony, the witness testified that the student does not see a private . (T-303) The DOE never offered her a . (T-304) The was assigned to the entire class. (Id.) Socially, the and the student were having a great time. (T-305) However, the was not teaching the student to work independently. (Id.) There was no re-cross examination of the witness. (T-308)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Parent herein alleges that the student was denied a FAPE for the 2008-09 and 2009-10 school years. (DPC) The Parent seeks (1) a - school recommendation with “ qualified ” for the student’s 2010-11 school year, and (2), an unspecified amount of tutoring services at the to make up for the student’s “academic delays.” (Id.)

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination. The decision shall reference the hearing record to support the findings of fact." (See 8 NYCRR 200.5[j][5][v]).

As to the Parent’s second requested relief, the record is devoid of any evidence as to the student’s need for at the , and much less to the amount of said . Neither does the record include evidence of the services provided by the , or the appropriateness of those services for the student. In fact, the record does not even reference the . Accordingly, I must deny that portion of the Parent’s requested relief seeking an unspecified amount of services at the .

I turn now to the Parent’s first requested relief, a non-public school recommendation for the student with “ qualified ” for the student’s 201011 school year. State Review Office Decision No. 02-110 defines the standard of review to decide whether a case is “moot:”

“In general, a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome

(Murphy v. Hunt, 455 U.S. 478, 481 [1982]). In determining whether a controversy has become moot, the relevant inquiry is whether the facts alleged, under all the circumstances, show that there is a substantial controversy of sufficient immediacy and reality to warrant relief

(“Christopher P. v. Marcus, 915 F.2d 794, 802 [2d Cir. 1990]). The State Review Officer is not required to determine issues which are no longer in controversy or to make a determination which would have no actual effect on the parties (Application of a Child with a Disability, Appeal No. 97-17; Application of a Child with a Disability, Appeal No. 94-9). (emphasis added)

An exception to mootness exists for claims that are "capable of repetition, yet evading review" (Honig v. Doe, 484 U.S. 305, 318 [1988]).

The exception applies only in exceptional situations (City of Los Angeles

v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed (Knaust

v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]). Controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again

(Weinstein v. Bradford, 423 U.S. 147, 149 [1975]). To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Russman v. Bd. of Educ., 260 F.3d 114, 120 [2d Cir. 2001]). …

Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation of recurrence (Video Tutorial Services, Inc. v. MCI Telecommunications Corp., 79 F.3d 3, 6 [2d Cir. 1996]). (emphasis added)

The 2010-11 school year began in the first week of September, 2010. We are currently in March of 2011, with approximately (2 ½) months of school left. Practically speaking, “a substantial controversy of sufficient immediacy and reality to warrant relief” no longer exist in this case and the matter has been rendered “moot.”

Despite having found the matter “moot”, I render my opinion below as to the appropriateness of the DOE’s recommended student placement for the 2010-2011 school year.

The DOE bears the burden of demonstrating the appropriateness of the program recommended by its CSE. (See SRO No. 93-9, 92-7 & Matter of Handicapped Child, 22 Ed. Dept. Rep. 487). To meet its burden, the DOE must show that the recommended program is reasonably calculated to allow the student to receive educational benefit (Board of Educ. v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment (“LRE”) for the student. (See 34 CFR § 300.550 [b] and 8 NYCRR § 200.6 [a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals and short-term instructional objectives related to the child’s educational deficits and provides for the use of appropriate special education services to address the student’s special education needs. (See SRO No. 93-12 & 93-9)

The relevant IEP in this case was drafted on June 23, 2010. (D-1 & P-I) Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to:

(1) the parents or persons in parental relationship to the student; (2) one regular education of the student whenever the student is or may be participating in the regular education environment; (3) one special education of the student, or, if appropriate, one special education of the student; (4) a school ; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education / , or the school ; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education , the special education /provider, the school , the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.

The IEP indicates that the student’s , the school who also acted as the district representative, the school , the student’s special education , the school , the student’s ,a“ ” and the Parent’s , all attended the IEP meeting. (D-1 & P-I) Accordingly, I find that the CSE team was properly constituted under law.

The IEP references an outside evaluation of the student that was conducted in January, 2010. (D-1 @ “3-1”) The report found that the student’s ability to sustain concentration and attention were in the low average range. (Id.) It was noted that the student is easily . (Id.) The IEP also references a “series of screening” that confirmed that the student with selective attention and is easily . (Id.) The student had observations and a that were also referenced in the IEP. (D-1 @ “4-1”) The observations are dated October 15, 2009 (P-M), March 5, 2010 (P-N) and June 22, 2010. (P-R) Also submitted in to evidence was the student’s evaluation dated January 16, 2008. (P-E) The evaluation recommends that the student receive “individual ” and placement in a small classroom size of “ .” (P-E @ “7”) Also submitted into evidence is an “At- Update.” (P-J) Although undated, the update states that in May of 2010, the school received a “Child & Adolescent Health Examination Form” dated June 9, 2009. (Id.) The update notes that the student has been diagnosed with “ ” and recommends that be added to the student’s IEP as a mandated related service. (Id.)

The IEP recommends a class with a ; staffing ratio, in a school with related services and a . (D-1) The IEP states that the student difficulties require a structured setting. (D-1 @ “7”). The student is also to receive in a separate location, 2 x 30 x 1, a management , 5 x 100 x 1, in a separate location, 2 x 30 x 1 and and in a separate location, 2 x 30 x 3. (D-1 @ “9-1”) His accommodations include extended time, special location, questions read aloud and directions read and re-read aloud. (Id.)

The record is replete with references to the student’s negative . The student is said to provoke other children who respond and then the student does not take responsibility for his actions. (Id.) The student does not respect others boundaries. (T21-2) In the cafeteria he would too close to other . (T-22) The student has other students in the . (T-23) He was early in the school year because he another student. (Id.) The student was and becoming consistently at the beginning of the school year causing him to be from the . (Id.) He has gotten into several . (T-47-

8) The student also on the , presentations, his , a , tried to the off a , and and would to direction. (Id.) The student also received a for the last (10) days of school for a twice. (T-49) His “ update” notes that the student’s education reported that he has , is and and has . (P-J) The update notes that the student does not seem to be able to function independently without consent direct and that he has shown some improvement with one to one direct . (Id.)

The Parent opposition is largely based on opposing “one to one” for the student, arguing that he should be placed in a “ ” class instead. (T-15, 291 & 297) The Parent wants the student to be more independent, although she acknowledged that “one-on-one” helped the student. (T-292) The student’s at- also testified that the student made progress under his , because he had “someone sitting with him at all times and he liked that.” (T-83) The student’s education , testifying for the Parent on direct, stated that the student wants “extreme one-on-one” help with most assignments. (T-153) The student is said not to want more independence, despite the school’s desire that he be more independent. (T-78) Based, on the evaluations and testimony cited above, I find that the student does require one-on-one services. The student’s education testified that the student in not able to be in a general education class. (T-172) I agree. I find that a “ ” placement would be inappropriate under the circumstances, because the student requires a more setting.

The Parent also the student’s in this case, arguing that it is doubtful that it was preceded by an . (T-13) However, she later acknowledged that she found out about the in November. (T-271-2) This coincides with the testimony of the student’s . (T-24) The added that the was conducted in November of 2009 and the was initiated in March. (T-32) The revised is dated April 29, 2010. (D-3) I find that the Parent’s argument in this regard is without merit.

I further find that the DOE recommended a special class with a ; staffing ratio, in a school with related services and a , is reasonably calculated to allow the student to receive educational benefit in the (“ ”) for the student and that it accurately reflects the results of evaluations to identify the student’s needs and provides for the use of appropriate special education services to address the student’s special education needs. (Supra)

Now, therefore, it is hereby

ORDERED that for all of the reason stated above, the Parent’s request for relief in this case is DENIED. Dated: March 17, 2011

______________________________________

Impartial HearingOfficer

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 THE RECORD ON NOVEMBER 8, 2010

PARENT

A Impartial Hearing Complaint dated 4/30/10, 3 pages B Letter requesting dated 1/5/10, 1 page C Mediation request dated 2/8/10 1 page D Letter from - dated 3/17/10, 1 page E Evaluation dated 1/16/08 8 pages F IEP dated 3/14/08, 14 pages G IEP dated 3/19/09, 13 pages H IEP dated 3/17/10, 21 pages I IEP dated 6/23/10, 21 pages J At-Risk Update dated June 2010, 2 pages K Mediation agreement dated 3/10/10, 1 page L review dated 4/29/10, 1 page M Observation by dated 10/15/09, 1 pages N Observation by dated 3/5/10, 1 page O form and plan dated 3/10/10, 12 pages P Report by dated 3/10/10, 2 pages Q Notes by dated 2/6/10, 11 pages R Observation by dated 6/22/10, 5 pages

DEPARTMENT OF EDUCATION

1 IEP dated 6/23/10, 17 pages 2 Attendance sheet and review dated 4/29/10, 2 pages 3 dated 4/29/10, 13 pages 4 Literacy and Math Assessments dated 10/2/10, 1 page 5 Report for Student Undated, 2 pages 6 New York City General Inquiry Printout dated 10/13/10, 1 page

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 2, 2010

PARENT

S Student's Chart dated 10/4/10 - 10/8/10, 3 pages

DEPARTMENT OF EDUCATION

None