NY IHO #2011-ih-190: New York City...

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FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: November 3, 2010

December 1, 2010

December 22, 2010

February 9, 2011 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 3, 2010

Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 1, 2010

Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 22, 2010

Student

/Parent — Student

Student

DOE

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 9, 2010

Student

District Representative — DOE

INTRODUCTION

On November 3, 2010, December 1, 2010, December 22, 2010 and February 9, 2011, I conducted a hearing pursuant to the Individuals with Disability Education Act (IDEA) 20 U.S.C. § 1415 (f)(3) regarding a special education program with a student with a disability, New York City Impartial Hearing Case No. . The hearing was conducted at the impartial hearing office at the New York State Department of Education, located at 131 Livingston Street, Brooklyn, New York.

The Parent submitted a request for an impartial hearing, through their on September 7, 2010. At the hearing, the Department of Education, herein as referred to as “The Department” was represented by District Representative/Department Designees and the Parent was represented by counsel. A list of witnesses and documents received into evidence are attached to this decision.

The September 7, 2010 impartial hearing request maintained that the Department has engaged in an ongoing violation of the student’s educational rights which include but not limited to a denial of a Free and Appropriate Public Education (FAPE) which began on September 1, 2009 and continued to the date of said demand.

Parent’s counsel further maintained that despite a request for a reevaluation on March 17, 2010, the Department did not adhere to procedural timeliness for testing or hold a timely annual IEP review meeting and that once the meeting was held on June 23, 2010, the student continued to be denied accommodations which were mandated in her initial IEP. Further, since the issuance of the IEP, it is alleged that mandated services were not provided to the student during the 2009/2010 school year.

Parent’s counsel alleges that the failure of the Department to implement the mandated services for the student and or to monitor her progress in light of the accommodations as required by her initial IEP, resulted in the student losing educational benefit and deprived her of a FAPE. Counsel further maintained that the IEP team having made its determination on June 23, 2010 at the IEP meeting, failed to conduct the meeting in accordance with both state and federal mandates and the failures render its determinations and the IEP null and void.

Lastly, as per impartial hearing request, parent is seeking the following:

1. a deferment to the central base support team (CBST)

2. A P-1 letter for school placement at Departments’ expense

3. Tutoring at the Department’s expense

4. evaluation at the Department’s expense.

5. for .

6. fees

7. Expert witness fees

8. Tutoring for remediation

9. and for remediation

10. an .

BACKGROUND

The Parent’s counsel moved for default against the Department for its failure to answer the impartial hearing complaint and claimed that the Department has failed to hold a resolution meeting or provide notice to parent’s counsel that said resolution was being waived.

On September 7, 2010, an impartial hearing complaint was hand delivered to the impartial hearing office by counsel for the Parent. The Department acknowledged receipt of the complaint on the same date and is permitted ten (10) days with which to respond to the complaint. Counsel alleges that at no time after serving the complaint did the Department file a serve an answer to the complaint. Additionally, Parent’s counsel stated that the Department has not offered an explanation for its failure to answer the complaint and request that an order be issued granting summary judgment.

After hearing oral argument and considering the positions of the parties, I agreed with parent’s counsel that it is well settled that where a due complaint is filed, it is deemed sufficient unless the party receiving said complaint notifies the hearing officer and the complaining party in writing that the complaint is not sufficient. 34 C.F.R. § 300.508 (d)(1). Additionally, the Department’s response must include an explanation of why school officials proposed or refused to take action, raised in the complaint, a description of other options that the IEP team considered and the reason why they were rejected; a description of each evaluation procedure, assessment, record or report relied upon as the basis for the proposed or refused actions; and a description of the factors that were relevant to the proposed or refused actions. 34 C.F.R. § 300.508 (d)-(e).

I concur with Parent’s counsel that where a party fails to answer a complaint that said party may only be relieved of its default upon the showing of a reasonable excuse or delay in timely answering said complaint, coupled with a meritorious defense.

The State Review Office has adopted the above standards in refusing school boards to submit late answers after the ten day period within which to respond to administrative proceeding has elapsed absent of showing of a reasonable excuse for the delay in timely answering. In the Application of a Child with a Disability, Case No. 02-

006. See also Application of a Child with a Disability, Appeal No. 01-028 and Application of a Child with Disability Appeal No. 00-017.

Although the Department proffered the decision in the Application of a Child with a Disability Case No. 08-151, to support the proposition that a failure to timely and depose an answer should not be the basis to summary judgment, I find that in the instant case, the failure to answer the complaint was prejudicial and affected rights of the Parent in preparing to prosecute its case.

I denied Parent’s application for summary judgment and ordered that the Department be precluded from offering any evidence, that the Department failed to offer a FAPE and that the Parents be required to establish that they have selected an appropriate educational plan and or placement alternative.

THE PARENT’S POSITION

Parent maintains that the only issues in the case are whether or not the Parent was cooperative with the Department and that there are no equitable considerations that would bar a recovery. Further, that the relief sought for the child hereinafter referred to as is appropriate.

THE PARENT’S CASE

The first witness to testify was , who was the for . She was referred to Exhibit “N, the School’s IEP dated June 28, 2010 and acknowledged that same was dated more than sixty (60”) days from the Parent’s request for testing for her child. The witness further stated that to the best of her knowledge, if the Department is out of compliance, then the matter would be referred to the Integrated Service Center

(ISC) (Trans. 61). Ms. further stated that she referred the matter to the ISC so that would be able to receive tutoring “on the outside” and also to provide assistance in order to secure (trans. 62). She stated that the tutoring was never provided (trans. 63) and that in the 2009/2010 school year did not have a teacher on staff. She conceded that the tutoring that was mandated pursuant to the IEP should have been provided by a provider outside of school.

The witness further testified that she had conversations with concerning and that she went to the Department herself, to request an evaluation and also contacted ISC (trans. 65). It was her understanding that an should be requested subsequent to an Evaluation, if necessary and that the child did not receive same. She conceded however, that an was recommended on the first IEP and was to be implemented for the 2009/2010 school year. (trans. 65).

Additionally, she stated that if an had been provided, that training would need to be given to the teachers regarding its use and that she had no knowledge of training issues being addressed (trans. 66). She also agreed that despite the fact that the evaluation of was outdated, the school still agreed that she should receive the (trans. 67).

The witness was referred to Exhibit “C” which was the parent’s initial request for a evaluation and stated that the evaluation was not conducted (trans. 69). She conceded that an evaluation was done at the independently by the parent. She agreed that from the time the request was made for the testing and up to the date the IEP meeting in June 2009, there was no recommendation made for (trans. 69).

Ms. stated that the child from in June 2009 and that she was receiving and services during her last school year; it was her recollection that the child’s grades in English Arts were between and (trans. 77).

Upon further questioning, she stated that both the child’s and were cooperative in providing information requested by the Department (trans. 88).

Upon redirect examination, the witness was directed to Exhibit “U”, wherein it was noted that a “promotion in doubt letter” was issued advising the parents that the child might not be graduating in grade (trans. 89). She elaborated and stated this was because of deficiencies in English Arts. She identified Exhibit “V” as a letter to parents from the School indicating that the child was mandated to receive in , as she failed a regent’s examination in English (trans. 90). The witness testified that the “promotion and doubt letter” raised an issue that there was concern to increase the child’s achievement (trans. 91) and that based upon the documentation reviewed that the child still required additional help in school (trans. 92).

The next witness to testify was “ ”, the child’s , wherein she stated that she attended two IEP meetings at and that the first meeting was in June 2009 (trans. 105). She recalled that and and a education were recommended. The IEP team stated that they did not provide to students in the gifted program, however the team offered a be offered outside of school; however it was not done (trans. 105). As the child’s , she requested that a P1 letter be issued for tutoring and that both she and her made several calls to the school, leaving messages for Ms. who informed that she would inquire of the district to find out information concerning the delay (trans. 107).

The child’s testified that the services were never received and that she was trying to locate a provider that would come to the child’s home and that “it was very difficult”. She agreed that a P-1 was issued at or about the end of the first marking period, however as stated above, they were unable to locate a provider (trans. 108). She also stated that she informed Ms. that she was unable to find a provider and neither she nor anyone else at did anything to assist in locating provider (trans. 109). The witness also stated that she had gone to visit several schools to assist parents of children with (trans. 111). Upon further questioning of the witness, she stated that she was familiar with and observed the and schools and that each of them had extraordinary programs including speakers, and programs to help the children (trans. 120). She described several schools including the School in , and the School in and as schools that would be able to provide a meaningful education for students with (trans 112). She reiterated that her was never provided with an despite her writing a letter in March 2010. Additionally, despite having at least ten conversations with Ms. , her never did receive the . She identified Exhibit “C4” as a letter that was sent to , requesting the and that the letter was dated March 17, 2010 (trans. 114); she reiterated that the June 2009 IEP mandated the and retraining.

The witness was directed to Exhibit “H” and identified it as the IEP generated at the initial meeting and stated that there was a recommendation on the first page for (trans. 116). and was also recommended however, the witness stated that she and her needed to call, as was not initially receiving the services.

The witness testified that complained that she did not always hear or understand what was going on in the classroom (trans. 118) and that she observed changes in her from the time she completed classes at , wherein she became “somewhat withdrawn” and stated that “she can’t do the work” and that she “doesn’t like school” (trans. 122).

Lastly, the witness identified exhibit “C” and stated that it was the initial request for evaluations to be done by the district and for a evaluation which was not performed. She called the State Education Department and the evaluation was finally done in May or June. She also requested an evaluation and it was not performed. The witness also stated that the and services that were provided pursuant to the IEP of 2009 were “pull out” type services. The witness was directed to Exhibit “R” and identified it as the evaluation, wherein there were recommendations made that receive an .

Upon cross examination of the witness, she stated that she was present at the 2009 IEP meeting and that she was informed that there were no services offered at the school and that a P3 would be the only way to obtain the services and that to the best of her knowledge, it is incumbent upon the Department to provide a list to the Parent in order to attempt to locate a provide (trans. 139). She also stated that to the best of her knowledge, it is the Department’s responsibility to assist the parent in trying to obtain a service provider.

The next witness to testify was who after being duly sworn stated that she was an and employed by the and maintains a degree in Disorders and a Master of and . She evaluates , and and performs central testing, (trans. 151). She described the testing as a tool to evaluate how a child information that is listened to. The testing compromises the and by providing the child with situations. For example, listening to , to different things being said to the at the same time, listening to background , to part of a word in , the other part of the word in the other and seeing if the child is able to fuse the information (trans. 151).

performed two evaluations on the child the first being on September 10, 2008 wherein exhibited in listening to background , and also showed abnormality in to competing words.

The witness stated that if the child was in a , and had competing in her background, her and understanding of was going to be compromised. Additionally, in terms of tolerance fading memory, it is a short term where that if too many things are being said to her at once, and or if multi step tasks were directed to her, she would not consistently remember what is being said (trans. 158). Accordingly, exhibited the characteristics of a central , and that accommodations would absolutely be recommended. More particualry, one of the recommendations would be preferential seating in the classroom and consideration of the use of a frequency which would be something to to assist her to hear the teacher without the of background s (trans. 160). The witness also stated that the child would not necessarily have to be in a smaller classroom, however would be able to work with an to cut background , which would be as if she was sitting in a small class setting (trans. 161).

The witness stated that after the first evaluation, she recommended the use of special intervention software such as “ and or Fast Forward”, which would assist the child. (trans. 163).

stated that the recommendation for compensatory training would help the child. She was next directed to the second evaluation dated August 31, 2010 and the results established that the child exhibited decoding and tolerance fading memory issues (trans. 165); she made the same recommendations regarding the use of the , , emphasizing , seating and compensatory training (trans. 165). The witness stated that as had not received the , it would cause difficulty in listening with background (trans. 166). She reiterated that if there was no , it would be beneficial for the child to be in a small classroom setting, where there are minimal and less . Additionally, preferential seating away from a radiator or window would also be required (trans. 167). She testified that with a degree of certainty that if a classroom was that a child with a impairment would have in listening to what is being said (trans. 168). She described four types of s and or devises, as well as various classroom acoustics, such as carpeting, window coverings which would dampen the coming in from the to provide diminished levels.

stated that if the child had an , additional classroom would not be necessary (trans. 172). She described compensatory training teaching strategies, such as making sure that when somebody is speaking to the child they have with her, when asking her a question, her , before the question begins and utilizing common strategies. (trans. 173).

stated that the child should receive , which is a special type of , performed by a therapist with knowledge of children with and that it should be administered at least three times a week for thirty minutes (trans. 175).

The child’s testified and stated that her presently attends the School and is in grade. Prior to that, she attended the School for grades - . There was an IEP in place for her in June 2009 (trans. 191). Ms. was directed to Exhibit “C” and identified it as a request for to be tested; the request was made on April 4, 2008, however, the school did not acknowledge the request until January 2009 and that the testing was not administered until March of 2009 (trans. 193). She stated that central testing ( was performed at the independently by who confirmed that her child did have a (trans 194).

The initial IEP was completed in June 2009 at the end of grade, wherein recommendations were made for , and and an . The Parent stated that her only received and services and that no and or were provided (trans. 195). She testified that the school did not even provide and therapy at the beginning of the school year, and that the services were not implemented until October 2009. (trans. 196). She was also informed that the school did not have a and that she was given a list of to contact regarding services to be implemented outside of school. She was unable to locate any providers due to time (trans. 198), informed the school of the in locating a and the school did not offer any additional suggestions (trans. 199).

The Parent stated that in grade, her child’s grades began to drop and that prior to that she was an honor student (trans. 199). She reiterated that did not receive an which was mandated by her 2009 IEP. She identified a letter dated March 17, 2010 wherein she requested and stated that both she and her communicated with the school on several occasions regarding the and were unsuccessful (trans. 202). She also stated that her child’s academic performance changed from to grade, and that several of her were unaware that she even had an IEP.

further stated that after she informed the teachers at a parent/teacher conference in November 2009 that had an IEP and that she still did not receive preferential seating in all of her classes. (trans. 205). She stated that she received a “promotion and doubt letter” in grade which was identified as Exhibit “U”. (trans. 206).

The Parent testified that her wanted to take an entrance examination for specialized schools, such and was unable to do so as she did not receive services including and an (trans. 207).

The Parent stated that at the June 2010 IEP meeting, services were terminated and that no one was present at the IEP meeting that discussed (trans. 208). The witness identified Exhibit “P” as a New York City Department of Education, IEP dated July 23, 2010 and noted that in the upper right hand portion of the report it stated “conference information” and it was her understanding that the initial IEP meeting was held in June 2010.

With reference to Exhibit “P”, the Parent stated that under academic management needs, recommendations were made for verbal prompts such as repetition and or rephrasing, preferential seatment, use of multisensory stimulation in class, intermittent redirection to sustained attention and to reestablish (trans. 211). Recommendations were made for general education and at the present time, her child does not have an IEP (trans. 212). It was also her understanding that her child is not eligible for any kind of accommodations (trans. 212).

The witness identified Exhibit “S” and stated that it was a and report that was mailed to her home at or about July 2010 and identified Exhibit “L” as an addendum to the report which stated that she was requested to return for a second IEP meeting (trans. 215). Specifically, Page L-4 stated that “no is considered to be needed at this time”. (trans. 215). The witness also stated that her ’s CSE case was closed at the time the services were not recommended in June 2010 (trans. 216).

Upon receipt of a notice for a second IEP in the summer 2010, the witness stated that she contacted her legal counsel (trans. 217).

The witness stated that her child is presently not in her current school and is uncomfortable with the environment and that she is with her school work (trans. 218). Accordingly she requested another evaluation which was done at The with . The Parent stated that she exchanged the report with her current school, and that nothing has been done (trans. 218).

visited her child’s school on December 15, 2010 and went to speak to the school to discuss her child’s being with her learning experience. She observed that the school was extremely with children throughout the hallways and stairs (trans. 220). Additionally, both she and her child told the and of her . (trans. 222). It was the parent’s impression that her is having with comprehension, due to the fact that she does not have an and the interferes with her comprehension (trans. 222).

The Parent visited the School and the School, which are both non public schools that provide service for children with central (trans 223) and that they would be an appropriate placement. was her opinion that the present school has still not provided services, conducted meetings or implemented an appropriate IEP to provide her child the appropriate education.

Upon cross examination, the Parent conceded that her child’s present school did offer Thursday afternoon science tutoring (trans. 231).

THE DEPARTMENT’S POSITION

The Department maintained that the child was appropriately classified and placed and provided a FAPE.

THE DEPARTMENT’S CASE

Not applicable as the Department was precluded.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A central purpose of the IDEA is to ensure that students with disabilities have available to them a FAPE (20 US;C. 1400 [d) [1] fA]; Ed. of Educ. v. Rowley. 458 U.S. 176, 179-181, 200-01. FAPE includes special education and related services designed to meet the student's, unique, needs, provided in conformity with a comprehensive written IEP (20 U.S.C.1401 [9] [D]; 34, RCNY 300.17. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent; if the services by the parent were appropriate and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep 't of Education, 471 U.S. 359 [1985]; Florence County Sch. District Four v, Carter, 510 D'S. 7 [1985]). The first step is to determine whether the district offered to provide a FAPE to the student. FAPE is offered to a student when (a) the board of education complies with the procedural requirements in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley at 206-07). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to FAPE, (b) significantly impede the parents opportunity to participate in the decision making regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C 1415 [f] [3] [E] [iij].

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's. needs establishes .annual goals related .to those needs. (Application of a Child with a Disability, Appeal No. 07-008, Application of the Ed. of Educ., Appeal No. 06-076). The IDEA. "expresses a strong preference for children with disabilities to be educated to the maximum extent, appropriate with their non disabled peers" See Walczak v.j7a. UnionFreeSch. Dist.; 142F.3d 119, 122 (2ndCir. 1998).A FAPE must be provided to a child with disabilities in the "least restrictive setting consistent with the child's needs (see Perricelli v. Carmel Cent Sch. Dist., 2007 WL 465211, at 10* [S;D.N.Y. Feb. 9,2007], citing Walczak. 2 F.3d at 122).

In determining an appropriate placement in the LRE; the IDEA requires that .children with disabilities be educated to the maximum extent appropriate with children who are disabled and ·that special classes, separate schooling or other removal of children" with. disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C.1412 [a][5][5J [AJ; 8 NYCRR 200.6 [a] [1];see also Bay Shore Union Free Sch. Dist. T. 40SF.Supp. 2d 230,239-40 (E.D.N.Y. 2005.) In determining whether a student can be educated in regular classes, it is not necessary to establish that the student will learn at the same rate, or master as much of the regular education curriculum as his or her disabled peers (Daniel R.R. v. State Bd. of Educ .. 874 F.2d 1036. 1044 [5th Cir, I]. The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v .Bd of Educ» 995 F. 1204, J213 [3rd Cir. 1993]).

The Daniel R.R..Oberti test for determining whether a school district has complied with the LRE requirement consists of two prongs: 1) whether the student can be educated in a general education class with the aid of supplemental aids and services; and

2) whether the school district has mainstreamed the student to the maximum extent appropriate (Daniel R.R. at 1048). In determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, several factors should be considered including: 1) whether the school district has been reasonable in trying to accommodate the child in a regular classroom; 2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class and 3) the possible negative effects of the inclusion of the child on the education of the other students in the class (Oberti, at 121-128).

The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes, e.g. and role modeling with no disabled peers (Geer v. Rome City School Dist., 950 F.2d 688 [11th Cir, 1991]). In order for this hearing officer to determine whether the District provided a FAPE, it is necessary to review the composition of the IEP Committee. An IEP prepared by an invalidly composed CSE is a nullity, and the school district cannot meet its burden of that its recommended program was Application. of a Child with a Disability. Appeal No. 01'096).

A determination must be made as to whether the Parent was cooperative with the Department as it relates to the requests for evaluations and placement of and if there are any equitable considerations that would bar to an award supporting the Parent’s requests, subject to the Parent establishing that the relief being sought is appropriate.

If the Department determines that no additional data is required to determine whether the child continues to be a child with a disability, the Department shall notify the child's parents of that determination and the reasons for such determination. In the instant case, a determination has already been made that the Department has been precluded from establishing that it has provided a FAPE to the student given its failure to answer the due complaint in a timely manner. As such, the assertions of the Department to the effect that the student has been provided with a FAPE are inconsistent with the aforementioned evidence and case law.

In the instant case, a written request for an initial evaluation of was made on April 4, 2008. Moreover, the Parent made additional requests for an and evaluations orally in November 2009, and in writing in March 2010. (See testimony of A. at pages 112-114 and 124. Also see Parent Exhibit e.)

It is important to note that although was mandated to receive special services which included an , none was ever provided to her for use in school as mandated by her IEP dated June 11, 2009 . As the IEP meeting was held shortly before the 2008-2009 school year ended, the mandated , and services were to be provided for the 2009-2010 school year and all of the services were not provided consistent with IEP mandates. (See testimony at pages 62-67.) Parental requests for evaluations for and were made in 2008 and 2009 and were not timely performed despite many requests the part of the parent and of the student. (See testimony at pages 64-66.) Once the testing was implemented by the Department in 2010 more than two years after the parent's initial request and well beyond the sixty school day required timeline, the report provided to by the Department failed to indicate what tests were done, how they were determined the conclusions , what the scores of the tests were to support a determination that no services were needed and what specific records were reviewed in connection with the testing (See report of Department’s examiner, Exhibit K.) Prior to the Department’s

"testing, it was agreed at the IEP meeting as stated above to provide an for which she never received. (See testimony at pages 65-69.1 had two independent evaluations, one in 2008 and one in 2010, which confirmed abnormal results consistent with Both of these examinations clearly articulate the types of testing done, what the tests are designed to illustrate, how fared on the test and the recommendations to address areas of concern. Moreover, , a-licensed

, testified that testing yielded abnormal results for which the accommodation of the would help her to sounds in class. Other accommodations were also recommended which include compensatory services for remediation and a smaller class size. (Testimony of at pages 173-175.) The accommodations recommended by were based upon abnormalities arising from (Testimony of at page 182.)

In the matter before me, the Department conducted an improper IEP meeting wherein was “declassified” without special education teacher in attendance, only one progress report dated two months prior to the June 28, 2010 IEP meeting was provided to the student's parent at the meeting. (See Exhibit J and testimony of at pages 12'2-123.) The foregoing is the reason why the Department sought to-reconvene on two separate occasions under the pretext of exchanging an addendum to its evaluation which also-recommended no accommodations be provided.

Once again, it is important to note that although was mandated to receive special services which included an , none was ever provided to her for use in school consistent with the initial lEP held in June 2009. Since the IEP meeting was held shortly before the 2008-2009 school year ended, the mandated , and services were to be provided in the 2009-2010 academic year and all such services were not provided consistent with IEP mandates. (See testimony at pages 62-67.)

Without all of the foregoing pertinent information, the Department's agent administering the 2010 test determined that the results were normal and did not identify the types of tests done and how they impacted her findings. The child has had two independent evaluations, one in 2008 and one in 2010, which reflect abnormal results consistent with Both of these examinations clearly articulate the types of testing done, what the tests are designed to illustrate, how fared on such test and the recommendations to address areas of concern. Moreover, , a-licensed

I agree with Parent’s counsel, that the Department sought to-reconvene on two separate occasions under the pretense of exchanging an addendum to its evaluation which-recommended that no accommodations be provided.

At the June 28, 2010 IEP meeting, there were no progress reports or recommendations made for remediation and only offered tutoring after school for by issuing a voucher for an outside vendor to provide services. When family was unable to find a provider for , the Department was notified and did nothing to assist. I n defense of its failure to provide the to , Special Education and testified that she was informed

"by persons outside of her school" that the evaluation was outdated and could not be relied upon even though less than a year passed from the date of the evaluation to the holding of the IEP meeting. ( testimony at pages 88-67; 93-94.)

The testimony of Mrs. was that the report of could not be used in order to provide the which was mandated in the student's IEP. ( testimony at page 67.) Mrs. testimony regarding the Department’s failure to provide a was not credible to explain the Department’s noncompliance with the initial lEP mandate. More importantly, Ms. confirmed that the was never provided to and that training for the student and teacher would be required ( testimony at page 66.) The initial lEP which is part of the record contained goals specifically addressing her and expressive challenges. The

Department’s position that was no longer in need of to provide assistance for her is not credible. Moreover as suggested by Ms. , there no baseline from which to measure progress and or the attainment of goals in her IEP as the was not provided. Turning now to the attainment of goals for and , the sole progress report which is part of the record and recommended decertification despite the and evaluations lighting significant deficiencies in expressive and pragmatic skills serve to confirm the denial of a FAPE to , and justifies the issuance of a P-1 letter for a non public school. (See Parent Exhibits F &G.)

During the 2009-2010 school year, failed classes and received a promotion in doubt letter from the where the mandated services were to be provided in accordance with the IEP. (See Parent Exhibit U. Also see testimony of at page 88-89.) performance in school has not been satisfactory in that she failed a regent’s exam and has been mandated to attend tutoring in (See Parent Exhibit V and testimony at pages 89-90.) Due to the child’s ongoing problems and struggles in the classroom the Parent provided a copy of the August 31, 2010 report to school. While the school acknowledged receipt of the report in October 2010, it has not reopened her CSE case and apparently continues to struggle in a school environment. testified that the has not resolved and recommended the same accommodations that were contained in the initial report of September 2008. (See Parent Exhibits Q and R. Also see testimony of at pages 166-173.)

The Department and family were not in agreement with the decision to terminate special education services at the June 28, 2010 IEP meeting. Additionally, once the Department determined that no longer needed special education services and could be in a regular education program without supportive services, it should have considered whether the child required any declassification support services.

At no time was the Parent uncooperative with the Department. Mrs. , the and Special Education of confirmed same. ( testimony at pages

87-88.) family has continued to try to work collaboratively with the Department to provide services for with minimal results. After exchanging the report with current school, the CSE case still has not reopened the case.

Additionally, a letter was forwarded to the school seeking at as has had significant issues coping in the school setting without accommodations for her which impacted her performance. The Parent requested at risk counseling and the program as is presently in place for , however at this late date it does not comply with the procedural mandates of the IDEA and has and it is speculative at best if it will be enough to establish the desired results.

The current educational environment is not appropriate for . She is not doing well and is uncomfortable in her current school, her performance has declined and she knows that there is something wrong. ( testimony at page 122.) Consequently, was requested for in school. ( testimony at page 122.) The absence of the in class makes it for to what was being said in class and she has suffered failing grades ( testimony at (Page 118.)

The parent is entitled to receive a P-1 or Nickerson letter for the placement of her in a nonpublic school setting as the Department was required to complete the entire within 60 school days of parental consent and failed to do so.20 U.S.C.

1414(a)(1)(C)(i)(IL 20 U.S.C. 1414(a)(1)(D)(i)(I); 34 E.F.R. 300.301(C)(1).

In the Matter of Jose P v. Ambach, 553 IDELR 298, 553 LRP 7461 (E.D.N.Y.-

1/5/82), Judge Nickerson reiterated parental notification procedures in an Order filed on July 8, 1982. Pursuant to this case, and section VII of the 1988 Stipulation (pp27-36)

concerned the “Placement ”; these provisions reiterated, clarified or increased the responsibilities of the Board to make the Nickerson letter timely and effective.

When deficiencies were identified, the Board was required to start notifying the Parents of their non public school placement rights. The NYC Department of Education utilizes a

PR-1 for non public school placement if it is determined that a child has been denied a FAPE. It is my determination that the Department issue a P-1 as I find that as the CSE improperly terminated special education services at the June 28, 2010 CSE meeting.

had been classified as “ or impaired” at a “EPC” meeting on June 11, 2009 and clearly was still in need of services including / , / , a small class setting, and at the June 28, 2010 and July 28, 2010 CSE meetings.

The testimony of was compelling to establish the child’s needs and the Department’s own witnesses conceded that the child did not receive the and and was forced to struggle and was noticed with a “promotion in doubt” letter”.

It is my determination that the termination of special education services severely affected the child’s ability to obtain a meaningful education. The child is experiencing great difficulty in functioning at her current placement and has had to engage in her school work without the proper supports and has been denied a FAPE for the reasons as stated above.

Additionally, the courts have concluded that compensatory education i.e., special education services to a child may be awarded when a child has been denied a FAPE which he or she is entitled to receive. The term FAPE has been defined as special education and related services which are provided without charge to the Parents, and meet with standards of the state educational agency, and which are provided in conformity with the child’s IEP (20 USC 1401[a][18]).

Considering the above, both law and equity mandate that due complaint be granted, in all material respects as follows:

1. The Department issue a P-1 letter

2. The Department shall provide and pay for an with training for the student and and for an evaluation.

3. The Department shall provide and pay for remedial services by a for thirty (30) hours.

4. The Department shall provide and pay for “additional” / services to be provided individually for 30 minutes one time per week for thirty (30) weeks.

5. The Department shall provide and pay for Education Services to be provided individually for 30 minutes one time per week for thirty weeks.

6. The IEP team shall reconvene to change the child’s classification to / impaired. Dated: April 22, 2011

_____________________

Impartial Hearing Officer

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

PARENT

A IHO complaint, 9/7/10, 2 pp. B Impartial Hearing Receipt, 9/7/10, 2 pp. C Request for Testing, 4/9/08, 5 pp. D Letters to Department of Education, Various, 5 pp. E Social History, 1/8/09, 4 pp. F Evaluation, 3/7/09, 3 pp. G Evaluation, 5/28/09, 5 pp. H IEP, 6/11/09, 12 pp. I Updated Social History, 6/28/10, 3 pp. J Report, 5/18/10, 3 pp. K Evaluation, 6/16/10, 2 pp. L Evaluation and Addendum, 6/21/10, 7 pp. M Notice IEP Meeting, 6/22/10, 1 p. N IEP Document and Recommendations, 6/28/10, 7 pp. O Final Notice of Recommendations, 7/13/10, 1 p. P IEP Document with Recommendations, 7/23/10, 7 pp. Q Evaluation, 8/31/10, 6 pp. R Evaluation, 9/10/08, 5 pp. S Report, 5/18/10, 5 pp. T School Application Records, 2/11/10, 2 pp. U Promotion in Doubt Letter, Undated, 1 p. V Records from Assembly, Undated, 1 p. W Asst. Summary of Test Grades, Undated, 1 p. X Parent’s Memo of Law, 11/15/10, 5 pp. Y Correspondence from Parent, 11/25/10, 1 p.

New York City Department of Education, Impartial Hearing Decision