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: Date of Hearing: May 12, 2011

May 18, 2011 Hearing Officer: , Esq.

PERSONS WHO APPEARED AT THE HEARING

- District ,

- School

- School

INTRODUCTION

On May 12, 2011, an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged failure of the Department of Education (DOE) to provide a free appropriate public education (FAPE) to (“the student “) for the 2010-2011 school year. The hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 10:00 a.m. and was continued on May 18, 2011.^[1]

A list of exhibits that were admitted into evidence is attached to this decision.

BACKGROUND

On March 14, 2011 the filed a request for an impartial hearing alleging that the ( ) failed to provide a free appropriate public education (FAPE) for the 2010-2011 school year (District’s Ex. 1). The requests that the DOE provide the Student with or in the alternative that the student be retained in School and be given a for the next school year.

THE ’S POSITION

The contends that because the child was re-classified in February 2011, the child was not provided a FAPE for the 2010-2011 school year. The contends that that School, which is the school the child has been attending for the last years, is an and that the student requires that was denied during the 2010-2011 school year.

THE DOE’S POSITION

The DOE contends that: 1) because the student has earned enough to this ,

2) because the has , 3) because was the ( ); and 4) because the did not consent to the the the student’s Education ( ), the DOE was not responsible for providing her with a more or with education as on her February 2011 .^[2]

THE EVIDENCE PRESENTED

The is years old. has attended School (“ ”) for the last four years and is now in the grade. The student was previously deemed eligible for education in school but was at some point. At the request, the DOE conducted an updated of the student in January 2011. The began the process in the fall of 2010 but it took a very long time to complete the . Ms. , the stated that the was due to the of . The was completed on January 14, 2011, after the made .

The testified that the reason the made the was because the had been since August and her grade were . was not their and was not attending school regularly.

At the time of the CSE meeting which was held in February, the CSE classified the student as and that receive a and ( ) a . This recommendation was made after the revealed that the student was at the grade and her were only at the grade level. The prepared a written recommending that the student be given an . DOE Ex. 4. The was issued in February 2011. The was not provided a copy of the written and did not see the documents discussed at the CSE meeting until two days before the impartial hearing when received the DOE’s evidence package.

The did not agree with the recommendation on the and filed her request for impartial hearing. testified that was never told nor did understand that if did not sign a consent letter, the recommended on the would not be provided. testified that received a letter written to her in English after the meeting. did not know what the letter said.

The testified that even if the had signed the consent form, there is no at so the could not have been implemented there.

The , . , confirmed that the at was on and that the student was receiving from a person who is not a licensed . He testified that he arranged for the student to receive but only as of May 12th, the date he received the for the time. He had no idea why he had not received the student’s in or around February when it was prepared. He stated that if he had received the , he would have implemented it. He testified that as a student, would have received extra time on exams and would have received intervention in her subject classes to focus her attention.

He testified that the reflected that the student was well grade level in and and at that the . He said that the whole class failed the . while he was not at the meeting, he has heard from that the student has not been focused this year.

He stated that the student could receive - school assistance with her classification of but indicated that when a student receives a grade below on a exam, even community colleges require that students take remedial classes in all such subjects. With her grade in being only , would need remediation in either before or while attending community college. It should also be noted that her grades in three other subjects were just barely above a .

Ms. , who has known the for years, testified that last the and the came to her office to request that the child be retained in school for another year so that can receive and . They told Ms. that the student had that were impeding her ability to . Ms. confirmed that in the last the has been . testified that the student has been about completing her . . further testified that the student was at because of her .

Ms. stated that was not an for the student and that the student is .

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was aware that the student had an in school and said that no one at The reported that the was under the of a and was for the for her . the DOE followed up on the child’s renewed need for education. further stated that the student did not want to remain at next year.

The testified that the student to receive education so that can raise her and levels. testified that the student would be willing to attend and sessions.

CONCLUSIONS OF LAW

Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes special education and related services specially designed to fulfill the unique needs of the student with a disability, and it is provided in conformity with a written . 20 U.S.C. §1401(8).

The DOE may be required to pay for compensatory education services where the DOE is found to have denied the student FAPE. Burlington School Comm. V. Dep’T of Educ., 471 U.S. 359 (1985); Florence County School Dist. V. Carter, 510 U.S. 7 (1993). Compensatory education is an equitable remedy tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). It may only be awarded to students who are ineligible by reason of age or , 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.‟ [See, Appeal No. 09-145, citing to Somoza v. New York City Department of Education, 538 F. 3d 106, 109 n.2, 113 n.6 (2d Cir. 2008); s. C v. Weaton 916 F 2d 69 (2d Cir. 1990); Burr v. Ambach 863 F. 2d 1071 (2d Cir. 1988); Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 (N.D.N.Y. 2001)]. As a result, compensatory education has been awarded in situations when a student has been excluded from a school or services due to a gross violation of the Federal law. [See Burr by Burr v. Ambach, 863 F.2d 1071 (2nd Cir 1988) citing Meiner v. Missouri, 800 F. 2d 749 (8th Cir. 1986); see also . C., 916 F.2d at 75.]

In this case, the student is on the verge of . It has been admitted by DOE witnesses that the student’s was not implemented in a timely fashion. In fact, the stated that he never even received the until after the IHO issued an interim order mandating that the be implemented. Thus, the student has been without a FAPE for the entire after the was created. In addition, this student had been deemed eligible for education in school. The Assistant , Ms , stated that no one at was aware of that fact. Had they DOE been more vigilant in following up with the student throughout her school , would have been referred for services earlier. These circumstances constitute a gross violation of federal law.

The DOE’s position that the success in school somehow negates the fact that was classified as in February 2011 and in need of services for the 2010-2011 school year is untenable. The student’s ability to pass her does not excuse the DOE’s failure to follow federal law.

Additionally, the DOE’s position that it was not required to implement the in the of consent is similarly unacceptable where, as here, the unrefuted testimony of the d that the was sent the consent letter in and was never sent a consent letter in , the only that could understand. did not understand that her would not receive services if did not sign the consent. In fact, stated that understood that the student would receive services. The DOE is responsible to provide the with due process. The clearly indicates that the speaks in the . See, District Ex. 4. Thus, it was incumbent upon the DOE to send the letter seeking the ’s consent for services in .

Accordingly, the DOE has denied the student a FAPE and is required to provide the services on the student’s until the end of the school year. In addition, since the student was not identified by the DOE to be re-evaluated in a timely fashion and then deprived the student of the services that were recommended on her for an extended period of time, the student is also entitled to receive following her .

It is ordered that:

1. The DOE shall provide the student with all of the on her including once a for in a of one and once a for in a of and a until the end of the school year;

2. The DOE shall an for the to: 1) obtain for the student from an approved for a for following her and 2) obtain and from an approved a for following her .

3. The DOE shall the to the within one of receiving this decision and order. Dated: May 26, 2011

________________________

ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the 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

A Letter and Attachments from 5/4/11, 4pp.

DEPARTMENT OF EDUCATION

1 Request for Impartial Hearing, 3/24/11, 1p. 2 History, 11/15/10, 5pp. 3 , 11/18/11, 1p. 4 , 1/14/11, 9pp. 5 of Records, 11/15/11, 1p. 6 , 11/15/11, 2pp. 7 Request for , Undated, 1p. 8 Report Card, 2/1/11, 1p. 9 Student Permanent Record, Various Dates, 1p. 10 Attendance Record, Various Dates, 1p. 11 Authorization to ( ), 11/15/11, 1p. 12 / 2/18/11, 12 pp. 13 Placement Inquiry Information, 5/9/11, 2pp.

Footnotes

[1] On the first day of the hearing, the parent objected to the admissibility of several DOE exhibits on the grounds that she did not receive them five days before the hearing and that they were not into , which is the only she understands. The IHO adjourned the hearing and arranged for the interpreter to read and translate the documents to the parent. On the next date, the parent acknowledged that the documents had been read to her in and that she was ready to proceed.

[2] On May 12, the IHO issued an interim order requiring the DOE to provide the student with and within one week from the receipt of the interim order. At the hearing, the DOE representative stated that the parent was going to be provided with an to obtain on her own. That is not in compliance with the Interim Order and must be rectified.