New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: Student‟s Name: Date of Birth: District: 18 Hearing Requested By: Parent Date of Hearing: July 11, 2011

July 12, 2011 Actual Record Close Date: July 20, 2011 Hearing Officer: Jean Marie Brescia

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 11, 2011

Attorney — Student

Parents

Student

Tutor — Student

Intern — Student

Representative — DOE

Assistant Principal — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 12, 2011

Attorney — Student

Parents

Tutor — Student

Intern — Student

Representative — DOE

— DOE

On April 8, 2011, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of . The parent requested the hearing on April 7 (1) to challenge the alleged failure of the Committee on Education for District 18 (the “CSE”) to provide with a free appropriate public education for the 2010-2011 school year; and (2) to seek independent evaluations, an appropriate education program and compensatory educational services for in the form of 600 hours of private tutoring at the prevailing rate. At the hearing, the parent reduced this request to 300 hours of private tutoring at the rate of $90.00 per hour (trans. 25, 28).

The hearing was scheduled to commence on June 20. This date was adjourned in order to permit the requested evaluations to be conducted. These evaluations were conducted, and the parent did not pursue the claim for evaluations at the hearing (see Department Exs. 4, 10, 19). The hearing commenced on July 11 and was continued, and completed, on July 12.

The compliance date was extended to July 20 in order to permit the evaluations to be completed. The compliance date was subsequently extended to July 28 for preparation of the transcript. The record closed on July 20 upon receipt by the hearing officer of the transcript. Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

is a year-old young woman who attends The for and (“ ”), a community school in . Her disability is classified, for the purposes of the IDEA, as disturbance. This classification is not in dispute. has been diagnosed with disorder and .

‟s Educational Background

‟s educational history is not in dispute. She attended a general education program through grade. She was diagnosed with both disorder and and placed in a District 75 “SIE VII” class for third grade (Department Exs. 5, 6). remained in the SIE VII program through the end of grade. The class is a self-contained education class in a education school. This program was formerly denominated as a Instructional Environment VII, or SIE VII. This program was designed for students who manifested serious disturbance with related s and provided trained teachers, paraprofessionals and crisis management support staff to address the students‟ al and needs.

In the fall of 2009 and spring of 2010, when was in grade, the CSE conducted a triennial evaluation of (Department Exs. 5, 6). tested th at the percentile in reading and math on SCANTRON (which was not identified or th described by the Department‟s witnesses) and at the percentile in passage comprehension on the Woodcock-Johnson III (Department Ex. 5 at p. 3; trans. 62).

To plan for ‟s grade year, the CSE convened on April 30, 2010 and recommended that attend a : education class in a community school (Parent‟s Ex. B). This IEP notes that has “ outbursts which also reach very considerable proportions, both in intensity and . . . frequency” and that “periods of disruptive have precluded ” (Parent‟s Ex. B at p. 3). Furthermore, notes the IEP, “does not monitor / consistently enough so as to prevent outbursts from whatever relationships might be in formation. . . . There are actions and verbal which ignore the student-teacher hierarchy, as well as the group context in which educational opportunity are made available” (Parent‟s Ex. B at p. 4). The IEP states that ‟s “seriously interferes with instruction and requires additional adult support” and that she would be provided the support of a “small class with a education teacher, one assistant, and provisions for [a] separate area staffed by crisis personnel” as well as and a school-wide plan (id).

The CSE rejected recommending a general education environment for because “this abrupt a transition is not considered with ‟s reach at this time. She has been in a D-75 environment for many years, where examples of age-appropriate „mainstream‟ have been scarce” (Parent‟s Ex. B at p. 10).

was placed by the Department at for grade. does not have any self-contained education classes (trans. 51, 53). When she arrived at the school in September, was enrolled in Integrated Co-Teaching (“ICT”) classes for math and English and in general education classes for the remainder of her classes (trans. 42, 59). The School District‟s Case , the assistant principal of , testified that the school enrolls approximately 240 students, 48 of whom are education students (trans. 34). She described as a “ . . . instructional support student” at the school (trans. 34). attends ICT classes for English and math. In these classes, the education teacher and the paraprofessionals “provided a lot of extra support” to (trans. 37). did not attend after-school tutoring (trans. 37).

Ms. was ‟s teacher in spring 2011 in the “Bright Promise” class, which is “an extra support class” provided at (trans. 35). Ms. , who is a certified Wilson reading instructor, worked with using the Wilson reading program. She also worked with on completing projects (trans. 36). paid and participated in the class. Ms. stated that struggles in math (trans. 36).

Ms. described as “pleasant and quite articulate” student who “struggles in classes and sometimes ” and expressed and when asked to do work in class and disrupts class (trans. 39; see also 79).

The CSE at convened on October 5, 2010 for an “annual review” for (trans. 42; Department Ex. 1). The Department did not submit in evidence any scheduling notices its personnel sent to the parent informing her of this meeting. The “team,” which included Ms. as well as a general education teacher, a education teacher, and her mother, recommended that attend ICT with not more than 12 education students for English and math and receive the related service of (one 30 minute period per week individually and one 30 minute period per week in a group of no more than 8 students) (trans. 42; Department Ex. 1). According to Ms. , the parent supported this recommendation. This IEP includes the same descriptions of ‟s and functioning and academic performance as was set forth in the April IEP (Department Ex. 1 at pp. 3-4; Parent‟s Ex. B at pp. 3-4).

Ms. stated that an FBA was performed and a BIP prepared for (trans. 44). She explained that school staff at “tried” to work with “to the best of our ability” on her (trans. 43-44). Ms. believed that had been suspended eight times and removed from class 23 times due to language and items (trans. 45-47). Two manifestation determination reviews were held for (trans. 46, 74). Both reviews found that her s in those incidents were not a manifestation of her disability. Ms. did not recall the nature of those incidents (trans. 79-80).

Ms. explained that when was removed from class, she was sent to the suspension room at (trans. 66). She contended that school staff provided with school work to complete during these suspensions and removals and that the room was supervised by a guidance counselor (trans. 48, 66). did not complete this work.

Ms. stated that by June 2011, had obtained “a little over credits” and had a year-end average of . % (trans. 36, 39). She had failed math, U.S. History and biology (trans. 40). According to Ms. , would be “given the opportunity to rectify those failures” through summer school, but Ms. did not know what courses were offered during the current summer school program which was already underway at the time of the testimony (trans. 40).

The Department submitted in evidence extensive anecdotal records of ‟s s in school from September 23, 2010 (the date of the first report which describes noncompliant and verbally ) through March 23, 2011 (Department Ex. 8). These reports reflect many instances of her classrooms, lessons, using and , being asked to leave the classroom because she has used or lessons, acting towards other students and school staff members, school staff and students, objects, refusing to complete classwork, science materials and equipment, expressing agitation and irritability, inappropriately, and generally not complying with appropriate requests from teachers and other school staff and displaying at reasonable requests from her teachers.

An MDR was conducted for on April 29 (Department Ex. 7). The April “MDR team” determined that ‟s April 13 threats to a paraprofessional were not a manifestation of her disability (Department Ex. 7). The parent participated in this meeting by telephone.

The Department submitted in evidence various documents detailing ‟s principal‟s suspensions and “teacher removals” during the 2010-2011 school year (Department Exs. 16, 17, 18). These documents appear to show eight principal suspensions between October 5 and March 4. Four of the principal suspensions totaled

15 school days.

In March, the Department informed that she had been “matched” to the Science Exploration Program at Brooklyn Academy of Science and the Environment. The parent declined this offer (Department Ex. 11 at p. 1). The Department submitted in evidence ‟s “ School Program Choices” form (Department Ex. 11 at p. 4). The parent‟s hand-printed name and signature are marked different on these two pages, and the parent denied ever seeing or signing the “ School Program Choices” form (trans. 170-171).

The recently conducted independent neuropsychological evaluation of (Department Ex. 10) states that was diagnosed with, and has been prescribed medication for, disorder since she was years old and that she attends weekly outside school (Department Ex. 10 at pp. 1, 6). During the evaluation, “presented with a guarded and defensive attitude initially and was even somewhat but eventually related well to the examiner” (Department Ex. 10 at p. 2). On the Neuro Cognitive Status Examination, scored in the average range on: measures of orientation to self, place and time; comprehension; repetition; naming; and memory. Her score on “constructional ability” was in the “moderately delayed range,” and her score on a subtest involving simple numerical calculations was in the “mildly delayed range” (Department Ex. 10 at p. 3). ‟s verbal I.Q. score was ; nonverbal I.Q. score was ; and her full scale I.Q. score was (Department Ex. 10 at p. 4). Her quantitative reasoning domain score was at the “borderline delayed range.”

On the Woodcock-Johnson Test of Achievement III, (as a student who was about to complete grade) attained the following grade equivalent scores: letter-word identification, ; story recall, . ; calculation, . ; spelling, . ; passage comprehension, . ; and applied problems, . (Department Ex. 10 at p. 5).

The evaluator concluded that ‟s “overall cognitive functioning fell at the borderline delayed range” (Department Ex. 10 at p. 6). Her academic “seemed er than her cognitive skills would suggest;” however, she “is unable to process mathematical material . . . and has a severe inability to and retain it.” The evaluator concluded further that had difficulties with , and processing “which impact her performance” and noted that “[i]t must also be taken into account that ‟s history of problems, control issues and tendencies play an adverse role in her academic functioning” and that “despite all these issues, seems to than expected” (Department Ex. 10 at p. 7).

On June 29, a school psychologist prepared a one-page document titled “Functional Assessment” for (Department Ex. 12). This document states that “teacher anecdotal and classroom observation” were collected and that engages in negative s to gain , avoid tasks, or voice . A“ Intervention Plan” was created on the same date (Department Ex. 13). This

“Plan” calls for her teacher to “work closely with to help her stay on task, firm limit setting, weekly sessions, parent/student conferences and parental involvement.”

‟s grade report card includes the following final grades in academic subjects: English, ; History, ; Algebra, ; and Living Environment, . attained a grade of in Introduction to Nursing (Department Ex. 14). earned

. out of a possible . school credits (Department Ex. 15).

An independent psychiatric evaluation of was conducted on July 8 (Department Ex. 19). reported “continued symptoms of disorder with easy , irritability, poor control, and times of rage.” The psychiatrist concluded that “has had persistent al problems and requires a more restrictive setting” such as a program, and diagnosed and disorder (Department Ex. 19 at pp. 2-3). The Parent‟s Case attended general education classes for through grade (trans. 142). The parent testified that was diagnosed with disorder and when she was years of age, evaluated by the CSE in grade, and placed in a SIE VII program for third through grades. continues to see a psychologist on a monthly basis outside school and attends therapy one time per week outside school (trans. 136-137, 140). also participates in an management program through an organization called Project Journey and takes medication, currently Seroquel-XR (trans. 139).

The parent explained that ‟s disorder affects her in school because it causes her “to get a little ” when she is trying to express herself and “no one else understands” while understands what she is “going through” (trans. 137). Her affects her when she is trying to but unable to concentrate (trans. 138).

experienced problems in middle school, such as getting “a little at times” and “little outbursts” (trans. 142-143). However, school staff, explained the parent, managed these s through , meetings with the parent, providing extra time for in the classroom, and other interventions (trans. 143). Other students in the school had the same difficulties as and were able to relate to each other and discuss their problems (trans. 143). They were “bright kids” who “just needed that extra ” (trans. 144). did not have any problems academically and “did very well” (trans. 144).

At the end of middle school, school staff in the District 75 program recommended that attend a education program in a community school because she was “academically ready” and “her emotions [were] under control” and “they felt like she could be in a regular school with regular students but take . . . classes” (trans. 145).

When was placed at , the parent believed that she was enrolled in : education classes (trans. 146, 149). The parent first heard from staff in October 2010 (trans. 147). She met with Ms. , Mr. (the dean of the school) and ‟s science teacher on October 5 to discuss ‟s disruptive

. School staff told her that if “didn‟t get herself together,” they would send her back to District 75 (trans. 147-148). The parent testified that she did not really understand that at the time of the meeting, was not enrolled in : classes but was attending ICT classes (trans. 151). The parent “thought she was in” the : “class that she was supposed to be in” (trans. 175).

The parent thought that she was coming to the school on October 5 for a meeting about “an incident” “had got into” with another student “but it turned into an IEP meeting”—no one from the school “actually [had] the paperwork there” (trans. 150). No one at the meeting explained to the parent the difference between : classes and ICT classes (trans 151-152). The parent believed that at the October 5 meeting, ‟s IEP was changed only to add with a “man from Brooklyn Hospital” (trans. 152, 153, 175). At the meeting, suspensions were not discussed and a plan was not created (trans. 152-153).

After the October 5 meeting, the parent received a notice that stated that ‟s IEP had been “modified as follows: sc to ict; co size to 8 and time to 30; modified to standard” (Parent‟s Ex. C). There is no evidence in the record indicating what this means.

Some time after the October 5 meeting, the parent that was attending ICT classes (trans. 151).

Starting in October, was removed from class and sent to the suspension room at three to four times per week. told the parent about these suspensions/removals; school personnel did not inform her. In November, she received telephone calls about suspensions, but no letters or written notices. When was sent to the suspension room, she was not given school work or home work (trans. 153156, 178).

The parent met with school personnel but there “was nothing . . .that anyone could help to do” (trans. 156). The parent was once contacted for an MDR two days before the scheduled date of the review. School personnel told the parent that the meeting could not be rescheduled to accommodate the parent‟s school schedule even though the parent offered an alternative time (trans. 161-162).

The parent explained that needed to attend education classes taught by individuals “able to deal with students” like her with “ problems” (trans. 158). She wanted to attend the : class that “she was supposed to be in” (trans. 160).

There were 21 students in ‟s ICT math class; 15 of the students were education students (Parent‟s Ex. D). There were 21 students in ‟s ICT English class; 16 of these students were education students (Parent‟s Ex. E).

Documents subpoenaed by the parent from the Department show 23 days of suspensions for (Parent‟s Exs. H, J-R). The suspension room log shows additional days (Parent‟s Ex. T). As a whole, the subpoenaed records document 38 school days during which was either suspended or removed from the classroom Parent‟s Exs. H, I, T, V-Y, JJ)..

At the end of January, sent the parent a “Promotion-in-Doubt” letter for (Parent‟s Ex. FF). The parent met with a teacher who offered to provide with math tutoring in the morning before classes started. got up early and got to school early on a consistent basis for this “extra help” through the last month of school (trans. 181-182).

The parent never received a notice that should attend summer school (trans. 180). On the day before her testimony at the hearing, which was one week after the commencement of the six week summer school term, the parent received in the mail a list of summer school courses at . The mailing did not notify her that should attend any of these classes (trans. 180).

testified that she had attended District 75 schools before attending . In the District 75 schools, she found the academic work “too easy” and she did not “feel good” there (trans. 90). In , she attended classes with and general education students and felt that she needed extra help in math (trans. 90-91).

School staff informed her that if she “didn‟t get [her] act together,” she would be sent back to a District 75 school (trans. 92). She had “on and off” at when the counselor had time. The counselor would cancel their sessions to do other work (trans. 93).

reported that her difficulties at began in October when she starting arguing with teachers and becoming and frustrated (trans. 93). She would then be suspended and go to the suspension room (trans. 94). During the fall semester, she was suspended “every other week” (trans. 97). During the spring semester, she was suspended “every three weeks maybe” and then “just slowed down after a while” (trans. 97).

Early in the school year, would spend entire days in the suspension room; later, she would be assigned to the room for two to three hours per day and then sent home for the rest of the day (trans. 96). An adult would periodically come into the room to “check on” the students (trans. 94). At the end of the year, an individual from the guidance office was “put” in the suspension room to “watch” the students (trans. 95). This individual was unable to assist the students in completing their work (trans. 95). was unable to complete the work assigned to her because she had not been taught the material and there was no one available to assist her (trans. 96). When she returned to class, she “had to start all over again” adjusting to the classroom setting and to her classmates (trans. 97). Over the course of the school year, felt that she spent more time in suspensions than in class (trans. 97).

wanted to leave because despite her efforts to try to control herself there, she was unable to do so (trans. 105-106).

testified that she was a certified teacher in the Commonwealth of Massachusetts and a certified Orton-Gillingham instructor (trans. 116). She has been tutoring students for the past ten years (trans. 119, 122-124). Her experience includes working with at-risk students and students with or issues (trans. 120, 132). Ms. explained the techniques she uses specifically with older (such as school age) students (trans. 132). She tutors in math, science and writing (including grammar) and works specifically on reading comprehension (trans. 121, 125-126, 130131).

Ms. had reviewed ‟s IEP and educational evaluation and opined that was a student for whom her tutoring services were appropriate (trans. 124). Ms. explained that she had experience working with students like whose , and interpersonal difficulties made it “very difficult” to (trans. 124-125).

Ms. charges $90.00 per hour for her one-to-one tutoring services (trans. 125).

Findings of Fact and Decision

Compensatory education relief in the form of supplemental education or related services has been awarded to students who have been denial free appropriate public educations by their school districts. See P. v. Newington Board of Education, 546 F.3d 111, 123 (2nd Cir. 2008); Application of a Student with a Disability, Appeal No. 11-

027. Such “compensatory additional services” may be awarded to students “who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation.” Application of a Student with a Disability, Appeal No. 11-027 at p. 25; see, e.g., Application of the Board of Education, Appeal No. 09-054 (awarding additional instructional services to remedy a deprivation of instruction). This remedy is equitable in nature and “is tailored to meet the unique circumstances of each case.” Application of a Student with a Disability, Appeal No. 11-027 at p. 26, citing Wenger v. Canistota, 979 F. Supp. 147 (N.D.N.Y. 1997).

I. The Appropriateness of the School District‟s Program The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A) & (B); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes education and related services designed to meet the student‟s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982).^[1] The School District bears the burden of demonstrating the appropriateness of the program recommended by its CSE.

A recommended educational program must be reasonably calculated to allow the student to receive an educational benefit and be the least restrictive environment for the student. Board of Education Hendrick Hudson S.D. v. Rowley, 458 U.S. 176 (1982). A school district fulfills its obligations under the IDEA when it provides a child an IEP that is “‟likely to produce progress, not regression” and that affords the child the opportunity for more than “mere „trivial advancement‟”—in short, likely to provide some “‟meaningful‟” benefit. Application of a Child with a Disability, Appeal No. 06-121, quoting Cerra v. Pawling Central School District, 427 F.3d 186, 195 (2d Cir. 2005) and Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997). A school district thus satisfies this standard “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free School District, 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 189.

The uncontroverted evidence in this proceeding established that did not provide with education services in conformity with a written IEP for the first month of the 2010-2011 school year. The April 2010 IEP mandated that attend a : education class, have available a separate area staffed by crisis personnel, and participate in a school wide plan. None of these recommendations were implemented for . Instead, she found herself deposited in ICT classes for English and math and in general education classes for the remainder of the school day; no safe space with crisis personnel; and no plan. This was a recipe for educational disaster—which was precisely what ensued—when was unable to maintain her without appropriate supports.

The Department‟s solution was to create the October 2010 IEP. This IEP was grossly inadequate to meet ‟s education needs. An appropriate educational program “begins with an IEP which accurately reflects the results of evaluations to identify the student‟s needs, establishes annual goals related to those needs, and provides for the use of appropriate education services.” Application of a Child with a Disability, Appeal No. 07-010. The services set forth in this IEP did not provide with sufficient support to maintain her nor sufficient support to address those s when they occurred. School personnel merely formalized the inadequate program they had implemented for on the first day of school. The record demonstrates (as lighted by the comments in the April 2010 IEP and the recent evaluations) that was not yet ready for the general education environment and continued to need the support of self-contained classes taught by educators trained and experienced in working with students with difficulties. Furthermore, the October 2010 IEP did not include a plan or any management needs or supports to assist in maintaining her .

Not only were the ICT classes inappropriate for , but the ICT classes at included more education students than permitted by law. There were 16 out of 21 students with IEPs when regulations limit that number to 12. 8 N.Y.C.R.R. §200.6(g)(no more than 12 students with IEPs in an ICT class; 13 with variance). The “oversubscription” of education students made it all the more difficult for the education teacher in those ICT classes to adequately support .

In addition, the methods used at to address ‟s s were to suspend her from school and/or remove from the classroom. The evidence establishes that no instruction was provided to when she was removed from class. These

Appeal No. 07-007. In the instant proceeding, I need not reach procedural violations of the IDEA because there are sufficient bases for the decision with respect to substantive violations.

removals served only to “remove” her and deprive her of an education, not to address her educational needs.

The Department continued to deprive of needed educational services with spotty provision of related services and no creation or implementation of a BIP until the last week of school.

The evidence presented at the hearing establishes that the Department failed to offered a free appropriate public education for the entirety of the 2010--2011 school year.

II. Relief Requested

The evidence supports a finding that is entitled to compensatory additional services to attempt to redress the Department‟s puzzling and unexplained failures to provide with appropriate educational services. This is an equitable remedy to be crafted to suit the unique circumstances of a given student. As to the equities, the parent did everything she could to seek assistance for . herself tried her hardest to manage the general education environment, and no one should be surprised that despite her efforts she was unable to manage her s on her own. Her middle school teachers had predicted as much, and that was why they recommended a more supportive environment for her. While the Department seemed to intimate that should have attended summer school, no one at informed the parent or that she should register for and attend summer school.

The parent‟s request for 300 hours of one-to-one tutoring is a reasonable proposal to compensate for the deprivation of an entire school year‟s worth of instruction designed to address her identified educational needs.

Therefore, for all the above reasons, it is hereby ordered that:

1. The October 5, 2011 IEP is invalid.

2. The Department of Education shall pay an independent provider (including Ms. or another certified teacher) for 300 hours of one-to-one tutoring to at the enhanced rate of $90.00 per hour. The Department of Education shall pay the provider directly and within 15 business days of receipt from the provider of the standard (or similar) documentation for services provided pursuant to a P-3 letter.

3. The CSE shall reconvene on or before August 15, 2011 and create an IEP for for the 2011-2012 school year. Dated: July 28, 2011

____________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

JMB:jj

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

B IEP, 4/30/10, 11 pp. C Notice of Recommendation of IEP Meeting, 10/6/10, 1 p. D ICT Class Composition Sheet, math, 6/24/11, 20 pp E ICT Class Composition Information, ELA, 6/24/11, 20 pp. F Student Intervention Log Report, 6/24/11, 1 p. G Log for , None, 1 p. H Suspensions and office of Hearings Online-Documented Principal‟s Suspensions and Removals Arranged by Date of Incident, 6/28/11, 12 pp. I Suspensions and Office of Hearing Online-Case List, 6/30/11, 1 p. J Notification of Removal from to Parent, 10/6/10, 1 p. K Notification of Removal from to Parent, 11/15/10, 1 p. L Notification of Suspension from to Parent, 11/22/10, 1 p. M Notification of Suspension from to Parent, 1/4/10, 1 p. N Notification of Suspension from to Parent, 1/6/10, 1 p. O Notification of Suspension from to Parent, 1/24/11, 1 p. P Notification of Suspension from to Parent for Suspension

2/14/11-2/18/11, 1 p. Q Notification of Removal from to Parent, 3/7/11, 1 p. R Notification of Suspension from to Parent, 3/11/11, 1 p. S Suspension List Provided to Parent by , None, 1 p. T Suspension Room Sign-In Sheets, 11/23/10-5/235/11, 30 pp. U Abrams Phone Log, 2010-2011, 6 pp. V Note Written by , 10/1/10, 1 p. W Note Written by Ms. , 10/4/10, 1 p. X Note Written by , 11/5/10, 1 p. Y Note Written by , 11/30/10, 1 p. Z Written Statement Form, 1/20/11, 2 pp. AA 1Note Written by Ms. , 3/3/11, 1 p. BB Note Written by Mr. , 3/4/11, 2 pp. CC Note Written by Algebra Teacher, 3/4/11, 1 p. FF Promotion-In-Doubt Letter, 1/25/11, 1 p. HH Records Requests from AFC to , 2/10/11, 3/1/11, 3/10/11, 9 pp. KK Subpoena, 6/27/11, 4 pp. LL Individualized Education Plan, 10/28/09, 13 pp.

DEPARTMENT OF EDUCATION

1 Individualized Education Program, 10/5/10, 16 pp. 2 Impartial Hearing Request, 4/7/11, 4 pp. 3 Due Process Response, 4/13/11, 3 pp. 4 Request for Psychiatric, Neuro-Psych and Psycho-Ed, 5/9/11, 2 pp. 5 Psycho-Ed Report, 10/20/09, 6 pp. 6 History Update, 3/1809, 2 pp. 7 Notice of Referral to Conduct an MDR, 4/13/11, 3 pp. 8 Reports/Anecdotal Reports, 9/23/10-3/22/11, 60 pp. 9 Student Attendance (ATS), 9/8/10-6/14/11, 10 pp. 10 Neuropsychological Evaluation, 6/27/11, 11 pp. 11 DOE HS Application Acceptance, 12/17/10, 4 pp. 12 Functional Assessment, 6/29/11, 1 p. 13 Intervention Plan, 6/29/11, 1 p. 14 Student Report Card, 6/30/11, 1 p. 15 Student Permanent Record, 6/30/11, 1 p. 16 Online Occurrence Reporting System, 10/5/10-5/25/11, 4 pp. 17 Soho List, Undated, 1 p. 18 Suspensions and Hearings Online, 10/5/10-3/4/11, 36 pp. 19 Psychiatric Evaluation, 7/8/11, 3 pp.

Footnotes

[1] While school districts are required to comply with all procedures set forth in the IDEA, not all procedural errors result in an inadequate IEP. See, e.g., Application of a Child with a Disability, Appeal No. 06-121. If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate educational program only if the procedural inadequacy: (1) impeded the student‟s right to a free appropriate public education; (2) “significantly impeded the parents‟ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability,