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: August 11, 2011

August 18, 2011

September 15, 2011

October 11, 2011 Actual Record Close Date: October 21, 2011 Hearing Officer: Diane R. Cohen, Esq.

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

Attorney — Student

Intern — Student

Deputy Director — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 18, 2011

Attorney — Student

Mother — Student

Student

Intern — Student

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 15, 2011

Attorney — Student

Attorney — Student

Attorney — Student

Attorney — DOE

Guidance Counselor, — DOE

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

Attorney — Student

Attorney — Student

Observer — Student

, STUDENT

, Mother

For the Department of Education:

, Attorney , Teacher, . (via telephone)

Background

On June 29, 2011, I was appointed hearing officer pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), in this matter. The Parent requested a hearing in this case, alleging that the New York City Department of Education (the “DOE”) had failed to provide a free and appropriate public education (“FAPE”) to the Student.

The Hearing Request asserts that the Student was first classified as in the grade and continued to be in special education throughout his academic career. During through grades, he attended a District school. The hearing request asserts that in April 2005, as he neared completion of the grade, a class was recommended for school. It asserts that the Mother did not receive notice of the IEP meeting and thus did not attend it. She received a copy of the IEP in the mail. The hearing request asserts that she thought the IEP meeting was a meeting the school held without any parental involvement. It further asserts that “[c]oncerned with the levels of his ] wanted to be placed in a classroom setting. As a result, [his] significantly. It asserts that while at School, the Parent did not receive notice of any IEP meetings and did not receive any IEP documents except for a January 2008 IEP. I t further asserts that after several records requests from School only provided a copy of a January 2008 IEP for the Student’s entire academic career at the school. I t further asserts that this one IEP is both procedurally and substantively inadequate in that it was based on evaluations that were two years old and could not reflect his academic levels at the time. The hearing request asserts that in the fall of 2008, the Parent met with the guidance counselor about his . She told the guidance counselor about his and asked whether he could be placed in a class to see if his improve. The hearing request asserts that instead of informing the Parent about her due process rights including her right to request an IEP meeting, the guidance counselor asserted that the Student had to remain in a classroom setting. The hearing request further asserts that during the same semester a staff member from the school visited the family to ask about the . The Student and the Parent explained that he believed he was in an inappropriate classroom setting and wanted to be in a general education class. It asserts that the staff member again never informed the Parent about her due process rights. The hearing request asserts that with the understanding that they were signing a log indicating that the staff member had visited their home, the Student and the Parent signed a “sheet”. It further asserts that after this meeting, the family never received any notice about a meeting to discuss the DOE’s intent to from the school. However, it alleges that when he tried to take a in January 2009 a staff member told him he could not sit down for the exam because he had been school. The hearing request asserts that a Notice of received in response to a records request indicates that he was school in February 2009.

The hearing request asserts that the refusal of the DOE to place the Student in a less restrictive environment and its failure to inform the Parent of her due process rights resulted in an from school. It asserts that neither the Student nor the Parent knew the Student had a right to an education through the school year he . The hearing request asserts that the DOE violated the Student’s rights by allegedly denying enrollment in several alternative high school “because he had an IEP.”

The DOE has asserted that the claims prior to the discharge in March 2009 are barred by the two year statute of limitations. The IDEA provides an opportunity for any party to present a complaint which sets forth an alleged violation of FAPE that occurred not more than two years before the date the parent “knew or should have known about the alleged action that forms the basis of the complaint”. 20 U.S.C. 1415(b)(6)(B). New York Education Law §4404(1)(a) sets forth two exceptions to the two year statute of limitations. The timeline shall not apply if the parent was prevented from requesting a hearing due to (1) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or (2) the local educational agency withheld information that was required to be provided to the parent or student. The DOE asserts that the second exception does not apply because the evidence shows that the Parent was provided with her due process rights “throughout” the Student’s academic career, and because when he was discharged in March 2009, he was years old and was provided with an explanation of his rights.

The hearing was requested by the Parent in this matter on June 29, 2011. After the recusal of prior hearing officers, I was appointed hearing officer on August 5, 2011. Since the resolution period had already ended, I immediately contacted the parties to schedule the hearing. The attorney for the District requested that we delay the hearing until September due to witness availability and also asserted that she would be filing a motion to dismiss based upon the statute of limitations. The attorney for the Parents objected to the delay in scheduling and also objected to what she considered to be an untimely assertion of the statute of limitations defense. The attorney for the District asserted that she was only required to submit a response in a timely fashion and that a response does not require the assertion of affirmative defenses. We agreed to meet on August 11, 2011 for the first day of hearing to address these issues.

At the hearing on August 11, we agreed to a briefing schedule for the motion to dismiss. We also scheduled a hearing date for August 18, 2011 so that we could move forward expeditiously on the issues that were not in question. We also agreed to take the Parent’s case out of order, since the Districts’ witnesses were not available.

We convened for the hearing on August 18, at which time the Parent and the Student testified. Hearing dates were scheduled for August 25 and September 15, 2011. Both parties jointly requested an extension of the decision date for all the reasons set forth above. I granted that request after weighing all relevant factors, and extended the decision date for thirty days to October 3, 2011. I also noted that the Parent had asserted that she had contacted the District regarding enrolling the Student for the current year and having the CSE evaluate him. Given that this was being put into place, I felt that a short delay would be appropriate under the circumstances.

The parties completed the submission of briefs on September 2, 2011. I determined that it would be appropriate to defer my decision on the statute of limitations issue since the hearing request was a combination of allegations some of which were agreed to be timely. Moreover, the determination of whether the statute of limitations was tolled in this case was based on factual issues, and I wanted to be sure I had all the facts before me before deciding the issue. I informed the parties by email on September 7, 2011, that I would be deferring my decision on the statute of limitations issue and that the parties should proceed with their cases. I reiterated this on the record on September 15, 2011 (T. 221).

We were unable to complete the hearing on September 15. We continued the hearing on October 11, 2011. The District requested an extension of the decision date for reasons of witness availability. I again weighed the relevant factors and determined that it was appropriate to allow the delay for due process reasons. I extended the decision date for thirty days to November 2, 2011. The hearing was completed on October 11, 2011. Statute of Limitations

New York State Regulations of the Commissioner of Education provide that:

“(i) Timeline for requesting an impartial hearing. The request for an impartial due process hearing must be submitted within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, except that the two-year timeline shall not apply to a parent if the parent was prevented from requesting the impartial hearing due to specific misrepresentations by the school district that it had resolved the problem forming the basis of the complaint or the school district’s withholding of information from the parent that was required to be provided to the parent under this Part or under Part 201 of this Title.” 8NYCRR§200.5(j)(1).

The Parent argues that the statute of limitations should be tolled because she was not informed of her due process rights as required by law during the relevant years. New

York State Regulations provide that:

“(3) A copy of [the procedural safeguards] notice must be given to the parents of a student with a disability, at a minimum one time per year and also:

(i) upon initial referral or parental request for evaluation; (ii) upon the first filing of a due process complaint notice to request mediation or an impartial hearing as described in subdivisions (h) and (j) of this section; (iii) upon request by a parent; (iv) upon a decision to impose a suspension or removal that constitutes a disciplinary change in placement pursuant to section 201.2(e) of this Title; and

(v) upon first receipt of a State complaint pursuant to section 200.5(l) of this Part. “8 NYCRR§200.5 (f)

The DOE submitted various items of evidence, including notices of meetings of the Committee on Special Education (the “CSE”), individualized education programs (“IEPs”), and other related documents. The documents range from April 24, 2001 through August 30, 2005 (Exhibits 4 through 24). At that point, there is a notable lapse. The next items are a notice of IEP Review, dated January 3, 2008, an IEP of the same date and a Notice of Program of the same date. Last, there is a Request for Consent for Evaluation, dated December 21, 2008 and a Notice for Request of Review of IEP of the same date (Exhibits 25 through 29).

On the date that the Student signed the Planning Interview Form – March 18, 2009 -- from School, the date of the last IEP was January 8, 2008 (See Exh. 31, p. 1). Thus, there should have been an IEP meeting in January 2009 for an annual review. This IEP meeting would have involved a notice to the Parent as well as an IEP developed as a result of the meeting. The Procedural Safeguards Notice is required to be provided to the Parent at least one time per year. There is no evidence that the CSE convened after January 8, 2008 and before the discharge on March 18, 2009.

The Parent testified that she did not receive any letter or IEPs when she lived on (See T. 151; 196).

There is no evidence that the CSE convened during the years between 2005 and

2008. The hearing request asserts that a document request yielded no IEPs during that period. Neither the DOE nor the Parents submitted any such IEPs, and I must conclude that none exist; and that any required notices given in connection with such IEP meetings, and the dissemination of procedural safeguards notices were not provided. The attorney for the Parents submitted a document request to School, dated June 2, 2011, requesting a copy of the student’s entire education file for the school years between the fall of 2005 and the spring of 2011 (See Exh. B). A follow-up letter, dated June 21, 2011, was sent by the attorneys for the Parents to , Team at the school, listing the documents submitted by School in response to that request and subsequent requests; and asking for confirmation that the school had received three document requests, and that the listing of documents submitted by the school to the Attorney for the Parents was complete. The confirmation letter was signed, as requested, by Ms. (See Exh. J) and faxed back to the attorneys for the Parents on June 21, 2011 (Exh. I). Among the documents listed on the confirmation letter there is only one IEP -- the IEP, dated January 8, 2008. No other IEPs were listed despite the fact that the Student attended School from 2005 through 2009, and the documents requested by the attorney for the Parents included all documents during those years.

With regard to notices received in 2008, I note that although Exhibit 25 indicates that a Notice of Meeting was sent out to the Parent, there is no evidence that the DOE followed up and tried to work out a mutually convenient time with the Parent to attend the meeting. No evidence was submitted indicating that the DOE followed up on that notice before proceeding to a CSE meeting without the Parent of January 8, 2008. The IEP sets forth that the notice was sent out on December 21, 2007 and that the date of follow up was January 8, 2008 (the day of the CSE meeting). No explanation was offered as to whether the Parent was reached, whether there was any discussion with the Parent or whether there was an attempt made to find a mutually agreeable date (See Exh. 26, p. 2). The District submitted as an exhibit a notice regarding placement, dated January 8, 2008 (Exh. 27). The Parent testified that she did not receive any notices at the address listed (T. 196). I find that the testimony of the Parent that she did not receive mailings at that address, combined with the prior failures of the District to provide notices to the Parent, and without any testimony relating to the mailing of such notice, lead me to conclude that that the Parent did not receive such notice. Given the failures of the District in regard to appropriate procedures, I credit the Parent’s testimony that she did not receive any procedural safeguards notices at that address. However, even if she had received such a notice, it would not remedy the failures to receive procedural safeguards notices in years between 2005 and 2008; nor would it have remedied the failure to receive a notice in 2009.

Based upon what appears to be a failure regarding the procedures in following the requirements of the regulations to notify the parents of meetings of the CSE; of documenting such notice and follow up attempts to arrange CSE meetings at times convenient for the parents; of holding CSE meetings annually; and of obtaining assessments as needed, I must conclude that the Parent was not provided with her Procedural Safeguards Notices between 2005 and 2009. The fact that the Parent had received Procedural Safeguards Notices during years prior to 2005 can not suffice. She could not be expected to remember the details of such notices. The law requires that she receive notices annually, and failure to do so has consequences. Had she received such notices in a timely fashion, she would have been apprised of her rights to contest the actions of the CSE, to compel action by the CSE and to request a hearing. Having not received such notices in a timely fashion, she could not be expected to know that there might be equitable remedies for the ongoing failure of the District to take mandated action, such as calling CSE meetings, drafting IEPs and considering the views of the Parent and the Student. Until she contacted an attorney, it is likely that the Parent did not know that there was action she could take to remedy these past failures.

I note as well that although the Student signed the Planning Interview Form on March 18, 2009, school, the Parent did not sign this form and therefore any knowledge regarding the Procedural Safeguards Notice in the form cannot be imputed to her. She testified in response to whether she recognized the form “No. Because when I came in my house everything was already done” (T. 162 at 8-9).

Even if the Parent had been provided with a Procedural Safeguards Notice in 2009, this would not have alerted her to the requirements relating to the discharge of students with disabilities. There is no reference in the Procedural Safeguards Notice regarding voluntary discharge of students with disabilities from school, and the Parent would therefore not have been aware of her right to contest this discharge as not in compliance with the law.

I also note that prior written notice is required under the following circumstances:

“(1) Prior written notice (notice of recommendation) that meets the requirements of section 200.1(oo) of this Part must be given to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, educational placement of the student or the provision of a free appropriate public education to the student. Prior written notices issued during the 2011-12 school year, and thereafter, shall be on a form prescribed by the commissioner.”

8NYCRR§200.5(a).

The hearing request alleges that the Student’s school in 2009 and that the District had a pattern of failing to inform the Parent of her due process rights. (Exh. A, p. 2-3). The District presented evidence that a letter was sent from School on March 13, 2009, making an appointment for a planning interview conference on March 31, 2009, because the Student had been and that the Student’s records indicated that he might . The letter did not check off the item which would have indicated that the Student (Exh. 34).

Although this letter provided notice of a meeting on March 31, 2009, there was no evidence of notice of a meeting on March 18, 2009, which is the date the Student . The Parent was entitled to receive prior written notice of the meeting with the Student which resulted in his “ from school. The failure to provide notice that the District proposed to change the by suggesting or requesting that he school was a failure to provide a notice required by the Regulations. The failure to provide this notice, in itself, tolled the statute of limitations with regards to the school. Had she been provided with prior written notice, and had such notice included a procedural safeguards notice or had she received a procedural safeguards notice within the prior year, she may have recognized that a meeting with the CSE might yield some options for addressing his ; and that – that she had a right to a hearing.

For all the foregoing reasons, I find that the statute of limitations in this case is tolled and that all the matters raised in the hearing request are timely.

Findings of Fact and Decision

Having determined that the statute of limitations does not prevent my review of this case, I will turn to the merits.

The Parent is requesting compensatory education in this case, for cumulative failures to provide FAPE since 2005. The State Review Officer has summarized the law on compensatory education as follows:

“Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 C.F.R § 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 C.F.R. § 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100). Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation 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 Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 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]; Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education].

Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C.

§§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; Student

X. v. New York City Dep't of Educ., 2008 WL 4890440, at *23 [E.D.N.Y.

Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v. Bd of Educ., 2008 LEXIS 113149, at *38-40 [S.D.N.Y. March 6, 2008]). Likewise, State Review Officers have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of a Student with a Disability, Appeal No. 09-111 [adding summer reading instruction to an additional services award]; Application of the Bd. of Educ., Appeal No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; Application of a Student with a Disability, Appeal No. 09-044 [awarding "make-up" counseling services to remedy the deprivation of such services]; Application of a Student with a Disability, Appeal No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; Application of a Student with a Disability, Appeal No. 08-072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE]; Application of the Bd. of Educ., Appeal No. 08-060 [upholding additional services awards of therapy]; Application of a Student with a Disability, Appeal No. 08-035 [awarding ten months of home instruction services as compensatory services]; Application of the Bd. of Educ., Appeal No. 06-074; Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-054”

Application of a Student with a Disability, Appeal Number 10-086.

At the outset, I will note that the District has not met its burden of proof that the Student was provided FAPE in the 2005-2006 school year and beyond. There is no evidence that the CSE met, developed IEPs, or considered the Student’s needs, the Parent’s desires or strategies to assist the Student in or meeting his other educational needs.

As previously noted, there is no evidence on the record of a valid review of the Student’s needs or of meetings of the CSE after August 30, 2005. The IEP, dated January 8, 2008, based upon a meeting of the CSE without parent involvement, included present performance levels determined on April 10, 2006, nearly two years earlier. The IEP indicates that his and as a result “a current formal evaluation was not possible...A new evaluation will be conducted upon [ to school”. The CSE appears to have taken the view that the Student’s school relieved it over its duties to make appropriate assessments and recommendations. I disagree.

The instructional levels are noted to be at the 7.3 level (See Exh. 26, p. 3). I note that the IEP, dated April 5, 2005 (Exh Q) sets forth instructional levels based upon testing in March 2005, at the 7 grade equivalents (Exh. Q, p. 3). Thus, his instructional levels on April 10, 2006 were in the same range as they were in March 2005, and continued to be listed in the same range on the January 8, 2008 IEP. The January 8, 2008 IEP includes as a goal that the Student would improve his pattern of (Exh. 26, p. 6). However, it is not clear how the CSE envisioned accomplishing this. Given the fact that the Student continued to maintain his and, ultimately, to sign papers as a result of continued , it seems clear that the DOE did not help him meet this goal. Had the DOE convened a CSE meeting with the Parent to discuss the Student’s desire to change his class, perhaps a solution could have been found to meet the Student’s needs, including any needs that may have impacted his .

New York Education Law provides that:

“[n]o pupil over the in his or her school district shall be dropped from enrollment unless he or she has been school days and the following procedure is complied with: The principal or superintendent shall schedule and notify, in writing and at the last known address, both the student and the person in parental relation to the student of an informal conference. At the conference the principal or superintendent shall determine both the reasons for the pupil’s absence and whether reasonable changes in the pupil’s educational program would encourage his or her of study. The pupil and the person in parental relation shall be informed orally and in writing of the pupil’s right to in the public school maintain in the district where he or she resides, if otherwise qualified under this section. If the pupil and the person in parental relationship fail, after reasonable notice, to attend the informal conference, the pupil may be provided that he or she and the person in parental relation are notified in writing of the right to re-enter at any time, if otherwise qualified under this section.” New York Edn. Law §3202, par. 1.

Paragraphs 1.9 and 1.10 of Regulation of the Chancellor, Number A-240, provide that:

“Students over in general education who are not in may without parental consent after the school follows appropriate notification and/or exit interview procedures, including notification of the right to return until the age of 21....

“Special Education students years of age may not as “ without parental consent, unless the of age, does not have a legally appointed guardian and . Appropriate exit interview procedures must be followed.”

Section 3202 of the New York State Education Law requires that the principal or superintendent shall schedule and notify in writing and at the last known address, both the student and the person in parental relation to the student of an informal conference before a student is dropped from enrollment. The evidence in this case does not indicate that a letter was sent out in writing to the Student and the Parent of an informal conference to be held on March 18, 2009 (See T. 347 - 348). The only evidence is of a notice, dated March 13, 2009, of a meeting to be held on March 31, 2009 – a meeting which did not take place because the Student had on March 18.

Section 3202 also provides that at the conference the principal or superintendent shall determine both the reasons for and whether reasonable changes in the pupil’s educational program would encourage and or continuance of study. There is no evidence that any attempt was made to make changes to the Student’s educational program which would encourage and facilitate his of study. As a student with an IEP, whose classification was (See Exh. 26, p. 1) the required course of action in order to determine whether reasonable changes would , would be to convene a meeting of the CSE. This is especially so when an annual meeting was overdue. The date of the most recent IEP was January 8, 2008 (Exh. 26). On March 18, 2009, the annual review was over two months overdue. Aside from the necessity of calling a CSE meeting, the District had notice that that Student was and wanted to be in a general education class (See T. 92 – 95; 145 - 147). Thus, it had reason to believe that there were reasonable changes that could be made that . The Parent testified that academic interventions were not made to improve (T. 153 at 23-25; 154 at 1)

I also note that the law requires that the conference be conducted by the principal or superintendent. There is no provision for the delegation of such duties to an assistant principal or to teacher.

There is no evidence that the Student had from school. He testified that someone came to his home and asked him to sign a paper from school (T. 98). The meeting lasted 10 or 15 minutes. (T. 98). He testified that he did not want to be (T. 99 at 3), still wanted to attend school and still wanted a general education setting (T. 140).

A letter from School, dated March 13, 2009, of a planning interview conference on March 31, 2009 (Exh. 34), indicates that the reason for the conference was that the Student had been and that the records indicated that he might benefit from a discussion about other educational options. The District submitted as an exhibit, an ”, including a an entry with respect to a family phone call on March 10, 2009, which indicates that “Mother said that he wants to ” (Exh. 35, p. 6). This does not change the fact that the visit to the Student’s home on March 18, 2009 was for the purpose of discussing other educational options, and the appropriate procedures should have been followed. I also note that the admission of Exhibit 35 was objected to by the Parent and that there was no testimony from the person who made the entry, and no corroborating evidence relating to that phone call. Therefore, the entry is of little probative value. Aside from the entry relating to the March 10 conversation, there is no corroborating evidence that the Student wanted to sign , and in fact school to do so. Rather, the evidence indicates that the Student was persuaded by in a visit to the home (T. 97 – 99; 139; 162 at 15-25). This “ was not obtained in accordance with the law as there is no evidence that written notice was provided to the Parent or the Student of this home visit; there was no attempt to change the Student’s program to facilitate continuation of study, and the conference was not conducted by the principal or the superintendent.

As early as in the , in 2006, the Student was , and by his testimony, he had spoken with his about wanting to be in a different class (T. 92 at 2-6). He was embarrassed to be attending the class he had been assigned to (T. 90 at 23-24) and felt that his needs were different from those of the other students in the class (T. 91 at 5-7). The Mother testified that she had conferences regarding his attendance and that she and the Student explained that he wanted to be in another class (T. 145). However, his concerns were ignored (T. 92 at 9-11). The attorney for the District attempted to show that the Student’s grade was already , and that as a result he general education (T. 116 at 8-12). The show that the Student attended days in the fall of (Exh. L), and that his did not fall precipitously until the spring. Moreover, the fact that a student with a disability is having difficulty does not mean that he is ineligible for any particular class. If there were concerns about the , those concerns should have been addressed by the CSE – especially since the Student’s classification was (See. Exh. Q). At that point, the CSE could have considered all the Student’s needs and determined a reasonably calculated way to meet them: whether by changing his class or by some other set of supports and services. This was not done.

The show that he attended classes only days in the spring of , and was absent days (Exh. L). The Student remained grade (T. 92 at 23-25) and his continued to be very . In grade he attended school days (Exh. M). The Student testified that he continued to speak with his about changing classes (T. 94-95). The District continued to place him in the same class (T. 95 at 21). Since the Student’s concerns had not been addressed by the District throughout school, it is unsurprising that the Student agreed to from the school. For all these reasons, I find that the was inappropriately obtained.

The fact that the Parent did not receive the appropriate procedural safeguard notices after the Student began at School meant that the Parent and the Student simply did not have the reminders needed that they should question actions of the District with which they disagreed, and how to go about doing so. The Parent did not seem to question the fact that there were no notices of IEP meetings, no IEPs, no discussion within the CSE about addressing the Student’s issues, or any of his or her concerns. Having received no procedural due process notices in years, it seemed not to have occurred to her to contact the CSE regarding enrolling him in different type of school with different supports after his discharge in March 2009, or ultimately to request a hearing.

In sum, I find that there has been a gross violation of the Student’s rights to a special education and that compensatory education is appropriate.

The remedy for the multiple failures in this case is difficult to ascertain based upon the paucity of information regarding the Student’s current functioning. The Student has been classified in the past as having . The Social History from May 1, 2001, and the Social History Update, dated February 7, 2022, indicate that the Student had (Exh. 8 and 12). Although initially classified as having a , his classification was changed to an (See Exh. 15, 26; Q). The IEP, dated March 6 and April 19, 2002, note under Performance that the Student “impresses as an . He has a . If he does not get .” (Exh. 15, p. 6). I note that although goals relating to the Student’s are included in the IEP, and is included as a related service, there is attached to the IEP. The minutes of the CSE meeting on March 6, 2002, indicate that the Student was not , was refusing related services, that the Parent was being called in to school every day, and that the Student was (Exh. 16).

The IEP, dated April 5, 2005, indicates that the Student “ . He is capable of completing may be which impacts on his ” was recommended “in order to work on . (Exh. Q, p. 4). The IEP includes as one of its goals, that the Student “will express ways (Exh. Q, p. 8). A Summary, dated April 2005, (included as part of Exhibit Q, although apparently a different document) indicated that the Student required a great deal of , level which interfered with his situations. He engaged in , , or - with situations. (Exh. Q, p. 14)

Although the Student was in grade and had reading and mathematics scores in the grade range, his academic goals were to demonstrate readings, writing and math skills on the grade level (Exh. Q, p.6-7). Although it was noted that his did not seriously interfere with instruction and could be addressed by the special education classroom teacher, the Student was assigned to a special class with a ratio because he required to address his individual needs (Exh. Q, p. 11)

The IEP, dated January 1, 2008, indicates that the Student “has a history of absence from school. Previous social/emotional functioning is reported to be within normal limits. Updated social/emotional status will be assessed when he returns to school” (Exh. 26, p. 4)

Based upon the little information that exists, it appears that the Student was functioning on the level and the seventh to grade math levels in March 2005, when the Student was in grade, at the age of years, 8 months (Exh. Q, p. 1 and 3). It would appear from this that the Student would have been able to progress through the grades and to graduate with school student, had he . Throughout the Student’s academic career, were observed that impeded his academic progress and he was classified as having an . It is not clear at this point how severe these are and how much they interfere with his . It is also not clear what causes these and how to best address them. A thorough assessment of the Student’s needs is warranted to make that determination.

I will therefore order that the CSE shall determine which assessments are needed to assess all the Student’s and needs. At a minimum, the CSE shall conduct a - evaluation, a update, a evaluation and a ”). ”) shall be developed, if warranted. The CSE may determine that the should not be conducted (and not be developed) until after the Student is attending a program for a reasonable period of time. The CSE shall then make an appropriate recommendation which is age appropriate and considers the Student’s and the Parent’s wishes. If the Student’s become concerns, the CSE shall determine the reasons for the lack of , shall conduct an and a to address these concerns, if appropriate, and shall make a recommendation which addresses these issues. The CSE shall also endeavor to determine the Student’s ongoing interests and to help the Student develop a plan which meets his interests and desires. When the Student begins classes, a classroom observation shall also be taken, to understand the Student’s functioning better.

The Student shall be offered the opportunity to complete school or obtain his , at his option, and any programs open to school students shall be made available to him, if appropriate. In addition, he shall be offered up to per year until he reaches a and mathematics level of grade equivalent or until he graduates, receives his or until June 2015, whichever comes first. He shall also be afforded all appropriate related services during this time period. T he Student shall be permitted to attend these programs and obtain these services through June 2015 or whenever he graduates or obtains , whichever comes sooner.

The CSE will continue to meet and determine his needs on an annual or more frequent basis during such time, and shall be offered the services of a school age student with a disability or the age-appropriate equivalent. I do not agree that the Student should be provided with funding for a program aside from those offering by the DOE. The mandate for students with disabilities is to meet their educational needs through school or , whichever comes first.

Once the Student receives his , he will have received the services required under the law. The DOE will provide the Student with a metro card for transportation to any recommended program.

The assessments ordered herein shall be conducted within 30 days of the date hereof. The CSE shall convene within 45 days of the date hereof to begin implementing the actions required herein.

It is so ordered. Date: October 24, 2011

___________________________

DIANE R. COHEN, ESQ.

Impartial Hearing Officer

DRC:jj

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO RECORD ON AUGUST 11, 2011

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 6/28/11, 5 pp. 2 Due Process Response, 8/8/11, 3 pp. 3 Notice of Social History Meeting, 4/16/01, 1 p. 4 Second Appointment Letter, 4/24/01, 1 p. 5 Signed FNR, 6/4/01, 1 p. 6 Authorization to Attend Special Education Program, 8/16/01, 1 p. 7 Consent for Initial Evaluation, 5/1/01, 1 p. 8 Initial Social History, 5/1/01, 7 pp. 9 IEP, 5/31/01, 11 pp. 10 Letter from Parent Requesting Re-Evaluation, 1/15/02, 1 p. 11 Notice of Request for Review of IEP, 1/18/02, 1 p. 12 Social Update, 2/7/02, 3 pp. 13 Notice of CSE Meeting, 3/5/02, 1 p. 14 Notice of CSE Meeting, 4/12/02, 1 p. 15 IEP, 3/6/02, 4/19/02, 13 pp. 16 IEP Minutes of Meeting, 3/6/02, 1 p. 17 Authorization to Attend Special Education Program, 8/30/02, 1 p. 18 Signed FNR, 8/15/02, 9/10/02, 1 p. 19 Notice of Request for Review of IEP, 11/5/04, 1 p. 20 Signed Consent for Re-Evaluation, 11/5/04, 1 p. 21 Results of Evaluation Review, 3/22/05, 1 p. 22 Meeting Notice for CSE Review, 3/22/05, 1 p. 23 Notice of Recommended Deferred Placement, 4/5/05, 1 p. 24 Authorization to Commence Change of Program, 8/30/05, 1 p. 25 Notice of IEP Review, 1/3/08, 1 p. 26 IEP, 1/8/08, 14 pp. 27 Notice of Program, 1/8/08, 1 p. 28 Request for Consent for Evaluation, 12/21/08, 1 p. 29 Notice for Request of Review of IEP, 12/21/08, 1 p. 30 Referral, 3/17/09, 1 p. 31 Signed Planning Interview Form, 3/18/09, 3 pp. 32 Motion to Dismiss, 8/11/11, 9 pp. 33 Memorandum in Support of Motion, 8/11/11, 14 pp.

DOCUMENTATION ENTERED INTO RECORD ON AUGUST 18, 2011

PARENT

A Impartial Hearing Request, 6/28/11, 4 pp. B Records Request from , 6/2/11, 1 p. C Fax Confirmation for ’s Records Request ( .), 6/6/11, 1 p. D Fax Confirmation for ’s Records Request (to District ), 6/6/11, 1 p. E Fax Confirmation for Records Request (to .), 6/13/11, 1 p. F Fax Cover Page for Response to Records Request (from .),

6/14/11, 1 p. G Fax Confirmation for Records Request (to .), 6/20/11, 1 p. H Fax Cover Page for Response to Records Request (from .),

6/20/11, 1 p. I Fax Cover Page from . Records Confirmation Letter, 6/21/11, 1 p. J Signed Records Confirmation Letter from ., 6/21/11, 2 pp. K DOE Student Transcript, 6/21/11, 1 p. L History Report, 2005-2006, 1 p. M History Report, 2006-2007, 1 p. N History Report, 2007-2008, 1 p. O History Report, 2008-2009, 1 p. P Notice of Discharge, 4/15/2009, 1 p. Q IEP, 4/5/05, 14 pp. R IEP, 1/8/08, 14 pp. S Notice of IEP Review, 1/3/08, 1 p. T Notice of Program, 1/8/08, 1 p. U Request for Consent for Evaluation, 12/21/08, 1 p. V Notice of Request for Review of IEP, 12/21/08, 1 p. W Follow-up and Outreach Referral, 3/17/09, 1 p. X Signed Planning Interview Form, 3/18/09 and 3/20/09, 3 pp.

DOCUMENTATION ENTERED INTO RECORD ON OCTOBER 11, 2011

DEPARTMENT OF EDUCATION

34 Correspondence to Parent, 3/13/09, 1 p. 35 ILOG, 6/6/07–3/20/09, 7 pp. 36 Site List, Undated, 2 pp. 37 Special Education in NYS for Children Ages ; a Parent’s Guide, May 2002, 30 pp.

DOCUMENTS ENTERED INTO THE RECORD AFTER THE HEARING

IMPARTIAL HEARING OFFICER

I Parent’s Opposition to Motion to Dismiss, 8/25/11, 31 pp. II DOE Reply Brief, 9/2/11, 7 pp.