New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 127837

Student‟s Name:

Date of Birth:

District: 30

Hearing Requested By: Parent

Dates of Hearing: July 19, 2010

December 1, 2010

December 14, 2010

January 3, 2011

January 10, 2011

Hearing Officer: Jean Marie Brescia, Esq.

Corrected

1 Hearing Officer‟s Findings of Fact and Decision

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 19, 2010

Parents

Student

No Appearances — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 1, 2010

Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 14, 2010

Parents

of, — Student

School (Via Phone) — Student

District Representative — DOE

(Via Telephone) — DOE

(Via Telephone) — DOE

IEP &, — DOE

School (Via Phone) — DOE

Information — DOE

School (Via Phone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 3, 2011

of — Student

Parents

Student

District Representative — DOE

2 — DOE

Hearing Officer‟s Findings of Fact and Decision — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 10, 2011

Student

Student

Student

District Representative — DOE

3 — DOE

Hearing Officer‟s Findings of Fact and Decision — DOE

On December 15, 2010, I was designated as the hearing officer by the New York City Department of Education, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of . I was the fourth hearing officer appointed in this proceeding. The parent requested the hearing on June 29 to challenge the failure of the Committee on Special Education for District 30 (the “CSE”) to offer free and appropriate public education and to seek compensatory education for him.^[1]

is a year old who was classified for the time period prior to March 2010, for the purposes of the IDEA, as . Subsequent to March 2010, he was classified as . He attended School (“ ”) as of 2006 and was graduated with a Regents diploma in June 2010 (Department Ex. 16 [Regents Diploma dated June 28, 2010]).

THE PARENT’S HEARING REQUEST

The parent, in her hearing request dated June 20, asserted that “rush[ed]” . She questioned the School‟s awarding of school credits to and his alleged “ ” from to grades; complained that the School did not provide him with assistance to “deal with his ;” and challenged the School‟s failures to prepare a transition plan and a for him, to prepare goals to address his , and to prepare him for . The parent sought “the time [ ] lost in his education and social development” and “the help that he miss[ed], and the guidance that he will need in the future, to succeed

in ” (IHO Ex. I).^[2]

PROCEDURAL HISTORY

The hearing commenced on July 19 (trans. 1-16). The parent appeared; the representative of the Department of Education did not appear.^[3] The transcript consists of the hearing officer summarizing information the parent relayed to her in off-the-record discussions (trans. 4-14). The hearing officer issued a two page written decision dated

4 Hearing Officer‟s Findings of Fact and Decision July 21 denying the parent‟s request for compensatory education on the grounds that the Department of Education had provided with a free appropriate public education and that had graduated from school.

The parent, appearing pro se, appealed the hearing officer‟s decision to the State Education Department. The State Review Officer issued a decision on October 29 (Appeal No. 10-086). The State Review officer sustained the parent‟s appeal, annulled the hearing officer‟s decision, and remanded the proceeding. The State Review Officer found that he was “unable to meaningfully review the hearing record due to inadequacies in the hearing record and because the impartial hearing officer‟s decision was not written in accordance with State regulations” (id. at p. 7). The decision specified the deficiencies in the hearing record and in the hearing officer‟s decision (id. at pp. 7-8).

Upon remand, the initial hearing officer in the case recused herself. The second hearing officer appointed recused herself. The third hearing officer conducted two days of hearing on December 1 and December 14. At the conclusion of the second hearing date, the third hearing officer recused herself (trans. 377-380). On December 15, I was appointed to hear this matter.^[4] After review of the record as it existed at the time, I scheduled the hearing to continue on January 3, 2010 (the first school day after winter break).

On January 3, the parent and the Department of Education representative appeared. and his were also present. The parent testified and was crossexamined by the Department of Education representative. The parent called to testify. It became clear to me as the hearing officer that would be unable to participate in the hearing without the benefit of an . The hearing was continued to January 10 in order to permit the Impartial Hearing Office to obtain an . The provided by the Impartial Hearing Office on January 10 enabled to participate in the hearing (trans. 467-469).

5 Hearing Officer‟s Findings of Fact and Decision The record closed on January 19 upon the receipt by the hearing officer of the transcript of the proceedings held on January 10.^[5] On December 1, prior to my appointment, the compliance date for the submission of the final written decision was extended to January 14 (trans. 23). On January 10, I extended the compliance date to January 28 in order to permit the preparation, and my review and consideration, of the transcript of the final day of the hearing.

THE SCHOOL DISTRICT’S CASE

,a education , “IEP ” and education at School, testified that had been a student at the School. Ms. taught during summer 2007 “when he was in and District 75” (trans. 134). entered in 2006 as a District 75 student. In 2008, he was to the roster, accumulated sufficient credits for graduation, and graduated in June 2010 (trans. 140141, 159). appeared to move from grade to grade because he was missing one social studies credit required to move out of grade. He had all the required credits up to grade except for that one social studies credit—when he obtained the final social studies credit, he moved to grade (trans. 141-143, 149-151).

“performed well” in Ms. class, which was a review for Regents algebra (trans. 135). The class was taught by Ms. and another .

was able to learn the material, complete his work, and pass the Regents examination

(trans. 135). also participated in an school tutoring program when he needed additional help and received related services set forth on his IEP ( , , )

(trans. 136-137). He received a Related Services Authorization for (trans. 137).

did not have any “ ” in Ms. class except for occasionally not wanting to do work and pretending that his was not working—this issue was addressed by Ms. or the other talking to . would resume his work (trans. 138-139). also made sure that had his when he moved from class to class (trans. 162). Sometimes, did become upset, and Ms.

would leave the classroom with him to talk with him while he (trans. 163-165).

6 Hearing Officer‟s Findings of Fact and Decision

, the of School, testified that entered as an “ candidate from District 75” and subsequently graduated with a Regents diploma in June 2010 (trans. 78, 82). At , received all the services recommended in his IEP and participated in after school programs for tutoring, Regents prep and credit recovery (trans. 78-79). had a one-to-one assigned to him until the parent asked to have this service terminated (trans. 79). “seemed to function quite well” at the School (trans. 122).

The CSE convened on June 19, 2008, and prepared an IEP for the 2008-2009 school year recommending that attend a class with a student/ ratio, receive the services of (one 30 minute individual session per week and one 30 minute group session per week), a full-time , (two 30 minute individual sessions per week) and hearing education services (two 30 minute sessions per week) and have a (Department Ex. 14). Both the parent and attended this meeting (Department Ex. 14 at p. 2). The IEP specifies that is classified as and that his is being changed from an to a “ class” (Department Ex. 14 at pp. 2, 12). The IEP notes that “has significant , , perseverative and strong of that at times lead into , oppositional . According to , he is easily , and . He has and does not complete assignments” (Department Ex. 14 at p. 4). The IEP contains a transition plan which includes pursuing a college degree and states that was expected to graduate in 2010 with a Regents diploma (Department Ex. 14 at p. 14).

On June 24, 2009, the CSE convened and created an IEP for the 2009-2010 school year (Department Ex. 15). The CSE recommended that continue to be classified with an and attend a class in a school with services, including the . The parent attended this meeting. The IEP noted that contributed to class discussions and functioned well during whole class instruction and independent work but did not work well in small groups (Department Ex. 15 at. 3). The IEP contains a transition plan which includes an “outcome” for to apply to the School of , and and states that was expected to graduate in June 2010 with a Regents diploma (Department Ex. 15 at p. 13).

7 Hearing Officer‟s Findings of Fact and Decision

On August 31, 2009, had an audiological re-evaluation (Department Ex. 1). The evaluation noted that was using a hearing in his and was planning to have a . He used an in school. In addition to his school-based related services, had twice weekly at the for and in . He had “minimal with [the] examiner in the , one to one test situation when he had full use of visual cues” and his was “easily intelligible” (Department Ex. 1 at p. 1). had profound in his right and moderately server to in his . The examining recommended that continue to use his and (in school) and continue with and support services (Department Ex. 1 at p. 2).

, a at School, testified that she oversaw education and, during the 2009-2010 school year, she was the for (trans. 217). Ms. provided individual and small group to and “whenever he felt like he needed to talk, he would come and see” her (trans. 235-236). She “advocated for him to come to our program. He was formerly in District 75, and [she] requested that he be brought into” the program (trans. 217). Ms. requested that make this move because she “felt we could service him better than how he was being serviced in District 75” (trans. 217). She stated that moved to in September 2008 as a school junior. transcript “might have said grade, at the time . . . . only because he was short one global [history] credit” (trans. 218-219). both made up the class and passed the global history Regents” in 2008 (trans. 220).

Ms. testified that had at which were addressed with the -to- . She noted that “was much happier once he became part of School . . . The times that was mostly is when he would come into school from what was going on in his of school” (trans. 226). She had “many discussions” with the parent about these issues (trans. 227). When pressed at the hearing by the parent to admit that was with his classes, Ms. stated that the “only class that wasn‟t happy with was . . . class, because he said that [the parent] wanted him to take it and he did not want to” (trans. 265).

used his —he “always had it in school” and was permitted to take it on the weekends (trans. 257-258).

8 Hearing Officer‟s Findings of Fact and Decision

Ms. also recommended a weekend for . The program consisted of free classes for school students to work on art or develop a portfolio. was accepted into the program and attended it for approximately one year (trans. 263).

In February 2010, the parent requested an evaluation of . CSE personnel conducted a social history update on March 9, during which the parent stated that was not ready to graduate from school and expressed her concerns about his academic performance and program (Department Ex. 12). The parent also stated that has “ [ ] ” but did not want him classified with ; she wished him classified as . A “ progress report” was also prepared (Department Ex. 13). counselor reported that was “friendly, polite and a good conversationalist;” but he “looses focus easily” and “must be redirected back to task regularly.”

The CSE convened on March 23, 2010, and created a new IEP for , changing his classification from to hearing 6 and his at the parent‟s request (Department Ex. 2 at pp. 1-2; trans. 79). The CSE continued to recommend that he attend a education class in a school. Mr. testified that at the meeting, the parent stated that was not ready to go to (trans. 80). Mr. explained to the parent that was years old and about to graduate with a Regents diploma (trans. 80). He described how obtained some school credits by recovering credits for previously failed courses in English and social studies by finishing class work and passing Regents examinations and was able to move from to grades by obtaining needed credits (trans. 81, 84-86, 91, 93, 101-102). did not skip grade—he finally accumulated sufficient credits for courses he had actually taken to be “put” in 12th grade “where he belonged” (trans. 86).

The IEP notes that was and did not participate in class and in social situations. The IEP also states that “often contributes to classroom discussions and likes to debate points. He functions well during whole class and independent instruction” (Department Ex. 2 at p. 5). He attained the following scores on testing: WIAT (in April 2008) instructional grade levels in word reading, >12.9, reading

6 The Department of Education correctly points out that there is no evidence that from or has been diagnosed by a with (trans. 48). In any event, the parent did not raise classification as an issue in her hearing request. Therefore, classification will not be addressed in this decision.

9 Hearing Officer‟s Findings of Fact and Decision comprehension, 8.6, and written expression, 10.4, numerical operations, 6.8 and math reasoning, 7.5. On Regents examinations, he scored 77 on English, 70 on Global History (after what appeared to be the fourth try), 65 on American History, 65 on Math A and 65 on Living Environment (Department Ex. 3 at pp. 3-4).

The IEP includes goals for communication skills, reading, math and . The CSE recommended an for , testing accommodations and the related services of (one individual 30 minute session per week and one group 30 minute session per week), hearing education services (two 30 minute group sessions per week) and (two 30 minute individual sessions per week)(Department Ex. 3 at pp. 14-16).

The IEP does not include a . It does contain a transition plan that anticipates that will graduate with a Regents diploma in June 2010 (Department Ex. 3 at p. 18). The listed “transition services” include researching and applying to and learning to manage “his at by visiting the office of disabilities and practice problem solving with his .”

transcript shows that he accumulated credits throughout his years at , attaining grades in the 60‟s and 70‟s, with occasional grades in the 80‟s and in the 50‟s, for a cumulative average of 69.18 (Department Exs. 5, 6). When he graduated, he had earned 49.58 credits (trans. 221).

Ms. explained that and his worked with the VESID representative at and with (trans. 145).

Ms. opined that when left “he was ready to start level work with some remedial help because he . . . had a weakness in math” (trans. 221). She noted that of had accepted based, at least in part, on his participation in its summer program and an interview with him (trans. 222).

THE PARENT’S CASE

The parent objected to having a class on the of because “more ” were taught on that and this caused to become “ ” (trans. 27-28). She also objected to moving from grade to grade in July 2009, the manner in which the School “record[ed] credit” for , and way the School “rush[ed]” to graduate him (trans. 28-29). The parent complained about the manner in which School handled application process, including not permitting

10 Hearing Officer‟s Findings of Fact and Decision to use his Department of Education in an after-school SAT/ACT prep course (trans. 30-32). The parent asserted that was “not doing well” in a for -ofstudents and was “failing all the classes” (trans. 42, 60-62).

During the 2002-2003 school year, was classified with and recommended to attend general education with “special education support service7 from a school (D. 75) 5-10 periods per week direct services/5-10 periods per week indirect services in a special education classroom” with the additional support of a (Parent‟s Ex. J). The IEP recommending this program describes as a “cognitively very capable who has the potential to work at age/grade appropriate levels academically. However, he does have / that impede his full participation in general education” (Parent‟s Ex. J at p. 19). This classification and these services appear to have continued through the 2005-2006 school year (Parent‟s Ex. L). A was in place during this period of time (Parent‟s Exs. J, L).

During the 2006-2007 and 2007-2008 school years, attended School. He transferred to during the 2007-2008 school year (Parent‟s Exs. P, Q).

During the 2007-2008 school year, continued to be classified with and recommended to attend a “ class in a school mainstreaming into general education with education support, 5 periods direct instruction and 5 periods indirect instruction per week” and receive the related services of , hearing education services, and a (Parent‟s Ex. O). A plan was included in the IEP for this school year (Parent‟s Ex. O at p. 19).

The parent contended that IQ increased and he developed social skills when he attended a general education program in school (trans. 408-409). When he enrolled in school “as an student, he had[d] many, many, many things from the beginning;” in particular, he did not “feel part of the school” (trans. 409). He had his “tutorial” on the of the school where the “ ” children were (trans. 410). The parent stated that school did not understand needs and he was not “welcome” at the school (trans. 412). For a three month period during the 2008-2009 school year, was not working and he “ ” (trans. 412-413). He was

Also known as .

11 Hearing Officer‟s Findings of Fact and Decision unable to use the for after school programs but was able to use it for a weekend enrichment program (trans. 425). She objected to moving to a “smaller setting” because she believed that the students in such a setting were “educationally behind” (trans. 413, 417).

The parent asserted that did not attend credit recovery, did not hand in homework and did not “do well because he was ” (trans. 418-419, 426). As a result, she did not understand how he passed his classes (trans. 426). did not like his classes and did not like to attend school (trans. 434-435).

When she attended the June 24, 2009 CSE meeting, school personnel informed her that had improved but a transition plan was not discussed (trans. 420-421).

When the parent was informed that would in June 2010, she questioned whether he had received the required credits (trans. 421-422). The parent stated that during the last marking period of the 2009-2010 school year, she received emails from the school indicating that was failing gym, Spanish and math and that he was absent from class and did not hand in homework (trans. 437; Parent‟s Ex. NN).

The parent offered in evidence, and relied heavily in her testimony, on a psychoeducational assessment of conducted on May 10, 2007 by a Department of Education school (Parent‟s Ex. C). At that time, was a grade student with the classification of reportedly attending an class in a District 75 school and mainstreamed into general education with the support of a education and a (Department Ex. C at pp. 1, 3). attained a score of 112 (in the average range) on the . Previous testing revealed the following: in a 1996 administration of the WIPPSI-R, found to be functioning overall in the Borderline range with a Verbal IQ in the deficient range and a Performance IQ in the low average range; in a 1999 administration of the Stanford-Binet, attained a composite score of 91, with a verbal reasoning score of 78, an abstract/visual reasoning score of 100, a quantitative reasoning score of 80 and a short-term memory score of 112 (Parent Ex. F at p. 3).

12 Hearing Officer‟s Findings of Fact and Decision The report notes that “background factors are reportedly significant for previously diagnosed ( ), ( ); and ” (Parent‟s Ex. C at p. 3). Reports and testing revealed to the examiner that:

Cognitive potential was measured to fall within the -Average range of intelligence, reasoning, and concrete problem-solving ability. Previous testing indicates intellectual potential to be at least within the average, and sub-score variability to be mostly due to and inattention limiting optimal performance.

Academic achievement is reported variable as well with most domains approaching grade-appropriate levels, and optimal productivity limited by and social-emotional . Current scores obtained on the K-TEA concur with school reports and cognitive potential (scores ranging from below grade appropriate levels to above grade), further suggesting good learning potential and academic productivity limited slightly perhaps by - ,

, and ; and mainly curtailed by emotional factors and to manage in the classroom” (Parent‟s Ex. C at p. 5).

The recommended that to address his “productivity issues” and to learn in a general education setting, must be challenged by a standardized general education curriculum, taught through multi-sensory methods; delivered with clearly set limits and structure, and a well defined plan and with emphasis on direct instruction, concrete drill, repetition, and models, with further emphasis on visual demonstrations and visual clues, delivered with individualized attention in an increased to student ratio environment; supported by preferential seating and an in the classroom, as well as by , , Hearing Education and , as related services (Parent‟s Ex.

C at p. 6).

In April 2008, a Department of Education school prepared an educational report concerning (Parent‟s Ex. Q). At this time, was a “ grade inclusion student” at enrolled in general education and receiving (Parent‟s Ex. Q at p. 1). At the time of the report, had obtained school credits and had a 67 average. According to his , he was “easily , , and ” and had “trouble concentrating and d[i]d not complete class assignments even with assistance from his to- ” (id). He had been “imitated in class and lashed out at other students” and was

13 Hearing Officer‟s Findings of Fact and Decision

“often unhappy withdrawn, and „out of touch with reality‟” (id). The concluded that “requires a smaller school, a smaller more structured class setting to focus on delayed academics and social development, and an opportunity where he will feel part of a school environment” (Parent‟s Ex. Q at p. 4).

took the SATs in January 2010 (Parent‟s Ex. Z). He applied for admission to of for September 2010 (Parent‟s Ex. W).

In January 2010, the parent requested a “new total evaluation” of because she had “many concern[s]” and wanted to change his classification because he was “hard [of] hearing” (Parent‟s Ex. AA). In February 2010, she requested a “a new IEP meeting” (Parent‟s Ex. BB). In March, through an organization, the parent requested with respect to special education services and transition services (Parent‟s Ex. CC). The parent received a letter dated April 27 indicating that was in of not on time because he had failed “ ” and “ ” and that he “still ha[d] an opportunity to make up the work he missed and pass the classes” (Parent‟s Ex. GG). In May 2010, the parent requested another CSE meeting (Parent‟s Ex. E).

The parent subpoenaed , the of administration at , to testify8 (trans. 178179). Mr. denied that he had ever been the for special education and indicated that he “only kn[e]w one thing about” —which was that passed his classes and Regents and graduated. He was the individual who entered the graduation code into the Department computer system (trans. 178; Department Ex. 16 [Regents dated June 28, 2010]). Mr. believed that he had once attended a Team meeting regarding but had no recollection of the meeting (trans. 181-182, 195196).

The parent also subpoenaed , the at School, to testify (trans. 361-362). Ms. recalled that she might have introduced the parent to the of the School. She did not recall attending a meeting with the parent (trans. 363).

On July 22, 2010, was evaluated by a “VESID Panel ” (Parent‟s Ex. II). The noted that “has been diagnosed with „ and „ ” (id.

8 The parent also subpoenaed , the of . did not appear at the hearing. The Department of Education representative stated that was no longer the of ; however, she continued to be employed by the Department of Education (trans. 394-395). In the absence of a motion to quash the subpoena, should have appeared at the hearing in response to the parent‟s subpoena.

14 Hearing Officer‟s Findings of Fact and Decision at p. 1). The observed that spoke in a “coherent and relevant manner” and that his “affect was somewhat flat with occasional smiling” (id). On testing, attained a full scale I.Q score of 85, in the low average range, with subtest scores ranging from the borderline to average range (Parent‟s Ex. II at p. 2). Numerical reasoning skills and speed and accuracy in learning meaningless symbols fell within the borderline range. Academic skills tested at the above grade level on word reading, 8.5 grade level on sentence comprehension, 12.2 grade level on spelling and 6.9 grade level on math computation (Parent‟s Ex. II at p. 3). On vocational testing, stated that he would like to be a video game designer and wants to go to school to develop his computer skills.

Projective testing revealed that from people and is “ when he has to relate to people in general” and “has managing his when under levels of ” (Parent‟s Ex. II at p. 4). tested at the moderately low level. The recommended that “has the intellectual capacity and the academic skills to pursue a college level of study” (Parent‟s Ex. II at p. 6). He also noted that “needs to have more socialization experiences with others and to have social skills training” and “it is also clinically imperative that he continue with his individual but the needs to focus on [his] ability to express his needs and ” in order to “manage his much better and of ” (id).

The parent stated that attended but did not do his homework (trans. 440).

testified that would avoid doing his homework by going on the computer—he was “always ” and never actually did his work at (trans. 471). He to let his him and would up until he was too to work (trans. 472).

attended a meeting with her and during which program was changed from general education to a small class for “students that had ” (trans. 474). reported that at the meeting, Mr. stated that “constantly had . . . ” and was not “socially well with the students” and, as a result, he was “not good for the school environment” and would be “helped” in a class of students (trans. 476-477).

15 Hearing Officer‟s Findings of Fact and Decision testified that during the 2008-2009 school year when he attended the small class he “was not happy with the small class, because in the small class [he] felt a bit more restricted than the larger class” and “the subjects were a bit too easy than those in the large classes” (trans. 483). He “kind of felt ” because he did not feel like he “belonged” at ” and “most of the students . . . weren‟t motivated and didn‟t care about work” (trans. 484, 489).

did not like to go to the of for his “tutorial” because “if the regular saw that [he] was in , they‟d think [he] would be ” (trans. 485).

stated that he went to credit recovery only two or three days. He did not continue to attend because he thought that he did not need credit recovery (trans. 490). In credit recovery, he did some of the class work but none of the homework (trans. 490491).

During the 2009-2010 school year, was absent “sometimes” because he was “ ” and “too to go to school” (trans. 493). He did not always do his homework because he “felt” that he was not able to do it (trans. 533). asked his for help “only a few times” (trans. 536). He reported that he did not like gym or English (trans. 499, 501, 505). He had “ getting to” math on time and “missed some classes” but talked to the about the homework (trans. 501-502, 507). Chemistry was difficult for him but he attended class and did every lab report but had a “ ” with the tests (trans. 503-504).

He was unable to use the for after school but was able to use it at the art class he attended on (trans. 493, 513). stated that school personnel did not help him socialize and “didn‟t really help [him] at all” (trans. 520-521).

stated that he was not ready for and was “academically ” (trans. 526). He thought that “would be like school . . . like if [he] didn‟t do work, it wouldn‟t be a . But then after [he] got , [he] realized it‟s going to be a lot harder, much more harder than school” (trans. 526-527).

FINDINGS OF FACT AND DECISION

A. Statute of Limitations

A party must request an impartial hearing within two years of when the party “knew or should have known about the alleged action that forms the basis of the

16 Hearing Officer‟s Findings of Fact and Decision complaint.” 20 U.S.C. §1415(f)(3)(C). Since the parent requested the hearing on June 29,^[9] this decision addresses claims relating to the 2008-2009 and 2009-2010 school years. While the parent might be seeking relief for alleged denials of special education services for the entire time attended , only claims arising after June 29, 2008 are relevant to this proceeding.

B. Compensatory Education

The central purpose of the IDEA is to ensure that students with disabilities have available to them a free appropriate public education. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 126 S.Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). A free appropriate public education includes special 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). The School District bears the burden of demonstrating the appropriateness of the program recommended by its CSE.

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 special 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, Appeal No. 07-007.

A school district offers a student a free appropriate public education “by providing personalized instruction with sufficient support services to permit the child to 17 Hearing Officer‟s Findings of Fact and Decision benefit educationally from that instruction.” Rowley, 458 U.S. at 203. A recommended special educational program must be reasonably calculated to allow the child to receive an educational benefit and be the least restrictive environment for the child. 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)]. 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 statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted]).

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 special education services.” Application of a Child with a Disability, Appeal No. 07-010. The school district then must properly implement the IEP. 8 N.Y.C.R.R. §200.4(e)(7). In this proceeding, the Department was unable to establish that it implemented the IEPs prepared for for the 2008-2009 and 2009-2010 school years. While school district personnel credibly testified generally with respect to the educational program and some of the services provided to , the record does not demonstrate that had available to him the range of supports, services and accommodations set forth in these IEPs. In particular, the Department did not establish: (1) how the functioned to address special education needs (specifically, how his , and disorganization would be addressed by

18 Hearing Officer‟s Findings of Fact and Decision the classroom );^[10] (2) the role of the in addressing identified special educational needs; (3) how was delivered and functioned to address his social and al needs; and (4) whether and how hearing education services were provided to . As a result, since the Department has the burden to establish that it provided a free appropriate public education to , and failed to demonstrate that it implemented his IEPs for the 2008-2009 and 2009-2010 school years, I find that the Department failed to provide a free appropriate public education to for the 2008-2009 and 2009-2010 school years.^[11]

The inquiry does not end here. The parent is claiming forms of compensatory relief. Compensatory education, which is the continuation of instruction to a student after he is not longer eligible for instruction because of age or graduation, may be awarded 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, e.g., Application of the Board of Education of the City School District of the City of Buffalo, Appeal No. 06-074; Application of a Child with a Disability, Appeal No. 06-066. This is a very strict standard that is not met by the parent in the instant proceeding.

Even though the Department of Education failed to establish that it provided a free appropriate public education for the two school years that are the subjects of this decision, it did establish that it provided with needed special education and services from competent and who worked with and his throughout his school years. The record establishes that was provided with special education classes and services throughout the 2008-2009 and 2009-2010 school years—there were

19 Hearing Officer‟s Findings of Fact and Decision no gaps in his education. These services enabled to participate in the general education curriculum, to learn the material, and to pass Regents examinations. occasional and class do not count as a “denial” or “ ” from education. , through his own hard work and the support of and school , took all the classes required for graduation, accumulated required credits, passed Regents examinations and graduated school with a Regents diploma.

The parent‟s allegations that was “rushed” to graduation are unconvincing. IEPs clearly set forth the goal of graduation with a Regents diploma. , his and school were on notice of this goal during years at , and accomplished this goal. There was no “rush” for to and no indication that school were in any way out of school—only diligent work on part with the support of his as moved towards the stated goal of graduation from school with a Regents diploma. He attended classes, completed course work, made up course work where necessary and passed from grade to grade. He sat for Regents examinations until he passed all the examinations required for a Regents diploma. spoke in a straightforward manner about his both at and and acknowledged the differences (faced by many incoming students) between school and . Since the Department of Education provided substantial special education and services to , and these services were sufficient to enable him to graduate from school with a Regents diploma, is not entitled to compensatory education.

Therefore, for all the above reasons:

The parent‟s request for compensatory education for is denied. Dated: January 25, 2011

Corrected Date: March 2, 2011 (Evidence added on page 23)

__________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

20 Hearing Officer‟s Findings of Fact and Decision

JMB:gc

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.

21 Hearing Officer‟s Findings of Fact and Decision

DOCUMENTATION ENTERED INTO RECORD

PARENT DESCRIPTION

A Letter dated 4/19/10, 1 page B Report Card Various dates, 1 page C Evaluation dated 5/10/07, 8 pages D Letter to Ms. from parent, dated 12-15-09, 2 pages E Letter from , dated 5-10-10, 7 pages F Psychological Test Report, dated 3-99, 5 pages G IEP dated 5-20-02, 13 pages H Include Me Information, undated, 20 pages I Letter from , dated 7-20-99, 1 page J IEP dated 6-24-02 , 21 pages K Eval, dated 1-27-02 , 5 pages L IEP dated 11-21-05, 13 pages M Psychological Update, dated 11-22-02, 3 pages N Psychological Assessment, dated 5-10-07, 6 pages O IEP dated 7-20-07, 19 pages P Report Cards from 2006-2010 , 30 pages Q Confidential Educational Report, dated 4-30-08, 4 pages R Letter from , dated 7-9-06, 2 pages S Letter from , dated 10-10-09, 1 page T School Credit Recovery Info, 2009-2010, 7 pages U Finding Money for Newsletter , 11/10/09, 1 page W Letter from Postal, dated 2-23-10, 2 pages X Regents Test Exam Schedule for January 2010, 1 page Y Email from , 12/3/09, 1 page Z SAT Scores , 2/9/10, 1 page AA Letter from Parent, 2/3/10 , 2 pages BB Letter from Parent, 2/3/10 , 2 pages CC Letter from , 3/3/10, 1 page

22 Hearing Officer‟s Findings of Fact and Decision

DD IEP Member Excuse Request, 3/9/10 EE Letter from , 4/19/10, 2 pages FF Letter from , 4/13/10 , 1 page GG Letter from , 4/27/10 , 1 page HH Letter from , 7/13/10 , 1 page II Evaluation, 7/22/10 , 6 pages JJ Letter from , 4/15/10 ,1 page KK Letter from , 8/9/10, 1 page LL Getting Ready for , undated, 1 page MM Progress Report, 1/18/10, 3 pages

DEPARTMENT OF EDUCATION DESCRIPTION

1 Audiological Eval, 8/31/09, 2 pages 2 Resolution Agreement, 7/8/10, 2 pages 3 IEP dated March 23rd, 2010, 18, pages 5 Student Transcript dated June 2010 , 2 pages 6 Student Permanent Record dated June 2010 11 Eval, 8/31/09 , 1 page 12 Social History Update, 3/9/10 , 2 pages 13 Progress Report, 3/1/10, 1 page

IMPARTIAL HEARING OFFICER DESCRIPTION

I. Hearing Request, 6/20/10, 3 pages

Footnotes

[1] The family uses the name . This opinion will follow the family‟s practice.

[2] On appeal to the State Education Department, the parent appears to have requested very specific types of relief (Appeal No. 10-086 at p. 3). This opinion will address the claims set forth in the hearing request before the hearing officer.

[3] The State Review Officer noted that the record did not include the reason the Department did not appear at the July 19 hearing (Appeal No. 10-086 at p. 7). The Department of Education representative subsequently provided an explanation (trans. 397-398).

[4] The State Review Officer also ordered that the initial hearing officer in this case to reconvene the impartial hearing, receive additional testimony and/or evidence, and issue her new decision within 30 days of her receipt of his decision. I was appointed to hear this matter after the expiration of that 30 day period. I have endeavored to complete the hearing in an expeditious manner even with the delays caused by the winter break during which the New York City public schools were closed and by the need to obtain an FM unit.

[5] Transcripts are generally available within one week of the hearing date. In this instance, the Martin Luther King, Jr. holiday intervened, causing a slight delay in the delivery of the transcript.

[9] The hearing request is dated June 20. The records of the Impartial Hearing Office and the Impartial Hearing Reporting System indicate that the request was received on June 29.

[10] There was some testimony from Ms. with respect to these issues. However, this testimony related to the summer of 2007 when was a “District 75 student;” there was no testimony as to techniques used by classroom for the 2008-2009 and 2009-2010 school years.

[11] The Department also failed to accord and his important procedural rights. The Department appears not to have complied with Section 200.4(c)(4) of the New York State Regulations, which requires that: A school district is not required to conduct a reevaluation of a student before the termination of a student‟s eligibility due to graduation with a local high school or Regents diploma . . . but is required to provide such student with a summary of the student‟s academic achievement and functional performance, which shall include recommendations on how to assist the student in meeting his or her postsecondary goals (emphasis added). Since I have made a FAPE determination on substantive grounds, I need not address when this procedural violation would also constitute a denial of FAPE.