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: November 4, 2011

November 10, 2011

Actual Record Closed Date: November 28, 2011

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 4, 2011

Attorney — Student

Attorney — Student

Parents

Interpreter — Student

Student

Attorney — Student

Colleague of Attorney's Record — Student

(Via Telephone) — Student

DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 10, 2011

Attorney — Student

Attorney — Student

Parents

Student

Interpreter — Student

DOE Representative — DOE

INTRODUCTION

On July 26, 2011, the parent, through her attorney, filed a request for an impartial hearing on behalf of her daughter, ., dated July 25, 20ll, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. Sec. 1415(f)(1).^[1] The hearing was held on November 4, 2011, and November 10, 2011. Lists of the individuals who appeared and the documents entered into evidence are included in the decision. A language interpreter was present on each hearing date.^[2] Extensions of the Time Lines

On October 5, 2011, the parent requested an extension of the October 11, 2011, compliance date for a thirty day period due to the unavailability of witnesses. I granted the extension to November 10, 2011. On November 4, 2011, the parties jointly requested an extension of the time lines due to the extensive testimony and issues. I granted a thirty day extension to December 10, 20113, in order to allow the parties to fully present their cases and exercise their due process rights (Tr. 136, 186-188). The Parent's Position

The parent requested this impartial hearing because she alleges that the New York City Department of Education (“DOE”) denied .'s rights to a free appropriate public education (“FAPE”) for the 2009-2010, 2010-2011, and 2011-2012 school years. The grounds for the parent's allegations include the failure to develop an appropriate Individualized Education Program (“IEP”) for the 2009-2010 school year, the failure to implement the IEP for the 2009-2010 school year, the failure to develop an IEP for the 2010-2011 school year, and the failure to implement an appropriate educational program for the 2011-2012 school year (Ex. A). .'s classification as a student with (“ ”) is not in dispute (Tr. 15).

3 The compliance date became December 12, 2011, since December 10, 2011, fell on a Saturday.

The parent is seeking compensatory educational services for the 2009-2010 and 2010-2011 school years and transportation to and from these services.^[4] For the 20112012 school year, the parent is seeking an appropriate placement, compliant with her daughter's IEP, including instruction in , make up and mandated in her IEPs, but not provided, an evaluation, appropriate transition services, and any further relief the impartial hearing officer deemed appropriate (Ex. R-10, Tr. 16). The Department of Education's Position

As stated by the Department of Education (“DOE”) representative at the impartial hearing, the DOE supports the student's placement for the 2009-2010 and 2010-2011 school years “due to the student's intense need for instruction in the native language due to her and impaired skills. At the time, the student resided in the of and this program met her needs as far as her language needs and provided supports to the student that were not reflected on the IEP, but supported her in the best possible setting.” (Tr. 17).

The DOE claims that it provided the student with Related Services Authorization (“RSA”) forms to meet the mandates on the student's IEPs.

BACKGROUND

. is a old student who was born in the . Her first language is . At the age of , she was in a that left her and she (“ The parent testified that her daughter had been an excellent student and subsequent to the her ability to comprehend ...wasn't the same” (Tr. 27-28). As a result of her injuries, . still has on the of her body (Ex. A-1), affecting her ability to take notes in class (Ex. A-2, Tr. 26-27).

. began to attend school at , in (“ ”) in the spring of 2008, and was in the grade (Tr. 29). The mother testified that her daughter “didn't ” and was “ ” (Tr. 2930). She stated that she tried to find an appropriate school and that the principal of told her that she had to wait for one year after entering the country to apply for a school to meet her daughter's needs (Tr. 30). The mother requested an initial evaluation at the end of the 2008-2009 school year when . was in a grade general education English class without an IEP. The parent requested an initial evaluation because her daughter needed “special education services to address academic, and .” (Ex. A-1).

In a report dated July 24, 2009, the bilingual noted that the student “is a

-speaking bilingual teenager who is dominant in and who did not demonstrate any English speaking skills at this present evaluation.” (Ex. B-3).^[5] The evaluator also observed that . had in integrating movements with abilities, noting that “the nature of the difficulties requires that the student receive extra time to complete [her] class work and extra time on all tests.” (Ex. B-4).

The evaluator found that . demonstrated “ abilities in relation to her current age.” (Ex. B-7). In reading comprehension her scores reflected a . She demonstrated an average ability in word reading skills on a test administered in . Her math calculation skills were also far below her , with scores reflecting a (Ex. B-8). As a result of his findings, the evaluator noted that the student “can benefit from an academic environment that offers a small student population with special education instruction.” (Ex. B-7).

The Committee on Special Education (“CSE”) developed an IEP for . on August 10, 2009. Her classification is noted as and she was recommended for a special class in a community school, with a student to teacher ratio of , and the related services of once a week for thirty minutes per session and therapy twice a week for thirty minutes per session (Ex. D). . was recommended to receive and the related services were to be provided in (Ex. D-1, D-12). The IEP included test results from the evaluation, noting and word reading at beyond a level, in a test, Bateria-III (Ex. D-3). Her other reported scores included: reading comprehension – grades through reading fluency – through ; and computation- through She was to receive preferential seating, extra time to finish activities and tests, and was to be taught using a (Ex. D).

The CSE meeting did include an individual who translated what was presented to the mother in English. (Tr. 65). The parent received a copy of the IEP in English only (Tr. 32,79).

The parties stipulated that for the 2009-2010 school year, the IEP developed by the CSE on August 10, 2009, was in effect and during that school year the student was placed in a general education classroom and all of her classes exceeded the ratio on the IEP except chemistry (Tr. 12).

In 2009-2010, . was in the grade at , where “the pace and the level was too high” for her, even though the instruction was in and English (Tr. 34; see Tr. 37, 52). . was uncomfortable asking questions in class because it would delay the teacher and other students. (Tr. 52, 152). The class instruction was in , but the materials were in English. (Tr. 39, 150). . received no specialized instruction (Tr. 41). The annual goals never were addressed in the classroom (Tr. 43). . received “ ” during this school year (Tr. 47). She did not receive any of her related services (Tr. 66-67). There were about 30 students and one teacher in those classes (Tr. 151). “English” class and geometry were taught in English only (Tr. 151). . testified that during the 2009-2010 school year “sometimes” she could follow the material in her classes (Tr. 151-153). In English she followed “a little bit”, but not in geometry because she did not understand the subject (Tr. 151-152). . recalled meeting with Ms. to talk about how she was doing in school or about whether anything was bothering her at home. (Tr. 175-176).

The parties stipulated that for the 2010-2011 school year, no IEP was developed for the student, and the 2009-2010 IEP was in effect (Tr. 13). The parties further stipulated that . was placed in a general education classroom and all classes exceeded the student to teacher ratio except for chemistry (Tr. 13).

For the 2010-2011 school year, . had to repeat the grade and was in the same educational setting (Tr. 45, 47-48, 149-150). Most of her classes had thirty or more students. (Tr. 154). The classes were in English and in (Tr. 154-155). She had “English” classes provided in English (Tr. 155). . did not receive her related services of . Nor did she receive as required by her IEP (Ex. J; Tr. 4647). . acknowledged that she was days and as noted on her 2010-2011 report card (Ex. L). She explained that she had medical appointments to keep.

. passed some of her : living environment, and algebra (Ex. F; Tr. 157160). . remembered studying for these exams during the summer in smaller classes. She was able to follow the material “[b]ecause they had more time for me to understand what we were going to do.” (Tr. 162). The classes were two and a half hours long. She took algebra and living environment (Tr. 162).

On June 24, 2011, the CSE developed an IEP for ., classified her as a student with and recommended in (Ex. I). Her mandated related services all are to be provided in and include: once a week for thirty minutes per session; therapy, twice a week for thirty minutes per session; and therapy twice a week for 45 minutes per session. (Ex. I-8).

The IEP states that . “continues to present ...with a delays.” (Ex. I-1). She was noted to be dominant and “exhibited a with her and in (Ex. I-1). It was noted that she should receive therapy in (Ex. I-1, Ex. I-12). A January 4, 2011, Evaluation recommended , but was unclear about the frequency or duration of the services (Ex. O).

The results of the May 14, 2011, Evaluation were incorporated into the IEP (Ex. N was administered the ). Her full scale IQ range ( ) of intellectual ability. Her overall verbal ability range ( ). Her Performance Scale IQ fell within the range ( ). “A slightly higher potential was suggested.” (Ex. I-2, Ex. N-3). She demonstrated a strong ability in word reading in but her comprehension is as is her ability to write or organize her thoughts in writing. Based on the results of the (“ ”), 's overall reading was found to be comparable to that of a grade student. (Ex. I-2). “Her standard score is within the grade.” (Ex. N-8). The student's overall mathematics ability in as measured by , is comparable to that of a grade student (Ex. N-8). In English or her calculation skills are stronger than her abilities in applied problems.(Ex. N-8). On the , her Broad Math results revealed functioning at the grade level (Ex. -8).

The evaluation also noted: “Projective data depicted a picture of a ....and suggested and .” (Ex. N). “ provided with constancy and in a well defined manner is essential to improve [ 's] as well as her adaptability to school functioning.” (Ex. N-8). The IEP noted these issues (Ex. I-3).

.'s academic management needs are noted to include: “ ”; “support in her native language, a ; with her teacher; ; and reading and re-reading instructions aloud (Ex. I-2). The student received testing accommodations on her IEP.

A June 28, 2011, prescription for prescribes two forty-five minute sessions per week for . (Ex. K).

The parties stipulated that for the 2011-2012 school year, the IEP developed on June 24, 2011, has been in effect since the beginning of the school year (Ex. 1). They further stipulated that the student has been enrolled in an services class presented in English, and an alternate placement para-professional has been assigned to the student to aid in the translating (Tr. 14).

At the end of September 2011, . began to attend (“ ”) in (Tr. 51). Her instruction is in English (Tr. 51). A para-professional translates for her in class. The parent never was informed by the DOE about the paraprofessional (Tr. 51-52). . testified that there are students in some of her classes and about in others (Tr. 162163). The classes are taught in English (Tr. 163). . testified that a woman, , helps her in class by telling her or showing her what she has to do, in (Tr. 163-164, 165). Her classes have one teacher, and at times another adult comes by to see if the classroom needs help. Instruction is only in English. With help, . can follow the material she has at (Tr. 165). . thinks that she would be able to follow more if the material were explained to her “better” (Tr. 165).

On June 9, 2011, . was evaluated at the (“ ”) to discover .'s proficiency in English (Tr. 93, 98; Ex. G). There were two examiners present for each test, one who spoke only English and the other who spoke when . needed a translation of the test directions (Tr. 98). The , testified that .'s results showed that she was “functioning academically in English many years the level based on her age and it seemed to us...that she would require a great deal of tutoring in order to reach a level that is commensurate with her age” (Tr. 94).

On the , she obtained a grade equivalence of grade, months. (Tr. 95, Ex. G-1). The analyzes the student's reading fluency and comprehension. The evaluator was attempting to discover what would be the most complicated text that could read fluently and understand fully. . was able to “ ” the , but she was not able to comprehend it very well. The considered her to be a beginning reader (Tr. 96).The was administered in order to understand .'s “level of mastery with regard to the rules of ” (Tr. 97). The student was able to perform only , not any of the sounds associated with two letter blends (Tr. 97). . also was given the to establish the student’s level of proficiency with regard to breaking a word into its distinct phonemes and manipulating them in (Tr. 99). 's results on the , were equivalent to a student in the , placing her at the among the students her age (Tr. 103). The Survey of Study Habits and Attitudes was not administered because the evaluators realized that academic at the skill level, that she “ , to do any kind of at the level that she should.” (Tr. 104-105).

The Exam showed that . could perform some of of . Her math skills ranged from grade levels (Ex. G-3).

Ms. was for . to receive of instruction on a basis beginning at her current to close the gap (Tr. 108). Ms. arrived at this number of hours accordingly: “It is my best approximation based on my ten years of experience here, the 35 years of aggregate experience of nationwide. The experience that we've had in working with students who had similar skill sets, in knowing which curriculum we're going to work on with her, and how long it takes the typical student to complete that curriculum, when we add all of those hours together, the aggregate total comes to .” (Tr. 108). More specifically she explained that runs a program which contains an algorithm that calculates a recommended number of tutoring hours based on the data from the test results (Tr. 124). Ms. adjusted that number based on .'s age and test patterns or variables that the cannot take into account because they are not reported (Tr. 124-125). What “really drives the calculation is a familiarity with the curriculum that [ .'s] going to have to go through and an understanding of what our typical student with [ .'s] challenges has taken historically to complete each piece of the curriculum. It becomes an .” (Tr. 125-126). Ms. explained that if . achieved her goals in fewer hours, would suspend her instruction as soon as she reached her goals (Tr. 109). At the rate of $ per hour, the total for 1260 hours would be $ (Tr. 107-108).

would begin by starting at .'s levels and work on reading fluency, phonics skills, auditory perception, reading comprehension and her ability to write English one grade level at a time until she reaches the level of the tests she is required to pass (Tr. 109, 130). Ms. testified that she has seen other students with similar profiles succeed with this type of program, going on to earn their diplomas (see Tr. 112). Ms. testified that . would thrive in the model because she would receive the assistance she needs when she is “ ” and that the teachers would be able to build on work she is able to do in order to boost her to continue (Tr. 110-111). The goal of the program is to have . pass the tests required to attain the she is aiming to earn and to find and (Tr. 111).

Ms. recommended that . receive instruction on five days per week for two hours per day. The actual schedule would be arrived at in conjunction with the student and her mother. (Tr. 131-132).

The DOE submitted copies of Related Services Authorization (“RSA”) forms and related documents, sent to the parent at . One form, which is in English, is for to be provided in English, and is dated April 18, 2011. (Ex. 2-3, Ex. 2-4). One is dated October 5, 2011, addressed to the parent at and is for to be provided in English (Ex. 2-5, Ex. 26). Another form is dated November 3, 2011, and is for to be provided in It was sent to the parent at (Ex. 2-7). One set of forms is dated December 4, 2009, is for to be provided in English, was sent to the parent at . All of the forms are in English and the section on one page of each set that indicates in that the parent should contact the DOE if they need help understanding the forms, is left blank in the area intended to contain the contact information. (Ex. 2-5, Ex. 2-7, 2-9)

According to the parent's due process request, her correct current address is (Ex. R-1).

FINDINGS FO FACT AND CONCLUSIONS OF LAW

The Department of Education failed to provide M.P. with a FAPE Legal Framework

Two purposes of the IDEIA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-07 [1982]).

The DOE had the burden of proof that it provided a FAPE to . during all school years in question. N.Y. Educ. Law § 4404(1)(c). FAPE means “special education and related services that have been provided at public expense, under public supervision . . . and without charge; meet the standards of the State educational agency; include an appropriate . . . elementary, or secondary school education in the State involved; and are provided in conformity with the individualized education program required under section 1414(d) of the IDEIA.” Sec. 20 U.S.C. § 1401(9).

To prove it offered a FAPE, the DOE must show that (a) it complied with the procedural requirements of the IDEIA; and, 2) the educational plan developed by its CSE was “reasonably calculated to confer education benefits to the child” (Rowley, 458 U.S. 176, 206-07 (1982)). The importance of IDEA's procedural provisions was highlighted by the Rowley Court when it stated: “[t]he initial procedural inquiry is no mere formality” Id. “Adequate compliance with the procedures prescribed [by IDEA] would, in most cases assure much, if not all, of what Congress wished in the way of substantive content in an IEP” (Rowley, 458 U.S. At 206). Although procedural flaws do not automatically require a finding of a denial of FAPE, procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, do constitute a denial of FAPE. (Application of a Child with a Disability, Appeal No. 03-061, citing Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; W.G. v. Bd. Of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973,982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see J.D. v. Pawlet Sch. Dist., 224 F.3d 60,69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a F APE]). A school district “fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement.” T.P. ex rel S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009).

A FAPE consists of specialized education and related services embodied in an IEP. 34 C.F.R. § 300.13. “Special education” is defined as “specially designed individualized or group instruction or special services or programs… provided at no cost to the parent, to meet the unique needs of students with disabilities.” 34 CFR §300.39; 8 NYCRR § 200.1(ww). It “includes but is not limited to instruction conducted in classrooms, homes, hospitals, institutions and in other settings.” Id. Specially designed instruction “means adapting, as appropriate to the needs of an eligible child”, the “content, methodology, or delivery of instruction.” 34 CFR §300.39. For purposes of special education planning, the child’s needs in the following areas must be considered: (a) academic achievement, functional performance and learning characteristics which shall mean the levels of knowledge and development in subject and skill areas, including activities of daily living, level of intellectual functioning, adaptive behavior, expected rate of progress in acquiring skills and information, and learning style; (b) social development which shall mean the degree and quality of the student's relationships with peers and adults, feelings about self, and social adjustment to school and community environments; (c) physical development which shall mean the degree or quality of the student's motor and sensory development, health, vitality, and physical skills or limitations which pertain to the learning process; and (d) management needs which shall mean the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction. 8 NYCRR §200.1(ww)(3)(i)(a)-(d).

The IDEA mandates that prior to the development of an IEP and to determine eligibility, a "full and individual" evaluation must be conducted and children must be assessed in all areas related to the suspected disability. 20 U.S.C. § 1414(a)(1)(A) & §1414(b)(3)(B); 8 NYCRR § 200.4(b)(6)(vii). The evaluation must be sufficiently comprehensive to identify all of the child's special education needs, whether or not commonly linked to the disability category in which the child has been identified. 8 NYCRR §200.4(b)(6)(ix). The evaluation must “use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” 20 U.S.C. § 1414(b); 34 CFR §300.304. Such tools and strategies must “provide relevant information that directly assists persons in determining the educational needs of the child are provided.” Id. Tests must be “selected and administered so as not to be discriminatory on a racial or cultural basis” and the district is to use “technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.” Id. The evaluations are supposed to be “used for the purposes for which the assessments or measures are valid and reliable.” Id.

Thus, an appropriate educational program begins with an IEP that accurately reflects the results of appropriate 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. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095. The IEP must contain an accurate statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum. 34 CFR § 300.347(a)(1). An IEP must include measurable annual goals related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability. 34 CFR § 300.347(a)(2). The IEP team’s recommendations should include “a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child.” 34 CFR § 300.320(a)(4).

Here, the DOE failed to prove that it provided a FAPE for all of the years in question. 2009-2010

The DOE did not put on any witnesses or submit any documentary evidence to defend its recommendations for the 2009-2010 school year or rebut the parent’s evidence regarding this school year. While the parent was not required to provide testimony or submit documentary evidence, she developed a record that unequivocally shows that the DOE failed to provide with a FAPE for the 2009-2010 school year.

The IEP for the 2009-2010 school year, (Ex. D), developed on August 10, 2009, was procedurally and substantively defective, and denied M . a FAPE for that school year. In contravention of the IDEIA and New York Commissioner's regulations cited above there is no evidence in the record of a classroom observation, a physical therapy evaluation (despite the student's noted ), or an assistive technology evaluation.^[6] Without adequate testing, the student's needs or levels could not have been accurately or sufficiently identified and appropriate goals could not have been written, thereby depriving of educational opportunity in the most basic sense. Indeed, despite 's clearly referenced reading deficits, there is only one goal to address her needs (Ex. D-7).

Additionally, the IDEIA mandates that a school district “must take whatever action is necessary to ensure that the parent understands the proceedings of the IEP team meeting, including arranging for an interpreter for parents… whose native language is other than English.” 20 U.S.C. § 1414(d)(1)(B)(i); 34 C.F.R. § 300.322(e). Here, the mother was excluded from full participation as her and there is no evidence that the DOE provided documents to the mother in her native language. In violation of 20 U.S.C. § 1415(d)(2)(E), 34 C.F.R. 300.503(c) and 34 C.F.R. § 300.504(a) et seq., the DOE did not prove that it provided Procedural Safeguards that advised the parent of her rights in any language. The parent was denied the ability to participate meaningfully in the IEP process. Individually and cumulatively, the DOE's procedural violations were a gross denial of FAPE.

Beyond the procedural deficiencies of the IEP, the DOE utterly failed to provide the student with a FAPE for the 2009-2010 school year by completely ignoring the terms of the IEP it developed. The DOE agreed that it placed . in a general education class for the 2009-2010 school year (Tr. 12), rather than in a special class in a community high school, in complete violation of her needs in every respect. Additionally, the classes were taught in English and there is no evidence that . received her mandated related services. The DOE submitted only one RSA form dated December 4, 2009, with no proof that the parent received it or information in translating the form or a contact person to explain it (Ex. 2-10).

In conclusion, for the 2009-2010 school year, the DOE failed to provide the student with a FAPE. 2010-2011

Again, the DOE did not put on any witnesses or submit documentary evidence to defend the 2010-2011 school year or rebut the parent's evidence regarding this school year. In fact, the DOE stipulated that it did not even develop an IEP for the student and maintained the student in the same wholly inappropriate program as it did the previous year (supra).

These violations were a gross denial of FAPE. 2011-2012

The DOE failed to offer the student a FAPE for the 2011-2012 school year. There is no evidence that the parent was offered or provided with any translation during the CSE review or for any documents related to .'s educational program (Ex. I-13). She was not offered any information about her due process rights in her native language as well. These failures deprived the parent of any meaningful opportunity to participate in the decision-making process regarding her daughter's educational program. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471

F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

Additionally, by stipulating to the fact that . is enrolled in an integrated coteaching services class presented in English, and an alternate placement para-professional has been assigned to the student to aid in the translating (Tr. 14), the DOE has agreed that it is not implementing its own IEP. Even if it were, it must be noted that, there is considerable evidence supporting a finding that an integrated co-teaching class is inappropriate for the student. The class is much too large and does not have sufficient supports for her to make meaningful progress. Her reading comprehension is noted to be at a level, down two years from her testing done in 2009 (Ex. B). It is incomprehensible that the CSE would deliberately place the student in such a large class and fail to provide instruction in , as required.

Both procedurally and substantively the DOE failed to offer . a FAPE for the 2011-2012 school year.

In conclusion, the DOE failed to offer . a FAPE for all of the school years in question. . is entitled to compensatory services.

Compensatory education may be awarded to students still eligible for services but who have not received FAPE. P. v. Newington, 546 F.3d 111 (2d Cir. 2008). As fully discussed above, the DOE failed to provide . with a FAPE for the 2009-2010 and 20102011 school years. Based upon the documents in evidence and the testimony of the witnesses, the parent has established that . was denied FAPE for all of the years in question and that the denial was extensive. She failed to progress and the DOE repeatedly violated the IDEIA.

Compensatory education is an “equitable” remedy that should be designed to “compensate” a student for missed services. Student X v. New York City Dep’t. of Educ., 2008 WL 4890440, at 26 (E.D.N.Y. 2008). Although the Second Circuit has yet to determine the standard to be used, other courts have found that compensatory education should provide services to try to place the student in the same position s/he would be in if the denial of FAPE had not occurred. Id. Further, in determining an award of compensatory education or make-up services, most courts seek to ascertain the child’s needs at the time the relief is sought. Reid ex rel Reid v. District of Columbia, 401 F.3d 516, 43 IDELR 32 (D.C.Cir. 2005). In this case, the parent has proven that . will require the requested to try to close the gap between her current level of functioning and those of her peers (Tr. 93-99; Tr. 108; Tr. 124-125; Ex.6).

The DOE did not rebut the student's need for compensatory instruction nor the number of hours proposed by the witness. There is no doubt that . is entitled to the number of hours she would need to put her back where she would have been if she had been provided the services she should have received. The record supports an award of relief for of services to be used at the discretion of the parent with no limitation put on the timing of their use. As per the parent’s request in their complaint and closing statement, the services may be obtained by the parent from . Therapy

There is no evidence that the student is receiving her . The DOE immediately shall issue an RSA, effective from the beginning of the school year in September 2011, for all of the mandated hours.

Therapy

There is no evidence that . ever has received her services, or that the parent ever actually received RSAs from the DOE for those services. The DOE shall immediately issue RSAs for all of the missed services from the 2009-2010, 2010-2011, and 2011-2012 school years, as well as for the remainder of the 2011-2012 school year.

There is no direct evidence that . received the mandated on her IEPs for the 2009-2010, 2010-2011 or 2011-2012 school years, or that the parent ever actually received RSAs from the DOE for those services. The DOE shall immediately issue RSAs for all of the missed services from the 2009-2010, 2010-2011, and 2011-2012 school years, as well as for the remainder of the 2011-2012 school year. Additional Relief

The IDEA mandates that a “full and individual” evaluation must be conducted and children must be assessed in all areas related to the suspected disability. 20 U.S.C. Sec. 1414(a)(1)(A) and Sec. 1414(b)(3)(B); 8 NYCRR 200.4(b)(6)(vii). The evaluation must be sufficiently comprehensive “to identify all of the student's special education needs, whether or not commonly linked to the disability category in which the student has been identified.” 8 NYCRR200.4(b)(6)(ix). The evaluation must “use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” 20 USC Sec. 1414(b); 34 C.F.R. 300.304. Such tools and strategies must “provide relevant information that directly assists persons in determining the educational needs of the child are provided.” (Id.)

Although there is no dispute regarding the student’s classification as , there is no evaluative data regarding the classification. The student requires an independent neurological evaluation. Additionally, there is significant evidence in the record showing that in a smaller class environment . was able to learn adequately to pass her Regent exams in some courses. Yet on her most recent evaluation, her skills have decreased from a to a level. Reference is made to the student's continued difficulties, yet there is no evaluation or recommendation in the record prior to those for the 2011-2012 school year. There is insufficient information available to the CSE to adequately explain the student's needs at this time. Therefore, the DOE shall pay for an independent evaluation with a specific request to the to make recommendations for an appropriate educational program for .

. also should receive an evaluation and any such that is found beneficial to afford her an appropriate education for this school year.

Accordingly, it is ordered:

1. The New York City Department of Education denied the student, ., a free and appropriate public education for the 2009-2010, 2010-2011 and 2011-2012 school years.

2. The DOE shall pay for to receive 1260 hours of tutoring at $ per hour; the total for 1260 hours would be $

3. The DOE also shall pay for the $ registration fee and $ diagnostic fee.

4. For as many weeks as school was in session for the 2009-2010 and 2010-2011 school years, The Department of Education shall issue a RSA for , for one hour per week to be scheduled at the discretion of the parent, student and service provider. The parent shall first try to locate an appropriate speaking provider at the DOE contracted rate. However, if the parent has been unable to identify such a provider, the parent shall be entitled to seek services at an enhanced rate up to $ per hour. The DOE shall immediately issue the RSA upon receipt of this order.

5. The Department of Education shall issue a RSA for for the 2011-2012 school year for two forty-five minute sessions per week, in , calculating the number of sessions required to cover the sessions missed from the start of this school year through the end of this school year. The parent shall first try to locate an appropriate provider at the DOE contracted rate. However, if the parent has been unable to identify such a provider, the parent shall be entitled to seek services at an enhanced rate up to $ per hour. The DOE shall immediately issue the RSA upon receipt of this order.

6. The Department of Education shall issue a RSA for individual wice a week for thirty minutes per session, in , calculating the number of sessions required to cover the sessions missed from the start of this school year through the end of this school year. The parent shall first try to locate an appropriate provider at the DOE contracted rate. However, if the parent has been unable to identify such a provider, the parent shall be entitled to seek services at an enhanced rate up to $ per hour. The DOE shall immediately issue the RSA upon receipt of this order.

7. The parent has reserved the right to raise any compensatory services claim, for the 2011-2012 school year.

8. The parent and student shall receive transportation to and from the ordered services in the form of a metro card each and reimbursement for any out of pocket transportation costs associated with using these services, upon showing proof of payment.

9. The DOE shall pay for the following independent education evaluations promptly and shall issue any necessary authorizations, immediately: a) independent bilingual evaluation, b) bilingual evaluation, and c) bilingual evaluation. The evaluations shall include specific recommendations for the student’s educational program.

10. The CSE shall reconvene as the results of the evaluations become available and shall develop an appropriate IEP reflecting the results of the evaluations. The

CSE shall not delay reconvening if any of the results are delayed, and will meet again as additional results become available.

11. The DOE shall provide the parent with interpreters for the parent at every meeting to discuss the special education needs of her daughter, as well as translations of all IDEIA notices, safeguards, IEPs, evaluations and Impartial Hearing Office Orders, including this one.

12. The student’s pendency placement is the current IEP with instruction. Dated: December 12, 2011

_____________________________

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Initial Evaluation, 7/24/09, 5 pages B Report, 7/24/09, 9 pages C Teacher Assessment, 4/20/10, 8 pages D Individualized Education Program, 8/10/10, 8 pages E Final Notice of Recommendation, 8/18/09, 1 page F Student Transcript, dated 4/28/11, 3 pages G Student Diagnostic Testing Results,

6/9/11, 3 pages H Letter from to , 6/23/11,

Release 5/2/11, 3 pages I Individualized Education Program, 6/29/11, 14 pages J Function Report Tracking Form, 11/15/10, 1 page K Prescription Form Therapy Clearance for Services, 6/28/11, 1 page L New York City Department of Education Student Report Card, Multicultural

6/28/11, 1 page M Therapy School Function Report, 11/15/10, 2 pages

High School, 6/28/11,^[1] page N Report, 5/14/11, 8 pages O Services Evaluation, 1/4/11,

7 pages P Social Update, 1/28/11, 3 pages Q Various e-mails to Ms. , 9/8/11-9/27/11, 5 pages R Hearing Request, 7/25/11 Notice of Appearance, 12 pages

DEPARTMENT OF EDUCATION DESCRIPTION

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Footnotes

[1] The parent's due process request stated claims under Section 504 of the Rehabilitation Act, 29 U.S.C. 701 et. seq., but at the hearing the parent's attorney stated that the parent no longer was seeking relief under that statute. (Ex. R; Tr. 12).

[2] On the first hearing date the official interpreter hired by the Impartial Hearing Office had to leave before the end of the hearing. Before the appointed interpreter left, the parent agreed to have one of her attorneys, Mr. , serve as the interpreter while another of her attorneys represented her during the proceeding (Tr. 82-85).

[4] The parent reserved her right to seek compensatory services for her daughter for the 2011-2012 school year.

[5] The evaluator also noted that the student's mother “also spoke entirely in ” (Ex. B-3).

[6] While an is not in evidence, a reference to a private evaluation from dated May 26, 2009, is noted in the IEP and it appears that the CSE relied on it and recommended services. (Ex. D-6).

[1] Individualized Education Program, 6/24/11, 19 pages