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: February 7, 2012

March 28, 2012

April 17, 2012

Record Close Date: April 17, 2012

Hearing Officer: Damiel M. Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 7, 2012

Advocate (via telephone) — Student

Mother — Student

Administrator of Special Education — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 28, 2012

Advocate (via telephone) — Student

Parents

Administrator of Special Education — DOE

District Family Advocate (Did not Testify) — DOE

School Psychologist, (via telephone) — DOE

General Education Classroom Teacher, — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 17, 2012

Advocate (via telephone) — Student

Parent (via telephone) — Student

Chairperson Designee (via telephone) — DOE

INTRODUCTION

On February 3, 2012, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s (“DOE”) Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

I note that Parent's Request for Evaluation, dated 1/17/2012, 2 pages, was entered as DOE Exhibit 1, on 2/7/2012. However, it was also entered as DOE Exhibit 5 Request for Initial Referral, Dated 1/17/12, 2 pages, on 3/28/2012. Herein, it will be referred to as Exhibit 5.

Also, two Parent Exhibit A documents were entered. Hearing Request, dated 2/3/2012,^[2] pages 2/7/2012 and School records from , April through March 2009, 10 pages. When referring to these documents I will refer to the document itself for clarity.

On February 3, 2012, a pendency hearing was conducted, and pendency order issued.

Amended hearing request outlines numerous alleged violations by the DOE which result in parent seeking an order for the following: (Ex 1)

1. Compensatory from 12/14/2011;

3. Independent Evaluations;

4. Classification of the student as

5. Referral to Community Based Support Team for Private School

Placement;

6. Tutoring for the student.

At the commencement of the hearing the , general education student, serving a period of at a ), and did not yet have an Individualized Education Plan. (“IEP”) (Ex A & T 7-9) Parent sought to have the suspension site ordered as pendency placement for the student, which was denied. (Pendency Order of 02/07/2012)

The student’s registered school site was . (T 9)

Student was scheduled to return to the registered school on 02/08/12. Parent stated that she would not return the student to the registered school, instead parent sought at the , and at pendency hearing, to have student stay at the . (T 15-16) Parent indicated that the principal of , which in part is why the parent

At the time of the 03/28/2012 hearing date, the parent, and advocate, advised the hearing officer that the , and not receiving any services from the DOE. (T 105-107) The DOE representative stated that the parent went through the proper channels and the student is indeed home schooled at the present time, 04/17/2012. (T 258)

Department of Education (“DOE”) representative explained that the IEP process was moving forward and a meeting was being set up to create an IEP. Parent did not want the school personnel conducting or attending the IEP meeting, and the DOE representative was trying to accommodate her wishes. The parent also indicated that she believed the were not conducted properly and needed to be redone. (T 25-26)

Parent authorization to conduct the evaluation was provided on 1/29/2012. (Ex 6) and were completed, both on 1/29/2012, and the parent received a copy of each. (Ex 7, Ex 8 & T 21)

Parent advised the school ( ) and the Committee on Special Education (“CSE”) that her child would not be returning to his registered school and that she wanted him to remain at the suspension site, . (T 40-41)

Parent stated that she had not received a copy of he IEP and was seeing it for the first time on 3/28/12, when it was submitted into evidence. (Ex 11) (T 72)

DOE representative stated that she was made aware that the parent had not received a copy of the IEP at the resolution meeting of 03/14/12. She continued that she believed a copy had been mailed to the parent, but took the initiative to mail a copy, return receipt, which came back to the school, as indicated on Exhibit 16. (T 76-78)

DOE representative represented that a placement letter had not been sent to the parent due in part to the returned package (Ex 16) and the parent history of different addresses as indicated by Exhibit 3.1, indicating different zoned schools. DOE representative stated that the DOE has a placement for the child, but will not issue said placement until they can verify the parent‘s address, which has been attempted. (T 259260)

DEPARTMENT OF EDUCATION POSITION

DOE representative, Darlyne Aristide (“DA”) presented the DOE case. Her opening statement summarized the DOE position regarding the student, which included the following:

DA stated that the student is an eight year old, general ed, third grade student, attending public school 198 in District 22 until February of 2012, parent submitted a request for an evaluation on January 17th, 2012 to , school psychologist at attempted to reach out to Ms. , to secure consent for testing, parent stated that she did not want anyone from the school to test her son, parent request was honored, testing was arranged by the District to redeploy and another social worker from another school to do the evaluation, and consent to evaluate was received on January 29, 2012. Evaluations were completed and shared with the parent.

When the time came for the IEP meeting the parent did not want school personnel from to participate. arranged for other personnel to participate in the meeting. Regarding participation of the teacher discussed with the parent why this was necessary and in the end met the parent’s demand that the teacher from that she would leave right after she gave her input. The meeting was not held in the school, but at the District Office to honor the parent’s request.

Ms. attended the IEP meeting by phone, and was informed, “…that a draft of the IEP would be sent to her at home to review and she had a week or so to do that and-- and let us know what her feedback was. A draft of a copy of the IEP was sent to Ms. , through regular mail, during the week of March 5th. I had a meeting with Ms. on March 14, when she stated she had not received the IEP yet. I called the school and arranged myself for a certified copy to be mailed to Ms. . On Monday, March 26th, the principal called me to state that the certified package that was sent to the home prior--the week prior, was returned to the school with a sticker and a message written on the package, return to sender. does not currently have a ”) and the case was sent over to Office of . (T 108-111)

Since the beginning of March, ), the , has made several attempts, from District . to then mail her a Final Notice of Recommendation. Until today, no success with a response back from Ms. . It is the contention of the DOE that has been provided with Free Appropriate Public Education (“FAPE”) and the District has honored every request Ms. . had in order to place in an appropriate setting within the DOE; “…but we are not getting any cooperation from Ms. . at this point.” (T 108-111)

At the hearing of 03/28/2012 the parties were asked to communicate to facilitate the issuance of the FNR. stated that the placement office was not able to obtain a response from the parent, to verify the parent’s address. (T 218)

DOE WITNESS

”) testified as the student’s She testified to student academic performance, which included that the student liked (T 118-121)

When in a small group, testified that: “… (T 122)

was aware of the request, was involved in its development, was provided with a copy, and spoke to the parent about the BIP. (T 122-124)

continued that: “I have also spoken to her and what--and the way, you know his …And I had spoke to her that I--you know that he always want--that if we had a reward, he always wanted rockets and that's what I would give him. If he had a good day and I spoke to her about it, or if the morning was good I spoke to her, if the afternoon was not, whatever it was, I was always talking to her about it, I had numerous conversations with her about it.” (T 123)

attended the IEP meeting, contributed to the meeting by providing strengths and weaknesses of the student and was asked whether or not she agreed with the recommendation. (T 125)

continued that she spoke often to the parent about student progress. (T 126)

recalled that the student was classified as recommendations. (T 128)

On cross examination testified that she has some students in her class with behavioral issues, such as not waiting to be called upon. (T 129-130)

The witness reviewed the progress report entered as Exhibit 9, noting the student did not complete a lot of work, which . (T 138)

The witness testified that she did work at time with the student and that his (T 140-141)

Witness was asked if she suspected the student may have a disability. replied: “I was wondering what was wrong.” discussed this with the parent, in January, and stated that the parent responded that she did not want the student tested or evaluated because she did not want him labeled. advised the parent that she was concerned that the student’s was not improving and had concerns about academics. (T 143-144)

Hearing officer confirmed that received and implemented the . testified: I spoke to him about getting up out of his seat, staying on task, , trying to implement positive behaviors, implementing incentives, constant conversations with him.” (T 150)

was aware that the student was referred for at with a guidance or (Substance ) worker, as indicated in the , but did not remember the frequency of the services. noted that: “I thought the mother didn't want him being picked up for the .” SL continued that some services were delivered. (Ex 4.3) (T 152-155)

explained the referred to in the . testified that is the : “It's a school wide plan where the kids get these rockets. And if you get a certain amount of rockets by the end of the month, you get either--you get a prize or you get like--you get like a reward. (T 157)

was asked whether ” (T 160)

DOE WITNESS

”) testified as a school psychologist, employed by the . does per session (in transcript throughout as procession) work with the student and the student was assigned to her for an evaluation. (T 168-169)

testified relative to the evaluation she wrote, entered as Exhibit 8. She noted some attention issues and that the student performed within the average range, there were some issues with and he did . It took him a while to be comfortable. He would introduce some comments that were only tangentially related to whatever it was that we were talking about. But basically he did permit himself to be and he was able to complete the assessment.” (T 169-170)

Regarding classification, , the student performed about a year below grade level, which was not enough to classify him as a . continued: “I noted that he had difficulty sustaining focus, paying attention, sometimes he would something that was irrelevant to the setting. So, it appeared to me that it was more because of emotional factors or attentional factors that he was having a difficult time gaining the information that he had to gain in school. So, it seems, based on what I saw, that a classification of an emotional disturbance would be more accurate in describing why he wasn't able to meet his potential.” (T 171-172)

In choosing a program for the student, some factors that were considered included, classroom size, support, modeling for and academic need. (T 173-174)

testified that a small class recommendation was appropriate, along with counseling services, in a group. (T 174 - 175)

testified that the parent was on the phone the entire time of the meeting and parent questions and concerns were addressed. (T 175)

On cross examination testified that she did not do an observation of the student, besides the assessment itself, did not interview the parent or the teacher. (T 178)

was asked about the characteristics of a child, and how she reached that classification for the student which she testified; “I had to base it on what I saw from the child. I happen to be rather experienced working with children, of all different needs. And when I sit with a child, and I give him a task to do, while observing how he approaches the task, gives me information about how the child behaved. This is aside from his actual performance to the task. So, his performance on the task is one thing. But how does he get to his answer? How does he-- I mean you could have five different ways of getting the right answer. But how does he look at it? Does he take a chance? Does he use trial and error? Does he give up? Does he just say oh, any old answer? Or does he work at it? And that gives me information about a , because I'm watching how he approaches tasks. So, that is different from the objective results of the testing. How does he approach it? If it's something new, if it's something hard?” (T 186)

“The easy parts he did okay (in transcript as oaky). But then when it became a , and he had to …on the work that I was asking him to do, anything…He wasn't interested. So, it gives me some insight as to how he would behave in class if the teacher is doing something that is a little harder for him to do.” (T 187)

PARENT POSITION

The parent advocate, ”) presented the parents case, which included the following information contained in her opening statement:

“ . The Parents' exhibits will show that been in violation of the Chancellor's

Regulations. These have been arbitrarily and unconstitutionally imposed by any procedure the school chose or chooses to use.”

continued that the have the student’s standing with teachers, peers, and every school he has enters, and that the DOE has, “…failed to act as they are required under the IDEA and the 1997 Amendments to the IDEA…and that the Department allowed the behavior to manifest…” continued that the actions of teachers and school personnel were inappropriate in addressing the student’s needs, and that, “…all of the procedural safeguards under Part B of the IDEA have been violated by the New York City Department of Ed. They failed to do adequate evaluations. They failed to rule out the cause of the They never informed the Parent of her rights, never informed the Parent of her , and they did not afford a manifestation hearing as a student suspected of having a , and several regulations of the Chancellor's Regulations on suspensions were violated. And including s civil rights, constitutional rights. The District violated procedures for independent evaluations. They notified the Parent of an IEP meeting and she attended, but they denied her the opportunity to participate in that meeting.” (T 112-114)

continued that the parent is rejecting the IEP in its entirety, the student was not adequately evaluated and that there was enough testing done to rule out classification of emotionally disturbed, the school did not try to keep the student in general education by trying to implement aids or intervention services. (T 274)

PARENT WITNESS KYE BATTLE

The student’s parent, . (“Ms. .”)testified on 4/17/2012. Ms. stated that she had tried to contact the placement office, after the hearing of 3/28/2012, but had not received a response. (T 218)

Ms. . advised the hearing officer that the student was still at home, being instructed by the parent, not receiving any services from the DOE. (T 219)

Ms. testified that her son has struggled with his , about four years ago. When asked about the DOE actions to address the behaviors Ms. . replied: “He had like in . They also changed his class numerous times as well as they changed his schools.” Ms. . continued that, these were ten or more days, that she was never contacted to discuss any type of action to , and that after does not improve. (T 221)

Ms. . testified that her , still has behavior problems, he attended for the 20112012 school year, and was transferred to (October 2011), behavior is terrible at PS 198 and another . was asked if she refused to have her son evaluated because she did not want him labeled, to which she testified: “No, not true. The reason I say no is because there was no mentioning of any academic delays by the teacher. His teacher testified that she marked as being on third grade reading level, so that's why.” (T 222-223)

Ms. testified regarding Exhibit D, confirming that SAPIS counseling services were discussed and offered to her son. Ms. . continued to testify that the school did not explain what was, but she did agree to the services, and there was no specifics as to how often the services would take place. Ms. . reports that her son told her he was picked up for about three times. (T 225-226)

Ms. confirmed that she requested an in mid December and that she never met with the team that did the and resulting , though she received the shortly after the request. (T 228-229)

Ms. . testified that she was unhappy with the , Ms. . contacted her advocate and was told to request an independent evaluation, which request was made to the school. (Ex 5) (T 230-232)

Ms. continued that she believes she requested another in mid January of 2012. (T 237) Parent felt the BIP, created 12/15/2011, (Ex 4) was not working, even though it was implemented. “…it was being implemented, and not only the classroom teacher knew of the plan and was the part in the creation of the plan, there was another counselor assigned to to provide services at-risk until the--” (T 36)

Ms. . was asked if the BIP was implemented at , to which she testified, it was not, and she knew it was not implemented, because nothing changed, and after the he was still suspended. (T 239)

Ms. contacted the School Based Support Team and was advised that the cannot be changed. (T 239)

Ms. . clarified that she became aware of the classification at the IEP meeting of 02/16/2012. (T 238)

Ms. . continued that the student was suspended three times during the 2011-2012 school year Ms. . continued that evaluations were conducted, but the IEP process was not completed before the end of the suspension, that she informed the CSE that the student would not be returning to , and that the CSE told her that her son had to go back to . (T 241-242)

When Ms. . received the notice of the IEP meeting (Ex 10) she told the CSE that she did not want anyone from to attend, besides the students teacher, and the CSE agreed. (T 242)

Ms. . testified that she attended the IEP meeting (via phone), that behavior was not discussed, the was not discussed, related services were not discussed, placement was discussed (12:1:1), and that the student has not been at school since mid February

2012. (T 242-244)

Ms. . did not agree with the recommendations made by the CSE, that she did not receive a copy of the IEP after the meeting, until the hearing date 03/28/2012, and did not receive any contact from the DOE, that her phone works and has voice mail. (T 244-246)

Ms. . denies receiving mail from the CSE, but she has received mail from . (T 246-247)

Ms. . continued that her address is a three family house with one mailbox. (T 248)

On cross examination Ms. . was asked if she kept her son home because of the recommendation or because she did not want her son at , to which Ms. responded; ‘It was because of the principal at said she didn't want back at her school and also that they wasn't providing the proper education for him.” (T 270)

“The teacher testified that she could not deal with . She was--she's frustrated, so they're not trained to deal with , so why would I send him 1 back to a school that don't want him there?” (T 270-271)

PARENT DOCUMENTARY EVIDENCE

It is noted that parent submitted documents into evidence which were reviewed, but related primarily to student suspensions, as detailed to some degree in testimony of the parties. Parent documents did not bolster parent position regarding classification or point to any deficiency in the IEP. Parent indicated in testimony disagreement with suspension hearings and procedure for suspension, which is outside the scope of the current hearing and decision. Parent had demanded that the 01/23/2012 suspension be rescinded and removed from student records. This demand cannot be decided in the current forum, and therefore this demand is denied.

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (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]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A student is offered a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). The "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, but school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). A school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; ^[8] NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; [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]).

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, 916 at 69; Burr, 863 at 1071; 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]).

In the instant case parent demands compensatory counseling services from 12/14/2011.

Testimony includes that the student was recommended for counseling services, (T 128), that the student was referred for at risk counseling with a guidance or worker, as indicated in the noted that: “I thought the mother didn't want him being picked up for the .” continued that some services were delivered. (Ex 4.3) (T 153-155)

Ms. . testified regarding Exhibit D, confirming that services were discussed and offered to her son. Ms. . continued to testify that the school did not explain what was, but she did agree to the services, and there was no specifics as to how often the services would take place. Ms. reports that her son told her he was picked up for counseling about three times. (T 225-226)

Parent has taken the position that the entered as Exhibit 4, is insufficient, yet seeks the counseling it recommends. The record indicates that the was prepared on 12/15/2012, and implemented. No evidence is presented indicating the amount of counseling which would be delivered to the student, nor are there any attendance records indicating the student would have received such services. indicates only that “ or is a strategy to be used with the student to try and , and testimony indicates this strategy was implemented. (Ex 4.3)

Parent demand for from 12/14/2011 is denied. Independent Functional Behavior Assessment and Behavior Intervention Plan (BIP);

Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP (see 20 U.S.C. § 1414[d][3][B]). Among the special factors in the case of a his or her learning or that of others, the CSE shall consider the use of and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 C.F.R. § 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ., 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172; J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 [S.D.N.Y. 2009]; M.M. v. Dep't of Educ., 583 F. Supp. 2d 498, 510 [S.D.N.Y. 2008]; Tarlowe, 2008 WL 2736027, at *8; W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 149-50 [S.D.N.Y. 2006]; Application of a Student with a Disability, Appeal No. 09-101; Application of a Student with a Disability, Appeal No. 09-038; Application of a Student with a Disability, Appeal No. 08-028; Application of the Dep't of Educ., Appeal No. 07-120).

State procedures for considering the special factor of a student's behavior that impedes his or her learning or that of others may also require that the CSE consider conducting a ) and developing a BIP for a student in certain non-disciplinary situations (8 NYCRR 200.4[d][3][i]; 200.22[a], [b]). State regulations define an FBA as "the process of determining why a student that impede learning and how the student's behavior relates to the environment," and include[s], but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it (8 NYCRR 200.1[r]). According to State regulations, an shall be based on multiple sources of data and must be based on more than the student's history of presenting (8 NYCRR 200.22[a][2]). An must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a (if required) may be developed "that addresses antecedent behaviors, reinforcing consequences of the , recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement" (8 NYCRR 200.22[a][3]). Although State regulations call for the procedure of using an FBA when developing a BIP, the failure to comply with this procedure does not automatically render a BIP deficient (A.H., 2010 WL 3242234, at *3-*4).

If the CSE determines that a is necessary for a student, "the [ shall identify:"(i) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the . . .; (ii) the to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and (iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals (8 NYCRR 200.22[b][4]).

The parent also indicated that she believed the were not conducted properly and needed to be redone. (T 25-26)

testified that she was aware of the request, was involved in its development, was provided with a copy, and spoke to the parent about the BIP. (T 122-124)

Ms. . confirmed that she requested an in mid December and that she never met with the team that did the and resulting , though she received the shortly after the request. (T 228-229)

Parent felt the , created 12/15/2011, (Ex 4) was not working, even though it was implemented. “…it was being implemented, and not only the classroom teacher knew of the plan and was the part in the creation of the plan, there was another counselor assigned to to provide services at-risk until the--” (T 36)

Hearing officer confirmed that received and implemented the . testified: “…I spoke to him about getting up out of his seat, staying on task, trying not to be negative with other kids, .” (T 150)

explained the referred to in the . testified that is the : “…It's a school wide plan where the kids get these rockets. And if you get a certain amount of rockets by the end of the month, you get either--you get a prize or you get like--you get like a reward. (T 157)

Ms. . was asked if the BIP was implemented at , to which she testified, it was not, and she knew it was not implemented, because nothing changed, and after the he . (T 239)

In the present case the DOE complied with the parent request, acted to perform an , which involved the student’s teacher, and parent agreement with the Parent received a copy of the and was aware of the services being implemented at the school.

Parent dissatisfaction with the results of the implementation of the , do not result in its being improper in its preparation or implementation. No evidence was presented regarding the BIP indicating any specific insufficiency therein.

Parent demand for an independent are denied. ), Evaluations; Parent requests independent evaluations. Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]). A parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an evaluation with which the parent disagrees" (34 C.F.R. § 300.502[b][5]; 8 NYCRR 200.5[g][1]; see R.L., 363 F. Supp. 2d at 234-35). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 C.F.R. § 300.502[b][2][i]-[ii];14 8 NYCRR 200.5[g][1][iv]; see, e.g., A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 549 [D. Conn. 2002] [upholding order of reimbursement where the district failed to demonstrate that its evaluation was appropriate]; Application of the Bd. of Educ., Appeal No. 09-109; Application of a Student with a Disability, Appeal No. 08-101). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502[b][3]; 8 NYCRR 200.5[g][1][v]; DeMerchant v. Springfield Sch. Dist., 2007 WL 2572357, at *6 [D. Vt. Sept. 4, 2007]; Application of a Student with a Disability, Appeal No. 08-039; Application of a Child with a Disability, Appeal No. 07-126; Application of a Child with a Disability, Appeal No. 06-067; Application of the Bd. of Educ., Appeal No. 05-009; Application of a Child with a Disability, Appeal No. 04-082; Application of a Child with a Disability, Appeal No. 04-027).

The evidence presented does not indicate that the parent disagreed with an evaluation obtained by the school district as required by federal and State regulations that govern when a parent is entitled to an IEE at public expense (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see R.L., 363 F. Supp. 2d at 234-35; Application of a Student with a Disability, Appeal No. 10-101; Application of a Student with a Disability, Appeal No. 10-033; Application of a Student with a Disability, Appeal No. 09-144).

Parent requested her son be evaluated by request dated 02/17/2012. (Ex 5) District carried out evaluations as entered into the record.

No information is entered into the record indicating an , or evaluation is warranted. do not indicate in these areas, or that such evaluations are necessary for the student. (Ex 7 & 8) No request for the district to perform these specific evaluations were made by the parent, so no such evaluations were conducted.

The requests for Independent ”), ”) and Evaluations are each denied. Classification of the student as ”);

Student's eligibility for special education and related services as a student with a disability is not contested by the parties, student classification as an .

Determination to classify the student as emotionally disturbed did not constitute a denial of a FAPE. The particular disability classification that a student receives "will, in many cases, be substantively immaterial because the IEP will be tailored to the child's specific needs" (Fort Osage R-1 Sch. Dist. v. Sims, 641 F.3d 996, 1004 [8th Cir. 2011] [internal quotation marks omitted]; Hailey M. v. Matayoshi, 2011 WL 3957206, at *19*20 [D.Hawai'i Sept. 7, 2011]; see Application of a Student with a Disability, Appeal Nos. 11-059 & 11-061; Application of a Student with a Disability, Appeal No. 09-126 ["a student's special education programming, services and placement must be based upon a student's unique special education needs and not upon the student's disability classification"]).

Testimony was given to show that the IEP team considered the information available to them and decided to classify the student as . noted, the student performed about a year below grade level, which was not enough to classify him as a child with a learning disability. continued: “I noted that he had difficulty sustaining focus, paying attention, sometimes he would fidget and bring--introduce something that was irrelevant to the setting. So, it appeared to me that it was more because of or that he was having a difficult time gaining the information that he had to gain in school. So, it seems, based on what I saw, that a classification of an would be more accurate in describing why he wasn't able to meet his potential.” (T 171-172)

The parent became aware of the classification at the IEP meeting of 02/16/2012. (T 238)

Parent did not present any evidence or testimony to show that the student is learning disabled, and not . DOE presented evidence justifying their classification.

Parent demand to have student classified as is denied. Referral to Community Based Support Team for Private School Placement;

In the present case, the parent made a request for initial referral on 1/17/2012, signed a consent for testing on 01/29/2012, and evaluations were completed on 01/29/2012. (Ex 1, 6, 7 & 8) Notice of IEP meeting was sent on 02/09/2012. (Ex 10) An a meeting was held on 02/16/2012, which resulted in the current IEP. (Ex 11) Parent initially requested a Due Process Hearing on 02/03/2012, as amended on 02/16/2012. (Ex 1 - hearing request)

Parent stated that she had not received a copy of the IEP and was seeing it for the first time on 03/28/12, when it was submitted into evidence. (Ex 11) (T 72) The DOE representative detailed efforts to deliver the IEP to the parent, and later to confirm the parent’s address, which resulted, in part, in what appears to be a refused package that was attempted to be delivered to the parent. (Ex 16)

Ms. . continued that she was unhappy with the , Ms. contacted her advocate and was told to request an independent evaluation, which request was made to the school. Request was actually an initial referral, made 01/17/2011, and independent evaluation was requested through hearing request of 02/16/2012. Ms. . testified that the demand for the independent evaluations was made prior to the IEP meeting, and prior to her receipt of the evaluations and IEP. (Ex 5 & 1) (T 230-233)

The DOE representative made efforts to comply with parent requests regarding evaluations, and the site of the IEP meeting (though the parent only attended the meeting by phone).

Previous to the referral, a , was requested by the parent on 12/14/2011 and created 12/15/2011, (Ex 4). Parent felt , even though . (T 36) DOE seems to have been, throughout the testimony, and by attempting to address student needs with the BIP, acting to properly address the DOE is obligated to implement the IEP within sixty (60) days of the receipt to consent to evaluate the student. (8 NYCRR 200.4 (e)) In this student’s case the consent to evaluate was received on 01/29/2012. (Ex 6) Therefore, by 03/29/2012 the IEP should be implemented. However, in this case, circumstances existed to frustrate DOE compliance with this timeline. Parent, filed a Due Process Complaint, as amended on 02/19/2012, the same day as the IEP meeting. The amended complaint was faxed to the hearing office at 12:13 pm, prior to the commencement of the IEP, which was scheduled to commence at 1pm that day. (Ex 1 & 10) The focus of the initial complaint was to have the student remain at the suspension site, pendency order denied this demand. The amended hearing complaint included additional demands. It seems difficult to imagine that the parent was willing to work with the IE team when the hearing request already objected to the anticipated possible classification and recommendations.

Parent contends that she was not included in discussions regarding her child, yet testimony, and evidence, includes DOE communication and review with the parent of the student’s behavior, setting up meetings to accommodate the parent, and corresponding with the parent.

Parent, amended complaint, in being filed prior to the IEP meeting taking place, makes it difficult to imagine how the IEP team could have created any IEP that would have satisfied the parent.

Parent appears to have purposefully frustrated the efforts of the DOE to deliver the IEP to her for final review, by denying the package from the school. (Ex 16)

Additionally, the DOE was advised that the parent would not be returning her child to the last placement of , and had decided in mid February to home school the student.

I find that parent actions served to frustrate the process of implementing the IEP in a timely manner, and kept the DOE from being able to offer a Final Notice of Placement, as the DOE was unsure of the student’s address and it seemed the parent was schooling the child at home. DOE has been kept from being able to actually implement the IEP.

Presently, at hearing, the parent has clarified that she is still willing to consider a DOE placement and is at the same address as indicated in the prior mailings.

Parent address is found to remain the same as at the commencement of the hearing.

Parent request to refer the case for private school placement is denied.

However, District is ordered to forward a FNR to the parent’s address of record with the DOE. Tutoring for the student.

No information was presented to support a tutoring service for the student.

Parent request for tutoring is denied.

ORDER

The Department of Education is ordered to forward a Final Notice off Recommendation to the parent at her address of record with the DOE, by 05/10/2012. Dated: April 27, 2012

_________________________________

DANIEL M. AJELLO, ESQ.

Impartial Hearing Officer

DA:dl

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 ON FEBRUARY 7, 2012

PARENT

A Hearing Request, dated 2/3/12, 2 pages

DEPARTMENT OF EDUCATION

1 Parent's Request for Evaluation, dated 1/17/12,

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 28, 2012

PARENT

A School Records from , April through March 2009, 10 pages B Student Profile Report, 1 page C Student Transfer Record, dated June 2010 to January 2011, 13 pages, D Incident Report, dated October 2011 to December 2011, 9 pages E Parent Request for , dated 12/16/11, 1 page F Teacher Notes from the Teacher at , 2011-2012, 18 pages G Statements Regarding Student , dated 1/23/12, 5 pages H Not Included I Confirmation of Decision from , dated 2/9/12, 6 pages

DEPARTMENT OF EDUCATION

1 Amended Impartial Hearing Request, dated 2/16/12, 12 pages 2 Due Process Response from DOE, dated 3/19/12, 3 pages 3 Admission and Discharge History for , dated 3/27/12, 1 page 4 Functional Behavior Assessment & , dated 12/15/11, 3 pages 5 Request for Initial Referral, dated 1/17/12, 2 pages 6 Consent for Testing, dated 1/29/12, 1 page 7 Social History, dated 1/29/12, 2 pages 8 Evaluation, dated 1/ 29/12, 4 pages 9 Student Progress Report, dated January 2012, 1 page 10 Notice of Meeting, dated 2/19/12, 2 pages 11 IEP, dated 2/16/12, 9 pages 12 Postage Receipt, dated 3/14/12, 1 page 13 E-mail Correspondence from Office of Student Enrollment, dated 3/21/12,

2 pages 14 Student Emergency Contact Information, dated 3/27/12, 1 page 15 Envelope with Proof of Address, dated 3/14/12, 1 page 16 . IEP Package Returned to School, dated 4/11/11, 1 page

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Footnotes

[2] Independent ”) and ”);

[8] NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059. Compensatory Counseling Services from 12/14/2011 To the extent that the parent's claim may be read as one for compensatory education services, compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147