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: April 30, 2012

May 16, 2012

June 18, 2012

July 2, 2012

Record Close Date: July 24, 2012

Hearing Officer: Gary D. Peters, Esq.

CORRECTED

NAMES AND TITLES OF PERSONS WHO APPEARED ONAPRIL 30, 2012

Attorney — Student

Parents

CFN District Representative — DOE

Assistant Principal (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 16, 2012

Attorney — Student

Parents

CFN District Representative — DOE

Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 18, 2012

Attorney — Student

Parents

Intern — Student

Intern — Student

CFN District Representative — DOE

Principal (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 2, 2012

Attorney — Student

Parents

Director/ Coaching — Student

CFN District Representative — DOE

INTRODUCTION

On the above dates I conducted hearings pursuant to the Individual with Disability Education Act (“IDEA”) 20 U.S.C. 1415 (f)(3) regarding impartial hearing case number 138733, The hearing was commenced at the impartial hearing office, 131 Livingston Street, Brooklyn New York. The parents submitted a request for impartial hearing, through their attorney on March 12, 2012.

The Department of Education, (“DOE”) hereinafter referred to as “the Department” was represented by its chairperson designee, and the parent was represented by her attorney . A list of witnesses who testified and documents received into evidence are attached hereto.

BACKGROUND

The student is currently a ) year old male, who is classified as “ ”. On January 23, 2012, the Committee on Special Education, hereinafter referred to as the (“CSE”) conducted an individualized education program (“IEP”) meeting for the 2011/2012 school year. The child, hereinafter referred to as “ ” was recommended to attend a class in a community school the , in an integrated co teaching classroom with related services as follows: . Additionally, the student was recommended to participate in state and local assessments with accommodations including time, extending up to time for test taking and the use of a calculator.

Israel was subject to a series of removals during the 2011/2012 school year due to alleged behavioral misconduct that resulted in a disciplinary change of placement. On May 4, 2012 a manifestation hearing determination review (“ ”) was held regarding a superintendents’ suspension issued against Israel in April 2012. Noteworthy, I presided over a hearing, wherein I determined that the was invalid.

THE PARENT’S POSTION

The Parent is seeking the following : (1) immediate reinstatement of Israel, (2) a new ”) to develop a ”), (3) a reconvene of the CSE to develop an IEP , (4)Deferment to the Central Based Support Team (“CBST”) for placement in a state non approved public school and (5) compensatory compensation including a tutor from at a rate not to exceed $115.00/hour for up to 360 hours.

THE DEPARTMENT’ OF EDUCATION’S POSITION

The Department maintained the child was properly classified and that the determination made at the hearing was correct and that the Parent’s request is not valid and that the child could be afforded a Free Appropriate Public Education (“FAPE”) if he attended classes

THE DEPARTMENTS CASE

The first witness to testify was the assistant principal of , . He stated that he has known the student, hereinafter referred to as “ ’ since February 2010, that he was a student at his school and was in a collaborative team teaching class. He has approximately 20 credits; 44 credits are required to graduate. (T. page 8). Israel receives two periods of “team teaching’ per day and could accumulate “recovery credits if he attended, passed all of his classes and could graduate within 1 ½ years (T. page 9). Additionally, if a student failed a class and received at least a grade of 45, he would not have to repeat the entire course and could “make up” the work that he did not master via “credit recuperation”.

The witness described credit recuperation courses, which can be accomplished through the use of a computer by participating in a Department computerized program referred to as “ ”, this can be accomplished at home or at school while “online” (T. page 10). Mr. was referred to ’s transcript and stated that he could obtain credit recovery for 8 classes which would give him 28 or 29 credits. He further stated that Israel came to the school with “no credits” and is almost half way towards his goal of graduating and potentially more than halfway there if he avails himself of “credit recovery, so that he has made “great progress”. (T. page 12). The witness stated that Israel does a fantastic job, when he concentrates, however requires his medication to help him focus in school; he was told by the school nurse that Israel was not taking his medication. (T. page 13).

Mr. stated that has passed his RCT’s in science and living environment, passed his regents in algebra, received a 60 in global history and is required to pass his English regent. (T. page 14).

The witness reiterated that when the student comes to class, takes that he does well, however, at the present time, he has not and that his has gotten “progressively ”

(T. page 14). Mr. stated that is making progress towards his graduation and that he is properly placed in the CTT class.

Upon cross examination, the witness testified that although there is a possibility that Israel can graduate with a “regents diploma”, that it is more likely that he would obtain a “local diploma”. (T. page16). The witness was directed to Exhibit #5 and stated that has passed two regents, algebra and living environments and that he received a 60 on his global studies; if the student came to Saturday classes and attended Regents Prep. that in his opinion he would pass the “global regents” (T page 16). It is required that a student pass 5 regents in order to obtain a regents diploma and that to obtain a local diploma a student must obtain at least a 55 on five regents. (T. page 19) and or in Israel’s case he could pass 2 additional RCT’s in English and U.S. History. (T. page 20).

As per the last IEP on 1/23/12 it was not indicated what type of diploma Israel was expected to obtain (T. page26). Mr. stated that just because the IEP does not specify the type of diploma the student was targeted for, that the teachers/staff working with the CTT team teacher could meet the goals for a local diploma (T. page 27)

The witness stated that both he and the school were unaware that ’s physician advised that Israel should stop taking his medication. T. page 34). Mr. stated that the school has not developed a plan to address the takes his was not a problem (T. Page 340.)

Upon further cross examination, the witness did not recall how many times was a during the current or prior school year, however did recall a superintendant’s which was for more than 5 days (T. page 35) and noted that there is pending. Additionally, the witness checked his computer records and stated that there were 8 separate principal’s suspensions (T. page 37); he was uncertain of the cumulative total number of days that the student was out of school. The principal’s suspensions were for low level misconduct; there has not been a manifestation determination review (“MDR”) completed during this school year. An is required after a 10th day of Principal’s suspensions or when a student’s placement has been affected by a series of suspensions or by one long term suspension. (T. page 39).

The witness’s recollection is that has been in “horseplay”, insubordination, leaving the classroom/school without permission, engaging in an altercation with physical aggressive behavior (T page 41). There were for not coming to detention. The witness stated that pursuant to the disciplinary code, a student may receive detention for not wearing a uniform to school (T page 44). Upon further inquiry, the witness stated that a student should not be ordered to detention for “ ”, but rather should be subject to . The witness confirmed that although the regulations do not provide for detention for “uniform violations” that this was imposed on all students, not just for “Israel”. (T. page 45).

Mr. conceded that it would be fair to say that some of the difficulties as described above could be related to the student’s ; however he reiterated that ’s disability as per his classification was . He stated that he knew Israel required medication for and that the condition is not considered the “ ” unless the student does not take his medication. (T. page 47).

The student came to the school as a and was recommended to have a class, however there was no such class in the school and was placed in a CTT classes’. (T. page 48)

The witness was directed to ’s report card and confirmed that the student failed US Government for the first marking period, received a 55 in history and noted that the teacher noted that . (T. page 55). The witness stated that he was unaware as to why (T page 56).

Mr. confirmed that he was present at the January 23, 2012 IEP meeting and that a ”) was not developed. He stated that as was not a safety concern for him and or the staff; he reiterated that ”, however functioned “ ” on a day to day basis (T. page58).

Lastly, Mr. stated that in his opinion, s lack of credit accumulation was not due to his and comes to school, he “performs in the classroom and has made “steady academic improvement” (T page 59). The witness refused to attribute ’s’ gains to the fact that he began receiving support; he stated that his staff was doing a great job with him, however the could be helpful (T. page 60).

Upon redirect examination, the witness stated that a functional behavior analysis” will be completed when returns from his suspension as the Parent has consented to same.

The next witness to testify was Mr. , a teacher at the . He stated that he was ’s special education teacher in the integrated co teaching class and living environment instructor two years ago. In the current school year he was an integrated co teaching provider in social studies and American history (T page 70). When the student is in class, his academics are “usually pretty good” and that the problems occur when he is not in class, coming late or missing classes. (T page 70). Furthermore, when is on task, he does the work, asks questions and accepts help readily; however there are times that he is loud, obnoxious and “shows off” (T. Page 71).

He stated lacks the support that he requires at home regarding uniforms but that when he has supports in place he does well…..when he is cooperative ….he makes progress……passed tests and regents exams. (T. page 72 and 74). The witness stated that he also works with the (“SETSS”) room for testing etc and that he tries hard to answer questions, thinks through problems and is very good” (T. page 73).

The witness described the “credit recovery” program which is available to students and stated that even though has lost a significant amount of time that it is not impossible for him to at least make up some of the credits. Furthermore there are several levels of competency so that the credit recovery can be “geared down” to a student’s ability in order that they can get recovery credits. (T page 76).

Upon cross examination, the witness stated that he first met in October 2010 and that this was the first year at the school. He did not recall if the IEP designated a “self contained classroom”, however his class was a co-teaching class (T page 79). After the first year the IEP was changed and recommended an integrated co teaching class. He currently teaches US history and he believes that Israel’s mid year grade was a 65 and that it would’ve been higher if he was present “more often” (T page 80). The witness stated that in the first term and also , which . (T page 82). He agreed that the student has which resulted in . Most of the incidents were of a and . (T. page 83). He was aware in his bag and that sometimes he would put it on at other times refuse. (T page 84).

The witness stated that the parent’s counsel and the Parent have worked against the school’s staff instead of being supportive of the rules. Mr. conceded that he did not have personal knowledge if had his uniform on when he leaves home and or changes his clothes on the way to school (T page 86),.

The witness recalled reviewing evaluations from ’s prior school wherein it was reported that he instead of going to class which . He stated that Israel seems to be defiant of rules as opposed to and that this is supported in the home environment. (T page 87).

The witness believed that a was being created as the school was waiting for a parental consent form which has been executed; however the IEP that is in place provides for the student’s needs. (T page 89). The witnesses stated that the current IEP mostly addresses the students needs, however, there is a code of conduct that students are expected to follow. (T page 90)

The witness was directed to exhibit# 5, and to the US history grade for the for the first six weeks of the February/March portion of the school year, wherein was given a grade of 55 by Mr. ; he believed that the poor grade was due to lack of work and attendance. (T 95). He stated that are so obvious that the entire staff was communicating to try to follow the rules. (T page 96). Despite all the efforts, has not been responding in any way to minimize his . (T page 97)

Upon further questioning of the witness he stated that has improved since he has entered the school(T page 98)but that it is still low…..his reading level has moved up to a level, his reasoning ability was described as “very good” when questions are read aloud.(T page 99). The witness stated that he knew however, that it would be absurd to attribute his progress to that alone as the staff has been working very hard. (T page 100).

Mr. testified that to the school and was “misplaced” in a program with improper diagnosis. However, he still believed that if he attends school. (T page 101); however conceded that . (T page 104). The witness also stated that he believed that even if a student is on ”.(T 106)

The last witness to testify was Ms. , the school principal, who stated that is similar to many students in her school with . She stated that his ” but that there are issues, however deferred to Mr. for details, as he is . (T page 115). She described the credit recovery process, however that it was her understanding that effective June 2012, students could only recover three credits for the lifetime of the four years in high school; however if he was in a Saturday recovery class prior to the implementation of the new rules, he could recover those credits(T page 117). The student would have the option of completing 3 credits of recovery during the summer or can go to a provisional summer school to sit for classes (T page 118). She opined that his best option would be to attend a three semester transfer school where he could graduate within two years; however he would be in classes with students who are only 14 or 15 years olds. (T 119).

Upon cross examination of the witness, she stated that she was aware that came to her school from a district program (T 122). He began at in March 2010 and that although there were behavioral issues they were not as extreme as they are now. She deferred to Mr. as to how many had and did not have recollection of same (T page 127). She defined a Superintendent’s as one wherein a student violates the discipline code and are often for “ ” and that they be for multiple low level suspensions. (T page 130). She defined a principal’s as one where the infraction is “low level”; she could not recall how many there was this year for (T page 133).

The witness stated that pursuant to Regulation A-443, that if a Parent refuses to attend a principal’s suspension conference, than in that event, it is within the Principal’s discretion to determine whether a is to follow. She was aware that served more that ten schooldays of this year and that a school is required to conduct a manifestation determination review if student with a disability has for more than 10 school days. (T page 135).

With reference to situations wherein a student such as has missed significant time from school and his impact the students academics there are things that can be afforded to the student. In this was offered Saturdays credit recovery, multiple sessions for make up, and or to attend a “transfer school” (T page 137).

Upon further questioning of the witness, she stated that if the school has cooperation from the Parent it can impact a , however if the Parent refuses to cooperate then the task is more difficult. Again, Mr. Dranch would be in a better position to elaborate if the parent worked collaboratively with the school staff (T 140). The witness conceded that Israel failed half of his classes’ since he entered the school, however accentuated that he passed 50% of his classes and believed that he has made progress.

In conclusion, the witness stated that in 2009 and 2010, was not having as many problems while he was and that his behavior has ” since he .

THE PARENT’S CASE

Dr. testified after being duly sworn that she possesses a doctorate degree in education from and maintains a professional practice working with students with different types of learning, attentional and behavioral challenges. She currently is involved with , wherein she has a team of specialists who provide instruction to students with special needs. Additionally, she is the author of a 13 part student workbook series called “Strategies for Study Success”. As the director of she personally meets and assesses each student in order to determine the best methodology to implement. She matches a specialist who is trained in the type of methodology most suitable for the student and communicates with each instructor on a weekly basis in order to make sure that the student is progressing. All instructors are certified in special education by the state of New York and trained in . (T. page 162).

charges $110.00 per hour for the instruction and there are no additional charges for additional work including but not limited to meetings and providing materials and manipulatives. (T page 164). She first in August 2010 and began working with him in April 2011. When she first met him, he was “pretty far below” grade level, more particularly at a second grade level for reading/spelling, sixth grade level for math, and a first grade level for written language skills. It was determined that the methodology would be implemented to develop fundamental skills. She described the methodology as multi sensory and in ’s case it has been working “really well”. Israel was recently assessed in May 2012 and tested at a 5th grade level for reading/spelling, sixth grade for math, and third grade for written language.(T page 165).

Parent’s exhibit “E” was shown to the witness which was a letter dated May 14, 2012 indicating that was receiving services from and received 580 hours of instruction. (T page 169). Services have been provided 6 to 10 hours per week throughout the course of the school year.

The witness stated that has made significant progress and that for the most part it is attributable to her agency’s efforts in providing intense instruction. As has a great deal of , the witness opined that with continued work he will continue to make significant progress (T page 174).

Upon cross examination, the witness stated that Mr. is a licensed special education teacher and that the instruction is provided approximately 1 ½ to 2 hours per session. Lastly, the witness stated that she recommended in the ideal scenario that Israel receive services 5 times per week, 1 ½ to 2 hours per session.

The last witness to testify was the parent who after being duly sworn stated that her son attends the . She did not believe his placement was appropriate as he was supposed to be in a class with no more than 15 students and that he is in a regular class with “a lot of kids” (T page 181). She complained to the school and stated that Mr. told her that her son did not belong in the school for the 2011-2012 school year; additionally she stated that her son was not making progress as “they always throw him out”. (T page 185).

The witness was directed to Exhibit “B”, which established that her son left the building while on suspension. She stated that she never received the and that on prior occasions she did not receive until she called the school. (T page 186); she unaware that she was supposed to receive a letter within 24 hours of the suspension. Concededly, she stated that sometimes the school calls, however she was never requested to come to the school to figure out a way to address her .

The parent unequivocally stated that her son’s progress is a direct result of the services and not as a result of anything that the school is doing. She stated there are too many students in his class and that he requires individual instruction. She believed that he took 5 regent examinations, however at a student in the classroom” (T page 190) and that he not given “ .,

Upon cross examination the Parent stated that she did not recall being called to the school for meetings. She believed that attended Saturday classes during the prior school year, however only attended one or two times this year due to . (T page 197).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A central purpose of the IDEA is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. 1400 [d] [I] [A]: Bd. Of Educ. V. Rowley, 458 U.S.

176. 179-181,200-0l. FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 US.C. 1401 [9] [0]; 34 RCNY 300.17. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate; the services selected by the parent were appropriate and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dept of Education, 471 US. 359 [1985]; Florence County Sch. District Four v. Carter, 510 us. 7 [1985]). The first step is to determine whether the district offered to provide a FAPE to the student. FAPE is offered to a student when (a) the board of education complies with the procedural requirements in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures are reasonably calculated to enable the student to receive educational benefits (Rowley at 206-07). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to FAPE, (b) significantly impede the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits {20U.S.c. 1415 [f][3][E] [ii] An appropriate educational program begins with an. IEP that 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 educational (Application of a Child with a Disability. Appeal No. 07-008, Application of the Bd. Of Educ., Appeal No. 06-076). The IDEA "expresses a strong preference for children with disabilities to be...educated 'to the maximum extent," appropriate with their non-disabled peers." See Walczakv. Fla. Union Free Sch. Dist.; 142 F, 3d 119,122 (2nd Cir. 1998). A FAPE must be provided to a child with disabilities in the "least restrictive setting consistent with the child's needs (see Perricelli v. Carmel Cent Sch. Dist., 2007 WL 465211, at lO*S.D.N.Y. Feb. 9, 2007], citing Walczak. 14'2 F.3d 2tl22).

As stated above the Parent ha requested an expedited impartial hearing for Israel pursuant to Part 200 and 200.22 of the Regulations of the commissioner of education. The Parent is challenging the alleged violations of the Student’s disciplinary and due process rights as afforded under IDEA, New York State Education Laws and section 504 of the Rehabilitation Act during the 2011-2012 school year. Pursuant to 8 NYCRR 201.2[e]; see 20 USC 1415[k] [1] [B]; 34 CFR 300.530[b] [2]; Educ. Law 3214[3] [g] [3] [vii], if a district is considering a disciplinary change in placement for a student with a disability, the district must conduct an “MDR “meeting within 10 school days of any decision to change the placement of a child with a disability. The participants at the meeting at the MDR meeting must include a district representative, the parents, and the “relevant members” of the CSE as determined by the Parent and district.

The Manifestation Team must review all relevant information in the students file including the students IEP, any teacher observations, and any relevant information provided by the parents if:

(1) the conduct in question was caused by or had a direct and substantial relationship to the students disability; or

(2) the conduct in question was the direct result of the school district’s failure to implement the IEP.

In the instant matter as stated above the MDR team determined that the student’s behavior/suspension was not a manifestation of his disability. I found that in IHO Case# , the determination by the MDR Team should be annulled as the team did not consider all the evidence as requested by Parent’s counsel at the meeting. This is more than simply a technical violation of the procedures for disciplining a student. However, as the 20112012 school year has ended and the issue is moot as to what may be accomplished.

In this case the Parent is requesting compensatory relief for the improper suspensions including but limited to the following:

1). A new FBA to assessment in to develop an BIP;

2) A reconvene meeting of the IEP team after the completion of the BIP;

3) the case to be deferred to the Central Based Support Team for placement in a non public school and

4) compensatory relief.

After reviewing all the evidence I agree with the Parent that the Department failed to provide Israel with a FAPE. The evidence has established that the Exploration Academy is not an appropriate placement for the student and the integrated co teaching class is not able to meet the student’s needs. Clearly , which have contributed to his . I also agree that the majority of the progress that the student has made was attributable mostly due to the efforts of the regiment. Additionally, I concur with Parent’s counsel that the Department failed to hold Manifest Determination Reviews as a result of the student being removed from school for more than 10 school days. A determination should’ve been made to determine if the series of suspensions were related to the student’s disability.

I find that if the if the result of the MDR is a determination that the students behavior was a manifestation of his or her disability, the district’s CSE is required to conduct an FBA and implement an IEP. Additionally, that the district must return the student to the placement from which he/she was removed, however that issue is moot as the school year has ended. Mootness may be raised at any stage of litigation (In re Kurtzman, 194 F. 3d 54, 58 [2d Cir. 1999].

In a proceeding such as this one, the fact-finder looks to: (1) whether the IEP (placement and program) proposed by the school district was procedurally and substantively appropriate (Prong I); and (2) whether the services provided by the parents were “appropriate” under the IDEA (Prong II). Burlington, 471 U.S. 359, 369-370 (1985); Carter, 510 U.S. 7, 12-14 (1993); Frank G., 459 F.3d 356 (2d Cir. 2006).

I agree with the Parent that is entitled to be educated with to the “maximum extent appropriate,” even if that requires additional support both in and out of the classroom. This is important because of the Supreme Court’s holding that parents have independent entitlements under IDEA that correspond to their children’s entitlements. See Winkelman v. Parma City School Dist., 127 S.Ct. 1994 (2007). , 853 F.2d 171 (3d Cir. 1998); See also L.B. v. Nebo School Dist., 379 F.3d 966 (10th Cir. 2004). The Department also deprived the child’s parent of meaningful participation in the development of the IEP and MDR meeting inasmuch as “predetermination” and other policies and practices that prevent the true individualization of the IEP program are considered impermissible. T.P. v. Mamaroneck Union Free School District, 554 F.3d 247 (2d Cir. 2009) (citing Deal v. Hamilton County Board of Educ., 392 F.3d 840 (6th Cir

2004) and it appears that this was the case herein.

Once there has been a material Prong I failure that results in a deprivation of a FAPE, the burden that parents must meet to satisfy Prong II standards is somewhat less stringent and more relaxed than the Prong I standard to which a school district must adhere in offering a child a FAPE. Accordingly, parents are not necessarily barred from reimbursement where a program that they choose for their handicapped child would not meet the IDEA’s definition of a FAPE, had the school district recommended such placement. See Frank G., 459 F.3d at 364 (citing Carter, 510 U.S. 7 at 14). The courts thus recognize that when a FAPE has been denied a child under Prong I, the child’s parents necessarily will be struggling against significant odds to cobble together an appropriate program. The Frank G. Court held that the unilateral placement need not be perfect, need not meet all of the child’s special education needs, and need not even be in the child’s least restrictive environment.

Furthermore, the unilateral placement need not offer the child an IEP or employ certified or licensed special education teachers. See Frank G., 459 F.3d at 364; Carter, 510 U.S. 7 at 14. In essence, “the test for the parents’ private placement is that it is appropriate, and not that it is perfect.” Frank G., 459 F.3d at 364 (referencing M.S. v. Board of Educ., 231 F.3d 96 (2d Cir. 2000); quoting Warren G. v. Cumberland County School Dist., 190 F.3d 80, 84 (3d Cir. 1999). Once the fact finder has made a determination in favor of the parents on the first two Prongs of the Burlington/Carter test for reimbursement, he or she may then determine whether equitable circumstances support the parents’ claims pursuant to Prong III, and order “appropriate” relief. See Still v. DeBuono, 101 F.3d 888, 891 (2d Cir. 1996)

The notice requirement of parents’ intent to seek reimbursement for a unilateral program and placement “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools.” See Application of the New York City Dept. of Educ., Appeal No. 07-032 (quoting Greenland School Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). Israel’s parent unilateral selection of program was appropriate and clearly has helped the student.

As the State Review Officer explicitly has recognized, “[i]n the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement.” See N.R. v. New York City Dept. of Educ., 07 CV 9648, 2009 U.S. Dist. LEXIS 27273 (S.D.N.Y. 2009); See also Appeal No. 05-087 (referencing Application of the Board of Educ., Appeal No. 05-030; Application of the Board of Educ., Appeal No. 04-091; Application of a Child with a Disability, Appeal No. 04-049). Moreover, in determining to what extent if any equitable considerations should reduce or diminish any reimbursement award, the fact finder is to look at the school district’s actions (and inactions) in working to offer a FAPE. See Application of a Child with a Disability, Appeal No. 03-003. Specifically, a school district’s denial of FAPE may “rise to such a level that a parent is not to suffer the consequences for the district’s violation.” Id. (referencing Warren G., supra, 190 F.3d at 86; Rose v. Chester Co. Intermediate Unit, 1996 WL 238699 (E.D. Pa. 1996), aff’d, 114 F.3d 1173 (3d Cir. 1997); Schaffer v. Weast, 546 U.S. 49 (2005); Wolfe v. Taconic-Hills Cent. School Dist., 167 F.Supp.2d 530, 534-535 (N.D.N.Y. 2001); Justin

G. v. Board of Educ., 148 F.Supp.2d 576, 586 (D. Md. 2001); Eugene B. v. Great Neck Union Free School Dist., 635 F.Supp. 753, 759 (E.D.N.Y. 1986)). Otherwise stated, parents’ actions (or inactions) may be “outweighed by actions [or inactions] taken by a school district which may have resulted in a denial of a FAPE.” Appeal No. 03-003, supra.

I will not repeat all of the details of evidence herein but the support and basis for my findings of fact and decision are grounded in that testimony as it appears above. I have considered the testimony of all witnesses who testified at the hearing. With respect to the issues presented at the hearing, I make the following findings of fact and note that the Department of Education did not timely offer the child a FAPE for the school year in question 2011-2012. Israel was denied an opportunity to obtain a “meaningful education” by virtue of an , wherein the student was deprived of his rights which impeded his ability to attend classes. The Department also failed to abide by its own recommendation as to placement of Israel in a small class.

The parent is entitled to receive a P-1 or Nickerson letter for the placement of her son in a nonpublic school setting as the student has been denied a FAPE for the reasons as stated above .(20 U.S.C. 1414(a)(1)(C)(i)(IL 20 U.S.C. 1414(a)(1)(D)(i)(I); 34 E.F.R. 300.301(C)(1)). I order that the Department issue a Nickerson Letter via a P-1 as set forth in Jose P. v. Ambach, 79 Civ. 270, 79 Civ. 560 and 79 Civ. (EDNY 1979) for a state approved private school and that the matter be remanded to the Central Based support and for the Student to receive compensatory services as stated in my order.

In the Matter of Jose P v. Ambach, 553 IDELR 298, 553 LRP 7461 (E.D.N.Y.1/5/82), Judge Nickerson reiterated parental notification procedures in an Order filed on July 8, 1982. Pursuant to this case, and section VII of the 1988 Stipulation (pp27-36) concerned the “Placement Process”; these provisions reiterated, clarified or increased the responsibilities of the Board to make the Nickerson letter process timely and effective. When deficiencies were identified, including but not limited to the student being suspended for an “extraordinary amount of time” the district should’ve notified the Parents of their non public school placement rights. The NYC Department of Education utilizes a P-1 for non public school placement if it is determined that a child has been denied a FAPE. It is my determination that the Department issue a P-1 as I find that as the CSE and MDR teams failed to and to address his needs. had been classified as “ ” at his last IEP meeting and his behavioral needs were not addressed.

The testimony of Dr. was compelling to establish the child’s needs and the Department’s own witnesses struggled and incredibly tried to be persuasive in concluding the was making progress by passing and same; his graduation is still highly “ ”.

It is my determination in placement and has had to engage in her school work without the proper supports and has been denied a FAPE for the reasons as stated above.

Additionally the courts have concluded that compensatory education i.e., special education services to a child may be awarded when a child has been denied a FAPE which he or she is entitled to receive. The term FAPE has been defined as special education and related services which are provided without charge to the Parents, and meet with standards of the state educational agency, and which are provided in conformity with the child’s IEP (20 USC 1401[a][18]).

Considering the above, both law and equity mandate that Israel’s due process complaint be granted, in all material respects as follows:

1. The Department shall pay for compensatory remedial services to be provided by for up to 360 hours at a rate not to exceed the sum of $110.00 per hour as requested in the Parent’s IHO demand letter.

2. The Department shall provide implement a in order to develop a BIP

3. The Department shall have a reconvene meeting after completion of the BIP

4. The case is to be remanded for placement in a private school Corrected Date: August 2, 2012 (Correction made to Actual Record Closed Date) Original Decision Rendered: August 1, 2012

_______________________________

GARY D. PETERS, ESQ.

Impartial Hearing Officer GP: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 APRIL 30, 2012

PARENT

A Suspension Decision Letter, 1/18/11, 6 pp. B Suspension Notification Letters, Various dates, 3 pp. C Evaluations, 2/18/11, 15 pp. D Evaluation, 7/15/11, 8 pp. E Correspondence Dr. 5/14/12, 1 p.

DEPARTMENT OF EDUCATION

1 Request for Impartial Hearing, 3/12/12, 2 pp. 2 Documents for Israel Rivera, Various dates, 2 pp. 3 IEP, 1/23/12, 15 pp. 4 IEP, 6/11/12, 14 pp. 5 Student/records/Report Card, Various dates, 2 pp. 6 Student Program Card, 4/2/12, 1 p. 7 Attendance Report, 4/2/12, 1 p. 8 Request for Physical, 12/14/11, 4 pp. 9 Re-Evaluation Request, 12/14/11, 1 p. 10 Request for Reconvene, 12/7/11, 1 p. 11 Evaluation, 2/11/11 & 2/18/11, 2 pp. 12 SSW/NOE Test Result Report, 7/5/11, 13 pp. 13 Student Progress Report, Undated, 2 pp. 14 Evaluation, 6/17/11 – 7/15/11, 7 pp. 15 Classroom Observation, 1/19/12, 1 p. 16 Vocational Assessments, 1/3/12, 1/6/12, 1/19/12, 6 pp. 17 Teacher Reports, Various dates, 11 pp.

18 Evaluation, 8/22/11 – 9/2/11, 8 pp. 19 Vineline Survey Interview, 9/21/07, 9 pp. 20 Social History Update, 1/12/10, 1 p. 21 Evaluation, 1/14/10 & 1/15/10, 7 pp. 22 Declination of Parent member, 12/14/11, 1 p.