New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 30, 2012

February 1, 2013

March 19, 2013

April 15, 2013

Actual Record Closed Date: May 20, 2013

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

District Representative DOE 08/30/12 02/01/13 03/19/13 04/15/13

Teacher DOE 03/19/13 04/15/13

PARENT 08/30/12

03/19/13

04/15/13 Leah Hill Attorney PARENT 02/01/13

03/19/13

04/15/13 Georgia Barker Attorney PARENT 02/01/13

03/19/13

04/15/13

PARENT 04/15/13

Amanda Fachler Legal Intern PARENT 03/19/13

04/15/13

On August 28, 2006 I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act, concerning a dispute between the Parent of a old attending a public school and the New York City Department of Education (“DOE”) - District . An amended Due Process Complaint (“DPC”) was submitted by the Lincoln Square Legal Services, Inc., on behalf of the student and his grandmother, who was designated by the student’s mother to make educational decisions on his behalf. (DPC) The hearing was held on August 30, 2012, February 1, 2013, March 19, 2013 and April 15, 2013. Adjournments were granted for cause or on consent of the parties. The parties opted to submit written closing statements which were due and were received on May 14, 2013. A list of the witnesses testifying and documents received into evidence is attached to this decision.

BACKGROUND

This case involves a year old student classified as “ ” in his Individualized Education Program (“IEP”) dated April 4, 2011. (Id.) At the “resolution meeting” the parties agreed to have the student , but the Parent asserts that the resulting and are procedurally inadequate address the student’s needs. (Id.) The Parent further alleges that the student’s . (Id.) Although the student’s IEP dated March 29, 2012 states that he has a BIP in place, there is no evidence that one was created. (Id.) Instead, the student has been and he . (Id.) Accordingly, the Parent seeks the following relief:

(a) Independent at public expense (Ordered at Tr. 32-3); and

(b) Parent ; and

(c) A reconvening of the to complete a new IEP incorporating the findings of the and recommending a placement; and

(d) Deferral to the CBST to investigate a non-public school placement at public expense that could meet [student’s name] unique needs; and

(e) Compensatory services to bring [student name] up to the appropriate grade levels , including but not limited to to fa during the 2010-2011, 2011-2012, and 20122013 school years; and

(f) Any and all additional relief that may seem just and proper under the circumstances.

The Parent served a “Notice to Admit” which the DOE objected to and did not respond to. (T-63-72) Over the DOE’s objection, the following facts were deemed “admitted”:

1. that the student is a -old male student, and has attended New York City public schools since September 1st, 2004.

2. that the student is eligible for and related services as a student with a

3. that the student became eligible for special education services during the 2006-2007 school year when he was in the 3rd grade.

4. that Exhibit A is a true and accurate copy of the original dated September 20th, 2006, completed by the school psychologist.

5. that the .

6. that the student grade.

7. that the student , going directly from grade.

8. that the student was grade.

9. that the student was

10. that Exhibit B is a true and accurate copy of the original IEP recorded at a meeting on April 4th, 2011.

11. that the April-May 2011 IEP reports that a is in place.

12. that the student did not have for the school year 2010-2011.

13. that the student attended P for the grade.

14. that the student was in the grade.

15. that Exhibit C is a true and accurate copy of the original IEP, recorded at a meeting on March 29th, 2012.

16. that the March 20 2012 IEP reports that a is in place.

17. that the student did not have a on March 29th, 2012.

18. that Exhibit is a true and accurate copy of the original IEP recorded at a meeting on May 1st, 2012.

19. that the May 2012 IEP reports that a is in place.

20. that the student did not have a plan on May 1, 2012.

21. that Exhibit E is a true and accurate copy of the original dated June 5, 2012.

22. that the June 2012 is the student's first

23. that Exhibit F is a true and accurate copy of the original IEP program recorded at a meeting held on June 21st, 2012.

24. that the May/June 2012 IEP reports that a is in place.

25. that the student did not have a plan for 2011-2012 school year until June 26th 2012.

26. that Exhibit G is a true and accurate copy of the original

27. that Exhibit H is a true and accurate copy of the original plan, undated, and without a start date

28. that the was given to [Grandmother’s Name] on June 26th 2012.

29. that the student began attending at on July 2, 2012.

30. that Exhibit I is a true and accurate copy of the original dated December 10, 2012.

31. that Exhibit J is a true and accurate copy of the original IEP program recorded at a meeting on January 8, 2013, and

32. that a is presently assigned to the student pursuant to the January 2013

IEP. (Id.)

At the pre-hearing conference on August 30' 2012, the student's grandmother was advised that this hearing was not the forum to appeal the student's (T-5) She was also advised that the Statute of Limitations precluded her from bring a claim in this case that arose before July 2, 2010. (T-12) The student's grandmother stated that a was conducted in June of this year that she agrees with. (T-13-4) Finally, the student's grandmother was advised to retain counsel if the matter were to proceed to a hearing. (T-18)

A second pre-hearing conference was held on February 1, 2013 after the student's grandmother retained counsel who amended the DPC on her behalf. (T-3-4) The grandmother's new attorney and the DOE representative agreed to conduct an of the student. (T-5) On March 19, 2013, after oral argument, the undersigned ordered that the student's grandmother could procure for the student the cost of which is to be paid by the DOE. (T-32)

THE DOE’S CASE

The DOE argues that the student's current public school has done everything to support his education. (T-73)

The DOE called (2) witnesses to testify on its behalf and submitted (5) documents in evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness was the student’s teacher for 2011-2012. (T-90) She is a teacher. (T-91) The student was in the at the time. (T-92) (Id.) She contacted the student’s . (T-94)

The DOE’s second and final witness is an assistant principal. (T-107) She “ the student September 6, 2012. (T-109) She does not recall if the student attended her summer school program. (T-110) The student’s grandmother came in and wanted to know what services they could offer the student. (T-110) Now that the student has a the student is doing much better both academically and behavior wise. (Id.) The student received a ” November or December. (Id.)

The witness stated that they were initially told by the student’s grandmother not to the student. (T-111) Then the grandmother conceded and she “ ” the student was ometime in November. (Id.) . (T-112) (Id.)

The witness conceded that the student’s IEP indicates that he has (T-118) The student’s IEPs also state that it (Id.) The witness also conceded that the student’s classroom. (T-119) The student needs positive interventions. (Id.) The student’s “could” have been implemented in January. (Id.) There was no re-direct examination of the witness. (T-120)

THE PARENT’S CASE

The Parent argues that the student is years old and has been denied a for the past (T-74) The DOE has failed to properly the student, failed to provide him with an adequate IEP, his FBA was improperly conducted and the BIPs referenced on his IEPs do not in fact exist. (Id.) The student has , but he is The Parent called one witness to testify on her behalf and submitted (30) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s only witness is the student’s (T-122) She is a retired ” (Id.) She “thinks” her daughter requested that the student be in the . (Id.) The classified the student as (T-124) She has never had the student at home. (T-124) The student does better (Id.) In the the student did very well and got “ and an award. (T-125) She was a little nervous about the student . (Id.) In the grade the student’s academic the classroom. (Id.) She “thinks” the student was in a “12:1” and “thinks” he had but it did . (T-126) The student had not been since the third grade. (Id.) In the grade the student could work. (Id.)

The witness testified that the student’s response to the student’s behavior was (T-127) She asked about a nd they told her that there wasn’t one. (Id.) She “thinks” the student had a in the 5th grade. (Id.)

The witness testified that the . (T-131) The student was , but she does not know if he was . (T-132) The student’s teacher was calling her she (T-133) Nothing was really mentioned about the student’s academics. (Id.) She asked the parent coordinator about the “ ” program for the student, but was told the program did not exist anymore. (T-134) . (Id.)

The witness testified that they were not aware of the student’s (T-135) However, after the student’s , the DOE told her to go back to the school and see what the student’s was. (T-136) When she did, they gave her something that looked like a that did not have the student’s name or his school on the document. (Id.) They had a “manifestation hearing” for the student. (T-137) In May, they requested that the student be . (T-138) During the process, the student was again. (T-139) If she is not “mistaken”, in January they assigned a to the student. (T-140)

The witness stated that “cursing” should be in the student’s current , but it isn’t. (T-141-2) The does help the student when he needs him. (T-142) Her daughter notarized a document giving her authorization to act on the student’s educational behalf. (T-143)

On cross examination, the witness testified that the student was doing really well in the grade. (T-144-5) In the grade the (T-146) The student took the . (T-147) The student was attending class in the grade. (T-148) The student has had at least . (T-148-9) Her daughter went to one of the hearings and she attended “maybe” two. (T-

150) They did not find out about the student’s until April. (Id.) She did refuse the DOE offer to the student because she wanted an . (T-153) The student is doing much better now with a . (T-154)

On re-direct examination, the witness testified that she requested an outside because an educator told her that one of the DOE she received made no sense. (T-154-5) The student’s actual grade scores were poor. (T-156) There was no examination of the witness. (T-158)

FINDINGS OF FACT & CONCLUSIONS OF LAW

The legal standard applicable to a request of reimbursement for educational services, such as in this case, is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate; (2) the services selected by the parent are appropriate; and (3) equitable considerations support the parent's claim. (Florence County School District Four v. Carter, 510 U.S. 7 (1993) (“Carter”)) The DOE first bears, the burden of demonstrating the appropriateness of the program recommended by its CSE. (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487 and SRO Nos. 97-44, 92-7 & 93-9) The DOE must establish that it appropriately ascertained the child's educational needs and prepared an IEP in accordance with the procedural and substantive requirements of Federal and State Regulations. (34 CFR 300.343-346; 8 NYCRR § 200.4 and 200.5)

The decision of the Supreme Court of the United States in Schaffer v. Weast, 546 U.S. 49, 126 S.Ct. 528 (2005), holds as follows:

“We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ. The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.”

(Supra, III, ¶2)

In this case, the DOE did not submit an answer/response to the Parent’s DPC or a Prior Written Notice (“PWN”) pursuant to 22 NYCRR § 200.5. The submission of a PWN is required by the IDEA. In the absence of PWN, the Parent is denied the right to review the CSE’s rationale behind its recommendation and its case in chief is prejudiced. A PWN would have essentially constituted an “answer”, i.e., a defendant’s first pleading or response to a pleading that addresses the merits of the case and usually sets forth the defendant’s defenses and counterclaims. (See Black’s Law Dictionary, 7th Edition)

A prima facie showing is one which is sufficient to authorize a finding on the matter in issue unless contradicted or explained. (See Am. Jur. 2d Evidence § 166) In the instant case, the DOE did not answer the Parent’s nor provide a when a change in educational placement was requested. If there is no evidence to contradict a prima facie case, it becomes conclusive and justifies a verdict. (Id.) Thus the Parent’s claims contained in her DPC, although “unsubstantiated”, may be ruled not only the showing of a prima facie case, but conclusive because the DOE has not answered or responded to the same.

Who has the burden of proof is determined by ascertaining which party, without evidence, would be compelled to submit to an adverse judgment on the pleadings before the introduction of any evidence. (Pacific Portland Cement Co. v. Food Mach. & Chem. Corp., 178 F.2d 541 (9th Cir. 1949)) In the absence of any pleadings having been filed and served by the DOE and without further evidence, this Hearing Officer would have to render judgment against the DOE. It is noted that no challenge to the sufficiency of the Parent’s DPC/pleading has ever been raised by the DOE pursuant to 22 NYCRR § 200.5(i). Accordingly, the burden of production, i.e., going forward at this hearing is appropriately placed on the DOE. What’ more, under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016)

The Second Circuit has determined that "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." (Id. citing, Cerra v. Pawling Cent. Sch,. Dist., 427 F.3d 186 at 195) The IEP must be likely to provide some "meaningful" benefit. (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]). Thus, an appropriate educational program begins with an IEP which accurately reflects the results of to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. (SRO Nos.: 07-008, 06-076, 06-059, 06-029, 04-046, 02-014, 01-095 & 93-09).

The Parent’s DPC also request an award of compensatory services. It is well settled that compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. (See Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]) Compensatory education may be awarded to a student with a who no longer meets the eligibility criteria for receiving instruction under the IDEA. (See 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5])

In New York State, a student who is otherwise eligible as a student with a , may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 C.F.R. § 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; SRO No. 05-084 & 05-037), or until the conclusion of the school year in which he or she turns age 21. (See Educ. Law §§ 3202[1], 4401[1], 4402[5]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 C.F.R. § 300.102[a][1], [a][3][ii] & SRO No. 04-100)

Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. (See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001] & SRO No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education])

Compensatory education relief may also be awarded to a student with a who remains eligible for instruction under the IDEA. (See 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]) Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a . (See Newington, 546 F.3d at 123 [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [ ]"]; Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at *23 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see also R.C. v. Bd of Educ., 2008 LEXIS 113149, at *38-40 [S.D.N.Y. March 6, 2008])

Likewise, State Review Officers have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. (See Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; SRO No. 09-111 [adding summer reading instruction to an additional services award]; SRO No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; SRO No. 09-044 [awarding "make-up" counseling services to remedy the deprivation of such services]; SRO No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; SRO No. 08-072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE]; SRO No. 08-060 [upholding additional services awards SRO No. 08-035 [awarding ten months of home instruction services as compensatory services] and SRO Nos. 06-074, 05-041 & 04-054)

A gross violation of the IDEA may result from the denial of, or exclusion from, educational services for a substantial period of time. See SRO Decision 04-074, citing Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990), Burr v. Ambach, 863 F.2d 1071 (2d Cir.

1988) and SRO Decision 02-047. In Burr, exclusion from educational services for a substantial period of time was defined as “almost two years.” See SRO Decision 02-033 citing Burr “…after a severely student's school was closed, prolonged delays in the administrative proceedings in obtaining a new placement resulted in a complete exclusion from any educational placement for the student for almost two years.” In the instant case, the outside services the student was mandated to receive in September of 2005 as the result of her June, 2005 IEP, remained unfulfilled until January of 2006. (T-83)

In SRO Decision 05-062, the State Review Officer did not find a gross violation of and held as follows:

….Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir.

1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988])….Here any deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction (Application of the Bd. of Educ., Appeal No. 04-016; Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a , Appeal No. 01-094). State Review Officers have awarded equitable relief in the form of additional educational services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Appeal No.

02-042; Application of a Child with , Appeal No. 02-030). In general, the award of additional educational services, for a student who is still eligible for instruction, requires a finding that the student has been denied a FAPE (Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 02-047)….I will direct the CSE to reconvene and consider what additional services are necessary to compensate for respondent’s failure to provide petitioner’s son a FAPE.

As stated above, an appropriate educational program begins with an IEP which accurately reflects the results of to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate services. (Supra) In this case, the DOE has not submitted any of the student’s in evidence. The Parent’s amended DPC asserts that the student’s IEPs dated April 11, 2011, March 29, 2012 and May 25, 2012 are all flawed under the law. (DPC) The only received in evidence that predates those IEPs is the student’s dated September 20, 2006. (P-A) There is nothing in record indicating that the student has ever been de-certified as a student.

Federal and State regulations mandate that each student with a be at least once every three years. (See 34 C.F.R. § 300.303[b][2] and 8 NYCRR 200.4[b][4]) The procedure for a requires that a group that includes the CSE and other qualified professionals, as appropriate, conduct an initial review of the existing data including information provided by the student's parents, current classroom-based assessments and observations, and observations by teachers and related service providers. (See 34 C.F.R. § 300.305[a][1] and 8 NYCRR 200.4[b][5][i]) Such review may take place without a meeting. (See 8 NYCRR 200.4[b][5][i]) Based on that review, and based on input from the student's parents, the CSE must then identify what additional information, if any, is needed to determine whether the student continues to have an educational , the student's present levels of performance, whether the student needs services, or whether any additions or modifications to the services are needed. (See 34 C.F.R. § 300.305[a][2] and 8 NYCRR 200.4[b][5][ii]) If additional data is needed, the school district shall administer tests and obtain other materials as may be needed to produce the needed data. (See 34 C.F.R. § 300.305[c] and 8 NYCRR 200.4[b][5][iii])

A CSE is required to review the IEP of each student with at least once every year. (See 8 NYCRR 200.4[f]) As indicated above, a CSE is also required to arrange for an appropriate if conditions warrant, but at least every three years. (See 8 NYCRR 200.4[b][4])

In determining what additional data are needed, the CSE, and other qualified professionals as appropriate, must review existing data. (See 8 NYCRR 200.4[b][5][i]) On the basis of that review, and input from the parents, the group must determine what additional data, if any, are needed. (See 8 NYCRR 200.4[b][5][ii]) The group may conduct its review without a meeting. (See 8 NYCRR 200.4[b][5][i])

As a general rule, prior to conducting a , parental consent is not required before reviewing existing data. (See 8 NYCRR 200.5[b][1][i]) When a CSE conducts a beyond reviewing existing data, it must obtain written consent from a parent prior to conducting additional assessments as part of the , unless it has taken reasonable steps to obtain consent and the parents failed to respond. (See 8 NYCRR 200.5[b][1][i]) If the parents of a student refuse to , the school district may continue to pursue the additional through the impartial hearing process. (See 8 NYCRR 200.5[b][2])

In the instant case, the only that predates the student’s IEPs was approximately on April 4, 2011, the date of the first challenged IEP. (P-A) As such, the CSE did not comply with the requirements of the law in creating the student’s IEPs dated April 4, 2011, March 29, 2012 and May 25, 2012. These IEPs relate to the student’s 2011-2012 and 2012-2013 school years. Accordingly, I find that the DOE has denied the student a FAPE for those two school years.

The Parent’s DPC asserts that the student has also been denied a for the 20102011 school year. Neither party addressed that assertion at the hearing and the record is devoid of any evidence that supports a finding for or against either side regarding the 2010-2011 school year. Therefore, I make no finding regarding the student’s 2010-2011 school year.

I next turn to the question of whether the relief sought by the Parent is appropriate. Here the Parent requests includes (a) an independent at public expense (Ordered at T-32-3), (b) a deferral to the CBST to investigate a non-public school placement at public expense that could meet unique needs (I decline to consider making such an order as jurisdiction is vested in the CSE to recommend a placement and the record is devoid of any evidence that the student requires placement in a New York State approved non-public school) and (c) parent counseling and training (the record does not sustain such a finding as it is devoid of information in this regard) (DPC)

The remaining requested relief is as follows: (a) a reconvening of the CSE to complete a new IEP incorporating the findings of the and recommending a placement and (b) compensatory services to bring the student up to the .

For the reasons stated above, the student’s 2010-2011 school year is not considered in this decision. I have already found that the student was denied a for the 2011-2012 and 2012-2013 school years. As such, this case amounts to a “gross” denial of for which compensatory services may be provided. (See Burr v. Ambach, (supra) and SRO Nos.: 02-033 & 02-047) I further note that there is evidence in the record that the student has (T-76, 102, 117, P-R, P-S, P-T, P-U, P-V, P-W and P-X) As a result, it is indisputable that the student has and the Parent’s request for compensatory services is appropriate.

Nevertheless, there is insufficient evidence in the hearing record to determine the actual compensatory services needed and the number of make-up sessions required. (See SRO No. 10-064) Accordingly, I will order the CSE to convene to complete a new IEP incorporating the findings of the student’s most recent , recommend a placement and determine and provide the type and amount compensatory services the student must receive.

There is nothing in the record that sustains a finding that the Parent has not cooperated with the DOE. The assistant principal, testifying for the DOE stated that the student’s grandmother initially refused to allow the agency to the student. (T-111) However, she also testified that after further conversations, the grandmother did allow the student to be sometime in November. (Id.) The grandmother pro-actively sought information about the student’s from the DOE and inquired about the program for the student. (T-127 & 134) Therefore, I find that equitable considerations do not bar an award on behalf of the Parent.

NOW therefore, it is hereby

ORDERED that unless the parties agree, the CSE shall re-convene within (30) days of the date of this decision to determine the nature and amount of educational services that the student missed due to his ; and it is further

ORDERED that the DOE shall provide additional compensatory educational services to the student in the nature and amount agreed upon by the parties or as determined by the CSE; and it is further

ORDERED that the CSE will prepare a new IEP for the student, incorporating the findings of the student’s most recent including his independent and recommending appropriate services and an appropriate placement for the student. DATED: June 13, 2013

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

ED:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

01 Document History 10/00-01/13 DOE 04

02 IEP 01/2013 DOE 13

03 Event Log 03/11-01/13 DOE 10

04 Response to Notice 02/28/13 DOE 01

05 Closing Statement 05/14/13 DOE 02

A 09/20/06 PARENT 04

B IEP 04/04/11 PARENT 11

C IEP 03/29/12 PARENT 14

D IEP 05/01/12 PARENT 15

E 06/05/12 PARENT 03

F IEP 06/21/12 PARENT 21

G 06/19/12 PARENT 13

H undated PARENT 08

I 12/10/12 PARENT 06

J IEP 01/08/13 PARENT 13

K IEP 01/08/13 PARENT 10

L 10/24/12 PARENT 03

M 01/07/13 PARENT 01

N 12/10/12 PARENT 01

O 11/23/12 PARENT 03

P 01/31/13 PARENT 01

Q 05/04/12 PARENT 02

R 06/04/12 PARENT 07

S 04/05/12 PARENT 09

T 03/27/12 PARENT 02

U 03/13/12 PARENT 02

V 02/14/12 PARENT 02

W 02/13/12 PARENT 02

X 01/19/12 PARENT 01

Y 12/2012 PARENT 02

Z Article undated PARENT 02

AA Article undated PARENT 02

BB Notice to Admit 02/28/13 PARENT 03

CC 10/24/12 PARENT 01

DD Closing Statement 05/14/13 PARENT 29