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: October 5, 2012

December 4, 2012

February 26, 2013

March 7, 2013

March 27, 2013

Actual Record Closed Date: May 2, 2013

Hearing Officer: Michael S. Lazan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 5, 2012

Parent/Mother (Via Telephone) — Student

ESQ., Attorney, Department of Education (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 4, 2012

ESQ., Attorney, — Student

(Via Telephone) — Student

ESQ., Attorney, Department of Education (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 11, 2013

Advocate — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 7, 2013

Attorney — Student

Parents

Attorney — Student

Attorney — DOE

Social Worker (Via Telephone) — DOE

Special Education Evaluation Placement — DOE

Officer, CSE 9 (Via Telephone) — DOE

IEP Coordinator (Via Telephone) — DOE

Special Education Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 27, 2013

Attorney — Student

Attorney — Student

DR., EBL Coaching (Via Telephone) — Student

Parents

Grandparent — Student

Attorney — DOE

By Due Process Complaint dated August 28, 2012, this matter came before me as Impartial Hearing Officer (IHO) pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1) et seq., and accompanying regulations, and the New York State Education Law, and accompanying regulations. Appended to the record are a listed of individuals appearing at this proceeding.

A motion to dismiss the Complaint for insufficiency was denied. The matter did not resolve during resolution. A prehearing conference was held on September 27, 2012, without an appearance from the parent. A hearing date was scheduled on October 5, 2012, where the parties discussed the issues.

Upon the application of the District on the 5th day of November, 2012, the decision date in this matter was ordered to be reset to December 4, 2012. The reason given was witness availability. There was no objection from the parent. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. The parties were provided written notice of the extension. (IHO Exh. 1)

The parent retained counsel in November, 2012, and parent’s counsel sought to amend the Complaint. This IHO allowed the amendment on November 23, 2012.

The amendment was filed on December 3, 2012. The parties convened on December 4, 2012 to go through subpoena issues. The second resolution period passed without resolution. A hearing date was held on January 11, 2013. By motion dated January 25, 2013, the District moved to dismiss certain claims on the grounds of the statute of limitations. (IHO Exh. 2)

Upon the application of the parent on the 4th day of February, 2013, the decision date in was ordered to be reset to March 5, 2013. The reason given was the need to submit papers in response to the District's motion. There was no objection from the District. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. The parties were provided with notice of the extension through email and written notice. (IHO Exh. 3)

The parent submitted opposition papers to the motion on February 6, 2013. (IHO Exh. 4)

Another hearing date was held on February 26, 2013. This IHO indicated that he would reserve judgment on the issues relating to the motion for dismissal. Upon the application of the parent on the 4th day of March, 2013, the decision date in this matter was ordered to be reset to April 4, 2013. The reason given was extensive testimony and issues. There was no objection from the District. The parties were provided with notice through email and through written notice. I reviewed 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was no showing of any financial or other consequences to the parties or to the student’s educational wellbeing. There was no showing of any prejudice to the District. (IHO Exh. 5)

Another hearing date was held on March 7, 2013. I issued an interim order denying the District’s motion to dismiss on March 26, 2013. (IHO Exh. 6) A final hearing date was held on March 27, 2013. Upon the application of the parent on the 30th day of March, 2013, the decision date in this matter was ordered to be reset to May 3, 2013. The reason given was the need to present briefs. There was no objection from the District. The parties were provided with notice through email and through written notice. I reviewed 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this is an appropriate matter for extension. There was no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 7)

Upon the application of the District on the 1st day of May, 2013, the decision date in this matter was ordered to be reset to May 31, 2013. The reason given was the need to present briefs and for the IHO to review them and render a decision. There was no objection from the parent. The parties were provided with notice through email and through written notice. I reviewed 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 8)

Briefs were received by this IHO after the close of business on May 1, 2013. (IHO Exhs. 9, 10) May 2, 2013 is the record close date in this matter.

FINDINGS OF FACT

The Student is a who is eligible for services as a Student with a . (Exh. 18)

The Student . (281, 333) The Student has . (220, 233) She is far proficiency in math. (172; Exh. 6) The Student’s working memory is . (Exh. 6) Full Scale IQ is , in the . (Exh. 6) She is . (270) Abstract concepts are to understand. (Exh. 6) The Student exhibited in kindergarten. (233) The parent was uneasy with the Student receiving services and felt the Student “just needed more time.” (233-234)

The Student was referred to the Child Study Team at her then-school, during . (221-222) The team met to determine whether the Student should be evaluated and AIS services. (222, 296-297) The parent continued to resist sending the Student to special education. (239) The Student repeated the first grade, during which the District sought to refer the Student to special education. (221) At this time, the Student did receive AIS services including Fundations, small group instructions in math, SETTS. (194-198, 208209, 296, 333) This was considered RTI. (297)

During second grade, in the 2010-2011 school year the parent obtained an assessment from the center at . (234) This document was submitted to the (287-288) The parent was sent a promotion in doubt letter in January, 2011. (194) The Student was “ ” academically during this time. (194)

The parent signed a consent for Student to be evaluation for special education services in January, 2011. (239) The parent sent the District a physical examination in late May to early June, 2011. (268) The parent had indicated that she would provide a physical. (300) An observation was conducted during which the Student was deemed to . (270; Exh. 7)

Testing in June, 2011 indicated that the Student was the rank in comprehension, perceptual reasoning, working memory, processing speed per the WISC-

IV. (Exh. 6) Full Scale IQ is 68. (Exh. 6) Woodcock-Johnson III testing indicated total achievement scores at the percentile, with a percentile rank in writing, math, a percentile rank in spelling, a percentile rank in applied problems, a percentile rank in math fluency, a percentile rank in broad math. (Exh. 6)

An IEP meeting was scheduled in June, 2011 determining the Student to be eligible for services and offering a program. (239; Exh. 1) The team deferred the placement recommendation because they did not want to transfer the Student for the last month of school. (275) The parent indicated that she was looking into sending the Student to a charter school at the time. (276) The District told the parent to make sure to let the charter school know of the recommendations for the Student. (276)

The Student’s report card for grade (first and second semester) indicated that the Student was in all math categories, two writing categories, two reading categories. (Exh. 13)

July, 2011 CELF-4 testing indicated that the Student was in of functioning for . (Exh. 10) The Student’s percentile rank was in core language, with . percentile rank in , percentile rank in . (Exh. 10)

Another IEP meeting was held on July 29, 2011, recommending a special class in a community school and adding related services of therapy and therapy. (Exh. 2; 274275)

The parent did not receive a notice designating a school setting for the 2011-2012 school year. (298-299)

For third grade, the parent enrolled the Student at for 2011-2012 after the school accepted the Student through a lottery. (299, 343) This school has a push-in and pull-out model where students receive SETTS in a group of 8. (153) The parent was under the impression that the school would be able to implement the Student’s IEP. (300-301, 341-

346) The school did not have any self-contained classes. (153-154) The Student was placed in a general education classroom with two general education teachers. (176)

The school is often not aware of whether Students have IEPs until after they enroll. (156) A charter school is a public school that works with the District to provide special education services for students. (172) The school takes direction from the District in terms of special education. (173)

After the Student began the school recommended that the Student be transferred. (305) The parent also requested a transfer of the Student. (304, 282) She first called the District in October, but was frustrated because she was sent from person to person without results. (305) An IEP meeting was scheduled for and held on December 20, 2011, during which the parent again requested a transfer because of class size considerations and the lack of related services. (Exh. 3; 308) She was told by of the District that the Student would be transferred in January, 2012. (310)

Thereafter, the Student did not receive a new school assignment. (Exh. 310) The parent contacted from the District, who told her to contact . (311) She contacted , but was told that she should have contacted . (311) At this time, the Student was below proficiency in all academic areas, including reading, math, writing, social studies, science. (Exh. K)

Eventually, Ms. told the parent to write a letter asking for a transfer. (313-314) The parent asked why she was not told this earlier. (314) The Student ended up being retained . (315)

The District made a placement recommendation in August, 2012. (307-308) The recommendation was for C.S. 300. (319-320) The Student attended this school but has had at the school. (322) The school has classes, counseling, speech and language therapy, occupational therapy. (324) The Student’s occupational therapy was terminated in December, 2012. (326) The therapist determined that the Student no longer needed it.

(327) Occupational therapy had started on October 18, 2012, though the school year began on September 6, 2012. (328) The school needs to add an occupational therapist because it is short staffed. (335)

The Student is two years older than the other children in the classes except for one child. (390)

For the first semester, the Student received . (Exh. 14) The Student did not during the year. (349-350) There has been an improvement in addition and subtraction, and she can tell more about the story than she had been able to. (349-350) The Student was not expected to meet her goals in decoding, writing, math. (Exh. Q) Progress reports indicate little progress in writing, math. (Exh. Q)

The parent has been told may be held back yet again next year. (325)

is scheduled to close at the end of the current school year. (319) The parent is now entitled to place her child at a school with a better “rating” that . (321)

Testing by EBL coaching in January, 2013 indicated that the Student was at the level in math and reading, and level in writing. (264) Staff at indicated that they could provide the Student with multi-sensory instruction in reading, math and writing skills.

(267) Staff at are trained in the Orton-Gillingham methodology. (269) The testimony from L recommended 720 hours of remediation if the Student were in public school, and 360 hours of remediation if the Student were in private school. (267-268)

CONCLUSIONS OF LAW

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

1. Child Find Violations, 2010-2011.

The "child find" provisions of the IDEA aim for Districts to identify, locate, and evaluate students who are suspected of being a student with a disability. 20 U.S.C. Sect. 1412(a)(3)(A); 34 C.F.R. Sect. 300.111; 8 NYCRR Sect. 200.2(a)(7)). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability." New Paltz Cent. Sch. Dist. V. St. Pierre, 307 F. Supp. 394, 400, n.13 (quoting Dep't of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 (D. Haw. 2001).

To determine that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate. A.P. v. Woodstock Bd. of Educ., 572 F.Supp.2d 221, 225 (D. Conn. 2008), aff’d, 2010 WL 104 9297 (2d Cir. 2010)(quoting Bd. of Educ. v. L.M., 478 F.3d 307, 313 (6th Cir. 2007)). The school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program. 8 NYCRR 200.4(a).

Here, the Student has been tested with a Full Scale IQ of and is at a very low level in many domains, including working memory, processing, applied problems, expressive and receptive language. The record indicates that the District staff were rightly concerned about the Student’s educational needs , and that teachers expressed concerns about the Student’s and math skills in and .

No referral was initiated by the District at that point. The District witnesses explained that its failure to evaluate the Student is a function of the parent’s resistance to the Student’s referral. The record supports the District on this issue. Moreover, I have reviewed the caselaw on this issue, and in fact the caselaw does indicate that parental resistance can relieve the District of its responsibility to evaluate a Student. Xykirra C. V. Sch. Dist. Of Philadelphia, 113 LRP 20165 (E.D. Pa. 2013) The parent presents no authority to support their position in this connection. Under the circumstances, I find that the District did not have a duty to pursue the evaluation of the Student through the date of parental consent.

The parent did sign a consent in January, 2011. However, the District did not classify the Student as eligible until June, 2011, when the school year was virtually over. Accordingly, a placement was not recommended until the following school year. The District contends that the parent did not present a physical examination to the District, and that the District could not accordingly complete the evaluation in timely fashion. However, the District does not present any authority to suggest that it is the parent’s responsibility to arrange for a physical evaluation of the Student. On the contrary, it is the District’s responsibility to conduct assessments of the Student. 8 NYCRR Sect. 200.4(b)(1). This evaluation must be conducted within 60 days of receiving parental consent. 8 NYCRR Sect. 200.4(7).^[1]

The District eventually classified the Student as eligible as a student with a learning disability in June, 2011. However, the District should have so found within 60 days of the January consent so that the Student could have received services for part of 2010-2011. I find that the District denied the Student a FAPE when it failed to provide the Student with services from March, 2011 (60 days after the consent) through the end of school in June, 2011.

2. Failure to Implement, 2011-2012.

The parent contends that the District failed to implement the IEP created for the Student in June, 2011.

First, the parent contends that the District failed to provide a Final Notice of Recommendation for the Student. The District contends that it provided the parent with verbal notice about the placement during the IEP meeting in June, 2011. The record indicates that the parent was intent on sending the Student to School for September, 2011 after the Student got into the lottery. The parent indicated as much to the District in the CSE meeting, and then enrolled the Student at the school on her own. Application of a Student with a Disability, Appeal No. 99-49 (1999)(while no Final Notice of Recommendation in the record, District witness testified that parent was provided with verbal notice of placement). Accordingly, I do not agree with the parent that the District denied her a FAPE by failing to provide written notice of the placement recommendation for the 2011-2012 school year.

Second, the parent contends that did not provide the Student with services per the IEP. There is no question that this is so, from the record. The District contends that the parent chose to send the Student to , which is a charter school that is not under the complete control of the District. However, is a charter school that operates with the New York City Department of Education as its LEA. To this IHO, it is the LEA’s responsibility to make sure that all schools operating within its authority comply with the IDEA. If an IHO or a Court were to hold that a charter school operating under the aegis of an LEA were free to violate the IDEA, then parents of that child and the child would be without recourse if the Student’s right to a FAPE were violated. Letter to Anonymous, 53 IDELR 127 (OSEP Letter, March 30, 2009)(“Regardless of whether a public charter school is: (1) a school of the local educational agency (LEA) that receives funding under 34 CFR § 300.705; (2) an LEA that receives funding under 34 CFR § 300.705; or (3) not a school of the LEA that receives funding under 34 CFR § 300.705 or an LEA that receives funding under 34 CFR § 300.705, children with disabilities who attend public charter schools and their parents retain all rights under Part B of IDEA. 34 CFR § 300.209(a)”)

The parents also contend that they alerted the District that the Student was not receiving her services at and that the District failed to offer the Student a new school placement until the following school year. The District admits that it received notice of this request, but argues that the parent should have written a letter to this effect. However, the District points to no authority – or reason – to indicate why a letter would be necessary in this kind of situation. Moreover, the record indicates that the District did not clearly inform the parent that a letter was necessary in this situation. I agree with the parent that the District should have transferred the Student to a placement that could implement the IEP once the parent provided notice to the District could not implement the IEP.

Accordingly, I agree with the parent that the District denied the Student a FAPE for the entire 2011-2012 school year.

3. 2012-2013 School Year Placement Claims.

The parent alleges placement claims in connection to the 2012-2013 school year. The parent alleges that the District recommended a failing school for the 2012-2013 school year. The parent also alleges that the District failed to provide the Student with occupational therapy for 2012-2013 until October 11, 2012. The parent also alleges that the Student has performed in writing, math and science and has made little progress in writing and math.

In regard to the allegations that the school setting , it has been held that claims relating to the school’s overall history are too speculative to support a finding of FAPE denial. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 195 (2d Cir. 2012). While I can certainly understand the parent’s concern about the Student being placed in a school with a poor track record after having been denied a FAPE in the prior school year, I do not believe that I can find FAPE denial on this basis.

In regard to allegations that the Student’s occupational therapy services were not implemented until October 11, 2012, FAPE denial can be premised on a failure to materially implement substantial or significant provisions of the IEP. Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000)(cited in A.P. v. Woodstock Bd. of Educ., 370 Fed. Appx. 202, 204 (2d Cir. 2010)). The question is whether the failure to provide occupational therapy until October, 2012 is a material deprivation of FAPE. While I would agree with the parent that it is inappropriate and wrong for the District to delay occupational therapy services until the second week of October, the record does not indicate that this is kind of failure had any material impact on the Student’s progress or right to a FAPE. The parent does not so argue. See Savoy v. District of Columbia, 844

F. Supp.2d 23 (D.D.C. 2012)(where school did not provide 50 minutes of required instruction per week, no finding of FAPE denial where no evidence in the record that student was deprived educational benefit).

The parent also alleges that the Student performed in various subjects, and that the Student adequate progress in math and writing. However, the parent did not allege that the IEP was inappropriate, and the parent did not allege that the District could not implement the IEP in connection to math and writing skills. The record also indicates that the Student did make some progress in math skills. I certainly would agree with the parent that the failure of the Student to make progress in decoding, math and writing is a significant concern, and the District should strongly consider providing the Student with a significant amount of additional services in writing, decoding and in math to make sure that the Student makes meaningful progress in the forthcoming year. Cf. Bougades v. Pine Plains Cent. Sch. Dist., 376 Fed App’x 95 (2d Cir. 2010)(affirming IHO and SRO decisions finding for District where District provided individualized daily multi-sensory instruction for a student). However, I cannot find that the progress reports alone constitute a sufficient basis for FAPE denial, especially given that the District’s program should be judged prospectively, i.e., as of the time the IEP is formulated. R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 186 (2d Cir. 2012). The parent also contends that the placement notice was 2012-2013 was late. However, a review of the Due Process Complaint reveals that this claim is not raised herein. A party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. Sect. 1415(f)(3)(B); 34 C.F.R. Sects. 300.507(d)(3)(I), 300.511(d); 8 NYCRR 200.5[j][1][ii]) or the original due process complaint is amended prior to the impartial hearing per permission given by the impartial hearing officer at least five days prior to the impartial hearing (20 U.S.C. Sect. 1415 (c)(2)(E)(i)(II); 34 C.F.R. Sect. 300.507(d)(3)(ii); 8 NYCRR 200.5[i][7][b]); Snyder v. Montgomery County. Pub. Sch., 2009 WL 3246579

(D. Md. Sept. 29, 2009); Saki v. Hawaii, 2008 WL 1912442 (D. Hawaii Apr. 30, 2008).^[2]

4. Relief.

Regarding March through June of the 2010-2011 year, and the 2011-2012 school year, the 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 free and appropriate public education. P. v. Newington Bd. of Educ., 546 F.3d 111 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990); see also Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005)(cited in Newington).

In Reid, the D.C. Circuit explained that compensatory education should be fashioned without a “cookie cutter approach” and that compensatory education must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place. Id., 401 F. 3d at 524; see also Friendship Edison Public Charter School v. Nesbitt, 532 F. Supp. 2d 121, 125 (D.D.C. 2008) (compensatory award must be based on a "'qualitative, fact-intensive' inquiry used to craft an award 'tailored to the unique needs of the disabled student"). A Petitioner need not "have a perfect case” to be entitled to a compensatory education award." Stanton v. District of Columbia, 680 F. Supp. 201 (D.D.C. 2011)

The record indicates that the proposed compensatory services are to designed to allow the Student to make up for the FAPE denial for 2010-2011 and 2011-2012. The Student’s particular difficulties were in reading, math, writing, and the Student was accordingly retained again for the third grade year. The Student now sits in a classroom with children who are two years younger than her, and is once more. The proposed compensatory education plan aims to address these special education needs through 720 hours of compensatory education over a two year period if the Student is in public school, or 360 hours of compensatory education if the Student is in private school. To this IHO, the Student’s future placement should not dictate a compensatory education reward, which aims to address past FAPE violations. Further, it is inappropriate to simply take the position that a private school is dissimilar from a public school simply because it is private. Knight v. District of Columbia, 877 F.2d 1025 (D.D.C. 1989) Under the circumstances, this IHO deems the 360 hours of compensatory education services to be an appropriate award for this Student. The parent may opt to use these services through , and may opt for the services to last for two years. Services must be completed by the end of the 2014-2015 school year. Dated: May 16, 2013

MICHAEL S. LAZAN, ESQ.

Impartial Hearing Officer

MSL: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 THE RECORD

PARENT

A Omitted. 133 -- B Omitted. 133 -- C Omitted. 133 -- D Omitted. 133 -- E Omitted. 133 -- F Omitted. 133 -- G Omitted. 133 -- H Minutes of CSE meeting, 12/20/11, 2 pages I Promotion in Doubt Letter, 1/20/12, 1 page J Letters, 4/5/12, 2 pages K '11/12 Trimester Three Report Card, 1 page L Letter from Parent, 5/24/12, 1 page M Letter from Parent, 8/27/12, 5 pages N Report to Community, 10/9/12, 2 pages O Letter, 10/17/12, 1 page P Grade 3 Report Card, 11/9/12, 1 page Q Measurable Annual Goals, IEP Progress Report from Fall 2012,

4 pages R IEP, 12/13/12, 13 pages S Letter, 1/22/13, 1 page T Letter from Dozier, 10/26/11, 1 page U Trimester Progress Report, 12/2/11, 2 pages V Letter from , 12/9/11, 1 page W Letter from , 10/11/12, 1 page X Letter from , dated 11/3/12, 1 page Y DOE Postcard Public School Choice, Spring 2013, 1 page

DEPARTMENT OF EDUCATION

1 IEP, 6/21/11, 10 pages 2 IEP, 7/29/11, 12 pages 3 IEP, 12/21/11, 11 pages 4 Final Notice, 8/13/12, 1 page 5 Notice of Recommended Deferred Placement, 6/21/11, 2 pages 6 Educational Report, 6/21/11, 7 pages 7 Observation, 6/15/11, 1 page 8 OT Evaluation, 7/25/11, 5 pages 9 Social History Evaluation, 3/16/11, 3 pages 10 Evaluation, 7/7/11, 4 pages 11 Contact Sheet, 1 page 12 Elementary School Cumulative Record, 1 page 13 Grade 2 Report Card, 3/30/11, 1 page 14 Grade 3 Report Card, 12/4/12, 1 page 15 Hearing Request, 8/28/11, 2 pages 16 Amended Complaint, 12/3/12, 5 pages 17 OT Annual Review Plan, 12/10/12, 2 pages 18 IEP, 12/13/12, 10 pages 19 IEP, 1/14/13, 11 pages

IMPARTIAL HEARING OFFICER

1. Timelines Notice, 1 page 2 District Motion, 1/25/13, 3 pages 3 Timelines Notice, 1 page 4 Parent Opposition, 2/6/13, 9 pages 5 Timelines Notice, 1 page 6 Interim Order, 3/26/13, 4 pages 7 Timelines Notice, 1 page 8 Timelines Notice, 1 page

9 Brief of Parent, 5/1/13, 18 pages

10 Brief of District, 5/1/13, 21 pages

Footnotes

[1] The record also indicates that the Student should have been classified as a student with a learning disability within 60 days of the signing of the consent. A learning disability “means a disorder in one or more of the basic psychological processes involved in understanding or using language,” spoken or written, which manifests itself in an imperfect ability to listen, think, read, write, spell, or do mathematical calculations. 8 NYCRR Sect. 200.1(zz)(6). The W-J III testing conducted by the Student in June, 2011 showed that the Student had “extreme low” working memory, “borderline” processing speed, with a total achievement score of the 4th percentile rank. Her spelling was at the 5th percentile, her math fluency was at the 9th percentile, her score in applied problems was only at the .5 percentile. This testing is consistent with the reports from the teachers, who indicated that the Student was doing poorly in regard to reading comprehension, and math. Speech and language testing from July, 2011 showed that the Student had significant deficits in receptive and expressive language. I infer from this testing that the Student’s academic levels in or about August, 2010 manifested a disorder in the basic psychological processes involving in understanding and using language manifesting in an imperfect ability to read, spell, write and do math, listen, and think.

[2] Accordingly, the parent’s request for a “Nickerson letter” must be denied because such relief is premised on a late evaluation or placement recommendation. See, e.g., M.S. v. New York City Dep’t of Educ., 734 F. Supp.2d 271 (S.D.N.Y. 2010)