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 26, 2013

May 8, 2013

May 13, 2013

Actual Record Closed Date: June 17, 2013

Hearing Officer: Mary Noe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 26, 2013

Attorney — Student

Parents

DR., Neuropsychologist (Via Telephone) — Student

Huntington (Via Telephone) — Student

District 75 Representative — DOE

District 75, Representative — DOE

Assistant Principal (Via Telephone) — DOE

Teacher (Via Telephone) — DOE

Unit Coordinator (Via Telephone) — DOE

Teacher (Via Telephone) — DOE

SEEVETA NEPAL, Guidance counselor (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 8, 2013

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 13, 2013

Parent Attorney — Student

Parents

D- Representative — DOE

D- Representative — DOE

The parent through their attorney requested a hearing on November 16, 2012. I was appointed on March 5, 2013. On March 8, I scheduled an impartial hearing for April

26. At the hearing on April 26, a motion was made to extend the compliance date. A second day of hearing was scheduled for May 8, 2013, however the parent was unable to attend. A third day of hearing continued on May 13, 2013.

The parent is represented by the Law Offices and challenge the Individualized Education Program (IEP) of 2011-12 and 2012-13. The district is represented by The student is old (dob 3/4/98) classified as . The student attends class at The Complaint (Exh. C) requests the following:

1. an order directing the Committee on Special Education (CSE) to provide place for the student in an approved non-public school, not a P-1/Nickerson letter

2. if the Department of Education (DOE) fails to secure an approved non-public school as stated in #1, then the DOE should secure placement in an appropriate private school

3. an order directing the DOE to obtain independent evaluations at its own expense including but not limited to a psychiatric evaluation, psychological evaluation, comprehensive evaluation

4. an order providing additional services, 655 hours of tutoring provided by

5. an order providing additional tutoring hours at

6. an order reimbursing $295 for diagnostic testing and $100 registration fee

7. transportation to and from the in the form of a MetroCard for both the parent and student

8. attorney fees

DOCUMENTS SUBMITTED INTO EVIDENCE

The IEP dated June 14, 2012. (Exh. H)

The recommendation was for a class, , , twice a week for 30 minutes; counseling one time per week for 40 minutes; service, one time per week for 40 minutes. The present levels of performs are that the student has an IQ extremely low range. The student’s academic achievement, functional performance and learning characteristics indicate that the academic areas except Art. The student did not pass his classroom exams. He is pulled out for Special Education Teacher Support Services (SETSS) to work on his IEP Goals. After averaging the grades, his report cards were pushed up to The student and is during class. The student acknowledges his struggles and at times is disruptive bust states that some of his classmates are always bothering him. The teachers and the student agree that he benefits from the support of a paraprofessional. The student does not follow directives well and often requires repetition and redirection. The teachers believe that he would benefit from after school help, reading more at home and using checklist to help him keep on track. The student’s rate of progress in all academic content areas is below average. He is functioning on a third grade level in reading, math and ELA. In the classroom he consistently performs below this level. The parent expressed concerns about the student not being tested as a

Standardized Assessed student. She believes he is capable of doing better but often chooses to play around. The parent also feels that he only applies himself to things that he finds interesting and that is why she would like him to be placed in an ICT class or high school. The parent specified that she no longer wants the student to be a part of She believes he would benefit from attending the after school program .

IEP dated February 11, 2011 (Exh. O)

The recommended program was for general education with special education teacher support services from a specialized school ( ) with a paraprofessional support in the general education class with related services.

IEP dated August 3, 2010 (Exh. Q)

The recommended program is for general education with special education teacher support services from specialized school ( ) with a paraprofessional support in the general education class with related services.

Evaluation dated May 3, 4, 2012 (Exh. I)

Student was referred due to his mandated three year re-evaluation. In a Social History dated August 3, 2004, the student was attending a District kindergarden class.

He was classified and was receiving related services. The Parent was requesting an impartial hearing at that time because she felt the student needed a less restrictive program. A evaluation dated August 5, 2004 indicated that the functioning was in the . A Vineland measure of adaptive functioning revealed Low functioning in the areas of communication, . In January 2005, the student was evaluated by . The results of the IQ were Extremely Low as to Verbal IQ, Nonverbal IQ, FSIQ and Spelling. The student was

Borderline in Math and Reading. A evaluation dated August 25, 2007 by John Saw indicated that student exhibited clear signs of , and social functioning deficits, and a Verbal IQ – , Extremely Low, PIQ Average, FSIQ – Borderline. In a history dated September 4, 2007, the parent wanted additional services for the student, disagreed with the Pervasive Developmental Diagnosis and wanted to the student to be in a more academically challenged class. In February 2008, the parent requested an re-evaluation.

The results of the evaluation on the WIAT II were as follows Word Reading –

Extremely Low; Reading Comprehension – Low Average, Numerical Operations

Borderline; Math Reasoning Borderline. In a classroom observation on March 18, 2008, it was reported that the student required refocusing and individual attention. At that time, the parent requested an impartial hearing for a private school. A psychiatric evaluation dated May 15, 2008 by Dr. stated that the parent was unhappy with the inclusion SETSS setting. The student was reported to have , was and exhibited . The student was diagnosed with NOS, Expressive NOS. And additional evaluation was completed on May 16, 2008 by Dr. who reported the student was easily distracted and exhibited significant depression. Dr. diagnosed the student with Adjustment Disorder , . Dr. recommended that the student remain in his current school setting

(SETSS D75 inclusion). In an annual review dated June 3, 2010, the student was reported to exhibit immature behaviors in class. He level for reading, writing and math.

In the annual review dated February 17, 2011, the student was and lacked basic skills.

He was having difficulty retaining information and did not exhibit higher level thinking skills. He was reading on and his math was reported to be on a second grade level. He continued to struggle relating to peers and was and with peers.

In the teacher reports the following information is provided: ELA: student has poor letter-sound recognition and poor sight word recognition. He had made little academic progress. Interventions with a paraprofessional, small group instruction, rephrasing directions and . Student’s ; he can then . The student is and is unable to take responsibility for his . His current Mathematics. Student will try to complete his work and assignments but does so with very little understanding of what he really needs to do. Even with one-to-one support he misunderstands directions or follows mathematical procedures that are irrelevant. He is unable to compute with single digit numbers. He has made little progress in terms of understanding. His frequent absences have contributed to his lack of academic progress. Interventions include one-to-one work with a paraprofessional, having questions read to him, rephrasing the information and providing step-by-step procedures. His current grade is 55%. Social Studies: The student struggles with many aspects of learning. His reading and writing levels are so low that he has a very hard time working independently on assignments. He has little ability for abstract thought and has difficulty putting thoughts into writing. He cannot write a basic paragraph and . He needs scaffolding and one-to-one help to complete written work that is more than one sentence long. He cannot think critically and lacks focus. He with informational recall. He gets very by other students. He is a nice boy but lacks social skills and does not realize when other students are playing with him. He engages in many inappropriate score of ). The student’s reading scores were in the Extremely Low range. His Math scores were in the Borderline The student’s limited and . He often engages in name-calling and cannot appropriately read social cues from other students.

The recommendations are the teaching approach such as multi-sensory, repetition, extending time, directions to be read aloud, use of scaffolding.

Educational Evaluation dated February 29, 2008 (Exh. BB)

The student was evaluated because of the parent’s request concerning the student’s academics and to determine the appropriateness of services. The student is diagnosed and the parent questions the accuracy of that diagnosis. The student has a history and . The student achieved a verbal IQ ) and a Full Scale ). On September 4,

2007, the student achieved a Verbal IQ in the Extremely Low range, a Performance IQ in the Average range and a Full Scale IQ in the Borderline range. He has difficulty transitioning from consistently repeating what he perceived as a peer incident to the testing situation. His was inconsistent. The student required an abundance of

Psychoeducational Evaluation dated January 6, 12, 2005 (Exh. YY)

Parent requested an evaluation to determine if the student could be in a higher functioning special education class. The student’s first grade was in a class for autistic children The parent does not believe and wants him considered for or a collaborative team teaching class setting. The student had , highly with transitions between tasks.

The student needed a lot of guidance and structure in order to complete presented tasks.

The student’s composite IQ , . The student needed a lot of , as well as tasks broken down into smaller segments in order to complete them. The student’s cognitive level was

Mildly Impaired range ( and academic skills ranged from . The parent acknowledged the student’s special needs but wanted him placed in a more challenging setting with maximum stimulation. The student most likely has the potential for somewhat higher functioning with proper supports.

Psychological Assessment dated August 25, 2007 (Exh. GG)

This exhibit is incomplete. It begins with the Clinical Assessment Summary. The assessment was requested by the student’s mother. An independent evaluation for school planning was given to the student on February 4, 2005 when he , . The student was classified . The parent said the student was and not . He obtained a full scale IQ of , with no differences between overall verbal and performance areas. Dr. Shaw findings indicate more than impairment and developmental anomalies in a number of areas. A diagnosis is more consistent with the students reports and history. The student contact. The student tended to and track of the task. When redirected, he was able to stay on task better. The student scored on Performance IQ ( on Full Scale ( range).

Psychoeducational Report dated August 5, 2004 (Exh. BBB)

Student was six years, four months in a District class ). He receives related services of physical therapy, and language. The student’s testing and attention. The student is functioning within . The student would benefit from a small structured environment with .

Neuropsychological Evaluation dated March 30, 2013 (Exh. FFF)

Test results are as follows: , ELA – months; ( ); Nonverbal IQ Low); );

Math ); Reading ); Spelling ); Full Scale )

In the summary, the student’s Full ( ) (Exh. FFF-013), however in the report, the Full Scale IQ is reported at 66 (Extremely Low) (FFF-005).

AREAS OF CONCERN AND RECOMMENDATIONS:

The student is in need of a complete psychiatric and mental health evaluation. A review of background material indicates a diagnosis . Parent disagrees with these diagnoses. The evaluations are somewhat dated. The descriptions of the student’s difficulties do not necessarily reflect student those . The student fell asleep after being up for some period of time. He presented with variable attention in which he suddenly lost attention without apparent change in A small classroom setting is needed with students with . He would need counseling. It is urgent that the student receive as much one to one tutoring and teaching in a one to one setting.

Huntington Learning Center dated July 2, 2012 (Exh. KK)

Slosson Visual Motor Performance Test: Poor; Slosson Oral Reading Test: 6th grade, fifth month, Rating: Poor; Writing Sample: Poor; Math: grade level varied from 1st to 5th grade dated May 15, 2008 (Exh. Y)

Dr. ’s reports that the student is currently in a large class with receiving inclusion services. His parent is this situation and would like her son to be provided with the proper educational and psychotherapeutic services. The parent stated that the student received and she is unhappy and feels he needs services, an after school program and counseling. In addition, the class is too large for his needs. The parent has some difficulty in accepting the student’s problems and tends to minimize them. The student has difficulty doing his homework but his mother described this as being “lazy.”

Dr. recommends that the student be placed in a smaller class. An after school program would be helpful to help him with his homework and whatever he found difficult in the class; extra tutorial services ; occupational .

Dr. dated May 16, 2008 (Exh. Z)

The evaluation was requested by the court in an attempt to help decide whether the student continues or whether he goes to a different school, as requested by his mother. Dr. observed the student in the class and he did not relate to any other children.

The student’s reading has not improved because of his difficulty in learning and paying attention and staying fixed on a subject.

Dr. ’s evaluation results were that his reading was very poor than students of his age. He knew nothing about geography, New York, the state or country. He wanted to draw and he is . He had significant depression on the Depression Scale for Children. As to Axis I – with and , Difficulty in social interaction – .

The recommendation stated that the parent feels he is not in the right place.

However, the school has an enormous amount of didactic effort to provide the student with extra resources. It is advisable for him to have a neuropsychological testing to determine what is impairing his . He is not progressing properly in school. It may be possible to remove obstacles such and some depression with proper evaluation and treatment. The student wants to stay in this school. He should continue to be carefully monitored to determine if he continues to progress. If he does not progress over the next six months, he should be placed in a more restrictive environment.

TESTIMONY

testified that she is the District SETSS provider for the student. She worked with the student during the 2011 – 2012 school year providing classroom support and working with him at a separate location to address specific academic deficits to reinforce classroom work and IEP goals. The student benefited from one-to-one instructions, being in a smaller setting with minimal distraction and adult support. The student’s grades/report card are a combination of the classroom performance grades and the grades from working on his IEP goals. He was able to pass on his report cards because he achieved most of the goals on his IEP. The student is alternatively assessed. He took the NYSAA and did very well. At the beginning of the school year, the student was able to follow along in the general education classroom and apply basic skills, however as the months went on and the work became more challenging, he was not able to maintain on task. The student for his age and could be inappropriate with both his peers and staff. He had a when speaking to others. He required constant redirecting in class and during social activities. Ms. used her own based on the points and rewards system. He has information. The student needed . With lots of repetition, the student was able to apply the work that Ms. worked on. (T. 37, 76) The student achieved his IEP February 2011 goals. (T. 38) As of April 2012 each of the goals with the exception of two the student made little progress. (T. 38) Many of the goals in the 2012- 2013 IEP are repetitive of the goals in the February 2011 IEP. (T. 41) During the 2011 – 2012 school year the student made little progress. (T. 54) He made progress, however sometimes he was able to do the work and sometimes he was not. (T. 57) His achievement is inconsistent. (T. 58) When the student , he said it was because he was playing video games till late in the night. The paraprofessional would let him get a drink or splash water on this fact. (T. 58 – 59) The student’s report card reflects his work in class as well as his work with Ms. Walton. (T. 66, 68, 70, 73) On the New York State Alternative Assessments the student scored on the eighth grade level in reading, math and language arts. (T. 89)

On the Scantron reading, math and ELA assessments, the student scored on a third grade level. (T. 81)

Ms. attended the 2012 IEP meeting. (Exh. H) The parent did not attend. This meeting was scheduled for the third time. At the meeting Ms. discussed her findings from her evaluation. The student’s classroom performance, behavior and attendance were discussed as well as homework completion and social interaction with other students. (T.

86) The team discussed how the student would perform in a general education setting because Ms. remember that the parent wanted nothing to do with D-75. Ms. Walton stated that the parent told her she wanted the student to go to private school. (T. 87)

testified that he is the . Ms. testified that the student received all his services from September 2009 till June 2012. (Exh. 4, T. 9, 10)

Mr. stated that he observed the student in class. He felt from his observations that the student was an outgoing, happy student who needed lots of assistance from the paraprofessional in the classroom because of the amount of work and the demands that were placed on the student. (T. 17) At times, the student could be inappropriate with other students. (T. 18, 19) Therefore, the paraprofessional was with the student at all times, even during lunch. (T. 20) The paraprofessional redirected the student to take notes, to complete simple tasks. The student needed redirection. (T. 21) The school has a positive . (T. 23) In the classroom the student with the general education teacher. Mr. would go into the class to help support the teacher and support the student.

, the unit coordinator testified that at the school there is a PBIS, positive behavior intervention support program, which is a point system. (T. 96) Ms. testified that the parent told her and the student that when the student entered the school he would not be there long because she wanted him in another program. (T. 98, 113)

, is the student’s math teacher one period a day and his homeroom teacher (T. 117, 118) The student’s needs are more individual attention. Instruction must be repeated. (T. 117 – 118) Mr. testified the student is on a math level. (T. 119) He has made progress from a fifth grade level in the beginning of the school year. (T. 119) On , the student scored below ninth grade level in math. (T. 126) The student’s overall performance is inconsistent. (T. 128)

, school psychologist testified during counseling the student has anxiety and states that he does not belong in this school and he belongs in a standardized program.

(T. 130) The student is more acclimated but still believes he is going to another school.

(T. 131) Ms. testified that the student will be able to meet his IEP goals. (T. 135, 137, 139, 141, 142) The student has made progress in that he is more focused and he doesn’t interrupt as often. He is less distracted in group sessions. (T. 139) The student is often absent and therefore does not attend counseling. (T. 143) Dr. Eugene Newman, a certified board neuropsychologist testified that at the parent’s request, he did an evaluation of the student on March 30, 2013. (Exh. GGG) The student’s educational needs are that he is skills. (T. 181) The student needs a program related to his classification , which is on he and . (T. 181) The 2008 is valid today and historically. “People don’t wake up the next day and don’t have autism anymore.” (T. 187, 188) In this case, is not sufficient to address the relating to the student’s particular disability. There is no specific assessment of the student’s . There is no test or . (T. 194) The student needs intense one to one help. (T. 197) A program does not provide enough information to determine if it is appropriate. It depends on what the is. (T. 200) For a student with and and , he needs to be in a classroom that’s more individualized, that meets his specific learning style, that has a lot of repetition. The student needs an AA program and more individualized with a lot of repetition. His needs are not meet in a setting of different diagnoses. (T. 204) The student needs a full, . His 2008 evaluation is outdated for his current psychiatric needs. He needs a sleep evaluation. (T. 205) The student needs updated evaluations, a functional behavior assessment. (T. 206) In a general education program, the material is way above his head. The student does not have the attention skills. (T. 208) The student would benefit from individual tutoring. (T. 218) The student needs expertise, like has who understand evidence based reading programs and how to work with the student’s particular type of . (T. 219, 233) A program in inappropriate based on the composition of the students. (T. 231) An IQ score or number doesn’t matter. The profile matters to some degree. It’s the subtests and the strengths and weaknesses that matter. (T. 236) Borderline IQ is above Extremely Low. , moderate and mild retardation. (T. 236) A person that scores in the has mild retardation. (T. 237) If a student has a full scale IQ and there , comprehension and vocabulary are all average, then he would be reading at average levels. (T. 237) Dr. testified that in his testing, people with reading levels varied from . (T. 238) There are a lot of people that can be 12/13 grade math level. (T. 239) This student should have Applied Behavior Analysis (ABA) methodology. (T. 240) He also needs as much one-to-one help as needed. (T. 241)

The Parent testified the student has a learning disability. (T. 322) The student is unable to catch up because he doesn’t get enough help in school for him to be on grade level. (T. 322) The Board of Education gave him the label of learning disabled. (T. 323) The student has been on a level and then regressed to and is on “standstill.” (T. 323) The Parent stated that she believes the student would flourish in a non-public school setting where he can get more one-to-one. (T. 326, 327) The Parent testified that she wants , make progress and graduate and become employable. (T. 329) The parent testified “And I got texts, and I got letters stating that I went to the school telling them that they could either amend [the student’s] IEP, because that IEP was done without my approval or without me even being there, and I asked them if they could place [the student] in another school, and they told me there is no more placement. They gave me a final recommendation without even giving me another recommendation. That was what I had to deal with . And in order for me not to get , and my from me, I had no other choice but to put him in that school.” (T. 330 – 331) The parent stated that through the was in a collaborative team teaching with twelve special education students, one special education teacher and twenty five general education students and one general education teacher. (T. 347). In middle school the student was placed in a general education class with one paraprofessional and a SETTS teacher. (T. 347, 351) For the school year 2012 – 2013, the district offered a school with a . The social worker and assistant principal told her that a lot of the children there has and are on probation and therefore her son was not a good fit for that school. (T. 355) After the June 14 IEP meeting, the Parent was called in August. (T. 359) The parent described her son telling her he was being picked on by the . (T. 363) In the current school, the student is with other students in wheelchairs, some are , some . The student is isolated there. Some of the students in his clas are 19, 20 and 21. (T. 364, Exh. NN, OO) The students watch porn on their phones, they always curse at the teachers, someone or taking someone to the hospital.

(T. 364 – 365)

DISCUSSION

In determining whether the IEP proposed by the district was appropriate, the Court must determine "(1) whether the state complied with the procedural requirements of IDEA, and (2) whether the challenged IEP was 'reasonably calculated to enable the child to receive educational benefits.' " Walczak v. Florida Union Free School Dist. 142 F.3d 119, 129 (2d Cir.1998) quoting Board of Educ. v. Rowley, 458 U.S. at 206-07.

In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation, the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]). In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).

ADDITIONAL EVALUATIONS

From August 2004 till March 2013, this student has received six evaluations calculating his cognitive, IQ levels. These evaluations are extensive as to tests performed and results. All evaluations have similar results, the student achieves either an Extremely Low (3) or Borderline (3) score. (Exh. I, BB, GG, YY, BBB, FFF)

In 2008 the student had . One evaluation recommends a smaller class. The second evaluation has a diagnosis . The second evaluation recommends a neuropsychological evaluation. (Exh. Y, Z) The parent’s witness, Dr. testified extensively regarding the lack of information as to the different types of working memory to be assessed, the specific conditions that will facilitate the student’s ability to learn. (T. 196, 197) However, Dr. stated that the student needs to be in a classroom that’s more individualized, where he gets lots of repetition.

completed a Student Progress Report for 2011 2012. Ms. s report indicates that the students uses inappropriate , such as name calling as a way to address his peers. The student responds to adult intervention but continues with this behavior the “next chance he gets.” (Exh. L)

I find no basis for additional testing or evaluations.

APPROPRIATE EDUCATION TO ADDRESS STUDENT’S DISABILITIES

The student’s IQ testing from 2004 to 2013 is stated as Borderline to Extremely low. Dr. Newman’s findings in March 2013 are as follows:

Test results are as follows: Reading – 3rd grade, Math – 3rd grade 2 months, ELA – 3rd grade 6 months; Verbal (Extremely Low); ( ); (Extremely Low); Math 73 (Borderline); Reading ); Spelling (Extremely Low); Full Scale ( ) (Exh. FFF) Dr. testified that a score in . (T. 237) Dr. testified that the student has a and as a result has difficulties with social interaction and . (T. 181)

testified that she is the District 75 SETSS provider for the student during the 2011 – 2012 school year providing classroom support and working with him at a separate location to address specific to reinforce classroom work and IEP goals. She stated the student was very immature for his age and could be inappropriate with both his peers and staff. He had a difficult time maintaining when speaking to others. He required constant redirecting in class and during . He has information. The student needed a slower pace and more repetition. With lots of repetition, the student was able to apply the work that Ms. worked on. (T. 37, 76)

, the school testified during counseling the and states that he does not belong in this school and he belongs in a standardized program. (T. 130)

The Parent testified she believes that the student has more of a learning disability than autism. (T. 354)

In a Psychosocial History dated September 4, 2007, it states that parent “would like him to be more challenged academically…he and another student are the only children able to speak. The rest of the student[s] do not talke and (Exh. 10)

According to Dr. Evaluation dated May 2008, the student was diagnosed with pervasive developmental disorder when he old. In the student was in an inclusion class with 34 other students. He received occupational and . The parent at that time was unhappy and felt he needed more intensive tutorial services, an after school program and counseling. The parent felt the to address the student’s needs. Dr. Datta reported that the parent had difficulty in accepting the student’s problems and had a tendency to minimize them. (Exh. Y)

In the Educational Evaluation dated February 29, 2008, under the category, Background & Behavioral Observation, it states the student “reportedly has a diagnosis of PDD-NOS, and his mother is concerned about the accuracy of the diagnosis.” (Exh. BB p.1)

The IEP dated June 3, 2010 recommends for , general education with special education teacher support services from District 75 (SETSS) for five periods per week and an individual paraprofessional. (Exh. Q)

The IEP dated February 17, 2011 recommends general education with special education teacher support services from a SETSS) for five periods per week and an individual paraprofessional at the . Under the heading Other Programs/Services Considered and Reasons for Rejection, it states “General education without the support from District was considered but rejected because of the continued support [the student] needs to maintain his social and academic progress. A self contained setting was considered but rejected because it would negatively impact [the student’s] academic and social development. (Exh. O)

I find no support that the February 17, 2011 did not address this student's individual’s needs as a student with a significant cognitive deficit and considered the parent’s position that her son needed a more challenging program. The student was originally in a more restrictive program and was given an opportunity to learn in a less restrictive setting. The student had the support of the special education teacher in the class and a one-to-one paraprofessional to help him focus on the subject matter.

The Evaluation dated May 3,4, 2012 reviews the extensive history of the student. In the heading Teacher Report, ELA: student struggles significantly in ELA. He is low functioning whose processing speed and ability to is very low. Even with the help of a paraprofessional he . He is by others. He has recognition. He made progress during the 2011-2012 school year. The student’s , he can and . He is and unable to take responsibility for his actions/learning. Mathematics: The student . He tries to complete his work and assignments but does so with very little understanding of what he really needs to do. Even with one-to-one support he misunderstands directions. He has an extremely limited understanding of mathematics. He and cannot solve word problems. He is unable to compute with single digit numbers. The student’s frequent absences have contributed to his lack of academic progress. The student received a full scale IQ of 66 percent. (Exh. I)

This thorough updated is consistent with prior evaluations.

The IEP dated July 9, 2012 recommends as class in a special school with related services of speech and language therapy and counseling. (Exh. H) In the IEP under the heading Academic, Developmental and Functional Needs of the Student, Including Consideration of Student Needs that are of Concern to the Parent, it states “ [The student’s] mom has expressed concerns about him not being a Standardized Assessed student. She believes that he is capable of doing better, but often chooses to play around. [The student’s] mom also feels that he only applies himself to things that he finds interesting, and that’s why she would like him to be placed in an ICT Class or high school. [The parent] made it clear that she no longer wants [the student] to be a part of

D75. She [stated the student] would benefit from attending the after program at Huntington. (Exh. H p.2, 3)

Dr. Newman’s neuropsychological dated March 30, 2013, approximately ten months after the IEP meeting of June 9, 2012 indicates that the parent sought the evaluation because “’an impartial and evaluations are needed for hearing [The student] needs new tests for his age.’ She would in the city, also to Huntington Learning Center. Mother reported that [the student’s] strengths is that he is a noble, charismatic, sweet person. He does his own thing and he doesn’t let people get to him. He’s and works well by himself. He loves movies in which he pauses and draws the picture in detail.” (Exh. FFF p.2) “During the evaluation what was most problematic was markedly variable attention which required almost constant redirection to elicit his best responsiveness.” Parent disagrees . A is indicated. A small classroom setting is needed with students with similar cognitive, academic and social skills. (Exh. FFF p.15)

A class profile for the student’s home room and math class indicates that the students in the class range from grades 9 through 12. The students' age levels are from 15 to 19. There was no testimony to understand the information on the form (Exh. NN) The parents contend that there was an unacceptably broad range of students in the assigned classroom. State regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR 200.1[ww][3][ii], 200.6[a][3], [h][3]; see Walczak, 142 F.3d at 133 [approving an IEP that placed a student in a classroom with students of different intellectual, social, and behavioral needs, where sufficient similarities existed]; Application of a Student with a Disability, Appeal No. 09-082; Application of the Dep't of Educ., Appeal No. 08-095; Application of the Dep't of Educ., Appeal No. 08-018; Application of a Child with a Disability, Appeal No. 07-068; Application of a Child with a Disability, Appeal No. 05-102). State regulations further provide that determinations regarding the size and composition of a special class shall be based on the similarity of the individual needs of the students according to: levels of academic or educational achievement and learning characteristics; levels of social development; levels of physical development; and the management needs of the students in the classroom (8 NYCRR 200.6[h][2]; see 8 NYCRR 200.1[ww][3][i][a] – [d]). The social and physical levels of development of the individual students shall be considered to ensure beneficial growth to each student, although neither should be a sole basis for determining placement (8 NYCRR 200.6[a][3][ii], [iii]). Further, the management needs of students may vary and the modifications, adaptations and other resources are to be provided to students so that they do not detract from the opportunities of the other students in the class (8 NYCRR 200.6[a][3][iv]). State regulations also require that a "district operating a special class wherein the range of achievement levels in reading and mathematics exceeds three years shall, . . . , provide the [CSE] and the parents and teacher of students in such class a description of the range of achievement in reading and mathematics, . . . , in the class, by November 1st of each year" (8 NYCRR 200.6[g][7]). However, State regulations do not preclude a grouping of students in a classroom when the range of achievement levels in reading and math would exceed three years (see Application of the Dep't of Educ., Appeal No. 08-018; Application of the Bd. Of Educ., Appeal No. 06-010; Application of a Child with a Disability, Appeal No. 01-073). Finally, State regulations provide that the age range of students in a special education class who are less than sixteen years old shall not exceed thirty-six months (8 NYCRR 200.6[h][f]). 6

Based on the evidence in the hearing record, I am not persuaded that the student could not have been suitably grouped for instructional purposes within the recommended class (see M.P.G., 2010 WL 3398256, at *10-*11 [noting that student was not denied a free and appropriate public education (FAPE) when the hearing record showed that the student was suitably grouped for instructional purposes]; W.T, 716 F.Supp.2d at 290-292 [S.D.N.Y. 2010] [holding that a district did not fail to offer a FAPE where the age range within a student's proposed class exceeded 36 months because the student could have been functionally grouped with other similarly-aged students within the class who had sufficiently similar instructional needs and abilities in both reading and math]; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [S.D.N.Y. 2009]).

I find the 2012 – 2013 IEP appropriately addressed the student’s needs.

COMPENSATORY SERVICES

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

Within the Second Circuit, compensatory education 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 FAPE (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 [FAPE]"]; 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 generally R.C. v. Bd of Educ., 2008 U.S. Dist. LEXIS 113149, at *38-39 [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 (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]; Application of a Student with a Disability.

However, there is no support in the record that the student was denied any related services nor do I find that the student was denied a free appropriate public education. Dated: June 27, 2013

________________________

MARY NOE, ESQ.

Impartial Hearing Officer MN;mv

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 Response to impartial hearing, 11/30/12, 4 pages B Sufficiency determination, 12/12/12/ 1 page C Impartial hearing request, 2/8/13, D Due process response, 2/14/13, 4 pages E Letter from , 12/17/12 F FNR, 10/4/12, 1 page G Rejection of placement, 6/20/12, 1 page H 2012-2013 IEP, 7/9/12, 17 pages I Psycho-educational evaluation, 5/3/12 and 5/4/12, 11 pages K Progress report, counseling 2011/2012, 2 pages L Progress report, speech, 2011/2012, 2 pages M report, 2012-2013, 2 pages N sheet, fall 2011, 12 pages P update October 7, 2010, 2 pages O IEP, 2/11/11, 14 pages Q IEP, 8/3/10, 8 pages R progress report, June 2009, 2 pages S progress report, 6/16/09, 1 page T IEP, 6/16/09, 13 pages U IEP, 9/9/08, 16 pages V IEP, 8/11/08, 16 pages W FNR, 8/12/08, 1 page X IHO decision, 6/3/08 Y P report, 5/1/08, 5 pages Z Dr. evaluation, 5/16/08 AA FNR, 3/19/08, 1 page BB Educational evaluation, February 29,2008 , 3 pages CC Resolution agreement, 2/20/08, 2 pages DD Letter from parent, 2/20/08, 1 page EE FNR, 1/30/08, 1 page FF Letter from parent, 1/17/08, 1 page GG Assessment , 8/25/07, 3 pages HH Letter from parent, 11/13/07, 1 page II Letter from parent, 10/14/05 JJ Agreement and order, 8/12/04, 6 pages KK evaluation results 7/3/12, 52 pages LL program map, 1 page MM Functional communication profile revised November 2012, 5 pages NN Profile for Class 1 page OO Profile for 1 page PP Report card, 1/2/13, 1 page QQ Revised report card, 4/10/13, 1 page RR IEP progress report, 2012/13, 12 pages SS Speech and language progress report, 3/20/07, 2 pages TT IEP, 3/19/08, 14 pages UU IEP, 1/30/08 ,16 pages WW IEP, 4/18/07, 12 pages XX IEP, 10/25/05, 12 pages YY evaluation, 1/6/05 and 1/12/05, 4 pages ZZ evaluation, 1/12/05 3 pages AAA IEP from 9/20/2004, 10 pages BBB report, 8/5/04, 7 pages CCC FNR, 7/28/03, 1 page DDD Social history, 5/16/01, 3 pages EEE , 5/16/01, 6 pages FFF Report of Dr. , 4/22/13, 98 pages GGG Affidavit of , 4/23/13, 5 pages HHH Affidavit of , 9 pages III affidavit, 8 pages DEPARTMENT OF EDUCATION. 2 Resolution Agreement, 3/15/12, 3 pages 3 Affidavit of , 4/18/2013, 3 pages 4 Affidavit of , 4/18/2013, 2 pages 5 Affidavit of , 4/18/2013, 2 pages 6 Affidavit of , 4/18/2013, 2 pages 7 Affidavit of , 4/18/13, 2 pages 8 Social history update, dated 6/10/13, 4 pages 9 Social history, dated 8/3/04, 4 pages 10 Psychosocial history update, dated 9/4/01, 1 page