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 23, 2013

May 1, 2013

May 8, 2013

May 16, 2013

Actual Record Closed Date: June 17, 2013

Hearing Officer: Mary Noe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 23, 2013

Attorney — Student

Parents

Parents

Expert, Doctor — Student

DOE Attorney — DOE

Teacher — DOE

Principal — DOE

DOE

School Nurse — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 1, 2013

Attorney — Student

Mother — Student

Interpreter — Student

Attorney — DOE

(Via Telephone) — DOE

Teacher (Via Telephone) — DOE

Principal (Via Telephone) — DOE

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

Attorney — Student

Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 16, 2013

Attorney — Student

Mother — Student

Father — Student

Interpreter — Student

Paraprofessional (Via Telephone) — Student

Attorney — DOE

The parent requested an Impartial Hearing on March 18, 2013. I was appointed on March 22. The case was scheduled for April 19. Additional days of hearing were held on April 23, May 1 and May 8. The parent was represented by ., . The District was represented by . Both parties requested an extension of the compliance date, which was granted.

The student’s date of birth is . She attends the at School. She is classified as on the Individualized Education Program (IEP) dated June 5, 2012.

The parent in her complaint request the following:

1. Immediate placement in an appropriate program in a different department of education (DOE)-approved school that can provide the support she requires to make meaningful educational progress. A referral to the central based support team (CBST) to engage in a diligent search for an appropriate placement is immediately necessary.

2. The committee on special education (CSE) shall provide with additional up to per week to address her .

3. NYC Department of Education shall provide not more than hours of services, based on the failure to provide an appropriate placement of free and appropriate public education (FAPE) for the 2010-2011 school year.

4. NYC Department of Education shall provide not more than hours of services, based on the failure to provide an appropriate placement of FAPE for the 2011-2012 school year.

5. NYC Department of Education shall provide not more than hours of services, based on the failure to provide an appropriate placement of FAPE for the 2012-2013 school year.

6. The NYC Department of Education shall provide services per week, outside of the school day, based on its failure to meet needs during the 2010-2011, 2011-2012 and 2012-2013 school years.

7. The CSE should immediately reconvene within ten days and develop an appropriate IEP taking into consideration the child’s needs and to develop appropriate goals and post secondary goals and an appropriate placement. An advocate from will attend the meeting with the Parent.

8. The CSE shall recommend a in conformance with Commissioner’s Regulations 200.22.

9. The CSE shall meet to develop an appropriate Safety Plan, to be included in her IEP, regarding her diagnoses, conditions, medications and appropriate preventative and remedial actions to be take.

DOCUMENTS IN EVIDENCE

IEP dated March 17, 2010

The student was classified as . The recommended class was ; a week for minutes, ; a week for minutes, ; times a week for minutes and a to be with the student all time times (Exh. B)

IEP dated March 27, 2010

The student was classified as . The recommended class was ; a week for minutes, ; a week for minutes, ; times a week for minutes and a to be with the student all time times (Exh. 2A)

IEP dated June 1, 2011

The student was classified as . The recommended class was ; a week for minutes, ; a week minutes ; a week for minutes, ; times a week for minutes and a to be with the student all time times (Exh. 2B)

IEP dated Mary 24, 2012

The student was classified as . The recommended class was ; a week for minutes, ; a week minutes ; a week for minutes, ; times a week for minutes and a to be with the student all time times (Exh. 2C)

Psychoeducational Report dated March 17, 2010

This report was done as part of a re-evaluation. The student was referred for an evaluation to assess her current level of intellectual, emotional and academic functioning and to assist in her educational planning. At the date of the evaluation the student was .

The student attained a of which within the deficient range. The student’s skills were below a range.

The student overall . She needs a to help her and was not . The student presented as a . She does not and is not . She is . She has . (Exh. C)

Social History Update dated March 17, 2010

The reason for the update was that the student was of the program. The student’s current school performance is although she has during the school year. The student is in a community school. The mother agrees with the recommendation and in a school with related services. (Exh. D)

Progress Report dated January 14, 2010

On the date of the evaluation, the student was a attending a program at

Services. She received a week, . The student made in her development of skills.

However, . The student . According to the , the student is at which represents daily experiences. The student’s are level. The student is and . The student has made in the development of her . The student presents with . She has a history of problems. The student was on a with . Due to , there is a history of . It is highly recommended to and . (Exh. E)

Progress Report dated January 14, 2013

The student’s reading level, writing, listening and speaking, mathematics is level standards. Her science, social studies and person growth level standards. (Exh. 17)

Report Card Grades for 2012 – 2013 school year

As of November 2012, in reading, specifically phonetic strategies, reading allow, ability to recall, the student is standards; level words and , the student is standards.

In writing, listening and speaking and mathematics, the student is basically standards. In science and social studies, the student is standards.

As of March, all the scores were the same except for to teachers and classmates which standards. (Exh. 18, 19)

Promotion in Doubt Grade dated February 7, 2013

A form letter was sent to the student’s parent on February 4, 2013 alerting the parent that the student was needed to meet the requirement for promotion to the next grade in June 2013. In response at the bottom of the page the parent signed the document and wrote “ . Please do not forget that. If [the student] stays again in she won’t be coming to your school next year.” (Exh. 20)

Parent’s response to Final Notice of Recommendation dated September 8, 2010

The recommendation was for a class in a school with related services. The parent checked the box “I agree to the recommended services and school.” The parent signed on September 8, 2010 and wrote “I would live to have a new conference for my daughter [the student] as soon as possible. Child is time. Child had change since last evaluation that was months ago.” (Exh. 29)

TESTIMONY

in her affidavit sworn to on April 11, 2013 stated that she provided the student since September 2011. She provided minutes individual session from 2011 – 2013 school years. Ms. states that she participated in the IEP meeting for the 2012 – 2013 school year and the parent did not request any additional . Ms. states that she has only communicated with the parent in and the parent has responded in . The student is . The student has . Ms. stated that the student is to address her needs. The student . (Exh. 31) Ms. testified that she communicated with the parent in and the parent responded in . (T. 70) The parent never communicated with Ms. that she wanted additional services. (T. 73) Ms. works on the IEP goals and assesses progress with a system. (T. 84) She has to the student. (T. 85) The student has met most of the IEP goals. (T. 87 – 89) Ms. testified that the student in that she became . She became . She was . The student’s . (T. 93 – 94) In October 2012 the student . (T. 103) Ms. informed the student’s teacher, guidance counselor and wrote to the parent. (T. 104) Mr. believes that the parent and the student were “happy with my services. I had never heard otherwise.” (T. 106) Mr. controlled the student’s behaviors by her, and trying to engage her. (T. 110) Recently the student’s behavior is . Ms. writes notes and assignments in the student’s notebook for the student to bring home to the parent. (T. 111, 112)

, a public health nurse working at testified. In October 2012, the student was brought to her by her paraprofessional because she fell. Ms. called the mother, as she did every time the student because that is the protocol. (T 116) The student was . The student was also . (T. 117) The student was , . She felt a on her head. The area was checked and there was . An was applied and the student said . The mother was notified of what had happened and how she was feeling. The mother spoke to the student on the phone. Ms. spoke in to the parent and so did the student on the phone. (T. 119) At that point the student was feeling fine with no complaints. The mother did not notify the nurse that she would pick up the student. (T. 119 – 120, Exh. 39 p.7) On the same day, the paraprofessional brought the student to the nurse’s office stating that the student did not trip but fell. She was complaining of of the head. The nurse , called the mother and told her to pick up the student. (T. 121, 122, Exh. 39 p.2) Ms. told the parent she needs to follow up with the hospital. The student was . (T. 122) Several months later, the nurse was told the student . (T. 122) Prior to October 2012, the nurse was not aware the student had . (Exh. 39 p.28) The only diagnosis given was . (T. 126, Exh. 39 p.4, p.

24) On or about November 12, 2012 the nurse’s office received a letter from Dr. stating that the student was seen in her office. She . She can continue with . (Exh. 39 p.25) Ms. testified that after she received the letter she made sure that everything was followed through. She made the teacher, the paraprofessional aware and what precautions should be taken. (T. 138)

Dr. testified that she has been the student’s since birth. The student is diagnosed with at a young age. (Exh. SS) Prior to October 2012, the student never had . (T. 162, Exh. SS p.2) The student has “ .” (Exh. SS p.2) Dr. ’s affidavit states “A …must be conducted for The NYCDOE was required to do this when her .” (Exh. SS p.4) The student requires a who has knowledge in how to respond to . requires . .” (Exh. SS p.5) Dr. testified that the student didn’t have a in school, “…even though she , as per my conversation with the nurse. But she’s – and the mom was scared, not happy with the service.” (T. 162) Dr. triaged the student and saw a in the waiting room and sent her to emergency room. (T. 163) Dr. stated that the student came to her office the same date as documented at school and that she only spoke to the mom, not the nurse or anybody. The Dr. does not know if the student had a or because she does not have the details or the witness of exactly how it happened. Apparently the student . (T. 168 171) The student’s were the . (T. 172) Dr. recommends a safety plan consisting of . She recommended a but the did not agree. The student in . (T. 174) The information about how many times the student comes from the mom. (T. 174)

, for the student testified that with the student she works on the IEP l goals to help her with as it relates to her participation and functioning in the class. (T. 184) The student has session. (T. 188, 195) Ms. works on the student’s . Progress is measured by her and seeing if there are any changes or improvements. (T. 189) The student is on her goals. (T. 191) Ms. received a doctor’s note that she is . (T. 191) The student’s attends every session. (T. 192) The student has and with Ms. . (T. 194, Exh. 34 p.2) The parent spoke to Ms. in and appeared to have no and . (Exh. 34 p.2) Ms. does not believe the student should be pulled out of her class for additional sessions in because it may be . (Exh. 34)

was the student’s special education class in during the 2010 – 2011 school year and grade during the 2011 – 2012 school year. (Exh. 33 p.1) The student had a full time individual . During the 2010-2011 school year, the student l . She . The student was . Ms. participated at the June 1, 2011 IEP meeting. Prior to the meeting, Ms. had several conversations with the mother. She communicated in and provided a written letter to her in . According to Ms. , the parent is a “fluent speaker." The parent never requested an interpreter prior to or during the June 1, 2011 IEP meeting.” (Exh. 33 p.3, T. 227, T. 233) The parent expressed no concerns with any portion of the June 1, 2011 IEP during or after the meeting. At the time of the meeting the parent did not provide any information regarding the student’s diagnosis or medications the student was taking. (T.

230) The parent did not request any additional evaluations of the student. Ms. recommended the student receive months of therapy to prevent regression. The parent agreed.

During the 2011-2012 school year, the student had and . Ms. observed very from the student. The student respected Ms. and would . During 2011 -2012 the student achieved a “ .” She needed and did not need a or a . The student performed in class and . (Exh. 33 p.3, T. 248) The student was . In Ms. s class, the student because she . Ms. would speak to the student’s service providers. Ms. created the goals in the 2010 IEP. (T. 251)

On May 24, 2012, Ms. participated in the student’s IEP meeting. The team agreed to continue the month program. There was a discussion on strategies to assist the parent in working with the student on academics after school . The parent stated she wanted the student to remain at with Ms. as her classroom teacher. (Exh. 33 p.4) At the time of the May 24, 2012 IEP Ms. was not aware that the student was for any reason nor that the student had . Ms. testified that the student received all her related services during the 2011 – 2012 school year. The parent never expressed to the teacher any disagreement or concern with the student’s program or services during the 2010 – 2011 or 2011 – 2013 school year. Ms. agreed with the 2011 IEP recommendation. The student made progress during the 2011 – 2012 school year. In the June 2011 three reading goals, the student achieved all the goals. The student was measured by teacher made materials, class activities, teacher provided observations, verbal explanations, performance assessment tests. (T. 257, 259 - 264) Ms. testified that she remembered the student grade. The student was , . There was . (T. 231)

The student needed . The teacher would . It was not necessary to have a system. The student was quite . (T. 241) The students do not receive standardized test in grade. (T. 243) The student’s was wonderful with the student. She helped her . She was present when the student . And then she . An accident report was completed.

(T. 245)

, the student’s current (2012 – 2013) special education teacher testified. Ms. stated the student receives all her mandated related services during the school day. (T.

442) Ms. has spoken as well as received handwritten letters, text messages and electronic mail from the parent in . (Exh. 36 p.2, T. 443, 444) At the beginning of the 2012 – 2013 school year Ms. was not aware the student was for any reason. She was not aware the student had . (Exh. 36 p.2, T. 453)

On October 24, 2012, the student was . The student’s brought the student to the . Later the same day the student . The nurse came into the class and took the student to the . After fifteen minutes later, Ms. went to the nurse’s office and saw the parent and the student. The nurse recommended the parent bring the student to the hospital. (Exh. 36 p.2) Prior to October 24, the student in the class. The next day Ms. contacted the parent through text messaging. (T. 443) The parent informed Ms. that the student throughout the rest of the day. Ultimately the student was admitted to . Ms. visited the student at the hospital and spoke with the parent. (Exh. 36 p.3) After October 24, the parent informed Ms. that the student was . The student was . The student did not . Ms. the student. (Exh. 36 p.3) After several weeks, the student within the class. She was a student. There is no need for a behavior plan. (Exh. 36 p.4, T. 481) The parent never requested additional evaluations. (Exh. 36 p.4, T. 485) The student’s however, the student has . The student is . (Exh. 36 p.4, T. 469) Ms. stated that the student’s current IEP is appropriate for her.

The student has made . In reading she was reading at and is now reading at . The student can now . (Exh. 34 p.4, T. 436, 475)

Ms. testified that when the student , she spoke to the paraprofessional regarding the nurse’s instruction. (T. 434)

, the student’s teacher provided to the student since September 2012. (Exh. 37 p.1) The student is in the activities that she consistently participated in. Some activities were more challenging and she . The student to participate. The student’s behavior .

(T. 418) Once participating she tends to minutes. She needs minutes due to . (T. 408, 413) The student’s doctor has , therefore Ms. does not work on traveling up and down stairs. (Exh. 37 p.2) The student has and Mr. stated that the current number of is appropriate at this time. (Exh. 37 p.3, T. 407) The student’s paraprofessional attends all sessions. (T. 409)

The parent testified that she understand but has difficulties with reading and writing. (T. 556) It is easier for the parent to speak in and she always needs a person to translate. (T. 695) The parent always informed the IEP team at the meeting that she needed a translator. (T. 695) The parent attended all of the student’s IEP meetings. (T.

557) The parent never brought someone to interpret at the meetings. She understood that her role was to provide her opinion to the IEP team and she explained all her child’s problems, which she did. (T. 757, 758, 772 - 775) The parent communicates with her advocate and attorney in . (T. 759, 827) At a meeting after the complaint was filed the parent communicated with the school staff and her advocate in . (T. 827) During the March 17, 2010 IEP meeting the district recommended a school for the 2010 – 2011 school year. The parent did not want her daughter to attend the school and communicated with the IEP team to send her to a general education public school. (T. 558, 561, 772 Exh. QQ p.3) The parent wrote a letter to the district that expressed that disagreement. (Exh. 21, T. 563) The district sent the student to a community school.

(T. 566) The parent accepted the placement and the daughter continues to attend till today. (T. 573) The parent stated that the student needs to be in a children with teachers who know about her diagnosis and provide her with additional help with homework and with work in school. (T. 760)

The parent testified that the student received all her related service in 2010 – 2011 in January 2011. The student started at the school in October 2010. (T. 779) During the school years 2011 – 2012, the student received all her related services. (T. 781 – 782) The parent requests one additional period of therapy and a (T. 805) The parent requests one extra session of because the student , she had a . (T. 829) The parent requests one extra session of because she around for a long time. (T. 830) The parent requests one extra session of . (T. 831) The parent to prepare her to to teachers and parents because she becomes very . (T. 834, 835)

The student is in an at the public school. She does not have a after school. Sometimes Ms. stays to help and there is a woman from the PTA who knows the student. (T. 803 – 804) The student needs and a at all times. (T. 804)

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.

The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415[b][1]). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5[d]). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008] ["A professional disagreement is not an IDEA violation"]; Sch. for Language and Communication Development v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] ["Meaningful participation does not require deferral to parent choice"]; Paolella v. District of Columbia, 2006 WL 3697318, at *1 [D.C. Cir. Dec. 6, 2006]).

The parent asserts that she has been denied meaningful participation because the district has withheld essential information from the parent and the IEP team’s failure to provide a interpreter despite the parent’s request. (Exh. R, T. 695) The hearing record does not support either of the parent’s allegations. All evaluations, IEPs, progress reports and report cards, incident reports were submitted into evidence. Additionally among other documents submitted into evidence were emails, with parent comments and letters. The parent’s documents were often duplicative of the district’s documents and therefore marked for identification. As to the parent’s lack of understanding, speaking or writing , I am not persuaded. The student’s teachers from grade, the related service providers, paraprofessionals, members of the IEP team all testified that the parent was able to understand and communicate in Additional examples of the parent's ability to speak, read and write are set forth below. Motion regarding Statute of Limitations

The district submitted a motion precluding the parent from bringing a request for services for the 2010 – 2011 school year because it is time barred. (Exh. 2) I find the parent’s request from September through December 2010 is time barred for the following reasons.

20 U.S.C. 1415(b)(6)(B) states: “An opportunity for any party to present a complaint which sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged actions that forms the basis of the complaint….”

New York Education Law Section 4404[1][a] provides “ Notwithstanding any provision of this subdivision to the contrary, the time limitation on presenting a complaint shall not apply to a parent or person in parental relation to the student if the parent or person in parental relation was prevented from requesting the impartial hearing due to specific misrepresentations by the school district or other public agency that it had resolved the problem forming the basis of the complaint or due to the school district's or other public agency's withholding of information from the parent or person in parental relation that was required under federal law to be provided.”

In September 2010, the parent testified that the student was placed in a , class, school (T. 770, 768) The parent stated the student was in the school for days and she requested an IEP meeting which was convened on September 27, 2010. (T. 771) At the meeting the parent told the IEP team that she disagreed with the placement, the School, that the student spoke mostly and that the student is . (T. 772) The parent testified there was no interpreter at that meeting. (T. 775) At that meeting an IEP was created that recommended a class in the school at . (T. 779) Based on the testimony and evidence submitted I find no basis that this parent was prevented from requesting an impartial hearing or that the district withheld information from the parent. This parent actively participated in every aspect of the student’s education including requesting an IEP meeting when she was dissatisfied with the student’s placement in a school. Therefore, the Parent’s request from 2010 to January 2010 is time barred. School’s failure to provide a Interpreter

The parent claims the district failed to provide a translator, did not provide documents in and did not provide the Procedural Safeguards to the parent.

The parent testified that she communicated in about her child to the IEP team during the meetings and parent-teacher conferences and with teachers and other providers. (T. 771, 772, 775, 806, 821, 827) The parent testified she spoke with the school nurse. (T. 791)

All the school personnel testified that they communicated with the parent in and she understood and responded appropriately in . (T. 752, 753, Exh. 31, 32, 33, 34, 35,

36) Throughout the hearing the parent communicated with her attorney in , she spoke to me in , testified occasionally in and demanded a new interpreter at the hearing because of her inability to property translate. (T. 204, 562, 565, 577, 582) This parent actively participated in every aspect of the student’s education including requesting in writing an IEP meeting when she was dissatisfied with the student’s placement in a school. (T.

563) The September 27, 2010 IEP indicates under “Parent/Guardian Information Preferred Language/Mode of Communication ” (Exh. 2A) The parent’s claims for the 2010-2011 school year accrued, at the latest, in the fall of 2010 as she knew or should have known about the alleged action that formed the basis of her complaint at that time. (DOE Ex. 3, 4, 29). In fact, the parent was aware of the placement in September of 2010 because she had enrolled the student in the recommended school. (Tr. 771). The parent testified that the student attended the school for days until the parent realized that the placement was inappropriate for the student. Id. On September 8, 2010, the parent returned the FNR to the DOE with a handwritten request for a reconvene to address the inappropriateness of the program recommendation. (DOE Ex. 29). Therefore, the Parent clearly was aware of any alleged violations of the IDEA by September of 2010, as it is undisputed that the parent was aware of the program recommendation and the student’s placement in . I find no basis that there was a need for a interpreter. Appropriateness of the IEP The student is classified as . Her disabilities include her . (Exh. 33) In order to address this disability, the IEP recommends a small class ratio and an individual who was there if the student has a as well as helping the student in class. (Exh. 33; 36) The student receives individual related services to address her disabilities. The parent testified that the student made progress “ level up” during the 2011 – 2012, and 2012 2013 school year. (T. 880) r , the student’s special education teacher in (2010 – 2011) stated “the student came such a long way in every domain.” (Exh. 33) Ms. testified that the student improved letter grades. (T. 475, 476)

The Individuals with Disabilities Education Act (IDEA) does not itself articulate any specific level of educational benefits that must be provided through an IEP (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).

This student’s progress is commensurate with this student’s abilities and cannot be compared to a general education student without the same cognitive abilities without a disability.

Based on the evidence submitted and testimony, I find the 2010-11, 2011-12 and 2012-13 IEPs were appropriate to address the student’s disabilities.

The parent alleges that the IEP team was not properly constituted. An IEP team must include all the legally mandated members as required under the IDEA and the New York State regulations, including: (1) the parents of the child; (2) at least one regular education teacher of the child (if the child is or may be participating in general education); (3) at least one special education teacher or provider of the child; (4) a district representative; and (5) an individual who can interpret the instructional implication of the evaluation results. 20 USCS §1414(d)(1)(B); 8 NYCRR §200.3(a); see also, 34 C.F.R. § 300.321. I find nothing in the record to support this allegation.

The September 27, 2010 IEP was attended by the parent, a district representative, general education teacher, school psychologist, school social worker and special education teacher. (Exh. 2A)

The June 1, 2011, IEP was attended by the parent, the district representative, the student’s special education teacher, . (Exh. 2B) Request for Compensatory Education

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]). In New York State, a student who is otherwise eligible as a student with a disability, 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]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b];10 8 NYCRR 100.9[e], 200.1[zz]; see 34 C.F.R. § 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal 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 French v. New York State Dep't of Educ., 2011 WL 5222856, at *2 [2d Cir. Nov. 3, 2011]; Somoza, 538 F.3d at 109 n.2, 113 n.6; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071, 1075 [2d Cir. 1988]; Corove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]; Wenger, 979 F. Supp. at 150-51; Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]).

The parent testified that the student received her related services from January 2011 through the current school year. (T. 779 – 781) There was no testimony or evidence to contradict the parent’s testimony that the student received all her related services for the years in questions. I previously had found that the student was not denied a free appropriate public education. There is no basis to award compensatory education.

ADDITIONAL RELATED SERVICES

The parent in their complaint request additional and up to times per week to address her severe delays; , the student’s teacher since September 2011 stated the student is , is receiving an appropriate amount of and has . (Exh. 31)

, the student’s teacher since September 2012 stated the student is receiving an appropriate amount of and she has . (Exh. 34)

, the student’s education teacher since September 2010 stated the student receives all of her mandated related services and the student “has made since the beginning of the school year.” (Exh. 36) The parents have failed to substantiate a claim that the student is not progressing with the current related services.

State procedures for considering the special factor of a student's behavior that impedes his or her learning or that of others may also require that the CSE consider having an conducted and a developed for a student in certain non-disciplinary situations (8 NYCRR 200.4[d][3][i], 200.22[a], [b]). An is defined in State regulations as "the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment" and "include[s], but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it" (8 NYCRR 200.1[r]).

The student’s . (T. 479, 806) However, the teacher testified that it was not necessary to have plan because the parent informed her that the student . (T. 481, 537) This student did not need a because her over a period of time. Her are no longer an issue. (T. 543 – 544) Ms. stated that she was able to use and other strategies to the student. (Exh. 36 p.3) I find nothing in the record to support the need for a .

SAFETY PLAN

The student’s doctor, Dr. testified that the student must . (T. 174) The parent testified that the student needs at all time. (T. 837) The student’s teacher stated that the student is . (Exh. 36 p.4) The student’s related service providers testified that the student is . (T. 94, 192, 416) The student has a at all times, which is what the parent has requested.

ADDITIONAL ISSUES

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. § 1415[f][3][B]; 34 C.F.R. §§ 300.511[d], 300.508[d][3][i]; 8 NYCRR 200.5[j][1][ii]), or the original complaint is amended prior to the impartial hearing per permission given by an impartial hearing officer at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 C.F.R. § 300.508[d][3][ii]; see M.P.G., 2010 WL 3398256, at *8; see Snyder v. Montgomery County Pub. Schs., 2009 WL 3246579, at *6 [D.Md. 2009]; Application of a Student with a Disability, Appeal No. 10-105. The additional issues raised at the hearing will not be addressed. IT IS HEREBY ORDERED that the parent’s requests are denied. Dated: June 24, 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

A Second Request for Educational Records dated 02/28/13 with Authorization for

Release of Info and Records Request

B IEP dated 5/5/12, 19 pages

C Psycho educational report dated 3/17/10, 3 pages

D Social history update dated 3/17/10

E progress report by dated 1/14/10, 3 pages

G Meeting Minutes recorded by DOE on March 19, 2013, 4 pages

I Parent Impartial Hearing Withdrawal Form 1 page

J Improper “Impartial Hearing Resolution Meeting” Attendance Form 1 page

L Cover letter from CPSE with most recent evaluations dated6/3/10

M Withdrawn – Duplicative

N IEP date 3/17/10 19 pp

O IEP date 6/1/11, 17 pages

P IEP date 5/24/12

Q Petitioners’ Letter Motion for Sanctions dated 3/21/13

R Petitioner's opposition, 13 pages

S Exhibit “1” to Petitioners’ Opposition to NYCDOE Motion to Dismiss; E-mail correspondence regarding record requests

U Progress Report Dated 1/14/13, 1 page

V 2012-2013 1st Trimester Report Card

W 2013-2013 2nd Trimester Report Card

X Promotion in Doubt Letter 2/4/13

Y Final Notice of Recommendation, 09/29/10

Z Authorization to attend dated 9/29/10

AA Residency questionnaire dated 9/29/10

BB Yearly Progress Report 2010-2012, 1 page

CC IEP Meeting Waiver dated12/2/11

DD Bilingual Enrollment Form, 1 page

EE Comprehensive Injury Report 10/24/12 with handwritten notes and Occurrence report

FF Occurrence Report 3/13/13, 1 page

GG note to Ms. re no related services, 12 pages

HH Authorization to Attend 09/8/10, 1 page

II Final Notice of Recommendation District 75 06/1/10 with parent request for CSE

meeting

JJ Evaluation Report by Dr. , 5/15/12

KK Dr. Letter limitations dated 11/12/12, 1 page

LL Request for Provision of Medically Prescribed Treatment 11/5/12, 1 pages

MM IEP Meeting Notice dated 5/24/11

MM1 Medication Administration Form

NN CSE IEP Meeting Minutes dated 09/27/10

OO IEP, 3/17/10

PP Medical Records and Referral to Neurologist ,3/21/12 QQ Parent's Affidavit, 17 pages SS Dr. affidavit ,5 pages TT Dr. 's Statement UU Opening Statement, 8 pages VV Email from to Parent Re: 10/24/12 incident, 1 page WW Email from Parent to 11/24/12,^[1] page XX Bilingual Speech and Language Evaluation 03/01/08, 4 pages YY Bilingual Speech and Language Evaluation 05/12/08, 4 pages ZZ OT Evaluation 060208, 7 pages AAA Excluded BBB Preschool Home Language Survey 5/12/08

DEPARTMENT OF EDUCATION

3 IEP, 18 pages 5 IHO's decision on motion to dismiss, 1 page 6 Minutes from IEP meeting 9/27/10, 2 pages 7 Letter from parent dated 3/19/13, 1 page 8 Request for provision of medically prescribed treatment dated 11/5/12, 1 page 9 progress report dated 1/7/10, 2 pages 13 Email from parent dated 3/27/13, 1 page 14 Emails between Parent and Teacher 12/12 - 3/13, 2 pages 16 plan of action dated 12/14/12, 1 page 17 Progress report dated 1/14/13, 1 page 18 Report card from 2012- 2013, 5 pages 19 Report card from 2012 - 2013, 2 pages 20 Promotion in doubt, 2/13 1 page 21 Letter to parent dated 9/29/10, 1 page 23 IEP meeting waiver 12/11 1 page 24 Comprehensive Incident Report, 10/24/2012, 1 page 25 Ms. 's description of 10/24 incident, 2 pages 26 Comprehensive incident report, 3/5/2013, 1 page 27 Ms. 's description of 3/5 incident, 3/6/2013 1 page 28 IEP Attendance Sheet, 6/1/11, 1 page 29 Parent response to FNR dated 9/8/10, 1 page 30 Parent's consent for reevaluation dated 4/10/13, 1 page 31 affidavit, April 11, 2013, 3 pages 32 Statement by Ms. dated 4/8/13, 3 pages 33 Affidavit, April 10, 2013, 6 pages 34 affidavit, April 10, 2013, 5 pages 35 affidavit, April 11, 2013 4 pages 36 Affidavit of , April 11, 2013, 5 pages 37 Affidavit of , April 10, 2013, 3 pages 38 Opening Statement 39 Nurse's records

IMPARTIAL HEARING OFFICER

I Pre-hearing Order, 3/26/13-4/22, 3 pages

II. Decision Order, 4/9/13- 4/22, 2 pages

Footnotes

[1] Due process complaint dated 3/18/13, 8 pages 2A IEP dated 9/27/10, 9 pages 2B IEP dated 6/1/11, 9 pages 2C IEP dated 5/24/12, 8 pages