New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 129639 Student’s Name:

Date of Birth: District: 13 Hearing Requested By: Parent Date of Hearing: November 29, 2010

December 28, 2010 Hearing Officer: Linda S. Agoston, Esq. Case No.: 129639

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 29, 2010

-, — Student

Parents

Chairperson Designee, CSE District — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 28, 2010

-,, — Student

Parents

of the — Student

of (via telephone) — Student

Chairperson Designee, CSE District — DOE

Chairperson, CSE 3 (via telephone) — DOE

On October 1, 2010, I was designated by the New York City Department of — DOE

Education as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York in the matter of . and the parent through her initiated this hearing on September 29, 2010. On October 1, 2010, I scheduled this hearing for November 15, 2010. On November 2, 2010, the school district representative requested an adjournment of the November 15, 2010 for unavailability of witnesses and I granted the adjournment and scheduled this hearing to commence on November 29, 2010. On November 29, 2010, I scheduled this hearing to continue on December 20, 2010. On December 17, 2010, the school district again requested an adjournment due to illness and I granted the request for an adjournment and scheduled a hearing for December 28, 2010. Hearings were held on November 29, 2010 and December 28, 2010. The parent seeks to obtain direct payment/prospective funding 22.5 hours of (30 sessions at 45 minutes per session) from of , at the rate of $ 130.00 per 45-minnute session. The parent also seeks direct payment/prospective funding for 178 hours of 1:1 tutoring services outside of school hours from a licensed education trained in multisensory instruction such as Wilson, Orton-Gillingham, or at the current P-3 rate or at an enhanced rate not to exceed $75 per hour if no provider can be found who accepts the current P-3 rate. The parent seeks to use these 178 hours to be used beyond the 2010- 2011 school years. The parent seeks reinstatement of .’s Individualized Education Plan (IEP) dated February 22, 2010 of the mandated education services for an individual session of education services () per week for 30 minutes for the remainder of the 2010-2011 school year to commence within 14 days of this decision. The parent seeks an order that the Dept. of Education (DOE) provided . with 20 hours of education services as compensation for missed either by providing the to . at or by issuing a related service authorization (RSA) for so the parent can obtain independently, at a rate not to exceed $130.00 per hour. The parent further seeks large-print text books, tests and handouts, and enlarged overhead projector throughout educational program, including the 37.5 minutes of extended day program at and during Saturday sessions so that . can use large-print textbooks immediately or to be provided copies of large-print textbook pages for classroom instruction and homework until large-print text books can be obtained. The parent seeks current evaluations including, but not limited to an occupational evaluation, a speech/language evaluation and an assistive technology evaluation to be completed within 30 days of this decision and a new IEP to implement the recommendations of the new evaluations within 30 days of the completion of the evaluations. The compliance date was extended as a result of the request to submit a post hearing memorandum of law and evidence.

Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.

BACKGROUND

. is a -year-old who is in the grade and has to grade reading skills and early to grade math skills, (Exhs. B, C) and reports from grade at the School in 2007-2008, indicated significant academic , of , and including . The grade noted . required individual assistance to complete assignments and in class. (Exh. P at 2) In February 2008, the school staff referred . to the ( ) for an evaluation. On February 13 2008, a , , conducted an Assessment and determined that .’s overall cognitive level was in the low average range and she was currently on iron . recommended an study to rule out , and recommended assessments for psycho-educational and / to determine an appropriate class placement and modifications. (Exh. Q at 3) On February 21, 2008, . had an assessment at that determined she did not from . Despite the recommendation of , the grade did not refer . to the Committee of Special Education (CSE) and indicated that . would repeat grade without any of recommended assessments to determine the need for special education services. (Exh. A at 3) In grade, (2008-2009) . attended a school, the , where she was placed in a small class. After the 2008-2009 school year, the closed. (Exh. I at 2) In third grade, . attended , the parent again presented the with recommended assessments and requested that . received education services to address her academic and problems. On December 4, 2009, again evaluated . and diagnosed her with ( ), and and again recommended CSE evaluations including but not limited to psycho-educational and / to determine the appropriate class placement. further recommended and . lastly recommended that receive counseling and behavior modifications, Section 504 accommodations, and -school . (Exh. S) Thereafter, DOE referred . to the to assess .’s skills and to determine if her were related to her . (Exh. I at 1)

On December 9, 2009, a social history was conducted and the parent reported the . had a history of , but took for her and that . in school. (Exh. F at 3) The social history reported noted the . had reading issues, but was well behaved and responded well to peers. The social history further noted a classroom observation revealed . had trouble following teacher directives. (Exh. F at 6)

On January 26, 2010 and February 10, 2010, , ., ., of , evaluated . and noted her longstanding history of and that the testing and testing were negative for . further noted despite the diagnosis of that . was placed in a regular education class with no special education services. (Exh. H at 2) indicated that testing revealed “intermittent alternating ( turn) at . Her and , her ability to , or both on one , is .” (Id.) He further noted “ control over her visual focusing (accommodative) system is the primary reason for her fluctuating visual acuities.” (Id.) He concluded that in addition to intermittent alternating and accommodative skills she had inefficient skills. (Exh. H at 4) Her basic reading skills were assessed and her lexicon of site vocabulary words were in the below average range, her phonemic decoding skills were not well developed. (Exh. H at 5) Her ability to integrate information from the visual and motor modalities were in the below average range. Her short-term memory skills were weak. Her visual planning and visual spatial skills were weak. (Id.) found . had significant including , , fatigue, headaches in addition to weak visual focusing, intermittent alternating turn ( ) and ( ). He found her inefficient skills made it difficult to copy information from the board and keep her place when reading. (Exh. H at 6).

recommended . wear her and recommended at the to address her and reduced / skills to alleviate her symptoms of and . further recommended multisensory phonetic reading method, e.g., Wilson, OrtonGillingham or to address her weak decoding skills. He also recommended classroom accommodations. (Exh. H at 8)

On February 21, 2010, , school , conducted an assessment of . when she was in third grade. Ms. evaluated .’s cognitive function on the Wechsler Intelligence Scale for Children- 4th Education and noted that full scale IQ was 101, in the average range, in the 55th percentile and found there was significant discrepancy between her verbal comprehension and perceptual reasoning scores indicating the full scale IQ might not represent her overall abilities. Her verbal comprehension score was 91, in the low average range, in the 27th percentile, and her perceptual reasoning score was 110, in the high average range. .’s working memory index and processing speed index were in the average range. Her visual-motor integration skills score was 79, in low average range, in the 8th percentile. (Exh. G 3-5) Ms. used the Woodcock-Johnson III to assess academic levels and found her reading skills were at a 1.8 grade level. Her decoding skills were at a 2.2 grade level. Ms. noted in her report that .’s difficulty with decoding impacted her comprehension. .’s broad math score was 91 in the average range and on grade level. Her calculation score was at a 3.5 grade level. Her written language skills were at a 1.9 grade level, which was consistent with her with reading/decoding. (Exh. G at 6) Ms. assessed .’s social/emotional functioning and found frustration and that . became anxious when items increased in difficulty and she required prompts to stay on task.

Ms. noted in her evaluation that .’s reported that . exhibited significant difficulties with executive functioning and her assessment confirmed that . had with initiating tasks. She concluded that . had significant difficulties with working memory and her trouble with sustained attention. Her assessment indicated significant elevated scores on the Plan/Organize scale. (Exh. G. at 7) She noted .’s impairment exacerbated her inattention and distractibility. (Exh. G at 8) She noted that that . required and accommodations for her overall such as large print text, magnifiers. She further recommended the following: special education teacher support services ( ), graphic organizers, prompts, large print materials, repetition, and frequent prompts and praise.

On February 22, 2010, the CSE met and developed an initial IEP that classified . with and recommended a general education placement with 5 periods of with a staffing ratio of and a period of individual education services () for 30 minutes per week. The academic management needs included the following: large print texts and handouts, enlarged overhead projections when possible; preferential seating; magnifiers when needed; markers and index cards; a to help copy information from the board; visual breaks intermittently; encouragement and reminders (including reward system) to have . consistently wear her throughout the day. The present and development needs indicated that . was diagnosed with that reduces her accommodative skills ( ) and . Her fluctuating visual activities ranged from 2/80 to 2/20 at near. She needed to be reminded to her . Her symptoms from the diagnosis of were by her . CSE further recommended related services of individual services for a session of 30 minutes per week as well as testing modifications and modified promotion criteria. (Exh. B at 1,3, 8, 12)

, of conducted an evaluation for on April 1, 2010, and noted . had the following issues: turns inward; intermittent blurred ; skipping words when reading and loses place; frequent ; ; words that appeared “bunched up” making it difficult to recognize the words; copying from the board; concentrating/attending when reading; reading; avoidance of reading; difficulty with word math problems; uncoordinated (trips and falls) and inconsistent handwriting. (Exh. I at 1) The binocular ( teaming) status test revealed that 80% of the time .’ intermittently and alternative turned ( ) when she objects at . teaming testing confirmed limited compensating abilities which caused . (Exh. I at 2) found that her teaming skills resulted in , , or or and with her to comprehend reading material. further found that her deficient accommodating

(focusing) skills resulted in , , rapid or shifting between the chalkboard and desk as well as of . (Id.) noted her ( movement) skills were below age level and she had severe difficulty moving her quickly and accurately in the test that simulated the visual demands of reading. found that movement could account for loss of place when reading, or or words. reported the same testing results as with respect to speed of movements and accuracy and diagnosed . with intermittent alternating , of saccades and pursuits, accommodative insufficiency and . (Id.) recommended . her . further recommended 25-30 sessions of as well as a comprehensive psychoeducation evaluation to determine other factors interfering with her ability to read and an occupational evaluation because of her of coordination and handwriting. recommended the following classroom strategies: increased time for examination and assignments; seating towards the front; large font books and materials; visual breaks; visual activities should be limited to 15-30 minutes until her skills improved. (Exh. I at 4)

On April 28, 2010, the parent submitted to CSE a letter from of , who confirmed the diagnosis of and of intermittent , deficient accommodating, deficits of saccades and movement. noted that . required a for of falls in school. (Exh. M)

On April 29, 2010, the CSE met and developed another IEP that classified the . as and recommended a general educational placement with with a staffing ratio of and related services of once a week for 30 minutes location in a group no larger than 3 and a full-time . was terminated. The academic management needs included the following: large print texts and handouts, enlarged projections when possible; preferential seating; magnifiers when needed; markers and index cards; a peer buddy to help copy information from the board; visual breaks intermittently; encouragement and reminders (including reward system) to have . consistently her throughout the day. The present and development needs indicated that . was diagnosed with that reduces her visual accommodative skills ( ) and . Her fluctuating activities ranged from to at . She needed to be reminded to wear her . Her from the diagnosis of were exacerbated by her . CSE further recommended related services of individual as the needs section noted that . may trip at times in school due to her . (Exh. C at 1, 3, 10, 12)

THE DISTRICT’S CASE

The District’s case was presented in the testimony of , CSE District 11 representative and , school . Ms. maintained that did not meet the definition as published in the Board of Ed publication Special Education Services (no publication date) and the definition of in related service is “for students who are or have a related to of the or with a no greater than / in the better with best correction or limitation in visual acuity and visual field which adversely affect student performance.” (Exh. 1) She stated that the services were provided by a of the . She further stated that the April 29, 2010 IEP meeting was attended by a from the office and the determined that was not eligible for services. (Tr. at 270; Exh IHO II) Ms. conceded that . was not provided with the accommodations mandated in the April 29, 2010 IEP of large print text and handouts, enlarged overhead projections when possible; preferential seating; magnifiers when needed; markers and index cards; a peer buddy to help copy information from the board; visual breaks intermittently; encouragement and reminders (including reward system) and maintained that that large print text books were ordered and large print handouts were now provided. Ms. further agreed that the parent was entitled to all mandated accommodations and the parent was entitled to an assistive technology, speech/language and occupation evaluation by the DOE failed to timely evaluate . and that these evaluations would take place no later than 30 days after this decision. Ms. further agreed to hold an IEP meeting to implement the recommendations of the , / and evaluations within 30 days of the completion of those evaluations. (Tr. at 312)

Ms. , School , testified that in addition to . had . (Tr. at 236) She stated that . had , in addition to her and that the was supposed to monitor the use of the magnifier, her . focus and to make large print hand outs. (Tr. at 241) Ms. stated that she was not sure if . was given preferential seating. (Tr. at 243) She stated that large print text books were ordered as of December 23, 2010. (Tr. at 245) She noted that the teacher stated that . made progress. (Tr. at 248)

On cross, Ms. stated that .’s as documented in the evaluations from and her own evaluation affected .’s performance in school. She described how .’s affected her performance and noted that . “often from , sometimes , she has difficulty tracking and needs whether her finger or a piece of paper or some kind of tracking device to help her along the page, to read, otherwise she tends to either skip lines or just has moving across the page.” (Tr. at 250) Ms. agreed that .’s affected her performance. (Tr. at 251) She further stated that . responded well to individual attention. (Tr. at 252) She acknowledged that she did not know the size of the class and that . misses academic work when she was pulled out of class. (Tr. at 254) She further acknowledged that . had significant during her testing even with her because she skipped items. (Tr. at 261) She maintained that . had the potential to learn and overcome her disability and work on grade level. (Tr. at 263)

THE PARENT’S CASE

The parent’s case as presented in the testimony of .’s and . The parent testified she brought her to on February 21, 2008 and she shared the evaluation with the of during grade. (Tr. at 38) She stated that despite the fact that the had the evaluation . was not referred to CSE nor were special education services provided. (Tr. at 41) She stated that prior to the start of the grade year she requested evaluations for her and was told to wait by the grade and . (Tr. at 43) She stated that she went to school each day for the grade to help keep her focused. She recalled that her was provided with “ - ” session for weakness in decoding and phonics in October 2009. She stated that “at-risk” were not helpful because she did not see improvement and the was not trained in multisensory methodology. (Tr. at

47) She maintained that the teacher was not trained in multisensory methodology until the summer of 2010. (Tr. at 48) She recalled that she also visited her ’s class twice a week in the grade to assist her to . She noted that her participated in the extended day session after the regular school day ended and the Saturday during the 2009-2010 year in the grade to improve her academics. (Tr. at 52) She recalled that her - during the 2010-2011 year because she received a zero on a test and submitted a sample of the test (Exh. O at 1-3) which was less than normal size print on October 2010 and when she received the same test in large print (Exh. O at 4-18) her received all correct answers except for 2 mistakes. (Tr. at 57) She recollected that she shared with the staff the letter from dated December 9, 2009 (Exh. S) requesting evaluations. (Tr. at 58) She recalled that the DOE told her to go to and paid for the evaluation from . (Tr. at 62) She further stated that she shared with CSE on February 22, 2010 evaluation. She recalled that there was someone from DOE who stated that . did not qualify for education. (Tr. at 65) She stated that from April 29, 2010 through June 2010 no services or accommodations were provided to her . (Tr. at 68) She stated that she was told at the April 29, 2010 IEP meeting that the provider was not trained in multisensory methodology. She stated that she was told that the school did not have the proper equipment like scanners to make large print texts from April 29, 2010 through June 2010 nor did her receive the services of a until the last week of June 2010. (Tr. at 69) She stated that as of November 29, 2010 her did not receive counseling services and as of November 8, 2010 the staff at did not have the material for large print text. (Tr. at 70) She recalled that as of November 8, 2010 her received large print texts inconsistently, maybe 65% of the handouts were in large print. She noted that her did not receive services as of November 29, 2010 despite comments from her and regarding her ’s lack of self-esteem in the - meetings. (Tr. at 81) She noted that the teacher was trained in multisensory methodology over the summer of 2010 and so for the 2010-2011 year her received services by a teacher trained in multisensory methodology when was provided. (Tr. at 75) She further noted that her did not receive or . (Tr. at 78) She opined that her did not progress since September 2009 and that 5 sessions of were insufficient. (Tr. at 80;84)

On cross the parent acknowledged that both and recommended that her wear her more often. (Tr. at 86) She noted from her and did not tell inform her that her did not wear her in the - meetings only that she that to be reminded to use her and to put her on her , not around her . (Tr. at 91) The parent noted her academics and confidence would improve with large print text. (Tr. at

92) She noted that her wears her full time at and her at school because her were on a around her . (Tr. 89) She stated that while there were no large print texts, the homework assignments were in large print, but not consistently. (Tr. at 98-99) The parent stated that she removed her from School after grade because she was told her was going to be held over. (Tr. at 105) She noted that her grade told her that when her did not receive individual she would . (Tr. at 107) She further noted that her did not receive the mandated 5 sessions of for the 2010-2011 consistently because she asked her everyday and her said no and grade told her the school was . (Tr. at 109) She noted that there was no for the extended day or . (Tr. at 111) She noted that the person representing the DOE told her at the April 29, 2010 IEP meeting that her did not qualify for . (Tr. at 116) The parent stated that she did not understand why her did not qualify for education based by the reports from , and Ms. . (Tr. at 119)

, of the at the of , ., testified that he evaluated . and reviewed the report of his , , dated February 2, 2010. He noted that when he observed . in 2008, he referred . to as he did not know why her fluctuated and determined that she had over her focusing system and would improve her skills. (Tr. at 144-145) He stated that her adversely affect her performance in school. (Tr. at 146) He further stated that her tracking skills were very . He administered a standardized test that revealed . had very inconsistent skills in her short term and skills. (Tr. at 145) He explained that fluctuating had symptoms of seeing words in print, words, which was very and made it for a child to . (Tr. at 146) He noted that he administered a reading screening from the Woodcock Reading Mastery and determined that her decoding skills were very weak at the 19th percentile. (Tr. at 149)

explained that . had a combination of as well as , and very over her teaming skills, but he opined that training program ( ) could treat these issues. (Tr. at 151) He stated that was a series of exercises designed for each individual by licensed and the improves skills. (Tr. at

152) He noted that recommended strongly 25-30 sessions of to .’ . He stated that , , the and the . (Tr. at 154) He stated that was provided at for 45 minutes per session at the cost of $130.00 per hour for the recommended 22.5 hours of . (Tr. at 155) He noted that at had helped many children improve their to . (Tr. at 160) He further noted that . required accommodations in the classroom such as large print text books, tests, handouts. (Tr. at 164) He also noted that . would benefit from a reading who specialized in a , phonetic based method because she had so many processing problems, (Tr. at 165; 167) explained that her problems affected her and both her and were interwoven. (Tr. at 171)

On cross stated that while her all the time would improve . , but it would not treat her turn, her . (Tr. at 172) He stated that the exercises from could not be at because the exercises require super from a licensed . (Tr. at 175) He stated that he observed dramatic improvement with . (Tr. at 177)

FINDING OF FACT, CONCLUSION OF LAW

The U.S. Supreme Court held in Schaffer v. Weast that the moving party bears the burden of persuasion in an administrative hearing brought under the IDEA. 546 U.S. 1145, 126 S.Ct. 528 (2005) Pursuant to Schaffer, the parents bear the burden of proving three prong test that is the legal standard applicable to a request for reimbursement for educational services: (1) the services offered by the Department of Education are inadequate or inappropriate, (2) the services selected by the parent are appropriate; and (3) equitable considerations support the parent’s claim. (School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 [1985]) Chapter 583 of the Laws of 2007 stated “that the burden of proof in an impartial due process hearing pursuant to §4404(1) of Education Law to challenge the recommendation of a Committee on Special Education (CSE) or Committee on Preschool Special Education (CPSE), or otherwise challenge actions or omissions relating to the pro of a free appropriate public education (FAPE) to a student with a disability, is generally placed on the school district (or State agency) providing special education to the student.” Chapter 583 took effect 60 days from August 15, 2007. Further, pursuant to N.Y. Educ. Law § 4404(1)(c ), School Districts have the burden of proving it offered the student FAPE. (Exh. IHO Exh. I at 1) Therefore, I find the District representative bears the burden to establish prong one.

The parent’s asserted that DOE failed to provide . a free and appropriate public education (FAPE) for 2009-2010 and 2010-2011 school years. The parent’s asserted that . was denied FAPE for the 2009-2010 school year since no evaluations and no assessments and no IEP existed for the 2009-2010 until February 22, 2010 despite the recommendations for services and request of February 2008 for assessments for psycho-educational and / to determine an appropriate class placement and behavior modifications. (Exh. Q at 3) This assertion was not contested. The parent’s asserted that . was denied FAPE for the 2010-2011 school year as the DOE failed to provide . with the mandated services and accommodations of the IEP of February 22, 2010 IEP and continued on the IEP of April 29, 2010. The parent asserted that FAPE was not provided for the 2009-2010 and 2010-2011 school years. The parent’s further argued that the DOE failed to timely and comprehensively implement the mandated services and accommodations for large print textbooks, tests, handouts and overhead projections of the IEP of February 22, 2010 IEP and continued on the IEP of April 29, 2010 as required by 34 C.F.R. Section 300.103( c). (IHO Exh. I at 2) I find to date . has not been provided with large print textbooks. I find that large print tests and handouts were not provided during the 2009-2010 school year and provided inconsistently (Exh. O; Tr. 70). I find that large print hand outs were provided 65% of the time after November 8, 2010. (Tr. at 82) The parent’s argued that was recommended by , at and the district’s own witness, Ms. (Exhs. G at 9, I at 3, H at 2) yet neither the February 22, 2010 IEP nor the April 29, 2010 IEP recommended . The parent’s argued “related services” under the IDEA are supportive services provided to a student with a disability to assist the child to benefit from his or her special education program pursuant to 34 C.F.R. Section 300.34. The parent’s argued that was a service required to assist a child with a disability benefit from special education. (IHO Exh. I at 5) I find that was a related service for . and I find that was required for . as her caused her academic and I find was required to address her needs and was recommended by the district’s own witness as well as and . I find the was a related service. I find the denial of was a denial of FAPE pursuant to the definition of FAPE is special education and related services in 34 C.F.R. 300.17.

The parent’s argued that the removed of at the April 29, 2010 was improper and that was part of the continuum of special education services. (Exh. 1; IHO Exh. I at 9) The parent’s asserted that .’s limitations adversely affected her academic performance. This assertion was not contested. I find was appropriate for . as her limitations in visual acuity and visual field adversely affected performance as established by and . (Exhs. G, H) The parent’s argued that the SRO in Application of a Student with a Disability, 10-011 held that when the hearing record is devoid of evidence supporting the appropriateness of a reduction in services, then the SRO ordered the reinstatement of related services within 14 days of this decision. The parent’s requested the reinstatement of within two weeks of my decision. (IHO Exh. I at 11) I find the decision to terminate was not supported by the record as the district representative did not address the need for as limitations in visual acuity and visual field adversely affected performance. I further find that the parent’s ability to participate in the April 29, 2010 decision making process was impeded by the supervisor of the DOE Office of Education Service. I further find that the termination of at the April 29, 2010 was a denial of FAPE.

The parent’s argued that . was entitled to 20 hours of as compensation for missed since February 22, 2010 and compensation tutoring multisensory services. (IHO Exh. I at 12).

Compensatory education refers to education for a person to compensate for educational deficiencies that occurred between the ages 3 to 21. It is a remedy granted to students deprived of FAPE. Compensatory education refers to education for a person to compensate for educational deficiencies that occurred between the ages 3 to 21. It is a remedy granted to students deprived of FAPE and students who have endured educational failures, and who have regressed during their school age years. Garro v. Connecticut, 23 F.3d 734 (2d Cir. 1994); Melvin v. Bolton School District, 100 F.3d 944 (2d Cir. 1996); Application of a Child Suspected of a Disability, Appeal No. 91-6. The parent’s argued that the SRO reviewed the issue of compensation and in Application of a Student with a Disability, Appeal No. 08-054; Application of the Bd. of Educ., Appeal No.04-085; Application of the Bd. of Educ., Appeal No.02-047. See also Bd. of Educ. v. Munoz, 16 A.D.3d 1142, 1145 (N.Y. App. Div. 2005) (affirming an SRO decision to award “makeup services” to a student where the district failed to provide services described in his IEP). I find that to award compensatory services, there must be a finding of a denial of FAPE. Application of the Bd. of Educ., Appeal No.04-085; Application of a Student with a Disability, Appeal No. 08-054; Application of a Child with a Disability, Appeal No. 07-109. The parent’s argued that the SRO in Application of a Child with a Disability, Appeal No. 10-057 held compensatory educational relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of FAPE. (IHO Exh. I at 12) It was undisputed that no FAPE was provided to for the 2009-2010 school year and the 2010-2011 school year as no large print material was provided to the . The parent’s argued that by failing to provide . was large print textbooks, tests and handout the DOE denied . with equal access to the general education curriculum. The parent’s provided law for her position Assistance to States for the Education of Children with Disabilities and Preschool Grants for Children with Disabilities, Final Rule, 71 Fed. Reg. 45,540, 46,618 (Aug. 14, 2006)(“Timely access to appropriate and accessible instructional materials is an inherent component of a public agency’s obligation under the Act to ensure that FAPE is available for children with disabilities and that the children with disabilities participate in the general curriculum as specified in their IEPs.”) (IHO Exh. I at 13)

The parent’s further argued that .’s , and were not addressed by 5 sessions of per week and that the sessions of were inconsistently provided (Exh.6) and that the multisensory instruction mandated on the February 22, 2010 and April 29, 2010 IEP were not available until the summer of 2010. I find the parent established that . was entitled to compensatory services of tutoring and and .

The parent has the burden to prove that the services she obtained for . are appropriate to her needs. The fact that the facility selected by the parent to provide the educational services to the child is not approved as a school for children with disabilities is not dispositive of the parents’ claim for tuition reimbursement. (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]) The parent must prove that . will receive an appropriate educational benefit from the program at the non-public school, and the parent offered substantial evidence to meet this burden. The evidence presented demonstrated that the was appropriate to meet .’s educational needs. I find will provide . with designed for each individual by licensed optometrists and the improves skills. (Tr. at 152) I find that recommended strongly 25-30 sessions of to . . I find that the is appropriate to meet . educational needs and had success in improving her . The evidence further demonstrated that the individual multisensory instruction or tutoring was appropriate to meet .’s needs. I further find the equities support the parent.

Therefore, I find that . is entitled to compensatory tutoring services from and compensatory and as the compensation for the fact that no FAPE for 20092010 and 2010-2011 school year.

Order

Therefore, it is hereby ordered that the Dept. of Education shall pay for following:

(1) 22.5 hours of (30 sessions at 45 minutes per session) from of , at the rate of $ 130.00 per 45-minnute session (2) 178 hours of 1:1 tutoring services outside of school hours from a licensed education trained in multisensory instruction such as Wilson, Orton-Gillingham, or at the current P-3 rate or at an enhanced rate not to exceed $75 per hour if no provider can be found who accepts the current P-3 rate. The 178 hours is to be provided to the parent beyond the 2010- 2011 year. I order the reinstatement of .’s IEP dated February 22, 2010 that mandated education services for an individual session of per week for 30 minutes for the remainder of the 2010-2011 school year to commence within 14 days of this decision. I further order that the Dept. of Education (DOE) provided . with 20 hours of as compensation for missed either by providing the education services to . at or by a RSA for so the parent can obtain education services independently, at a rate not to exceed $130.00 per hour. I order large-print text books, tests and handouts, and enlarged overhead projector be provided to . throughout her educational program, including the 37.5 minutes of extended day program at and during Saturday sessions so that . can use large-print textbooks immediately or to be provided copies large-print textbook pages for classroom instruction and homework until large-print text books can be obtained. I order current evaluations including, but not limited to an evaluation, a / evaluation and an evaluation to be completed within 30 days of this decision and a new IEP to implement the recommendations of the new evaluations.

The relief set forth herein shall be effective immediately upon the issuance of this Order is remains in effect until for the 2010-2011 school year and the 2011-2012 school year and the 2012-2013 school years as . was entitled to compensation beyond the school year 2010-2011. Dated: January 20, 2011

_________________________

LINDA S. AGOSTON, ESQ.

Impartial Hearing Officer

LSA:jj

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 14, 2008

DEPARTMENT OF EDUCATION

1 Psych-Educational, 11/16/07, 3 pp. 2 CCP9 Minutes of CSE Meeting, 12/7/07, 1 p. 3 CCP9 Minutes of CSE Meeting, 1/18/08, 1 p. 4 C-10 Final Notice of Recommendation, 3/28/08, 1 p. 5 Email Logs, 2/08-3/08, 6 pp. 6 IEP, 1/18/08, 13 pp. 7 IEP, 3/27/08, 17 pp.

IMPARTIAL HEARING OFFICER

I Due process Complaint, 8/19/08, 4 pp.

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEBMER 29, 2010

PARENT

A Impartial Hearing Request, 9/29/10, 9 pp. B IEP, 2/22/10, 12 pp. C IEP, 4/29/10, 12 pp. D FNR, 4/22/10, 2 pp. E FNR, Annual Review Re-Evaluation, 4/29/10, 2 pp. F NYC DOE Social History, 12/7/09, 6 pp. G NYC DOE Evaluation Report, 2/21/10, 13pp. H of Evaluation, 1/26/10, 10 pp. I Report from , of , 4/1/10, 4 pp. J Letter from , 11/15/10, 1 p. K Request for Administrative Information, 3/5/10, 1 p. L Letter from , 4/20/10, 1 p. M Letter from , 4/28/10, 1 p. N Woodcock-Johnson Third Ed. Summary Score, 6/7/10, 1 p. O Classroom tests, 10/2010, 18 pp. P Letter from Grade , and , Undated, 3 pp. Q L.I. , 2/13/08, 3 pp. R L. I. Report, 2/21/08, 1 p. S Letter from , 2/4/09, 1p. T Article, 3 pp. U NYC DOE Website Educational Services, 11/16/10, 19 pp.

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 28, 2010

PARENT

V New York State Education Department English Language Art Student Report for the 2009-2010, 2 pp W New York State Education Department Mathematics Student Report, 2009-2010, 2 pp. X Letter from , 12/14/10, 2 pp. Y Heinemann Publishing Fountas and Pinnell Benchmark Assessment, 2009-2010,

6 pp. Z Student's work, 11/29/10, 1 p. AA New York State Department Accessible Instruction Materials with attached process flow chart, print date December 13, 2010,^[8] pp. BB New York State School for Article, 12/13/10, 7 pp.

DEPARTMENT OF EDUCATION

9 Article " for ", September 2001, 11 pp.

10 Article " , and ", undated, 16 pp. 11 Omitted 12 Omitted

13 Attendance Data, undated, 3 pp. 14 Omitted 15 Omitted 16 Omitted 16 Omitted

POST HEARING SUBMISSIONS

PARENT

I Ms. - Memorandum of Law, 1/10/11, 20 pp.

DEPARTMENT OF EDUCATION

II Ms. Closing Statement, 1/10/11, 1 p.

Footnotes

[8] Special Education Services Continuum, undated 2 pp.