New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: Student‘s Name: Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: August 16, 2010

August 17, 2010

September 8, 2010

October 4, 2010

October 19, 2010

November 2, 2010

December 2, 2010

December 16, 2010

January 28, 2011

February 15, 2011

May 3, 2011

May 5, 2011

May 6, 2011

June 21, 2011

June 22, 2011 Actual Record Close Date: July 29, 2011 Hearing Officer: Laura Fieber, Esq.

CORRECTED

Hearing Officer‘s

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 16, 2010

Attorney — Student

Attorney — Student

Student

Attorney — DOE

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 17, 2010

Attorney — Student

Attorney — Student

Student

Attorney — DOE

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 8, 2010

Attorney — Student

Student

Attorney — DOE

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 4, 2010

Attorney — Student

Attorney — DOE

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 19, 2010

Hearing Officer‘s

Attorney — Student

Director (via telephone) — Student

Attorney — DOE

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 2, 2010

Attorney — Student

Director (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 2, 2010

Attorney — Student

Assistant — Student

Technology Services Director — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 16, 2010

Parent Representative — Student

Student

(via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 28, 2011

Hearing Officer‘s

Attorney — Student

Evaluator (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 15, 2011

Attorney — Student

(via telephone) — Student

Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 3, 2011

Attorney — Student

Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 5, 2011

Attorney — Student

Student

Former Principal — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 6, 2011

Attorney — Student

Student

Attorney — DOE

Hearing Officer‘s — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 21, 2011

Attorney — Student

Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 22, 2011

Attorney — Student

Student

Attorney — DOE

Hearing Officer‘s — DOE

On June 3, 2010, the . (student) requested an impartial hearing pursuant to the Individuals with Disabilities Education Act, 20 United States Code, Section 1415 (f)(1); Section 504 of the Rehabilitation Act of 1973; the Civil Rights Act, 42 U.S.C. §1983; and Chapter 89 of the New York State Education Law. I received an appointment as Impartial Hearing Officer on June 4, 2010. Hearings took place on the dates indicated above, with the timelines to render a decision extended accordingly. Lists of people who attended the hearings and documents received in evidence are attached to this decision. Esq., of Counsel to , LLP, represented the student. Esq. and then Esq. represented the New York City Department of Education (―DOE‖).

I. Background

This case involves a now old individual who attended New York City Public Schools in District classes his entire academic career. His last school placement, through 2008, was at the for ). His last available Individualized Education Program (IEP), dated March 10, 2006, showed a disability classification of ( ), and placement in a special class in a specialized District school, with related services of for and ; for ; and ) for . Ex. 57. As a result of a triennial review held the previous year, it was determined that he would participate in for the stated reason that he ―demonstrates and has which inhibit success on standard assessments.‖ Ex. 56-12. DOE records show that on or about September 2, 2008, at the age of the DOE discharged him. Ex. 46.

. filed this impartial hearing on June 3, 2010, claiming violations of the laws noted above. Ex. 1. In summary his due process complaint alleged that from the age of five forward, the DOE failed to offer him a free appropriate public education (FAPE) in that the DOE failed to adequately evaluate him, failed to properly classify him, failed to develop legally valid IEPs, failed to offer him a suitable placement, failed to respond to his lack of and issues, failed to address his concerns, denied him and , and discharged him from school without and notice, terminating all services. It further alleged that the DOE adopted, employed and implemented illegal policies, practices and customs that caused him injury; segregated him based on his disability and in District setting, which the DOE knew to be inappropriate; failed to give him notice as part of a Hearing Officer‘s systemic failure to properly notify students and parents of their IDEA and Section 504 rights; maintained him on his school register as a and then discharged without notice as part of an illegal policy and practice that is known by the DOE to be happening throughout schools in the City; failed to adopt adequate policies and practices to ensure compliance with the applicable laws; and failed to adequately train and supervise staff. It also raised claims that the DOE failed to adequately ensure his parent‘s participation in the process and failed to afford her legally adequate notice and due process. As a proposed resolution, it seeks five years of compensatory education, including , and therapy, and . It also sought reimbursement for independent educational evaluations (IEE) already performed, additional IEEs and a declaration of his rights.

II. IDEA

A. Statement of Law

The IDEA requires that a FAPE be available for all children with disabilities between the ages of three and 21 (20 U.S.C. § 1412[a][1][A]; Application of a Child with a Disability, Appeal No. 04-030). The IDEA also sets forth procedural safeguards with respect to the provision of a free and appropriate public education which include the requirement that parents must be given an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education (20 U.S.C. § 1415[b][6]). These procedural safeguards guarantee parents both an opportunity for meaningful input into all decisions affecting their child‘s education and the right to seek review of any decisions they think inappropriate (Honig v. Doe, 484 U.S. 305, 311-312 [1988]). Application of a Child with a Disability, Appeal No. 05-131.

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). Hearing Officer‘s

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 C.F.R. §300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. §1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; 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). Hearing Officer‘s

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 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). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606

F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). Also, a FAPE must be available to an eligible student "who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade" (34 C.F.R. § 300.101[c][1]; 8 NYCRR 200.4[c][5]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. §300.320[a][1]; ^[8] NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; Hearing Officer‘s

1412[a][1][A]) is subject to the limitation that it does not apply to children aged 18 through 21 where it is inconsistent with state law or practice on the provision of a public education (20 U.S.C. § 1412[a][1][B][i] 1; see St. Johnsbury Academy v. D.H., 240 F.3d 163, 169 [2d Cir. 2001]). 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 tenmonth school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 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). (N.Y. Educ. Law § 4402[5][b]; see 8 NYCRR 100.9[e]; see also Application of a Child with a Disability, Appeal No. 02-016; Application of a Child with a Disability, Appeal No. 00-024). Generally, under the IDEA, "a [child with a disability] does not have a right to demand a public education beyond the age of twenty-one" (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990] [internal citation omitted]). Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA]" (Honig v. Doe, 484 U.S. 305, 318 [1988]; see Cosgrove v. Bd. of Educ., 175 F. Supp.2d 375 [N.D.N.Y. 2001]).

B. Statute of Limitations

Prior to the amendments of the IDEA in 2004, the IDEA did not prescribe a time period for filing a request for an administrative due process hearing and a one-year limitations period was applied in New York (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir. 2003]; Application of the Bd. of Educ., Appeal No. 02-119). The amendments, with an effective date of July 1, 2005, added an explicit limitations period for filing a due process hearing request and also added explicit accrual language. IDEA

1 The obligation to make a free appropriate public education available to all children with disabilities does not apply with respect to children— (i) aged in a State to the extent that its application to those children would be inconsistent with State law or practice, or the order of any court, respecting the provision of public education to children in those age ranges. Hearing Officer‘s

2004 requires that, unless a state establishes a different limitations period under state law, a parent or school district must request a due process hearing within two years of when the claimant knew or should have known of the alleged action that forms the basis of the complaint (20 U.S.C. §1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; Educ. Law § 4404[1][a]). Absent clear congressional intent, a newly enacted federal statute of limitations does not operate retroactively (see Landgraf v. USI Film Products, 511 U.S. 244, 280 [1994]; In re Enterprise Mortgage Acceptance Co., 391 F.3d 401 [2d Cir. 2005] [holding that the limitations period in the Sarbanes-Oxley Act of 2002 did not have the effect of reviving stale claims]; Application of a Child with a Disability, Appeal No. 06083).

A statute of limitation is considered an affirmative defense, for which the DOE bears the initial burden of proof as to the date on which it alleged a claim has accrued. In addressing the DOE's statute of limitations defense, it is important to ascertain when claims accrued (Somoza v. New York City Dep't of Educ., 538 F.3d 106, 114 [2d Cir. 2008]). In general, a cause of action accrues, triggering commencement of the limitations period, when all of the factual circumstances necessary to establish a right of action have occurred, so that the plaintiff would be entitled to relief (see, Britt v Legal Aid Socy., 95 NY2d 443, 446; Matter of Motor Vehicle Acc. Indem. Corp. v Aetna Cas. & Sur. Co., supra, 89 NY2d, at 221).

has brought this action on ; . He testified that he learned in 2009, through a conversation with , that he might have a claim for compensatory education when he turned . Tr. 2224-2226. He filed this action shortly . The DOE did not dispute that claims within a two-year period of his filing, in June 2010, would not be time barred. Thus, his compensatory education claims for the 2008-2009 and 2009-2010 school year are viable.

Those claims that occurred prior to July 1, 2005, during the time when the oneyear statute of limitation applied, were dismissed at hearing as untimely.

For the 2005-2006, 2006-2007, and 2007-2008 school years, the DOE argued that mother had long been a participant in the special education process so she knew her due process rights. Moreover, she knew or should have known about any claims that arose Hearing Officer‘s during those years. Therefore, since they accrued more than two years prior to the time the student filed his complaint they were time barred.

The student argued that he and his mother did not have proper notice of their due process rights. He also argued that the exceptions to two-year statute of limitations applied since the parent was prevented from requesting the hearing due to (i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or (ii) the local educational agency‘s withholding of information from the parent that was required under this subchapter to be provided to the parent.

The only witness testimony germane to the statute of limitations during these three years came from the student. He described the conversation with ― ‖ and circumstances that led to his placement in an track in 2005. He also described during the 2006-2007 school year. He had during the 2007-2008 school year, after he turned In his closing statement, his attorney asserted that DOE made significant misrepresentations to the student and his mother by suggesting that he would be much better off participating in .

At the time of his was over and a and not ; were at the grade instructional levels. He had and was . He did not . The parent knew the alternative assessment placement was a possibility because she agreed to the that led to the evaluation that made the change. Ex. 16, 24, 40. The DOE sent the mother one notice of the 2005 IEP meeting. Ex. 55, 56-2. While neither , the student did. The IEP that resulted clearly indicated his participation in alternative assessment. Exs. 56, 57. In September 2005, the mother program, to the release of informational for transitional services, and to a standard of conduct and disciplinary code at . Exs. 49, 50, 63. The top of the release advised of the student‘s right to schooling until . The 2006 IEP, which also included the alternative assessment, included two . Exs. 52, 57-2. The DOE documented a history of parental involvement in IEP meetings, each of which advised her of her due process rights. Exs. 2-14, 17-23. Whether or not these documents contain , they are nonetheless notice. As for the claimed misrepresentation, the record contains no evidence Hearing Officer‘s that the DOE was anything but forthright about why it sought to have the student‘s included in alternative assessment.

further argued that claims based on the misdiagnosis of .‘s learning disability did not accrue until 2010, when Dr. assessed him. .‘s records show a consistent history of learning-based difficulties. They also show significant issues. That Dr. identified a medical diagnosis of , does not mean the student‘s educational classification of was incorrect. It also does not mean that the DOE ignored the student‘s . He received related services and was placed in a class to address his issues.

As for those issues that led . to become . testified that they were based on his dissatisfaction with his educational program after his placement at in 2005. He indicated that he went to his to complain about the program, that he wasn‘t learning anything. But he did not gain any satisfaction. His began in earnest during 20062007 school year, culminating in in 2007-2008. Since the parent was involved in ‘s at the time, she knew or should have known about the that led to his .

Those issues based on objections to policies and practices were dismissed at hearing.

On the credible evidence before me, I find that there is no basis to conclude that the DOE prevented the parent from filing this complaint due to a misrepresentation or withholding of information concerning any of the issues detailed above. While stated he had not filed a hearing earlier because he was not aware that he could do so, he could not have done so since New York State does not acknowledge transfer of parental rights prior to his birthday. As the parent knew or should have known of the events that took place during the 2005-2006, 2006-2007, and 2007-2008 school years, I find that they are time barred.

C. Whether the DOE Offered the Student a FAPE Under the IDEA

The DOE conceded that it could not meet its burden that it offered . a FAPE during the 2008-2009 and 2009-2010 school years. Tr. 336, 941.

D. Whether . is Eligible for Compensatory Education DOE‘s Argument Hearing Officer‘s

Since compensatory education is an equitable remedy, the facts in this case do not support the award sought by the student of approximately1000 hours of or , for . to reach a that would make him eligible to take the The parent had an obligation to cooperate with the DOE, and . was not cooperative. He offered no proof that he made any attempt to get the necessary help needed to learn how to and do or to renter the school system. He school in September 2008. He returned to one time to ask , but did not remember . He was a short time thereafter. The DOE understood that was not able to attend school since he did not have a stable home life as is evidenced by the number of addresses that he had during his time at . Student‘s Argument and Testimony argues that he has established that the violation of his right to FAPE has been a gross violation over a prolonged period of time. Further, the DOE waived its right to argue that equitable issues bar relief, since it failed to raise them during any part of the hearing. The DOE did not meet its burden to come forward with any evidence that . was not entitled to FAPE or should be denied make-up services on equitable grounds as part of their burden of production and persuasion.

.‘s growing should not be held against him since it is the DOE‘s failure to try to address that issue and lack of progress of which . specifically complained. Ex. A. .‘s school found him to be dedicated in terms of and motivated, even though by the time he left he was grade. Ex. 40. DOE could not produce any documents sent to . or his mother concerning his alleged or demonstrate that it undertook any efforts to try to address his growing issues, the DOE cannot establish that these problems and signs of a lack of progress should bar his relief. There is no evidence that if . had the ability to improve on his own or that additional a in a program for students would have produced more progress than his entire time in school. Further, . has showed up for the majority of his appointments with evaluators and, once she requested his presence, he has been to all of the hearing dates. In addition, . has faced and continues to face challenges in terms of .

Finally, . was in the building in 2008, just after he was discharged. The DOE could have provided him , held , confirmed his , offered him or , conducted an IEP Hearing Officer‘s review and/or taken any of the steps required by law. The DOE could have made a confirmed .‘s or any one of a myriad of steps to truly try to help him. The DOE‘s evidence do not establish that it even tried to send notice; the DOE ended up refusing to produce the witness, Principal , who had allegedly produced the documents.

. remembered a meeting about transferring to another school from , but did not remember who attended. He graduated from but did not recall if he passed the grade tests. . His teacher , spoke with him about a program where he would not have to take the citywide test as a way not to be left back again and for him to go to school. . . told him the transfer was going to help him; he would be in classes with students his own age, not with . If he had stayed at he would have been again. Coach told him he would be going to , which he started in September 2005. He did not remember how long he attended , or whether he returned to in September 2006. Tr. . He was there in 2007. During these times he lived at various addresses with . He attended the April 15, 2005 IEP meeting that changed his program from Tr. 2174-2183; Ex. 56. He did not know what assessment was, although he remembered discussing it at the meeting, held at before he left that school. Tr. 2184.

He first attended in 2005, when he was Tr. 2216. He could not remember what classes he took other than being taught . It was different than because he changed classes and had different teachers. Tr. 2188. He believed the classes were on and they were not . Tr. 2189. He had no issues with . He found the environment . Tr. 2189-2191, 2243. The first day he was there they . The second year he was , at the corner. People from the outside came into the school. Different school. The . He never had a . He was never while at this school. He did not . He did not the second year, although he did . A paraprofessional took he was often . Tr. 2219.

He remembered asking , but the things they were giving him were ; he kept on about it. Tr. 2217. And they just kept on giving him a , which he did not like. . They did not offer him . He tried to find , but could not . Tr. 2218.

. saw a a couple of times a week whom he spoke with about his and where he was going. Tr. 2191. The counselor recommended work instruction as Hearing Officer‘s soon as possible to learn a skill and get a job. . did not like that because it was just a working thing. Tr. 2191-2193. He wanted to be . The school never placed him in the program. During the summer of 2007 he called , setting out , helping the teacher with , and . Tr. 2194-2195. Other students from worked at this site. During that , one of his teachers , although he did not have . No one from ever told him he could . He did ask his guidance counselor for help. His , , told him about as an option as an and getting a . Tr. 2196-2198. He never applied.

In 2008 he went back to to get help. Tr. 2242. He could not remember when he before then. He wanted to speak to his . He had spoken to him many times and all he had said was he would see what he could do. He did not remember being. Tr. 2245. He found out he was discharged from when he asked one of to see if he was and found out he wasn‘t. Tr. 2199-2206, 2214, 2236, 2252-2253. He was living with his grandmother at that time, after he and . He told his grandmother that he was not registered. . Tr. 2243-2243, 2247.

He did not remember if to discuss his . Tr. 2250. He did not know if anyone ever discussed his with him while enrolled in . He supports himself with . He has tried to find work but could not fill out the application due to . Tr. 2253.

Within the , compensatory education has been awarded to students who are ineligible by reason of if there has been a gross violation of the IDEA resulting in the denial of, or , for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]). Compensatory education is a judicially crafted remedy; it is not an extension of the protections and benefits of the IDEA itself (see Cosgrove, 175 F.Supp.2d at 388 ["the relief…arises from equity and is not a legislative authorization to extend the reaches of the statute"]; see also Burr, 863 F.2d at 1078). It is an equitable remedy that is tailored to meet the unique circumstances of each Hearing Officer‘s 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]).

The denial to the student of educational benefits during the 2008-2009 and 20092010 school years, the period during which the student was entitled, but the DOE conceded that it failed to, offer . a FAPE, constitutes a gross violation of the IDEA. Further, the student‘s testimony credibly demonstrates his attempts to seek help and his desire to , which defeat the DOE‘s challenge on equitable grounds, to an award of compensatory education award on his behalf. Therefore, as a student who is no longer is eligible for instruction under the IDEA, . meets the criteria for an award of compensatory education.

E. What Remedy is Equitable Under the Circumstances DOE‘s Argument

Services from or are not an appropriate remedy under the given circumstance. Neither employed special education teachers. Although both programs assessed . and identified his , neither identified .‘s learning disability. Neither could testify if their staff had the knowledge or ability to address .‘s disability. Neither testified how the curriculum would be individualized to meet .‘s special education needs. Neither reviewed any assessments done by any other service provider. Most importantly, neither assessed or reviewed any assessments regarding .‘s cognitive ability or to determine if he had the cognitive ability to complete their program.

Alternatively, if . is entitled to compensatory education it should not be the hours required to prepare . ready for the but rather an amount that is equitable to the facts of the case.

The DOE called no witnesses. Student‘s Argument and Testimony

The evidence shows what might need to receive if he were to try to build his skills to the level where he would be able to study with . Nobody can predict with 100% certainty exactly what it would take to get . to that point or whether he Hearing Officer‘s would exceed the grade level in terms of and/or . There should be no resting on the specific hours that have been proposed if in fact it turns out that after he uses those hours he can continue to make progress toward a grade level in terms of his skills, as well as the content area.

In the closing brief, he argued that given the extent of delays and the he suffered, he is seeking at least instruction for every year he was denied FAPE (and/or was subject to discrimination pursuant to Section 504), in basic skills, such as ‖ in areas such as including history, science, geography, social studies, literature and other subjects required by the New York State Commissioner‘s Regulations for high school students and GED exams. 8 N.Y.C.R.R. Part 100.5(a); 100.7. IHO Ex.

IX. He is also seeking therapy as an initial estimate, provided he was also receiving , to work on improving , , , , , , , , , , and . He further seeks training in and use of , such as a , such as , to produce , to physically , improve his and improve ; and should also include a , , .org, , among other items. He also seeks week school year); a MetroCard for transportation between his ; and services and .

Dr. , a New York State-certified testified. On May 5 and 10, 2010 and January 8, 2011, he performed a evaluation, in connection with the impartial hearing. Ex. S. He took the case pending approval of payment, although there was no stipulation beforehand. Tr. 1639. He spent six hours on the first two evaluations. Tr. 1627. After a query by Ms. he did another two hours of testing on additional evaluations that he thought would clarify issues. Tr. 1627. He gave . no accommodations because the tests were standardized. Tr. 1640. He believed a evaluation would not have given an appropriate picture .. Tr. 1625. While it may have suggested things, it would not include tests of memory and attention. He reviewed many reports in preparing his evaluation, including those from , which included tests similar to what he would administer. Tr. 1579, 1632; Ex. S-2 through S-9. The Summary seemed accurate to him, commensurate with his findings for the most part in .

He administered the -4) to assess ‘s functioning; the Test of Achievement to assess his achievement; and of the Based Assessment, a selfHearing Officer‘s administered form to identify . He also tested for skills , executive functioning, , . His basic impression of ‘s was that that functions at the low end of the low average level. Tr. 1586-1587. The actual full scale , and there is weakness in some of the factors on the test. The ) range of scores was within the low average level within a . The has two major factors, an and . Full scale and since those factors do not correlate well with when they are , it suggests that the may well be a better measure of his overall skills.

The of the showed a very big discrepancy in what he could to him, which was within average range, and what he which he couldn‘t because of the . Tr. 1588-1590. The also was within . is very much related to the

The portion of the evaluation was fairly and . Tr. 1592. There were very . Tr. 1593. In that section on , there were very strong indications that if he had , other problems with , he had difficulty with , . With rapid naming, it suggested a problem that related to not being able to fluently see words, to see words exactly as they are so that you understand the word and read in a more fluent manner.

In had a lot of difficulties in immediate memory, but his verbal learning . Tr. 1594. was at the and the . When repeating things over and over again . had the ability to integrate it, and showed relatively good skills. A lot of the other skills were , varying from .

In and , which relate to his . showed very good potential in terms of overall skills. Tr. 1595-1596. and were very, very, problematic areas. Tr. 1596-1597. He tended to work at a very , both because of the slow pace and because of . A lot of the processing speed required the use of a Between those two, how quickly he processes things .

also has difficulty with . Tr. 1598. He was shown seconds later he . He had . He was also shown a series of . He was . needed a lot of for him to remember things. Tr. 1599-1600. On many of the skills where there was tasks. He did not believe but rather somebody who had in many important aspects of . When you talked to him, you got the sense that remembered . So in most contexts, he did show that much greater potential in .

Hearing Officer‘s

What these tests appeared to show was that ‘s main problem for learning was and , which was somewhat the result of the . Tr. 1598. Even if information got in, much of the time he had difficulty remembering exactly what has been said. He often seemed to forget what he had just done. On tasks where things were repeated and he could learn, he did a lot better.

Dr. diagnosed . with a ( ), which included disorders as a combined diagnosis, and , as corroborated by all his evaluations. Tr. 1601-1602, 1636. The was basically for . He did not he did not have sufficient criteria to do that. Tr. 16021605, 1636. The major finding of and would not have affected his recommendations since they included that aspect of his functioning. Tr. 1606. He also determined that had . Tr. 1601; Ex. S-28. The overall impression was that the was an additional problem over and above the .

Dr. believed . would benefit from intensive reading instruction focusing on the development of processing skills, approaches that could integrate his strong with more problematic and skills. Tr. 1606. The functioning in many areas suggested that he would be and a to that type of . Tr. 1608. There is a very good chance that he would be able to develop better . Based on the listening comprehension, one would assume that the could be improved as well. He also believed that he would benefit from .

From experience, his rule of thumb was that . should be given and until there was some , of , maybe a year, depending on how many he had been receiving , that suggested he could learn no more than that. Tr. 1611-1612. As long as he showed progress on , one could assume that his potential could be reached. If he reached his peak, that's the point that he would stop. is a New York State-approved supplemental services provider under No Child Left Behind, where students can come to receive help with , . Tr. 746. instructors must have excellent , and . Tr. 749-750. They must be able to apply the techniques that are the basis for the programs. They must also have a Bachelor's degree, though they can make an exception to that if the applicant shows excellent processing and a strong ability to do the programs. New instructors get an initial two-week training and are Hearing Officer‘s periodically observed by a mentor. They do not require their instructors to be special education certified. About 60% of their students come with a , including , , Central . Tr. 756.

offered the ( ) program to develop and how to apply that process to . Tr. 735. They also used , to developed awareness to improve reading and ; and , to strengthen the , so students improved in , , and in their expression, both verbal and written. Tr. 736-739, 757. Its program, , helped to develop , beginning with things as simple as understanding . addressed including , ‗ , and . Tr. 754. There were a number of articles to support the efficacy of the . Tr. 740-742.

did not provide , although many of its students who came for the and have stayed to learn how to apply their better to materials that would help them with the . Tr. 758. They also did not provide any content area instruction aligned with New York City school curriculum since that was beyond their area of expertise, which was reading and spelling, comprehension and math. Tr. 819. They did not do tutoring. But they would be willing to work collaboratively with other , with weekly meetings and updates. Tr. 821.

assessed . on April 21, 2010. Tr. 758-762; Ex. H. The testing summary and the results indicated that while he had vocabulary that was at least at an approximately grade level, his ability to , depending on the measure, at about a level. The primary cause of that discrepancy was .‘s severe awareness. It was very difficult for him to and to think very specifically about their order and their number and their identity. It was nearly impossible for him to do past a three sound level word, such as bad or cat.

The , a nationally , had him grouped in sets of twelve and then picking the . Tr. 763-768, 824-825, 828. This required specific and vivid imagery for the word in order to correctly identify its meaning on the test. . was able to respond with only one error when using words for olds. He was also able to identify the correct , like consuming, ascending and constrained. However, was his basal.

They administered three , a nationally normed and standardized test. Tr. 768-773. The , a measure of expressive language, showed a pronounced difference

Hearing Officer‘s between his receptive and expressive vocabulary. He tested in the on this test. The of , where he was asked to listen to sentences and explain what was silly about them, was difficult for .. The test results placed him at the , , which gave him a series of directions, starting simply and then increasing them, to see if he could understand, remember and then do these directions, was for him. He was constantly able to do , but only . Difficulty following , and being able to explain something , all features of something and language connection was not fully developed, showed that he had delays in receptive and expressive language.

, a measure of , was very . Tr. 774-776. He could were very , meaning they might . The types of , knowing what sound to associate with what letter. These results put him at the level. Tr. 776.

The ,a that he was asked , was .. Tr. 776-777. It was a test that was supposed to be given to . His , a grade level , indicating a with word These types of errors were also consistent with someone who has processing.

They administered the , a test for word recognition that was for adults as well. Tr. 778-779. The has a much . The results those that a beginning reader would have seen many times. that began with and then went into . Then there were and with on the test. . scored at the at a grade level equivalency of , since it was not uncommon for students who .

The , noting . Tr. 780. He read with and levels. On each paragraph, he could answer , which showed that his of what he was were much

On the , whose tests typically considered asking inference questions, main ideas, predictions, what does not fit in the story, he also had . He read , with accuracy of what he read also at . Tr. 781-782. Weighing the rate and accuracy together, his fluency rate was at , although his comprehension rate , at . He was able to .

for , a nationally normed test, showed his difficulty hearing sounds in words, even with two sounds, such as ‗it.‘ Tr. 783. He also had difficulty counting . His performance placed him at the .

Hearing Officer‘s

On the , where he said out loud the sound that represented, he could do , which showed weakness in his ability to associate a sound with a letter. Tr. 785. On the , he was asked to to see if he could and put them . The , a processing, showed it was very difficult for him to to sound. Tr. 787. With , he tested at the age equivalent of .

Ms. saw consistency in the test results. Tr. 788-789. A great many measures showed , but also in , two causes of ‘s . These weaknesses made it hard for him to . The and . The one outlier was his , which was quite a bit higher than any of the other measures. In , often considered to be a measure of . , relatively speaking, which was very encouraging for his potential for other types of language .

In Ms. ‘s opinion, as a priority, the most important program for . would be , to develop both his and , but also to show him how to apply that to improve his , to get him to be able to , and to expand his and his . Tr. 804. Second, there would be the , to develop the imagery connection, to make it easier for him to understand what he was and then to be able to remember and be able to convey what he read both .

Although there was a recommendation that he might benefit from the program, the current recommendation did not include . Tr. 805. She explained that sometimes when a student was receiving all this stimulation and they are better able to , the student could generalizes the skill and then become better able to think . So would like to and see what kind of improvement he made from the first two programs, to determine whether he needs the program. Then they would be better able to know whether he needed the math program and, if so, how many hours.

recommended an initial hours, to get him to a reading level, followed by a reevaluation to assess his progress and further recommendations, as needed. Tr. 791-797, 830-832; Ex. H-4. They believed this would be enough time to stimulate both and o processing, and the , so that . would be a who could .

initial recommendation changed after a meeting on May 5, 2010, between the ., who indicated his hope to take the , which she believed required a to take it and pass. In response, they adjusted their goals accordingly. Achieving an additional levels would require hours of instruction. However, once he , his current level of Hearing Officer‘s would then become an issue. To read independently at a level, would not only have to know how to , but he would also have to know the meaning of words that he currently did not know. So, not only would they be working on , but in order to work on his , they would also have to work on his . Depending on how quickly . was able to learn new vocabulary, to continue to develop his and improve his all the way to the grade level, she could see him needing as many as hours, in a prescription of , which would probably extend over a . The goal would be to get him up to speed as quickly as possible, because after this intensive instruction to improve his processing, reading and comprehension, he would then have to have some serious and classes.

After a minimum of hours, the goals they have set for where . would finish instruction, Ms. believed he would be able to words. Tr. 850. He would have a sight word . He would be level and comprehend it. She added that it was possible that . could begin studying for the before he reached level, as long as to him. Tr.

840. He before his skills were sufficiently developed. However, ideally, there should be a period of time when he was just working intensively on the and especially at the beginning of instruction instruction could be very tiring. Tr.

844. Once they have established that . could read or level, then there could be some overlay with another type of study.

Ms stated that there was no way to know with 100% certainty if . was going to make progress sufficient to successfully obtain the . Tr. 798. Her recommendations for services were based on other students whose diagnostic evaluations had similar results to . and how long it took them to achieve certain levels of performance. Tr. 799. Since he was who had and , she believed it would be relevant to look at a study done by Dr. , to substantiate her conclusion that programs could help . to read.

charged hour. Tr. 800. It only bills after providing the services and only for the hours the student has done. They would agree to receive the money directly from the DOE, rather than have . pay out of pocket. Tr. 807. She believed the rate was within the range common in , . Tr. 813. They have an for students whose Hearing Officer‘s tuition is paid by the District. It allowed for excused strictly for illness, supported by a doctor‘s note, or a documented family emergency. It also allowed a limited number of unexcused absences, which for program would be Tr. 835-836. If the student reached the limit for , he would be from the program. They would then hold a meeting to . If he were absent again, after agreeing to come daily, he would be suspended and would not take part in the program. Thus the District would pay only for . Tr. 842.

consultant assessed a student‘s progress every other day, and then every week through a progress report. Tr. 801. Every there would be an . If a student receiving instruction had a number of weeks where he had not made progress and they have tried all the different methods at their disposal, including having their colleagues at the view the student by video conferencing, then they would recommend stopping instruction. Tr. 802. For the minimum prescription that she would recommend was . Tr. 847.

, managing director of , testified. is a provider of supplemental instruction in basic , , , and for students grade, although it occasionally had . Tr. 978, 1030-1035. It also provides tutoring services to students studying for the . What services provides to students depended on them and the level of skills they brought into the project. Their instructors must be certified in some state, although most were certified in New York State. If not certified, they must have been employed and in good standing at a parochial or private school where such certification were not required. has several certified content-area teachers and certified special education teachers on staff. They have a variety of curricula to meet the students‘ needs. Tr. 983-984.

Prior to enrollment, assessed a student to discover his highest level of achievement, and then to determine whatever gap there was between his current skill level and the target that they would set, in .‘s case, . The gap would determine how much instruction would be required to close the gap and prepare him to take the test effectively. She assessed in February 2010, to determine what skills he currently could handle with consistent success. The assessment would also serve as a diagnostic Hearing Officer‘s tool to determine instruction programming. Ex. I. The first test, the Performance, which tested a student's ability to of increasing complexity, could not be scored due to .‘s and difficulties. Tr. 986. . scored at level on the Perception, which measured his ability to a word. Tr. 987-993. On the Test, testing sight recognition, had a combined score of level, showing mastery only on the primer level. Tr. 994,

1011. The , which required . to read at , and then answer questions to determine how well understood what he had read. Tr. 995. At level, she rated his fluency rate and his performance overall as fair, given that he was able to the . At the primer level he had and his . She rated his performance as . When presented with the , he instant reaction was that it was too difficult. on an grade equivalency. Tr. 996. She scored his for writing as poor. Although they were able, with his help, to understand what he was trying to say, he had he was trying to use correctly, and the responses were .

On the , and the test, where they read the questions to him, she determined that he did know how to add on a basic level. Tr. 998-999. The one error he had indicated that there was some inconsistency in his but that inconsistency would likely be overcome by the use of , as simple as a calculator. Tr. 999. She also determined that he understood the underlying concept of , although he did not understand that . Tr. 1000-1001. The quality of his error distinguished between . The advanced addition of whole numbers test further substantiated that . understood the concept of addition, with the two errors made at the basic were attributed to careless error. Tr. 1002. With the advanced and problems she would not determine whether his issue or whether a calculation issue. Tr. 1003. While he understood the , he had difficulty when he had to . This meant that he understood the process and procedure for subtraction, which a tiny amount of review would be beneficial to clear it up. . had difficulty with place values and money questions, . Tr. 1004-1005. The money problem might have been attributable to lack of understanding of the problem, since the called for simple . With , he understood , but had conceptual difficulty, such as the property of . He had , but had difficulties when the numbers . Tr. 1006. Therefore, once they Hearing Officer‘s cleared up the idea of , then they should expect him to do this kind of successfully. In general he had with some of the concepts. Tr.

1007. She added that the was timed. When time ran out before he completed everything, he declined more time to , explaining he had shown . Tr. 1008-1009, 1046-1047. The result was that they did not go on the test . did not have , so they would not work on this. Tr. Tr. 1044.

Ms. believed that the easiest questions on the GED have to do with fractions. All of the skills on their exam would have to be mastered in order for to be understand much less manipulate or compute with. Tr. 1053. She believed the hardest questions on the were ones that a would be able to answer with ease. Tr. 1047-1048. Based on the , which found of which he demonstrated mastery was for which the expected grade level is . Being conservative and knowing that there were questions that he did miss, she estimated that he was at the , away from having the skills necessary to pass the . Tr. 1009-1010, 1048-1052. A calculator might assist him he were able to demonstrate his conceptual understanding without . has a wide variety of manipulatives available to help learn . Tr. 1016-1020. She would encourage him to take the periodically, to give him regular contact with what his goals would be.

Functional for a person going to , , or having a , , would minimally require understanding of at level. Tr. 1016, 1056. She estimated that it would take hours for . to reach that level. Tr. 1059. A student who had skills that abruptly ended at could possibly still pass the math section of the , although there were some questions that called for . Tr. 1047-1048.

If were to provide him with supplementary instruction services, primarily in math, she would expect that he would need to start at the level of advanced subtraction to clear up whatever concept errors he has developed over the years. Then they would need to work sequentially through those skills until they reached the level that would allow him to answer all of the questions that were on section. Based on her experience with other students, she estimated that might take him 800 hours to gain grade mastery, considering his and providing that he was diligent in and effort and Hearing Officer‘s there are no other to master concepts. Tr. 1014-1015, 1027, 1056. She based this on the idea that would work with him and that they would be receiving him from with the as a nearly finished product. Tr. 1064-1065. That meant he would be reading least grade, and that would take him the rest of the way in terms of and making sure that he was in the content areas in history and , for example. Once the student got to the grade level, would administer a diagnostic to see what the score was, to gauge how much instruction he would need to get this section to a . Tr. 1059-1060. could then provide the . She believed that if he were able to progress to the level of the , they would be able to do it within that period of time. Tr. 1025. If they could not get him ready to pass the within the 800 hours, then it was not going to happen, at least not with at the helm. If he passed the , even if he had hours left from his award, they would be done. Tr. 1057.

.‘s performance on the first practice test would be administered when he got there, to determine the allocation of hours. If they found that he needed more work in the domain than they had hoped, then they would take some hours out of the for that. However, she hoped they could spend almost all of the hours working on the hours was an estimate, which made her uncomfortable adding hours for other purposes, such as . Tr. 1024-1026. He would take the of the test, a nationally normed test for and to establish a grade . Tr. 1075. would then measure growth in the grade equivalency after every , by re-administering a different form of the . Tr. 1023-1024, 1040, 1075-1076. During each hundred hours they would expect to see growth in the curriculum that he is able to use his grade equivalency go up. If . did not meet his goals after a certain number of hours, for example, , she would do whatever the , such as setting a to achieve by that time after which instruction would be suspended, which she felt would be fine. If the hearing officer wanted to see continuous improvement in order to have it continue, that would be fine. As far as she was concerned, if it took hours and all he managed was to get to is seventh grade level, having mastered percents, and he could be , even in the absence of a . That would be a worthy goal, although it would not be for her to determine whether or not that was what would happen in this situation. Hearing Officer‘s

Ms. stated that they would like to see begin math instruction at the same time as , although not as intensively at that point, maybe one hour a day of instruction would be adequate to begin with. When he completed whatever program prescribed for him, then he could come to more intensively.

She described the distinction between and . , which has done a lot more research, was more of a therapeutic environment in terms of developing a student's awareness and early skills. Tr. 1026-1027, 1063. Once a student was reading at a level, the distinctions between them started to vanish. When a student got beyond grade level, she believed they were the place of choice. would be tasked with getting relationships established, getting fluency and comprehension underway, and getting to happen so that their are both growing together. Once those were established and the student was able to and understand what he was , then they off to school to school level, making sure that they acquire all the vocabulary they need both to and and to express themselves at a level commensurate with a , and then also to . She understand from that they were able to do some but that's not really where their focus is, and so they generally preferred that would take that part on. She further noted that had provided to a student who also was receiving services. Tr. 1020-1021.

charged $85 per hour for instruction. Tr. 1021-1022. They also charged $295 for diagnostic testing and $100 as registration fee. She explained how the DOE was reluctant to pay for sessions where no instruction has taken place, forbidding them to charge for sessions where there has been no instruction, which made it difficult for them to continue to provide instruction under those conditions. Tr. 1029. If an student were that they put in front of them, then at that point they were going to withdraw. Tr. 1038. Under those circumstances, if the adult student had received hours per an order, the hours remaining would go unused.

Dr. , , and , testified. On October 15, 2010, she performed a processing evaluation and on November 5, 2010, a processing evaluation. Exs. P and Q. She reviewed report, dated March 4, 2010, Hearing Officer‘s prior to evaluation. Tr. 1424. She determined that in a noisy environment or if . Tr. 1361. On the test, he produced a associated with behaviors that might and . Tr. 1367. He also had , and , or timing. Tr. 1368. She concluded that had , which would . The result was that he needed more time to take in a question or comment and process before responding. Tr. 1371.

She also tested him for a disorder. Tr. 1371-1372, 1425. On the test, to determine whether he heard , he was asked to into a full word. It was to . . He did . He really could not the sounds, which implied that he had a .

She also administered the . She read him and asked him for each . He did . She concluded that his is quite adequate, at least for this measure. Tr. 1374. Thus he has a level of understanding in spite of the that indicated that he was capable of might be sufficient for him to learn.

She also tested his , the ability to or and and . She asked him simply to to see how long a he could recall. Tr. 1375-1376. He which was an indication that there could be some issues. He also , and that he knew. His were both outside the allowable levels. This evidenced a problem.

She also administered the as part of her language processing evaluation. Tr. 1380-1382. She again found since he could not repeat a . She did where he had to recognize the , and characteristics that would make the . Tr. 1383-1384. He also had difficulty with this, beyond what would be considered in the average range or in the bell curve. He had went together, and why . His came out with the on both, . He had trouble explaining the relationship among those words that he knew. In semantic relationship he had to listen to a statement, understand it, and be able to recognize a correct answer by understanding . Tr. 1384. This , , , , and . This was very him. The to , with the understanding subtest performance at no and recalling sentences at . Tr. 1385. In explaining the factors that impacted his ability to recall Hearing Officer‘s sentences and numbers, she concluded that he definitely had a working memory deficit. She did not notice any , describing him as attentive and responsive. Tr. 1386.

To assess his , she administered the formulated sentences subtest, to to produce a . Tr. 1386. He could not , although she believed he given to him. He . Tr. 1387. On the , he was very limited. Tr. 1388. There were a lot of . On the ,a , he scored far below the criterion for his . Tr. 1389- 1390. This meant that he . She did not .

Dr. concluded that had and . Tr. 1427. He presented as someone with a that contributed to his . ‘s strength was that in spite of all these issues, he still got the . Tr. 1432-1433. But he had and along the way.

In Dr. ‘s opinion, for to be able to learn to read, he needed a concentrated awareness approach, such as . Tr. 1391-1392, 1431; Ex. Q-5 and Q-6. In her experience, this approach has been very to become better at skills. He also needed to learn a lot of the basic academics that he , so he has enough information and can develop . Although she was not his educational consultant, and could talk more about his issues, she conveyed how he expressed on several occasions the real desire to get a and at what he would be doing. Tr.

1393. So he had to have in order to be , which included , and , and knowledge of something about the world around them. Tr. 1393. She also suggested accommodations if he returned to a school setting, including , to and thoughts; a quiet environment, since he was ; ; ; ; sure he was meeting deadlines and doing what he needed to do. Tr. 1394.

Dr. recommendation was for two or three years of to work on improving , , , , short-term memory, organization of , and retrieval. Tr. 1404-1407; Ex. Q-6. This amounted to hours, broken down into -minute , with the variable being that she did not know what other programs he would be taking or doing and how reasonable the scheduling would be. In this case, she did not see any overlap between this and type reading services. With , he would be working on a lot of , , , and , things that a pathologist could work on and reinforce. While

Hearing Officer‘s used to help him develop the ability to read, that was something that and pathologists did not typically do. Rather, the would work more on his , , use of the , understanding of , and also .

Dr. believed was capable of earning a or . Tr. 1407-1408. Despite the results that found him to be functioning at the levels of an or a , she could not make any assumptions about his ability to make progress. She suggested setting up benchmarks every six months. If he did not make any progress in that time, she would want to administer another assessment to find out whether it was something he was . If they were not getting anywhere, they might discontinue. Tr. 1410-1412. If he was learning well, hopefully he could achieve some level of improvement by several years. He has to learn to be a . Tr. 1409. She noted that he had already sessions of a free where he seemed to be responding to the materials used with him. Tr. 1417. From people who worked with him she gathered that he was more expressive in terms of his skills.

She also recommended an . Tr. 1394-1395; Q-. He could use to his and his , and , noting he was much more . He could be taught how to use a computer for , and to help him . For his discrimination problem, he should consider an FM device for the classroom.

For outside the classroom, assistive technology included programs such as , a CD that would be loaded into a computer for training him to work on , , where he has to segment how many . Tr. 1396-1398. A component also worked on , and in noise. She would prefer to have him work on this with somebody, such as a , who could guide him and set the preferences. cost $300 for the professional version and $80 for the home version.

Once instructed, could use on his own , a more intensive program administered for fifty minutes five days per week, up to twelve weeks, to build processing speed. Tr. 1398-1400. He would learn to discriminate differences in and . would be reduced in speed until the individual learns to adapt to in order to interpret the sentences more clearly as the speed increases. He could work independently, but somebody would have to monitor his and give him feedback on a , about two or three times per week. As long as he had a and a , he could work out Hearing Officer‘s of home with a provider located anywhere else. The disk cost $950 and a provider charges about $200 per week. Tr. 1401. Package deals can cost $2,500.

To improve Dr. further suggested the use of a programs to improve and with input, such as and . Tr. 1402. , which cost $4300 for the disk, was something that a provider could start him with, but that he can do on his own independently. required and a .

Mr. stated that the DOE did not dispute the recommendation by this evaluator of . Tr. 1126. However, he argued it would have to be determined whether this would constitute the compensatory services.

, licensed who works for the DOE, testified. She conducted an evaluation on September 29, 2010. Ex. O. She found him and seemed determined to overcome some of the obstacles in his life. Tr. 1280. She considered his April 15, 2005 IEP, which had recommended , reviewed the testing summary from and the report from , and spoke with the evaluators from the Center of Assistant Technology. She listed the areas of concern , , , and . Tr. 1270-1277, 1281, Tr. 1291. Although a noted a and , her evaluation found he and . Tr. 1269, 1291.

Ms. believed that the purpose for the evaluation was to find out whether had any kind of needs or deficits from a compensatory and that required the support of in order for him to function as an . Tr. 1278. She explained to ‘s current skills, rather than what he missed. Tr. 1279.

She had him , not to evaluate and the . Tr. 1280. She noted that when he wrote, he held but . Tr. 1281-1283. The much below what she would expect for someone his age. In terms of fluidity he was and in a timely fashion He was able to put , but . It was much below what she would expect . In her opinion . She qualified this that while it was very important for a person to to be able to do things not necessarily done , such as , most written communication these days was done on So a person would have to have some basic ability to fill these things out, and if the writing is way below , this could limit their ability to get a job. However, the ( advised her that ‘s typing was slow, although they did not say how Hearing Officer‘s

. Tr. 1284-1285. If she had known that he typed 7 , which she believed to be a speed, it would be appropriate to work on this . She included a goal for both in her report since an would likely be the one to work on both. Tr. 1286-1288.

In her opinion could come from a variety of causes, recognizing the , or , as to where the keys were, moving the , or more probably a combination of all. Tr. 1289-1291. The issues she found in would have a tremendous impact on this, which was why . He would also need some areas to help support what the was doing while the would support what the was doing, to improve the and and other . She agreed that it would be appropriate to assess him to determine whether could assist him in . Tr. 1310.

For ‘s perception issues, she administered the of . Tr. 1293-1296; Ex.

O. In a test of , of increasing difficulty, he for his age, confirming his , and putting them . Usually an would not design a program to improve a , but rather . However, could contribute to improving this issue with a lot of , which the student could do at home. The test of showed he was able to see different level. Tr. 1297. when he was asked to integrate the shapes. The test took him , the highest age in the test, not an adequate result for someone of ‘s age. Tr. 1298. The test was on line with found. She also noted that was , which he might have . Tr. 1312. The , and, for the accommodative , could help make it easier to focus and . Otherwise, it would not impact on any of his perceptual issues. Tr. 1313.

Ms. found ‘s life skills regarding general to be adequate. Tr. 1299. She found areas of , , figuring out . She could not to discern whether the . Tr. 1303. She also expressed concern . Tr. 1301. As , although he had very good , he might .

Ms. recommended . Tr. 1303-1306, 1319. She felt that would not be sufficient to really help. The needed to be , such as what she saw in the and reports. The could last as and as much as a year. The need would be determined by whether he would be able to function in the areas that were listed as problem areas. If he was now able to fill out , , things like that that we need for him to do to be able to function and , then the is no longer needed. Hearing Officer‘s

On the other side of the coin, if he was , that would be another reason for decertifying and discontinuing . Her recommendation was based on what would be optimal at this moment. Tr. 1307. She did no take into consideration that he had not been . Rather she is saying that , could help him achieve some of the skills that would allow him to life. Although it was possible that did , the factors she took into , , than his , made her believe that if he his writing . Tr. 1309.

The goals she and were an outgrowth of what he would need to get where he wanted to go. Tr. 1314-1316, 1327. If she had known what he would be in and what some of his were, she might have . Tr. 1322. She just knew he was not in school since 2006. She did not pick a , just something expected from a . If he could achieve these goals in one year, to , this would be a good marker that he was moving along towards what he would want to do. It would be important then to reassess him to determine if that should be the final point. Tr. 1326. If intermediary measures were needed, they could create shorter-term goals that measured increments that lead towards the goal. Tr. 1331. At this time it would be hard to determine the hours he would need. Most of the goals were assuming that he is in and at the same time. Tr. 1317. Although might make it easier for him to more efficiently than if he had she added that some of that software was very difficult to use and not always accurate. Tr. 1321-1322. It would be a great idea for him to . software needed to be tried with him because some students reacted very well to that. Tr. 1328. She did not know if he was . Software with might be even better because if he what he typed that would provide him enough input for him to make the right choice. She recommended a written work. Tr. 1329.

, Director of the , testified. She has written the guidebook for the Department of Education on and is now . She had responsibility for the team that evaluated the student. She spoke with the , and discussed with them what they . Hearing Officer‘s

Based on that and reading their responses she determined that the report was appropriate. Tr. 1138. The team reviewed ‘s last IEP, dated April 15, 2005. Tr. 1190.

underwent an evaluation on December 4, 2010. Ex. N. To determine , the framework they follow is , for the student, environment, task, and tool, which was best practice across the Tr. 1138-1151,

1232. It is a framework typically followed by most people who deal with , although there are . First thing is to understand what the student‘s abilities and disabilities are. Then you have to consider the physical arrangement of the student‘s in which he has to utilize it and who . Task includes the he is expected to complete, those the student , and how the technology might help him. Then they make the recommendation from a variety of , from , such as an or , to high , to assist that student. You want to discriminate based on what the task is and the environment in which the student has to utilize the team does not typically evaluate students who have no and , although she has. Tr. 1230-1233, 1240. Typically they recommend a trial to begin once an environment or placement is established and then they would establish how long that trial period would be needed.

The report‘s educational performance included ‘s plan to pursue his general and and that was being considered to determine if it could assist him with the and demands associated with this. Tr. 1154; Ex. N at p. 2. No one advised team what it was that would be required to do because it had not yet been established. Tr. 1222,

1226. The report indicated that had difficulty . Tr. 1160-1165. There are to help with and , but they would have to determine the environment where the student was going to be utilizing it before they could make a recommendation. They also took a near point sample, where had difficulty reading back what he had written, due to . Tr. 1167-1168. She to be a major concern because they were . Tr. 1169. However, . They did not assess for voice recognition software since they still have to consider environment, especially if it is , which . Tr. 1170-1171, 1211-1229. She could not say whether the use of on its own or in combination with might produce more effective results for than Hearing Officer‘s on its own since he could type only seven and a half words per minute, because of the variables involved.

The team made a ; scanner to assist with access to , and documents; , which could help a student ; and , , and and , which can read from various texts and give feedback to the student, without knowing the environment he would be in since they know how it would be utilized. Tr. 1155, 1172, 1176-1179, 1227, 1247. Training usually takes 5 ½ hours. Tr. 1244-1245. Based on his use of the loaner equipment in his placement, they would then revisit the recommendation and make revisions if necessary. Tr. 1166, 174. The software they would start with is something that could be trialed to address the since it could read that is in print format. Tr. 1194-1196.

The reason they recommended the laptop and the is because the has a lot of different features that, depending upon the environment, may or may not be appropriate, and the laptop would be something that could be utilized in various different environments. Tr. 1207-1209. Within that trial period, based on the feedback they get from whatever he is doing, from , they would be able to determine if he is having difficulty with them. In her opinion, the software recommended in the report was enough to give the baseline of support. Tr. 1234, 1242. A baseline is a basic that has a variety of specific features that could be trialed to see if they meet his needs since the things he had to do were not yet clearly defined. It is possible there is other software out there, such as and , which would be beneficial. Tr. 1235. They do not recommend books on tape unless it was something that they determined that he was required to do. Tr. 1248-1249. She noted that reading function could have an feature that has the ability to read . Tr. 1250-1253. would be available to get books electronically and was . During a trial period, they are not going to recommend every possible thing until they know what a student would be doing. Tr. 1258. If the student were going to be focused on a vocation, and specific things of that nature, then they would want to prepare the to address those needs. With respect to his learning to and , the process by which he was going to learn this would have to be determined before they could recommend the technology.

Hearing Officer‘s

The report indicated that he typed with of his . Tr. 1197. When tested for speed he was able to . When using a laptop computer with software he could type a than when using a portable word processor with word prediction software. Tr. 1198- 1199. Until he is trialed, and the feedback is that it is necessary, they do not do keyboard training.

They did not test for because at the time that they evaluated him, did not indicate that as an area of concern, . Tr. 1182-1187. Math-related software includes , , , and many , . Until they know what has to do in the area of math and what is available is not sufficient for him, then they would not just with just to be trialing him with . Tr. 1188. She noted that the could read a , if necessary, and the laptop could have a calculator built in if needed. Tr. 1231.

president of , an , testified. They provide and evaluations for children and adults with disabilities.

On December 16, 2010, he performed an , at ‘s attorney‘s office. Ex. R. He reviewed the DOE‘s and believed the recommendations they made were good. Tr.

1451. He believed there were additional technologies that could have been tried with regard to . He reviewed no other documents, although he had a conversation with the attorney prior to the evaluation about ‘s areas of need, specifically in writing, . Tr. 1454. A suggestion was made whether voice recognition technology could be one of the technologies included in the evaluation. He noted was adept with his , which had a voice recognition application. He took that as a personal preference but did not test him on this.

He tested with a number of technologies. First was having type using . He found that , on a , and what he wrote had and not . Tr. 1456. He did not seem to have or when it came to using them. Tr. 1491. On software, they skipped the training part, which required went to the dictation through a specifically . Tr. 1458-1460, 1493-1496. With little support, he the program translated that he was able to use it with very . With to be a very good match for , and the writing that he would need to do at his for the Hearing Officer‘s present and for the near future. He could get training by someone speaking the instructions to him.

He then tested him with the , which the DOE had done. He believed Kurzweil is a very good program, which highlights each word a word at a time. It has a lot of features that he believed would be beneficial to . Tr. 1461, 1464. There is a growing body of research that asserts that people who in this way do improve their skills because it increases their . And since they are also , it helps students learn to and the of the word, and that there has been some research that says that that does with . He used , book download from , which is available only to , to students for free and for others at an annual fee of $50 per year; and , which allows you to set the and then magnifies the current word spoken in the . The cost of this program would be $1,035, inclusive. would require access to the Internet. Based on ‘s reports, he also needed math supports, especially in the area of . The he listed a based calculator and . Tr. 1468-1470. He further recommended a scanner compatible with although he was not aware whether there was one. Tr. 1511. He recommended for reading web pages. Tr. 1512.

Mr. stated that it is generally good practice to assess a student in his school environment, which he generally does, to make sure that the recommendations are going to match the needs or the particular and unique aspects of the school environment. Tr. 1473-1475. He felt it also important to see the kinds of instructional styles or to find out the instructional methods that the student would be receiving, to make sure that the technology would be a good match with those as well. This would help him decide which technologies to present to the student during the evaluation. He made his recommendations based on his understanding that ‘s options included obtaining his , going to , or going . Because represented that he needed his before he could go to work, he assumed the setting would be taking the or . So the technology he recommended could work in any or all of those settings, or, if he were not in these settings, , in the . If additional education supports were awarded, further assessments would depend on the staff at the location where he was taking classes. If the Hearing Officer‘s teachers and the staff there felt that the technology he had was not providing the level of support that they felt he needed, then that would be an indication that he might need a reevaluation.

Comparing his evaluation with the DOE‘s assessment, he agreed with most of the recommendations, but there were a few instances where he differed. Tr. 1482. While he agreed that using the word prediction software as a writing support program, which sounded like , would be beneficial to , in light of the his excellent ability to use , a writing support tool, he felt that it would be a more efficient and easier method for him as the technology that best addressed his need and enable him to do a lot more writing independently. Tr. 1476-1478, 1482-1483, 1485-1486. is a very good program for reading only, but not so much for writing, for which he should use something else. could not be easily used be used by in conjunction with . It could not be used in an optimal way with the software, but it could be used. won't write a misspelled word. It might write the wrong word, but any word that it writes is correctly spelled, which was a huge relief to Since had trouble reading his own writing, and Dragon Naturally Speaking has a read-back feature, where it will actually speak what he wrote using a , he could hear and listen to what he had just written, in order to be able to edit or proof it.

Based on his understanding of ‘s needs his recommendations addressed all the major areas of need, based on the information he had. Tr. 1485. In ‘s case the particular way that he was being taught would not have a big impact on the validity of his recommendations since he was not recommending any programs. Tr. 1503-1505. The programs he recommended were to provide access to and content materials, which could be exclusive of the particular method that he's being taught to , which could be a process. They were not recommended , but providing access so could immediately produce , which also could be used regardless of the method of that he is provided with. He believed could learn to even if he could not . Tr. 1516-1517. If a student has the ability to formulate sentences in his mind and can speak them, which he believed does, then using or another voice recognition program, is an accommodation or a support that enables him to produce

Hearing Officer‘s writing, even without the ability to read what he has written. Using the feature of would enable him to be able to and make sure it was correct. The recommendations made for were more on the end of accommodations, where they're providing access to , but are not focused on improving a skill as the primary purpose of the technology. Providing access could improve the skills. And the cost of and were approximately the same.

Mr. believed that could have a with . Tr. 1449. If a student were going to be pursuing , they might need different supports to help them in . If they were getting ready to join the , they might need supports as reasonable accommodations in the . They might need supports to help them function as independently as possible.

would need in the use of the , a critical part of being able to use it. Tr. 1471, 1514. He did not know what would be attending as a result of this hearing, but he was aware of the options under consideration. He believed all the recommendations would be helpful in any and all of these potential directions.

Dr. recommended that after the completion of a program to improve his and , should be referred for an , and be recommended for appropriate training that has done. Tr. 1613. depended on his and potentials so he needed to improve them before the assessment. Tr. 1614. He conceded that it would not hurt to do the assessment now, but it might to have. Tr. 1639. He also believed would benefit from the recommendations in the reports since its recommendations were consistent with his findings. Tr. 1615. Findings of Fact and Conclusion of Law is now an whose ability to , which his attorney had him demonstrate at hearing, has not exceed the level for many years. It has served as his and moving on . It cannot be said that this resulted from any deficit on the part of the DOE since there is no evidence in the record to support this. What the evidence almost universally supports is that has . So any award of compensatory education and services has to be tempered by reality and a clear understanding of what its goals should Hearing Officer‘s be. As noted extensively above, prior to the student he was a participant in , on track to receive in the expectation that he would qualify for a job or develop a marketable skill. Yet because of his ability to level, he is skills that would enable him to or maintain a . Therefore, to to the uniqueness of the student‘s circumstances, its focus must be on his competently, followed by appropriate . This conclusion is drawn for the relative strength the student has shown in his and what was read to him, which gave Dr. reason to believe that would benefit from focusing on the development of skills, with multisensory approaches, combined with repetition, that could integrate his stronger with more and skills. Through its testing, identified in awareness and as the cause of ‘s , and difficulties. Yet it found one outlier, his , which tested at a level, considerably tests. They found this encouraging for other processing, like . Dr. testing also revealed a level of understanding, in spite of the , that indicated that he was capable of understanding and that his might be sufficient for him to learn.

On the conclusion of the experts that might have the capability to improve his , the award will be divided into two parts. The first part will be an award of an hours (four hours per day, five days per week over twenty-six weeks) of , at a rate not to exceed $115 per hour, and 19.5 hours (one forty-five minute session per week over twenty-six weeks) of by a New York State- . The reading instruction will include, but not be limited to, what Ms. described as priorities to get him to be a functional reader at the levels, such as , to develop both his awareness and processing; to show him how to apply them to improve his reading; to get him to be able to sound out and recognize words; and to expand his sight and his . And also and program, to connection, to make it easier for him to understand what he was , and then to be able to remember and be able to convey what he read both . The therapy will include, but not be limited to, working on , , , , , , , , and . It should be noted that the six-month benchmarks conform to the timelines suggested by Dr. and Dr. .

Hearing Officer‘s

As represented by Ms. , ‘s consultant will assess the student‘s progress every other day, and then every week through a progress report, and then every ten weeks by an interim evaluation. All of this must be charted. At the end of the six months, and the will evaluate the student. In addition, the DOE and the student shall select on an independent or independent licensed psychologist, who at DOE expense, will perform an educational evaluation. If based on the results of his or her evaluation, and in consideration of the evaluation, the independent educational or determines that the student has objectively made progress, the second and student will be able to continue with an of and of , administered in the same weekly increments. If he or she determines that the student has not made progress, both the and services shall end. The student should also keep in mind that if he runs , it shall have the right to .

No sooner than the end of the , but before the end of his program at , the student shall be referred for an intensive at DOE expense. The DOE shall then provide appropriate , as well as a to assist the , and (I etc). The student shall be provided with all necessary accommodations to enable him to achieve benefit from the training, including, but not limited to the provision of , if what he already has received requires supplementation; and all differentiated to meet his levels.

As for , upon commencement of the student‘s program pursuant to this order, the DOE shall have its team observe him at and, if necessary, at his . In consultation with these providers, the team shall determine what, if any, assistive technology would be appropriate for the student under the circumstances of their respective programs. Per the recommendation of both , he shall receive at a minimum a and a , with training in their use. If is deemed appropriate, the DOE shall provide it to the student, together with training in its use. The determination of the team will be final. Hearing Officer‘s

To enable the student to implement his program, the DOE shall issue to him a MetroCard that automatically refills itself for as long as the student is enrolled in the programs ordered herein.

III. Section 504 of the Rehabilitation Act of 1973

A. Statement of Law

"The Rehabilitation Act protects disabled individuals from discrimination in public services." Andree ex rel. Andree v. County of Nassau, 311 F.Supp.2d 325, 334

(E.D.N.Y.2004) (citing Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 146 (2d Cir.

2002)). Section 504, in pertinent part, provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a).

Section 504 defines a "disabled individual" as one who "(i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102(2). A three-part test exists for determining whether a person is disabled under these statutes, see Bragdon v. Abbott, 524

U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) and Colwell v. Suffolk County Police

Dep't, 158 F.3d 635, 641 (2d Cir.1998). Under Colwell, plaintiff must (i) show that suffers from a physical or mental impairment, (ii) identify the activity claimed to be impaired and establish that it constitutes a "major life activity" (in this case, learning); and (iii) show that D.G.'s impairment "substantially limits" the major life activity identified. See Weixel, 287 F.3d at 147.

Section 504 requires a school district to provide a FAPE to each qualified student with a disability who is in the school district's jurisdiction, regardless of the nature or severity of the disability. Under Section 504, FAPE consists of the provision of regular or special education and related aids and services designed to meet the student's individual educational needs as adequately as the needs of nondisabled students are met. The determination of whether a student has a physical or mental impairment that substantially limits a major life activity must be made on the basis of an individual inquiry.

Hearing Officer‘s

B. Statute of Limitations

Section 504 does not specify a time limitation for actions brought under this section. When a federal statute fails to specify a limitation period, the court applies the "most appropriate or analogous state statute of limitations." Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 2620, 96 L.Ed.2d 572 (1987); Morse v. University of Vermont, 973 F.2d 122, 125 (2d Cir.1992), Bates v. Long Island Railroad Company 997 F.2d 1028(1993). In Morse, the court held that the state statute of limitations that applies to personal injury actions applies to discrimination claims brought under Section 504 of the Rehabilitation Act. 973 F.2d 122, 127 (2d Cir.1992). Thus, New York's three-year statute of limitations for personal injury actions applies to this case. N.Y. CPLR §§ 214(5), 214(2). The burden of proof is on the party claiming to have suffered at the hands of the discriminatory act, in this case, the student.

C. Whether the DOE Denied the Student a FAPE Under §504 Student‘s Argument argued that the DOE has not challenged, and therefore, the student has met his burden with respect to prongs one and two of this test. To be determined then are what school system policies or practices qualify as exclusion, denial or discrimination; and which of those discriminatory practices are actionable under §504 such that he was denied the opportunity to participate in or benefit from defendants‘ services, programs, or activities, or was otherwise discriminated against by defendants, by reason of disability.‖ Pinn ex rel. Steven P. v. Harrison Cent. Sch. Dist., 473 F. Supp. 2d 477, at 483 (S.D.N.Y.

2007) (noting that a plaintiff bringing a § 504 claim must demonstrate that she is disabled and that she has been excluded from federal benefits "because of his or her disability" (citing Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990)).

His attorney argued that the §504 claims were based on an and the inappropriate placement of in a District class. Further, during relevant time periods, defendants knowingly failed to implement written policies, procedures and protocols, train and monitor staff charged with compliance with the IDEA and Section 504. With regard to the adoption, implementation of the policies, procedures, custom manner of procedures that constitute discrimination based upon disability, the DOE acted Hearing Officer‘s intentionally or with deliberate indifference to the strong likelihood that there be a violation of his federally protected rights. The DOE failed to provide legally sufficient notice to and his parents prior to or after discharging him, as required by 504. was warehoused in District programs that did not produce effective outcomes for students classified as , and did not have equivalent educational services as those services available to students who did not have disabilities. The implementation of blanket policies has been determined to be illegal under Section 504 in other cases. The Department's policy not to conduct a manifestation determination whether the was a manifestation of 's disability prior to discharging him violated §504. DOE‘s Argument

While the DOE conceded FAPE under the IDEA for the 2008-2009, 2009-2010 school years, it did not concede FAPE under §504. Tr. 336. Mr. further argued that the student to meet its burden.

must show that the discrimination was the product of deliberate or reckless indifference to the student's federally protected rights, i.e. it must be shown by a preponderance of the evidence that the school district acted with "bad faith or gross misjudgment." See Pinn, 473 F. Supp. 2d at 483 ("Where a plaintiff asserts denial of a free appropriate public education . . . ., plaintiff must demonstrate bad faith or gross misjudgment."); Gabel, 368 F. Supp. 2d at 334 (noting that a Rehabilitation Act claim may be brought if "a school district acts with gross negligence or reckless indifference in depriving a child of access to a FAPE"). It has failed to do so, co the case must be dismissed.

Witnesses Testimony

from 1998 to September 1, 2008 at ( ), school, testified.

During the years relative to this case, his school had to abide by Section 504 of the Rehabilitation Act. Tr. 2046-2047. While he was at he did not recall one instance coming up of a §504 accommodation for a student who was not mandated for special education. No one at the school was in charge of §504.

Hearing Officer‘s

. Tr. 2064-2065. The students did not participate in like sites, although they got . When students turned , they were placed in . Tr. 2066-2067. They had a regular diploma type of schedule with the whatever classes they would need for graduation.

He explained that students were designated for alternative assessment after a CSE evaluation found their IQ below a certain number. Tr. 2037-2038, 2045; Ex. XXX. Most of the students in the school who were on were likely classified as . Tr. 2067. Under certain circumstances, that could include students with if the evaluator, and the parent, felt that would be a more successful track for the student. If a student came with a would have made a proper placement. Tr.

2044. After a time, if the school felt it was an inadequate or inappropriate placement, they would reconvene to see whether a change was warranted.

If had been in the standard assessment track, he would have had to pass . He assumed that had been left back. Once he was changed to , a more or less that groups students of similar age, Ms. bumped him back up to grade because it wasn't an issue of means. Tr. 2060-2062; Ex. MM. She then did a principalto-principal transfer since her school did not . Without a comparison to the previous year, he could not determine from ‘s alternative assessment portfolio whether he had made no progress in 2006-2007. Tr. 2068-2070; Ex. 58. His performance level was at level the highest score on the assessment. It did not suggest that was in an school. Assuming a student was present, every student in alternative assessment had to have an . Tr. 2071; Ex. 53.

Mr. testified that at was between schools in general have , and his had a of , most of whom were students designated as . Tr. 2048- 2050. The rate was very . , and they were depending upon the nature of the . Tr. 2057-2058. When my , his points toward making the school appear to be not . They got points when the , or if they had a , or if they got , or a a . Those points combined with other points for other occurrences or earned us points. A visitor who knew nothing about the school would have been happy to send their Hearing Officer‘s child to that school. The atmosphere was fun, bright, happy, jovial and educational. There was never . There by .

The March 10, 2006 IEP was an annual review, attended by everyone who impacted on the student in , including the teachers, related services providers, and . 2078—2085; Ex. 57. The IEP detailed efforts made to contact the including a meeting notice and two follow-up days by . Tr. 2128; Ex. 57-2. The notice of the IEP meeting and the recommendation were sent from the school Tr. 20872088; Ex. 51, 52, 57-2. Based on this IEP, is completely appropriate because he was described as a in both . He had , and his were . He had an classification, which indicated a , not necessarily behavioral. Tr. 2086. They could not give him a . they could make a decision to force him to and, based on years prior, he would most likely program so that when he and could do something in the world. The IEP included a transitional plan that provided for activity for , showing they wanted him to be able to take and maybe learning how some and be able to , things needed in the real world. Tr. 2112-2115, 2122, 2126; Ex. 57-16. For school, the IEP recommended , which had a lot of , so he could be trained for a . They had a full-time and a . The had very good contacts and relationships in . Every student who or who left before they were had somewhere to go to, whether it was a or . Tr. 2122-2123. The student had to take the initiative and be willing to go and make sure . The school maintained files on every student that documented all the efforts that the school made and other adult agencies. Tr. 2123. If students were per year, it was hard to develop those plans. Tr. 2124.

When he was at , whatever the DOE and District had in place regarding were through the and followed quite carefully. Tr. 2093-2096. would trigger a teachers. The double generated in 2008 indicated the days was . Ex. 45.

had interventions available for students who had difficulties with regular school or , which they would document. Tr. 2201-2103. They had a who would be in ; who could help out; an who would make Hearing Officer‘s

. If a student no longer had a , they had to put in an . Tr. 21002101.The and , and did . They tried to get a and any get, and more than in the morning if there was an issue . There was a lot of . He was happy to do whatever he could to make it happen. If they were able to have a conversation with the family and get to the bottom of why , depending on what we found out, . They could change classes. They would even give kids programs if they did not like a or a or were . They would have intervention in the office. They had a program. They could . They could make a request for a different program outside of District , although the reason would most often not be for Tr. 2105-2107.

Mr. described an IEP as telling you what type of child that was. If a child has or or , that did not change because they . If the program was not right, there might be other programs that were better. But he could not say that a program recommendation would be made specifically because the student . They would have to get to the bottom of why the student was not and what role the parent was playing. Generally speaking it would be odd to change a whole program or a student's designation because of unless after investigation something about that indicated that he was . In all his experience it would be to be the beginning hint that a student needed another program. It would be more odd than common.

Superintendent since 2010, testified. He was deputy superintendent for four years prior. He has worked for for . He had no role nor did he recall anyone who had a role with respect to Section 504 during his years as assistant superintendant. Tr. 2568.

He had no knowledge of Tr. 2569.

Although there was a time when he reviewed ) for parents of and older who were being discharged because they were , he did not have specific responsibility for at . Tr. 2513-2515. The , made schools aware of the and transfer . He described the procedures, per Chancellors Regulations, applicable to students who are having difficulties. Tr. 2515-2525, 2557, 2560. Prior to discharge, schools were responsible to reach out to the parents or guardians. They had teachers who would be involved in the process of reaching out to the parents or guardian. After without Hearing Officer‘s communication, a letter would be issued to the parent indicating that there with the team to discuss the student‘s performance and . This was not an IEP review, which could convene at a later time. Based on the meeting they could determine whether the was related to the student‘s . They would also generate a a computer report maintained at the school level, indicating the of more than , to alert the school and also the , that action needed to be taken. If the parents did not respond to the , policy was to send a to the parents or guardian, indicating that the and providing the parent or guardian information about the process, including their right to ; to provide documentation why the student was ; and advising of the student‘s eligibility to come to . If the parent or guardian did not respond to the second letter, a determination was made whether the student would . The letter was usually hand-delivered to the parents or guardian. If the parent or guardian was not home, the letter was left, . District recommended that they , although he could not say whether the Chancellor‘s Regulations required them. Tr. 2616.

For students with prior to the , the and the would reach out to the , in a similar way to the outreach for a , to come up with a plan to address this student's and to in coming to the school. Tr. 2519. A function of this meeting would be to discuss the student‘s program and its appropriateness. However, the law prohibited them from discharging a . Tr. 2560.

In inspecting the student‘s Form Follow Up and Outreach Referral form for the 2008-2009 school year, he testified he was not familiar with the specifics of what was specifically entered in the boxes, although he knows it. Tr. 2533, 2595; Student‘s Ex. 46. The school office and the in the school should be keeping this form. But a person at the school level would have filled it out. Tr. 2543. referred to a for students who are and not program, which could be determined by a school administrator or the . Tr. 2544-2545. He did not recognize who wrote the date at the upper right, 2/26/09. The transfer/discharge code 39 and the date, 9/2/08, at the bottom of the page he assumed to be the date of discharge or transfer to the class. Tr. 2555.

The showed that as of September 2008, was , morning and afternoon, and , on September 22, 2008. Tr. 2594-2595, 2606-2608, 2616. The double dotted Hearing Officer‘s line , although not necessarily . If the school was starting the process on 2/6/09, but had 9/2/08 as the discharge date, the . Tr. 2554. If the showed a student as after the , then the student was not officially discharged. Tr. 2604- 2605. He opined that the read 9/22/08.

If, according to the , missed , the DOE should have conducted an and should have been generated to substantiate the , and any outreach or meetings. Tr. 2609-2612. If there were no records, he could conclude that there were possibly no , the school was not in contact with the not respond to the

The form also showed assignment to an on September 23, 2008; four to the parent or guardian, between September 24, 2008 and November 18, 2008; and a letter sent out on January 30, 2009. Tr. 2597-2560, 2617. By assigning an teacher after his last day, the 22nd September, he testified that there was a possibility that the school still wanted to reach out since he was entitled to school until the . It also showed a , on September 10, 2008. was assigned to the case of a student with so they can develop a and to to come back to school.

Mr. identified the Student‘s Exhibit as part of the form that was among the documents sent to the parents. It included signatures of the principal, , and special education representative from . Mr. signature was on the line for , although he did not sign it personally. , director of the for , had the authority to sign his name to the form, as long as she initialed it. Tr. 2601-2603. Her duty, as well as his, was to review the forms and to make a determination that all practices were place and whether to have the form signed off or not. The date on the form, 2/6/09, was entered on the line indicating when the school started the process of reviewing form and making the determination that it needed to be sent home to the parent or guardian. Tr. 2552; Student‘s Ex. 45-1. Also on the form was the date of effective discharge, September 2, 2008, which would have been the date the student was discharged. Student‘s Ex. 45-2.

Mr. had knowledge that the did well and passed the quality review as noted by the DOE, when Ms. was there. Tr. 2565.

Hearing Officer‘s

A Parent Report, produced as evidence, showed ‘s performance for the 20062007 school year on the New York State Alternative Assessment. Tr. 2569; Student‘s Ex.

58. The students would complete a packet of work, which was then provided to the District. The District had the responsibility to assign staff members to look at the work based on the criteria from the state and make a determination if a student was a , , , or . ‘s . The rating on the was based on alternate grade level indicators. Tr. 2576: Student‘s Ex. 53-8.

In referring to ‘s transition program from his March 10, 2006 IEP, Mr. noted that . It offered a training program for students, , who were accepted into their program to provide students with the opportunity to engage in meaningful activities that would hopefully enhance their ability to be part of the work force. Tr. 2583-2588; Student‘s Ex. 57-16. The process was usually at the . was a part of that conversation to see if the student was appropriate. was more averse to taking student with and and more and did not have a large number of mandates, specifically , . For students had training programs in , and , and . For the students who could not , it only offered .

identified the parent consent notice, dated September 16, 2005, to release information to for students between so the could begin. Tr. 2590; Student‘s Ex. 50. Services available through the , for student who had significant impairment to their judgment as well as , included , , respite for student. It was not a transitional service.

, the director of the , testified. She is the Section central coordinator. Tr. 2529; Student‘s Ex. DDDD. In order to receive a , you would need to make request and then have a plan. They that schools are supposed to give to parents concerning rights. To her knowledge, students with an IEP would have their accommodations under the IEP. Tr. 2638. She was not familiar with any further responsibilities under other than to provide accommodations with an IEP or a plan. Tr. 2643. She did not know whether obligated the DOE to ascertain whether a are a manifestation of his or her . Tr. 2646. She did not know whether there were any other policies or procedures with respect to during the 2008-2009 school year.

Hearing Officer‘s

, for since June 2008, testified. For four years prior, she was the CSE Chair for . She is not familiar with . Tr. 2392. She is familiar with between 2006 and 2008.

When the decision was made to create an IEP for a student that would become alternative assessment the at the CSE level had to go and consult and approve in most cases. Tr. 2394. At the CSE they were responsible for the supervision of the school t during the assessment piece of the during the 2005-2006 school year. Tr. 2339. She did not recall if that role changed for the next two school years. When she was she was familiar with the changes regarding administration of the in 2006-2007. Tr. 2343; Student‘s Ex. XXX. They had nothing to do with the implementing of the changes, which involved test administration of students in the school, which was not a function of the CSE. The CSE played a role in documenting a student‘s grade level or ungraded status in the initial assessment of a child who was classified as . Tr. 2347; Student‘s Ex. YYY. She described the various roles served by the CSE in regard to the . In her region when a team wanted to consider a student for the supervisor or school psychologist would review the case and consult with the team. To receive a student did not necessarily have to be classified with . Tr. 2393. She believed that held the review in 2005 when was made assessment; he entered in the Fall of 2005. Tr. 2349, 2396; Student‘s Ex. 54. The CSE had no role with respect to 's special education services, either directly or in a supervisory capacity during the years that she was the chairperson. Tr. 2356. However, the CSE would supervise the school-based support team if had a re-evaluation while at . Tr. 2381-2382, 2397-2398. If there were no re-evaluation, the annual would be done at the school by the teachers and district representative.

To the best of her knowledge unless someone, such as the school, the parent, the teacher, at any time, brought to the attention of the CSE that there was with a student with an IEP, school-based support team would address the issue. Tr. 2362, 2388- 2391. If was impacting a student's ability to learn, it may become part of a referral, initial or otherwise, which was the responsibility of the CSE to evaluate or re-evaluate.

Hearing Officer‘s

Tr. 2364, 2391. During her tenure as Chair, as part of an evaluation or re-evaluation, has been a sign that a child .

Before this hearing, she did not specifically have any knowledge of the CSE's role with respect to students who were transferred or discharged. Tr. 2367. She had no role in addressing transfer or discharge policies with respect to a student with an IEP. To be considered for , she believed the student would have to be of the disabled population. Tr. 2370. Anyone could be considered for , although classified was a different story. She has seen students with different disabilities be classified alternative assessment. Tr. 2406. She noted that the Student‘s Exhibit 40 was a real evaluation used to determine the alternative assessment. Tr. 2402; Ex. 40. She did not feel comfortable making a determination whether it was appropriate for to be an alternative assessments student without a psychologist reviewing it with her. Tr. 2408.

, Deputy in the Division of Students with Disabilities and English Language Learners, testified. The role of the Division is to develop policy and procedures for students with disabilities.

During 2006/2007 through 2009/2010 she believed the Department had policies and procedures for and students with disabilities are included in that. She did not know if they were different than for other children but the policy was not created in her office. Tr. 2425. She could not remember all the details. She was not aware of a separate transfer discharge and graduation code guideline, Planning interview procedure, or regulation A2.10 for kids with disabilities specifically other that the Student‘s Exhibit E, F, G, EE, P, CCC, Dd. Findings of Fact and Conclusion of Law

Section 504 addresses discrimination against disabled students, rather than inappropriate special education services, which can be the basis of IDEA claims. Scaggs v. N.Y. State Dep‘t Dep‘t of Educ., 2007 WL 1456221, at 8(E.D.N.Y. May 16, 2007). Thus, "`something more than a mere violation of the IDEA is necessary in order to show a violation of Section 504 in the context of educating children with disabilities, i.e., a plaintiff must demonstrate that a school district acted with bad faith or gross misjudgment.'" Id. at *15 (citing Wenger v. Canastota Cent. Sch. Dist., 979 F.Supp. 147, Hearing Officer‘s

152 (N.D.N.Y.1997)); see also Finn ex rel. Steven P. v. Harrison Cent. Sch. Dist., 473 F.Supp.2d 477, 483 (S.D.N.Y.2007) (requiring plaintiff to demonstrate bad faith or gross misjudgment in Section 504 claim asserting denial of a free appropriate public education) (citations omitted); B.D., 130 F.Supp.2d at 439 ("I therefore hold that in order to prevail on their Rehabilitation Act claims, plaintiffs must show bad faith or gross misjudgment on the part of the defendants."). See Gabel, 368 F. Supp. 2d at 334; see also Pinn, 473 F. Supp. 2d at 483 (noting that a plaintiff bringing a § 504 claim must demonstrate that she is disabled and that she has been excluded from federal benefits "because of his or her disability" (citing Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990))). Moreover, there must be evidence that a school district acted with deliberate or reckless indifference to the student's federally protected rights or with "bad faith or gross misjudgment." See Bartlett v. N.Y. State Bd. of Law Examiners, 156 F.3d 321, 331 (2d Cir. 1998) (noting that intentional discrimination under the Rehabilitation Act may be inferred from "at least deliberate indifference to the strong likelihood that a violation of federally protected rights will" occur), vacated on other grounds, 527 U.S. 1031 (1999); Pinn, 473 F. Supp. 2d at 483 ("Where a plaintiff asserts denial of a free appropriate public education. . . ., plaintiff must demonstrate bad faith or gross misjudgment."); Gabel, 368 F. Supp. 2d at 334 (noting that a Rehabilitation Act claim may be brought if "a school district acts with gross negligence or reckless indifference in depriving a child of access to a FAPE").

has been in special education his entire educational career. By the 2007-2008 school year, after he turned , he had left school ostensibly because he , no doubt frustrated with his academic difficulties. He had no further interaction with the DOE until he voluntarily returned, in September 2008. At that time, it is clear that the DOE did fail, at least initially, to comply with its procedural safeguards by discharging him, which formed the basis for the IDEA claim. Otherwise, none of the evidence or testimony, whether based on compliance with or inadequacy of, the DOE‘s policies and practices, has credibly shown that he was excluded from participation in the programs at, denied the benefits of, or subject to discrimination at, the school on the basis of his disability. Nor has he shown any behavior on the part of the DOE that demonstrated bad faith or gross misjudgment. Therefore, the student has failed to meet his burden that the Hearing Officer‘s

DOE violated Section 504.

IV. Independent Educational Evaluations DOE‘s Argument

The DOE argues that the DOE should not have to pay for the IEE administered to If the parent had disagreed with an evaluation obtained by the district, the parent may request an independent educational evaluation at public expense. 8 NYCRR 200.5(g). In the present case the student has not been in a DOE school for over two years and in that time had never requested to be evaluated. When the student did request evaluations, the DOE was able to provide them. It should have been given the opportunity to do the evaluations. Student‘s Argument seeks reimbursement for a evaluation by in the amount of $800 and for a private neuropsychological evaluation by Dr. in an amount not to exceed $4500. He also seeks to memorialize in the final order, the interim order authorizing Dr. to administer the evaluation with the DOE to pay the $500 cost.

The evidence shows a failure of the DOE to adequately assess while he was registered in the DOE‘s schools; he would have been due for a triennial in 2008; the record was devoid of any assessment other than the evaluations and the documents had conducted after the hearing commenced; would never know of his or of his delay without the evaluations; Dr. and provided recommendations substantially different from the reports in evidence from the DOE; and the IHO would have no information upon which to base her decision, since the DOE had so completely and utterly failed in its duty to assess and to maintain adequate documentation. Therefore, had the right to seek an independent evaluation, and to be reimbursed for the assessments under 34 C.F.R. § 300.502, the equitable provisions of the IDEIA and Section 504. To deny funding for these assessments would be to thwart the underlying purpose of the law - to ensure FAPE to children with disabilities. Finding of Fact and Conclusion of Law

The regulations provide that a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § Hearing Officer‘s

300.502[b][1]; 8 NYCRR 200.5[g][1]). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 C.F.R. § 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv]; see, e.g., R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 235 [D. Conn. 2005]; A.S. v. Norwalk Bd. of Educ., 183

F. Supp. 2d 534, 549 [D. Conn. 2002] [upholding an order of reimbursement where the district failed to demonstrate that its evaluation was appropriate]). If the impartial hearing officer finds that a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502; 8 NYCRR 200.5[g]; Application of the Bd. of Educ., Appeal No. 05-009; Application of a Child with a Disability, Appeal No. 04082; Application of a Child with a Disability, Appeal No. 04-027). In the present case, the parents concede that they did not disagree with a district evaluation (Pet. ¶ 38; see R.L., 363 F. Supp. 2d. at 234 [finding parental failure to disagree with an evaluation obtained by a public agency defeated parent's claim for IEE at public expense]). Additionally, there is no indication in the hearing record showing that the parents requested a private evaluation of their daughter.)

With respect to Mr. s and Dr. ‘s evaluations the record demonstrates that the student has failed to show an entitlement pursuant to the IDEA to payment by the DOE for an independent educational evaluation. There was no predicate evaluation with which the student disagreed. Even if there had been, there is no evidence of any request by the parent to then obtain one at public expense. That the DOE had not conducted a triennial in 2008, during the time that the student had voluntarily left school, does not justify requiring the DOE to pay for an evaluation the student sought privately and without notice. Nor is there an equitable or a Section 504 basis for reimbursement. Section 504 does not provide for independent evaluations at the district's expense or the ability to request an independent educational evaluation. On an equitable level, the evaluations for which seeks payment were done without notice and only disclosed to the DOE in the course of the litigation, and not before. Tr. 48-50,454-455, 2283. Further, Mr. evaluation offered little, if any, significantly different from the DOE‘s AT evaluation, to Hearing Officer‘s have warranted a second one. Since the student has established no legal basis upon which to compel the DOE to pay for Mr. ‘s and Dr. ‘s evaluations, his request is denied. A third independent evaluation, the was ordered at hearing, which Dr. administered at the DOE‘s expense in the amount of $500. The DOE shall pay that directly to Dr. .

V. Issues Decided at Hearing Laches

The DOE moved to dismiss ‘s case on the basis of laches. Generally, a claim is barred by laches if: (1) a party inexcusably fails to assert a right in a timely manner; and

(2) the lapse of time causes prejudice to the adverse party (see Ikelionwu v. United States, 150 F.3d 233, 237 [2d Cir. 1998]; Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 192 [2d Cir. 1996]; Phillips v. Bd. of Educ., 949 F. Supp. 1108, 1112 [S.D.N.Y. 1997]). Where a more analogous statute of limitations is applied and a claim is made after the limitations period has run, there is a strong presumption that laches bars the claim, and the claimant has the burden of rebutting that strong presumption and establishing that the defense of laches does not apply (see Conopco, 95 F.3d at 191).

The preliminary motion was denied at hearing to allow the parties the opportunity to develop the facts upon which this affirmative defense and ‘s rebuttal would be based.

Section 1983

brought this case, alleging violations of §1983, §504 of the Rehabilitation Act of 1973, and the IDEA. Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 42 U.S.C. § 1983 (1982).

It is well settled that § 1983 does not create any new substantive rights, but Hearing Officer‘s merely provides a federal cause of action for violations of certain federal rights. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18, 99 S.Ct. 1905, 191516, 60 L.Ed.2d 508 (1979). A §1983 cause of action may be used to remedy constitutional and federal statutory violations by state agents. Maine v. Thiboutot, 448 U.S. 1, 5-6, 100 S.Ct. 2502, 2504-05, 65 L.Ed.2d 555 (1980) (§ 1983 action available against state for alleged Social Security Act violations). Mrs. W. v. Tirozzi, 832 F. 2d 748 - Court of Appeals, 2nd Circuit 1987.

Nothing in Part B of IDEA restricts or limits the rights, procedures, and remedies available under the U.S. Constitution, the Americans with Disabilities Act of 1990, Title V of the Rehabilitation Act of 1973 (Section 504), or other federal laws protecting the rights of children with disabilities. However, before filing a civil action under these laws seeking relief that is also available under Part B of IDEA, the due process procedures described above must be exhausted to the same extent as would be required if the party filed the action under Part B of IDEA. This means that you may have remedies available under other laws that overlap with those available under IDEA, but in general, to obtain relief under those other laws, you must first use the available administrative remedies under IDEA (i.e., the due process complaint, resolution meeting, and impartial due process hearing procedures) before going directly into court. 34 CFR §300.516; 8 NYCRR § 200.5(k). As this administrative tribunal enjoys the jurisdictional mandate to hear IDEA and Section 504 claims, it has no such mandate over claims alleging a violation of §1983. Therefore, all allegations identified as pertaining to §1983 are hereby dismissed.

VI. Order

It is hereby ordered:

1. The DOE shall fund an intensive prescription of 480 hours (four hours per day, five days per week over twenty-six weeks) of , at a rate not to exceed $115 per hour, and 19.5 hours (one forty-five minute session per week over twenty-six weeks) of by a New York State-licensed therapist.

2. The DOE shall proactively assist the student in securing the services of a from its approved list of providers at the DOE rate. Hearing Officer‘s

3. At the end of the first twenty-six week period, referred to in paragraph one, the DOE and the student shall select, at DOE expense, an independent educational evaluator or independent licensed psychologist to conduct an independent educational evaluation. The DOE shall also ensure that and the provide copies of their evaluations, consistent with this decision, to the independent educational evaluator or . The independent educational evaluator or independent shall then makes his or her determination, based on objective measures whether the student has made progress.

4. If the independent educational evaluator or independent licensed determines that the student has objectively made progress, the DOE shall fund an additional intensive prescription of 480 hours of and 19.5 hours of therapy, administered in the same weekly increments.

5. If independent or independent determines that the student has not made progress, both the and services shall end. If discharges the student due to his failure to comply with its attendance policy, the student shall forfeit the remaining hours of compensatory education and services.

6. No earlier than the end of the first twenty-six week period, nor later than the end of the program, the DOE shall refer the student, at DOE expense for an intensive vocational assessment. The DOE shall then provide appropriate training, as well as to assist the student with , such as , , , selfadvocacy, etc. The student shall be provided with all necessary accommodations to enable him to achieve benefit from the and transition, including, but not limited to the provision of ; and all instruction and written materials shall be differentiated to meet his learning and reading levels.

7. Upon commencement of the first twenty-six weeks of student‘s program pursuant to this order, the DOE shall have its team observe him at and, if necessary, at his . In consultation with these providers, the team shall determine what, if any, would be appropriate for the student under the circumstances of these programs. It shall also perform another evaluation at the time he is to begin . The DOE shall, at a minimum, immediately provide the student with a laptop that includes a reading program and calculator, with training in their use. If , and/or accommodations Hearing Officer‘s are deemed appropriate, the DOE shall immediately provide it to the student, together with training in its use. The determination of the team shall be final.

8. The DOE shall issue to the student a MetroCard, effective the day he commences the first twenty-six weeks of this order, that automatically refills itself for as long as the student is enrolled in the programs ordered herein.

9. The student‘s request for payment/reimbursement for the IEEs performed respectively by Mr. and Dr. are hereby denied. The DOE shall pay that directly to Dr. $500 for independent evaluation.

10. The student‘s claims under §504 and §1983 are hereby dismissed.

11. All other claims not specifically detailed in this decision and order are hereby denied. Dated: August 17, 2011

Corrected Date: September 21, 2011, (Corrections Made to Exhibit Listing)

_____________________

LAURA FIEBER ESQ.

Impartial Hearing Officer

LF: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

Hearing Officer‘s 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. Hearing Officer‘s

DOCUMENTATION ENTERED INTO THE RECORD

STUDENT’S EXHIBITS

Exhibit Description Date Pages

No.

A Section 9 (Excerpt) from NYC DOE‘s 2/2009 8

Standard Operating Procedures Manual

B Impartial Hearing Request Form 2/2009 2

C Defendants Memorandum of Law in 4/16/09 30

Support of Their Motion to Dismiss in Z.S.

v. NYC DOE 08 Civ. 2542

D Defendant‘ Reply Memorandum of Law in 9/4/09 37

Further Support of Their Motion to

Dismiss in Z.S. v. NYC DOE 08 Civ. 2542

E Transfer, Discharge and Graduation Code 2007-2008 15

Guidelines

F Planning Interview Protocols Undated 12

G Chancellor‘s Regulation A-210 6/29/09 5

H Assessments 4/21/10 4

I Learning Center Evaluation 1/14/2010 3

J NYC DOE Evaluation by 10/15/10 8

K NYC DOE Technology Evaluation by 9/29/10 8

L NYC DOE Evaluation by 9/29/10 4

M Evaluation 3-14-05 11

N Report 10-4-10 4

O Evaluation 9-29-10 12

P Evaluation 10-15-10 8

Q Evaluation 11-5-10 13

R Evaluation 1-24-11 7

S Evaluation 5/5/10 32

1/8/11

T IEP 3-10-06 16

U IEP 4-15-05 14

V IEP 3-14-03 14

W IEP 10-4-02 16

X IEP 11-01-01 16

Y IEP 6-22-00 14

Z IEP 8-10-00 13

AA IEP 2-8-99 18

BB IEP 10-28-96 13

CC IEP 4-14-93 19

DD DOE Memorandum : School Self-Audit 10-08-09 17 and OAG Audit Procedures for Official

October 31 Register for School Year 2009-

10 (ALOA/ANDI)

Hearing Officer‘s

EE Regulation of the Chancellor - Admissions, 6-29-09 16 readmissions, transfers and list of notices for all students

FF NYSAA – 2006-2007 18

GG Transition Center Budget August 17

2010 HH Progress Report 2005-2006 4

II Progress Report 2006-2007 6 JJ Cumulative Record 9-14-05 2 KK Cumulative Record Elementary School Multiple 2 dates LL Press Releases – Persistently Dangerous Multiple 31

Schools dates MM Email to/from 9-12-05 1 NN Report 4-14-05 2 OO Educational Evaluation 2-24-03 3 PP Regulation of the Chancellor - Reasons for 9-5-00 5

Discharging Students QQ Treatment Summary 5-11-00 2

RR Report 7-16-98 5 SS Assessment 5-2-94 1 TT Examination 4-19-94 4 UU Report 2-1-93 4 VV Report of Strategic Support Team June 2008 99

Improving Special Ed in NYC WW and Educational Evaluation 5-10-10 32

5-5-10 XX Subpoena to NYC Dept. of Education Undated 2 YY Testing 1-14-10 3 ZZ AT Evaluation 10-04-10 4 AAA Medical Records 10-20-10 20 BBB Planning Interview Information Packet 2007-2008 6 CCC Planning Interview Information Packet 2006-2007 18 DDD Planning Interview Information Packet 2005-2006 15 EEE Planning Interview Procedures 2009-2010 52 FFF Planning Interview Procedures 2007-2008 12 GGG Transfer Discharge & Graduation Code 2009-2010 12

Guidelines HHH Transfer Discharge & Graduation Code 2006-2007 16

Guidelines

III Transfer Discharge & Graduation Code 2005-2006 14

Guidelines JJJ Administrative Handbook Fall 2008 12 KKK Plan 2005-2006 16 LLL Memorandum – & Policy & School 9-1-10 4

Responsibilities Hearing Officer‘s

MMM Memorandum – & Policy & School 9-3-2007 6

Responsibilities

NNN Memorandum – & Policy & School September 5

Responsibilities 2006

OOO Memorandum – & Policy & School September 6

Responsibilities 2005

PPP Memorandum – & Policy & School 1-14-2004 5

Responsibilities

QQQ Exploring the potential of instruction 2008 31

for

RRR Clinical Study – Neural Changes following 10-28-2004 12

Remediation in SSS Training Reading Comprehension in 2000 11

Adequate Decoders

TTT AERA – 19

Spring 2006

UUU A : Center in a School Project March 2005 95 final Evaluation Report

VVV New York Times Articles Various 11

Dates WWW Accuracy of Reported Discharge Data 2009 48 XXX Important Changes Re: Administration of August 3 the NY State Alternate Assessment for 2006

2006-2007 YYY Revised Guidelines for Participation of 2006-2007 4

Students with Disabilities in State

Assessments for 2006-2007

ZZZ Special Education Present Levels of Undated 7

Performance and Individual Needs

AAAA The New York State Alternate Assessment Undated 5 for Students with Severe Disabilities

BBBB Transfer, Discharge and Graduation Code 14

Guidelines

CCCC Email and attachments from 9/3/10 3 DDDD Regulation of the 8/2/07 15 Hearing Officer‘s

EEEE Regulation of the 6/29/09 15

DOE’S EXHIBITS

Exhibit Description Date Pages

No.

1 Due Process Complaint, , with a facsimile 6-3-10 10 pages

cover sheet

2 IEP 5/26/1994 2

3 IEP 11/15 2

4 IEP 1994 2

5 IEP 10/17/1995 2

6 IEP 10/28/1996 2

7 IEP 8/10/1998 2

8 IEP 6/2/1999 2

9 IEP 7/8/1999 5

9/24/1999

6/16/1999

1/13/2000

10 IEP 6/22/2000 2

11 IEP 8/10/2000 2

12 IEP 11/01/2001 2

13 IEP and Cover Sheet 11/07/2002 3

14 IEP 3/14/2003 2

15 IEP 4/15/2005 2

16 Referral to SBST/CSE for Substantial 12/21/2004 1

Change in Phase 1 IEP Type 3

Recommendation

17 Social History Update 4/19/1994 5

18 Social History Update 4/30/1996 1

19 Social History Update 10/15/1996 2

20 Social History Update 7/21/1998 3

21 Social History Update 6/16/1999 3

22 Social History Update 5/10/2000 6

23 Social History Update 1/30/2003 2

24 Consent for Reevaluation/Triennial 1/18/2005 1

Evaluation

25 Final Notice of Recommendation of 6/22/2000 1

Modification of IEP

26 Consent for Reevaluation/Triennial 12/16/199 1

Evaluation Hearing Officer‘s

27 Change of Program/Service 9/29/1999 1

28 Final Notice of Recommendation/Change 8/13/1998 1 of Program/Service

29 Review of Phase 1 IEP 10/29/1996 1

30 Review of Phase 1 IEP 10/29/1996 1

31 Review of Phase 1 IEP 4/30/1996 1

32 Letter 11/20/1998 3

33 Examination 10/15/1996 5

34 Report 7/16/1998 5

35 Evaluation 5/28/1999 5

36 Report 6/14/1999 3

37 Evaluation 9/22/1999 6

38 Evaluation 2/2/2000 9

39 Evaluation 2/28/03 5

40 l Evaluation 3/14/2005 12 41 Due Process Response 9-1-10 4

42 Testing Summary and 04-21-10 4

Recommendations 43 Inquiry 06-28-10 1 44 Address History Inquiry 06-28-10 1 45 Planning Interview Form 02-06-09 3 46 Form 407 – Follow-Up and Outreach 09-22-08 1

Referral 47 re: Planning Interview Conference 12-09-08 1

48 Letter to re: Planning Interview Conference 01-30-09 1 and Discharge 49 Consent for 12 Month School Year 09-16-05 1

50 Consent for Information Release to Adult 09-16-05 1

Services Agencies 51 Notice of Recommendation of IEP Meeting 03-10-06 2 52 Notice of IEP Meeting 02-06 2 53 New York State Alternate Assessment 2006-2007 30

Materials 54 Final Notice of Recommendation 4-15-05 1 55 Meeting Notice 4-5-05 1 Hearing Officer‘s

56 IEP 4-15-05 14

57 IEP 3-10-06 17

58 NYSAA ELA Results 2007 1 59 Progress Reports from 2006-2007 8 60 Permission to Photograph And/Or Record 9-16-05 1 Consent Form 61 DOE WWW Parental Consent Form 9-16-05 1 62 2007 Summer Program Consent Form Undated 1

63 Standard of Conduct and Uniform 9-16-05 1

Discipline Code Consent 64 Consent to Release Information 6-20-06 1

65 Special Education in New York State for 2002 51

Children Ages 3-21: A Parent‘s Guide 66 School Medical Information 9-16-05 2

HEARING OFFICER’S EXHIBITS

Exhibit Description Date Pages

No.

I Subpoenas Various 13

Dates 2011

& 2011

II Student‘s Response to DOE‘s Motion to 8/16/10 27

Dismiss

III Student‘s Response to DOE‘s Motion on Undated 5

Laches

IV Student‘s Response to DOE‘s Motion on Undated 18

Burden of Proof Pursuant to Section 504

V Student‘s Motion for Interim Relief 11/5/10 9

VI DOE Motion to Dismiss 7/30/2010 31

VII DOE‘s Memo of Law on Laches 09/15/2010 14

VIII DOE‘s Memo of Law on Section 504 09/20/2010 4

Burden

IX Student‘s Closing Memo 7/28/11 31

X DOE‘s Closing Memo 7/29/11 8

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Footnotes

[8] NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087). The IDEA‘s application to children aged 3 through 21 inclusive (20 U.S.C. §