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: December 18, 2012

January 8, 2013

January 24, 2013

January 25, 2013

March 5, 2013

March 11, 2013

March 13, 2013

Actual Record Closed Date: April 20, 2013

Hearing Officer: Elise Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 18, 2012

Esq. Attorney for Parent — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 8, 2013

Esq. Attorney for Parent — Student

District Representative — DOE

Teacher — DOE

Teacher — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 24, 2013

Esq. Attorney for Parent — Student

Grandmother/AdvocatE — Student

District Representative — DOE

Assistant Principal (Lincoln) — DOE

Speech Teacher (Lincoln) — DOE

Dr. School Psychologist (Lincoln) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 25, 2013

Esq. Attorney for Parent — Student

Parent (via telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 5, 2013

Esq. Attorney for Parent — Student

Dr. Psychologist (via telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 11, 2013

Esq. Attorney for Parent — Student

Reading Specialist (via telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 13, 2013

Esq. Attorney for Parent — Student

Student

Grandmother/Advocate — Student

Mother — Student

Sr. Stepfather — Student

District Representative — DOE

INTRODUCTION: — DOE

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by ., the Parent (“Parent”) on behalf of ., the student (“Student”), through her attorney, , Esq. by filing a Due Process Complaint dated October 2, 2012.

The Parent is alleging that her son, ., was denied a free and appropriate public education (“FAPE”) for the 2012-13 school year and is seeking (1) a deferment to the Central Based Support Team (CBST) for an appropriate non-public school placement at District expense; (2) a P-1 Nicherson Letter for the District’s failure to timely evaluate the Student in all areas of disability and hold an Individualized Education Program (IEP) meeting; (3) an order directing that a new IEP meeting be held for the purpose of developing an appropriate educational program for the Student to include a deferment on the IEP document; (4) assistive technology for at District’s expense with the appropriate software; (5) , , and SETTS at the District’s expense at the enhanced rate. P-A.

There were seven (7)days of hearings in this matter. Hearings were conducted on December 18, 2012; January 8, 2013; January 24, 2013; January 25, 2013; March 5, 2013; March 11, 2013; and March 13, 2013. Extensions were granted in this case as a result of witness availability making the final compliance date April 29, 2013. A brief was submitted by the Parent and was due on March 29, 2013, as a result of an extension. The District made an oral closing statement on the record on March 13, 2013. A list of Exhibits is attached as Exhibit A. The Parent, the District, and the IHO submitted exhibits.

BACKGROUND

This case involves a old student. During the 2012-13 school year attended ”) where he was placed by the District. He is presently in ICT classes for Living Environment and U.S. History and in general education classes for English, Algebra and Physical Education.

An Individualized Education Program (“IEP”) was developed on October 28, 2011. Pursuant to the October 2011 IEP, the Student was recommended for SETTS services for ELA in a group service, five times per week in a separate location. The IEP was to be implemented on November 11, 2011. For testing accommodations, he was also mandated to receive extended time (double time), in a separate location, directions repeated one extra time, exams read (except those measuring reading achievement), use of scribe (with the exception of math assessments), and preferential seating (all exams).

An Impartial Hearing took place on May 30th, June 11th, and July 13th, 2012 with respect to the 2011-12 school year and a Decision and Order was entered into by IHO Kramer on August 23, 2012. The Order provided that” the [District] must reconvene the CSE in order to modify the IEP to reflect that the child should have made available to him in the classroom for one year to compensate for services he was not provided with last year as well as services for at least one year three times a week for thirty minutes.” The Order also provided that the District “shall provide an RSA to the parent for therapist who can give the student training…” Finally, the Order provided that the “[District] shall provide the child with a scribe as a testing accommodation as mandated on his October 28, 2011 IEP.” P-B. In this regard, a CSE meeting was held on October 18, 2012, however an IEP was never finalized from this meeting. D-9.

POSITION OF THE PARTIES

Parent’s Case

The Parents called five (5) witnesses and placed eighteen (18) documents in evidence. P-A – P-R.

The first witness for the Parent was the grandmother, ., who is also the parent advocate. Tr. 417. She is a NYC Department of Corrections retiree and started an organization in 2006 for families with children of special needs. Tr. 419. She participated in the October 2012 meeting with the Parent, special education coordinator, school psychologist, education teacher for English. Tr. 420. She testified that the English teacher left early but returned with additional paperwork and then left again. Tr.

421. She indicated that she wanted someone else to take the English teacher’s place at the CSE meeting but did not receive a response. Tr. 421. The grandmother indicated that they were particularly concerned about English because of . Tr. 422. She said that . is proficient in math, and the Parent and advocate asked at the meeting if he could be given more challenges in his math class and the special education coordinator said she would look into it. Tr. 423. She testified that they said it would because he was in a cluster and it would have to revolve around . Tr. 423.

The grandmother thought that the reason the meeting was convened in October of 2012 was as part of the impartial hearing order and also to add the . Tr. 424; P-B. The grandmother stated that they had difficulty getting into the school building because there was an issue with the metal detectors and then they had to wait to be taken to the meeting room. Tr. 437.There was no discussion at the meeting regarding a deferment to CBST. Tr. 424. They discussed the different programs could offer and they told the family that he was in the program at the time. The grandmother and Parent also talked about their concerns with how the would service him with two teachers and one recorder. Tr. 425. There was also a discussion about SETTS because the Parent and grandmother were concerned that he wasn’t going to get enough remediation in the ICT program since it was only offered for certain classes. Tr. 426. The grandmother testified that their major concern was English since it had always been one of his challenges. Tr. 426. She indicated that the team went back and forth on the program recommendation since the SETTS program was only offered first period and they all agreed that to make a child get up at 5:00 am to travel to a SETTS program at 7:00 wasn’t fair. She stated that “…we were actually left like we don’t know what is going to be able to help him at this time. We discussed it back and forth and didn’t come up with anything.” Tr. 427-428.

As the Parent’s advocate, she was not aware that he was receiving classes from the beginning of the school year. Tr. 428. She stated that her daughter, ’s mother, was trying to get in touch with the school because . was complaining about his math class and how it was and that the work was too easy for him. Tr. 428. It was established, however, that he is in a general education class for math. Tr. 428.

At the end of the CSE meeting, A.M. stated that there was no consensus on what program the school was going to offer the Student. A.M. and the Parent felt that the SETTS program was not going to be able to help him remediate and wanted the school to consider . Tr. 429. The grandparent stated that the Parent’s position with the ICT program was that he wasn’t going to get the support he needed. Tr. 430. The grandparent stated that Ms. , the special education coordinator at the meeting, indicated at the end of the meeting that they were not exactly sure how they were going to be able to help Tr. 432.

The grandmother testified that reading and even with the use of computer and technology, an assignment on his own. Tr. 433. If the material is read to him, he does a lot better because he comprehends. Tr. 434. She stated that the frequency of his reading is very slow because he is trying to sound his words out. Tr. 437. She indicated that she scribes for him because it helps him to understand where he is at and then rewrite. Tr. 435. The grandmother testified that she was under the impression that the CSE team was not aware , so they gave them some documentation and also spoke to them about his . Tr. 436.

On cross examination, the grandmother stated that . has not spoken specifically about his ICT classes but indicated that generally the noise level in his classes bothers him. Tr. 442. The grandparent also testified that he received resource room in middle school. Tr. 445. She also stated that they didn’t discuss how he was doing in his classes at the IEP meeting in October 2012. Tr. 445.

On redirect, the grandparent indicated . wanted to know why he had to go to resource room since he didn’t feel like he was being helped. Tr. 446. She said that she thought in resource room there were less than 8 students and one special education teacher. Tr. 447.

The next witness was the Parent. She is the mother of the Student and has two other children, a six year old and a 19 month old. Tr. 456. He was born on and presently attends ”). He was assigned because it was on his high school application last year and it came back a match. Tr. 457. When the match came back, they tried to find another school for . due to the class size, size of school and because he needed SETTS and they didn’t think they had the program there. Tr. 457. They visited school, that he was accepted to and they had the right program for him. Tr. 458. . did not attend because of the finances. Tr. 460. The Parent testified that is a private school and within the school there are different programs that are state approved and . got accepted to . Tr. 460. This program is designed to help students . Tr. 460. It had a multisensory approach and there were 12 to 15 students in a class. Tr. 460. They also use technology (ie. Ipads) for each student and smartboards. Tr. 461. The Parent stated that she was concerned about the larger class size because of his disorder since he doesn’t process everything he and other factors go into how much information he receives. Tr. 462.

When as a match, the Parent put in a appeal. Tr. 463. Originally she had requested . Tr. 463. On appeal, she asked for . Tr. 463. She was denied this appeal. Tr. 463. She also requested a deferment to be placed in a New York State approved school. As far as the determination, she said that “it had to be discussed again at a later time”. Tr. 465. She also participated in a social history update by phone with junior high school. Tr. 466. At that time, in October 2011, she requested and Tr. 466. No one has responded to date to these requests and she made them again at the October 2012 IEP meeting. Tr. 467. She also requested an assistive technology evaluation over the course of seventh and eighth grade and then again at the October 2011 IEP meeting. Tr.

468. She also requested additional technology and accommodations at the October 2011 IEP meeting and never received them. Tr. 469.

The Parent testified that she determined that at the end of . Tr. 476. As a result of that diagnosis, . received resource room or SETTS at school. Tr. 471. In sixth grade he received . Tr. 471. She stated that she saw a drastic improvement in that one year span which she didn’t observe in prior years. Tr. 471-472. He then transferred into due to a travel hardship as well as the area being unsafe. Tr. 472. When . started at in grade, he received SETTS, but not Orton-Gillingham because they didn’t have it at that school and he continued with SETTS in eighth grade. Tr. 473-474. At the October 2011 IEP meeting, the Parent asked and was told that they didn’t have anything specifically for students, just a standard program for all students. Tr. 475. At the October 2011 meeting, the Parent testified that they felt that . improved and when he reached high school, should not continue with the SETTS. Tr. 476. The Parent indicated that they don’t have the SETTS and he gets the ICT. Tr. 476-477. She stated that in ICT he has a special education teacher inside the classroom for two classes and the average class size is 25-30. Tr. 477.

The Parent testified that the first week , . came home and complained that the students and out of control and he was very unhappy. Tr. 478. With respect reading disorder, the Parent testified that he has problems with fluency, decoding, comprehension and phonetics. Tr. 479. He is unable to read fluently because he can’t decode and therefore is unable to read on grade level. Tr. 479. She said she believes that for decoding he is at a 1.9 reading level based on Dr. ’s testing. Tr. 480; P-E. She testified that Dr. recommended a reading based intervention program like to help . in 2011. Tr. 481-482; P-E.

When school stated for the 2012-2013 school year, she noticed that SETTS was not on .’s schedule and called the school several times. It took until the beginning of October to reach someone and it occurred after this impartial hearing request was filed. Tr. 484. She spoke to Miss and subsequent to this, received notice for an IEP meeting in October 2012. Tr. 485. She did not receive any notice prior to this. Tr. 486. The Parent testified that she did not receive the notice five days prior to the meeting. Tr. 486; D-9.

The Parent testified that an IEP meeting took place in October 2012 and the following people attended: (the special education teacher), .’s English teacher), and the school psychologist. Tr. 487. The meeting started approximately 25 minutes after it was scheduled. Tr. 488. During the meeting, Ms. left to go to her next class while the meeting was still in progress. Tr. 501. There was a discussion about a replacement, but there was no one to replace her so we continued with the meeting. Tr. 502.

did not play football in due to the fact that in April and was receiving rehab over the summer and was not ready. Tr. 489. He was, however, participating in physical education but since it is first period and it take an hour and a half to get to school, he is often late and that class. Tr. 489. She stated that they are classified as a travel hardship. Tr. 490. There were multiple reasons she filed the appeal when she received the match , and travel was one of them, however, since she could only list one, she indicated the lack of the SETTS program. Tr. 490. Therefore, her biggest concern was . getting the services he needed. Tr. 490. Although they do have SETTS, they offer it zero period and due to his travel time he wouldn’t be able to get there in time. Tr. 491. He would have had to get 7:00 am. Tr. 491. This issue was discussed at the IEP meeting. Tr. 492. The team indicated that they couldn’t pull him out for SETTS during the school day because he would miss his core classes. Tr. 492.

The team also discussed his placement in an ICT class for science and history. Tr.

492. She expressed her concern that he needed reading help in all his classes, not just two classes. Tr. 493. The team told the Parent at the IEP meeting that the only two programs available to T.M. was SETTS or the ICT classes. Tr. 494. She was concerned that he would not make it to school in time for SETTS and was concerned with how it would be administered across his academic classes. Tr. 494. The Parent testified that she did not feel that they were able to offer him appropriate help in order to receive benefit in all of his classes. Tr. 496.

The Parent testified that she . with his schoolwork and he still has difficulty with pronunciation and as a result comprehension because if , he’s what the passage is saying. Tr. 498-499. He and is . Tr. 498. When , headaches . Tr. 500.

With respect to his , the Parent stated that if she gives him directions, he doesn’t hear the entire sentence and she needs to repeat herself several times. Tr. 501. When he has difficulty with pronunciation and fluency. Tr. 501. The Parent testified that she has not received and progress reports with any of his report cards. Tr. 501.

At the October 2012 IEP meeting, Ms how . was doing in her class but she did not make placement recommendations. Tr. 503. Ms. stated that he was doing fine in her class and the Parent was given a draft of his written work that she had corrected. Tr.

503. When was asked about how he does written work in her class, he said that he dictates the draft to the teacher and she writes out everything for him. Tr. 503. The draft at the meeting, however, was his handwriting. Tr. 504. The Parent doesn’t know why Ms. writes the drafts in many cases. Tr. 505. The Parent stated that a scribe is listed on his IEP. Tr. 506. She believes that he has the with spelling, comprehension and it’s helpful in getting his thoughts across on paper. Tr. 507.

The Parent testified that . was provided with unit in November 2012. Tr. 507. Before . received , the Parent was contacted. Tr. 508. . told his mother that when he used the students in his class and later on he unit gave him and . Tr. 508. He said that in the classes where he has two teachers because . Tr. 509.

The Parent testified that . does not because Tr. 510. The Parent indicated that she was provided with an RSA . but has not found a provider yet. Tr. 510. She said that when she received the RSA, she did not receive a handbook with a list of therapists.

The Parent stated that she received .’s report card and thought his grade in English was extremely high considering his challenges and wondered if it was because the teacher was doing the writing for him. Tr. 511. The report card also indicated in history and science that he was missing homework and needed to work harder. Tr. 512. The Parent indicated that it is her opinion that when he struggles with something he won’t do it and tries to avoid it. Tr. 512-513. In junior high, if he was having difficulty, he would leave the class and call his mother. Tr. 513.

The Parent testified that her son has never read at grade level because he hasn’t received the proper services. Tr. 514. She stated that without supports, “he more than likely won’t be on grade level because at this point, if he’s and he still has areas where he’s basically in the grade level, in three more years without , he is not going to be able to get to his actual grade level. Tr. 315. Without remediation for his reading challenges, she thought it was going to be more difficult for him to perform in college because the more difficult the work is, the more strenuous it is for him and the more he has headaches, etc. Tr. 515.

With respect to the , the Parent testified that it was giving her son headaches and it is presently not working. Tr. 516. In connection with math, the Parent testified that if he is doing math problems and he doesn’t review all the words in the problem, then he’s going to get the answer wrong. Tr. 517. The Parent indicated that the . was not at his October 2012 IEP meeting was because she didn’t think he needed to be there. Tr. 518. She felt that and would feel upset with multiple people talking about his grade levels. Tr. 518.

The Parent testified that she requested an assistive technology evaluation due to his dyslexia and his auditory processing challenges but he was never evaluated. Tr. 520-

521. She stated that she sent a letter asking for these evaluation. Tr. 521. She also requested at the October 2012 CSE meeting and he has never gotten any. Tr. 522. She also asked for a reading based intervention at the meeting and was told that they don’t provide it. Tr. 522. The Parent testified that she received a draft copy of the IEP after the meeting but never received a Final Notice of Recommendation from the school regarding a school recommendation for this year, nor did they receive a Final IEP. Tr. 523. In middle school, he had SETTS with push-in and pull-out and this year he had ICT on his draft IEP. Tr. 524. At the end of the October 2012 IEP meeting, there was no resolution as to which program was appropriate because SETTS would not work and they didn’t agree with the ICT program for two classes. Tr. 526.

On cross examination, the Parent stated that she didn’t remember what they discussed at the October 2012 IEP meeting regarding assistive technology. Tr. 531. With respect to Speech and language therapy, they said they would give her an RSA. Tr. 531. With regard to , they said they don’t provide that. Tr. 532. The Parent stated that didn’t have room in his schedule to be pulled out or else he would miss a core class. Tr. 533. On cross, the Parent stated that she did not recall if she requested counseling and Occupational therapy services at the meeting. Tr. 534. She stated that they had a discussion about a scribe and they said he was entitled to one. Tr. 534-535. The Parent also testified that she had discussed vision therapy at the meeting and stated that he had received it outside of school in fourth or fifth grade. Tr. 538. She said that she requested it in her impartial hearing request but did not request these services from Lincoln. Tr. 539.

The Parent testified that during lunch . sometimes goes for extra help but not after school. Tr. 541. In terms of his report card, she stated that it was not an appropriate representation of his abilities. Tr. 542.

On redirect, the Parent stated that although she applied to Street on appeal due to their proximity, she had no idea whether they provided methodologies for T.M.’s dyslexia and auditory processing disorder. She also stated and he feels he is not learning anything and . Tr. 554. She also stated that he had a concern with understanding his math teacher, due to her accent, and at the October 2012 IEP meeting, Ms. said she would look into changing his class and this was never done. Tr. 555.

The next witness was . She has a Masters Degree in Environmental Studies and a certification in . is a multisensory technique for teaching reading and spelling skills and also higher level skills associated with it (ie. reading comprehension, writing, essays, etc.) She testified that there are rules with respect to reading and spelling that people pick up naturally if they are in school but if you are dyslexic, you need to learn them in a different way. Tr. 567. treats the concepts individually and systematically and there is a sensory component. It is also very repetitive so when new concepts are introduced, the old concepts are still being incorporated. Tr. 567. Also, because it’s done one on one, the practitioner is able to tailor the lessons to the specific needs of the student at the student’s pace. Tr. 567.

Ms. testified that she works as an independent contractor and also works for . Tr. 568. She is certified by the practitioners and educators. She has certification at the associate level which is the first level and has completed training at the second level. Tr.

569. She testified that is a research based methodology. Tr. 569. She stated that she has been providing remediation to students for the past four years and also has a certification to teach science in middle school in Massachusetts. Tr. 570.

Ms. reviewed evaluation from when he and when . She stated that he is now . (P-E – P-F) Based on the evaluations, Ms. determined that . has challenges in the area of . Tr. 570. She stated that she has . Tr. 571. Based on her review of the Student’s reports, she stated that he would be a very good candidate for based on the fact that he is but his reading and writing scores are far below and this is a common profile for success. Tr. 572.

Based upon Dr. evaluation (P-E), Ms. stated that ’s ability to decode words in isolation was grade and words it was and his reading comprehension scores were also a late third grade level. Tr. 573. Ms. testified that she believed it is important for a ninth grader to read on grade level for academic success and from a social emotional perspective and how it affects self esteem. Tr. 574. She stated that Orton-Gillingham would target his decoding deficiencies through explicit phonics instruction,spelling rules and spelling patterns. Tr. 575. Orton-Gillingham could also target his deficiencies with reading comprehension through the work they would do with decoding and also by giving . strategies. Tr. 576. In order to receive Orton-Gillingham remediation, testing would be done to assess the target areas that need to be addressed. Tr. 576. The cost of that testing and the remediation would depend on the practitioner. Tr. 577-578. She does not know what the company she works for charges but when she works independently with students she charges $75 an hour and that includes the time she spends with the student and the time she spends planning the lesson. Tr. 579. Other tutors she knows may charge twice that amount so there is a range of fees. Tr. 579.

Ms. recommends that . receive Orton-Gillingham services every day of the school week because there is a huge deficit between where his reading and writing scores are and his grade level. Tr. 579. She said a typical dosage for someone who is a grade level or two behind is two days a week but because he grade and is , he needs intensive instruction. Tr. 580.

Ms. believes that is an accredited research based methodology. Tr. 560. She said that the program is not meant to be individualized and tailored to the student and is much better for a younger student. Tr. 581. She testified that it’s important for him to receive reading remediation one-on-one because there are few people who teach in classroom and each is different so the progress would be faster if taught individually. Tr. 582. Accordingly, she believes it would be beneficial for to receive one on one instruction because he has specific deficits that indicate that he has a reading and spelling based problem. Tr. 583. Ms. believes should receive such remediation five days a week, ideally, until he graduates from high school. Tr. 584.

On cross examination, Ms. stated that she has received three years of training to reach level two in . Tr. 587. She stated that the amount of time necessary to tutor a student is based on the level of proficiency of the student and how much catch up is required. Tr. 589.

The next witness was Dr. . She has a Ph.D. in applied developmental psychology and school psychology. Tr. 612. She also has a Master’s Degree in forensic psychology and is certified in New York State as a school psychologist. Tr. 613. She has worked in the field for 20 years. Tr. 614. She worked for the Board of Education from 2002-2008, and following that as a therapist at an agency and in private practice. Tr. 614. She stated that when she worked for the Board of Education she performed approximately 150-180 evaluations and participated in the development of IEPs and evaluations. Tr. 616.

Dr. Hope testified that she performed an evaluation of did testing from July through September 2011. P-E. She stated that testing is usually invalid if it occurs twice within a year and the recommendation is to administer the test once a year. Tr. 618. She testified that she performed a WIST4 on T.M. and used this test to establish the Student’s areas of strength and weakness. Tr. 620. The results indicated that his working memory was good, his processing speed was excellent, relative deficits were noted in language comprehension and expression. Tr. 620. This also showed that his processing of language is not as good as his processing of non-language based information such as charts, graphs and visual information. Tr. 621.

Dr. also gave him the WIAT and his areas of academic weakness were his decoding of nonwords, his word reading of regular words, his spelling, and his receptive vocabulary. Tr. 622. In addition he was reading and making a lot of errors. Tr. 622. Specifically his pseudo-word, word reading and spelling were in the borderline range which means that they were far below average for a child his age. Tr. 622. The word reading or decoding was at the 3.9 grade level, spelling was 3.7 and pseudo-word decoding was 1.9. Tr. 623. As a result of .’s scores, she felt that he will have a lot of difficulty processing ninth grade information. Tr. 626. Dr. testified that it would have been important for to get remediation in basic phonics earlier because it gets more difficult as kids get older since work is more demanding and it’s harder to catch up. Tr. 627.

Dr. testified that based on her testing, . was several grades behind in terms of his academic tests that required chronological processing. Tr. 627. She also stated that has receptive vocabulary challenges which affect his comprehension and requires him to take time to learn new words instead of trying to comprehend what he is reading. Tr. 629.

Dr. then performed the test of memory and learning. Tr. 629. . did five on all tests except he had trouble recalling abstract and geometric figures. Tr. 629. She also gave him the sound blending test on the Woodcock Johnson to see if he could put sounds together to make words and he did fine with this test. Tr. 630. The next test performed was a developmental and she determined there were deficiencies in his ability to follow increasingly complex directions. Tr. 631. This would mean that he is having a hard time following sequences and following multiple instructions simultaneously. Tr. 631. Dr. indicated that this was significant because in ninth grade there is a lot going on. Tr. 631.

Dr. testified that without remediation for his long and disorder, it is going to get harder and harder for him because the demands are greater. Tr. 632. In her evaluation, she recommended test accommodations and classroom modifications. Tr. 633; P-E. She also recommended interventions for reading fluency, direct instruction in phonics, vocabulary building activities, intense instruction in word identification strategies, interventions for comprehension and writing, and support for organizational deficits as well as self-monitoring strategies. Tr. 639. She also recommended an updated evaluation, therapy to address counseling to address symptoms. Tr. 634. Without implementing these services, Dr. said the more and more. Tr. 634.

Dr. diagnosed with a , a general (not rising to the level of ). She also stated that he was , a diagnosis provided by specialist. Tr. 635. Based upon these diagnoses, Dr. estified that he needs specialized instruction and she is not sure it’s part of his curriculum in a regular community school. Tr. 636. She described him as a bright child with a . Tr. 636. When Dr. was told . was in an ICT class she said, “It’s better than a general education class because you do have the full time special education support, however, with everything that goes on in a full time classroom, I’m not sure that a special education CTT teacher would have time to give him the individualized attention he needs.” Tr. 636.

Dr. testified that at the time she saw him, she would have liked to see him at a school where the classrooms were smaller and the teachers were equipped to manage or incorporate into the curriculum techniques to . Tr. 637. She and said there were approximately 12 students in a class. Tr. 638. She stated that this is not a self-contained classroom like the class the District has recommended since he is a very high functioning child in some ways. Tr. 638 Dr. also testified that she would recommend a multisensory approach to reading instruction like , but it doesn’t have to be that particular program. Tr. 641. She said that is not a multisensory program and it only provides phonics support. Tr. 643.

On cross, Dr. stated that she has seen the ICT model and how the special education teacher would get the students into small groups and work on issues. Tr. 646. She stated that she thought a student like . required more intensive instruction than that, and that he belonged in a school that specializes in students with reading disabilities. Tr. 648; Tr. 649. Dr. stated that he needs a multisensory program but it doesn’t necessarily have to be . Tr. 650. She also indicated that if was placed in a self-contained District program, she believes it would not be appropriate since it wouldn’t be cognitively challenging enough for him. Tr. 652.

The last witness for the Parent was ., the Student. He has attended since September 5, 2012 . Tr. 659-660. It takes him about on hour 40 minutes to get to school each way. Tr. 660. He has an IEP and stated that he is in an ICT class. Tr. 660. There are two teachers in his Living Environment and U.S. History classes, but one teacher in all other classes including Algebra and English. Tr. 661. He stated that in his ICT classes, there are 30 students. Tr. 662. He described the classes as noisy and indicated that it is hard to focus with two teachers talking to a noisy classroom. Tr. 662. He testified that he has a problem with his hearing in the classroom especially with the because he hears the teachers and the students at the same time and it gives him headaches. Tr. 663. He testified that he got a month ago and then it stopped working and he hasn’t received a replacement. Tr. 663. The Tr. 663. The Student testified that the FM unit was supposed to help him focus better but it just made . Tr. 664. The Student testified that he was aware that he had a and he was told he had it grade. Tr.

665. He stated that with , only one teacher had and if he wanted to hear the other teacher, he had to take . Tr. 665. He said that he because . Tr. 666.

The Student stated that in class the teacher uses a combination of methods to teach. Tr. 667. When they use the whiteboard, it’s hard to follow because they go through things too quickly. Tr. 667. He said that the challenges he has in the classroom are . Tr. 667. He indicated that when he so he can understand it. Tr. 668. He also stated that he has a condition and learned of this . Tr. 668. This affects his ability to follow what’s on the smartboard because he has to read it and then process it. Tr. 668. If the class is noisy, which it usually is, and have to start over again. Tr. 668. He said because of , he often has to reread things so he can understand them and this happens on a daily basis in all of his classes. Tr. 670. He said that in English, they have to write the main idea and give textural evidence to support it and he would have trouble finding the main idea because he wouldn’t be able to grasp the concept of the article he was reading. Tr. 670. He is not given extra time in his classes but told that if he needs the time he can come at lunch. Tr. 671. He also does not get extra time for tests even though he is supposed to get it. Tr. 672.

With respect to the grades on his first term report card, the Student testified that he “didn’t deserve those grades”. He stated that he and his tests were in the Tr. 672. He said that in English he finds it challenging to write independently. Tr. 673. When he feels challenged, he just sits there and tries to focus but no one helps him. Tr. 673. He also said in Living Environment he got , yet got an on his report card. Tr. 676. He said that in Living Environment when they put information on the whiteboard, they go too fast. Tr. 676. He does not receive SETTS support this year in school. Tr. 673. He did have SETTS support last year. Tr. 674. He said it did not help him because he was missing a lot of work while he was out at SETTS and then he would have to make it up. Tr. 674. He said they didn’t do the same work in SETTS as they were doing in the classroom. Tr. 674. He did say, however, that last year his SETTS teacher would come into the classroom every couple of weeks to see if he was okay. Tr. 675. This year no one came into his classes for him. Tr. 675. Overall, he said that SETTS wasn’t helpful because he missed too much work and couldn’t catch up. Tr. 675.

The Student finds that is difficult for him. Tr. 676. He said it’s a school full of students who do not put in the effort, it’s noisy and there is no way to learn. Tr. 676. He feels that the teachers are going too fast. Tr. 677. He stated that he thinks the teachers think “that all kids work on one speed and try to understand the work at one time”. Tr.

677. He testified that he needs the work to come at him at a slower pace in order for him to grasp. Tr. 677. He has difficulty understanding material when it’s read to him because he needs to read it and break it down himself. Tr. 678. He likes to take notes when he reads or uses post-its. Tr. 678. He said using pictures and videos helps him grasp material but he still needs to read it. Tr. 679. The Student testified that he has Regents exams coming up and he feels that if he stays , he will fail because he is not learning in class. Tr. 678.

He stated that he did not have anything to do with the unit not working and was never trained in its use before he got it. Tr. 680. He did, however, speak with the speech teacher once about how to use it. Tr. 681. He stated that he took his part of from class to class but the teachers worked out how their part was going to go from class to class and sometimes it didn’t get there. Tr. 681. The Student said the teachers were struggling to learn how to use as well. Tr. 682.

The Student testified that the reason he has a 60 in gym is because it is his first class and he is often late because it takes a long time to get to school. Tr. 683. He testified that he usually leaves his house at 6:20-6:30. Tr. 683. He finds the travelling stressful because he has to take the . Tr. 684. Even though the school gives him a Metrocard, it’s not enough and he needs to pay more. Tr. 685. He has to pay for and the the way home. Tr. 684. He has certain including . The mostly affects him in his travels. Tr. 685.

He also said that the challenges he has him in his other classes. Tr. 686. He has asked his U.S. History and Living Environment teachers to slow down the work. Tr. 687. He asked his English teacher and Algebra teacher for extra work or materials to help catch him up or to help him understand the material better. Tr. 687. In terms of math, he was getting before he . Tr. 688. Since going he has had Tr. 689. Specifically, he is . Tr. 689. He stated that he hasn’t been given any assistance with respect to this. Tr. 690. In middle school he stated “it was quiet and the teacher would use certain things to help me understand. He would go at a pace so all kids could learn…he’d give us assignments and then he’d come over to me and break it down and make sure I understood it…” Tr. 690.

The Student indicated that he is taking Living Environment, U.S. History, English and Algebra. Tr. 691. He said that in Living Environment he failed his test so there is no way he could have gotten an on his report card and there is no way he can pass the Regents. Tr. 691. In history, it’s the same thing because when he writes essays, he can’t explain his words. Tr. 691. He testified that no one has helped him with his central processing disorder . Tr. 693.

On cross examination, the Student said that there was nothing he could do to reduce the noise with the FM unit. Tr. 696. He tried to sit in the front and the back and it didn’t help. Tr. 696. He stated that he did not attend his IEP meetings. Tr. 698. He also said he wasn’t asked to be there. Tr. 700. He stated that he is aware of his accommodations on his IEP. Tr. 791. He said he never used the scribe. Tr. 701. He also stated that he asked his teachers why he hasn’t been able to get help or extra time and they said they needed to get more information on that. Tr. 701. He said he needs a classroom that is quiet, less kids with a teacher who understands where he was coming from and breaks down information. Tr. 702.

On redirect, the Student stated that in his math class he tried to move from one seat to another to see if would work better and was kicked out of the class. Tr. 703. For doing so, he received lunch detention. Tr. 705. He indicated that he did not think his ICT teachers knew he had an IEP. Tr. 706. When the Student asked if he could change classes at the beginning of the semester, he was told that he couldn’t because he was in the and those students have IEP’s. Tr. 708. He stated that he never leaves the room for testing except once and he has never gotten directions read and explained. Tr. 710. When he asked what certain things meant, he was told that he isn’t allowed to ask that. Tr. 712. District Case The District called five (5) witnesses and placed eleven (11) documents in evidence. D-1—D-11.

The first witness for the District was . She is the assistant principal and has been for the last six years. Tr. 225. Before that she was assistant principal of special education at and prior to that she was a special education teacher. Tr. 227. She has a supervision and administration degree, a principal’s license, assistant principal’s license and a teaching license. Tr. 227.

She became familiar with . since he is who came with special education mandates. Tr. 228. She stated that “He was basically brought to my attention via an impartial hearing resolution on what we had to implement at the school in order to fulfill mandates from an impartial hearing.” Tr. 228

Ms. testified that they had a CSE meeting in October, 2012 which they characterized as a reconvene in order to ensure that any of the mandates from the previous impartial hearing were incorporated into the IEP. Since there were components of the impartial hearing that were dictated from the junior high school, they included the at the meeting,which they do not normally do with an annual review. Tr. 230. Therefore she said “rather than just conduct it as an annual review, we wanted to make it a more…serious meeting.”.Tr. 230. They wanted to make sure that the items on the impartial hearing officer’s order were on the IEP. P-B. At the meeting, the psychologist reviewed the test results from the junior high. The parties present at the meeting included: herself; Ms. the psychologist; Mr. the ICT science push-in teacher; Ms. , his English teacher; Mr. his general education science teacher; his mother; and Ms. . Tr. 232-233, D-9. She stated that some of the people listed on the exhibit including Mr. and Mr. were not there since the time of the meeting changed from 11:45 to 1:00, they were not available. Tr. 235; D-9.

At the CSE meeting, Ms. stated that they discussed the impartial hearing order and whether he should get SETTS or whether he should continue with the ICT classes for the rest of the 2012-13 school year. Tr. 236; P-B. Ms. stated that SETTS is a pull-out for one 45 minute period and in ICT he was receiving two 73 minute push-ins. Tr. 238. If he were in SETTS he would be in all general education classes but with ICT he is in two classes, Living Environment and U.S. History with a special education provider. Tr.

238. She stated that the freshmen only take four classes, English, history, math and science, each one for 73 minutes periods. Tr. 239. She testified that students must pass five Regents to graduate and they have them take three Regents courses during their freshman year. Tr. 239. Ms. stated that SETTS is a pull-out program that is offered first period and , which is an hour and 20 minutes away. Tr. 239. She indicated that if a student lived beyond 90 minutes, he could get a travel hardship. Tr. 240. She testified that she believed he wanted to come for football. Tr. 240. Ms. indicated that SETTS if offered first period because they have two blocks of time, periods one to eight or two to nine. The ICT blocks are periods two to nine. Tr. 241. Ms. testified that she was concerned that if SETTS was on his schedule and he didn’t attend because it was hard for him to get there, he would fail and the failure would follow him on his transcript and through college admissions. Tr. 241-242.

Ms. testified that at the time of the CSE meeting, he was getting ICT and was getting academic intervention services. Tr. 242. She also stated that at the time of the meeting, he had a 79 or 80 average and was passing all of his classes. Tr. 242. At the end of the meeting there was no resolution with respect to his program recommendation. Tr. 243. Ms. stated that if you look on SEISIS, the IEP remains in draft, which means the IEP is not in compliance. Tr. 243. She said they agreed to continue to try and resolve this but it hasn’t happened. Tr. 245. Ms. stated that a new IEP is put in place within a year of the old IEP, it doesn’t have to be before the Student starts high school. Tr. 245. Ms. testified that in most high schools in the city they have seven 45 minutes periods but uses a different model for its freshmen. Tr. 247. They believe that this model works because it gives the students extra support and if they fail a Regents, they have three years to help them make it up. Tr. 248. She said as a result of this, when we get an IEP from a junior high school student that says he’s supposed to have foreign language or another course in we call the parent and advise them that the student is not going to get that . Tr. 248.

Ms. stated that based on the impartial hearing order (P-B), an is in place. Tr.

255. She indicated that Ms. the speech therapist provided professional development to the teachers with respect to the . Tr. 255. Ms. testified that . is not presently using the Tr. 255. She stated that “…[T.M.] apparently broke the - - he was resistant to wearing it and the is presently broken because the piece that [ .] wore, he broke.” Tr.

255. She stated that it was in use approximately three days before he broke the earpiece and she has notified the people who sent it and they are investigating. Tr. 257.

Ms. stated that her outreach to the Parent regarding the present program that . is in went through the attorney. Tr. 257. She said it began in the beginning of October when she became aware of this case. Tr. 258. She also indicated that the date of the CSE meeting changed several times before it was set for October 18th. Tr. 258.

Ms. testified that at the start of the school year the Student had ICT because of the program . Tr. 259. She said the best evidence of how the school is meeting .’s needs is his report card. Tr. 259. She testified that his progress is enormous and you can see from his writing grade of 93 that he is successful. Tr. 259. She stated that she is not advocating taking an IEP and disregarding it but she says that historically the movement from middle school to high school is a disaster, provides academic intervention services for all students by giving them four main subjects with 73 minutes and report card speaks for itself. Tr. 260.With respect to .’s grades of 60 and 65 in Physical Education, Ms. stated that he is doing better now and is going to weight training every day and working with Mr. and the football team, even though he isn’t presently on the team. Tr. 267 .

On cross examination, M.s testified that she received the order from the prior impartial hearing (P-B) which was dated August 13, 2012, the first week of October. Tr.

265. She then set up the initial meeting which was set for October 8th or 9th and then moved to October 18th. Tr. 265. She indicated that the first time she saw the order was when Ms. Hartley gave it to her. Tr. 267. Within a week of receiving it, they had an RSA for Speech. Tr. 266. She said there was no communication between her and the implementation office until after she received the Order, at the beginning of October. Tr.

268. Ms. testified that when she saw on the Order that an was required, she notified the special education liaison and she procured it for .. Tr. 268-269.

Ms. testified that when . came into the school, his last IEP had been issued on or about October 28, 2011 and that they were not “totally” following it based on the SETTS issue and the structure of the academy. Tr. 270; P-B. She stated that she was providing ICT to that ICT and SETTS are different programs; SETTS is a pull-out program. Tr. 274. Ms. also testified that there were no progress reports for the goals at the meeting. Tr. 275. She further stated that the progress reports are given at the same time the school reports are given and the school report cards were issued on October 24th and the meeting was held on October 18th. Tr. 277. Ms. also indicated that the progress reports from the junior high school were not reviewed at the meeting and are not part of .’s file. Tr. 278. She said that the progress reports from junior high are based on modified criteria and the high school reports are based on standard criteria so the junior high reports would not be substantial enough for them to review at the CSE meeting. Tr.

278. She stated that it would not be as relevant because if the NYS guidelines for students to receive high school diplomas. Tr. 280. Ms. testified that the Parent has not received progress reports with respect to the goals on the IEP. Tr. 280. She indicated that she understands the requirement that progress reports be provided, however, the IEP is in draft form and they are waiting for a conversation with the Parent. Tr. 281. She said it is the school’s responsibility to finalize the IEP but the mother must sign the final notice. Tr. 282. She doesn’t know if a final notice was even sent to the Parent. Tr. 283. She also indicated that the only options for . was to get to school for first period for SETTS or remain in ICT. Tr. 283.

Ms. testified that the gave her back the . Unit and told her that it had been , but she has no direct personal knowledge as . Tr. 287. She stated that she notified CFN in late December or early January and they are having the repaired. Tr. 288-289.

Ms. testified that for a child with a reading disorder, teachers provide tutoring and Ms. .’s English teacher probably has methodology she uses. In addition, there is a Read 20 initiative that the principal has incorporated into every subject area. Tr. 292.

Ms. also stated that she reviewed evaluation of Dr. (P-E) but does not think it has been incorporated into SEISIS yet. Tr. 295. She said that she was aware of his reading levels and decoding levels as a result of the evaluation. Tr. 295. Ms. stated that they did not address the recommendations made in the evaluation at the October 2012 CSE meeting. Tr. 296. Their plan at the CSE meeting was to address the order from the impartial hearing officer, which they did. Tr. 297; P-B. Ms. said they were aware of the and considered all evidence that was available including student-teacher progress reports, at the CSE meeting. Tr. 297. She stated that at the meeting, teachers left their classrooms to provide extensive reports about . Tr. 299.

Ms. testified on cross examination that the teachers have department conferences and academy meetings and the teachers have common planning time and discuss what difficulties each student is experiencing in the classroom and they share their methodologies to make sure the student achieves success. Tr. 304. She stated that she is not aware of what research based methodologies are being utilized address his challenges with his reading disorder. Tr. 309.

Ms. stated that . is not receiving in school because he has an RSA.because according to the impartial hearing order (P-B), he had to have a and the school did not have one. Tr. 309. She also testified that . has not received an assistive technology evaluation nor did he receive a reading disorder remediation, or a P-3 letter, as requested in the social history update from October 2011. Tr. 313; P-K. She said that the most recent IEP is what she implements not requests made previous to the IEP. Tr. 314. She also stated that the Parent did not make these requests at the October 18. 2012 IEP meeting. Tr. 315.

When asked whether she thought that might be appropriated for a student such . given his significant , she stated that it might help him. Tr. 317. She also stated that no students in her school use assistive technology in the classroom, but one or two use it for stated exams. Tr. 318.

Ms. testified that according to his October 2011 IEP, was supposed to receive SETTS services, five times a week for 45 minutes each time, with eight students and one teacher. Tr. 320. She said that that is the mandate city wide and it is listed on his IEP as a group service. Tr. 321. It would also be in a separate location. Tr. 323.

The next witness was Dr. . He is the school psychologist for the school assessment . Tr. 324. He has worked for the Department of Education for 20 years. Tr.

326. He is a certified school psychologist with New York State and holds a Ph.D. in Education Psychology and a Master’s and Advanced Certificate in school psychology.

He is familiar with . as a result of a notification from Ms. that they needed to reconvene a CSE meeting in order to comply with an impartial hearing order to add and an unit to ’s IEP. Tr. 326; P-B. Dr. stated that although the meeting was supposed to start at 11:45, it was delayed. Ms. left before the end of the meeting because she needed to return to class. Tr. 331.

At the October 18th CSE meeting, they discussed the addition of the the as per the Order. Tr. 331; P-B. They also agreed to give him a scribe based on conversations with the Parent. Tr. 332. Dr. testified that the IEP was never finalized because they never came to consensus on a program recommendation. Tr. 332. He stated that “[they] went back and forth with whether [they] would give him SETTS or we should give him ICT and ultimately you know, it was left up to the family to make the decision. Tr. 332. He stated that IEP that is in draft form has SETTS services as the recommended service. Tr. 332. Dr. said that the school had been underway for six or seven weeks and it can be disruptive to change a student’s classes around at that point. Tr. 333.

Dr. stated that his knowledge of . is minimal but comes from the CSE meeting, the neuropsychological evaluation that was done in 2011 (P-E), conversations with his teachers and his observation of last Thursday. Tr. 334. Based upon the evaluation (P-

E) he stated functions in the average range with in his verbal skills. Tr. 336. He said was good but not his accuracy. Tr. 337. At the CSE meeting, they reviewed the report and noted and asked the Parent questions for clarification. Dr. testified that the Parent was not challenging anything. Tr. 338. Dr. stated that based on his knowledge of . at the October 2012 CSE meeting, the CSE could have gone with either the ICT program or SETTS. Tr. 340. He was already in the ICT program and Dr. indicated that his teachers noted progress in the classes. Tr. 340. Dr specifically stated, “I’ll be very clear, you know, about this,…we were not providing, you know, the SETTS services that the IEP was mandating. Tr. 346.

Dr. testified that based on his observation his English class, a week before this hearing, . actively participated in the discussion answering factual and inferential questions with decent responses. Tr. 243. When broken up into groups . did the task required of him individually but did not orally respond because the period had ended. Dr. reviewed his response and said it was legible, coherent and on point. Tr. 344.

According to Dr. , the FM unit was ordered subsequent to the October 2012 CSE meeting and was delivered to . in his English class on January 8th . . used it for about 30 minutes and never put it on again in that class. Tr. 347. He is not aware if the unit was used in other classes, however, he testified that it was returned to Ms. by Mr. a week later and it was broken. Tr. 350.

On cross, Dr. stated that the purpose of the October 2012 CSE meeting was to add to the , not to conduct an annual review. Tr. 354; P-J. He stated that Ms. would have had a separate annual review after that…” Tr. 355. He agreed that the only IEP they drafted from September 1, 2012 until now was done in October and was never completed. Tr. 356. He said that the annual review could have been done jointly with the reconvene but he wasn’t aware of that. Tr. 356. Dr. stated that at the October 2012 meeting, “I was asked to just sit down and implement the impartial hearing officer’s decisions.” Tr. 357. He did not recall if he was the District representative at the meeting or whether Ms. was. Tr. 357. Dr. stated that it would be his responsibility to finalize the October 2012 IEP. Tr. 350. Dr. testified that the Parent has not received a Final Notice of Recommendation for . because she never got back to the CSE with regard to what program she wanted. Tr. 362.

Dr., testified that the Parent informed the team at the October 2012 CSE meeting that it would be difficult for to get to school by 7:30. Tr. 364. Dr. testified that no progress reports were presented to the Parent at the meeting, however, Dr. stated that the progress reports are supposed to be given to the parents around the time the report cards are distributed. Tr. 364-365.

With respect to Dr. leaving the meeting early, Dr. stated that no one objected. Tr. 372. He is not aware whether . has received a scribe since the IEP meeting, however, he stated that a scribe was included on his IEP. Tr. 375. He also agreed that a scribe was listed on his testing accommodations for his October 2011 IEP. Tr. 377; P-J.

The next witness was . She has been at since 2005 and is the Speech improvement teacher. Tr. 382. She has her TSSLD in Speech and Hearing Disabilities. Tr. 382. She met . in October but didn’t have a conversation with him until December. Tr. 383. She testified that she was asked to join the October 2012 CSE meeting for since she was the . Tr. 383. She characterized it as a “reconvene for his annual”. Tr. 383 .At the October 2012 meeting, Ms. stated that she didn’t say much at the meeting, only that she knew was going to receive an and she was able train him. Tr. 385.

Ms. testified that she met with on two occasions in December 2012. Tr. 386At hese meetings she changed the battery and got things synched and then adjusted the volume for him. Tr. 387. She also trained the teachers and had them come in one at a time and also taught them how to sync the system because every time you turn it off and then on, you have to sync the machine again to the piece. Tr. 388. She testified that she did not require any further training because . Tr. 389. Ms. stated that is no longer in working order, “part of it has been lifted, so I can’t take the battery out or put it in because it does not connect…” It’s been kind of lifted up from its base.” Tr. 390

According to Ms. was to receive through an RSA as of October. Tr. 392. She did not know him in September when he first . Tr. 392. She stated that she could not provide him with the services he needed because he required one to one services and she only provides services in a group. The therapy he is training. Tr. 393.

On cross, Ms. testified that the teacher training for took place in January because she first worked to meet and make sure the unit was appropriately adjusted and comfortable for him. Tr. 395.She staed that she isn’t sure how the got damaged because she wasn’t physically there when it happened. Tr. 395.

Ms. stated that she reviewed evaluations. Tr. 400. She was aware that had a problem noted with which indicates that he may have , or directives not being processed because he is . Tr. 402. Ms. stated that is not a cure challenges since it just takes the speaker’s voice and highlights it and make the volume louder in the person’s ear. Tr. 402. She indicated that it just helps compensate for the deficit. Tr. 402. She said that she ended up seeing . four times since the start of school; two times in the classroom and two times individually. Tr. 404. Ms testified that there are approximately 30 students in an ICT class equally split between special educations and general education students. Tr. 406.

The next witness . He has a Bachelor’s degree in archeology and marine biology, a Master’s degree in anthropology and archeology. He then got his Master’s in Education and has certification in special education and biology, grades 7-12. He is currently an ICT teacher at Tr. 82.

He is familiar with . because he is his student in his Living Environment class. Tr. 83. There are approximately 34 students, 12 are IEP students. Tr. 84. There are two teachers and they teach together. Tr. 84. He said that . sits in the front of the room and just received an FM unit. Tr. 85. Since . was having trouble using it, Mr. went on line and found a YouTube video to explain how to use and wear it. Tr. 85. The teacher testified that he received training on the unit from the Speech therapist. Tr. 86. Mr. stated that . is very personable and as a result can work with almost any other student in the class. Tr. 87. He loves to answer questions and enjoys being involved in the class. Tr. 88. He has passed every marking period so far. Presently, they are in the third marking period. The teacher stated that he did improve slightly over the course of the year and that he hasn’t gotten below a 65 on any of his exams. Tr. 91-92. He gives the students points for test corrections which adds points to their test grades. Tr. 92

, the students take four major classes, English, U.S. History, Living Environment and Algebra. Each of these classes are in a period and a half setting and a 73 minute block. This structure is used because at the end of the year, students will be taking a Regents in Living Environment, U.S. History and Algebra, so that they will be prepared to get three out of the five Regents they need for a Regents diploma. Tr. 92. . has two teachers in Living Environment and U.S. History and one teacher for English and math. Tr. 93.Mr. testified that the school has certain things embedded into the program including a Read 20 reading program where students are given an article to read in each of their core subjects and a graphic organizer with four quadrants. The first quadrant is a summary of the article, the second-quotes, the third deals with why it is important and the last quadrant is key words and definitions. This is done in every class and it helps focus the students in reading and writing. Tr. 94. They also provide writing prompts during class presentation to make sure students are on point. Tr. 95. Mr. testified that this is helpful . since reading and writing are issues on his IEP. Tr. 95.

Mr. testified that he was at ’s October 2012 IEP meeting. Tr. 96. He said that the English teacher was there for part of the time and provided a writing sample. Tr. 97. The other partiespresent were the provider, Mr. ; and the Parent. Tr. 98. They discusses that he was receiving SETTS in eighth grade and how the ICT classes are set up and that this will give better access to the information than the SETTS provider since there are two teachers in the room. Tr. 98. They also discussed the fact that since Mr. has certification in biology and special education and the SETTS teacher would not have a biology background, would be better off in an ICT class. Tr. 98. Mr. testified that they discussed all of the options and at the end of the meeting they had not reached consensus. Tr. 99. He said the meeting lasted at least two and a half periods. Tr. 99. Mr. also stated that the testing accommodations they presently use from that meeting and include: a scribe, a separate location and extra time. Tr. 100.The teacher advised us that he is given the option each time for a separate location and a scribe but has declined. Tr. 100. Mr. testified that the extended time is embedded into their exams and is the same for every student. Tr. 100. He said they normally ask 35 to 40 questions during a 73 minute period instead of 50 or 60 questions. Tr. 101. Ms. stated that separate locations will definitely be provided during the Regents, however it’s difficult for them to find open classrooms to administer theregular tests. Tr.101. He also indicated that “the tenant of an ICT class is so that the students all feel like they’re in the same structure…”, therefore, on a normal test, they haven’t been able to provide a separate location for him. Tr. 102. Mr. testified that is a very articulate young man and an active participant in class. Tr. 103.

On cross examination, Mr. stated that the English teacher left the October 2012 CSE meeting before it was concluded. Tr. 105. When questioned about whether there was an IEP in effect for the 2012-2013 school year before the October CSE meeting, Mr. testified that he could not remember the documents that were on SEISIS. Tr. 106. He thought the purpose of the October 2012 meeting was to rediscuss the IEP. Tr. 106. Mr. testified that Exhibit P-J was the IEP that was in effect . came into school in September 2012. Tr. 107. He stated that the IEP meeting took place prior to the date of the annual review deadline. Tr. 107. He also said that the CSE meeting was rescheduled multiple times before it was held. Tr. 108

Mr testified that at the October 12th CSE meeting, they discussed the possibility of . receiving SETTS services. Tr. 111. He said that SETTS was only offered first period which begins at 7:25 and that . travels an hour and a half to get to school daily. Tr. 112. As of the date of this hearing, Mr. stated that has not been provided with any SETTS services since it wasn’t decided upon. Tr. 112; Tr. 113. There was no indication on ’s schedule for the 2012-2013 school year that he was receiving SETTS. D-2; Tr.

114. He stated that is a student that has a schedule from period 2 to period 9. Other students have one for period 1 through period 8. Tr. 115. When Mr. left the October 2012 CSE meeting, he was told that the Parent and lawyer were still deciding what to do and no program recommendation was made. Tr. 115. He does not know if a final recommendation was made after that. Tr. 116. Mr. testified that he is aware that has a reading disorder and that he has a decoding level of 1.9 on his IEP. Tr. 117. Mr. testified that they use a general reading program in all his classes. He said that he doesn’t think is challenged in his classroom because they do a good job of simplifying things. Tr. 118. He also said they do not separate the special education students from the general education students in his class, they are taught together. Tr. 119. He said there are 10 to 12 special education students in class. Tr. 120.

Mr. testified that they provide different resources to the students in order to differentiate instruction. Tr. 120. With the program, the teachers check the graphic organizers for understanding. Tr. 122. He stated that . does a good job when he checks his graphic organizer. Tr. 122. If a student fails a test, he has to do test corrections; if not, he has the option to do test corrections .Tr. 123. Mr. doesn’t remember if T.M. has done test corrections. Tr. 123. For first quarter, has a “pass” for his labs and a for a grade for Living Environment. Tr. 124. For first quarter, the comments indicated he was not . Tr. 125. Mr. stated that he doesn’t modify the worksheets because he believes they are at a level they believe is appropriate for him. Tr. 126.

Mr. s testified on cross that when there are tests, he gives . the opportunity to go to Ms. ’s office if he needs a scribe. Tr. 127. He does not repeat directions for him because the tests are multiple choice. Tr. 127. He indicated that he leaves it up whether he wants a separate location or a scribe. Tr. 128. Mr. also indicated that T.M. does not get extra time; he is given the same amount of time as other students however, if he needs extra time he can stay after school or come back at lunch to complete the test. Tr. 132. .has never asked for additional time to complete an exam. Tr. 136.

Mr testified that he believes the ICT represents the in between of self-contained and a general education classroom and he wants all of his students to feel they are in a general education classroom. Tr. 138. For testing, it is embedded in the exam that he should be able to finish in a period. Tr. 139. At Mr. stated that there are three options: self-contained, ICT, and a general education classroom. Tr. 144. He didn’t know if SETTS was an option at his school. Tr. 145. Mr. said that at October 2012 meeting SETTS was an option that was discussed with the Parents but nothing ever came of it. Tr. 145. Mr. testified that as far as he knows . has not received SETTS Tr. 149.

On cross, he also stated that . received unit about one week ago. Tr. 149. He said he worked with him on Friday and Monday with respect to unit. Tr. 150. The problem in Living Environment is there is only one microphone for two teachers. Tr.

151. Mr. testified that he never saw the social history update and doesn’t know about an assistive technology request and he doesn’t recall if this was discussed at the October 2012 meeting. Tr. 155.

The next witness was . He was in the Teaching Fellows Program at L.I.U, has his Masters degree in special education and is enrolled in Bank Street for a second Masters degree in leadership. Tr. 160. He is dually certified for students with disabilities and Social Studies and is a fifth year teacher. Tr. 159.

Mr. testified that he special education co-teacher in U.S. History. Tr. 161. There are approximately 32 students in his class. Tr. 161. Mr. testified that is showing progress in U.S. History especially in his writing. Right . can write essays that will allow him to pass the Regents, but they are trying to move him beyond this and teach him how to elaborate more and make counter claims in his writing. Tr. 162. He also said that socially he works well in groups and has shown leadership ability. Tr. 162. He said there are approximately 13 IEP students. Tr.162. Mr. testified that in his classroom he uses Universal Design for Learning (UDL) and provides a lot of scaffolding. For instance, the essays they write are scaffolded so that outlines are provided indicating how each sentence should be crafted. Tr. 164. The students that don’t use the outlines are above standard. Tr. 164. Mr. testified that is transferring from using the scaffolded outlines to finding his own voice. Tr. 164. Also, to help . he is seated in the first row in front of the Promethean Board next to high level students. Tr. 164. Mr. testified that ’s first semester grade was an 80, second semester grade was a , and this semester he is between an 80 and an 85. Tr. 165-166. He said that since he is showing improvement and moving above standard and could have a 90 next semester based on his improvement now. Tr. 166.

Mr. testified that they have three different textbooks, in his classroom, all on different levels and differentiated depending on what skill they are working on in class. Tr. 168. When they are targeting “using evidence”, they give everyone the same material but some may be edited. Tr. 168. They use different techniques and models in teaching the class. One is called One Teach, One Conference where one will teach a lesson and the other teacher will be pulling students and conferencing about their writing. Tr. 169. They do station teaching where each teacher will take a station based on student levels. They also do small group instruction where students who are struggling will be pulled into a smaller group or students who need enrichment will be given it. Tr. 170. Mr. testified that does not fit into the lower group. He testified that . is excelling in the unit they are presently doing on the Civil War. Tr. 170.

On cross examination, Mr. stated that his co-teacher is Mr. . Tr. 178. He stated that he is aware that has a 1/9 grade decoding ability since it was on his eighth grade IEP as well as his fourth grade reading level. Tr. 182; P-J. Mr. said he read the IEP for the first time in late September, early October. Tr. 185. He said that when he gets a new student, he can see their IEP and evaluations on SEISIS. Tr. 187. He has seen Dr. Hope’s evaluation and is aware that and that he has a reading and spelling learning disorder. Tr. 188.

Mr. stated that the report cards work like progress reports and there are six. Tr.190; P-J. He stated that Exhibit J provides the student with progress on his goals since the goals are aligned with what they are doing in social studies and the common core and therefore it is reflected in his grade of 80. Tr. 194; D-3. He is not aware of any other type of progress report. Tr. 195. He testified there are meetings with the U.S. History department and the Special Education department. Tr. 198.

Mr. testified that as of yesterday and it goes from teacher to teacher, they pass it amongst themselves. Tr. 199. He said he was trained in its usage by the pathologist. Tr. 199.

Mr. stated that he was not aware as to whether received SETTS at Lincoln. Tr. 104. . has the opportunity for extended time, a scribe and separate location if he chooses to do so but that . has waived his right for these accommodations. Tr. 205. He also stated that he has given approximately five writing assignments or term papers since the beginning of the school year. Tr. 212. He testified that is on standard and does not have significant problems in his class. Tr. 213. The teachers go around the room to help students and check to make sure they are on task and he has not seen . off task or unable to start his assignment. Tr. 214.

In order to address .’s challenges in reading comprehension, and to make sure he is understanding the material, they use a T-chart. A T-chart has two columns, one is marked the main idea and the other column requires three pieces of evidence. Tr. 216. It’s a graphic organizer completed by the student. Tr. 217. Mr. testified that he has not noticed specific , nor with . Tr. 218.

FINDINGS

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 individual 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. 1499[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]).

The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. 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 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516 , 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; 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]).

A school district offers 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). 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, 20007 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 (20 U.S.C. § 1412 [a][5][A]; 34 CFR 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]).

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students needs (34 CFR 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 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 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 Childwith 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. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

The IDEA and State regulations require that a district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability (34 CFR 300.323[a]; 8 NYCRR 200.4[e][1][ii]; Cerra, 427 F. 3d at 194; Tarlowe, 2008 WL 2736027, at *6)

Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320). With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way (A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297, at *2 [2d Cir. Mar. 23, 2010]; see Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821-22 [9th Cir. 2007]; Houston Indep. School District v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]; see also Sumter Co. Sch. Dist. 17 v. Heffernan, 642 F.3d 478, 484 [4th Cir. 2011; Fisher v. Stafford Township Bd. of Educ., 2008 WL 3523992, at *3 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]). Accordingly, in reviewing claims challenging the implementation of an IEP under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" (A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; see Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811 [9th Cir. 2007] [holding that a material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled student and the services required by the student's IEP]; see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007] [holding that where a student missed a 'handful' of speech-language therapy sessions as a result of the therapist's absence or due to the student's fatigue, nevertheless, the student received consistent speech-language therapy in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program]).

It is clear that the October 2011 IEP provided for SETTS services, five times per week, one period each day for ELA. No SETTS services were provided at the beginning of the 2012-13 school year and no notification was given to the Parent that SETTS was not being provided. Infact, no SETTS services have been provided to date. Although, ICT classes and SETTS services are completely different program, he was in ICT classes for U.S.History and Living Environment but not in English where ELA related work would be done. All of the teachers were in agreement that he was not receiving SETTS services. In fact, the assistant principal, Ms. indicated that the first time . was brought to her attention was in the beginning of October 2012. Tr. 258. At the hearing, she stated that when . came into the school, they were not following the mandates for SETTS services on his IEP. Tr. 270. Dr. also clearly stated that “We were not providing…the SETTS services that the IEP was mandating. Tr. 346.

In addition, it is clear from the testimony of his teachers and the assistant principal that his testing accommodations were not being provided to him. Mr. testified that the Student has declined the use of a scribe and a separate location and that extra time is embedded into the exams. Tr. 100. Mr. also indicated that has the opportunity to receive accommodations but has waived his rights to receive them. Tr. 205. The Student testified that he does not get extra time for his exams even though he is supposed to get it. Tr. 67f2. In addition to the foregoing, as required, no progress reports were given to the Parent with respect to the goals on the October 2011 IEP.

As a result of the Impartial Hearing Officer’s decision from August 2012, the IEP was supposed to be modified to reflect that the child should have an FM unit made available to him. This FM unit was not made available to the student until the beginning of January 2013 and was functional for less than five days. Even when it was functional, it was not able to help due to the fact that only one microphone was provided in classrooms where two teachers were teaching and was not effectively addressing his issues. In addition to the FM unit, the Impartial Hearing Officer’s decision from August 2012 also required that the IEP be modified to include services. In this regard, the record indicates that the Student was issued an RSA in October in order to obtain these services.

In addition, an annual review was supposed to take place on or about October 25, 2012. It is clear from the testimony that the CSE meeting that took place on October 18th 2012 was a reconvene and its purpose was to modify the IEP to reflect the changes order by the hearing officer related to the addition of the unit and the addition of and services, but was not characterized as an annual review. Even if it can be argued that its purpose was also to serve as an annual review, no IEP was finalized at the meeting and no program recommendation was made. Both Ms. and Dr. testified that as a result, the District was not in compliance.

For all the foregoing reasons, the October 2011 IEP was not implemented during September and October of 2012, no new IEP was developed for the 2012-13 school year, the October 2012 IEP was never finalized, no annual review was conducted, and there was no IEP in effect for the 2012-13 school year. Although testimony was provided that the Student was in two ICT classes and two general education classes and was making progress at the time of the October 2013 CSE meeting, the IEP that was in effect at the time was not being implemented and the draft IEP developed at the October 2012 CSE meeting was not finalized. It should be noted that even though the program recommendations were never finalized, testimony was provided that the draft IEP also provided for SETTS services not ICT classes. Based on the foregoing, the District failed to provide T.M. with a FAPE for the 2012-13 school year.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). 8 NYCRR 100.9[e], 200.1[zz]; see 34 C.F.R. § 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100). Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see 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 relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F. 3D 111, 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at *23 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v. Bd of Educ., 2008 LEXIS 113149, at *38-40 [S.D.N.Y. March 6, 2008]). Likewise, State Review Officers have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of a Student with a Disability, Appeal No. 09-111 [adding summer reading instruction to an additional services award]; Application of the Bd. of Educ., Appeal No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; Application of a Student with a Disability, Appeal No. 09-044 [awarding "make-up" counseling services to remedy the deprivation of such services]; Application of a Student with a Disability, Appeal No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; Application of a Student with a Disability, Appeal No. 08072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE]; Application of the Bd. of Educ., Appeal No. 08-060 [upholding additional services awards of physical therapy and speech-language therapy]; Application of a Student with a Disability, Appeal No. 08-035 [awarding ten months of home instruction services as compensatory services]; Application of the Bd. of Educ., Appeal No. 06-074; Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-054). When devising an award of compensatory education, the award need not be a day-for-day award—"the inquiry must be fact-specific" and to accomplish the purposes of the IDEA, "the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place" (Reid v. Dist. of Columbia, 401 F.3d 516, 524 [DC Cir. 2005]).

In the instant matter, the Parent has requested “Compensatory SETTS for remediation at the [District’s] expense at the enhanced rate.” Based on the failure to implement the October 2011 IEP at the failure to finalize the October 2012 IEP and conduct an annual review to develop a new IEP, SETTS services shall be awarded to compensate the Student for the District’s failure to provide it for the 2012-13 school year. The Student shall receive five hours a week of SETTS services for ELA to compensate for the loss of the recommended program for 2012-13 school year and to help remediate his gaps in this area. .The District shall provide an RSA to the Parent for these SETTS services. If the Parent is unable to find a SETTS provider on the approved provider list that can provide SETTS services for ELA at the District rate to meet his needs, the Parent shall be entitled to obtain such services from another provider at an enhanced rate, if necessary.

Although the Parent has also requested other compensatory services including vision therapy, auditory processing therapy, and speech services, the hearing record and evidence does not indicate that the is Student’s entitled to these additional services. The Student already received an RSA in October 2012 for for the 2012-13 school year, three times a week for thirty minutes each time, as a result of the Impartial Hearing Decision from August 2012 (P-B) and was specifically authorized to obtain a Speech therapist who could give the Student auditory training. According the Student should be receiving this support and there is not an indication that she should be receiving additional compensatory services in this regard. With respect to the request for , no evidence has been presented which would require such services at this time.

The Parent has requested a “P-1 Nickerson letter for the District’s failure to evaluate the student in all areas of disability and hold an IEP meeting.” The Student is not entitled to a Nickerson letter. A “Nickerson letter” is a remedy for a systematic denial of FAPE that was imposed by the U.S District Court based upon a class action lawsuit, and this remedy is available to parents and students who are class members in accordance with the terms of a consent order(see R.E.., 785 F. Supp. 2d at 44). The Nickerson letter remedy authorizes a parent to immediately place the student in an appropriate special education program in a STAT approved nonpublic school at no cost to the parent (see Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ 270 [E.D.N.Y. 2010]). The remedy provided by the Jose P. decision is intended to address those situations in which a student has not been evaluated within 30 days or placed within 60 days of referral to the CSE (id. M.S. v. New York City Dep’t of Educ, 734 F. supp. 2d 271, 279 [E.D.N.Y. 2010]; see Application of the Bd. of Educ., Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00092). Application of a Student with a Disability, Appeal No. 12-039. Based on the foregoing, a P-1 Nickerson letter is not an appropriate remedy in the case at bar and T.M. is not a student addressed by this case. The evaluations are in the hearing record and have been referred to in the testimony presented.

As a result of the issues with , an assistive technology evaluation should be conducted to determine whether the is appropriate for . and/or whether other assistive technology will be necessary to address his needs.

Based on my findings in this matter, the District did not provide FAPE to T.M for the 2012-13 school year. Therefore, the CSE must reconvene within the next ten days to develop an IEP for the remainder of the 2012-13 school year and must also develop an IEP for the 2012-13 school year. In doing so the CSE must develop an IEP program that provides the Student with FAPE in the least restrictive environment to meet his unique educational needs (as a result as determined by the CSE) and provides him with academic benefit within a reasonable travel radius from his home. The CSE will consider all program recommendations including a deferral to CBST, if appropriate. In addition, in this regard, all testing and classroom accommodations that are provided to the Student in his IEP must be able to be provided to the Student in his placement, as mandated.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that

1) The District must convene a CSE meeting within the next ten days to develop an IEP for the remainder of the 2012-13 school year and the CSE must develop an IEP for the 2012-13 school year;

2) The District shall provide the Student with five hours a week of SETTS services for ELA to compensate for the loss of the recommended program for 2012-13 school year and to help remediate his gaps in this area. The District shall provide an RSA to the Parent for these SETTS services immediately. If the Parent is unable to find a SETTS provider on the approved provider list that can provide SETTS services for ELA at the District rate that will meet needs, the Parent shall be entitled to obtain such services from another provider at an enhanced rate, if necessary; and

3) The District shall conduct an assistive technology evaluation to determine whether the is appropriate for . and whether other assistive technology will be necessary to address his needs. Dated: May 1, 2013

_____________________________

ELISE B. KESTENBAUM, ESQ.

Impartial Hearing Officer

EBK:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

Parent Exhibits

No. Date Document Pages

A 10/2/2012 Impartial Hearing Request 3

B 8/13/2012 IHO Decision 13

C 4/4/2008 Parental Request to Reopen

Case for Testing 3

D 11/4/2008 Assistive Technology

Evaluation Referral 7

E 9/13/2011

Evaluation of Dr 18

F 9/11/2006 Neuropsychological

Evaluation of Dr. of 12

G 9/10/2008

Evaluation of Dr. 5

H 8/31/2010 Auditory Processing

Evaluation of Dr. 5

I 8/31/2010 1

J 10/28/2011 IEP 12

K 10/21/2011 Social History Update 2

L 10/26/2011 Level One Vocational

Interview 2 M 5/18/2011

Evaluation 5 N 10/25/2010 Parental Request to

Reopen Case 1

O 11/4/2009 IEP 9

P 3/21/2012 Acceptance Letter to

Education Center 1 Q 1/18/2007 Report

Update 3 R 1/25/2013 Report Card 2 District Exhibits 1 undated Memo 2

2 2012-2013 Student Schedule 1

3 11/30/2012 Student Report Card 1

4 10/28/2011 IEP 12

5 110/11/2012 Test Accommodations 1

6 10/2/2012 Impartial Hearing Request 2

7 Misc. dates Request e-mails 17

8 10/10/2012 Fax cover and RSA Form 2

9 10/9/2011 Notice of IEP Meeting 1

10 12/18/2012 Report Card 1

11 12/18/2012 Due Process Response 3

IHO Exhibits

I 3/25/12 Parent’s Closing Brief 25