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 13, 2012

January 18, 2013

Actual Record Closed Date: February 8, 2013

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 13, 2012

Attorney (Via Telephone) — Student

CFN, Director of Special Ed (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 18, 2013

Attorney — Student

Parents

Director, — Student

CFN, Director of Special Education, — DOE

Principal — DOE

Assistant Principal — DOE

INTRODUCTION

On November 7, 2012, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

On December 13, 2012, a pre hearing conference was conducted, and hearing scheduled.

On 01/18/2013 a hearing was conducted. A list of persons in attendance and the documents received in evidence, are attached to this order.

Documents sought to be entered by the Department of Education (DOE), referred to as Ex 12 through 15, were excluded as not being properly disclosed prior to the hearing. (T 36)

Parties jointly requested an extension of the compliance date, at hearing, on 01/18/2013, to allow receipt of the transcript. Extension was granted and compliance date was extended through 02/22/2013.

At the time of the hearing the student was , classified as , and recommended to a Collaborative Team Teaching class (CTT) for the 2010-2011 school year and an Integrated Co-Teaching Class (ICT) for the 2011-2012, 2012-2013 school years. (Ex1-1 & 1-2 & 5)

Parent hearing request alleges the Department of Education (DOE) failed to consistently implement the IEP and failed to properly allow parent participation in the IEP process, and failed to address student needs and provide the student with a free appropriate education for the 2011-2012, 2012-2013 school years. (Ex 1-3)

Parent seeks an order finding the student was denied a free appropriate public education (FAPE) for the 2010 through 2013 school years; violations of the DOE impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE and caused a deprivation of education al benefit; providing the student with an appropriate IEP and an increase in individualized attention and services; reimbursement for expenses incurred by the Parent for private enrollment in that the student be provided additional in the amount of 565 hours to be paid for by the DOE at a rate of $85.00 an hour plus any additional hours for DOE failure to appropriately educate the student for the period from November 7, 2010 through period of litigation, transportation to and from HLC via metro card for the parent and student, attorney fees and expenses. (Ex 1-3)

DEPARTMENT OF EDUCATION POSITION

DOE representative ) present the DOE position at hearing.

DOE WITNESS

) testified as the principal of the student’s current school .

Student has been in the school for about two years and was in a ICT class for 20112012 and is in a ICT class for 2012-2013. (T 45-46)

Student is doing “…quite well.” (T 46)

“…I mean he is not concerned discipline wise. He's doing his work.” (T 46)

“…he came to us I think at , and last year during the spring testing he received a in 1 ELA, and in math.” (T 46-47)

states that the student as made progress and that the current ICT program can best meet the student‘s needs. (T 47)

continued: “Simply, the teachers in the classroom, number one; number two, the program; and number three, he is doing his work in the classroom. He is actually, as you can see, succeeding in terms of his ELA and over succeeding with the math. I have not been given any concerns in terms of the teacher of there is lack of work or anything like that. So, I would assume that that is the best setting for him.” (T 47)

is aware that the student receives . (T 48)

believes the student does not require any additional service because it has not been brought to her attention. (T 48)

is aware of the 12/20/12 IEP meeting, but did not attend. (T 51)

testified that the student is on grade level in math, clarified to approaching grade level. (T 53)

Hearing officer asked the witness to review and explain the instructional levels of 3rd grade for reading and for math. (Ex 5-11) responded: “I would have to get back to you and have the IEP teacher discuss this with you. I'm not that fluent on IEPs. I don't want to give the wrong answer.” T 55)

DOE WITNESS

( ) testified as the Assistant Principal of the student’s current school, and supervisor of the class for 2011-2012, at . (T 57-58)

For the 2011-2012 school year described the student academics: “…He was struggling throughout the year but did fairly well at the end on the standardized tests.” (T 58)

had no knowledge of how the student is doing for the current school year (T 59)

has never worked directly with the student. (T 60)

could not recall teacher or parent concerns for the student at the present time. (T 6162)

PARENT POSITION

( ) presented the parent position at hearing, describing the student and summarizing the parent position.

Student has had an IEP in place since February 2010, student was evaluated at that time by psychiatrist, Dr. who diagnosed . Student is , , requires frequent redirection and refocusing to stay on task, performs at least behind in core academic subjects, and works best in a one-to-one or small group setting. Student has been continuously offered an ICT class without . (T 63-64)

Parent filed Due Process Complaint (DPC) alleging; “…among other things, that the DOE has deprived…(student)…of a free appropriate public education over the course of the last two years by failing to create adequate IEPs calculated to benefit him given his needs and by failing to consistently implement the IEPs that were created. In the spring and summer of 2012...” (the student attended)…the for one-on-one tutoring to make up for the attention he was not getting in school and to bring his performance up to grade level… determined…areas of weakness and current functioning grade level and designed a program specific to his needs. However…(student)…was only able to complete a small portion of the program before…forced to withdraw him for lack of funds, despite the progress he had been making.” (T 64-65)

Parent presently seeks reimbursement for costs incurred thus far for and direct payment for additional services at with transportation, and creation of an appropriate IEP with an increase in individualized attention and services at school. (T 65-66)

notes that the corporate name required as to payment is actually

PARENT WITNESS

) the student’s mother testified.

Previous to his current school, her son was in a charter school where he was to be retained for not standards. removed her son from the school, in part due to his passing standardized tests. (T 66-67)

states that in second grade concerns were raised regarding a , and that there is a history of in the family. (T 68)

describes her son as having a , . (T 69)

notes these issues at home and school. (T 69)

At the end of requested an IEP. An evaluation and meeting took place and it was determined that he would receive services and recommendation was made to a CTT (now ICT) class with individual and group . (T 69-71)

took her son to a private therapist who noted similar concerns regarding student focus, “underlying disabilities”, and diagnosed . (T 71)

continued to take her child to the private therapist when the need arose. (T 72)

attended the last IEP meeting (12/20/12) via telephone. (T 73)

raised concerns at the meeting, including . The team stated her son was making progress similar to that shown by . (T 73-74)

The team also noted a focusing issue. (T 77)

states that there are times sessions do not take place at the school. (T 77-78)

received some progress reports last year and feel it could be better with services. “…they really helped him come up fast in a short amount of months, from a level to starting level.” (T 78)

believes her son benefits most from one-to-one instruction. (T 78)

instruction began in March of 2012 through about August 2012, for four hours weekly over three days each week. (T 78-80)

recommended more hours, but could only afford four hours weekly. (T 83)

paid for these services as long as she could then had to stop the services. (T 79)

If funded, would take her son back to for a similar schedule of services. (T 80)

described the program progress:

“When he first started he was at level. He couldn't complete projects that were given to him, and he was very--what's the word I'm looking for--he wasn't independent. He didn't have any confidence. With those short amount of spans I need to help to pass his State exams for , because he had no confidence. He didn't want to try. He was afraid. Huntington gave him that independence and confidence and knowledge to be able to go in, take the test, and he had no problems. By the time we stopped taking him, that was like August, he was already approaching the level. So, between March and August that's good progress.” (T 81)

attended a parent teacher meeting and teachers mentioned focus, a need for redirection and that the student shuts down when he does not understand something. (T 82)

met with the counselor who indicated her son lacks confidence, is a respectful sweet boy, and who needs a little push. (T 83)

Her son’s self esteem has increased a lot since last year. (T 83)

MP recalls tests scores for last year in the range of 1 and 2 which went up to 3 after

HLC. (T 84)

recalls that the IEP team of 12/20/2012 was aware of the , but no paperwork was requested of her. (T 149-149)

PARENT WITNESS DAWN HELEN

( ) reviewed her professional and educational background and testified as the director of . (T 91)

is described as an accredited; “…provider of individualized instruction in reading, writing, study skills, math, subject tutoring and exam prep for students, kindergarten through 12th grade.” (T 92)

Certified teachers are hired in a variety of disciplines. (T 92)

The student first entered the program in March of 2012. (T 93)

described the testing battery given the student. These included oral and written tests. (93-94)

Scores are analyzed and recommendations are developed. (T 95)

reviewed student performance relative to the battery of test performed by . (T 96, Ex H & I)

detailed the results of the test battery.

Slosson Visual Motor Performance Test: “…suggests that he may have times in school when he is assigned, especially if it's multiple step assignment, he may not understand the totality of what's expected, and/or he may understand what the goal is, but not have a clear picture of how to get there. And so it suggests that…(student)…may need more support than other students in executing a multiple step task, that he might benefit from early feedback in his process and frequent feedback so that he doesn't get off on the wrong track and can be directed to notice certain components of the assignment that he may not have perceived on his own.” (T 100-101, Ex H 2-9)

The Slosson Oral Reading Test: “…indicates that he is probably having managing his work certainly independently, having trouble reading his homework assignments and understanding them, in class probably, maybe even understanding if other people are reading the material at . But even worse than that in a sense is the fact that no matter how far back we took him, even all the way to list P, which is for kindergarten, he was of any list. and something with accuracy, which then often translates into comprehension errors as well. And so this suggests that for…reading comprehension to improve we would have to take him all the way back to kindergarten level and build his fluency and his ability to think clearly about the questions that are being asked, and then to fill in the gaps that we find in his decoding skills and whatever associated vocabulary gaps may exist as well.” (T 103-104, Ex H 1)

Phonetic Analysis; “…problem comes when we get down to the bottom in section E, where he was asked to read multiple syllable words and wasn't able to do it at all. That's something that he should have been able to do by the , and now near the wasn't able do.” (T 106, Ex H 10-11)

The Rosner's Test of Auditory Perception; “…we need to work on tasks like this to help him improve his ability to hear each of the distinct phonemes in the word one at a time and to learn to begin to associate letters and letter combinations with each of those sounds.” (T 109, Ex H 12)

The Informal Reading Inventory; “…He's reading passages just below, slightly above the target grade level at the time of testing, and he really out of what he has read to develop and idea that's at all accurate about what it was that he just read and what he was supposed to take away from it.” (T 114 , Ex H 13-18)

The writing sample; “…But I would say that this writing is something that I would characterize as being more typical of a student late or early grade and not certainly in the latter .” (T 118, Ex H 19-20)

The California Achievement Test; “…he's at least where he ought to be in terms of vocabulary Understanding.” (T 119, Ex H 21-22)

Huntington Math Placement Exam; “…he is where he should be in terms of his math skills. If we can look at--there were only three pages where he did any work. The first one you can see he missed the final question, which was trying to get at his understanding of commutative property of addition. He didn't . And then in the next page you can see that his basic addition word problems he . On the third page was the basic subtraction problems, he missed the final two, where the problem was presented horizontally with two digits, and then where he was asked to use the inverse operation to check his work.” (T 121, Ex 23-47)

states that at the time of testing, March 2012, student math level was first grade and reading level was second grade. (T 122-123, Ex I)

states that a plan was developed for the student and is reflected as a program map. (T 123, Ex J)

reviewed, in detail, the program map and skills to be addressed based upon student testing. (T 124-131, Ex J)

Student has already completed 77 program hours . (T 132, Ex J-2)

states that the current rate, since 01/01/2013, is $95.00 hourly for . (T 133 & 144)

states that assessments are given periodically depending on subject area. (T 140-141)

Students are encouraged to come for as many hours as possible weekly to complete the program. (T 141-142)

FINDING OF FACTS AND DECISION

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

A student is offered a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman 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. 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]).

IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). 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, but 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). 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 v. Pawling Cent. Sch. Dist., 427 F.3d 186, 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]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; 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]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 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] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 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 also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]) IEP Developed for the Student IEP dated 01/31/2011, was developed while the student was in . (Ex B)

IEP indicates the student performs mostly on level for math and ELA. (Ex B-1)

IEP classified student as learning disabled, recommended an ICT class and mandates counseling service. (Ex B-5)

IEP indicates instructional and functional levels of 2nd grade for math and reading. (Ex B-8)

IEP was developed while the student was in , for the 2012-2013 (5th grade) school year on 01/20/2012. (Ex B, Ex 5)

IEP classified student as learning disabled, recommends an ICT class and mandates . (Ex 6-7)

IEP developed 01/20/12 states the student performed below grade level on NYS ELA and Math tests, indicates a reading level of 3rd grade, and indicates student is approaching grade level in math and below grade level in ELA. (Ex 6-1)

IEP notes the student works best in small groups, repetition of directions, requires verbal prompts and reminder to remain on task. (Ex 5-1)

IEP indicates instructional and functional levels of for math and reading. (Ex 610)

NYC DOE notified parent of mandated three year reevaluation via letter dated 09/27/2012. (Ex 2-1)

Parent consented to Additional testing via signature on letter dated 12/07/2012. (Ex 4-3)

Educational evaluation report was completed the same day as consent was obtained, on 12/07/2012 and states:

“…is a fifth grade student who continues to demonstrate academic progress. He still has the need to participate within the ICT classroom setting. The ICT setting will also be recommended for his Middle-School placement.” (Ex 3-1)

Report card for 1st marking period of fifth grade5th grade indicates the student is in all areas (indicated by 1 or 2). (Ex 7-2)

Student record indicates that on a testing date of 10/01/2012, the student had a reading grade , with an instructional reading noting the student “...would best be served by instructional materials prepared at the level.”

(Ex 8-2)

DOE date screens indicated reading and math levels in grade for the time the student attended . (Ex 1)

IEP developed on 12/20/2012, while student was still in , was not attended by any teacher or parent member. (Ex 5-13)

IEP classified student as , recommends an ICT class and does not provide for counseling service. (Ex 6-7)

IEP does contain similar goals as indicated on the previous IEP, though no counseling was recommended. (E (Ex 5-3)

IEP adds that the student learns best through one-to-one instructions, as well as small group instruction. (Ex 5-1)

IEP again notes the student is approaching grade level in math and level in reading. (Ex 5-1)

IEP indicates instructional and functional levels of for math and for reading. (Ex 5-11) FAPE and IEP for 2011-2012 and 2012-2013 School Years

No explanation was presented by the DOE, or contained in the documents, to explain the development any IEP entered into evidence.

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

The summer report entered into evidence does not provide enough information upon which to create or understand the creation of the most recent IEP. (Ex 3, & 5)

Documents submitted at hearing actually indicate the student has been consistently level and does not support or explain the upward amendment functional levels of the 01/20/2012 IEP, to the and functional levels of the 12/20/2012 IEP. (Ex 6-10 & 5-11)

No teacher or parent member attended the meeting.

Although not required by the IDEA (20 U.S.C. § 1414[d][1][B]; see 34 C.F.R. § 300.321), in some circumstances New York State law requires the presence of an additional parent member at the CSE meeting that formulates a student's IEP (Educ. Law § 4402[1][b][1][a]; 8 NYCRR 200.3[a][1][viii]; see Bd. of Educ. v. R.R., 2006 WL 1441375, at *5 [S.D.N.Y. May 24, 2006]; Bd. of Educ. v. Mills, 2005 WL 1618765, at *5 [S.D.N.Y. July 11, 2005]; Application of a Student with a Disability, Appeal No. 11-042; Application of the Dep't of Educ., Appeal No. 09-024; Application of the Dep't of Educ., Appeal No. 08-105; Application of the Dep't of Educ., Appeal No. 07-120; Application of a Child with a Disability, Appeal No. 07-060; Application of the Bd. of Educ., Appeal No. 05-058). Parents have the right to decline, in writing, the participation of the additional parent member at any meeting of the CSE (see 8 NYCRR 200.5[c][2][v]).

In the instant case, a parent member may have alerted the parent of the missing teacher member of the team and allowed the meeting to continue at another time.

There was no explanation of how the goals were appropriate for the student. goals are included, yet no counseling service is provided.

Nothing contained in the IEP addresses the issue raised in recent student records . Recent student record, 10/01/2012, indicates the student had a reading grade equivalent of with an instructional reading level of noting the student “...would best be served by instructional materials prepared at level.” (Ex 8-2)

No explanation was offered as to how the recommended placement was made. Except by the contents of the Educational Evaluation Report, dated 12/07/2012, which stated: “… The ICT setting will also be recommended for his Middle-School placement.” (Ex 3-1)

It appears that the DOE had predetermined the recommendation and therefore did not see the necessity to convene a team to create an IEP, allow parent participation, and make a well informed recommendation. Parent participation certainly would have resulted in discussion of the services and review testing materials of March 2012. (Ex H)

No evidence was provided as to what materials were relied upon to justify the recommendation for the ICT class on any IEP.

DOE witness testified the student: “…came to us…at and last year during the spring testing he received a in 1 ELA, and in math.” (T 46-47)

No evidence was presented that indicates the student was performing at a , which would indicate grade level performance. (Ex D-1, 7-1)

Report cards and Progress reports for 2011-2012, and 2012-2013 indicate and (below or approaching ). (Ex D, E & F)

Though not indicated on the current IEP, RD stated the student receives counseling. (T 48)

I find that the IEP created on 12/20/2012 for the end of the 2011-2012 school year and the 2012-2013 school year did not include an accurate statement of the student's present levels of academic achievement and functional performance, nor did it consider the most recent evaluation of the student. Additionally, the IEP did not have a basis to identify or address the student’s academic, developmental, and functional needs, nor establish annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum.

Compensatory Relief

Compensatory 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 relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see Newington, 546 F.3d at 123 [stating that the "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., 108 LRP 49659, [S.D.N.Y. March 6, 2008], adopted at 50 IDELR 225 [July 7, 2008]). Likewise, SROs have awarded compensatory "additional services" to students who remain eligible under the IDEA 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 services under the IDEA by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO 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]; see, e.g., Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091.

The purpose of an award of additional services is to provide an appropriate remedy for a denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [DC Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, 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"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "(a)ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]; Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10-052). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "(c)ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address (the student's) educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puyallup, 31 F.3d at 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

Parent sought out outside services to address her concerns regarding her child, via .

instruction took place from March of 2012 through August 2012, for four hours weekly over three days each week. (T 78-80)

Services were paid for as long as the parent could provide funds. (T 79)

cooperated with the school, attended requested meetings, and raised her concerns at parent teacher and counselor meetings. (T 82-83)

A proper IEP meeting should have discussed and addressed the HLC testing and services , as well as parent concerns.

confirmed the student delay at the time of testing. In March 2012, student math level was first grade and reading level was second grade. (T 122-123, Ex I)

staff developed a plan for the student as a program map. (T 123, Ex J)

services were designed specifically for the student based upon student testing. (T 124-131, Ex J)

Student completed and parent has paid for 77 program hours at . (T 132, Ex J-2 & K)

Current rate is $95.00 hourly. (T 133 & 144)

I find the program is designed to meet the individual needs of the student and would provide an appropriate remedy for a denial of a FAPE to the student for at least the 2011-2012 and 2012-2013 school year. services appear to 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.

Related Services Transportation

As noted above, transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

I find the provision of transportation to the student and caregiver are reasonable under the circumstances.

ORDER

1. I find the DOE failed to provide the student with an appropriate education for the 2011-2012 and 2012-2013 school year.

2. The DOE shall pay for up to $53,675.00 for 565 hours of services at the rate of $95.00 per hour. Said Services must be provided to the student within one year from the date of this order. Payment to be made to , d/b/a .

3. The DOE shall immediately issue necessary forms to the parent to authorize payment to parent’s chosen provider, DOE shall pay said provider within thirty days of DOE receipt of properly invoiced services provided.

4. The DOE shall reimburse parent up to $6,815.00 for previous payments to HLC.

5. DOE shall issue parent and child metro cards so that each can travel to and from the ordered HLC services.

6. This decision is subject to appeal and review by the State Review Officer. Dated : February 20, 2013

DANIEL AJELLO, ESQ.

Impartial Hearing Officer DA: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

A Doctor's Letter, dated 4/22/10, 1 page B IEP, dated 1/31/11, 10 pages C Class Roster, 2011-2012 D 2011-2012 Report Card, 2 pages E Progress Report, dated 4/2012, 8 pages F 2011-2012 Student Assessment, 6 pages G Email, dated 1/11/2013 from OPT, dated 3/16/12, 2 pages H Testing, dated 3/2012, 47 pages I Student, Academic Evaluation Results, dated 3/19/12, 3 pages

J , Program Map, dated 3/17/12, K , Financial Record, 1/10/13, 4 pages

DEPARTMENT OF EDUCATION

1 Request for Impartial Hearing, dated, 11/7/12, 3 pages 2 Letter Regarding 3-year Evaluation, dated 9/27/12, 1 page 3 Educational Evaluation Report, dated 12/7/12, 2 pages 4 Assessment and Planning Document, dated 12/7/12, 3 pages 5 IEP, dated 12/20/12, 13 pages 6 IEP, dated 1/20/12, 12 pages 7 Report Card, dated 9/2012, 2 pages 8 2012-2013 Student Reports, 6 pages 9 Attendance Records, 2008-2011, 1 page 10 Notice of Scheduled Meeting, dated 12/7/12, 2 pages 11 Data Printout dated 1/10/13, 4 pages 12 Excluded 13 Excluded 14 Excluded 15 Excluded