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: January 29, 2013

March 19, 2013

May 13, 2013

Actual Record Closed Date: July 19, 2013

Hearing Officer: Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 29, 2013

Attorney — Parents

Dept. Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 19, 2013

Attorney — Parents

Dept. Designee Grandmother — DOE

Director Teacher Dep’t of Education — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 13, 2013

Attorney — Parents

Dept. Designee Grandmother — DOE

Dr. Psychologist — Parents

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case #142933. The hearing was conducted at the impartial hearing office, New York City Department of Education at 131 Livingston Street, Brooklyn, New York. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its designees, and the parent was represented by their attorney.

BACKGROUND

The student is currently a old male, hereinafter referred to as “ ”, who is classified as “ ”. On June 6, 2012 the Committee on Special Education (CSE) met to discuss the educational needs to develop an individual educational program, (IEP) for the child,.

THE PARENT’S POSITION

The Parent alleges that the annual goals as stated on the child’s IEP were not appropriate and that the DOE failed to offer a free and appropriate public education (FAPE) in compliance with the Disabilities Education Improvement Act of 2004, Section 504 of the Rehabilitation Act of 1973, 20 USC 1983 and failed to recommend an appropriate placement.

The DOE’s failure was both procedural and substantive in nature; the DOE failed to provide DA with the special education services he required during the 2010-2011 school year, and prepared inappropriate educational programs (“IEPs”) for the 20102011, 2011-2012 and 2012-2013 school years. Additionally, the DOE failed to appropriately although his need for has been recognized by the DOE, he has not been given an since January 2008. (Ex. H).

Parents maintain that they attended all meetings, provided documents, were cooperative and are seeking an order that be provided with additional remedial services at the to and from the , hereinafter referred to as ”, that the DOE provide related services for occupational therapy and pay for the cost of diagnostic testing and registration fee’s for the .

THE DEPARTMENT’S POSITION

The DOE maintained that it provided, the child hereinafter referred to as DA with a FAPE and recommended an appropriate placement; that the Parent has failed to establish that the educational program they selected was appropriate and that equitable considerations do not favor the parent.

THE DEPARTMENT’S CASE

Ms. testified that the was approaching level during the 2012-2013 school year

(T. page23). The DOE designee noted that Dr. testified that from 20120 to the present time that progress has been made. More particularly, had made progress and gained between 7 months to a year and four months in reading; one year in spelling and six months to one year in math fluency/calculations( T. page 110). Additionally, it was argued by the DOE designee that there was no evidence that required and no evidence that the lack of services impeded s academic performance and prevented access to the curriculum.

The DOE was of the position that the child’s grandmother, hereinafter referred to as “ acted unreasonably, more particularly that instead of informing the district of her alleged difficulties in retaining related service providers, that she refused to inform the contact person listed on the P-3 form and waited two years before acting to remedy the situation. testified that that she was never offered a placement (T. page 153); however exhibit , indicated that that a placement offer was made for , where services would have been provided. Furthermore returned the document accepting the services, but refused the site that was recommended and requested a P-3.

For these reasons it was argued that the equities do not favor her. As stated above, the DOE maintained that it provide a contact person, Ms. listed on the P-3 letter with a phone/facsimile number and address to if she had difficulty; it was argued refused to reach out for assistance.

The DOE designee opined that the s IEP addressed his present levels of performance; his deficits in reading and math, as . The deficits were described as the inability to do “ to remain on task. Furthermore, the goals listed on the IEP addressed .

The DOE representative stated that one of the goals was to improve reading skills; this would be implemented by working on his sound vocabulary. In math, a plan was provided improve his word and ability to explain his solution and addressed by his math goals through the use of objects, such as tools of measurement, time and money. Regarding social development the IEP addressed s needs by the recommended counseling services. Additionally, the IEP included goals to ability to remain on task. It was the DOE’s position that by providing the small student to teacher ratio along with the classroom paraprofessional per the IEP, that assistance and strategies would be provided to keep on task ( Ex. 6.2).

The DOE designee stated that the Parent’s request for services is not appropriate. As per the testimony of Ms. , it was not established that she has a background with students with special needs. It was argued that did not state that “special education” staff would be working with when asked if students similar were able to achieve target grades, she stated “a handful”. Furthermore, ’s testing of the student was improper, as there was no evidence that instructions “read aloud”; it was argued that on that basis alone, the student had to read the directions himself and the validity of the testing was questionable (t. page 86)

Furthermore, has failed to provide supports recommended by the psychologist; Dr. recommended a multi sensory approach such as the “Wilson Method” to make progress (T. page b13-114). Ms. was unable to identify such a research based program (

T. page 89). Additionally, Dr testified that that such items as “Books on tapes” and assistive technologies should also be implemented (T. page114); instead, the teacher testified that that the use of computers and different programs were used in the classroom

(T. page 26).

THE PARENT’S CASE

who is classified as having a learning disability, is nearing the end of the third grade, and attends a class in a community school. (Tr. 139-140, Ex. B). He was first diagnosed with ”) when he was three years old. (Ex. D-5). During the 2010-2011 school year he attended , a private school, as a second grader, in a classroom with an teacherto-student ratio.2 (Ex. G-1; Tr. 128-129). His IEPs governing that school year required that he receive ten periods per week of Special Education Teacher Support Services (“SETSS”) and 2 weekly 30-minute sessions of . (Exs. E-1, E-11, D-1, D-13, Ex 2). On October 27, 2010, the DOE performed a , (Ex. G), which revealed that DA tested cognitively in the low average range, with a full scale IQ (which was slightly lower than, but still consistent with, his 2008 scores). (Ex. G-2). Academically, however, his overall skills fell within the kindergarten range. (Ex. D-3). The CSE reconvened on November 23, 2010, and recommended that one thirty-minute counseling session per week be added to his program. (D-2, D-13).

The DOE provided the DA’s grandmother, with authorization letters and lists of DOE-approved SETSS and OT providers, so that she could arrange for the provision of these services. (Tr. 131, See, e.g., Ex. 4, Ex. 7). SS contacted all the providers on the lists, and received no response, or was told that the provider was either too busy or otherwise unavailable to provide the services. (Ex. K; Tr. 132-134). She contacted a Ms at the DOE to ask for help in obtaining these services, and was given additional lists containing the same provider names. (Tr. 134-135). SS stated that she exhausted every possible avenue provided by the DOE, but was unable to secure SETTS or for the 2010-2011 school year. (Tr. 135, Ex. G-1, G-3, G-4). By the end of the year, had missed out on approximately 360 sessions of SETSS and 72 sessions

Without special education support, failed to make any academic progress and was retained in the second grade. (Tr. 135, 137). The CSE reconvened on August 31, 2011, (Ex. C-9), and recommended that he be placed in a community school with related services , including and individual counseling sessions. (Ex. C-5 to C-6). However, despite the fact that the IEP recommended that receive and included annual OT goals, directed at improving his , was not included a related service. (Compare Ex. C-2 and C-

4 to C-6).

Additionally, it was argued that there no new evaluations were provided by the DOE to justify the removal of from his IEP. The DOE’s version of the IEP did not match the grandparent’s, and was apparently prepared after the first half of the school year, as it contains progress reports for the first and second marking periods. (See. Ex. 5.3 to 5.5). While this version of the IEP continues to recommend OT, the annual OT goal has been deleted. (Compare Ex. 5.2 to Ex. 5.3 to 5.5v) testified that she never saw this version of the IEP. (Tr. 141; Tr. 143). According to may have assessed in the classroom, but there is no corresponding report with findings; continues to have difficulty with fine . (Tr. 138-139; Ex. O-17).

was deleted from the IEP, and were changed from individual to group sessions. (Ex. 5.6); there was no explanation provided by the DOE to account for these discrepancies and SS testified that she did not receive progress reports other than a report describing behavioral problems (Tr. 143-144). stated that in August 2011 she sought private help for her grandson, taking him to the of (“ ) for diagnostics, treatment and therapy. and diagnosis, but also noted indications of and (Ex. Q). DA was recommended to take to help with his he has taken since that time. (Tr. 107). SS stated that she continues to , where his educational progress is monitored , his and his by Dr. his . (Tr. 105-107). According believes that should be (Tr. 145).

The CSE reconvened in June 2012, however, it is Mr. ’s position that it was improperly constituted, consisting of only of ’s classroom teacher, and a third individual who SS thought was a classroom paraprofessional; the listed on the signature sheet of the IEP did not attend the meeting, but someone named attended in her place. (Ex. B-5; Tr. 152- 153, Tr. 156-157, Ex. B-11; Ex. 6.13). Parent’s counsel maintained that it was unclear why was recommended, as did not have a evaluation; moreover there is no evidence to suggest he was ever provided therapy sessions. At the time of the IEP meeting had a reading level at the beginning first grade level. (Tr. 119). Overall, his academic skills were described as falling “within a first grade level.” (Ex. B-1). The IEP described as having “shown improvement academically, but not to his full potential.” (Ex. B-1). He was described as developing “reading readiness skills” and having and explaining how he arrived at the solution.” (Ex. B-1); he was described as being when given a directive.” (Ex. B-1) Nevertheless, , the CSE concluded that he “has potential to exceed on grade level.” (Ex. B-1).

The ARIS documents listing all his test scores do not reference his having achieved a level D; this assertion appears only in the present levels of performance section of his 2012-2013 IEP. His individual scores ranged from lows math fluency and equivalent in reading comprehension to highs of applied problems and in writing samples, but most other scores fell within the grade range. (Ex. F-6). SS expressed concerns to the CSE about his failure to progress. She was “baffled” that was being promoted to but was told that the CSE did not want because he had . (Tr. 140). In opinion, promoting him under those circumstances would only create anxiety and would result in his continued failure. (Tr. 140). Despite the Committee’s acknowledgement that needed additional classroom support in order to meet his potential, the CSE recommended that he continue with the same educational program from the prior year. No additional classroom supports were recommended, and

Shortly after the conclusion of the 2011-2012 school year, DA was evaluated by Dr. . (Ex. F; Tr. 105-107). She stated that even though he , he continued to and was very concerned about . (Tr. 108). He was administered the Woodcock Johnson-III Tests of Academic Achievement (WJ-III) and, consistent with the findings of the CSE described on the 2012-2013 IEP, he was found to be in most academic areas. (Ex. F-6; Tr. 108-110). Dr. noted that he had made academic progress since his prior evaluation in 2010, she opined that “this improvement (varying range from grades) is not adequate for the two years that have passed since the previous testing,” particularly given that his intelligence was in the low average range. (Ex. F-3; Tr. 110). She testified that someone with his cognitive profile, if given appropriate classroom supports, “should either be at grade grade level, depending on how well he is able to master the material . . . certainly he should be able to pass his classes and read maybe a little below grade level and do math a little but nothing like this.” (Tr. 111-112).

Parent’s counsel maintained that the DOE presented very limited testimony at the hearing, and their sole witness was , who has teacher since September 2011. (Tr. 2232). Ms. Thurston testified that level” and stated that he “still has with ,” but she believed he had “improved a lot in his math.” (Tr. 24). On cross-examination, however, she admitted that, on multiple occasions, she that he was “really struggling” in reading and math, and that were ongoing. (Tr. 28-29). She admitted that his performance on online math testing was below level and that the test indicated that he was “at risk.” (Tr. 29-30’ Ex. I-2). has been meeting with Ms. on an ongoing basis and she told her that DA “way behind” and “needs a lot of assistance (Tr. 137-138). Despite was for the designed to help student prepare for New York State testing. (Tr. 146-147). Ms. does not receive progress reports , and was unable to determine whether is receiving his counseling sessions as required; she met with his guidance counselor on only one or two occasions (Tr. 149-151).

continues struggle academically; as of January 23, 2013, he was reported to be on a reading which is still in the range. (Ex. P-1; Tr. 119). State testing reveals he made little in any subject during the first half of the school year, and a level in reading and math. (Ex. I-7 to I-8; Tr. 123-124). In language arts, the same state test reveals he has actually regressed from grade level in October 2012 to a below second grade level in January 2013. (Ex. I-8; Tr. 124).

On the second day of hearing, the DOE brought in a report card dated May 10, 2013, which indicated that as of three days prior to the hearing date, had made no progress in reading and writing, nor has he met standards in any other subject. (Ex. P-2). Counsel stated that his was the first time that SS had seen this report card, and, although it was submitted by the DOE, it was added to the Parent’s Exhibit P. (Tr. 145). Mr. stated that the DOE failed to implement critical aspects of his IEP during the entire 20102011 school year, when he was entitled to ten periods per week of SETSS and one period per week of but received none of these. Although the DOE is entitled to provide parents with authorizations to obtain these related services on their own, parents are limited to using the providers that are authorized by the DOE and given to them on a list. Not a single provider on any of the lists given was available to provide the services, and SS’s exhaustive efforts in trying to secure these services are well-documented. (See Ex. K; Tr. 131-135).

her grandson on August 28, 2012 to be assessed academically. (Tr. 147-148; Exs. M, N and O). , the , testified regarding the purpose of assessments: [W]e begin with testing of the student to determine the highest level of mastery that that student has achieved prior to enrolling to identify whatever gap there is in that student’s academic skills between their mastery level and the level at which they’re expected to perform in class and then we use that information to devise a program of instruction that is uniquely suited to address the needs that are revealed in the testing, so that when they come for instruction, we can begin at a level where they’re able to be successful, where there’s a certain level of challenge, but not frustration, so that we can address each of the concerns that the testing brings up. (Tr. 36-37).

Ms. stated that was performing at in sight word reading, (Tr. 42-44; Exs. M1, O-9), which signified that “he would have tremendous difficulty just decoding any text written at the third grade level, and or comprehending it.” (Tr. 44). He also performed poorly on a test designed to measure proficiency in phonics and decoding, exhibiting difficulties on a number of skills ranging level (Tr. 44-49, Exs. M-1, O-10, O-11), which indicated that “the act of decoding a task is so difficult for him, that it occupies , and he’s not even successful in decoding a text at his current grade level (Tr. 49). On a test relating to auditory processing, DA performed on a third grade level, indicating that this was a relative strength for him. (Tr. 49-51, Ex. O-12).

performed poorly on a reading comprehension test, making multiple errors in reading and failing to comprehend passages given to him at the pre-primer or emerging reader level, and performing progressively worse on primer (kindergarten) and first grade level texts, (Tr. 53-56; Ex. O-13 to O-15). As per counsel, this correlated with his performance on the reading comprehension portion of the California Achievement Test, which is a nationally-normed test administered in multiple-choice format. (Tr. 58-61, Ex. O-18 to O-28). He was given the first grade level version of the test, and performed relatively well on the listening comprehension performance of the test (which was consistent to his performance on the auditory processing assessment) but struggled with the reading portion, performing overall at equivalent. (Tr. 59-61).

His writing sample was “practically unintelligible” and indicated that “to the extent to which his performance in school is being evaluated through his writing, he would be doomed to fail.” (Tr. 56-58; Ex. O-16 to O-17). The math assessment administered was designed to test skills correlating to the latter-half of first grade. (Tr. 61-62). He performed poorly on this test as well, having “mastered kindergarten level skills and one of the first grade level skills, but nothing beyond that.” (Tr. 64; Exs. M-2, O-31 to O-43). Overall, she found was “severely behind in terms of his academic skills, unable at this point to meet expectations in a third grade classroom and unlikely to do any better absent input that allows him to move from where he really authentically is right now in terms of his skills towards the target.” (Tr. 65).

As Ms. explained, in order to to “make meaningful progress,” would have to “go back to a level where he can actually do the work, and begin from there to build the skills he needs to take him to the target grade level.” (Tr. 61). Based on the results of the assessments, Ms. developed a program that was designed to do as described above; she selected curriculum in each of the core categories where he was below grade level “that will help him move from where he’s currently comfortable and has mastery towards a goal of third grade.” (Tr. 66). As per counsel, this individualized program sets forth an estimated number of hours needed to progress from those levels to a third grade level in phonics, decoding, reading fluency and comprehension, vocabulary, writing and math. (Ex. N). Ms. estimated that should receive 593 hours tutoring as follows: 140 hours in math; 30 hours in writing, 60 hours in phonics, 198 hours in reading comprehension skills and 150 hours in vocabulary skills. (Ex. N). She also recommended 15 hours in study skills to help reinforce good study habits which would lead to better acquisition and retention of new knowledge. (Ex. N; Tr. 68-81). At the completion of this program would be functioning academically at a sixth grade level. (Tr. 133-135). Ms. testified that this type of similar profiles who were able to achieve their target grade levels as well as achieve passing scores on city and statewide testing. (Tr. 82-83).

Counsel opined was denied approximately 360 periods of SETSS instruction during the 2010-2011 school year. failed to make meaningful academic progress during the following two school years; accordingly counsel is requesting an award of 360 hours of tutoring, claiming that it would only represent a partial compensatory remedy. Based upon the DOE’s own last-minute submission latest report card, it is clear that academically, has remained stagnant and may possibly be promoted to . Without the opportunity to learn the core foundational skills necessary to move forward academically, will likely fall farther and farther behind his peers, even though cognitively he has the ability to meet or approach grade level standards. (Tr. 111-112).

Mr. stated that ’s approach to remediating ’s lack of progress is focused upon allowing him to achieve the specific skills he should have, but failed to achieve due to the DOE’s failure to provide him with a FAPE. Counsel opined that these numbers of hours estimated by Ms. were based on average times of completion for students; it is reasonable to assume that some areas might be mastered quicker than estimated, and others might take longer, however, at the same time, the hours will take up to two years to complete, during which time the academic expectations placed upon will continue to increase. (Tr. 87-88, 92-94). Dr. believed is appropriate, and testified that needs intensive, specialized tutoring such as the program in order to make academic progress. (Tr. 112-113

Counsel for the child stated that must be placed in an appropriate educational setting which will is able to address his academic deficits and therefore enable him to begin to make real academic progress in school. Clearly the special class in a community school setting is not appropriate for , as it has been tried for nearly two years, only to result in academic stagnation.

Dr. is the founder and co-director , which is an early intervention preschool special education and mental health services organization, and which receives all of the policies and rules related to the DOE and special education (Tr. 103, 117-118). She evaluates children of all ages with regard to their disabilities and special education needs. (Tr. 103-104); provides students as needed (Tr. 104-105). She participates in many IEP meetings on behalf of her patients and testifies in impartial hearings. Dr. Hittelman opined that, because is so far behind academically, he is going to need a “very specialized kind of classroom where they are going to be able to work on his grade level.” (Tr. 113-114). She noted that the assignments that was given in school this year are “way above his level,” which is consistent with policies relating to the core curriculum being taught in community schools. (Tr. 114, 115). Based upon her experiences with the DOE, she has found that teachers are having a difficult time modifying the core curriculum to match each student’s level in community school class.

Counsel argued that a more restrictive District program would not be appropriate because, although, academic curriculum could be modified downwards in such a setting, he would not be socially and behaviorally matched to the District classroom profiles. Dr. testified that: “I am told over and over again, by the school is for very and that has been my experience. Children are being moved out of unless they are extremely impaired. would be totally inappropriate at a District program.” (Tr. 117). The program that because, as she explained, the DOE does not have a classroom setting that would be appropriate to address his academic needs while fulfilling the requirement that he also be placed with students that . (Tr. 114-118). In addition, Dr. recommended that receive an assistive technology assessment, “to see if he would benefit from books on tape, some kind of talk to write, you know something that maybe reads for him. We have some very - there are some very nice apps now on iPads that help the kids keep up academically while they are being taught how these very basic skills, which don't usually happen in third and fourth grade.” (Tr. 114).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A central purpose of the IDEA is to ensure that students with disabilities have available to them a FAPE (20 USC. 1400 [d) [1]; Board of Educ. v. Rowley. 458 U.S. 176, 179-181, 200-01. FAPE includes special education and related services designed to meet the student's, unique, needs, provided in conformity with a comprehensive written IEP (20 U.S.C.1401 [9] [D]; 34, RCNY 300.17. A board of education may be required to (J Education, 471 U.S. 359 [1985]; Florence County School. District Four v, Carter, 510. D'S. 7 [1985]). The first step is to determine whether the district offered to provide a FAPE to the student. FAPE is offered to a student when (a) the board of education if complies with the procedural requirements 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 at 206-07). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to FAPE, (b) significantly impede the parents opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C 1415 [f] [3] [E] [iii]

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes .annual goals related .to those needs. (Application of a Child with a Disability, Appeal No. 07-008, Application of the Ed. of Educ., Appeal No. 06-076). The IDEA. "expresses a strong preference for children with disabilities to be educated to the maximum extent, appropriate with their non disabled peers" See Walczak v. Union Free Sch. Dist142F.3d 119, 122 (2ndCir. 1998).A FAPE must be provided to a child with disabilities in the "least restrictive setting consistent with the child's needs (see Perricelli v. Carmel Cent School. Dist, 2007 WL 465211, at 10* [SD.N.Y. Feb. 9, 2007], citing Walczak. 2 F.3d at 122). In determining an appropriate placement in the LRE; the IDEA requires that children with disabilities be educated to the maximum extent appropriate with children who are disabled and ·that special classes, -separate schooling or other removal of children" with. disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C.1412 [a] [5] [5J [AJ; 8 NYCRR 200.6 [a] [1]; see also Bay Shore Union Free School. Dist. T. 40SF.Supp. 2d 230,239-40 (E.D.N.Y. 2005.) In determining whether a student can be educated in regular classes, it is not necessary to establish that the student will learn at the same rate. or master as much of the regular education curriculum as his or her disabled peers (Daniel R.R. v. State Bd. of Educ. 1036. 1044 [5th Cir, I].

The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v .Bd of Educ. 1204, 1213 [3rd Cir. 1993]).The Daniel R.R. Oberti test for determining whether a school district has complied with the LRE requirement consists of two prongs: 1) whether the student can be educated in a general education class with the aid of supplemental aids and services; and 2) whether the school district has mainstreamed the student to the maximum extent appropriate (Daniel R.R. at 1048). In determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, several factors should be considered including:

1) whether the school district has been reasonable in trying to accommodate the child in a regular classroom; 2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class and 3)the possible negative effects of the inclusion of the child on the education of the other students in the class (Oberti, at 121-128).

The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes, e.g. language and role modeling with no disabled peers (Geer v. Rome City School, Dist.. 950 F.2d 688 [11th Cir, 1991]).

In order for this hearing officer to determine whether the District provided a FAPE, it is necessary to review the composition of the IEP Committee. An IEP prepared by an invalidly composed CSE is a nullity, and the school district cannot meet its burden of that its recommended program was Application. of a Child with a Disability. Appeal This hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §1404 et. seq.seq. (“IDEA”). “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education ... designed to meet their unique needs ... [and] to ensure that the rights of children with disabilities and parents of such children are protected.’” DA.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 223 (2d. Cir. 2012) (quoting 20 U.S.C. § 1400(d)(1)(A)-(B)). The IDEA mandates that participating states provide students with disabilities with a FAPE tailored to meet the unique needs of the student and that is reasonably calculated to enable a student to receive educational benefits. Board of Educ. v. Rowley, 458 U.S. 176 (1982). “‘To meet [the IDEA's] requirements, a school district's program must provide ‘special education and related services[,]’ . . . tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.” .DA.H., supra, 685 F.3d at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir.2007) and citing 20 U.S.C. § 1401(9)). “These services must be administered according to an individualized education program . . . which school districts must implement each year for each student with a disability.” Id. (internal quotations omitted).

The DOE bears the burden of proof of demonstrating the appropriateness of the IEP. See D.A.H., supra, 685 F.3d at 224-25; N.Y. Educ. L. § 4404(1)(c). “As the governing New York State statute explains: The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing.” Id. at 225 (quoting N.Y. Educ. Law §4404(1)(c)). See also SRO 11-053 at p. 4.

The DOE clearly did not meet its burden of proving that it developed appropriate IEP for , or that it even provided the special education services that the IEP required. Rather, the preponderance of the evidence demonstrates that the programs provided to DA by the DOE have been, and continue to be, inadequate to address his individual special education needs, and have resulted in being denied a FAPE.

The IEP has been described as the “centerpiece” of the IDEA system. Murphy v. Arlington Cent. Sch. Dist., 297 F.3d 195, 197 (2d Cir. 2002). This key document “sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance and describes the specially designed instruction and services that will enable the child to meet those objectives.” D.D. ex. rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d. Cir. 2006) (internal quotations omitted). Under the IDEA, for a child’s IEP to be adequate, it must be likely to produce progress, not regression, and must afford the student with an opportunity greater than mere trivial advancement. D.A.H v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 224 (2d. Cir.

2012) (quoting T. B. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009) (internal quotations and citations omitted).

Notably, the 2010-2011 IEP provides little information regarding the specific nature reading needs, almost no information on math deficiencies, and his goals fail to address his phonics, problem-solving and basic arithmetic issues. (Ex. D-6 to D-7). One of the goals in this IEP targets math word problem skills when he was still unable to add or subtract basic numbers. (Ex. D-8). I agree with Parent’s counsel that There are no goals related to either , although both were included as related services. (Ex. D-13).

The 2011-2012 IEP is also substantively deficient. It describes as a “non-reader” but does not adequately describe or address the nature of his specific reading deficits. (Ex. C-1). It is identical in many respects to the present levels of performance noted in his 2010-2011 IEP, indicating that he either made no progress in the preceding school year or the CSE failed to update the present levels of performance with current information, failed to base his program recommendation on current information or failed to sufficiently evaluate his current needs. s math abilities and needs are barely discussed other than the notation that he is “unable to add or subtract two digit numbers.” Also, the goals are inadequate; his academic goals are sparse with no reading comprehension goals and a writing goal that required only to print his full name and the alphabet. (Ex. C-3 to C-4). The single reading goal stated that will improve his reading skills, sound blending and sight vocabulary at grade level, which is illogical in the context of the statement that he was a non-reader. (Ex. C-4 to C-5). Although the CSE noted that DA was “not a highly motivated student,” no goal was included to correspond with that need. (Ex. B-1).

The 2012-2013 IEP is also inadequate, as it repeated the program that was not successful the prior year, and therefore, could not have been reasonably calculated to enable to make progress. He continues to have deficits in: reading, decoding, letterword identification, passage comprehension and reading fluency and are not mentioned in the present levels of performance. The IEP fails to accurately describe the nature of his math deficits, stating only that understands basic addition and subtraction, but struggles to explain how he arrives at solutions. (Ex. B1). It seems that the goals are not designed to effectively address ’s needs, are vague , not measurable, do not contain sufficient specificity upon which to guide instruction and intervention, evaluate progress or gauge the need for continuation or revision. The single math goal is insufficient and inappropriate; it contains no baselines or benchmarks, as is the single writing goal which states he is “expected to show growth in his writing ability which is reflected by the standards” without providing any baseline or explain what is meant by “the standards.” (Ex. B-3 to B-4). His are also vague, and do not relate to the concerns expressed in the present levels of performance and individual needs section. (Compare Ex. B-4 to Ex. B1).

In each of the school years at issue, ’s IEPs have contained vague and inadequate goals, without baselines or benchmarks, and bear little relation to DA’s special education needs. “Vague and immeasurable objectives are the handmaiden of stagnation, as a program cannot possibly confer an educational benefit to a child if his/her teachers and parents do not know where the child is, where they should go and when they have arrived.” Escambia v. Benton 406 F.Supp.2d 1248 (S.D. Al. 2005). These, and the other described deficiencies, resulted in educational programs that were, at all relevant times, not reasonably calculated to enable DA to make academic progress, and as a result, DA did not make more than trivial academic progress. This constitutes the denial of FAPE. and , (Ex. Q), these must also be considered in determining his areas of disability, it is critical receive an appropriate and comprehensive evaluation, such a neuropsychological evaluation, so that the exact nature of can be determined.

In addition, no evidence was presented to describe how, in any of the school years at issue, the CSE was properly comprised to include an individual “who is knowledgeable about the general education curriculum and the availability of resources of the school district,” and “who can interpret the instructional implications of evaluation results.” 8 N.Y.C.R.R. § 200.2(a)(1)(v) and (vi). This was very clear, particularly during the June 2012 CSE meeting, which SS found to be “unprofessional” and “baffling,”, and noted that the only level of analysis the DOE members engaged in was a reluctance to retain for a second time because he had already been retained once already. These procedural violations are serious, as, without having the benefit of appropriate evaluations and persons with specialized knowledge to explain the programs available for a student, the CSE is simply taking a shot in the dark in developing an educational program for the student. Without adequate information upon which to base her determination as to whether the program developed by the CSE is appropriate, a parent’s ability to participate meaningfully in the IEP development process is substantially impaired.

I find that DA Is entitled to compensatory relief in the form of additional services that are reasonably calculated to remedy the denial of FAPE and is entitled to a remedy designed to prevent the denial of FAPE from continuing. Once it has been determined that a student has been denied a FAPE, hearing officers have broad equitable powers to fashion a remedy that is appropriate to address the student’s needs, based upon the unique facts of the case. Application of a Student with a Disability, Appeal No. 08-052 at p. 1718 (July 16, 2008). The relief requested herein is essentially two-fold, and designed to remedy the past deprivation of educational benefits and to ensure that DA does not continue to be subjected to an inappropriate educational program and placement going forward.

“[I]t is well settled that 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); Application of a Student with a Disability, Appeal No. 10-

052 at page 15. See also Mr. and Mrs. A o/b/o D.A. v. N.Y.C. Dep’t of Educ., 769 F.Supp.2d 403 (S.D.N.Y. 2011) (holding that such equitable powers extend to prospective payments for educational instruction where parents cannot afford to the financial outlay required by reimbursement cases). Compensatory education relief may 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]"); See also 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) and 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 privation of instruction could be remedied through the provision of additional services before they become 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 remedial education services to a student upon the school district's failure to provide those educational services during home instruction). See also 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. 09-035 (awarding 1:1 reading instruction as compensation for a deprivation of a FAPE); Application of a Student with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE); Application of a Student with a Disability, Appeal No. 08-035 (awarding ten months of home instruction services as compensatory services).

I also agree with Parent’s counsel that procedural violations ability to meaningfully participate in the development of s IEPs and deprived of educational benefit. The denial of FAPE substantive and/or result from violations of the procedural protections enumerated in special education laws and regulations. Procedural violations, result in denial of FAPE “if they ‘impeded the child’s right to a [FAPE],’ ‘significantly impeded the parents’ opportunity to participate in the decision-making process,’ or ‘caused a deprivation of educational benefits.’” 20 U.S.C. §1415(f)(3)(E)(ii); A.C. ex rel.

DA.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir.2009). See also Werner v. Clarkstown

Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005) (“Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations considered individually do not.”). The aforementioned violations clearly deprived SS of the opportunity to meaningfully participate in the decision-making process surrounding the development of his educational plan and led being denied educational benefits. Prior to the development of an IEP, a student must be assessed in all areas of suspected disability, and the evaluation must be sufficiently comprehensive to identify all of the student's special education needs. 20 U.S.C. §1414, 8 N.Y.C.R.R. §200.4(b). The DOE must review existing evaluation data concerning a child, and, based upon that review, identify what data, if any, is needed to determine outstanding issues that may be relevant to drafting a student’s IEP. 20 U.S.C. §1414(c)(1). The DOE must “use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining (i) whether the child is a child with a disability; and (ii) the content of the child’s individualized education program.” 20 U.S.C. §1414(b)(2)(a), 8 N.Y.C.R.R.

§200.4(b)(1). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general academic performance, vocational skills, communicative status and motor abilities. 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 N.Y.C.R.R. § 200.4(b)(6)(vii)).

The IEP must be based upon the findings of appropriate assessments, and must contain: “(1) the child’s present level of educational performance; (2) the annual goals for the child, including short-term instructional objectives; (3) the specific educational services to be provided to the child, and the extent to which the child will be able to participate in regular educational programs; (4) the transition services needed for a child as he or he begins to leave a school setting; (5) the projected initiation date and duration for proposed services; and (6) objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.” Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 377 (S.D.N.Y. 2006)

(internal quotations omitted), citing 20 U.S.C. § 1414(d)(4)(A)(i); 34 C.F.R.

§300.320(a)(1). Under the IDEA, for a child’s IEP to be adequate, it must be likely to produce progress, not regression, and must afford the student with an opportunity greater than mere trivial advancement. M.H v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 224 (2d. Cir. 2012) (quoting T. B. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009) (internal quotations and citations omitted)).

Parent’s counsel maintained that DA was not appropriately assessed in all suspected areas of disability. See 20 U.S.C. §1414, 34 C.F.R. § 300.304(c)(4); 8 N.Y.C.R.R. §200.4(b). Such evaluations must be conducted using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent,” in order to determine the nature of the disability or disabilities and to develop “the content of the child’s individualized education program, including information related to enabling the child to be involved in and progress in the general education curriculum.” 20 U.S.C.

§1414(b)(2)(A); 8 N.Y.C.R.R. § 200.4(b). The evaluation must, among other things, include the use of “use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.” 834 C.F.R. §300.304(b)(2)(c); 8 N.Y.C.R.R. § 200.4(b)(6)(x).

received an OT evaluation in 2008which determined that he “demonstrates delays in his performance of graphomotor (pre-writing) skills, scissor skills, and puzzle play and was more than 25% delayed in that area. (Ex. H-3). has not received an evaluation since that time, and the DOE failed to establish that he was appropriately discharged from receiving this service. Dr. believed that should be receiving (Tr. 145,

Ex. O-17).

The failure to administer services required by a student’s educational plan also can result in the denial of FAPE. DA.H., supra, 685 F.3d at 224 (quoting Gagliardo v.

Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir.2007) and citing 20 U.S.C. §

1401(9)) (“These services must be administered according to an individualized education program . . . which school districts must implement each year for each student with a disability.

The proposed compensatory remedy of 593 hours of one-to-one tutoring instruction at pursuant to a targeted educational program is, therefore, reasonably designed to address the harm that has been done to the student during the years at issue.

With respect to the deprivation of OT sessions, should be awarded sessions equivalent to what he should have received pursuant to the 2010-2011 IEP, as well as additional sessions to cover the period of time since then because the DOE failed to make a determination that the sessions were no longer needed.

Accordingly, I find that the DOE should provide a P1 (or Nickerson) letter to authorize to locate an appropriate non-public school herself. The CSE will be ordered to reconvene in order to develop and appropriate IEP for . This program should be based on appropriate evaluations to ensure that is assessed in all suspected areas of disability. These should include an and an evaluation so as to determine the precise nature of his learning disability and inform the DOE of the program he will need going forward to as to ensure he is reasonably enabled to make academic progress.

The CSE should consider the recommendations set forth in Dr. report, which are quite detailed and include specialized tutoring and instruction, additional time allowances and accommodations, alternate forms of learning and testing, alternate means of taking notes, modified lessons and frequent study sessions, and numerous strategies to facilitate reading comprehension and fluency, vocabulary, writing and math skills. (Ex. F-

3 to F-5).

In conclusion, I find that was denied a FAPE for at least the two years preceding the filing of the impartial hearing request, through and including the 2012-2013 school year, both in substance, due to an inadequate educational program which resulted in a denial of FAPE, and due to procedural violations which individually and/or collectively resulted in a denial of FAPE.

I ORDER AS FOLLOWS:

1. The DOE to pay for 593 one-to-one tutoring hours, at a rate of at least $95per hour, at in as additional services to compensate for the denial of FAPE, to be completed over a period of two years commencing on the date of the Decision and/or Order, and payable directly to upon submission of monthly invoices to the DOE.

2. The DOE to pay the $100 registration fee and the $295 testing fee directly to New upon submission of an invoice for the same to the DOE\.

3. The DOE to provide with two Metro cards to enable to travel with to and from for the time period referenced in Paragraph 2.

4. The DOE should provide with a Nickerson or P-1 letter enabling her to place in an appropriate non-public school.

5. The DOE is to provide with occupational therapy sessions to compensate for the DOE’s failure to implement the mandate during the 2010-2011 school year.

6. I direct the CSE assess in all suspected areas of disability, and to conduct, the following evaluations: (1) an occupational therapy evaluation, (2) a comprehensive neuropsychological evaluation designed to determine the precise nature of his learning disabilities, and (3) an assistive technology assessment, within 30 days of the date of the Decision and Order.

7. I direct the CSE to reconvene within two weeks after the evaluations are completed for the purpose of developing an appropriate IEP with appropriate educational goals, objectives and related services consistent with the concerns set forth herein, and direct the CSE to consider all evaluations made available to it prior to said meeting, including Dr. ’s report dated September 9, 2012 and any updated reports that may be prepared by or other professionals with knowledge of Dated July 31, 2013

_________________________

GARY D. PETERS, ESQ.

IMPARTIAL HEARING OFFICER

GP;mv

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EVIDENCE

Exhibit Name of Document Date PAGES

A. Impartial Hearing request 12/17/12 4

B. IEP 6/23/12 11

C. IEP 8/31/11 12

D. IEP 11/23/10 13

E. IEP 7/6/10 11

F. .Eval. 9/9/12 6

G. DOE 10/27/10 5

H. Eval. 1/21/08 3

I. ARIS Documents undated 10

J. Misc. report Cards misc 5

K. Tutor List undated 8

L. Teacher Questionnaire 6/7/11 8

M. . Eval. & summary 8/28/12 2

N. program map undated 1

O. Testing materials 8/28/12 43

P. Report Card 2012-2013 2

Q. Eval. November 2011 2

DEPARTMENT’S EVIDENCE

1. IEP 7/6/10 12

2. FNR 7/6/10 3

3. IEP 11/23/10 13

4. P-4 Letters SETTS 7/6/10 1

5. IEP 8/31/11 12

6. IEP 6/6/12 13

7. Related Service Transactions 3/1/13 2

8. Dept. Motion to Dismiss undated 4