Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 19, 2014

April 17, 2014

Actual Record Closed Date: June 2, 2014

Hearing Officer: Rona Feinberg, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 19, 2014

Esq. Attorney Grandmother Department of Education Department of Representative Education Department of Education Department of Representative Education Instructional Support Department of — Parents

Counselor Department of Education, Ph.D. School Psychologist Department of — DOE

(via telephone) Education

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 17, 2014

Esq. Attorney Grandmother Department of Education Department of Representative Education Department of Education Department of Representative Education — Parents

Director, Huntington — Parents

(via telephone) Learning Center

Social Worker — Parents

Psychologist — Parents

(via telephone)

INTRODUCTION

On March 19, 2014 and April 17, 2014 I held an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, ”). The hearing commenced at 10:00 a.m. both days and was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

BACKGROUND

old and is enrolled in Brooklyn (“ ”). In a letter dated January 14, grandmother and legal guardian, by her attorney, ., of counsel to filed a Due Process Complaint requesting an impartial hearing.1 In that Complaint, maintained that, for a number of reasons, the Department of Education did not offer a Free and Appropriate Public Education (“FAPE”) for the 2012-2013 and 2013-2014 school years. Ms. Rothenberg asked, among other things, that the Department of Education conduct various evaluations, that the case be referred to the CSE to consider all of the pertinent evaluation results and develop an IEP with services and goals that meet all specific educational needs, while considering how she has been deprived of sufficient instruction and services over the past two years. Ms also requested that the IEP include parent training and counseling and adequate transitional goals or services, including assistive technology. Ms. alleged that is entitled to compensatory services for occupational therapy, physical therapy, support from a special education itinerant teacher. In addition, Ms. asked that the Department of Education be ordered to pay for an assessment by the (“ ”) and that the CSE order a detailed vocational assessment of that shall be used to determine postsecondary education transition services. Finally, Ms. requested that if the Department of Education is “unable or unwilling to immediately enroll [ in a public school capable of meeting her special education needs” the hearing officer order the CSE to defer the case

References to “parent” throughout this Decision and Order refer to PD. to the Central Based Support Team (“CBST”) for placement in a non-public school (Parent’s Ex. A). The Department of Education filed a Response on January 14, 2014.

I was appointed as the Impartial Hearing Officer on January 17, 2014. The original compliance date was March 31, 2014. On February 26, 2014, at the request of the both parties for the availability of witnesses the compliance date was extended to April 12, 2014 and hearing dates were scheduled for March 19, 2014, and April 17, 2104 in the event that a second hearing day would be necessary. At the conclusion on the hearing on March 19, 2014 at the request of both parties for the availability of witnesses the compliance date was extended to May 13, 2014. At the conclusion of the hearing on April 14, 2014 at the request of both parties for the receipt of the transcripts, the submission of closing briefs and the issuance of a Decision and Order, the compliance date was extended to June 11, 2014.

The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations. Specifically, (a) the child was attending school where she was services. She was receiving occupational therapy and physical therapy at home provided by her insurance, and both parties agreed that the child would be provided with substantial and services at the conclusion of the impartial hearing. Thus there was no negative impact on the child’s educational interest or wellbeing as a result of the delay; (b) in accordance with due process both parties were entitled to the opportunity to secure witnesses to appear at the hearing in support of their position and the parties were entitled to issue closing statements based on the transcript and have this hearing officer review the transcript and consider the evidence and the closing briefs prior to the issuance of a Decision and Order; (c) there is no pendency in this case and there were no financial or detrimental consequences likely to be suffered by either party by the delay; and (d) for the reasons indicated above due to the unavailability of witnesses did not require the denial of a subsequent extension request.

UNDISPUTED ISSUES

Both parties agree that: 1 was denied a FAPE for the 2012-2013 and 2013-2014 school years and that she is entitled to services to compensate for the deprivation of FAPE; 2) the CSE shall convene, with all of the legally mandated members present, to develop an appropriate IEP and 3) the Department of Education should provide with compensatory

THE PARENT’S POSITION ON THE DISPUTED ISSUES

The parent maintains that the CSE should be ordered to: 1) defer the case to the Central-Based Support Team (“CBST”) for a non-public school placement; 2) pay for 1,040 of compensatory reading and math services ; 3) provide compensatory services in the amount of eight hours of assistive technology; 4) provide compensatory services in the amount of ten hours of parent counseling and training; and 5) provide compensatory services in the amount of 80 sessions of therapy, therapy (Parent’s Closing Brief at 18). .

THE DEPARTMENT OF EDUCATION’S POSITION ON THE DISPUTED

ISSUES

The Department of Education maintains that not all of the compensatory services requested by the parent are appropriate in that: 1 received all of related services during both years at issue; received her counseling mandate during both years at issue; 3) and continues to receive transition services; 4) the compensatory reading and math services should be provided by a certified SETSS provider pursuant to a P3/P4 letter and limited to 400 hours; 5) the compensatory occupational and physical therapy sessions should be set at 40 hours each; 5) the CSE should determine the appropriate program and placement for and thus the hearing officer should not remand the case directly to the CBST (DOE Closing Brief at 4-15).

FINDINGS OF FACT

The following Findings of Fact are based on the testimony and evidence that pertain only to background and to the disputed issues in the case. The Department of Education’s Case

DANA LAWIT is a New York State licensed teacher of students with disabilities and she currently works at (Lawit: 17-18). KIMBERLY PARTINGTON, Ph.D., has a doctorate in school psychology and is certified as a school psychologist (Partington: 114). VIVIAN TORRES-FIGUEROA has a Master’s Degree in school counseling and is AJ’s counselor (Torres-Figueroa: 76-77).

A.

, a (Partington: 118). She had surgery in 2005 to stabilize the damaged side of her brain. Secondary to the impairment language (DOE Ex. 10 at 1). She has a limited range of mobility on her left side and to reduce spasticity on that side (DOE Ex. 11 at 1).

During the 2012-2013 school year, attended in an ICT class at Her IEP dated December 5, 2012 classified her as having an “Other Health Impairment.” The IEP mandated that she receive: 1) one 30-minute individual session per week; 2) one 30minute individual physical therapy session per week, 3) one 40-minute group occupational therapy session per week, 4) one 30-minute sessions per week; and 5) five periods of group SETSS per week (DOE Ex. 13 at 6-7.)

Throughout the entirety of the 2012-2013 school year, did not receive any of her mandated occupational and physical therapy services, and received only four of her five weekly SETSS services (Lawit: 23-24, 26-28; Partington: 122-124).

In the fall of 2013 Ms. met with to discuss concerns about what would happen after graduates. They discussed what the school could provide such as making sure attends her Regents prep classes. They also worked out a schedule to take one Regents at a time, in January and June. However, refused to attend and she did not take the exam in January ( : 84-85).

In a letter dated October 29, 2013, AJ’s grandmother, PD, stated was not making academic gains and asked for new evaluations and additional academic supports. Specifically, , , an adapted behavior scales evaluation and an assistive technology evaluation. The letter also specified the ways needs were not being met in school and explained required a new paraprofessional (Partington: 125-126 DOE Ex. 6). Upon receipt of that letter began the assessment planning for the evaluations. Dr. evaluation and the school social worker did the Social History update. Dr. asked the CSE to set up the additional evaluations (Partington: 126-127). An evaluation were conducted in November 2013. Dr. evaluation on December 12, 2013. A speech/language evaluation was conducted on December 20, 2013 (DOE Exs. 8, 9, 10, 11). The evaluation reports indicated that those services were not recommended for the 2013-2014 school year (Partington: 128-129; DOE Exs. 8, 9). An assistive technology evaluation was completed during the impartial hearing and the ensuing report recommended would benefit from the use of a laptop (Partington: 130).

For purposes of transitioning Dr. conducted a parent assessment and did a vocational assessment held a meeting prior to the December 20, 2013 IEP meeting; that meeting was attended . At that expressed that she did not believe she was , and that the teachers did not care about her. With respect to transition, expressed her ready and that she the age of 21 (Partington: 137-138). Mr. told would be able to do so. Ms. stated that she was planning to to visit some programs that could provide with the training that she needs, since there are concerns about her ability to live independently after she graduates ( : 138).

During the 2013-2014 school at . At the IEP annual review meeting on December 20, 2013 Ms. discussed transitioning In addition to talking about graduation requirements Ms. gave material about agencies and services that could provide assistance to after she graduates, including agencies that provides assisted living programs, apartments, respites and , in light of the fact would not be able to provide for in the future. She also offered to go when they visited these agencies (Torres-Figueroa: 82-83; Lawit: 37).

The IEP developed by the CSE at that meeting an “ The IEP included the same ICT program prior IEP. The IEP mandated that she receive: 1) one 30-minute group counseling session per week, 2) one 45-minute group physical therapy per week; 3) one 45-minute group occupational therapy session per week, 4) one 30-mintute individual therapy session per week and 5) five periods of group SETSS per week (Parent’s Ex. C at 6-7). , the child’s grandmother and legal guardian, attended the meeting (Parent Ex. C at 14.)

Throughout the entirety of the 2013-2014 school did not receive any of her mandated services, and received only four of her five weekly SETSS services (Lawit: 31-33; Partington: 135-136).

B.

During the 2012-2013 school SETSS teacher and one of her eleventh grade ICT teachers. She four days a week (Lawit: 22-24, 67). services were offered ” and there was some discussion of a change in the schedule to accommodate (Lawit: 25). While the IEP dated June 1, 2012 and the IEP dated December 5, 2012 both mandated that there was no occupational therapist or physical therapist at the school during the 20122013 school year (DOE Exs. 13, 14). In October 2012 Ms. spoke with grandmother, was receiving her services at home and needed an RSA to continue the services. that she did not miss classes and she did not want to disrupt the home services, which receiving through “ ” pursuant to insurance ( 26-28, 67-68; Partington: 122-124, 148149).

During the 2013-2014 school year has been providing services four days a week; Ms. is trained in the reading program. Ms. in October 2013 to make sure that and physical therapy services and that she was receiving the services at home. While there is a physical therapy provider is at the school this year to continue receiving those services at home (Lawit: 32-33, 40, 68; : 135-136). has been providing services at school “as per the IEP” (Lawit: 32; Partington: 135).

C.

The psychoeducational evaluation report dated December 17, 2013 indicated that , which is “ ,” that her memory is in and that her processing speed index is within the “extremely low range” (Partington: 141-142).2 The report also indicated within the statistically significant range on the attitude to teacher scale and the social stress scale and that she has a that are considered to be odd. The report also indicated that AJ might be emotionally fragile and have few coping skills (Partington: 143-144; DOE Ex. 11). Ms. Torres-Figueroa, who has during the 2012-2013 and 2013-2014 school years, testified that while this year has been very difficult that she experiences anxiety related to graduating and transitioning out of school, she did not fragile” as the report states (Torres-Figueroa: 92-93). Ms. opined that evaluation report did not present an accurate picture the past three years (Torres-Figueroa: 93; DOE Ex. 11). Both Ms . testified that on the day of the evaluation was very defiant, uncooperative and resistant to the testing (Partington: 142; Torres-Figueroa: 94). In their discussion with at the IEP meeting in December 2013 the school members of the IEP team told that they did not believe the test results were accurate because to do a lot of the tasks that she usually is able to do and that was inappropriate during the testing period ( : 94). Dr. did not change mandate on that IEP because Ms. seeing individually. Dr. did recommend that outside counseling to address s more serious social-emotional issues (Partington: 132-133, 144-145). Dr. did not tell the members of the IEP team needed a psychiatric evaluation (Partington: 146).

Ms. has a very good rapport . Her conversations ” up” to her about many things ( : 78-79, 96). in the classroom when she has that this year ( 89). While “very guarded” at ; however, she does not have any friends that she is in contact with outside of

Citations to pages 141-176 and 179-183 refer to Ms. s cross-examination of Dr. school (Torres-Figueroa: 89-91). At times figures in school and she had difficulty coping . While does not have activities ( : 92).

record shows the grades of all the exams she has taken from ninth grade until the time of the impartial hearing. She all of her exams with scores in except for the algebra Regents exam on which she (Lawit: 41-44, 48-49 ; DOE Ex. 18 at 2).3 but it has improved. In SETSS class would sometimes use a was a “hunt and peck” typist preferring to use one finger. She has but received several emails from her that were “well composed.” Ms. believed that a computer was a good device to enable to communicate more effectively ( : 65-66).

D.

“CREW” is an advisory that is part of the curriculum in the ninth through twelfth grades. During the current school year . As part of the “CREW” advisory all twelfth graders get post-secondary planning. Ms. does career planning teacher. The twelfth grade CREW involves college planning and a personal financing project in which students have to look up careers that interest them and develop a mock budget based on expenses and earnings (Lawit: 38-39; : 139; : 86-87). also has the opportunity to choose particular classes for career exploration. The teacher makes a poster with about ten to fifteen options and a list of field trips related to those options (Lawit: 66-67).

from wanting to be a writer to more recently expressing that she would like to work with children ( : 67).

Ms. worked with on transitioning out of high school both formally through vocational assessments and informally by discussing with her what she would like to do after high school. She also conducted some “ ” and “ the year to get a sense of what she is “good at” and what she likes ( 36). Ms. s current SETSS teacher, Ms. , works with in a resource class with other twelfth graders and part of the curriculum is “Access ” The school arranges trips for students and their families. is in the process of working on her “senior expedition” project that is a vocational exploration of her interests ( : 36-37). As detailed in “A” supra, Ms. discusses transitioning with both ( : 82-85).

E.

about going to gym class where she sits on the side with her paraprofessional while the other students run laps and while the class is stretching. When they are finished with her paraprofessional and then sits down again for the rest of the period. Sometimes she walks . The school has never provided her with although there is a certified adaptive physical education teacher on staff ( : 98-99; : 160-161; DOE Ex. 9 at 4).4 One The Social History report notes that - testified that the only To open a container of her ( : 97).

The Occupational Therapy evaluation dated November 13, 2013 lists three primary concerns a plans, specifically, how she will be able to work, expressed by her teacher; and 3) limitations with typing, expressed by her teacher ( : 151; DOE Ex. 8 at 2). The evaluation includes a report from that relates how many areas, noting organizing her books, locker and backpack, the she “pushes into people.” teacher noted that she is “below classmates” in almost all areas ( : 155-158); DOE Ex. 8 at 8-11). However, the evaluation states that ” (DOE Ex. 8 at 6). The Physical Therapy evaluation indicates that does not participate with the other students in gym, but concludes that physical therapy is not recommended ( : 159-160; DOE Ex. 9).

The Parent’s Case

grandmother and legal guardian (PD: 229-230). , Ph.D., has a doctorate in clinical psychology and is a licensed psychologist in New York State. She is currently employed at SUNY Downstate Medical Center ( : 326-327). is Dr. s social worker

Citations to pages 41-70 refer to Ms. s cross-examination of Ms. intern at the . Ms. is currently earning her Master’s Degree in social work ( : 206-207;

: 345).^[5]

in 2003. In 2005 from the left so that she could function. As a result of that . She wears (PD: 229-231). from the to stimulate . She is that hand. longer has uneven because of the limitations on . When she uses the stairs she has to hold on to the rail. She is not able to prepare food or (PD: 232-233). buttons. to help her with many things with just ( 240-241).

This is . When first went to the school to she was told that the school did not offer either and that she would have to obtain those services outside of school. went to and the hospital have those services at home ( : 233-234). At the beginning of the 2012-2013 school year the school psychologist and told her that the school had to provide therapy. said that she wanted the services to continue at home and asked if the school could arrange for that. She was told that she would receive the services ( : 234235). is not receiving occupational or physical therapy in school from the Department of Education during the current school year, 2013-2104. Rather, she is receiving those services at home through Medicaid (PD: 235).

At the most recent IEP meeting expressed her concern is not ready to graduate. The IEP team told her that as ” she is ready to graduate. When asked what college would accept her , she was told that graduation is to be offered for a child with special needs who has that grade ( : 236-237). received literature at home about graduation but did not respond ( 237). wants to go to college (PD: 246).6 has always loved to go to school. However, for the past two years she does not even want to get out of bed in the morning ( : 237, 241). that she is not getting anything

4 Ms. objected to the questions about adaptive physical education on the ground that the issue was not included in the Due Process Complaint. Ms. stated that she did not the report addressing adaptive physical education prior to filing the Due Process Complaint (Hearing: 160-161). out of school and that no one there cares about her (PD: 238). and because she is not receiving the help that she received at her other schools ( : 238 test grades have shown no improvement during the time she has been at : 241-242). has not seen any academic or social-emotional progress during the time has been at told her that sometimes when she is actually in school she is marked “absent” (PD: 242). never brings homework home. said that her current paraprofessional does the work for her and keeps it ( 243). wants to continue to attend school but wants to (PD: 247-248).

bought computer. However, the school canceled her internet access password. Although the principal said he was going to give her another password he had still not done so at the time of the impartial hearing ( : 238-239).

got called to school about a month prior to her testimony at the impartial hearing after tripped over her and then locked herself in the bathroom ( : 244). The school for more than a week but the had to go to the school but no one explained why AJ had locked herself in the bathroom (PD: 245).

and is happy her occupational and physical therapy at home after PD returns from work (PD: 248-249). However, she would prefer that the services be provided at school as they were before (PD: 250-251).

located on the upper . They arrived there at 8:00 a.m. and remained until 4:00 p.m. It was a positive experience who felt that someone “helped [her] to understand something” (PD: 239-240). believed that the arrangement is on weekends and holidays when she does not have school. would still get a summer break but also attend ( : 249-252 said she would “guide” to get and would sometimes have someone take her there (PD: 250 believed that it would be too difficult to attend HLC after school because they live (PD: 251).

Dr. the Fall of 2013 and she has seen her about once a month since then ( 329). Ms. meets with once a week under Dr. supervision ( 345; Jones: 208-209).

Citations to pages 246 to 250 refer to Ms. s cross-examination

From Dr. ’s first meeting has been “very [and] .” is concerned that she does not know “ to live independently that she is not getting help at school and she was former paraprofessional who, she said, slept in class and would not help her carry feels that her current paraprofessional is very critical of her. She also feels that the teachers , which happens because it and she has to wait for everyone to pass ( : 329330, 344). also is unhappy because she does not interact with other students and eats alone; she feels isolated in school and does not feel supported or helped ( : 330). is also isolated in the gym. reports and documents that Dr. reviewed, s supposed to wait in the gym while the others run around the track, then walk around on her own and sit down when she is done while the other students play. Dr. agreed with one document that states adaptive physical education should be considered for : 336). complained that her does not get her into the building Dr. was told that the principal is trying to “fix” that problem ( : 331-332).

Dr. IEP and believed that the IEP “certainly” did not address the issues and the difficulties that was experiencing. The IEP also did not address s “major goal” of being able to live independently ( : 331). Dr. opined IEP has to address her intellectual ability, which is very close to the disability range and is kept from that range only by , ( 332-333). a level but she does not really understand the words and cannot read accurately. Her math classes but she does not have the ability to pass the Regents exams. Dr. opined that an ICT class is “totally inappropriate” who is “very limited” and needs to be working at her level. Dr believed a “small, contained class working at her level to ( : 333-334). While the IEP notes her social-emotional issues, it does not address them. Ms. opined that the school is not aware of how toxic the environment is for : 337). She also opined be in a setting with other students who have disabilities where she could make friends and that in that setting she should be provided with individual and group counseling, each once a week for 30 or 45 minutes ( : 337-339).

Dr. understood that there are some public school “alternative assessment classes” but testified that she has never been able to get a child into one of those classes and thus does not know if such a class would be appropriate . She opined that setting in a community school would not be appropriate because the students in those classes have different cognitive levels and “with the core curriculum they are keeping them pretty high” which would be very : 339-340). Given the fact “hairs’ breadth away from being in the range,” Dr. opined that in a class where she could work on a second/third grade level in reading and level in math would be appropriate. Dr. noted that skills for independent living, not algebra ( : 340). requires individual intensive help in reading, but not Orton-Gillingham grade level in decoding. She needs help with reading comprehension and speech and language as part of that program ( : 341). She opined would be “excellent” and that judging by a ninth grade level 1000 hours would be appropriate ( : 342). In addition, s IEP should incorporate occupational therapy with adaptive equipment that could help her with buttons and an assistive technology device, namely a computer on which she could type or speak into ( : 344). Dr. also opined that SETSS at s home via an RSA would be good as well. With respect to the home based SETSS as opposed to traveling to stated that the question should be posed ( : 346-347).

Ms. began meeting in September 2013. She described and somewhat shy girl. and meet new people and would like to have new friends. happy to have one-on-one conversations with Ms. they meet once a week after school at Downstate for 45 minutes to an hour ( : 208-209). s able to communicate and be understood but her speech is : 210 about school She does not feel she is part of a social and academic community in which she is growing and : 211).

In November 2013 Ms PD. They , her potential graduation and the concerns PD had about AJ’s needs not being met at : 211-212). was ready to graduate and wanted to have more educational training. The school members stated on a Regents exam and Ms. “wondered” how that was possible : 2112-213 was also concerned not have access to a computer program and she to have more “one on one” learning (Jones: 213).

Ms. Jones visited week before she testified at the impartial hearing. It was not typical school day in that it was “explore week” during which the students chose an area of interest film. The teacher made a film with the students who all participated as actors. She observed trying to help her but there were “a lot of times” was by herself, such as at lunch. In gym around the track about five times but did not interact with the teacher or the other students ( : 214-215, 219). Ms. that no one “really and that she lacks social interaction in school. She saw another student mimicking the way and then laughing about it with her friends 215). The only time that Ms. somewhat happy was when she was working one on one with her paraprofessional. The paraprofessional told Ms. or twice a week. Ms. is not an appropriate placement : 216).

that she has been late to class because the halls get very crowded and it is difficult for her (Jones: 217).

is the on the . She is certified in early childhood and elementary education in : 252-255, 285). 7 has about 40 or 45 tutors, some of whom are certified in special education. If was directed to provide with tutoring by special education teachers it would do so : 255, 257-258, 320-321).

administered several assessments on March 22, 2013. Prior to . IEP to see what testing accommodations she was entitled to and she was given extended time and a separate location for the assessments. was not provided with a scribe because she did not indicate that she needed or wanted one and she was not given a calculator because wanted an assessment of how she can compute on her own. Based IEP Ms. determined that had experience working with students who had/have similar ( 257, 298-299).

Ms. described each of those assessments on them. scored significantly below grade level in all of the assessments. Ms. reviewed the results of each assessment and determined the grade level in each subject area. Those grade levels are aligned with New York City grade level expectations. Ms. explained that the California Achievement Test (“CAT”), one of the assessments administered, was designed for California students but that there is a national consensus as to what students are expected to achieve CAT and performed on level ( : 258-274, 287-297, 304305, 308-315, 323-325; Parent’s Exs. EE, FF). Based in the assessments Ms. determined that she requires a total of 1040 hours of order to be brought up to grade level, and she explained how she determined the number of hours required for each skill ( : 275-281; Parent’s Ex. DD). program would be individualized and she would be working with a teacher one to one. Her instruction would be given in one room and will not have to travel once she arrives ( : 300-302). She will be able to use a computer and/or dictate to the teacher who would write things down for her ( : 301). Ms. testified that even if ould be able to maintain “the most intensive schedule” of two hours a day five days a week after school and four hours a day five days a week during the summer, it would take her two years to complete the 1040 hours ( : 281-282). Ms. Helen was going to the more more rapidly she would progress. However, she was not going to recommend a specific amount of hours; rather, she was going to leave that determination to discretion to as to what is reasonable and possible ( : 319-320).

The initial assessment fee for is $295.00, the registration fee is $100.00 and the tutoring sessions are $100.00 per hour; the tutoring sessions are billed only as they are used. is open seven days a week ( : 282-283).

CONLUSIONS OF LAW AND DISCUSSION

The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005);

Citations to pages 285-321 refer to Ms. s cross-examination of Ms. . Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet a child’s unique needs, provided in conformity with a comprehensive written individualized education program. 20 U.S.C. § 1401(9)(D) 34 C.F.R. § 300.13; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.347; Rowley at 181-182. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit a child to benefit educationally from that instruction.” Rowley, 458 U. S. at 203. I begin by noting that I credit the testimony of all of the witnesses who appeared at the hearing. The Decision as stated below is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record The Department of Education Failed to with a FAPE for the 2012-2013 and 20132014 School Years

To meet its burden, the Department of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits and that the recommended program is the LRE for the child. Rowley, 458 U.S. at 188-189; 34 CFR 300.550 [b]; 8 NYCRR 200.6 (a)(1). An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2nd Cir. 2012). In developing an IEP a school district must comply with the procedural requirements set forth in the IDEA and the IEP must be “reasonably calculated to enable the child to receive meaningful educational benefits. R.E, 694 F.3d at 175,190 citing Rowley, 458 U.S. at 175, 207.

The Department of Education concedes that it did not with a FAPE for the 2012-2013 and 2013-2014 school years. I am remanding the case to the CSE to arrange for any new evaluations requested by the parent and for a CSE meeting to develop a new IEP according to the specifications in the Order at the end of this Discussion.

The parent asks that this hearing officer order that the CSE defer the case to the CBST for a non-public school placement (Parent’s Closing Brief at 14, 17). The Department of Education opposes that request, arguing that the decision of a CBST deferral should be left to the CSE team (DOE Closing Brief at 4-5). The evidence at that impartial hearing, summarized below and detailed in the Findings of Fact, leave no doubt that the Department of Education not only failed to provide her with a FAPE for the past two years but also that class is the appropriate placement or program for her.

Because of AJ’s seizures she had surgery in 2005 to remove part of her brain. As a result no use also . Specifically, Dr. psychologist, testified that the only reason AJ does not test in the is because her verbal score is borderline. Dr. also explained that the documents relevant to show that while her word recognition is on a sixth grade level, she does not understand . Her reading comprehension is on a , her math is on a third/fourth grade level and her writing is on a second grade level. While the school has given in most of her subjects and enabled her to amass sufficient credits to graduate exam scores have ranges from grades in on the Algebra Regents, clearly a questionable grade under the circumstances.

physical disabilities also prevent her from participating in gym class with the other students. The evidence also required to attend gym with the general education students and, while she could not partake in those activities because of her physical disabilities, she was not offered any appropriate physical education. Rather, she was required to wait until her classmates finished running the track, then walk around the track by herself after which participated in activities. This added to her feelings of alienation from both her peers and her teachers. In addition, because of her physical limitations due to Rasmussen’s syndrome, during class changes and was most often late to class. The testimony and documents entered into evidence show well-being is compromised where, although she may be regarded fondly by some of her peers, she feels alienated in that she has no friends or social life.

very concerned that is not being prepared for graduation or to be independent after graduation. Dr. testified that in light of disabilities she needs a small classroom that offers instruction on her level. She explained that a class in a community school would not be appropriate because the work and the pressure would be significantly beyond her capability as she is a “hairs breadth” from being in the intellectual disabled range. Dr. explained that needs is a class where she can work on a second/third grade level in reading level in math ( : 340). also requires individual intensive help in reading, but not Orton-Gillingham at level in decoding. She needs help with reading comprehension as part of that program ( : 341). Once placed in the appropriate setting, require both ( : 338-339).

In light of the foregoing, the CSE must find an appropriate placement for AJ that can provide her with all of the supports -- physical, social/emotional and academic -- that she requires in order to meet her unique special education needs and make progress so that she can eventually transition to an independent life. The placement must have other students of comparable cognitive ability not put under undue pressure or anxiety due to unrealistic academic expectations, including taking Regents exams. Rather, the program must begin to work with reading and math levels. The program and placement must be able to provide significant activities of daily living instruction, since is not able to prepare her and it must incorporate transition services appropriate to meet with respect to becoming independent. The placement must also be able to adaptive physical

8 education. If the Department of Education cannot recommend a public school placement

8 When Ms. raised the issue of adaptive physical education Ms objected on the ground that it was not raised in the Due Process Complaint. Ms. stated that she had not been provided with all of the evaluation results prior to the impartial hearing and thus could not have included the issue of adaptive physical education in the Due Process Complaint. The parties agreed that Ms. would amend the compliant but that it would not have any effect on the timing of the hearing. In her Closing Brief Ms. explained that she was not able to amend the Due Process Complaint because the hearing had already begun (Hearing: 160161, 334-335). Parent’s Closing Brief at 10). I am going to credit Ms. representation that she did not receive the Physical Therapy evaluation report in time to include adaptive physical education in the Due that meets all of this criteria and also meets the , the case must be deferred to the CBST for a non-public school placement that meets these requirements. Compensatory Services

When the Department of Education deprives a student with a disability of a FAPE a hearing officer may fashion an appropriate remedy which may include compensatory education. Mr. and Ms. P. v. Newington, 546 F.3d 111 at 123; Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008; Application of XXXXXXXXX, Appeal No. 13-048. 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). 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. Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation . Application of XXXXXXXXX, Appeal No. 13-048; Application of the Dept. of Educ., Appeal No. 12-135; Application of the Dept. of Educ., Appeal No. 1113).

The purpose of an award of additional services is to provide an appropriate remedy for a denial of a FAPE. Newington, 546 F.3d at 123. 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. Application of XXXXXXXXX, Appeal No. 13-048Accordingly, an award of additional services

Process Complaint or to amend the Complaint to include it. I also find that the testimony about AJ’s 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. In this case the Department of Education conceded that it did not offer AJ a FAPE for the two school years in question and entitled to services to compensate for the lack of FAPE. Occupational Therapy

The December 5, 2013 IEP occupational therapy once a week in a group for 40 minutes (DOE Ex. 13 at 7). The December 20, 2013 IEP mandated that AJ receive occupational therapy once a week in a group for 45 minutes (Parent’s Ex. C at 7). The Department of Education agrees to provide 40 “hours” of occupational therapy to compensate for the services not provided during the 2012-2013 and 2013-2014 school years (DOE Closing Brief at 15). The parent is asking for 80 “sessions” of occupational therapy (Parent’s Closing Brief at 18). If find that AJ is entitled to receive either 80 group 45-minute sessions of occupational therapy or 80 individual 30-minute sessions of occupational therapy to compensate for the Department of Education’s failure to provide those two school years in question. The decision of whether to provide the group or individual sessions shall be Physical Therapy

The December 5, 2013 IEP mandated that physical therapy once a week individually for 30 minutes (DOE Ex. 13 at 7). The December 20, 2013 IEP mandated that AJ receive physical therapy once a week in a group for 45 minutes (Parent’s Ex. C at 7). The Department of Education agrees to provide 40 “hours” of occupational therapy to compensate for the services not provided during the 2012-2013 and 2013-2014 school years (DOE Closing Brief at 15). The parent is asking for 80 “sessions” of occupational therapy (Parent’s Closing Brief at 18). If find to receive either 80 group 45-minute sessions of physical therapy or 80 individual 30-minute sessions of physical therapy to compensate for the Department of participation in gym class warrants consideration of this issue. Education’s failure to provide those the two school years in question. The decision of whether to provide the group or individual sessions shall be determined by Reading and Math Services The evidence showed that during the two school years at issue provided with four periods of SETSS a week rather than the five weekly periods mandated on the December 5, 2012 and the December 20, 2013 IEPs (DOE Ex. 13 at 6; Parent’s Ex. C at 6). Accordingly, basing the school year on hours of SETSS during the 2012-2013 and 2013-2014 school years.

The parties agree to compensatory services for the SETSS periods that were not provided over the two years in question. However, the amount of those services and who should provide them remains in dispute. The Department of Education posits that 400 hours of services should be teacher in her home (DOE Closing Brief at 13). The parent asserts that hours of tutoring on the upper Parent’s Closing Brief at 14-15, 18). The Department of Education submits hours of compensatory SETSS – one hour per day for each of the 360 school days that she did not receive the service over a two year period and additional 30 minutes per week for each of the 80 school weeks that the Department of Education failed to provide the services in accordance mandate (DOE Closing Brief at 13). The Parent assets that 1040 hours of the appropriate compensatory remedy (Parent’s Closing Brief at 14-15, 18).

I find that at this point in time the 400 hours of SETSS services offered by the Department of Education, which can be provided by a certified special education teacher, is part of an appropriate remedy for the two years of a FAPE. In making that determination I have considered the number of the mandated SETSS hours receive during the two school years in issue. I have also considered the testimony of at the hearing that if the be provided in school, she would prefer to receive the services at home. She explained that she works all and that she the house after she returns home from work ( 249). The testimony at the hearing also limitations in Brooklyn and s located on the . Moreover, pursuant to this Decision and Order attending for the 2014-2015 school year and the location of her placement has yet to be determined. I have also considered be receiving a minimum of 80 hours of occupational and physical therapy in addition to attending school every day.

For these reasons, I find that that having the 400 hours individualized SETSS provided at home by a certified special education teacher is appropriate.

However, until the SETSS services are put in place I am granting the parent’s request that of Education expense so that she can begin to receive remediation services immediately. The HLC sessions are to continue until a certified SETSS provider is ready to begin working SETSS provider must progress up to that point. I am also ordering a certified special education teacher to provide those services. The sessions at are in addition to the 400 hours to be provided by the SETSS teacher. In addition, the Department of Education is to pay for the assessment done That assessment is to be considered, along with other relevant assessments and reports, as AJ’s next IEP meeting. Speech and Language Services The parent argues entitled to compensatory services; the Department of Education maintains receiving those services as per her IEP during the two years in question (DOE Closing Brief at 15; Parent’s Closing Brief at 9, 18).

The IEP dated December 5, 2012 mandated individual once a week for 30 minutes; that mandate remained the same December 20, 2013 IEP (Parent’s Ex. C). A speech/language evaluation was administered for the Department of Education on December 20, 2013, the date of the IEP meeting (DOE Ex. 10). Ms. determined “ and on all four subtests was showed a “severe delay,” indicating a “continued risk for academic difficulties in reading and writing.” It was recommended to receive individual speech and language sessions (DOE Ex 10 at 1).

According to Ms. testimony at the hearing it is not clear received her mandated services during the 2012-2013 school year (Lawit: 25). Both Ms. testified services during the current school year pursuant to her IEP mandate ( 32; Partington: 135). However, providers for the two school years at issue testified at the impartial hearing. When the CSE meets to providers must be present at the meeting to clarify the number of sessions provided to AJ during the 2012-2013 and 2013-2014 school years. Any sessions that AJ was mandated to receive, but did not, must be provided to her as compensatory services. Moreover, if the CSE determines more than one speech/language session per week, the DOE must provide the additional number of sessions to AJ as compensatory services as if those extra sessions had been mandated for the entirety of the 2013-2014 school year. Assistive Technology Services The parent asserts that AJ is entitled to eight hours of assistive technology training (Parent’s Closing Brief at 18). Included October 2013 letter asking for various evaluations was an assistive technology evaluation. Dr. testified at the hearing that the assistive technology evaluation was completed during the impartial hearing process, and that the evaluation report recommended benefit from the use of a laptop (Partington: 130). This conclusion comports with Ms. ’s testimony and the recommendation by Dr. (Lawit: 65-66; : 344). Therefore, I find is entitled to the compensatory services of eight hours of instruction on the use of a laptop and any other additional services or recommendations on the assistive technology evaluation report, including, but not limited to, the provision of a laptop computer.9

Parent Training and Counseling

The parent argues that she entitled to compensatory services of ten hours of parent training and counseling (Parent’s Closing Brief at 18). The Department of Education does not take a position on this request in its Closing Brief. In support of this request Ms. cites to the provision in the Commissioner’s Regulations for requirements related to students , 8 N.Y.C.R.R. §200.13(d), and to case law also related to students classified as (Parent’s Closing Brief at 10-11). classified as having an “ ” and there is no requirement that parent counseling and training be provided. In any event, Ms. explained how she has been to find appropriate programs and agencies to transition

A copy of the assistive evaluation report was not submitted as evidence. and become more independent after graduation. Thus, I find that compensatory parent training and counseling services are not required.

ORDER

In light of the above Findings of Fact and Discussion it is hereby Ordered that:

1) Immediately upon receipt of this Decision and Order the CSE will arrange for any and all evaluations and/or assessments requested by the parent;

2) Prior to the IEP meeting Department of Education shall inform the parent of her right to invite individuals to the IEP meeting “who have knowledge or special expertise” about AJ to participate in the IEP meeting. 34 C.F.R. §300.322(b)(1)(ii); 8 N.Y.C.R.R. 200.3(b)(2)(vii);

3) At least five business days prior to the IEP meeting the Department of Education is to provide the parent with copies of all evaluations and other documents on which it will rely during the CSE meeting;.

4) Within 10 days of the receipt of all of the evaluations and assessments relevant to developing the IEP, the CSE is to reconvene, with all of the legally required members present as well providers for the 2012-2013 and 2013-2014 school years, a supervisory school psychologist who can interpret the results of all of the evaluations, and any participants that PD has invited to attend pursuant to (2) above;

5) The CSE team is to discuss the results of the evaluations in depth, including the HLC assessments and, based on those documents and the input from all of the participants at the CSE meeting the team is to develop an appropriate IEP

6) The IEP must include, but is not limited to:

a. Adaptive physical education and relevant goals;

b. Individual counseling and group counseling services with measurable goals and objectives to address the student’s social and emotional needs;

c. Measurable goals and objectives to address the student’s speech/language disabilities, , and needs;

d. Counseling goals and objectives to address the student’s low selfesteem, anxiety and frustration with her current achievement;

e. Measurable goals and objectives to disabilities, including a specific reading methodology;

f. A detailed transition plan focusing after she graduates from school;

7) The CSE must find an appropriate placement can provide her with all of the supports -- physical, social/emotional and academic -- that she requires in order to meet her unique special education needs and make progress so that she can eventually transition to an independent life. The placement must have other students of comparable cognitive ability and be able to work with reading and math levels. The placement must be able to provide significant activities of daily living instruction and transition services appropriate to meet needs with respect to becoming independent. The placement must also be able to provide physical education. If the Department of Education cannot recommend a public school placement that meets all of this criteria and also meets the satisfaction of case must be deferred to the CBST for a non-public school placement that meets these requirements.

8) Immediately upon receipt of this Decision and Order the Department of Education must provide following services to compensate for a deprivation of FAPE during the 2012-2013 and 2013-2013 school years:

a. 400 hours of SETSS services offered by the Department of Education, to be provided in home by a certified special education teacher. Until the SETSS services are put in place is to attend of Education expense so that she can begin to receive remediation services immediately;

b. The HLC sessions must be provided by a certified special education teacher and are to continue until a certified SETSS provider is ready to begin working The SETSS provider must contact provider to progress up to that point. The sessions are in addition to the 400 hours to be provided by the SETSS teacher.

c. Either 80 group 45-minute sessions of occupational therapy or 80 individual 30-minute sessions of occupational therapy, to be determined by the parent;

d. Either 80 group 45-minute sessions of physical therapy or 80 individual 30-minute sessions of physical therapy, to be determined by the parent;

e. If the CSE determines not receive all of her mandated speech/language services during the 2012-2013 and 2013-2014 school years, the number sessions missed must be provided compensation. If the CSE determines requires more than one session per week, the DOE must provide the additional number of sessions services as if those extra sessions had been mandated for the entirety of the 2013-2014 school year;

f. Eight hours of instruction on the use of a laptop and any other additional services or recommendations on the assistive technology evaluation report, including, but not limited to, the provision of a laptop computer; and

9) Within 30 days of the receipt of an invoice for the testing the Department of Education to pay for the assessment done in an amount not to exceed $295.00. Dated: June 11, 2014

Rona Feinberg, Esq.gc

RONA FEINBERG, ESQ.

Impartial Hearing Officer RF: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

Parents:

Exhibit A Omitted as Duplicative

Exhibit B Omitted as Duplicative

Exhibit C Individualized Education Program

dated December 20, 2013, 14 pages

Exhibit D Omitted as Duplicative

Exhibit E Omitted as Duplicative

Exhibit F Omitted as Duplicative

Exhibit G Letter to Parent from dated

December 11, 2013, 6 pages

Exhibit H Omitted as Duplicative

Exhibit I Letter to Parent from undated, 1

page

Exhibit J Letter to Parent from undated 2

pages

Exhibit K Omitted as Duplicative

Exhibit L Omitted as Duplicative

Exhibit M Omitted as Duplicative

Exhibit N Level 1 – Vocational Assessment

dated December 12, 2013, 1 page

Exhibit O Social History Updated dated

December 10, 2012, 2 pages

Exhibit P Omitted as Duplicative

Exhibit Q Omitted as Duplicative

Exhibit R Physical Examination dated

November 12, 2013, 3 pages

Exhibit S Evaluation dated November 6,

2013, 1 page

Exhibit T Occupational Therapy Report

undated, 3 pages

Exhibit U Report Card dated December 12,

2013, 1 page

Exhibit V Student Transcript dated December

12, 2013, 1 page

Exhibit W Omitted as Duplicative

Exhibit X Omitted as Duplicative

Exhibit Y Pupil Progress Report dated October

31, 2013, 1 page

Exhibit Z Award Letter for Financial Aid –

Union College dated March 13,

2013, 1 page

Exhibit AA Award Letter for Financial Aid –

Plattsburgh dated February 15, 2012,

1 page

Exhibit BB Order of Custody dated March 1,

2005, 1 page

Exhibit CC Report of Testing dated March 24,

2014, 2 pages

Exhibit DD Student Program Map undated, 1

page

Exhibit EE Testing Results and Test Pages dated

March 22, 2014, 46 pages

Department of Education:

Exhibit 1 Due Process Request dated January

13, 2014, 12 pages

Exhibit 2 Due Process Response dated January

14, 2014, 4 pages

Exhibit 3 Notice of IEP Meeting dated

December 12, 2013, 3 pages

Exhibit 4 Withdrawn

Exhibit 5 Final Notice of Recommendation

dated December 20, 2013, 1 page

Exhibit 6 Letter to School from Student’s

Grandmother/Guardian dated

October 29, 2013, 2 pages

Exhibit 7 Assistive Technology Evaluation

Referral dated October 31, 2013, 8

pages

Exhibit 8 Occupational Therapy Report dated

November 13, 2013, 11 pages

Exhibit 9 Physical Therapy Report dated

November 27, 2013, 5 pages

Exhibit 10 E valuation dated December 20,

2013, 5 pages

Exhibit 11 Evaluation Report dated December

17, 2013, 5 pages

Exhibit 12 Vineland-II Survey Interview Report dated December 16, 2013, 8 pages

Exhibit 13 Individualized Education Plan dated

December 5, 2012, 13 pages

Exhibit 14 Individualized Education Plan dated

June 1, 2012, 13 pages

Exhibit 15 Class Schedule undated, 1 page

Exhibit 16 Class Rosters dated March 7, 2013, 6

pages

Exhibit 17 Attendance Records dated March 6,

2014, 1 page

Exhibit 18 Transcript/Permanent Record dated

February 11, 2014, 2 pages

Exhibit 19 Withdrawn

Exhibit 20 Student Progress Report – SETSS

dated October 31, 2013, 1 page

Exhibit 21 Student Progress Report – Algebra

dated October 31, 2013, 1 page

Exhibit 22 Slosson Visual Motor Performance

Test – publisher’s online catalog

description of test, retrieved April 9,

2013, 3 pages

Exhibit 23 “Interpreting the Results of the

California Achievement Tests”

reproduced with permission form

CTB Macmillan/McGraw Hill

undated, 1 page

Exhibit 24 “New Test Reviews: California

Achievement Tests (CAT/5)

reproduced from Cengage Learning

online catalog retrieved April 9,

2013, 3 pages

Exhibit 25 California Achievement Tests, Fifth

Edition (CAT/5) - Piedmont

Education Services online catalog

description of test retrieved April 9,

2013

Hearing Officer

Exhibit I Case Follow Up sheets indicating

extensions of the timeline, 6 pages

Exhibit II Department of Education Closing

Brief and Memorandum of Law

dated May 8, 2014, 16 pages

Exhibit III Parent’s Closing Brief dated May 8,

2014, 19 pages

---

Footnotes

[5] Ms. does not have a special education background and is not licensed to teach in the state of New York and has never served as a member of an IEP team ( : 218). Citations to pages 218- 219 refer to Ms. ’s cross-examination of Ms