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: June 12, 2014

June 19, 2014

July 28, 2014

July 29, 2014

Actual Record Closed Date: November 25, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 12, 2014

For the Student:

Attorney

For the Department of Education:

Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 19, 2014

For the Student:

Attorney

For the Department of Education:

Attorney

IEP COORDINATOR (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 28, 2014

For the Department of Education:

Attorney

For the Department of Education:

Attorney

Special Education Teacher (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 29, 2014

For the Student:

Attorney

For the Department of Education:

DOE Attorney

Special Ed Teacher (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 5, 2014

For the Student:

Attorney

- Parent

Director (Via Telephone)

For the Department of Education:

Attorney

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student. The hearing of this matter took place over several days: May 23, 2014, May 27, 2014, May 28, 2014 and June 3, 2014.

PARENT’S POSITION

The Parent argues that the Student was deprived a free appropriate public education (“FAPE”) for the last three years of school. For the 2011/2012 school year, (Ex. 1-2) the Parent contends that the December 6, 2011 IEP (Ex. 3) was inadequate. (Ex. 1-2) The CSE recommended a placement; the Parent alleges that the Student required environment. (Id. at 3) The Parent argues that IEP did not include goals and it failed to address deficits. (Id.) The Parent alleges also that the CSE violated IDEA and New York law when it failed to include the general education teacher and the school psychologist (Id.)

Regarding the 2012/2013 school year, the Parent argues that the November 5, 2012 IEP (Ex. 6) is similarly inadequate. (Ex. 1-4)The Student was failing while attending a classroom, yet this IEP recommended a placement^[1]. (Id.) The Parent alleges that this IEP’s recommendations were flawed in that the annual goals were vague and overbroad. (Id.) The Parent argues that the District failed to provide (“ ”) during this time period.

The Parent contends that criteria were required, but not provided. (Id.) The Parent argues that the CSE again violated IDEA when it failed to include the general education teacher and school psychologist. (Id.)

Turning to the 2013/2014 school year, the Parent argues that the CSE continued a placement (See, Ex. 12 for 10/24/13 IEP & Ex. 13 for 11/22/13 IEP) even though the Student continued failing in a . (Ex. 1-5) The Parent argues that the CSE did not provide sufficient time for and . (Id.) Similarly, were not provided during this school year either. (Id.) The Parent alleges also that the CSE failed to increase the Student’s annual goals and objectives; instead it chose to decrease them despite the Student’s continued academic struggle. (Id.) The Parent seeks services in the amount of ( ) hours at the . The Parent also seeks a Nickerson letter.

DISTRICT’S POSITION

The District’s position is that the Student was offered a FAPE during the 2011/2012, 2012/2013, and 2013/2014 school years. (Tr. 46) The DOE argues that the Student made progress over these school years, and that more progress would have been made had the Student attended recommended hours, , and . (Id. at 47) The DOE maintains that the Student should not be awarded any of the hours because the Student failed to avail himself to offered through the DOE. (Id.) In the event that this type of award is deemed appropriate, the District argues in the alternative, that the amount of hours should be reduced. (Id. at 48)

Upon examination of the evidence and testimony presented in this case, I find that the District did not meet its obligation to provide the Student a FAPE during the 2011/2012 school year. The District failed to address the Student’s deficit despite obvious indicators that the Student’s level was . The District similarly failed to offer a FAPE during the 2012/2013 school year. The CSE recommended an of the Student’s class size despite his struggles and . I note that the District never implemented this IEP. The District also failed to provide that were warranted during this time period. Finally, I find that the Student was deprived a FAPE during the 2013/2014 school year. The District repeated its error in withholding , and wrongly persisted with its unwarranted effort to the Student’s class size. Accordingly, the Parent is granted a modified compensatory education award.

FINDINGS OF FACT

The following details are established as factual findings in this case:

1. From the 2004/2005 school year through the 2010/2011 school year the Student recorded absences from school. (Ex. 10-1)

2. The CSE convened on or about December 6, 2011 while the Student was in grade. (Ex. 3) At which time, the Student was classified as having a . (Ex. 3-1)

3. The CSE recommended that the Student be placed in a classroom. (Ex. 3-7) Approximately one month later, the Student was administered an (“ ”) review. (Ex. 5)

4. During 2011/2012; the Student’s needs could be adequately addressed without . (Ex. 5-3)

5. The Student rarely availed himself of free, non-mandated services during the 2011/2012 school year, even though such services were offered by the District. (Tr. 88).

6. While the Student was attending the grade during the 2011/2012 school year, the Student was absent from school times. (Ex. 10-1)

7. The Student was promoted to the grade, and he attended the during the 2012/2013 school year. (Ex. 1)

8. The CSE reconvened on or about November 5, 2012. (Ex. F) The CSE reclassified the Student as . (Ex. F-1) The CSE recommended that the Student go from a classroom to a classroom. (Ex. F-12)

9. The Student did not actually attend a in , but remained in a . (Tr. 128)

10. The Student was not offered or provided during the 2012/2013 school year. (Tr. 87)

11. While the Student was attending the grade during the 2012/2013 school year, the Student was absent from school times. (Ex. 10-1)

12. Upon completing the grade, the Student switched schools to attend a different Public School during the grade. (Ex. 1-5)

13. The Student’s Progress Reports (Ex. M) and Test Reports (Ex. J) were more realistic measures of the Student’s academic aptitude.

14. During the Student’s grade year, the CSE met on or about October 24, 2013. (Ex. 12) The Student was classified as , (Ex. 12-1) and a placement was again recommended for the Student. (Ex. 12-6)

15. The CSE held another IEP meeting about one month later on or about November 22, 2013. (Ex. 13) The Student was classified as (Ex. 13-1); the recommendation for the classroom was also repeated. (Ex. 13-8)

16. The Student was not offered or provided during the 2013/2014 school year (Tr. 87) even though such services were warranted.

17. The Student was administered a psychological evaluation to measure his academic achievement on or about December 2, 2013. (Ex. 20-1) The evaluation showed that the Student’s standard score was in the range. (Id.) Also, his performance was on tasks requiring . (Id.) The Student’s skills were equivalent to that of a grade student. (Id.)

18. The Student was evaluated by the on or about December 27, 2013. (Ex. J) That report indicated the Student’s performance was ; his performance was ( level); his was ; and his was also . (Ex. J-1-2)

19. A classroom observation of the Student was conducted on or about February 11, 2014. (Ex. 19) The observer noted that it would be difficult to determine whether the Student would have more success with regular attendance. (Id.)

20. The Student was administered a second psycho-educational evaluation on or about March 11, 2014. (Ex. 18) The Student’s skills exhibited ; though, his skills were . (Ex. 18-3)

21. The Student was administered a second evaluation on or about March 19, 2014. (Ex. 17) The evaluator noted that the Student is and . (Ex. 17-7) The Student demonstrated performance in the area of ; services were not recommended. (Id.)

22. The Student was administered a / evaluation on or about March 24, 2014. (Ex. 16) The evaluator noted that the Student exhibited difficulty with and . (Ex. 16-2) His was found to be a weakness. (Id.) The Student also exhibited difficulties . (Id.)

23. Notwithstanding the criteria I find that the progress reported was insufficient to support a finding of FAPE for any of the three years in question. The Student’s Performance Testing (Ex. N) was a more accurate measure of the Student’s actual academic posture.

24.

25. The Student was absent from school times during the 2013/2014 school year. (Ex. 14-1)

LEGAL BACKGROUND

The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (FAPE). 20 U.S.C. § 612(a) (I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a) (1) (A).

In New York State, “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 . . .” (NY Educ. Law § 4404 (1)(c)) modifying the rule enunciated in Schaffer where “The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer v. W east, 546 U.S. at 537.

COMPENSATORY EDUCATION

Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and … mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]

Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New Y ork City D ep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008])

Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 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 generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]). 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 (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction].

Although compensatory education relief may be awarded to a student with a disability who remains eligible under the IDEA, such an award is typically fashioned to augment what adequate services are provided by the District.

In this case, the Parent argues that ( ) hours at the will likely restore the academic aptitude that would have developed if not for the District’s failures.

2011/2012 school year

With respect to the December 6, 2011 IEP, the Parent argued first that it was inadequate because the recommendation was not proper. (Ex. 1-2) The Parent argues that the Student required environment. (Id. at 3) Specifically, the Parent argues that the results of a 2008 psycho-educational evaluation indicated a environment was more appropriate. (Ex. IHO 1-1-2) After careful review of the record, I do not find support for this allegation. (The 2008 psycho-educational evaluation is not in the record) Without it, I cannot find for the Parent on this point.

However, I agree with the Parent that the December 6, 2011 IEP should have addressed the Student’s deficit. (Ex. 1-3)

The CSE’s failure to address the Student’s deficit was a gross violation in this case. At the time of the December 6, 2011 IEP meeting, the CSE knew the Student’s performance on the 2010/2011 state ( ) evaluation was in the in the “school” and “citywide”. (Ex.s 3 & O) The special education teacher responsible for the Student’s learning during the 2011/2012 school year, and the year prior, testified that she knew the Student’s ( ) grade level was when he began the grade in 2011. (Tr. 130-31)

The Student scored at the level range) in category. (Ex. O-1-4) The Student’s score in each of the identified as ; ; and , collectively demonstrate the Student’s deficiency. (Ex. O-4) In the face of these results, the CSE did not respond with a single provision to address the Student’s deficit. (Ex. 3) The only item in the IEP that may feasibly be attributed to the topic of is a generic goal. (Ex. 3-5) The goal states that the Student will when … (Id.) The IEP does accurately recognize that the Student is level in . (Id. at 1) It also notes correctly that he has difficulty . (Id.) However, an argument that the IEP targets these deficits with substance cannot be made.

I turn now to the Parent’s claim that the December 6, 2011 IEP should have included goals. This claim is unsupported. I find that the IEP sufficiently accounts for the Student’s known state at that time. The IEP recognizes the Student’s need — . (Ex. 3-6) Beyond this, the record does not indicate that objectives should have been a target area. The Parent’s testimony about the Student’s —and between the Student and Parent. (Tr. 109-10) The Parent argues that the Student regressed and throughout his grade year, citing Exhibit N. (Ex. IHO 1-3) Exhibit N depicts purely academic data; it does not address the Student’s condition. (Ex. N-1-4)

Whether the CSE failed to address the Student’s needs does not ultimately bear on the receipt of a FAPE in this case. I find the Student was deprived a FAPE during the 2011/2012 school year because the CSE ignored the Student’s deficit.

Also nontrivial is the Parent’s claim that the CSE was unduly constituted. Nonetheless, I note that Section 4402 (1)(b)(1) of the Education Law provides that a CSE shall consist of the child's teacher as defined by Federal regulation, a school psychologist, a representative of the school district who is authorized to provide or supervise the provision of special education, a parent of a child with a handicapping condition and a school physician... SRO No. 92-37

The alleged absences from the CSE meeting would constitute a single procedural violation in this case. This violation would be a de minimus flaw that would not in itself prevent the Student from receiving a FAPE. A definite finding on this point is unnecessary, as I find the Student was deprived a FAPE based on the IEP’s substantive shortcomings.

2012/2013 school year

I turn now to the alleged violations in connection with the 2012/2013 school year.

The Parent argues that the Student was failing while attending a classroom, so the CSE should not have increased his class size to a . (Id.) I agree. Although no evidence was offered to refute the recommended placement for 2011/2012, the record indicates that the plan to the Student’s class size in 2012/2013 was ill-advised.

However, I find that the Student did not actually attend a in , but remained in a . I find that the CSE was careless to recommend a , but this did not lead to a denial of FAPE because the recommendation was not implemented.

The CSE was privy to the Student’s new Public School score report at the time of the November 5, 2012 IEP meeting. (Ex. N) The CSE knew or should have known that the Student’s performance earned him an rating in each area tested. (Ex. N-1-4) The Student was academically to say the least. Worse, the January 11, 2012 School Function Status Report available to the CSE noted that the Student performed level in , , and . (Ex. 5-2) Importantly, the Report also noted that the Student was ; ; and . (Id.) The Student’s special education teacher for the grade testified that the Student , and was . (Tr. 128-29) These factors undermine any motivation for the Student’s class size.

Nonetheless, a FAPE was not lost on this issue because the plan for a did not come to fruition. The Parent admitted that the Student did in fact remain in a . (Tr. 128) The special education teacher also testified that the Student remained in a School classroom while he was in grade (2012/2013). (Tr. 116-18) Conversation at hearing revealed that the DOE does not even have placements available for graders at schools. (Tr. 167) The Student did not actually move to a until the grade. (Tr. 166) In light of this testimony, I find that the Student’s class size was not actually .

A FAPE was not lost on the foregoing issue, nor do I find support for the Parent’s claim that the IEP goals were vague and overbroad. Conversely, I find that the November 5, 2012 IEP is sufficiently specific with respect to the goals and objectives.

A school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra v. Paw ling, 427 F.3d at 195, quoting Walczak v. Florida Union Free School Dist., 142 F.3d at 130 [citations omitted]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir.1997]; see Rowley, 458 U.S. at 192). Goals and short-term objectives are sufficient when they address a student’s weakness and enable the student to make progress. Application of a Student with a Disability, Appeal No. 12-070.

An appropriate educational program begins with an IEP that includes a statement of the Student's present levels of academic achievement and functional performance (see 34 CFR 7 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlow e v. New Y ork City Bd. of Educ., 07 Civ. 7936 (GEL) [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]

In this instance, the IEP includes a statement of the Student’s present levels of academic achievement and functional performance. (Ex. 6-1-2) The goals—as written— correspond with the Student’s deficiencies. (Ex. 6-4-9) They address the Student’s weakness and their detail is sufficient to indicate that they will produce progress, not regression. (Id.) For these reasons, I cannot find support for the Parent’s claim that the goals and objectives are vague and overbroad. Here, however, I reiterate the requirement that an IEP provide for the use of appropriate special education services. 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]. I find that the IEP does not accomplish this, and the Parent’s claim that should have been offered/provided is supported.

The severity of the Student’s academic posture does not need to be repeated here.

The special education teacher testified that she did not remember the Parent indicating were sought prior to the 2012/2013 school year. (Tr. 96) She testified also that were not necessary because the Student was already in setting. (Tr. 87) On the other hand, she testified that may have been beneficial, but that is typically something that occurs after school. (Id. at 88) offered by the District is free in the early morning, but the Student had a history of , and therefore could not take advantage. (Id.) I find that this testimony points toward the need for including in the IEP.

The teacher’s testimony revealed that the CSE knew or should have known the Student was not receiving support during the school day. They knew or should have known the Student was not after school. Despite knowing the Student’s academic needs were , and that he was not receiving or a related support service, the CSE failed to even consider that the Student should receive . (Tr. 87) In light of this picture, I find that the Student was not provided a FAPE during the 2012/2013 school year.

The Parent contends that criteria were required, but not provided. (Ex. 1-4) This allegation is simply unfounded. The IEP makes clear that the Student’s promotional criteria were in 2012/2013. (Ex. 6-14) The Student was expected to meet of the grade standards for . (Id.) He was likewise expected to achieve of the grade standards for . (Id.) The IEP even indicates that promotional criteria would be in the following year (2013/2014). The Student’s expectations were to in both and . (Id.) Upon this evidence, the Parent’s allegation is dismissed.

The Parent argues that the CSE again violated IDEA when it failed to include the general education teacher and school psychologist. (Id.) I resolve this claim in the same manner as previously discussed in relation to the 2011/2012 school year. This violation would be a de minimus flaw that would not in itself prevent the Student from receiving a FAPE. A definite finding on this point is unnecessary, as I find the Student was deprived a FAPE based on the CSE’s failure to even consider .

I turn finally to the Parent’s allegations with respect to the 2013/2014 school year.

The Parent argues that the CSE recommended a placement for a second time despite the fact that the Student continued failing in a . (Ex. 1-5)

A school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" Cerra, 427 F.3d at 195.

I agree with the Parent that a recommendation could not reasonably have been expected to produce progress in this case. The October 24, 2013 IEP recommended a placement so the Student could access the environment (Ex. 12-3), as did the November 22, 2013 IEP (Ex. 13-8) In this instance, the Student was actually moved from a to a for his grade year. (Tr. 166) I agree with the Parent that the Student’s class size did not correlate with the Student’s known tendency . (Tr. 141) Nor did it demonstrate an understanding of the Student’s state. Accordingly, I find that the recommendation contributed to the deprivation of a FAPE during the 2013/2014 school year.

The Parent argues that should have been provided during the 2012/2013 school year, but they were not. (Ex. 1-5) I resolve this issue in favor of the Parent pursuant to the rationale set forth above—in relation to the 2012/2013 school year. This oversight supports a finding that the Student was not offered a FAPE in 2013/2014.

The Parent argues that the CSE did not provide sufficient time for and . (Id.) The Parent testified that she did not agree with the District evaluator’s decision concerning the Student’s need for . (Tr. 125) A finding that involves analyzing the merits of the District’s position is unnecessary. The Parent is not seeking provision for an re-evaluation. Besides, the issue does not affect the aforementioned finding that the District failed to provide a FAPE during 2013/2014.

In sum, I find that the Student was deprived a FAPE during his , and grade years (2011-2014).

In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Parents of Student W . v. Puy allup Sch. Dist. 31 F.3d 1489, 1497.

Although compensatory education relief may be awarded to a student with a disability who remains eligible under the IDEA, such an award is typically fashioned to augment what adequate services are provided by the District. In this case, the District’s failure to provide a FAPE for three (3) consecutive years speaks to the appropriateness of extensive compensatory education. However, a moderate reduction in the award sought by the Parent is appropriate for the reasons set forth below:

Throughout this case the DOE pointed to the Student’s propensity for and often . The Student was often and therefore did not take advantage of the free service offered by the District. (Tr. 88) The Parent alleges that the Student was deprived a FAPE from the outset of his grade year (2011/2012). (Ex. 1) Over the course of the academic years preceding the Student’s grade year, he missed school a total of times. (Ex. 10-1) The Student was then absent times during grade; times in grade; and times this past year (2013/2014). (Ex. 10; 14) The Student’s attendance record bears on my estimation of an appropriate award. It is difficult to determine, although likely that the Student’s academic may not be as had he . Despite the difficulty with apportioning fault in this area, I find that a reduction in the amount of hours requested is appropriate. On this point, the Student’s reputation for does not indicate that transition to a different school would be helpful or even appropriate. The Parent’s request for a Nickerson letter is therefore denied.

Even so, the Parent, whose testimony I credit, testified that she believed the Student would be excited about attending the , and that he would in fact attend. (Tr. 131-33) At hearing, the Parent admitted that using even hours per week would not be practical. (Tr. 150) I consider this admission in conjunction with the fact that the Parent’s request presupposes the Student will be unable to make any improvements during the current school year. The Parent’s request also presumes the Student will not progress during his and grade years. In view of these considerations, I hereby reduce the number of compensatory service hours by an additional . Therefore, the appropriate number of compensatory service hours is Accordingly, I hereby order:

1. Beginning on November 14, 2014, the District shall provide a bank of hours of instruction to be provided by the during the current academic year (2014/2015), to be paid upon presentation of bills for services rendered. Of this bank of hours, hours shall be provided to the for working with the CSE each time it convenes to prepare goals, share learning characteristics, and/or otherwise collaborate for the benefit of the Student;

2. The District shall provide a bank of hours of instruction to be provided by the during the 2015/2016 school year, to be paid upon presentation of bills for services rendered. Of this bank of hours, hours shall be provided to the for working with the CSE each time it convenes to prepare goals, share learning characteristics, and/or otherwise collaborate for the benefit of the Student;

3. The District shall provide a bank of hours of instruction to be provided by the during the 2016/2017 school year, to be paid upon presentation of bills for services rendered. Of this bank of hours, hours shall be provided to the for working with the CSE each time it convenes to prepare goals, share learning characteristics, and/or otherwise collaborate for the benefit of the Student; however, in no case should hours awarded be extended beyond months from November 14, 2014.

4. The District shall reimburse the dollars for the cost of the Student Registration fee and dollars for the cost of diagnostic testing.

5. The District shall provide reimbursement for, or the provision of a one metro card for the Parent and one metro card for the Student each month the is accessed.

So Ordered,

Dated: December 2, 2014

, ESQ.

Impartial Hearing Officer

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

D Student Progress Report, 11/5/12, 2 pages

F IEP 2012-2013, 11/5/12, 19 pages

I Letter from Parent, 12/2/11, 1 page

J Testing, 12/27/13, 33 pages

K Student Report Cards, 2013, 3 pages

M Progress Reports, 2012-2013, 24 pages

N Performance Testing , 2011-2012, 4 pages

O Student Report, 2010-11, 4 pages

P Comprehensive Test, 14 pages

Footnotes

[1] Despite the change in program the Student remained in the classroom through 2012/2013. (Tr. 116-118 & 128)