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

Dates of Hearing: July 23, 2013

October 15, 2013

October 18, 2013

November 26, 2013

February 12, 2014

Actual Record Closed Date: April 3, 2014

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 23, 2013

Esq. Attorney — Parents

District Representative-CSE — DOE

Supervisor/Teacher — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 15, 2013

Esq. Attorney — Parents

District Representative-CSE 6 — DOE

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

Esq. Attorney — Parents

District Representative-CSE — DOE

School- Supervisor/Teacher — DOE

(via telephone)

Principal- DOE Home Instruction — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 26, 2013

Esq. Attorney — Parents

(via telephone)

District Representative-CSE — DOE

Special Ed Teacher — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 12, 2014

Esq. Attorney — Parents

Mother — Parents

(via telephone)

Dr. Pediatric Neurologist — Parents

(via telephone)

District Representative-CSE — DOE

Home Instruction Teacher — DOE

(via telephone)

On July 23, 2013, October 15, 2013, October 18, 2013, November 26, 2013, and February 12, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

Procedural History

The proceeding was initiated at the request of the parent by correspondence dated March 8, 2013. (Ex. III) I was appointed Impartial Hearing Officer on May 8, 2013, after recusals by several impartial hearing officers. I was available to conduct a hearing within 14 days of appointment. A telephone conference with the parties was conducted on May 20, 2013, at which parent’s counsel articulated claims that did not appear to be specifically stated in the hearing request and it was indicated that an amended complaint would be filed. However, a hearing was scheduled for June 19, 2013, the first mutually available date, in the event that an amended complaint was not filed. It was agreed that hearings would be scheduled for July 23 and July 30, in view of the 30 day resolution period, if an amended hearing request was filed by letter dated June 14, 2013 (T. 4-5, Ex. II) An amended hearing request was filed by letter dated June 14, 2013 and amendment was granted. (T. 5, Ex. P)

By email dated July 11, 2013, the parent requested that the resolution period be concluded pursuant to 8 NYCRR 200.5 in view of the district’s failure to hold a resolution meeting with 15 days. That request was granted and the previously discussed July 23 and July 30 dates were placed on the calendar. The district’s request to adjourn the July 23 hearing was denied. (T. 5, Ex. I) The hearing commenced on July 23, 2013. The July 30 hearing was adjourned at the request of the parent. Hearings scheduled for August 2, 2013, August 16, 2013 and September 19, 2013 were adjourned at the request of the parent and/or district due to, among other things, various family medical emergencies. (Ex. IV) The parent’s counsel of record also changed to another member of the firm as a consequence of family-related leave. (T. 77) Hearings were thereafter held October 15, 2013, October 18, 2013 on November 26, 2013. It had been expected that the evidentiary phase would conclude on November 26 . (T. 111, 224-225) However, various witnesses, including the parent, subsequently became unable to appear on that date. (T. 229) A hearing was thereafter scheduled for February 12, 2014, the next then available date for all parties and the witnesses. (T. 231, 256)

Subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing arguments as well as the various medical emergencies that had required cancellation of hearings. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and written decisions were provided to the parties. (T. 76, 111-112, 117, 230, 232, 261-262, 346, Ex. V)

The current compliance date is April 20, 2014. The record closed on April 3,

2014. ^[1]

Lists of documents in the record and persons who appeared are appended.

Positions of the Parties

The sole issue at this time is the parent’s claim for compensatory educational services of 150 hours and related services ( therapy, therapy and therapy) aggregating to 150 hours arising from alleged DOE failures to provide a FAPE during the 2011-2012 school year, after the issuance of the IEP May 27, 2011 IEP. (T. 78, 88)^[2] The parent asserts that during the 2011-2012 school year, the student developed debilitating seizures and was unable to attend school and that the CSE never reconvened to evaluate the student or to modify the IEP and develop an appropriate program although aware that the program in effect was not appropriate. (T. 83, Ex. VII)

The DOE asserts that the mandated services were available to the student at the DOE recommended placement ( ) in which she was enrolled, that the student historically had a poor attendance record and that the CSE was not appropriately notified of a changed medical condition and/or any need for home instruction. The DOE therefore asserts that equitable considerations do not support compensatory services. Further, the DOE claims that there is insufficient evidence to determine appropriate compensatory services. (T. 92-93, 99, Ex. VI)

Cases Presented

A list of documents submitted by the parties is appended.

The DOE submitted the testimony of: , Director of ; , Principal for Home Instruction; , CSE Special Education Teacher; , Home Instruction Teacher.

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With regard to the remaining issues in this matter, testified that:

She is currently the Director of the School which is an NPS (a non public school with which the district may contract for the provision of special education services) whose students all come from the DOE. (T. 13) All its students have , it uses the principles of ABA and TEACH and it provides occupational therapy (“ ”), speechlanguage therapy (“ ”), (“PT”) and . (T. 13, 15, 46-49) During the 2011-2012 school

Further, the parent requested in the amended request and in her closing memorandum ABA and parent training in addition to compensatory educational and related services. However, I conclude that those claims for relief were withdrawn during the hearing. (T. 79-92) Moreover, as discussed below, I find insufficient support for those requests.

At the October 15, 2013 hearing, the parent also represented that she was making no claims in connection with the development of the IEPs and that all claims concerned the period subsequent to issuance, i.e. the period during which the IEPs were implemented. (T. 79, 88) To the extent that the parent’s memorandum suggests that the parent continues to assert claims concerning IEP development, year she was Educational Supervisor and her duties included being a key member of the behavior team wording on different strategies for the students. (T. 15-16) She holds a variety of administration and supervision certifications and is also certified as a special educator for birth to 21. (T. 17-18) Team meetings were held two-three times per month and parents were invited. (T. 18-19) Scheduled parent training was available although utilized by very few parents because of conflicting responsibilities. (T. 19-20)

From her initial enrollment and during the 2011-2012 school year, the student was enrolled in an class and she also had a in at least the 2011-2012 school year. (T. 24) Related services mandated by the CSE were provided in the school or if not possible through issuance of RSAs by the DOE upon notification by the school. (T. 25-26) Parents are informed by letter once a year as to whether the services will be provided in school or by RSAs. (T. 29-30, 33 Ex. 1) During the 2011-2012 school year, this student was to receive three (3) 45 minute sessions and three (3) 45 minute sessions via RSAs. (T. 33-36, Ex. 1) The balance of the students related services were available at the school. (T. 35) Toledo had no knowledge as to whether the RSAs were issued. (T.

35) School based related services missed by a student because of absence are made up if possible but only one session a day is possible to deliver so some may not be made up.

(T. 31-32) Schedules are adjusted if possible if lateness is persistent to limit loss of related services. (T. 42) Toledo did not participate in the February 2012 IEP meeting and was not aware that SETSS for home based services was added to the student’s program.

(T. 61-62, Exs. 12, A)

The student’s attendance from her initial enrollment in 2008 or 2009 was very poor with attendance over a full week rarely occurring, lateness of an hour or two every day and early leaving and understood that to have been the pattern in the prior placement. (T. 23-24, 41, 57-58, 120, 151, 161, Ex. 2) During many conversations with Toledo, the parent stated that the student’s sleeping patterns were off and was assured that the student would return the next day. (T. 23, 121, 123) The student’s attendance in the 2011-2012 school year had been even poorer and she did not attend at all during the including procedural or substantive defects specified in the amended hearing request, I conclude that those claims were waived and they will not now be considered. (Ex. VII) Summer 2012. (T. 37, Ex. 2) A Request for Determination Regarding Student Status/Notification Regarding (“RD/NA”) dated August 29, 2012 was issued at the end of the summer. (T. 36, Ex. 11) The RD/NA was prepared by and specifies 138 days of absence from September 2011-June 2012, consistent with the school’s attendance record which shows that the student was present only 41 days in that period. (Exs. 1, 2, 11) The school has a policy of asking for doctor’s notes in order to mark an absence as excused but Toledo recalled none regarding the student. (T. 127) Attendance records indicate some excused absences but the fact that some absences are indicated as “excused” does not mean that a doctor’s note or other written explanation was provided because sometimes after an initial call from a parent absences are marked as excused although no documents have been received. (T. 38-40, 127-128)

Toledo and/or staff spoke with the parent usually daily, concerning lateness and absences and Toledo was initially lead to believe the student would be in the next day. (T. 41-42, 123, 144, 151, 156, 157-158, 162) offered the parent help with strategies to help with the student’s attendance but the parent told her it was just a result of not sleeping well. (T. 123, 125, 130-131) In Fall 2011, the parent informed concerning experienced by the student. (T. 43,132-134, 136) were ever observed by or reported by staff while the student attended (T. 43) The parent was very alarmed, the student’s attendance decreased and eventually ceased bringing the student to school at all. (T. 136) testified that the parent was good about providing information about issues with doctors and she believed that if the student had a written diagnosis that documentation would have been provided to her. (T. 44) She testified that she never received any documentation from a doctor concerning the student’s excessive absences and that she had repeatedly asked the parent for that because the school did not want to have to investigate or discharge the student. (T. 139, 140, 164, 168-169) The parent did not at any time to believe that she wanted the student . (T. 142, 152-153) Toledo stated that as a consequence if there was any progress, she would estimate it to be minimal and that attendance impacted the student’s education. (T. 57, 120)

The student did not attend for the 2012-2013 school year but the parent had not told Toledo that she was removing the student and had no personal knowledge as to what the reason was. (T. 64)

stated that the district was “well aware” of the student’s attendance and lateness issues through information provided to the district representative and that she called the district all the time. (T. 124, 130, 140) Further, the district knew that the school had been talking to the parents and of the . (T. 152) The district often had information that she was no privy to and all she can do is provide the information she has. (T. 141) She had no knowledge as to any instruction received by the student at home. (T. 138, 141, 142) Further, she did not know whether the student received related services outside of school in 2011-2012. (T. 173) The August 29, 2012, RD/NY was prepared to obtain a written response from the district with regard to whether the student . (T. 144-145, Ex. 11) She had not filed the form earlier although she could have, and had prepared one, because there had been communications with the parent daily, the parent had been providing legitimate reasons and assurances believed and she did not want to put additional pressure on the parent . (T. 146-149) Although she was aware Chancellor’s regulations as to RD/NY requirements regarding absences, she stated that the district knew every day. (T. 149) Further, she stated that if the parent had indicated that she wanted another educational environment, she would have supported that but that was not the case here.

(T. 164) did not refer the student for ”) because she believed that the school was a good placement for her if she came in. (T. 166) No one ever communicated to her that would be appropriate. (T. 167-168)

”)

is currently assistant principal for and has been for 15 years. (T. 181-183) If a referral for is received from one of the schools in her area of responsibility her duties include processing the referral and subsequently supervising the teachers. (T. 185) Processing the referral includes obtaining the appropriate form and medical and or . (T. 185, 187) Referrals can be submitted by a parent or forwarded by a school or doctor. (T.

187) In some instances CSEs place on an IEP and although was not familiar with the CSE process in making the recommendation she stated that medical documentation is also required to be submitted for the service. (T. 202-203, 219) In this matter a referral was received by letter dated October 27, 2012 from the parent, who provided medical documentation dated October 26, 2012, asserting that the student being addressed medically and was not able to return to school. (T. 188-190, Exs. 4, 5) The student was approved for and was to receive services in the “evening program”, 4PM - 6PM because there were no services available earlier in the day. (T. 190, 218-219) Although staff was assigned there were difficulties in providing the service arising from the student’s needs and staff reported that the parent had away. (T. 191-199, 208 Ex. 6) Documents specify that the “admit date” was December 10, 2012 and that service was discontinued on January 7, 2013 as a consequence of those difficulties. (T. 200, 206-207, Ex. 6) The student was again referred for day instruction on April 3, 2013 and a teacher was assigned. (T. 204) She had no knowledge as to whether the student received between January 7, 2013 and April 3, 2013. (T.209) She had no knowledge as to whether was provided during the 2011-2012 school year. (T. 213)

”)

testimony included the following:

She is a special education teacher who was the CSE Teacher Assigned and the District representative for the February 10, 2012 IEP meeting. (T. 235-236, 246-247, Ex.

A) is one of the schools her team deals with in terms of writing IEPs, conducting testing and observations. (T. 236) The IEP created was a revision of a prior annual IEP, with which she was not involved, and was solely for the purpose of adding after school SETSS to the NPS program provided in the annual IEP. (T. 237-238, 245) She believed that was the result of agreement arising from the impartial hearing process. (T. 237, 251-252, Ex.

M) The parent appeared by telephone. (T. 238, 254, Ex. A) There were no other participants. (T. 246) A psychologist is not a mandated member for IEP amendment to add a service. (T. 251) Attendance was not discussed at the meeting. (T. 247) She does not have access to the school’s attendance record. (T. 248) She did not receive information as to attendance but had she had it would have addressed it. (T. 249)

At the time of the meeting, knew nothing about the student’s medical condition.

(T. 238) She did not learn about that until after the summer 2012 about when she received the RD/NA and spoke with the parent who informed her that the student was having and was unable to attend school (T. 238-240, Ex. 11) The parent informed her that was desired because of and explained the procedure which required the sending of a letter and medical documentation submitted when received. (T. 240-241) To the best of her knowledge the student received no HI during the 2011-2012 school year. (T. 250)

”)

is a certified special education teacher assigned is trained in ABA and provided services to the student in the summer of 2013. (T. 299-300) She provided 5 approximately 1 ½ hour 1:1 sessions each week. (T. 201-302) She utilized ABA 3 times per week and the other 2 sessions worked on IEP goals. (T. 302-, Ex. 13) The student made a lot of progress, especially with ABA, in the summer program. (T. 303-312, Ex.

13) With regard to the student’s cognitive level when she commenced, she estimated that she was at a pre-Kindergarten level. (T. 306) Her reading and math skills were nonexistent. (T. 313)

The parent submitted the testimony of: Dr. , Pediatric Neurologist; the student’s mother. Dr. )

’s testimony included the following:

He is a pediatric neurologist who first treated the student on October 31, 2011.

(T. 321) It was reported that she had for a few years before but he did not know if she had been medically treated for them. (T. 322) The student has static brain development that causes and is . (T. 320-321, 331, 332) Her spontaneously, without predictability and are dangerous if prolonged requiring someone to be there. (T. 321) At the time he first saw her, he concluded that it would not be safe for her to be in school because of the which was a few times a week and sometimes twice a day and because she is so impaired.

(T. 322-323, 339) It took a long time to get with and they are not fully controlled and now happening about once a month. (T. 322, 324) The had not started winding down until February 2013 but by June 2013, the frequency had increased again to from 2-3 per day. (T. 324-325)

When he first saw the parent, he had recommended home schooling or whatever other options were available since she should not be going to a school outside the house.

(T. 325)

testified that when he first started seeing her, he believes he spoke to the school and also wrote a letter asking that the school contact him but had no record of either the conversation or the letter. (T. 326, 329-330, 344) He does have records of having written October 2012, December 2012 and June 2013. (T. 326-328) However, sometimes he writes handwritten notes and does not record that in the file. (T. 330, 344) was aware that the student did not during 2011-2012 but stated that he did not know if that impacted her. (T. 334) During the 2011-2012 school year, he saw her in October 2011, November 2011, December 2011, February 2012 and May 2012. (T. 340)

Parent

The parent’s testimony included the following:

The student was initially diagnosed and then when school . Her diagnosis of epilepsy was made in November 2011 but prior to that she had begun in her sleep. (T.

268) The student is , has poor adaptive living skills requiring assistance with everything and communicates primarily by pointing. (T. 269) She is currently receiving and at an outside facility, gets one hour of home instruction from the DOE per day and is not receiving any ABA services. (T. 269) She has received since December 2012 and did not receive during the 2011-2012 school year. (T. 270, 278) The parent stated that the student received no related services during the during the 2011-2012 school year. (T.

277) The student regressed in the absence of consistency. (T. 278, 295)

The student for about 4 years and did not make much progress and the parent believes it was not an appropriate placement. (T. 271-272, 280) In the school the student received for 30 minute sessions twice a week. (T. 272) The student started to get seizures in Fall 2011. They occurred in her sleep and left her lethargic and sleeping for long periods. (T. 273) The then began to occur in the waking hours and she could not therefore attend regularly in Fall 2011. (T. 274) She informed the school by regular phone calls a few times a week reporting that the student was ill and when documentation was requested she provided it. (T. 274) No interventions by the school other than phone calls were offered or provided regarding attendance. (T. 274) The parent stated that in the fall of 2011 the student was being treated by both of whom gave her notes explaining the student’s medical condition for the school but did not have direct contact with the school. (T. 276-277, 284-285)

The ABA was limited to about 40 minutes a day and the student received related services. (T, 280) The parent was not aware of any parent training at the school. (T.

280) The student had a which resulted in it being difficult for her to get up in the morning and she supplied documentation concerning that to the school. (T. 281) With regard to contacts generally with the school concerning absences, she testified that she called it frequently usually speaking with the school secretary, staff called her occasionally and once or twice she asked to speak with the psychologist who only requested documentation which was provided. (T. 283) She stated that she occasionally at the school but Toledo never called her personally. (T. 283)

The student was receiving at home ABA services from the SETSS during what the parent believes was the entire 2011-2012 school year and at least some of the 20102011 school year but that was not related to absences but rather was a consequence of her low-functioning levels. (T. 289-290) The parent believed that the student improved with

ABA. (T. 278)

Findings of Fact and Conclusions of Law

A. Factual Findings

With regard to the remaining issues in this matter, I make the following factual findings: 3 The student is (resulting ) has delays. (T. 267, 320-321, Exs. 5, L, O)

The student had been , an NPS, for several years pursuant to CSE placement. The CSE reconvened on May 27, 2011 and continued its recommendation of an NPS-Day placement in an class (12 month program) with a full time para and related services of: OT (2x30 in a separate location, OT (3x45 1:1 in outside location); PT (2x30 in a separate location; SL (2x30 in a separate location); SL (3x45 in outside location). (Ex.

O) The student continued at became manifest in October 2011 when she was Although stated that she had been several years, he had not previously treated her, he did not know who doctor diagnosed that and the parent testified otherwise. I also note that the student’s pediatrician stated in a letter dated October 26, 2012, that the student had had seizure disorder “for the past year”. (Ex. 5)

I find that the school was informed that the student was experiencing seizures in the night and that the parent was afraid to send the student to school no later than November 2011. Although no one at the school had reported testified that the parent had always been straightforward with her and that she believed the parent’s claim concerning the student’s medical situation. Indeed she asserted her belief as the basis, in part, for the failure to submit an RD/NA as soon as the extraordinary level of absences became manifest. testified that the school never received any medical documentation regarding the seizures. I do not find that credible in view of the extended periods of absence and the mandates for ensuring that substantial lapses in student attendance is appropriately reported and the fact that absences through December 2010 are recorded as excused. Further, I find credible the parent’s testimony that she supplied some medical documentation at least at the time of the initial diagnosis. Although testified that he believed he spoke with the school at that time, I find that testimony not reliable and note that he had no record of it, that his testimony was variable on this point and that the parent denied had had a conversation with the school. However, I find that not relevant

Record references not specified in this section are stated in the foregoing sections. here where Toledo testified that she was aware of problem was alleged and believed the parent.

The DOE does not dispute that was not provided during the 2011-2012 school year. (T. 94) With regard to the issue of whether was specifically requested during the 2011-2012 school year, I conclude that it was not. I find ’s testimony on that point credible. Further, I note that the parent has not asserted that she requested it and s testimony indicated that other options might be acceptable. With regard to a written communication, although testified credibly as to his conclusion that it would be unsafe for the student to attend school, there is no evidence as to specifically what any communication from him during the 2011-2012 said. I also note that the parent continued to send the student to school, albeit intermittently, from February through June 2012 which is inconsistent with a belief by her that it so.

I find credible that the student had certain attendance and tardiness problems in prior school years. However, the evidence shows that: from September 2009 through June 2010 she attended 181 days and was absent 27; for the summer of 2010, she attended 27 days and was absent 2. No records for the balance of the 2010-2011 school year have been provided and there is no basis for belief that that attendance differed substantially in that school year from the prior period. No records have been submitted and no parent claims have been made concerning Summer 2011. In September-October 2011 (the period that culminated in the visit ) the student attended 22 days and was absent 13. After the October 31 diagnosis , she was absent the entire months of November and December. Thereafter, she was present only 6 days in January and for the period from February 2012 through June 2012, she was present only 13 days and absent

75. For the September through June period, therefore, she was absent 138 days and attended only 41. (Ex. A) Accordingly, the evidence shows an extremely sharp attendance reduction from prior years and I find the past years attendance issues not a basis for diminished concern or lack of appropriate action particularly in light of the emergence of the problem of seizures.

A new IEP was issued on February 10, 2012. (Ex. A) I find credible the testimony of Feinberg that it was solely to put SETSS on the IEP as a consequence of an agreement resulting from a prior impartial hearing request and was not to address or as a consequence any I also find credible s testimony that she was not at that time aware of any attendance issues and that there was no mention of it at the meeting, in which the parent participated. Further, the evidence shows that parent requested that IEP change on September 11, 2011. (Ex. M) After that request, the DOE contracted with a provider for the delivery of SETSS at the student’s home from September 8, 2011 through June 26, 2013 at an enhanced rate. (Ex. 12) I conclude that those services were provided and note that the parent acknowledged receiving all ABA services due from the SETSS provider during the 2011-2012 school year.

With regard to DOE knowledge of the student’s persistent attendance failures, I find credible the testimony of Toledo that the CSE was well aware of the student’s record of absence and the school’s inability to deal with it because she specifically, timely and routinely informed as to that. I note with regard to that finding that was the DOE’s witness. Further, no rebutting testimony was proffered. ’s credible testimony as to her lack of awareness does not rebut ’s testimony in the absence of information concerning DOE procedures and staffing during the relevant time period. Such information was not provided by the DOE.

With regard to the delivery of related services during the 2011-2012 school year, it is undisputed that the school did not provide any related services when the student was absent. Further, although makeup sessions are possible in certain circumstances when a student returns to school there are limitations on how they may be provided. Here where the student was so infrequently attending and she was provided with substantial related services as part of her regular program, there is no basis for concluding that any makeup services were provided. I also note that no records as to the in-school related services actually provided have been submitted. I conclude that she missed in-school services proportionate to her absences.

The student’s school program did not, however, include certain sessions designated on the May 27, 2011 IEP to be delivered in an “outside” location. (Ex. P) Toledo credibly testified that she informed the parent by letter that the DOE was expected to issue RSAs but she did not know if they had been issued or if the student received outside services. The existence of an IEP mandate is not a basis for concluding that the DOE has complied with it. No evidence was presented by the DOE indicating that the RSAs were issued. I find that the DOE has failed to establish that it provided those services.

With regard to parent training, I find credible that parent training was available at the school during the relevant period. I am not, however, persuaded that training or specific assistance was offered concerning in the relevant period and note the lack of specificity in Toledo’s testimony with regard to this.

The parent asserted that the student made no progress during the 2011-2012 school year. I note that that was not disputed by Toledo and I find the parent’s testimony with regard to that persuasive.

With regard to the issue of whether the student would benefit from compensatory services should they be provided, I note , testifying for the DOE, detailed substantial progress after receiving at home one to one instruction for only 1 ½ hours per school day. I also note that in the BIP created by Toledo for the May 27, 2011 IEP she stated that the student required additional home educational support to generalize from school and for incident education. (T. 62-63, Ex. O) Further, the student benefited from the one to one OT and/or PT provided in the school. (Ex. 5) I give little weight inability to specify whether the lack of home instruction impacted the student negatively since he is not an educator and I did not understand his testimony to be that appropriate educational services for this student would be pointless. I conclude that the evidence shows that the student could reasonably be expected to benefit and that further that a loss of likely progress as a consequence of her lack of attendance has been demonstrated.

B. Conclusions of Law

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedure, s, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.

In the instant matter, the development of the IEP is not at issue, in view of the withdrawal of those claims. However, the DOE has an affirmative obligation to monitor and modify an IEP to ensure that it is working effectively, and where it is failing, to modify it. See e,g, N.Y. Educ. Law 4402(3)(b)(ii); 34 CFR 300.39(a)(1(i); 34 CFR 300.320(a)(3)(ii)

The DOE has the burden of proof with regard to parent’s claims concerning the provision of a FAPE. N.Y. Educ. Law 4404 (1)(c).

In this matter, the evidence shows that the CSE was aware of the student’s serious attendance issues and that the student was substantially not receiving the recommended program for most of the September-June 2011-2012 school year. Nevertheless it took no action whatsoever to determine whether the program required modification in some way or some other action to provide the student with an educational program in the circumstances of the parent not sending her to school. In these circumstances, I need not address the failure of the school to promptly and definitively initiate appropriate CSE action by way of specific referral or otherwise, which has also been established. Accordingly, I find that the DOE has failed to establish that it provided a FAPE.

It is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir. 2008) Further, “[i]f the student has become ineligible for special education by reason of age or graduation, compensatory education has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]).” Appeal No. 11-027 “…[C]ompensatory 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]).” Appeal No. 11-027

In the instant matter, the evidence establishes a denial of a FAPE from the time that the diagnosis was made on October 31. For the reasons discussed above, I do not consider the parent’s claims with regard to the inappropriateness of the program prior to that. I conclude, in the circumstances here, that there was a gross violation of the IDEA and that the period of violation was substantial in view of this student’s needs. However, I note that it is not required that the denial be gross when occurring as here during the age range of student eligibility. See, e.g., Appeal No. 13-048, Appeal No. 12-235, Appeal No. 12-209.

With regard to the equities, I note that the CSE was aware of the student’s severe needs and the fact that she effectively was not accessing the program. The CSE had a duty to consider appropriate action to provide the student with an education notwithstanding the past record even if a specific request was not made by the parent. The evidence shows that the parent was forthright concerning the student’s condition and that the CSE was aware of those claims and either relied upon them or ignored the student’s absence as a consequence of them. I also note however, that the parent was familiar with the impartial hearing process and did not implement it. Nor did she directly appeal to the CSE for a modification or change in the student’s program although I conclude that she was with regard to these issues. I find that equitable consideration favor the parent except as specified below.

I therefore turn to the parent’s claim for relief. I conclude that 1:1 tutoring is appropriate compensation in the circumstances here in view of the student’s lack of attendance with knowledge by the CSE. The parent seeks 150 hours of tutoring to compensate for instruction lost and notes that the student would be entitled to 1 hour for each day lost pursuant to applicable policy/regulation. In the instant matter the student’s absence totaled 138 days during the September-June 2012-2013 school year. I note, however, that the diagnosis did not occur until October 31 and conclude that there is no equitable basis for providing compensatory services for the period before which accounted for 13 days. Accordingly, the student will be provided with 125 hours of tutoring. The evidence having shown that the student benefits from ABA instruction as well as other instruction, tutoring by an appropriately qualified tutor at the current authorized rate for that qualification will be ordered.

As a consequence of her lack of attendance the student also did not receive related services provided by the school during the school day. I conclude that the claims in the amended hearing request concerning the failure to access include the failure to receive related services provided by the program. The student should have received for each week of attendance 2x30 SL, 2x30 OT and 2x30 PT, a total of 3 hours of related services. I conclude that the student missed the equivalent of 25 weeks of school-based related services which aggregates to 75 hours of related services in total. There is no support for a conclusion that the student is not able to benefit from the services in view of her current substantial needs. Accordingly, the student will be provided with an equivalent hours to be utilized at the parent’s discretion.

The parent, however, also seeks compensatory services for a failure to receive out of school related services to be provided through RSAs which are not a part of the student’s . I note that the amended hearing request although making specific claims concerning a failure to receive any related services for the 2012-2013 school year cannot be reasonably read to make a similar claim for the 2011-2012 school year. However, I conclude that the DOE “opened the door”. (T. 33) Accordingly, I am therefore not precluded from considering compensatory services for the out of school related services Appeal No. 13-199. There has been no testimony, however, that the student was precluded from utilizing the related services out of school or if so that an alternative was possible for the DOE to provide as a consequence of her condition. Nor has there been a claim that the parent was not aware that RSAs were to be provided by the DOE or that the student did not receive the services because of a DOE failure to provide them. I therefore find that the equities do not support the relief requested.

Although I have found that the parent waived claims for ABA and parent training, I note my conclusion that the evidence here does not support that as compensatory relief. The student received SETSS service which provided at home ABA throughout the 2011-2012 school year. Further, the compensatory tutoring which has been provided can provide ABA when appropriate. With regard to parent training, the evidence shows that it was available at the school but not utilized by the parent.

ORDER

1) The DOE shall immediately issue RSAs to be effective for services to be provided through June 30, 2015 for 25 hours each of to be delivered at the parent’s option.

2) The student is entitled to 125 hours of tutoring from an individual qualified to deliver ABA instruction. The DOE shall immediately issue authorizations to be effective for such services through June 30, 2015, to be delivered at the parent’s option. Dated: April 17, 2014

____________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENTS ENTERED INTO THE RECORD

1 RSA Letters from , 8/7/10-3/1/12, 3 pgs. Department of Education

2 Attend. Rec.- , 2009-10, 2011-12, 4 pgs. Department of Education

3 Educational Report, 5/8/13, 2 pgs. Department of Education

ID?

4 Parent’s Letter dated 10/27/12, fax date 11/6/12, 1 pg. Department of Education

5 Letter from , 10/26/12, 1 pg. Department of Education

6 Form 407-Attendance Teacher, 1/7/12, 3 pgs. Department of Education

7 RSA for ), undated, 1 PG. Department of Education

8 OMITTED

9 Social History update, 5/8/13, 2 pgs. Department of Education

10 AT evaluator Referral , 9/27/11, 6 pgs. Department of Education

11 RD/NA Req. for Deter. Absences, 8/29/12, 1 pg. Department of Education

12 Provider’s Agreement for SETSS, 11/10/11, 1 pg. Department of Education

13 Home Instruc. Progress Report, Summer 2013, 9 pgs. Department of Education

A IEP, 2/10/12, 13 pgs. Parent

B HI Referral Form, 11/6/12, 2 pgs. Parent

C Records Request Form, 11/27/12. 4 pgs. Parent

D Let from Parent req. SEIT Services, undated, 2 pgs. Parent

E IEP, 6/17/10, 16 pgs. Parent

F PT Annual Report, 6/5/10, 2 pgs. Parent

G SL Annual Prog Rpt., 6/10/10, 2 pgs. Parent

H Annual Educational Prog. Rpt., 6/1/10, 3 pgs. Parent

I SL Prog. Annual Prog. Rpt., 5/13/11, 2 pgs. Parent J Annual PT Rpt, 5/18/11, 2 pgs. Parent

K Annual Educational Progress Report, 5/18/11, 2 pgs. Parent

L OT Annual Prog. Rpt., 5/23/11, 2 pgs. Parent

M Letter from Parent, 9/21/11, 1 pg. Parent

N AT Eval. Referral, 9/27/11, 6 pgs. Parent

O IEP, 5/27/11, 17 pgs. Parent

P Amended Req. for Impartial Hearing, 6/14/13, 8 pgs. Parent

Q Let from Dr. Henry Hasson, 6/14/13, 1 pg. Parent

I Emails re close of resol. on amend cmplt & adj. req. Impartial Hearing Officer

7/11-7/13/13, 3 pgs.

II Emails re prehearing conf, 5/21-5/22/13, 2 pgs. Impartial Hearing Officer

III Initial Impartial hearing request, 3/8/13, 5 pgs. Impartial Hearing Officer

IV Emails re adjournment requests Impartial Hearing Officer

V Compliance date extension decisions Impartial Hearing Officer

VI DOE closing memorandum Impartial Hearing Officer

VII Parent closing memorandum Impartial Hearing Officer

VIII Emails post-closing memoranda Impartial Hearing Officer

Footnotes

[1] The initially scheduled date for submission of post-hearing memoranda was extended at the request of the district. Ultimately, the district submitted its memorandum the day after the parent’s memorandum had been transmitted to it. The district’s represented that it had not reviewed that document prior to submitting its own. ((Ex. VIII) I reviewed the documents and find no basis for disputing the district’s representation which I find credible. Accordingly, I closed the record on April 3, 2014.

[2] Claims concerning the 2012-2013 school year were made by the parent in the amended hearing request. (Ex. P) At the October 15, 2013 hearing, I was informed that there was an agreement in principle to settle all claims for that year and that the 2012-2013 claims in this matter were withdrawn. (T. 79)