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: April 8, 2014

May 14, 2014

June 9, 2014

July 16, 2014

Actual Record Closed Date: August 12, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 8, 2014

Attorney — Student

CSE Representative — DOE

Social worker, (via phone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 14, 2014

Attorney — Student

Father of Student — Student

Director, (via Phone) — Student

CSE Representative — DOE

School Psychologist (via Phone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 9, 2014

Attorney — Student

Father of Student — Student

CSE Representative — DOE

School Psychologist (via Phone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 16, 2014

Attorney — Student

Social Worker, (via phone) — Student

CSE Representative — DOE

Impartial Hearing Officer’s Finding of Fact and Decision

This hearing was requested on December 4, 2013 by , Esq. on behalf of the Parent of the Student. The hearing was requested pursuant to Part 200.5(i) of the Regulations of the Commissioner of Education. The Parent maintains that the Department of Education of the City of New York (DOE) failed to provide the Student with a Free Appropriate Education (FAPE) for the 2011-2012 school year when the Student was in the , for the 2012-2013 school year when the Student was and for the 2013-2014 school year when the Student was as required by the Individuals with Disabilities Education Act (IDEA). Specifically the DOE failed to address the Student’s social and emotional needs which interfered with the Student’s ability to learn and caused the Student to and (Transcript at pages 165 and 523). The Parent seeks compensatory education in the form of nine hundred seventeen hours of tutoring at the a rate of $100.00 dollars per hour; reimbursement and the $100.00 registration fee; a Metro-card for the Student and Parent to travel perform a , and reconvene the Individualized Education Program (IEP) meeting (Exhibit A; Transcript at pages 167 and 531).

On January 6, 2014 I was appointed by the DOE to hear the matter after recusal by another Impartial Hearing Officer.

Hearings were held on April 8, 2014, May 14, 2014, June 9, 2014, and July 16, 2014 pursuant to the IDEIA at 20 U.S. C. Section 1415 (f). Several errors were discovered in the resulting hearing transcripts. The parties through e-mails and discussions at subsequent hearings attempted to correct the transcripts. The June 9, 2014 transcript was especially unreadable and the parties agreed to corrections to that transcript. The parties e-mails concerning transcript corrections are attached hereto as Impartial Hearing Officer’s Exhibit AA. Attached to the record and this decision are lists of the documents received into evidence.

Background

Student and in for the 2013-2014 school year (Exhibit A-3). Student’s current classification (Exhibits R-1, V and 48). The Student was also (Exhibits G-1 and H-2).

On May 5, 2010 an IEP was created for the Student when the Student was in the Fifth (5th) grade. The Student was classified .A class in a community school district was recommended (Exhibit 5-1). The Student was to have test questions read aloud. The projected date of review of the IEP is listed as May 5, 2011 (Exhibit 5-2). The IEP noted that the Student lacked motivation, tended to lose focus, needed constant redirection and . It was noted that the Student should have positive reinforcement, redirection, breaks in tasks, graphic organizers and manipulatives to The Student was reading on a fourth grade level (Exhibit 5-3). The Student has (Exhibit 5-4). A special class in a community school on a ratio was recommended. The IEP noted that the Student requires significant modification to the curriculum in order to succeed (Exhibit 5-9). Promotion criteria was modified for the Student to percent of the standards for fifth grade and of the English standards of the math (Exhibit 5-11).

On June 3, 2011 a request for services was made Services. The referral noted that the Student was in constant conflict with his/her mother and . The . The Student’s behavior is affecting academic progress (Exhibit 6-2).

On January 26, 2012 a notice of a mandated three year evaluation was sent to the Student’s mother (Exhibit 23-1).

On March 8, 2012 a Psycho-educational Evaluation was conducted by the DOE school psychologist . The evaluation noted that the work and in class. It was difficult to establish rapport with the Student. The Student exhibited a careless and superficial . The Student appeared depressed. The Student range in vocabulary skills (Transcript page 126). The Student range in reading and in the for reading comprehension (Transcript page 126). The Student was in to Borderline range in Math skills. Spelling skills were in range (Transcript page 127). The evaluation noted that the Student failed most major subjects. The Student peers and is unable to express emotion in a positive manner. The Student . The Student and demonstrates frequent . On the Wechsler Abbreviated Scale of Intelligence (WASI) the Student placed in range (Exhibit B)

On March 8, 2012 a level I vocational interview was also given to the Student. The Student stated that all classes are boring and that it is hard for the Student to learn and do schoolwork. The Student was . The Student likes to skateboard, draw and play video games. The Student likes to work on his/her own (Exhibit C).

An undated DOE Assessment Planning page indicates that the mandated three year re-evaluation had to be done by June 21, 2012. The page notes that a psychoeducational evaluation was completed on March 8, 2012; a level one vocational evaluation had been completed on March 9, 2012; and a classroom observation had been completed by May 9, 2012 (Exhibit 12).

On May 10, 2012 the Student was observed in an English Language Arts (ELA) class. The Student performed the assigned work and answered the teacher’s question (Exhibit D).

On May 15, 2012 an IEP was created for the Student for the 2012-2013 school year. The IEP classified the Student (Exhibit E-1) and noted that the Student is in constant conflict with other and thrives on the (Exhibit E-2). The Student would benefit from various reading comprehension strategies and the use of manipulatives for learning math. The Student would also benefit from individual instruction, graphic organizers and guided notes. The IEP indicated that no Behavioral Intervention Plan (BIP) was needed (Exhibit E-3). A class in a special education classroom was recommended with related services in a group of three two times a week for 40 minutes and two times per week for 30 minutes (Exhibit E-10). The IEP listed the Student as being on a third grade reading level and fourth grade math level (Exhibit E-14). In order to be promoted the Student in Math and English in Math and English for Eighth grade (Exhibit E-15). Present at the IEP meeting were Special Education , School Psychologist and Speech Teacher, (Exhibit E-16 and E-17).

A Student Progress Report done by School Psychologist, , noted that the Student’s teacher indicated that the Student , most subjects. The Student is several grade levels behind in reading, writing and math. It was recommended that a small class in a community school with counseling once per week for thirty minutes in a group be continued (Exhibit F-1).

On October 23, 2012 a letter from the stated that the Student had been seen there on that date and could return to school the next day (Exhibit 18).

On November 8, 2012 a Scale was done by the and science teacher, Ms. The Student was listed , to swings (Exhibit 17-1 and 17-2).

On that same date was done by the Student’s seventh grade English and Social Studies teacher, Ms. . The Student was listed as , (Exhibit 16-1 and 16-2).

On November 28, 2012 school wrote a To Whom It May Concern Letter introducing the Student and her mother and requesting an evaluation. The letter noted that the Student had made cuts on his/her arm in from a family member. The letter stated that the Student had which has placed the

On November 28, 2012 the Student’s physician, Dr. , wrote a letter to school psychologist had examined the Student after discharge as a result of the Student having . The Student shows . There is ongoing family . The Student (Exhibit G).

On that same date a letter stated that the Student had been seen on November 28, 2013 and could return to school the next day (Exhibit 19).

On December 21, 2012 by Dr. at . Student most of the time “because no one cares about me”. Student . Patient indicated when Student stated that both the Student’s . Student has a . Student was ( . (Exhibit H-1). Student’s father feels close to Student and would like to live with the Student but cannot because of the father’s disability. Dr. recommended an intensive day treatment program with mental health and day treatment services to help the Student deal ,

On January 21, 2013 the Student’s mother and father wrote letters requesting a reevaluation. The Student’s mother felt that the Student “to work on ” (Exhibit 43-1). The Student’s father felt that a re-evaluation was needed in order to address the Student’s “mental and living arrangement issues” (Exhibit 43-2).

On January 25, 2013 school social wrote a letter introducing the Student and requesting letter noted that the Student was in a constant state of agitation and sometimes appeared unkempt. The Student . The Student’s interferes with the The Student The . The Student has . There is a . The Student is defiant towards parenting. The Student . If the Student continues in this manner the Student will cause harm to him/herself (Exhibit 21).

On February 4, 2013 a DOE Anecdotal Record noted that the Student was by to return to class (Exhibit 8).

On February 6, 2013 a DOE Anecdotal Record noted that the , refusing to go to class, punching confrontation with separated the Student from the view of the other Students. The Student . The Student worker. The Student (Exhibit 9).

On February 7, 2013 a DOE Anecdotal Record noted that the Student was writing a note during a class lesson. In the note the the makes the Student feel better (Exhibit Q). The for talking about using marijuana and allegedly having a baggie. Ms. mother’s place of business when chasing after that student. Ms. Beasley informed the Student’s Parent and therapist of the writing (Exhibit 10).

There is also an undated note written by the Student in which the Student writes (Exhibit 4).

On February 12, 2013 the Student’s mother was sent a notice that social worker, , wanted to meet with the Student’s mother to conduct a social history (Exhibit 42)

On February 27, 2013 DOE social worker, completed a Social History Evaluation at the request of the Student’s mother who felt that the Student should be in a . The Student The . The Student has (Exhibit I-2). The Student . The Student does not de. In the Student was placed in an integrated co-teaching class. In was placed wander the hallways. The school social worker feels the Student should be placed in a more therapeutic environment (Exhibit I-4, I-5).

Also on February 27, 2013 the Student’s mother and assessments to be given to the Student (Exhibit 33).

On March 1, 2013 given to the Student. The Student likes art class and likes to draw and would like to be an artist. The Student does not participate in any school activities and finds reading and math difficult (Exhibit J).

On March 7, 2013 a cover sheet (Exhibit 37), ) and were developed for the Student. was requested because the save . The and a (Exhibit K-4 and 38-4). A prevent and how to respond to (Exhibit K-5, K-6 and 38-5 and 38-6).

On March 12, 2013 at the request of the Student’s mother as part of a reevaluation a was again conducted by the a more for the Student. The Student has been with a social worker. The Student . The was adequate in a highly structured one to one situation. The Student redirection and support. The Student (Exhibit L-1). On the WAIT III the Student’s vocabulary skills were in the low average range. The Student -word decoding. In reading comprehension the Student was in the borderline range. The in math reasoning skills (Exhibit L-2). The average in spelling skills. The Student The Student interpersonal interactions. When negative feelings as soon as they arise. The Student actions and believes that others . The Student’s are in The Student . The Student cannot (Exhibit L-3).

Also on March 12, 2013 the DOE sent the Student’s mother a notice that an IEP meeting was scheduled for April 3, 2013.

On Mach 13, 2013 the Student was observed for twenty minutes in a science class with six students a teacher and two para-professionals. The Student professional was able to get the Student work when he/she returned and instead was allowed to cut hearts out of paper. The Student (Exhibit M).

On that same date the Student was observed for twenty-five minutes in an art class with six students a teacher and two para-professionals. The Student in the art and science class were

On March 15, 2013 a DOE Anecdotal Record noted that the at school staff and While the , the Student 11).

The Student Progress Report dated April 3, 2013 noted that the Student’s teachers reported that the Student The Student and getting . The Student does not complete classwork or hand in homework assignments. It was recommended that the Student continue and be placed in a day treatment program to help with the Student’s education and mental health needs. The Student’s managed in the current setting (Exhibit O).

On April 3, 2013, school social workers, school psychologist, and others met to create an IEP for the Student for the 2013-2014 school year for referral to the Central Based Support Team (CBST) (Exhibits 28, and 2-3, and Exhibit V, Transcript at pages 325 thru 329, 332 and 333).

The April 3, 2013 IEP lists the Student’s classification The Student’s IQ is in The Student’s socialization skills. The Student and other peers. The Student’s reading is in the is The Student on math level (Exhibit V-11). The Student is The Student has The Student . The Student by interpersonal interactions. The Student is emotionally immature (Exhibit V-2).

The Student requires Arts goals, one Math goal and one and one Social/Emotional goal listed on the IEP (Exhibit V pages 4-6). approved therapeutic non-public day was recommended (Exhibit V pages receive time and one half for testing, be tested in a separate location, have directions read and re-read and test . The Student is to receive breaks for testing and on task focusing prompts (Exhibit V-8). The Student is English Language Arts and Math Standards in order to achieve promotion (Exhibit V-12).

On July 16, 2013 the Student was accepted into . IEP changes listed in the were a class once per week once per week for forty in a group of five twice a week for thirty minutes (Exhibit 41-2). Center is an accredited non-public school providing year round special education services for students and . Students achieve approximately 1.2 months progress with their reading and math skills for every one month of enrollment (Exhibit 47-1).

On July 17, 2013 the DOE sent the Student’s mother a notice that an IEP meeting was scheduled for August 7, 2013 (Exhibit 40).

On August 7, 2013 the IEP from April 3, 2013 was finalized (Transcript at pages 325 thru 329, 332 and 333) with (Exhibit 29). The Student was classified (Exhibit R1). The IEP noted that the skills and does not know . The Student cannot tolerate stress is (Exhibit R-2). The Student . In management needs the IEP noted that the Student requires scheduled breaks, assistance with transitions, encouragement and reinforcement when interacting with peers and monitoring when completing independent work. A small class in a therapeutic setting was recommended. The Student needs a BIP (Exhibit R-3). The Annual Goals sought to have the Student (Exhibit R-4, R-5, and R-6). It was recommended that the Student in a (Exhibit R-8). A therapeutic non-public day program was recommended with group counseling once per week for forty minutes and per week for forty minutes. in a group of five twice a week for thirty minutes was also recommended (Exhibit R-7 and R-13).

On September 9, 2013 the Student School because the Student’s Parent had moved out of the city (Exhibit 46).

On September 14, 2013 the Student was Center (HLC). The evaluation determined that the Student was (Exhibits S and U). 917 hours of tutoring in order to bring the Student from (Exhibit T-1).

On December 4, 2013 the Parent filed a due process complaint seeking an Impartial Hearing (Exhibit A).

On December 15, 2013 the DOE filed a Due Process Response noting that the August 7, 2013 IEP team had changed the Student’s disturbance based on classroom observation, and teacher progress reports (Exhibit 2-1). The IEP team relied on the (Exhibit 2-2 and 2-3).

On April 1, 2014 when the Student was created a the test results for the Math and English Language Arts exams taken by the Student Winter 2008 through Spring 2013 (Exhibit 3).

On May 7, 2104 an IEP was created for the Student for the 2014-2015 school year. Present at the IEP meeting were the Student’s special education teacher, the Student’s mother, a signature, the CSE chairperson and a social worker (Exhibit 49). The Student’s classification is Emotional Disturbance. test scores from March 2013 are listed on the IEP. The Student has but has shown improvement in reasoning skills in the context of drawing conclusions when given partial information. The Student completes assignments but lacks study skills. The Student is inconsistent in returning homework assignments. The Student is estimated to level. The Student has decoding, sounding out words and use of sight words and needs to review vocabulary (Exhibit 48-1). The Student is estimated to be and requires improvement in multiplication and division facts and word problems. The Student produces excellent work when focused. The IEP noted that the Parent expressed concern about the Student’s grades and level of support available in school to meet the Student’s needs (Exhibit 48-2). The The Student needs a . The Student requires a structured environment and redirection in order to stay on task (Exhibit 48-2).

The IEP lists three goals related to study skills (Exhibit 48-4). There are six goals related to English Language Arts (Exhibit 48-4 and 48-5). There are three math goals and three (Exhibit 48-5 and 48-6). There are six social and emotional goals (Exhibit 48-6 and 48-7). Counseling is recommended at a is recommended accommodations are to include extended time, a separate location, questions and directions read passing his/her classes. The Student is enrolled in a non-public day program in order (Exhibit 48-12).

The Student’s report card for the 2013-14 year indicates that the Student well The report card notes that the the between July 1, 2013 and May 5, 2014 (Exhibit 51). Position of the Parties School District’s Position

The DOE maintains that there was no gross or prolonged deprivation of a Free Appropriate Public Education (FAPE) to the Student (Transcript at pages 154, 161 and

511) which warrants an award of compensatory education.

The DOE maintains that when the school years for 2011-2012 and 2012-2013 and 2013-2014 are looked at separately there was no denial of FAPE (Transcript at pages 154,159,491 and 494).

The DOE maintains that even though there was no finalized IEP in place when the 2011-2012 school year started (Transcript at page 489) the Student continued to receive special education services and thus there was no denial of FAPE (Transcript at pages 155,158 and 489).

The DOE maintains that any procedural violations done by the DOE in the 20112012 and 2012-2013 and 2013-2014 school years do not rise to the level of a denial of FAPE since they did not deny the Student any educational benefit (Transcript at pages 492 and 497).

The DOE maintains that the 2012-2013 and 2013-2014 IEP goals no matter how many goals were listed were designed to address the Student’s present level of performance (Transcript at page 498) and any irregularity of goals was not fatal to the IEP (Transcript at page 505).

The DOE maintains that at the time the May 2012 IEP was created the Student’s behavior did not warrant the creation of a Functional Behavioral Analysis (Transcript at page 499).

The DOE maintains that the Student were addressed both when they started to occur in the 2011-2012 school year and when the intensified in the 2012-2013 school year (Transcript at pages 156, 157 and 491).

The DOE maintains that the Student made academic progress during the 20112012 school year (Transcript at page 156).

The DOE maintains that the fact that the student indicates that the services provided were reasonably calculated to provide the Student with educational benefits and a FAPE (Transcript at pages 494,495 and 508).

The DOE maintains that the IEP that was in place at the start of the 2012-2013 school year was reasonably calculated to provide the Student with a chance at academic progress and the Student did make progress that year (Transcript at pages 159 and 160).

The DOE maintains that by the end of the 2012-2013 school year a plan was in place to address the Student’s (Transcript at page 158).

The DOE maintains that the amount of compensatory tutoring services sought by the Parent is inappropriate since the ” and made progress during the 2011-2012 and 2012 and 2013 school years (Transcript at pages 160 and 161).

The Doe maintains that if the Student’s are controlled the Student is capable of academic progression (Transcript at page 505).

The DOE maintains that a “qualitative approach” should be used in determining any award of compensatory education (Transcript at page 484).

The DOE maintains that the no testing to determine if the Student is at or can function at a ninth grade level (Transcript at page 513).

The DOE maintains that it is unclear if the Student will benefit from the intensive tutoring (Transcript at page 513).

The DOE maintains be provided by (Transcript at page 519). Parent’s Position

The Parent maintains that the DOE failed to offer the Student a FAPE for the 2011-2012, 2012-2013, and 2013-2014 school years (Transcript at pages 162 and 166; Exhibit A).

The Parent maintains that DOE’s procedural violations affected the Student’s substantive education which resulted in a denial of FAPE (Transcript at page 524).

The Parent maintains that the were not addressed by the IEP goals (Transcript at page 525).

The Parent maintains that the IEP’s provided the Student an opportunity only for trivial advancement not meaningful progress (Transcript at page 526).

The Parent maintains that the DOE failed to provide the Student with an IEP for the 2011-2012 school year (Transcript at page 162).

The Parent maintains that the DOE’s use of a prior IEP for the 2011-2012 school year and the DOE’s providing services pursuant to that prior IEP without conducting an annual review of the Student’s needs and progress is a gross violation of the IDEA and resulted in a denial of FAPE to the Student (Transcript at page 163,524, and 527).

The Parent maintains that the during the 2011-2012, 2012-2013 and 2013-2014 school years (Transcript at pages 164 and 521).

The Parent maintains that for the 2012-2013 school year the DOE failed to provide the Student with adequate goals and objectives despite DOE’s knowledge of the Student’s (Transcript at pages 164 and 165).

The Parent maintains that for the 2012-2013 school year the DOE failed to provide the Student support or services which compromised the Student’s (Transcript at pages 164 and 521).

The Parent maintains that the DOE took three months to act after being provided with information that the Student (Transcript at page 165).

The Parent maintains that the continued into the 2013-2014 school year which caused a denial of FAPE and only then prompted the DOE to act to change the Student’s classification and recommend a non-public day school in a therapeutic setting (Transcript at pages 165 and 166).

The Parent seeks compensatory education in the form of 917 hours of one-to-one tutoring at ) to address the Student’s and . The Parent also requests the DOE perform a Speech Language Evaluation and reconvene the IEP meeting (Transcript at pages 167, 523 and 533; Exhibit A). Testimony and Evidence Presented at Hearing The DOE called as its first witness Ms. , social worker, related service provider at , who appeared by phone that the Student was part of with an assigned staff advisor (Transcript at page 52). Ms. stated that the Student (Transcript at pages 53 and 54). At the start of the 2010- the Student was very concerned with Facebook interactions outside of school (Transcript at page 59). At the end of sixth grade the Student (Transcript at pages 59 and 61). The Student that were being addressed by outside agencies (Transcript at page 68). In June 2011 Ms. the (Transcript at page 70; Exhibit 6-2).

In the seventh grade for the 2011-2012 school year the a where a male student had to be removed from the school bus (Transcript at page 64 through 66). Issues with at page 67). The Student was participating in class and when behavioral issues came up they would be addressed by saw the Student once per week in a group of three (Transcript at page 78). Ms. maintained frequent contact with the Student’s parents in order to provide support to the family (Transcript at page 79).

While the Student was in eighth grade on November 28, 2012 after being advised that the Student wrote a letter so that the Student’s mother could get the Student evaluated (Transcript at pages 68 and 69; Exhibit 20). In January 2013 while the Student was still in issues with (Transcript at page 86). The Student (Transcript at pages 81 and 82) along . It became harder to get . The Student (Transcript at page 83). The Student had issues of with peers (Transcript at page 84). At this point Ms a residential setting but was denied (Transcript at pages 79 through 81). Ms. mother the Student (Transcript at age 82; Exhibit 43).

When the Student is (Transcript at page 85).

On cross examination Ms. testified that she serviced 50 to 60 students for group and . Mr. (Transcript at page 90). Both general and special education students are involved with Development Team (Transcript at page 91). The Student in the 20112012 school year when grade but stated that students in special education are usually . Ms. being social and (Transcript at page 93).

When the Student was in for the 2012-2013 school year on November 28, 2012 Ms. a letter referring the students (Transcript at pages 93 and 94, Exhibit 20). Ms. received information that the in October 2012 (Transcript at page 94). In January 2013 discussions began about putting the (Transcript at page 95). was not surprised to learn that in February 2013 recommended program for the Student (Transcript at page 96). At about this same time asked the Student’s mother to write a letter requesting a reevaluation of the Student and a for the Student (Transcript at page 98, Exhibit 43). In November 2012 Ms. that indicated that the and (Transcript at page 98, Exhibits 16 and 17). Ms. clarified that the intensified in for the 2012-2013 school year (Transcript at page 100). Ms. was not surprised to learn that The DOE called as its second witnesses, Mr. , school psychologist, who appeared by phone. Mr. testified that work in school. The Student in a special class receiving services under an IEP (Transcript at page 122 and 123). Mr. testified that there was a lack of documentation about in the 2011-2012 school year. got worse after the 20112012 school year (Transcript at page 128).

The Student in math calculation and reading comprehension. At the time the Student was about Student was because there were not enough documentation and anecdotal reports to classify the Student level within one . It would not have been realistic to give the Student goal (Transcript at page 145). The goals formulated on the May 15, 2012 IEP outlined what it was thought the Student could obtain within one year (Transcript at page 147). The peer interaction goal was developed by , (Transcript at page 148). The IEP team felt that the Student still needed a (Transcript at pages 149 and 150). The promotion criteria were based on how the Student was currently performing in class (Transcript at page 151).

The April 3, 2103 IEP changed the previous IEP’s recommendation to a therapeutic non-public day school because of the Student’s (Transcript at page 323). Mr. in the creation of the April 3, 2103 IEP along with , the special education teacher, Mr. the district representative, and social . The IEP was then referred to the Central Based Support Team (CBST) for placement and finalization (Transcripts at pages 325 thru 329, 332 and 333, Exhibits V, R, 28 and 29).

On cross-examination Mr. testified that a formal Speech and Language Evaluation was not done for the May 15, 2012 IEP (Transcript at pages 335 and 336). Mr. ’s last contact with the Student was in February or March of 2013 (Transcript at page 337) when he did an informal evaluation of the Student (Transcript at page 339). There was no detriment to using a March 8, 2012 (Transcript at page 341, Exhibit B). There was no formal behavioral testing done for (Transcript at page 343).

The May 15, 2012 IEP listed the Student’s reading level at third grade and math level at fourth grade (Transcript at page 346). Mr. was surprised to learn that there was no IEP done for the 2011-2012 school year (Transcript at page 349). The May 15, 2012 IEP listed that as many as eight students could be in the Student’s counseling group (Transcript at page 352, Exhibit E). Mr. was not surprised to learn that the Student had as early as the 2010-2011 school year (Transcript at page 354). There are no subtraction, addition, money, writing, spelling or counseling goals listed on the May 15, 2012 IEP (Transcripts at pages 355,356 and 371). A Functional Behavioral Assessment was not done for the May 15, 2012 IEP (Transcript at page 357). Despite levels for English Language Arts and Math the promotion criteria subjects (Transcript at page 358).

Mr. did not know why was not mandated on the May 15, 2012 IEP (Transcript at page 359). Mr. and the Report in early December 2012 did not reconvene an IEP meeting (Exhibits G and H Transcript at page 361). Despite the behind in math there was only one math goal listed on the April 3, 2013 IEP (Exhibits R and V, Transcript at page 367). There is only listed on the April 3, 2013 IEP even though the Student was being recommended for a (Transcript at page 369, Exhibit R-11). The individual counseling goal listed on the April 3, 2013 IEP may have been put there to satisfy a requirement of the Student’s proposed placement (Transcript at page 371). Mr. did not know why there were and techniques listed on the May 15, 2012 IEP or the April 3, 2013 IEP despite both IEP’s indicating that the Student required a small class to address the Student’s Exhibits E-3 and R-3, Transcript at pages 372 and 373). Mr. did not know why the March 7, 2013 FBA was never updated (Transcript at pages 374 and 375). Mr. believes that if the Student has benefit from tutoring (Transcript at pages 378 and 379).

The DOE called no further witnesses and rested its case (Transcript at page 380).

The Parent called as its first witness, , who appeared by phone. Ms. testified that the Student was in the fall of 2013 when the Student was 14 and beginning the ninth grade (Transcript at page 173). On the Performance Test the Student was functioning (Transcript at page 175). The indicated that the Student could benefit from one to one tutoring to assist the Student with portions of any assignment have (Transcript at page 177). On the reading test the Student placed on a third grade level with a (Transcript at pages 179 and 195, Exhibit S-1 and U). would start the Student at working on increasing vocabulary to is reached (Transcript at page 180). The that the Student would have to reading level (Transcript at page 184).

On the 186 and 195). The paragraph errors. The Student’s writing sample was on a Transcript at pages 187 and 188). On the exam the Student only three out of twenty-two math skills putting the Student There are sixty-two math skills that the Student needs to learn in order to be brought up to a (Transcript at pages 190 thru 192).

Based on the Student’s test Program Map which lists skills to be worked on and the number of hours the Student is likely to need to master those skills. The number of hours needed is based (Transcript at pages 197 and 198, Exhibit T). There are sixty-two math skills to be learned and with each skill taking a total of five hours to learn a total of three hundred ten hours will be needed to . There are seven core reading skills to be learned which take about twelve hours to (Transcript at page 200). A total of two hundred four hours is needed to bring level (Transcript at page 201). There are six pieces of writing curriculum to learn which take ten hours each for a total of sixty hours and fifteen study skills which take two hours each for a total of thirty hours (Transcript at page 204).

Progress is gauged on a daily and monthly basis and after every seventy-five (75) hours the -administered. is Student (Transcript at page 206). is $100 per hour, initial testing fee is $295 and there is a $100 registration fee (Transcript at page 207). because they start with work which they can be successful at which motivates them to keep on learning and being . The one to one allows the student’s questions to be answered immediately which avoids frustration (Transcript at page 209).

On cross-examination plan is to bring the Student to the ninth grade level. The concept of plateauing were the Student may not make progress after learning a new skill has been factored into the (Transcript at pages 211 and 212). Based on the level (Transcript at page 213). The August 15, 2013 IEP (Exhibit R) was reviewed by Ms. Student was tested (Transcript at pages 217 and 221). Ms. oted that the matched those listed on the IEP (Transcript at page 221). Some sub-tests test are not administered because it would make the initial evaluation longer and more tiring for the student. Information from the missing sub-tests is gained from other evaluation methods (Transcript at pages 221 thru 224). The failure to administer the sub-tests did not is only one of many testing instruments used to evaluate the Student (Transcript at pages 225 and 226).

Ms. testified that it is unclear whether the Student was unable to copy a specific design on Test because the Student did not see what was needed or the Student could not hold the pencil properly (Transcript at page 229). The Student is producing the work The Student requires from a teacher in order to make sure that assignments are understood, questions get answered as they occur and the Student is fully supported (Transcript at page 230). Ms. testified that while the Student may recognize sight words on a fourth grade level the Student is in reality as indicted by the DOE’s IEP dated August 7, 2013 reading at (Transcript at pages 232 thru 236, Exhibit R). The Student has difficulty decoding (Transcript at page 238). The Student would have scored a zero on a (Transcript at page 240). The fact that not all subtests were given to the Student in does not effect the conclusions made about the Student’s general skill level (Transcript at page 251). If finds that the Student not covered on the Program Map would retest the Student using more specific subtests (Transcript at page 253).

At any given time between two and four students who are classified as (Transcript at page 254). do not exhibit their typical while because the one to one tutoring reduces their and The Parent called as its second witness, , the Student’s who appeared in person. Mr. testified that he was unable to attend the first hearing in this matter because the Student had been (Transcript at page 260). The Student likes sports and gymnastics (Transcript at page 261). In 2009 the Student began having challenges that did not occur in other students (Transcript at page 264). No IEP was developed for the Student in the 2011-2012 school year when the Student was in (Transcript at page 265). During the 2011-2012 school year received weekly calls from Ms. saying that the Student was out of class cursing and creating havoc (Transcript at page 266 and 278). Mr. expressed concern about behind while in the school took no action. At home the Student was (Transcript at page 267).

In the 2012-2013 school year the Student continued to receive counseling but it was not effective as the Student and (Transcript at pages 268 and 270). The Student and would act out both at school and at home. The Student was academically behind (Transcript at pages 269 and 270). The Student has not improved academically over the past two years and school is having no effect on the Student. not want the Student to “ ” (Transcript at pages 273 and 274). The DOE is not giving the Student what the Student needs (Transcript at page 274). The did not call after the Student’s hospitalizations to say they were changing anything in the Student’s program (Transcript at page 275).

On cross-examination testified that the Student’s mother had arranged for the Student to (Transcript at page 279). The Student is happier at the but there has been no change in the Student (Transcript at pages 282 and 285). The Student needs one to one help (Transcript at page 283). Mr. feels that the Student could use more speech therapy and assistance with (Transcript at page 285). Mr. is willing to take the Student to and from (Transcript at page 286). Mr. from the Student’s mother (Transcript at page 288).

The Parent called as its third and final , social worker at who appeared by phone. Ms. testified that the Student was not functioning on very needy and when the Student (Transcript at page 402). The Student would curse, throw things, taunt other Students, have by academics the Student did not understand (Transcript at page 414). tried to implement for the Student on March 7, 2013 (Exhibit K) but Ms that it did not meet the Student’s needs. The Student needs more intensive services such as one to one instruction in school in order to decrease the and help the Student focus (Transcript at page 415). One to one instruction would help IEP’s dated April 3, 2013 and August 7, 2013(Exhibits V and R) did not adequately meet the Student’s academic, social or emotional needs because they did not address the Student’s inability to cope properly (Transcript at pages 424 and 425).

The Student is (Transcript at page 425 and 447). The with math and reading and . The Student works best in a small group setting (Transcript at page 426). The Student likes to write but sometimes refuses to comply with assignments (Transcript at page 427). It is Ms. opinion that the Student would benefit because the Student likes one to one attention. and which may prevent the Student . If presented in the proper manner the Student will go to tutoring (Transcript at pages 427, 428, 436 and 451). is willing to work with the parents (Transcript at pages 428 and 454). There should be no expiration date on the so that the Student can feel in control of when to to allow for things that happen in the Student’s life (Transcript at pages 429 and 457). The Student should continue order to and (Transcript at pages 430 and 457).

On cross-examination Ms. testified that the Student has since entering September 2013 but continued coursework while in the hospital (Transcript at pages 431, 432 and 435). The Student in June 2014 to mark the Student’s moving from eighth to ninth grade because the Student had met the teacher and academic requirements (Transcript at page 433 and 434). However, the Student could have done better during the 2013-2014 school year and would benefit from one to one tutoring if it were available at (Transcript at page 438). Other than a teacher pulling a student aside for one to one tutoring or tutoring during regent’s week there is no special academic tutoring at the (Transcript at page 444). The Student’s academic progress is impeded by the Student’s social and emotional needs (Transcript at page 447).

The Student needs a lot of reinforcement, redirection, and encouragement and needs to feel empowered in (Transcript at page 451). The Student will ultimately go to tutoring because the Student knows it will ultimately benefit him/her (Transcript at page 452). The Student could benefit from preventative services such as in-home follow-up counseling from a social worker (Transcript at page 457). The Student is mandated to receive individual and counseling in a group of five once per week which is provided by Ms. Transcript at page 458). Ideally the Student could use one to one tutoring both in school and outside of school (Transcript at page 459). The Parent called no further witnesses and rested its case (Transcript at 463). Findings of Fact and Conclusions of Law Legal Framework and Standard

New York State Education Law Section 4404(1)(c) places the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement.

I find that pursuant to New York State Education Law Section 4404(1)(c) the DOE has met its burden of production but not persuasion regarding the appropriateness of the Student’s educational program.

I find that the services offered by the DOE were not appropriate or adequate and the DOE did not provide a FAPE for the Student for the 2011-2012,2012-2013 and 20132014 school years.

A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Board of Education v. Rowley, 458 U.S. 276, 206-07 (1982) (Rowley, (supra); R.E. v. New York City Dep’t of Educ., 694 F3d 167,189-90 (2d Cir. 2012); M.H. v. New York City Dep’t of Educ., 685 F3d 217, 245 (2d Cir 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F3d 186,192 (2d Cir 2005).

DOE argues that not all procedural errors result in a denial of FAPE (Grim D v. Reinback Central School District 346 F3d 377, 381 (2d Cir 2003). However, the Second Circuit has held that “multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not” (R.E., 694 F3d at 19091). Relief is warranted if the procedural violation affects the Students right to a FAPE (J.D v. Pawlett School District 224 F3d 60, 60 2nd Cir. 2000).

A denial of FAPE occurs when the procedural inadequacies either 1) result in a loss of educational opportunity for the student 2) seriously infringe on the parent’s opportunity to participate in the IEP process or 3) compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under the IDEA (Warner v. Clarkstown Central School District 363 FSupp2D 656 SDNY 2005) and W. A. v. Pascarella 153 F.Supp 2d 144 Dist. Conn 2001).

In this case I find that Doe’s procedural violations compromised the development of an appropriate IEP in a way that deprived the Student of educational benefits under the IDEA. An IEP must accurately reflect a student’s then present levels of academic achievement at the time of their development (20 USC (d)(1)(a)(i). DOE admits that there was no IEP in place for the 2011-2012 school year (Transcript at page 489). The Student failed to receive a triennial review as required by 8 NYCRR Section 200.4 (b) (4). A has not been performed since prior to the May 5, 2010 IEP. Ms. was not surprised to learn that the Student’s 2011-2012 school evaluation noted that the Student , had and was moody (Transcript at page 103). Ms. received information that the Student in October 2012 (Transcript at page 94). The did not call after the Student’s to say they were changing anything in the Student’s program (Transcript at page 275). However, it was not until January 2013 that discussions the Student in a (Transcript at page 95).

The May 5, 2010 IEP listed a review date of May 5, 2011 (Exhibit 5-2). Mr. as early as the 2010-2011 school year (Transcript at page 354). was surprised to learn that there was no IEP done for the 2011-2012 school year (Transcript at page 349). Mr. Rivera also testified that no IEP was developed for the Student in the 2011-2012 school year when the Student (Transcript at page 265). A was not performed until March 8, 2012 (Exhibit B). There was no formal behavioral testing done for (Transcript at page 343). A new IEP was not developed until May 5, 2012 leaving the Student without an updated IEP and updated assessments for almost two years (Exhibit E). Mr. testified that there was a lack of documentation about the Student’s behavior in the 2011-2012 school year (Transcript at page 128). Mr. testified that at the time of the May 15, 2102 IEP the Student was classified because there were not enough documentation and anecdotal reports to classify (Transcript at page 137). Mr. that a formal was not done for the May 15, 2012 IEP (Transcript at pages 335 and 336). A Functional Behavioral Assessment was not done for the May 15, 2012 IEP (Transcript at page 357).

Mr. did not know why individual counseling was not mandated on the May 15, 2012 IEP (Transcript at page 359). Mr. did not know why after receiving the letter from the l and the Student’s in early December 2012 did not reconvene an IEP meeting (Exhibits G and H Transcript at page 361). Mr. did not know why there were and techniques listed on the May 15, 2012 IEP or the April 3, 2013 IEP despite both IEP’s indicating that the Student required a small class to address the Student’s (Exhibits E-3 and R-3, Transcript at pages 372 and 373). Mr. did not know why the March 7, 2013 FBA was never updated (Transcript at pages 374 and 375).

DOE did not perform the proper evaluations and thus the IEP was deficient (Application of a child with a Disability, Appeal No. 98-71; Application of a child with a Disability, Appeal No.93-9; and Application of a child with a Disability, Appeal No.9312). In view of the fact that there was no IEP in place for the 2011-2012 school year, the three in seeking a the lack of formal testing, the lack of social or emotional management tools and techniques listed on both the May 15, 2012 IEP and the April 3, 2013 IEP and the lack of an update of the March 7, 2013 FBA, I find that all these -2012, 2012-2013 and 2013-2014 school years. The Parent’s request for DOE to perform an updated is granted.

On substantive grounds I find that a FAPE was not offered for the 2011-2012, 2012-2013 and 2013-2014 school years. DOE offers a FAPE by providing “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley., 458 US at 203). Sufficient support services were not provided to the Student to enable the Student to benefit educationally from instruction. The May 5, 2010 IEP noted that the , tended to lose focus, needed constant redirection and yet no counseling was mandated in the IEP (Exhibit 5-3). The Student was in the sixth grade reading on a fourth grade level yet no specific reading tutoring is mandated by the IEP (Exhibit 5). Promotion criteria was modified for the Student to meet sixty percent of the standards of the English standards and forty percent of the math standards in sixth grade (Exhibit 5-11). The May 5, 2010 IEP was in place for the 2011-2012 school year with no added support services despite a June 3, 2011 a request for services made to because that the Student was in constant conflict with his/her mother and his/her peers and indication that academic progress (Exhibit 6-2). Mr. expressed concern about the behind but the school took no action (Transcript at page 267). DOE argues that even though there was no finalized IEP in place when the 2011-2012 school year started (Transcript at page 489) the Student continued to receive special education services and thus there was no denial of FAPE (Transcript at pages 155,158 and 489). There is no dispute that the May 5, 2010 IEP was in place for the 2011-2012 school year even though Mr. was surprised to learn that there was no IEP done for the 2011-2012 school year (Transcript at page 349). However, in view the May 5, 2010 IEP for the 2011-2012 year failed to provide sufficient support services to enable the Student to obtain an educational benefit for the 2011-2012 school year.

The May 15, 2012 IEP added only counseling and no academic support services even though the Student was listed as and level (Exhibit E-14). In fact the promotion criteria was reduced the work in Math and English the work in Math and English for eighth grade without any recommended tutoring (Exhibit E-15). In fact Mr. testified that there was no subtraction, addition, money, writing, spelling or counseling goals listed on the May 15, 2012 IEP (Transcripts at pages 355,356 and 371). Despite the Student functioning several grade levels behind in math there was only one math goal listed on the April 3, 2013 IEP (Exhibits R and V, Transcript at page 367). There is only one social emotional goal listed on the April 3, 2013 IEP even though the Student was being recommended for a therapeutic day program (Transcript at page 369, Exhibit R-11).DOE argues that goals are procedural and not substantive in nature and there is no basis to find a denial of FAPE based solely on the irregularity of the goals listed in the IEP (Transcript at pages 498 and 505) (E.A.M. v. NYC Dept. of Educ. 2012 WL 4571794 (S.D. NY 2012). However, when a student has undisputed skill deficiencies they must be addressed within the goals and objective section of the IEP, if not DOE has failed to prove their program was appropriate (M.S. ex. Rel. S.S. v. Board of Educ. of the City School Dist. of the City of Yonkers 231 F3d 96, 100: and Walczak v. Florida Union Free School District 142 F3d 114 2nd Cir 1988). In this case the May 15, 2012 IEP failed to address the Student’s English and Math deficiencies.

The August 7, 2013 IEP to be implemented when the Student grade noted that the based on the WAIT-III was in goals sought to have the Student perform at a fourth and but had no (Exhibit R). It was that the IEP’s dated April 3, 2013 and August 7, 2013 (Exhibits V and R) did not adequately meet the Student’s academic, because they did not address the (Transcript at pages 424 and 425). The DOE argues that Ms. violates the R.E case (Transcript at page 421). However, I hold that Ms. s opinion does not retrospectively rehabilitate or try to change the August 7, 2013 IEP rather it addresses the adequacy of the IEP after it has been implemented. The Second Circuit has yet to decide whether in a compensatory education context courts may consider retrospective evidence of the student’s program or progress when assessing the substantive validity of an IEP. (See R.E. v. NYC Dept. of Educ. 694 F3d 167 2nd Cir 2012). However the Second Circuit has stated there may be value in distinguishing between a proposed IEP in a tuition reimbursement case and an IEP that was actually implemented (D. F. ex. rel. N.F. v. Ramapo Cent. School Dist., 430 F3d 595 2nd Cir 2005). Thus, I find that after reviewing the IEP’s in place for the 2011-2012, 2012-2013 and 2013-2014 school years there was a denial of FAPE on substantive grounds because the IEP’s did not provide sufficient support services to permit the Student to obtain an educational benefit.

DOE 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 F3d at 195 quoting Walczak 142 F3d at 130; See T.P. 554 F3d at 254; P. v. Newington Bd. Of Educ., 546 F3d 111,118-19 (2d Cir 2008); Perricella 2007 WL 465211 at *15). The IEP must be reasonably calculated to provide some “meaningful” benefit (Mrs. B. v. Milford Bd. of Educ. 103 F3d 1114, 1120 (2d Cir 1997); See Rowley 458 U.S. at 192). The DOE maintains that the fact that the Student was never left back and moved from grade to grade indicates that the services provided were reasonably calculated to provide the Student with educational benefits and a FAPE (Transcript at pages 494,495 and 508). The DOE maintains that the Student is “academically mostly intact” and made progress during the 2011-2012 and 2012 and 2013 school years (Transcript at pages 160 and 161). The Parent argues that the IEP’s provided the Student an opportunity only for trivial advancement not meaningful progress (Transcript at page 526). I agree with the Parent that the IEP’s provided only an opportunity for trivial advancement. Ms. was not surprised to learn that the Student behind in Math and Reading (Transcript page 92) The May 15, 2012 IEP despite having different grade levels for English Language Arts and Math set the promotion criteria at 35% for both subjects (Transcript at page 358). This criterion was down from higher criteria set by the May 5, 2010 IEP which required 60% and 40% for advancement (Exhibits 5 and E). Mr. testified that the Student had ability (Transcript at page 120 and 129). Ms. testified that the Student 2014 to mark the Student’s because the Student had met the teacher and academic requirements (Transcript at page 433 and 434), but the Student could have done better during the 2013-2014 school year (Transcript at page 438). Thus, despite the Student’s potential ability for a meaningful education, it appears that DOE is setting standards which allow only trivial advancement.

Thus I find that on a substantive basis the DOE did not provide the Student with a FAPE for the 2011-2012, 2012-2013 and 2013-2014 school years because sufficient support services were not provided; the IEP’s did not address undisputed skill deficiencies; and the IEP’s provided for only trivial advancement.

The Parent seeks compensatory education in the form of 917 hours of one-to-one tutoring at ) to address DOE’s denial of FAPE and the level functioning in English Language Arts and seven years below grade level functioning in Math (Transcript at pages 167, 523 and 533; Exhibit A). The DOE maintains that the amount of compensatory tutoring services sought by the Parent is inappropriate (Transcript at pages 160 and 161). Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (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 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, 75 (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); Application of a Child with a Disability, Appeal No. 03-078 (awarding two years of instruction after expiration of IDEA eligibility as compensatory education).

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(10, 44029(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 "the IDEA allows a hearing officer to fashion an appropriate remedy, and. . . compensatory education is an available option under the Act to make up for denial of a FAPE"; (Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at *24 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); See 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); Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 (awarding additional services in the form of tutoring or other direct support from a special education teacher); Application of a Student with a Disability, Appeal No. 13-208 (upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading); Application of the Dep't of Educ., Appeal No. 13-048 (awarding the student with therapy in compensatory additional services).

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 “ appropriate 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 "compensatory 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 successfully"); Reid, 401 F.3d at 518, 525 (holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"); Puyallup, 31 F.3d at 1497 ("There is no obligation to provide a day-for day compensation for time missed" Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

In this case the Parent seeks 917 hours of one-to-one to address the Student’s six years below grade level functioning in English Language Arts and seven years below grade level functioning in Math (Transcript at pages 167, 523 and 533; Exhibit A). As discussed above neither the May 5, 2010 IEP, the May 15, 2012 IEP, the August 7, 2013 IEP, or the May 7, 2104 IEP (Exhibits 5, E, R and 48) provided for English and Math tutoring for the Student despite the Student continuing to maintain a third and fourth grade English and Math level while advancing through the sixth, seventh eighth and ninth grades. I find that the requested one-to-one tutoring makes up for DOE’s lack of English and Math tutoring and puts the Student in the same position he/she would have occupied but for DOE’s violation of FAPE. If the Student had received one hour per day of English tutoring and one hour a day of Math tutoring for the past three school years that would amount to two hours per day over five hundred forty days (180 school days times three years) for a total of a total of one thousand eighty (1080) hours of tutoring. Thus the parent’s request for 917 hours of tutoring is not, as DOE maintains, excessive.

DOE argues that Reid rejects the Third Circuit (M.C. on behalf of J.C. v. Central Regional School Dist. 81 F3d 389 3rd Cir 1996) quantitative approach as “cookie cutter” and seeks a more nuanced approach. DOE further argues that the qualitative approach as set out in Reid appears to be the majority view. (Bookout v. Bellflower Unified School District WL 1152948 (CD Calif, March 21, 2014); R.P. ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1125 (9th Cir.2011). (Demarcus L.v. Board of Education of the City of Chicago, WL 948883 N.D. Ill. March 11, 2014). (Board of Educ. Oak Park & River Forest High Sch. Dist. 200 v. Illinois State Bd. of Educ. & Todd A., 79 F.3d 654, 656 (7th Cir.1996). I find that the requested tutoring is not a quantitative approach but rather a more qualitative nuanced approach as the tutoring requested addresses the specific needs of the Student. Ms. testified that based on the Student’s test results the HLC created a Student Program Map which lists skills to be worked on and the number of hours the Student is likely to need to master those skills (Transcript at pages 197 and 198, Exhibit T). There are sixty-two math skills to be learned and with each skill taking a total of five hours to learn a total of three hundred ten hours will be needed to bring the Student to a ninth grade math level. There are seven core reading skills to be learned which take about twelve hours to be mastered for a total of eighty-four hours (Transcript at page 200). A total of two hundred four hours needed to bring the Student to a ninth grade reading comprehension level (Transcript at page 201). There are six pieces of writing curriculum to learn which take ten hours each for a total of sixty hours and fifteen study skills which take two hours each for a total of thirty hours (Transcript at page 204). Further, that the Student requires support from a teacher in order to make sure that assignments are understood, questions get answered as they occur and the Student is fully supported (Transcript at page 230).

DOE argues that it is unclear if the Student will benefit from the intensive tutoring provided (Transcript at page 513). However, testimony indicated that the Student is likely to succeed with the tutoring and the tutoring may improve the Student’s social and emotional behaviors. Ms. testified that when the Student is in a calm state the Student is wonderful, helpful, creative and very talented artistically (Transcript at page 85). Ms. Beasley stated that being behind academically could impact a student’s social and (Transcript at page 93). Mr. testified that the Student had ability (Transcript at pages 120 and 129). Mr. believes that if the Student and motivation the Student could benefit from tutoring (Transcript at pages 378 and 379). Ms. students have because they start with work which they can be successful at which motivates immediately (Transcript at page 209). Based on the Student’s WAIT test scores, Ms. believes the Student can achieve level (Transcript at page 213). Ms. Helene testified that do not exhibit their while learning because the one to one tutoring reduces their confidence and provides immediate redirection of their attention (Transcript at page 255). Ms. testified that the Student needs more intensive services such as one to one instruction in school in order to decrease the Student’s anger and anxiety and help the Student focus (Transcript at page 415). One to one instruction would help the Student cope with frustration instead of engaging (Transcript at pages 416 and 428). It is opinion that the Student would benefit from the HLC tutoring because the Student likes one to help the Student focus and gain control of and master the subject which may prevent the Student . If presented in the proper manner the Student will go to tutoring (Transcript at pages 427, 428, 436 and 451). Ms. Freeman felt that the Student will ultimately go to tutoring because the Student knows it will ultimately benefit him/her (Transcript at page 452).

DOE maintains that any needed remedial tutoring should be provided by the (Transcript at page 519), however Ms. testified that such intensive tutoring is not available at . Other than a teacher pulling a student aside for one to one tutoring or tutoring during regent’s week there is no special academic tutoring (Transcript at page 444). Thus, in view of the lack of tutoring provided to the Student and the testimony regarding the likelihood that the Student will obtain an educational benefit from the tutoring, the Parent’s request for 917 hours of . Mr. stated that he will accompany the Student to sessions (Transcript at page 286). The Parent’s request for Metro-cards for the Student and Parent to travel therefore granted.

The Parent requests testified that there should be no expiration date tutoring hours so that the of when to and to allow for things that happen in the Student’s life such as illness and other appointments (Transcript at pages 429 and 457). However, I find that it unfair to DOE to have the tutoring go on potentially until the Student leaves the public school system. Ms. testified that the average tutoring sessions last for two hours per day. I therefore find that the Student should be required to finish the 917 hours of tutoring within two years of the date of this order. Thus if the Student attends two hour sessions daily the 917 hours of tutoring would be completed in 459 days (917 divided by 2). This leaves 271 days or nine months to allow for things that happen in the Student’s life. (Two years equals 730 days less 459 equals 271).

The Parent seeks an order directing that the IEP meeting be reconvened (Exhibit A, Transcript at pages 167 and 531). However, an IEP was created for the Student on May 7, 2014 for the 2014-2015 school year (Exhibit 48). I find that it is too soon to reconvene an IEP meeting. Ms. will be working with the Student’s outpatient therapist (Transcript at page 430, Exhibit 48). The Student will be starting tutoring and the IEP for the 2014-2015 school year will soon be implemented. I find that the effectiveness of the counseling, tutoring and IEP should be evaluated after six months. I therefore find that the IEP meeting should be reconvened six months from the date of this order.

The Parent seeks reimbursement $295.00 diagnostic fee and the $100.00 registration fee (Exhibit A; Transcript at pages 167 and 531). Reimbursement sought must be reasonable (See Florence County Sch. Dist. V. Shannon Carter, et.al. 519 U. S. 7, 114 S. Ct. 361, 29 IDELR 532 (1993). Reimbursement may be denied if the cost of the private placement is unreasonable. I find that the $295.00 diagnostic fee and the $100.00 registration fee as well as the $100.00 per hour tutoring fee is not unreasonable as the Student’s evaluation was very thorough (Exhibit’s S, T and U) and the tutoring to be provided is (Transcript at page 209).

Order

The DOE did not provide a FAPE for the Student for the 2011-2012, 2012-2013 and 2013-2014 school years.

The Parent’s request for DOE to perform an updated is granted.

DOE is directed to conduct a of the Student within thirty (30) days of this order and send a copy to the Parent,

The Parent’s request for 917 hours of is granted.

DOE is directed to pay for 917 Hours of at a rate of $100.00 per hour as the tutoring occurs. DOE is to pay 10128 within thirty (30) days of receiving invoices from The Student is to complete the 917 hours of or before August 20, 2016.

The Parent’s request for Metro-cards for the Student and Parent to is granted.

DOE is to provide one metro-card to the Parent and one Metro-card for the Student within seven (7) days of the date of this order.

DOE is to reconvene an IEP meeting for this Student on or shortly after February 20, 2015.

The Parent’s request for DOE to reimburse for the Student’s $295.00 diagnostic fee and the $100.00 registration fee is granted.

DOE is to pay 10128 within thirty (30) days of this order $395.00 representing the total costs of the Student’s diagnostic and registration Dated: August 21, 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’s Exhibit Date Name of Document # of Pages

A 12/4/13 Impartial Hearing 8

Request

B 3/8/12 4

C 3/8/12 Level I Vocational 1

Interview

D 5/10/12 Classroom 1

Observation

E 5/15/12 IEP 2012-2013 17

F 5/15/12 Student Progress 2

Report G 11/28/12 1 H 12/21/12 Screening 3 I 2/27/13 Social History 5

Evaluation J 3/1/13 Level I Vocational 1

Interview K 3/7/13 Assessments/Plans 6 L 3/12/13 Evaluation 4 M 3/13/13 Classroom 2

Observation N 3/13/13 Classroom 1

Observation II O 4/3/13 Student Progress 2

Report P 3/13/13 A-B-C Chart 1 Q Undated Student’s Writing 9

Sample

R 8/7/13 IEP 2013-2014 13

S 9/14/13 C752 3 T 9/14/13 Program 1 U 9/14/13 Diagnostic Test 43

Results

V 4/3/13 IEP 13

DOE’s Exhibit Date Name of Document # of Pages 2 12/15/13 DOE’s Due Process 3

Response 3 4/1/14 DOE’s Exam 1

History 4 Undated Letter by Student 1

5 5/5/10 IEP 11

6 6/3/11 Inc., Request for 3

Services

8 2/4/13 DOE Anecdotal 1

Record 9 2/6/13 DOE Anecdotal 1

Record 10 2/7/14 DOE Anecdotal 1

Record 11 3/15/13 DOE Anecdotal 1

Record 12 Undated Assessment 1

Planning 16 11/8/12 2 17 11/8/12 Conners’ Teacher 2

Rating Scale by 18 10/23/12 Letter from A. 1

Santiago 19 11/28/12 Letter from A. 1

Santiago 20 11/28/12 Letter from 1 21 1/25/13 Letter from 1 22 3/12/13 Notice of IEP 4 meeting 23 1/26/12 Notice of Mandated Three Year Re-evaluation

28 4/3/13 IEP Attendance 1

Page

29 8/7/13 IEP Attendance 1

Page 33 2/27/13 Consent for 1

Additional

Assessments 37 3/7/13 Functional Behavior 1

Assessment (FBA)

Cover Sheet 38 3/7/13 Functional Behavior 6

Assessment (FBA) 40 7/17/13 Notice of IEP 4

meeting 41 7/16/13 Notice of 2

Securement 42 2/12/13 Notice of Meeting 1

to Conduct a Social

History 43 1/21/13 Parent request for 2

Re-evaluation 46 9/9/13 DOE Discharge 1

Notice 47 6/1/14 print date Special Education 2

Website

48 5/7/14 IEP 13

49 5/7/14 IEP Attendance 1

Page 50 5/27/14 print date 13-14 Year Report 1

Card 51 5/27/14 print date Monthly 11

Attendance Report

July 1, 2013 thru

May 5, 2014 Hearing Officer’s Exhibits AA June 3, 2014 E-mails Concerning 69 through Transcript

July 21, 2014 Corrections