Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: September 3, 2014

March 17, 2015

March 30, 2015

May 5, 2015

Actual Record Closed Date: July 5, 2015

Hearing Officer: Rona Feinberg, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 3, 2014 MARCH 17, 2015 MARCH 30, 2015 MAY 5, 2015

Esq. Attorney Mother — Parents

Department of Education Representative — DOE

Department of Education Representative — DOE

Esq. Attorney — Parents

Department of Education Representative — DOE

Department of Education Representative Mother — DOE

DOE

(via telephone)

DOE

(via telephone)

Parents

(via telephone)

Esq. Attorney — Parents

Attorney — Parents

Department of Education Representative — DOE

Department of Education Representative Mother — DOE

Parents

(via telephone)

Esq. Attorney — Parents

Department of Education Representative — DOE

Department of Education Representative Mother — DOE

Parents

(via telephone)

INTRODUCTION

On September 3, 2014, March 17, 2015, March 30, 2015 and May 5, 2015, I held an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1) regarding the education program of a child, (“ ”). The hearing commenced at 9:30 a.m., 9:45 a.m., 9:57 a.m. and

9:50 a.m., respectively, and was held at the Impartial Hearing Office, . A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

BACKGROUND

is old. He is currently not classified as a special education student and in June 2015 completed the at (“

”) in

The parents, by their attorney , Esq., filed an Impartial Hearing Request dated July 22, 2014 (Parents’ Ex. A). I conducted a pendency hearing on September 3, 2014. At the hearing the parties disagreed as to which particular IEP was the “last agreed upon” IEP for purposes of pendency. Mr. alleged that the last agreed upon IEP was the one dated March 20, 2012 that ordered of and of in a

(Parents’ Ex. H at 7). The Department of Education, represented by , argued that the last agreed upon IEP was the one dated March 11, 2013 that mandated sessions of . After reviewing the hearing request, in which the parents identified the pendency IEP as the one “in place prior to the Department’s attempt to declassify ( ) from special education” (Parents’ Ex. A at 2), listening to the arguments of the parties, and taking testimony from ’s mother (“ ”)

I issued an Interim Order dated September 9, 2014 directing that be provided with sessions per of individual as per his March 11, 2013 IEP, which I found to be the last agreed upon IEP prior to ’s declassification in March 2014. The Order was to be effective as of the first day of school for the 20142015 school year and was to remain in effect until a superseding Order of Pendency was issued after the District presented its witness on the issue of the “last agreed upon” IEP.

In a second amended Complaint dated September 16, 2015 (“Complaint”), Mr.

alleged that the Department of Education failed to provide with a FAPE for the 2013- 2014 and 2014-2015 school years. Specifically, the Complaint alleges, among other things, that ’s March 11, 2013 IEP inappropriately reduced his

(“ ”) sessions from three sessions per to sessions per and that at an IEP meeting held on March 4, 2015 the CSE improperly declassified as a special education student and discontinued his services. In addition, the Complaint alleges that the Department of Education failed to consider the results of, and the recommendations in, the private evaluation obtained by the parents in April 2014 and reinstate ’s services. The Complaint also asserts that at the time it was written the Department of Education had not yet provided with any declassification services or the services ordered in the Interim Order dated September 9, 2014. The Complaint asked for compensatory and additional services, an (“ ”)

evaluation, reimbursement for evaluations obtained by the parents and classroom and testing accommodations. This amended complaint identified the pendency IEP as the one dated March 20, 2012 (Parents’ Ex. K).

Prior to the first hearing date scheduled for December 15, 2014, the parties requested an adjournment and an extension of the compliance date because they were engaged in settlement negotiations and I granted the request on the ground that there was good cause to believe that a settlement was likely to be reached. Several extensions were granted on that ground until Mr. advised me on or about February 10, 2015 that the parents wished to go forward with the hearing. When the impartial hearing commenced on March 17, 2015 neither party raised the issue of the “last agreed upon IEP” and the September 9, 2014 Interim Order remained in effect.

Pursuant to a request by Mr. at the March 17, 2015 hearing and without objection by Ms. , on March 19, 2015 I issued an amendment to the Interim Order directing that be provided with the testing accommodations mandated on the March 11, 2013 IEP, specifically: 1) ;

2) ; and 3)

. I

also found that by making that request Mr. was implicitly conceding that the March 11, 2013 IEP was the relevant IEP for purposes of pendency. The parents did not pursue that issue at the impartial hearing.

COMPLIANCE DATE INFORMATION

I was assigned as the impartial hearing officer in this case on July 23, 2014. On

September 16, 2014 I accepted the parents’ request to file an amended Complaint and the revised compliance date was November 17, 2014. On October 7, 2014 at the request of both parties due to the availability of witnesses, the compliance date was extended to December 17, 2014 and a hearing was scheduled for December 15, 2014. On December 11, 2014 at the request of the parents because they were engaged in settlement discussions and hoping to resolve some of the issues in the Complaint without a hearing, the compliance date was extended to January 16, 2015. On January 15, 2015 at the request of both parties for the parents to meet with the CSE following a private evaluation the compliance date was extended to February 15, 2015. Pursuant to a request by the District on February 9, 2015 to allow for evaluations since the case had been re-opened as an “initial” and without objection by the parents, the compliance date was extended to March 18, 2015. On February 10, 2014 Mr. notified his hearing officer that a settlement was not likely to be reached. On March 16, 2015 at the request of both parties for the availability of witnesses the compliance date was extended to April 17, 2015.

The case proceeded to a hearing on March 17, 2015 and March 30, 2015. On April 7, 2015 at the request of the parents for the availability of their witness and without objection by the Department of Education the compliance date was extended to May 17, 2015. At the conclusion of the hearing held on May 5, 2015 the compliance date was extended to June 17, 2015 at the request of both parties to review the transcripts and file closing briefs. On June 10, 2015 at the request of the Department of Education for to file its closing brief and without objection by the parents the compliance date was extended to July 17, 2015.

The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations. Specifically, (a) the child was attending school and pursuant to an Interim Order he was receiving services, and evaluations were conducted during this time; (b) in accordance with due process the parties were entitled to attempt to effectuate a settlement, have their witnesses be available when it became apparent that a settlement would not be reached, submit written closing statements and have this hearing officer review the transcript, the evidence and the closing statements prior to the issuance of a Decision and Order; (c) there were no financial or detrimental consequences likely to be suffered by either party by the delay; and (d) there were no prior delays in this case.

ISSUES TO BE RESOLVED AT THE IMPARTIAL HEARING

1)Whether the CSE improperly reduced ’s recommendations from per to sessions per on his March 11, 2013 IEP;

2) Whether the CSE improperly declassified as a student with a disability at the IEP meeting held on or about March 4, 2014; 3) Whether is entitled to compensatory services; 4) Whether the parents are entitled to reimbursement for their private evaluation; 5) Whether the parents are entitled to reimbursement for their private evaluation; 6) Whether an evaluation by the Department of Education is required as part of the evaluative data used to determine whether should be classified as a student with a disability; 8) Whether this hearing officer or the CSE should make the determination of whether should be reclassified as a special education student and, if he is found to be a special education student who, should determine the appropriate the program and related services for him; 9) Whether is entitled to specific services and evaluations and whether he should continue to be provided with classroom and testing accommodations.

FINDINGS OF FACT

2012-2013 School Year

was ’s at school from the (the 2012-to the end of the ( : 77).^[1] began the with an mandate of for . When Ms. began working with he was “ .” had difficulty with . He had difficulty

78, 124).

March 12, 2012 IEP Meeting

Mrs. and participated in ’s March 2012 IEP meeting for the 2012- 2013 school year when would be in the . The recommendation was for for and once a for in a ( : 79-80, 83, 116; : 331; Parents’ Ex. H at 7). The intention was to provide with a lot of “early on” to “catch him up” with the expectation that as he progressed he would be of class less frequently and not miss so much classwork ( : 80-81). made progress with the goals on the March 2012 IEP ( : 89-90; Parents’ Ex. H at 5).

March 11, 2013 IEP Meeting

Ms. and participated in ’s March 11, 2013 IEP meeting for the 2013- 2014 school year when would be in the ( : 91; : 332). The IEP details ’s related difficulties and recommends that his be decreased to once a for and once a for in a

(Parents’ Ex. I at 2-3). However, at the meeting Ms. recommended once a for so that the gradual decrease in time would prepare to transition out of services by the time he went to middle school. At ’s request the time was divided into sessions per in order to monitor ’s ability to use the sensory strategies independently and determine whether those strategies required modification ( : 92-93, 116-117).

agreed with the sessions but did not feel that the durations were sufficient. Ms. told that she could not justify

( : 91-92, 117, 119-120; : 333, 381-382; Parents’ Ex. I at 5). Mrs.

believed that the mandate was appropriate for because all of the other skills and goals had been met and the remaining issue was only making independent with strategies for his sensory needs. She stated that sessions of were “excessive” for working on a sensory diet ( : 94-95, 123). In addition, in the it would be very difficult to pull out of class for particularly since was concerned about leaving class for a few minutes at a time for his sensory strategies ( : 122). Mrs. did not recall any discussion about at that meeting ( : 93-94).

In making the determination to reduce ’s , Mrs. had many conversations with ’s teachers and their “biggest concern” was ’s distractibility and impulsiveness. became uncomfortable with strategies that involved him leaving the classroom because he felt that he was missing important classwork. After speaking with Ms. developed some “in seat strategies” and after determining which of those strategies were effective, they taped them to ’s desk as a visual reminder (DOE Ex. 7). The teacher and also had a copy of the strategies and they should have been used in the classroom daily. ’s teacher was to cue him in a “roundabout way” by either calling his name or making a motion that would not be noticeable to the other students. stated that he was able to refocus himself and his teacher reported that although he was distractible, just calling his name was sufficient to refocus him. At that point had all of the skills and the ability to use those skills and his goal was for independence ( : 96, 139, 144-145; DOE Ex. 6 at 13).

Ms. stated that she discussed the gradual reduction of services with “numerous times throughout the years” and that “seemed to be in perfect agreement” with that plan ( : 93). During the course of the 2013-2014 school year did not “formally” ask Ms. to increase the sessions ( : 382).

2013-2014 School Year

’s report card for the first marking period of the reflected grades of all “ indicating that he was

(DOE Ex. 8).

March 4, 2014 IEP Meeting and ’s Declassification

Immediately prior to an IEP meeting held on March 4, 2014 at which the CSE declassified as a special education student, told Ms. that she believed still required testing modifications and Ms. told her that if necessary to maintain those modifications she would recommend once a month ( : 97-98, 113-114;

DOE Ex. 3). Both Ms. and participated in the meeting ( : 334; DOE Ex. 4 at 2). At the meeting the school , Ms. , explained that would be able to keep his testing modifications under without the ( : 98).

was discharged from services at that meeting because Ms. believed that he had met the goals on his prior IEP ( : 334).

. The Annual Review Plan developed by Ms. explains that met all of his goals and why she recommended that he be discharged from . It indicates that ’s biggest challenge at that point was his “motivation” and it was the only document relied upon to declassify ( : 99-100, 115-116; DOE Ex. 3). Ms. testified that she observed at a field day and that he was able to independently participate in gross motor activities with other children and following directions in the activities ( :

129). Ms. explained that when is cued and motivated he can employ the strategies and skills he has learned for organization and handwriting. For example, Ms.

noted that she observed ’s handwriting from class, from homework and from and that while he has the motor ability to write neatly he does not always do so

( : 127-128). Ms. never saw “fatigue” at anything ( : 135). She testified that “matured greatly” during the years that she worked with and that at the time he was declassified he did not have coordination, transition, peer social interaction or frustration issues ( : 135-137; see DOE Ex. 6, Encounter Attendance Records).

Ms. did not believe that required at that point because it was not impacting on his academic performance or achievement. Ms. based that determination on classroom observations throughout the year, discussions with ’s teacher, the fact that he was doing well tests and on his report card, all of which indicated that his impulsiveness was “clearly” not impeding his academic functioning or his ability to participate in academic activities ( : 108-109, 111-114, 126-131).

Ms. testified that she had had numerous conversations with about the goal of declassifying , she had discussed the Annual Review Plan with prior to the meeting, that seemed to be in agreement with ’s declassification and that she not aware that “was going to change her mind” about it ( : 100, 138; :

383; DOE Ex. 6 at 13 dated 1/27/14). testified that she disagreed with that decision and noted to Ms. that the demands on would be greater the next year in middle school and that he needed for ( : 334).

At the March 4, 2014 IEP meeting the Departm ent of Education issued

Recommendations Upon Declassification. That document indicated the projected date of declassification as March 17, 2014 and recommended declassification support services during the first year that was declassified. Those services were the testing accommodations requested by the parents, specifically

( : 105; DOE Ex. 4). No one explained to that was entitled to any other declassification services ( : 335).

After that meeting spoke with ’s teacher who told her that was “very inconsistent in class” in that one day he was more on target and the next day he was off target. believed that the teacher did not share those concerns clearly enough at the IEP meeting ( : 340). then called the person who ran the IEP meeting to tell her that she “strongly disagreed” with the declassification. was not able to reach that person for a few days and then spoke to someone at the Department of Education,

Ms. , who told her that if she disagreed it would be no problem and they “would put everything back in place” ( : 340-341).

The recommendation of declassification was finalized on the tenth day after the IEP meeting, which allowed a period of time for the parents to agree or disagree with the declassification decision. On the eleventh day told the school that she wanted to continue receiving . At that point the school told Ms. that they would see if there was any way to circumvent the finalization of the declassification and if so, they would reinstate the without going through the initial process. Had they been able to do so, Ms. would have reinstated once a month for “monitoring” only to keep the testing modifications in place, not the for that had been recommended on the prior IEP ( : 113-114).

’s services were discontinued in March 2014 ( : 115; : 351).

Ms. believed that when left the school in June 2014 at the end of the he was able to follow oral and written directions and was independent in strategies to deal with his sensory needs so that he “could do it on his own in middle school” ( : 79).

Post-March 4, 2014 Events

The declassification decision was “finalized” ten days after the March 4, 2015 IEP meeting ( : 112-113). As documented in , on March 19, 2014 told Ms.

that while she had agreed with ’s declassification at the IEP meeting, by the time of the “parent teachers night” she thought she may have made the wrong decision but at that time did not “mention” that thought to the teacher or to Ms. . told Ms. that when she returned from an out-of-town conference she realized that did not want to discontinue ’s services (DOE Ex. 5 at 3, 3/21/2014 9:54 a.m. entry).

On March 21, 2014 Ms. called and advised her that as per , the supervisor of , at that point ’s case would have to be reopened as an “initial evaluation.” told Ms. that although she felt that ’s skills were appropriate for an elementary school level she was concerned that he would not be able to keep up in middle school. wanted the reinstated and did not want to open an initial case. She asked that ’s case be reopened and also asked for Ms. ’s phone number and the name of an education attorney ( : 140-141; : 385-387;

DOE Ex. 5 at 3, 3/21/14 10: 35 a.m. entry.

In a letter dated March 31, 2014 advised the CSE Chairperson and the principal of that she disagreed with ’s declassification and that she believed that required services for the transition to middle school. She indicated that while the Prior Written Notice stated that would be declassified, it did not provide a basis for concluding that the services were no longer necessary. stated that she would be obtaining a private evaluation for and would seek reimbursement for the cost of that evaluation ( : 132; : 345-346; Parents’ Ex. B).

April 2014 Private Evaluation

obtained a private evaluation for by at in , or “ .”^[2] Ms. first saw in February 2011 and she administered an evaluation to in April 2014 when brought him to her because he was having problems in school ( : 278, 306, 321;

Parents’ Exs. C, M. N, O, P, Q, CC). In April 2014 she administered several different tests and analyses and determined that had issues with writing skills and difficulty with some regulatory and motor proficiency behaviors such as . He also had and got fatigued during the evaluation ( : 279-280). When gets tired he

”

( : 281). He also has

. He makes punctuation errors and “ ”

( : 280-281). Ms. explained that uses “too much pencil pressure” and “wears himself out” which leads to “sloppiness” in his work ( :

282; Parents’ Ex. C).

Ms. reviewed the goals on ’s IEP and asked him what strategies he uses in school to help him pay to his schoolwork he was not able to describe them to her and said he used them “ .” Thus she concluded that was not able to generalize the skill so that it was fundamental to his “skill set,” which should have been accomplished before concluding that the goal had been met ( : 283-284,

304, 321-322).

Ms. described the various tests she administered to as part of her evaluation and she explained the results of each test ( : 285-300). Based on those results Ms. recommended to help him with the mechanics of writing and grip and an evaluation so that he would be able to get assistance for his motor and writing problems such as . She also recommended for strategies to regulate himself that he could recall and “use with some confidence” and for strategies to reduce his anxiety and provide better coping strategies ( : 300-301; Parents’ Ex.

C at 5). Ms. did not believe that had the organizational or legibility skills that he would need to use in middle school, which may be more demanding ( :

303, 313). She wanted to get at least months of sessions per and that he then be reassessed by this to see to make a judgment about whether he attained the goals that she set for him and whether he needed “more or less” sessions. She noted that the goals she set for him might require modification for middle school ( : 301, 313-314; Parents’ Ex. C at 2).

Ms. did not speak to any of ’s teachers or to his provider and she did not recall whether she had seen any of his report cards, whether she knew his grades or whether he made progress in school ( : 306-307). She testified that a child who has or a writing problem might do well in many subjects but would struggle in subjects that have to do with expressive writing ( : 324).

testified that ’s teachers and Ms. told her that they could not speak to Ms.

( : 391-392).

Ms. opined that it would be “very useful” for to have another evaluation now that he was nearing the end of his first year of middle school. She stated that if has “gotten help” he should be evaluated “every year” and that if he “hasn’t gotten help” he “absolutely … needs to have an assessment about what he would need”

( : 315-319).

The cost of Ms. ’s evaluation was (Parents’ Ex Z). did not submit the invoice to her insurance company ( : 368-369).

Events Following the Private Evaluation

In a letter dated May 19, 2014 advised the CSE Chairperson, the Education Director of , , and the principal of ’s school that the private evaluation confirmed that still required and that he needed an evaluation. She requested an “immediate CSE meeting to reconsider

( ’s) needs” in light of the information in the evaluation report” ( : 387; Parents’ Ex D). The Department of Education contacted to open the case “as an initial” and to come in for a social history but did not want to do so. It was ’s understanding that the CSE would not consider Ms. ’s evaluation because they told her that was a “snapshot” of and they had to “do it in (their) own school” way ( : 387-

394).

In a letter another letter to the CSE Chairperson, Ms. and the principal of ’s school dated June 9, 2014 expressed her concerns at the “refusal” of the CSE to reinstate ’s . She notified the CSE in that letter that she was going to obtain a private evaluation and seek reimbursement and/or funding for that evaluation. noted in the letter that she was contacted by a social worker about setting up a date for a social history evaluation and that she continued to disagree with the Department of Education’s treatment of the case as an “initial evaluation process.” She requested that the CSE convene an IEP meeting to reconsider ’s needs ( : 349;

Parents’ Ex. E).

’s During the 2014-2015 School Year

On ’s first day of middle school at in September 2014 spoke with , the social worker at the school, who told her that upon declassification the IEP team should have issued a document for continue to receive his mandate of for for after he was declassified and she gave a document to that effect ( : 336-337; Parents’ Ex. V).

is an supervisor for the Department of Education at

.^[3] Ms. became involved in ’s case when he began at the school and she was advised that although he had been declassified he was to receive services based on the Interim Order. Ms. worked with the assigned to , , to make sure that the Interim Order was carried out properly ( : 179-180). Ms. worked with on and writing because one of the biggest areas of concern is his difficulty with completing writing assignments in a timely fashion ( : 177).

Beginning in November 2014 began providing with individual “ ” services at home pursuant to an to compensate for the services he was entitled to from the time he was declassified until Ms. began providing his services in school ( : 352: : 422-423,452-453; Parents’ Ex. V).^[4]

Although the were for sessions per Ms.

worked with once a for minutes on ,

, ,

( : 352-355; : 422-427). told

Ms. that it is “very difficult” for him to make friends and that it is an “uncomfortable” situation for him. has difficulty “figuring out what is required of him and how to behave appropriately when it comes to his peers” ( : 426-427).

Ms. described the strategies that she uses to address ’s issues ( : 427-

438). Ms. noted progress in ’s “willingness and his motivation” to accept challenging activities and that his self-confidence has improved “because of that.” He has also shown improvement in spatial awareness and coordination ( : 438-440). She observed in and class in March 2014 and noted the issues that he had with with his peers in the classroom ( : 443-444).

Ms. also spoke to Ms. about ’s difficulties with peer interactions and keeping up with the pace in his math class, which she had recently observed ( :

446-447).^[5] Ms. did not believe that an mandate of for was sufficient to meet ’s needs and she recommended a mandate of one session in school and one session at home.

Ms. issued an Progress Report on March 15, 2015, before her visit to ’s school. Her reflection of how his issues were impacting him in the classroom was based on her conversations with ( : 447-453, 464; Parents’ Ex.

BB). Ms. was aware that is doing “very well” academically but testified that he is not no performing well in the classroom environment and with his peers at school.

She opined that his difficulties are not related to his intelligence and that she was aware that has “helped him a lot with academics” and that he is “managing” although it is a “struggle for him” ( : 454, 457-458, 462-465). told her that he is permitted to use an device in the classroom ( : 460-461).

Ms. provided Ms. with reports and progress notes of her work with . Ms. also examined documents with respect to and she spoke with the school team about ’s functioning within the school ( : 151-

152). Ms. reviewed the evaluation report by

( : 153, 155; Parents’ Ex. C). She believed that the evaluation did not link the information to ’s functioning in the classroom and noted that one of the “key things” she looks for is how the child is doing within his academic program. She noted that Ms.

’s evaluation was completed the prior year while was still in elementary school and that there are different expectations in middle school. To be current, an evaluation should take place within his middle school setting and reflect ’s strengths and weaknesses in this setting ( : 158-159, 167, 170).

A school evaluation is done and generally takes . The evaluator observes the child during his various classes throughout the school day and notes whether the child is able to transition from class to class and also speaks to his teachers to determine whether there are any problem areas and establish the child’s strengths and weaknesses. Part of the evaluation is done outside the classroom. Based on her knowledge of Ms. estimated that the time spent out of the classroom would be about ( : 161, 163,

169, 173-176).

A school evaluation had been scheduled for sometime in February 2015 to be conducted by , a senior who has been conducting evaluations for several years. Ms. was aware that the parent had objections to the evaluation and she called . She also spoke to Ms. who returned from maternity leave weeks prior to Ms. ’s testimony ( : 164166).

Based on ’s conversations with ’s teachers and on her own observations during open classroom days, is struggling with , ,

, as expected in the classroom and completing his reading and writing assignments on time ( : 356-357). also has issues with taking notes. He does not write down his homework assignments and contacts his classmates for the assignments at home ( : 357-358). told that he has difficulty filtering out the noise in the classroom and so he is not able to focus on his work all of the time ( :

358).

Private Evaluation in December 2014

never asked the Department of Education to do a psychoeducational evaluation of ( : 398). She told , the Education Director for , that she was going to take for a private evaluation, that it was going to cost her a “lot of money” and that she would like to be reimbursed. Ms.

, told not to do the private evaluation and that the Department of Education would do the evaluation ( : 398-399; Parents’ Ex. S).

In December 2014, after was declassified and near the end of his first term at , took him to , Ph.D., a licensed , for a evaluation ( : 186-188, 212; Parents’ Ex. R).^[6] At that time the parents were concerned about and issues. Dr. conducted tests and assessments, reviewed teacher and parent reports and some records, including ’s March 11, 2013 IEP and Ms.

’s evaluation ( : 188, 213-214; Parents’ Exs. C, I). Dr.

determined that ’s main areas of difficulty were , and ( : 189; Parents’ Ex. R). Due to issues had difficulty accessing specific phonetic information which would primarily affect his reading fluency. The testing showed that has some “significant strengths.”

The variability in the testing results reflected ’s issues when there was background noise. The testing showed issues with ’s , in that he “struggled” with “anything that involved a pencil.” With respect to visualization there was too much information on the page for him to synthesize and analyze ( : 191-193).

presented with “some level of impulsivity” and difficulty following directions that were not related to each other, as well as , and , some of which might not be apparent in testing but caused him problems with keeping track of what he was doing in the classroom ( : 193; Parents’ Ex. R). Ms. obtained the information about ’s classroom work from his ( and ) teacher, , who completed a checklist and wrote an observation ( : 193-194; Parents’ Ex. Y).

The checklist indicates that has a lot of transitioning problems and that he gets

“ ” when he has to transition from one activity to another. He does not do well with challenging activities and gives up easily. requires a lot of repetition before he responds to the teacher. He is impulsive and requires a lot of reinforcement to begin an activity and he has difficulty with sustained effort and , losing his train of thought when he writes and losing his place when he does academic tasks. It takes longer to do things than it takes his peers. When is challenged academically he becomes “overwhelmed” ( : 194-196; Parents’ Ex. Y). Ms. also indicated sensory issues on the checklist. For example, has walking or posture difficulties, difficulties with drawing or copying, difficulty with fine motor skills such as using a pencil and that he is sensitive to loud noises. Other issues were included as well ( :

196-197; Parents’ Ex. Y).

Dr. did not speak to any of ’s teachers or see any of his report cards and she did not know whether he had made academic progress in school this past year ( :

214-215). Based on the results of her testing, the checklist completed by Ms. and her conversations with , Dr. recommended various accommodations and classroom modifications for . She also recommended and , either (“ ”) or home based instruction. In addition, based on the Ms. ’s evaluation and her own observations Dr. recommended that be reinstated. She also recommended an or an evaluation to document the type of that could help with writing ( : 190, 201-207, 217-219; Parents’ Ex.

R at 16-19). Dr. noted that upon transition from elementary to middle school ’s types of needs would change in that they “would only increase” ( : 219).

Events Since January 2015

In a letter dated January 13, 2015 asked the CSE to reopen ’s case “as an initial” ( : 398; Parents’ Ex. S). On February 10, 2015 took for an and the evaluator, , Au.D., recommend that see a speech pathologist. The Department of Education also provided a referral for a but took for a private evaluation instead ( :

372-373, 378-379, 401; DOE Ex. 15 at 1).

’s final report card for the first semester at shows grades of . testified that the classification of “ ” does not mean a special

“ ” class. Rather, it is a term used on the report card when a student gets a grade of ( : 396-397; DOE Ex. 16). ’s exams grades as indicated on the report card

. explained that the class grade

includes participation, homework and quizzes, and that participates in class, completes his homework on time with “support” and that he does well on multiple choice tests and things that he can memorize, basically because he gets help with that work at home. The exam grades reflect his difficulty with reading and writing on his midterm exam which are tests that cannot “prep him for” ( : 359, 364). , ’s father and a who works with him on all of his subjects for hours each session, provide extensive help to “ ” ( : 359-361, 364-

365). opined that without the would have failing grades and would not have any of his work done on time ( : 362-363, 395-396).

Ms. raised the issue about whether was a program for “gifted” students. testified that it was not such a program but is a “District school” in which of the students out of the District are “ ” ( :

398). There was no evidence presented to support either position.

testified that does not have friends in school and, while he plays in the yard with peers from the neighborhood, he eats lunch by himself every day ( : 366-

367). explained why she believes that still requires testing accommodations

( : 367-368).

explained why she believes requires for on provided as one session at home and one session in school ( : 34-376). believed that requires “guidance” but not “specific sessions” ( : 380). wants to have the CSE consider Ms. ’s evaluation and its “full battery of testing” but does not want the school to conduct its own evaluation. She believed that Ms.

’s evaluation would be sufficient and that rather than having a school evaluation, the from the school could participate at the IEP meeting to speak about how is doing in school ( : 405-406).

CONCLUSIONS OF LAW AND DISCUSSION

The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). The

Department of Education has the burden of demonstrating that it provided such students with that standard. 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v.

Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir.

2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet a child’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D) 34 C.F.R. § 300.13; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.347; Rowley at 181-182. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit a child to benefit educationally from that instruction.” Rowley, 458 U. S. at 203. An IEP must accurately reflect the results of evaluations to identify the child's needs, provide for the use of appropriate special education services to address the child's special education needs, and establish annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2nd Cir. 2012).

To begin, unless otherwise indicated below I credit the testimony of all of the witnesses who appeared at the hearing. The Decision as stated below is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record. Any additional facts included below will be referenced to the record as well.

To meet its burden, the Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits and that the recommended program is the LRE for the child. Rowley, 458 U.S. at 188-

189; 34 CFR 300.550 (b); 8 NYCRR 200.6 (a)(1).

A. The Department of Education Failed to Provide with a FAPE During the 2013-2014 and 2014-2015 School Years

a) The March 11, 2013 IEP

The parents allege that the Department of Education failed to provide with a FAPE for the 2013-2014 school year because the March 11, 2013 IEP reduced his services from for and once a for in a , to for (Parents’ Ex. K at 4; IHO Ex.

I at 9). I agree with the parents and find that the IEP itself refutes the propriety of the reduction in ’s services for the 2013-2014 school year.

The , and section of the March 11, 2013 IEP as well as the Social Development and Physical Development sections of that document detail ’s -related difficulties

(Parents’ Ex. I at 1-3). While these sections of the IEP note progress in various areas such as being able to follow directions, transitions and an improvement in the legibility of his handwriting since learning cursive, it describes ’s difficulties as, for example, s (Parents’ Ex. I at 1-

2). The Physical Development section of the IEP recommends an mandate of once a for and once a for in a

(Parents’ Ex. I at 1-3). The section of the IEP states that requires that mandate in order to address the difficulties described in the prior sections of the IEP

(Parents’ Ex. I at 3).

Nevertheless, in spite of this recommendation and the reasons provided for the recommendation in the IEP, Ms. and the IEP team reduced ’s mandate to once a for , which was divided into sessions in response to a request by (Parent’s Ex. I at 10). And, despite the variety of issues noted in the IEP Ms. developed only goals for , both related only to sensory strategies (Parents’ Ex. I at 4-5).

In light of the information in the body of the IEP as described above and the repeated recommendation of and in a , I find that the reduction of ’s mandate to just sessions of is not supported by the evidence and that it deprived him of a FAPE for the 2013-2014 school year.

b) The March 4, 2014 IEP Declassification

The parents allege that the CSE improperly declassified from services on March 4, 2014 (Parents’ Ex. K at 4-5; IHO Ex. I at 13-23). The Department of Education maintains that the declassification was appropriate (IHO Ex. II at 3-5).

A local educational agency must evaluate a child before determining that he or she is no longer a child with a disability unless the eligibility of a child with a disability is terminated because he or she has graduated from secondary school with a regular diploma or has exceeded the age eligibility for a FAPE under state law. 20 U.S.C. 1414

(c)(1)(5)(A)(B)(i); 8 N.Y.C.R.R. §200.4(b)(4)(5). In making that determination the IEP team and other professionals, as appropriate, must review existing evaluation data on the child including, among other things, “information provided by the parents of the child” and “current classroom-based local, or State assessments, and classroom based observations.” 20 U.S.C. §1414(c)(1)(A)(i)(ii)(iii); 8 N.Y.C.R.R. §200.4(b)(5)(i). The determination to discontinue special education services must include “input from the child’s parents” to “identify what additional data, if any, are needed to determine” the” present levels of and related development needs of the child” and whether the child continues to need special education and related services.” 20 U.S.C.

§1414(c)(1)(B)(i)(ii)(iii); 8 N.Y.C.R.R. §200.4(b)(5)(ii)(a)(b)(c). If the IEP team determines that no additional data is required to determine that a child no longer requires special education services the Department of Education must notify the parents of its determination and the reason for the determination as well as their “right” to “request an assessment to determine whether the child continues to be a child with a disability and to determine the child’s educational needs.” 20 U.S.C.§1414(c)(4)(A)(i)(ii); 8 N.Y.C.R.R.

§200.4(b)(5)(iv).

The decision to declassify was based on Ms. ’ input at the IEP meeting and her Annual Review Plan (“Plan”) (DOE Ex. 3). Ms.

testified that the only remaining issues for were sensory and that he was able to independently use strategies to address those needs. She stated that told her that he did not want to leave the room and that he had a on his desk. Ms.

reported that ’s teacher at the time told her that responded to a

.

The section of the Plan titled “Review of Student’s Progress” requires the inclusion of “objective data/numerical values” and “assessment tools used and results”

(DOE Ex. 3 at 1). However, that section of the Plan consists entirely of Ms. ’ subjective observations from working with and speaking to his teacher. The only assessment mentioned with data is the , on which scored , “well above the ” (Ex. 3 at 1). The Department of Education did not present evidence of any other assessments or evaluative data. In light of the information on the March 11, 2013 IEP and ’s concerns, I find that that single assessment was insufficient, by itself, to support the decision to discontinue ’s services.

Upon the determination to declassify the Department of Education was required to notify 's parents that they had the "right to request an assessment to determine whether ( ) continue[d] to be a child with a disability and to determine the child's educational needs.” 20 U.S.C. 1414(c)(2)(4)(A)(ii); 8 NYCRR 200.5(6)(i). Here the parents were given no such notification or option. Had been advised of that right the parents would have had the opportunity to request that the Department of Education conduct an appropriate assessment and, if the parents disagreed with that assessment or evaluation, they could have requested an independent educational evaluation (“IEE”) at public expense that the IEP team would have been required to consider it before finalizing

's declassification. 8 N.Y.C.R.R. §200.5(g)(1).

In light of the foregoing I find that the Department of Education did not follow the legal procedure required to determine that longer required special education services and thus that it improperly discontinued his services in March 2014 thereby depriving him of a FAPE from March 2014 to the end of the 2014-2015 school year.

***

was entitled to receive the sessions of for

after his declassification in March 2014 (Parents’ Ex. Y). Pursuant to the Interim Order dated September 9, 2014 began receiving those services in late September 2014. The evidence and testimony established that beginning in November 2014, pursuant to an , received at home for the sessions per of that he was entitled to, but did not receive, from March 2014 after declassification, until the services were put in place in late September 2014 ( :

422-423; : 252).

To remedy the what I find to be the improper reduction of ’s mandate on the March 11, 2013 IEP to for rather than for ( and in a ) as recommended in the body of that IEP

(Parents’ Ex. I at 1-3, 5), and to remedy what I find to be the improper declassification of on March 4, 2014, I am ordering the Department of Education to provide with an for compensatory services in the amount of per either or in a for the number of sessions he would have received during the 2013-2014 and 2014-2015 school years if the mandate on the March 11, 2013 had reflected the recommendation of once a for (which he did receive) and once a for in a (which he did not receive).^[7]

B. Reimbursement for the Independent and Evaluations

The parents assert that they are entitled to reimbursement for the April 2014 evaluation by Ms. and the February 2015 evaluation by Dr. (Parents’ Ex. K at 9; IHO Ex. I at 29-30). The Department of Education does not address the evaluation but argues that reimbursement for the evaluation is not warranted (IHO Ex. II at 6).

If a parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an IEE at public expense. 8 NYCRR 200.5(g)(1). An IEE is "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student." 8 NYCRR 200.1(z); see 34 CFR 300.502(a)(3)(i). Once the parent has requested an IEE at public expense, the district must, "without unnecessary delay," either provide an IEE at public expense or file a due process complaint notice to defend its evaluation as appropriate at an impartial hearing (34 CFR 300.502(b)(2); 8 NYCRR 200.5(g)(1).

As noted above the CSE relied on Ms. ’ Annual Review Plan to declassify form services. The parent was not notified of her legal right to request an assessment and to have the CSE consider that assessment in making its determination to declassify . made it clear to the Department of Education that she did not agree with the decision to declassify both to Ms. and other members of the IEP team and in a letter to the CSE dated March 31, 2015.

Since the CSE based its declassification determination on Ms. ’ Plan and since clearly expressed her disagreement with that plan, I find that the parents had the right to obtain an IEE at public expense and also that the CSE was obligated to consider that evaluation. 8 N.Y.C.R.R. 2005(g)(1)(vi)(a). The parents were also entitled to an IEE at public expense because the CSE did not notify of her right to an assessment when the CSE decided to declassify . Thus, I find that the Department of Education must reimburse the parents for the cost of Ms. ’s evaluation.

testified at the hearing that she had not submitted the evaluation invoice to her insurance company. The parents must do so and provide the Department of Education with proof that their insurance company rejected the claim or, if applicable, evidence of the amount that the insurance company paid toward the evaluation. Within

30 days of the receipt of the invoice from and the evidence from the insurance company, the Department of Education to reimburse the parents for their out of pocket cost for the evaluation (Parents’ Ex. Z).

However, I find that the parents are not entitled to reimbursement for Dr. ’s evaluation which was completed on or about December 20, 2014, nine months after was declassified and after the repeatedly refused to have ’s case opened as an “initial” with the concomitant evaluations (Parents’ Exs. R, AA).

Although notified the CSE and the school that she was obtaining a evaluation and was going to ask for reimbursement, her decision to do so was not in response to a disagreement with any such evaluation conducted by the Department of Education. Indeed, testified that a

Education director for told her not to get the private evaluation because the Department of Education would conduct one ( : 398-399).

It was only on January 15, 2015, after Dr. ’s evaluation had been completed, that sent a letter to the CSE Chairperson, Ms. and a member of the CSE for , stating that she would like to reopen the case as an “initial” so that the CSE could “recommend appropriate ” (Parents’ Ex. S).

Since the parents did not obtain Dr. ’s evaluation in response to a disagreement with an evaluation conducted by the Department of Education, I find that they are not entitled to the IEE at public expense and am denying their request for reimbursement.

C. The Department of Education is to Conduct an Evaluation

In the impartial hearing request as well as at the hearing and in their Closing Brief, the parents are asking this hearing officer to reject the Department of Education’s assertion that it is necessary for the school to conduct its own evaluation and that I Order the CSE to provide the relief requested based on the private evaluations obtained by the parents (Parents’ Ex. K at 8-9; IHO Ex. I. The Department of Education posits that the District should conduct an evaluation and that the CSE, rather than this hearing officer, should determine the appropriate program and services for (IHO Ex. II at 5-

6).

At the outset I reject the parents’ request that I make specific determinations about the classification, program and services that may be appropriate for . Rather, I find that a CSE meeting is the appropriate venue to address the results of the evaluations and the input of his teachers, parents and providers to determine whether should be classified as a child with a disability, specifically, whether is a student with a disability who requires special education services and programs, and if so the appropriate program and services for him. Thus, I am remanding the case to the CSE.

I also disagree with the parents’ position regarding a Department of Education evaluation. Ms. evaluated in March 2014, more than a year ago when he was in the . completed his first year of middle school at the end of June 2015. , an supervisor at ’s middle school, testified about why she believed that it was imperative for the school to evaluate . Ms.

testified about her conversations with ’s teachers about his functioning in the classroom, the importance of evaluating how his issues impact on his learning in the classroom and what his issues are at this point after completing a year in middle school.

The parents’ argument that a school-based evaluation is not necessary and that the CSE should rely only on Ms. ’s and Dr. ’s evaluations, is unavailing.

Based on the evidence and testimony at the hearing, as summarized in the Findings of Fact above, it appears that is having issues in middle school that he did not have while in elementary school. Moreover, I agree with Ms. that the demands in middle school are greater for than they were in elementary school and find that in order to properly determine ’s needs at this point in time an evaluation by the Department of Education is required. Indeed, while the parents believe that Ms.

’s evaluation should be sufficient for purposes of the IEP meeting, Ms.

specifically testified that the goals she recommended for might require modification for middle school and that he should be re-evaluated after months by his then-current . Ms. also opined that it would be “very useful” for to have another evaluation now that he was nearing the end of his first year of middle school. She stated that if has “gotten help” he should be evaluated “every year” and that if he “hasn’t gotten help” he “absolutely … needs to have an assessment about what he would need” ( : 301, 313, 315-319). Thus, I am ordering that the Department of Education conduct an evaluation of .

D. The Parents’ Additional Claims

The parents’ request for a speech evaluation is based the private at the . The Department of Education provided a referral for a but testified that she took for a private speech evaluation instead ( : 372-373, 378-379, 401; DOE Ex. 15 at 1). On the last day of the impartial hearing Ms. stated that she believed the evaluation had been completed (Transcript: 460). If it has not already done so, the Department of Education is to complete speech and evaluations for .

While the Complaint and the parents’ Closing Brief assert that requires , there is no evidence in the hearing record that was ever raised at an IEP meeting or prior to the filing of the Complaint. Moreover, testified although she believes that requires “guidance,” she does not believe that he requires “specific sessions” ( : 380). If believes that is necessary she can raise that issue at the IEP meeting and refer to her private evaluations in support of that claim.

The parents’ request for is centered on the post-Complaint evaluations and on ’s testimony about how she and ’s father tutor him at home every night and assist him with his homework, that he has a tutor and that believed that his grades would be failing without that help ( : 359-361-365,395-

396). I note that ’s report card for the first marking period of the 20132014 school year reflects grades of all “ indicating that he was meeting or exceeding grade level standards in all of his subjects. His New York Standardized

Test Scores for 2013 were noted on the report card as a “3”

(DOE Ex. 8). ’s final middle school report card showed all of his academic grades to be 90 or better (DOE Ex. 16). I find that the evidence at the hearing was not sufficient to support a finding that the Department of Education should be ordered to provide with home tutoring sessions. However, the parents may raise this issue at the IEP meeting as well as any other issues that they believe are relevant.

I am granting the p arents’ request that ’s testing and classroom accommodations stay in place (IHO Ex. I at 26-27). The accommodations in the Amended Interim Order are to remain in effect until the IEP team determines whether those accommodations remain appropriate.

ORDER

It is hereby Ordered that:

1) No later than the end of September 2015 the Department of Education is to complete an evaluation, an evaluation, a , and any other evaluations necessary to determine whether is a student with a disability;

2) Within weeks of the completion of the evaluations the CSE is to convene an IEP meeting with all of the required members present as well as any persons with relevant information about that the parents wish to include at the meeting;

3) In making its determination about whether is a student with a disability and if so, the appropriate program and services for him, and/or whether he requires testing accommodations, the IEP team must consider all of the evaluations including any private evaluations obtained by the parents as well as the concerns of the parents, the teachers and any other professionals with relevant information about ;

4) Immediately upon receipt of this Decision and Order the Department of Education is to provide the parents with an for sessions of to total the number of weeks in the 2013-2014 and 2014-2015 school years;

5) The Department of Education is to continue to provide with the testing accommodations of: 1) ; 2)

; and 3)

, until the IEP team determines whether such accommodates remain appropriate for ; and

6) Within 30 days of the receipt of the invoice from and the evidence from the insurance company as to how much, if anything, the company reimbursed the parents for the evaluation, the Department of Education to reimburse the parents for their out of pocket cost for that evaluation.

Dated: July 15, 2015

RONA FEINBEG, 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 RECORD

DEPARTMENT OF EDUCATION:

Exhibit 1 Due Process Request dated July 22,

2014, 7 pages

Exhibit 2 Due Process Response dated

August 6, 2014, 3 pages

Exhibit 3 Annual

Review Plan dated February 7, 2014,

2 pages

Exhibit 4 Recommendations Upon

Declassification dated March 4,

2014, 2 pages

Exhibit 5 Events Printout dated

February 3, 2013-August 8, 2014, 3

pages

Exhibit 6 Encounter

Attendance Records dated September

10, 2013-March 17, 2014, 45 pages

Exhibit 7 Email to Parent from

Provider and Attached “in

Seat Classroom Sensory Activities”

Document dated April 11, 2014, 6

pages

Exhibit 8 Report Card dated 2013-2014, 2

pages

Exhibit 9 Omitted as Duplicative

Exhibit 10 Encounter

Attendance Records dated September

24, 2014-March 4, 2015, 30 pages

Exhibit 11 Prior Written Notice (Notice of

Recommendation) dated January 21,

2015, 6 pages

Exhibit 12 Consent for Initial Evaluation

Referral dated January 29, 2015, 1

page

Exhibit 13 Classroom Observation dated

February 25, 2015, 1 page

Exhibit 14 Evaluation

Referral dated February 15, 2015, 7

pages

Exhibit 15 Events Printout (2) dated

January 21, 2015-March 4, 2015, 3

pages

Exhibit 16 Report Card 2014-

2015 School Year, 1 page

PARENTS:

Exhibit A Omitted as Duplicative

Exhibit B Parent letter to the Department’s

Committee on Special Education

(“CSE”) dated March 31, 2014, 8

pages

Exhibit C Evaluation by

from

in

Services dated April 10, 2014, 5

pages

Exhibit D Parent Letter to the CSE enclosing

Evaluation from

dated May 19, 2014, 8 pages

Exhibit E Parent letter to the CSE dated June 9,

2014, 4 pages

Exhibit F Resolution Meeting Attendance Page

dated August 5, 2014, 1 page

Exhibit G Parent letter to the CSE dated August

5, 2014, 1 page

Exhibit H Individualized Education Program

(“IEP”) dated March 20, 2012, 12

pages

Exhibit I Individualized Education Program

(“IEP”) dated March 11, 2013, 10

pages

Exhibit J Amended Due Process Complaint

(with email confirmation) dated

September 15, 2014, 9 pages

Exhibit K Second Amended Due Process

Complaint (with fax and email

confirmations) dated

September 16, 2014, 12 pages

Exhibit L Information –

Writing Undated, 9 pages

Exhibit M Raw Data- Visual

Motor/

undated, 3

pages

Exhibit N Raw Data- Writing

Samples undated, 2 pages

Exhibit O Raw Data-

undated, 3 pages

Exhibit P Raw Data-

undated, 9 pages

Exhibit Q Raw Data-

undated, 2 pages

Exhibit R Private

Evaluation by Dr.

dated December 20, 2014,

24 pages

Exhibit S Parent Letter to the CSE (with fax

confirmations) dated January 13,

2015, 5 pages

Exhibit T by

dated February 10, 2015, 9 pages

Exhibit U Letter from

dated February 24,

2015, 1 page

Exhibit V Letter from Mrs. undated, 3

pages

Exhibit W Information- Reading

undated, 7 pages

Exhibit X Information-

Listening undated, 2 pages

Exhibit Y Processing

Concerns Checklist undated, 10

pages

HEARING OFFICER:

Exhibit I Parent’s Closing Brief dated June 30,

2015, 31 pages

Exhibit II Department of Education’s Closing

Brief dated June 29, 2015, 7 pages

Exhibit III Case Follow-Up Sheets Re: Timeline

Extensions various dates, 8 pages

Footnotes

[1] Ms. is a licensed and certified and has been employed by the Department of Education for ten years ( : 74-75).

[2] Ms. is an licensed in New York State and certified in the (“ ”).

[3] Ms. has a Master’s Degree in education and in and is licensed to provide in New York State ( : 149).

[4] Ms. is an licensed in New York State ( : 420-421).

[5] Ms. , went on maternity leave in early January 2015 and Ms. provided with his school-based per services at home, also pursuant to an ( : 350-352; : 152-153). When testified on March 30, 2015 Ms. was still providing the services and there were a few remaining ( : 352-353).

[6] The cost of Dr. ’s evaluation was ( : 370; Parents’ Ex. AA). paid that amount in full. She testified that she submitted the invoice to her insurance company but “as far as” she knew, the claim was denied ( : 371).

[7] For the reasons stated above I reject the parents’ assertion in their Closing Brief that compensatory services should be based upon the sessions mandated in the March 20, 2012 IEP (IHO Ex. I at 24-25; Parents’ Ex. H at 7).