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: May 4, 2015

July 23, 2015

Actual Record Closed Date: October 1, 2015

Hearing Officer: Gary Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 4, 2015

Attorney — Parents

Mother — Parents

DOE Designee — DOE

DOE

Teacher — DOE

Teacher — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 23, 2015

Attorney — Parents

Mother — Parents

Director — Parents

DOE Designee — DOE

BACKGROUND

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case # . The hearings were conducted at the impartial hearing office, New York City Department of Education, at . At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its designee Ms. and the parent was represented by their attorney Ms.

.

is boy with a disability, classified by the DOE as "

, currently in the ; he has not received a formal diagnosis regarding his classification. Parent maintained that requires constant and prompting throughout his school day. attends , located at ; he is performing on a , approximately

.

THE PARENT’S POSITION

The Parent ( ) alleges procedural and substantive violations and is requesting for her child. Parent maintains that has been denied a Free Appropriate Public Education (hereinafter "FAPE") for the 2012-2013, 2013-2014, 2014- 2015. Accordingly, the Parent seeks hours of at a rate of at the d/b/a the (hereinafter " "), located at , and . Additionally, seeks payment for the cost of the student registration fee and totaling

THE DEPARTMENT’S POSITION

The DOE asserts that it provided a FAPE under the meaning of the IDEA; was enrolled in an appropriate Individualized Education Program during all contested school years and made meaningful academic and social progress. The DOE maintains that it reasonably calculated the IEP to provide educational benefits in the least restrictive environment (LRE). The District asserts that the is not entitled to compensatory education services and that the evidence will established that does not require any further evaluations.

If, however, are deemed warranted, then it is the DOE’s position that an award should not be in the form of at ; that the Student would be more appropriately served through in the form of an independent (“ ”) provider.

THE DEPARTMENT’S CASE

On February 16, 2012, the school-based Committee on Special Education (“CSE”) held an initial IEP meeting to discuss ’s . The outcome of this meeting was a disability classification of and a program recommendation of with in a . (DOE Ex 3).

The Parent attended the IEP meeting and consented to services and was enrolled in a classroom during the 2012-2013 school year.

On February 4, 2013, the CSE held an annual review IEP meeting and discussed ’s development, present levels of performance, goals, and determined his program recommendation. (DOE Ex. 7). The outcome of this meeting was to maintain a program with in a . (Id.). On February 11, 2013, the Parent requested a reevaluation. (DOE Ex. 8). A psychoeducational evaluation was conducted on March 13, 2013 and an IEP reevaluation meeting was held on April 23, 2013 (DOE Exs. 9 and 10). The outcome of the meeting was a recommendation for an with in a .

(DOE Ex. 10). was enrolled in a 6 days later on April 29,

2013. (TR. 25).

During the 2013-2014 school year, the Student was enrolled in a with . On April 9, 2014, the CSE held an annual review IEP meeting to discuss ’s . (DOE Ex. 13). The

outcome of this meeting was to maintain an with in a . (DOE Ex. 13). The Parent participated in the meeting by telephone and consented to services. (DOE Ex. 13-11). During the 2014-2015 school year, was enrolled in a and received . (DOE Ex. 15). The DOE asserts that it met its obligation to provide the Student with a FAPE during the 2012- 2013, 2013-2014, and 2014-2015 school years.

The DOE maintained that the IEPs complied with the IDEA procedural and substantive requirements and provided a FAPE to during all contested school years; were reasonably calculated to enable to obtain meaningful educational benefit (TR.

17, 22, 106). The IEP teams considered sufficient information to make program recommendations, including psychoeducational evaluations, a social history, teacher reports, classroom observations, and evaluation, and the Parent fully participated in the planning of her son’s IEP. (TR. 17-18, 25; DOE Exs.5, 6, 9, 12).

The IEPs identified ’s struggles and demonstrated that the DOE implemented to meet his unique needs in a LRE.

Ms. , School at , testified that an initial IEP meeting was held on February16, 2012; the team reviewed evaluations, which included a social history, psychoeducational evaluation, classroom observation, and evaluation. (TR. 17). The psychoeducational evaluation noted a of , which was “ .” The team determined that the Student worked “ ” and that was ’s main deficit, which warranted . (TR. 19). Ms. stated that did not present with any behavioral concerns and that an ( ) was not required. (TR. 20). Although presented with attentional concerns, he was easily refocused and respectful. (TR. 20). The IEP indicated that required , , and to address his attentional needs. (DOE Ex. 3; TR.

20).

The Stu dent’s initial IEP recommended testing accommodations, including extended time in a separate location; modified promotional criteria was implemented when he enrolled in . (TR. 20-21). was promoted to and an annual review IEP meeting was held on February 4, 2013 wherein the IEP team recommended with . (TR. 22). The Parent requested a reevaluation to include an updated psychoeducational evaluation which was done on March 13, 2013.

(TR. 23; DOE Ex. 9). The evaluation indicated that ’s academic testing all “fell

”. (TR. 23). Ms. testified that no other evaluations were required at the time and that an IEP meeting was held on April 23, 2013 to discuss the results. (TR. 25). The IEP team determined that ’s attentional difficulties impacted his learning so the team recommended an with so that he would benefit from the . (TR. 26). did not exhibit any social or at the time to warrant (TR. 27-29).

Ms. testified that the IEP contained attainable academic goals which addressed comprehension, computation /solving , goals to improve and . (TR. 30-32). The IEP provided for testing accommodations and for questions to be read and reread; continued modified promotional criteria was maintained. (TR. 33). Ms. testified that performed well in the . (TR.34) and that the IEP team’s recommendations were appropriate and that all necessary assessments were completed.

Ms. , ’s Teacher for 2 years, testified and explained the rationale behind each recommendation made at the IEP meetings, and described how they were appropriate. was recommended for in a at the initial IEP meeting; services were recommended so that could benefit from peer models. (TR. 79-80). She stated that as required support for , was effective as students could learn strategies from each other and responded “very positively.” (TR. 82). Ms.

testified that the goals created for the initial IEP were appropriate in that they identified techniques that would be used in and academic goals related to and . (TR. 84-85). Ms. testified that “did well” in and was able to identify all techniques that were used, but that he needed to work on

. (TR.93).

Ms. testified that at the February 4, 2013 IEP meeting, the IEP team recommended in a so that could benefit from discussions with more peers and that the would “challenge him” to speak more.

(TR. 95). ’s goals were updated to include a reduction in dysfluencies when speaking and retelling past events in an organized manner, which both addressed comprehension. (TR. 97-98). Ms. stated that at this time, was able to reduce

. (TR. 100).

At the Student’s IEP reevaluation meeting in April 2013, the IEP team recommended in a in order “to mirror classroom work” and begin preparing for a “ ” to help him perform in class and feel more comfortable when speaking in front of larger groups. (TR. 101, 105). Ms.

testified that the goals remained the same, as the IEP meeting was soon after the Student’s annual review. (TR. 101). She stated that the made progress for the remainder of the 2012-2013 school year, including the ability to answer questions, compare and contrast events and characters in a story, and identify his own triggers for . (TR. 104-105; the witness testified that the IEP team recommended in a at the annual review meeting held on April 9, 2014 in order to challenge and help him in his communication skills. (TR. 107). Ms.

created goals of higher critical thinking and spoke to the Student’s classroom teachers regarding strategies to help him with , including restating questions and preparing him for questions. (TR. 108). made progress during the 2013-2014 school year with respect to his goals and reduced the number of dysfluencies while speaking. (TR. 109).

With respect to the 2014-2015 school year, Ms. stated that ’s provider reported

. (TR. 112; DOE Ex. 15, 17).

Mr. , ’s Special Education Teacher during the 2013-2014 school year, testified as to the student’s progress in his class. (TR. 158). Mr.

utilized strategies in the classroom to help with , including giving him to formulate thoughts and individualized attention. (TR. 159). He utilized strategies to help , including , . (TR. 160). responded well to and did not require a as he “never demonstrated behaviors to warrant it”. (TR. 161-162).

Mr. testified that was at a beginning in and and that his skills “greatly improved” by June 2014. (TR. 162); his number sense and knowledge of multiplication improved. (TR. 164). The witness testified that an was appropriate for as he “would probably be bored” in a more restrictive program because “he had the skills that would allow him to function a lot better than that.” (TR. 166). The Student made progress towards his IEP goals through the use of . (TR. 169-169, 172-173). also made progress towards his goals wherein he utilized strategies to identify the correct operations to use in . (TR. 169).

Mr. testified that he frequently communicated with the Parent and explained strategies that she could utilize at home to support her son. He discussed ’s attendance and frequent lateness with the Parent and that was late to school over 40 times in addition to absences. (TR. 174-175). did not regularly complete homework and despite his discussions with the Parent, his homework completion did not improve.

(TR. 176).

The DOE asserts the following: that it has complied with its obligation to provide the with a FAPE in his least restrictive environment (LRE); that the IEP teams assessed ’s needs, developed annual goals based on those needs, and wrote complete and measurable goals. The IEP teams recommended programs that would be the least restrictive for to make academic and social progress.

The DOE maintained that if compensatory education is warranted that it should not take the form of hours provided by the calculations. The DOE maintained that the recommended hours has no reference to the period of the alleged FAPE deprivation; nor does it relate to the level of achievement could have made, but for any alleged deprivation of FAPE during those years. Furthermore, is not an appropriate remedy because, while the program offers to the Student, it does not collaborate with his current placement school to assist him in improving his school work.

(TR. 249).

Additionally, the DOE asserts that is not an appropriate remedy because it will not place the where he would have been but for the violation since it does not work with the Student’s placement directly to ensure overall academic continuity or success. The program is not individualized within the meaning of the IDEA because the program is not specifically designed to address special education needs of individual students. The DOE designee stated that it unclear how would address ’s or issues of distractibility except for . Only some instructors at are special education teachers. (TR. 211).

Furthermore, Ms. and the Parent failed to show proof that a competitive curriculum exists at ; the program provides the very same instruction to both and students, and is premised on mastery of materials starting on the . Additionally, it would be more appropriate for the DOE to provide individual than . The DOE maintains that it would be able to provide with an independent provider who can work directly with him and provide individualized supplemental instruction. The provider, who is a special education certified teacher, may utilize multiple approaches to support classroom instruction and could collaborate with ’s classroom teachers and help him with the curriculum, as providers can and concepts using different strategies.

Lastly the DOE asserts that independent providers could work with the Parent to find a mutually agreed upon location to provide services and the Student would work with the same provider for the duration of services as opposed to a possibility of at . The provider would be appropriate to work with because he would receive specialized services and the provider could also work on homework and be in contact with ’s teachers.

THE PARENT’S CASE

In the 2011-2012 school year, in , he attended . DOE Ex. 5. An IEP was developed on February 16, 2012, for the remainder of the year and the start of school year. DOE Ex 3. The Parent maintained that the DOE failed to recognize 's need for a special education classroom, recommending that he remain in a classroom. The IEP contains numerous references to his . DOE Ex.3 a t2-4 . Additionally, the IEP recommends that receive services in a , in spite of his . Furthermore, Counsel asserts that the IEPs failed to provide with sufficient ; , and failed to provide him with additional related services that he needed. DOE Ex. 3. Additionally, failed to receive a or a , despite the fact that his interfered with his day.DOE Ex.3;Tr.20,25, 27 29. 's ; however, the DOE failed to hold a new meeting, although it was aware that it's February 16, 2012 IEP was not providing a FAPE.

Parent alleges that for the remainder of the 2012-2013 school year, continued to attend under the guise of his prior February 16, 2013 IEP until it terminated. On February 4,2013,the DOE held an annual review meeting to create a new IEP for the end of 's grade school year and the start of his 2013-2014 school year. DOE Ex.7. Although the IEP repeatedly documented 's failure to attend, Parent maintained that the DOE ignored his need for a smaller and controlled classroom setting, recommending a classroom. Even the February 4, 2013 IEP states that "[s]he feels that a smaller class would reduce distraction for him" DOE Ex. 7.

Parent’s counsel maintained that the DOE “failed to tackle 's interfering behaviors, lacking a and a , despite his . "Id. Additionally the DOE allegedly failed to discuss with all of the various and classroom options which were potentially available to her son. Tr.276. The DOE recommended that receive but they chose to in spite of his .

Id.; Tr.20, 25, 27, 29. failed to fare any better under this new February 4, 2013 IEP, and therefore, on February 11, 2013, requested that receive additional evaluations and assessments. DOE Ex. 8 at 1. received a Psychoeducational Evaluation from the DOE on March 13, 2013. DOE Ex.9; however, the DOE failed administer a , providing him with the abbreviated version of the exam.

Throughout 2013-2014, school year attended an

(hereinafter" ") classroom as a student. DOE Ex.9 at1;Tr.60-

61. The Parent maintained that the DOE failed to explain the different types of testing, and that she remained in the dark regarding this inadequacy. Tr.61.

The DOE held another IEP meeting on April 23, 2014, to re-visit its prior recommendations and discern whether changes needed to be made based on his most recent test scores. However, the IEP’s failed to reflect ’s present functional and instructional levels DOE Ex.9. The DOE failed to change any of 's prior goals and objectives; and recommended that attend a special education classroom, in an classroom DOE Ex. 10. The DOE also recommended that continue to receive , however increased his size, to a of without reason. Id. Throughout 's 2013-2014 school year he continued to struggle with his . Parent's Ex. C.

The Parent asserts that the DOE failed to discuss any other strategies, or supplemental aids and supports, and that fell further and further behind. Tr.276.

's April 23, 2013 IEP remained in place for the start of his school year.

Despite being designated as a special education student within his classroom, was in this same type of ratio throughout this school year, in which he failed to progress academically Tr. 158. Moreover was told that her son could only receive an classroom, and that he could not be placed in a more intimate setting. Throughout

's school year he remained in of

, despite the fact that the 2013-2014 IEP repeatedly noted that is

.Tr.158.

Furthermore, many of the IEPs report of a " supplementary aids or supports. As a result, failed to make progress as his and .

's April 9, 2014 IEP remained in place during his 2014-2015, school year and lacked appropriate . remained on a throughout his school year and the DOE ignored the severity of academic gap. is preparing for the without the requisite skill set necessary to complete the . Counsel states that any assertion that the DOE provided him with a FAPE for the last three school years is wholly false, as failed to make meaningful educational progress during his 2012-2013, 2013-2014,and 2014-2015 school years.

sought the aid of the to bridge 's educational gap Tr.276-277.

Parent alleges that the is appropriate to provide Tr.210-211; it provides students with academic in a distraction free environment; it is an accredited institution and has existed nationwide for more than 35 years. tutors have a high level of competency in their areas of expertise and they are certified teachers; several are special educationteachers. Tr.211.

Each new student receives nationally recognized diagnostic tests in order to assess their levels of academic and functional performance, thereafter an educational program is developed to meet their unique needs Tr.212,244. took to the on December 20,2014, wherein he was administered the following tests: the

, the ,

Exam. Parent's Ex. B at

1-3; Tr.277.

According to the test results, requires extensive , , and , as he remains on a .Tr. 225, 227. On the he failed to answer questions which should have been mastered by the , revealing the depth of his . Parent's Ex. B at 1 and 14; Tr. 217-218. Moreover, the results of the 's and assessments mimicked the levels listed on 's April 9, 2014 IEP. DOE

Ex.13;Tr.245 247. On the Huntington Placement Exam, he was only able to master three skills Parent's Ex. B . 's 2013-2014 school year teacher testified that he was functioning on a . Tr. 162; parent’s counsel asserts that it is apparent that requires hours of academic at the to bridge his academic gap.

Allegedly, the DOE failed to administer a complete Psycho-educational Evaluation; instead it chose to provide a singular exam, the (hereinafter " ").DOE Ex.5 at 1. Despite a request by for additional testing, the DOE did not provide with any IQ testing, nor did it provide an assessment of his social and emotional levels of functioning. DOE

Ex.5; Tr. 69-70. The DOE failed to inform as to the various types of testing that could have received, and not only was she unaware of this decision, but she lacked any frame of reference regarding the standard battery of exams. Tr. 276. Similarly, the DOE's reliance on his results was misplaced, as Ms. , the examiner, admits that the results could have been higher due to his repeat of the . Tr. 43.

Additionally, the DOE's Psychoeducational Evaluation failed to contain any assessments, despite the fact that there was suspected difficulty as per his

Evaluation. DOE Ex. 5; 6; Tr. 48-49. Ms. testified that she was aware of 's " ," and yet, she failed to recommend or administer an emotional assessments. Tr. 27. Instead, Ms. relied on ’s social engagement as the sole barometer to ascertain his needs Tr.27-29, despite the fact that requested that her son be re-assessed.

Counsel maintained that the DOE inappropriately relied on ’s prior IQ testing from May 2011; Ms. testified that she failed to communicate with the examiner, who had provided with a host of tests just three days prior, on February 7, 2012, except for a exam regardless of the need for same. DOE

Ex.6; Tr.40. Additionally, Ms. 's failed to note or examine 's disfluencies, despite his classification of " ," and prior knowledge of his

Tr.47. As per counsel, there was an egregious typo which came to light during

Ms. 's testimony, wherein was incorrectly listed, calling into question the accuracy of the testing, and the DOE's provision appropriate services and supports. Tr.36. Parent asserts that it is evident that the DOE's February 10, 2012 Psychoeducational Evaluation was wholly insufficient.

Ms. , and , 's for the

2013-2014 school year, testified repeatedly that she drafted his IEPs directly from his evaluations and assessments. For example, during Ms . 's testimony, she was asked as to why spelling goals were excluded despite evidence that he needed help, and she responded by stating that her testing showed him as . DOE Ex. 3 at 2, 7; Tr.

44-45. Similarly, despite notations of 's encoding and decoding issues, Ms.

testified that no goals or objectives were included on his IEPs, because it "was not referenced as part of the report." DOE

Ex.3,7,10;Tr. 117-118. The IEP team should have utilized the information and data it received from 's teachers.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This hearing was requested pursuant to the Individuals with Disabilities Education Act (IDEA) (see 20 USC § 1400 et seq.). “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education…designed to meet their unique needs…[and] to ensure that the rights of children with disabilities and parents of such children are protected” (M.H. v. N. Y. C.

Dept. of Educ., supra, at 223 (citing 20 USC § 1400(d)(1)(A)-(B))). Further, “a school district’s program must provide ‘special education and related services[,]’ tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.” ( M.H. v. N.Y.C. Dept. of Educ., supra, at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105,107 (2d Cir. 2007) (internal citations omitted)).

School districts are required to formulate an IEP for each student with a disability in order to deliver appropriate services to that child. It is “[t]he centerpiece of the IDEA’s educational delivery system” (M.H., supra, at 224 (quoting D.D. ex rel. V.D., 465 F3d at

507)). Moreover, “for a child’s IEP to be adequate, it must be “[‘]likely to produce progress…and afford the student with an opportunity greater than mere trivial advancement’” (M.H., supra, at 224 (quoting T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F3d 247, 254 (2d Cir. 2009))).

Federal regulations require that once an IEP is adopted for a disabled child, “[e]ach public agency shall ensure that (1)[a]n IEP ... [i]s implemented as soon as possible following the [IEP] meeting (D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 508 (2d Cir. 2006) opinion amended on denial of 480 F.3d 138 (2d Cir. 2007)).

New York State regulations mandate that “there may be no delay in implementing a student's IEP” (8 NYCRR 200.4(e) (1)(i)), that “the school district shall ensure that each student with a disability has an IEP in effect at the beginning of each school year” (8 NYCRR 200.4(e) (1)(ii)), that the “the school district shall ensure that the recommendations on a student’s IEP… are implemented” (8 NYCRR 200.4(e) (3), and that “the school district must provide special education and related services to a student with a disability in accordance with the student's IEP” (8 NYCRR 200.4(e) (7))

I agree with Parent’s counsel that has been denied a FAPE for the past several years, leaving him substantially behind where he should be academically The school years at issue include 2011-2012, 2012-2013 and 2013-2014.

The time has come to put the solution in place and action must be taken now to ensure receives the proper services. Regarding , the parent seeks compensatory education due to the DOE’s denial of a FAPE to the student for three school years. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See Wenger v. Canastota, 979 F. Supp. 147, 151

(N.D.N.Y. 1997). Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA. 20 U.S.C. §§ 1401[3]; 1412[a][1][B]; Educ. Law §§ 3202[1]; 4401[1]; 4402[5]. In New York State, a student who is otherwise eligible as a student with a disability may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma or until the conclusion of the ten-month school year in which he or she turns age 21. 34 C.F.R. § 300.102[a][3][i], [a][3][ii]; 8 NYCRR 100.5[b][7][iii]; Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 12 8 NYCRR 100.9[e], 200.1[zz]; See also, Application of the Bd. of Educ., Appeal Nos. 05-084, 05-037, 04-100. 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

French, 2011 WL 5222856, at *2; Somoza v. New York City Dept. of Educ., 538 F.3d 106 n.2, 113 n.6 (2d Circ. 2008); Mrs. C. v. Wheaton, 916 F.2d 69, 75 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071, 1075 (2d Cir. 1988); Cosgrove v. Bd. of Educ., 175 F.

Supp. 2d 375, 387 (N.D.N.Y. 2001); Wenger, 979 F. Supp. at 150-51; Application of a Child with a Disability, Appeal No. 03-078 (awarding two years of instruction after expiration of IDEA eligibility as compensatory education). Thus, for an eligible student, such as in the instant case, there is no gross violation requirement.

The purpose of a compensatory education award is to remedy a denial of a FAPE.

See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (holding that compensatory education is a remedy designed to “make up for” a denial of a FAPE, and awards should be designed to "appropriately address the problems with the IEP"); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)

(holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"); Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10-

052.

In fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and … the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from the school district should have supplied in the first place.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (emphasis added); see also Newington Bd. of Educ., 546 F.3d at 123; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)

("[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"). Courts have found that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address (the student's)

educational problems successfully." Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir.

2007). Further, compensatory education is a "replacement of educational services the child should have received in the first place" and compensatory education awards "should aim to place children in the same position they would have occupied but for the school district's violations of IDEA ." Reid, 401 F.3d at 518, 525 (emphasis added);

Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1497 (9th Cir. 1994)

The DOE bears the burden of proof on all matters at this hearing (see N.Y. Education Law §4404[1][c]; M.H. v.N.Y.C. Dept. of Educ., 685 F3d 217, 224-25[2d Cir

2012]). It has both the burden of production and the burden of persuasion on each of the claims put forth by the parent (see Schaffer v. West, 546 US 49 [2005]; M.P.G. v. N.Y.C.

Dept. of Educ., 2010 WL 3398256 at *7 [SDNY Aug. 27, 2010]). The DOE bears “the burden of demonstrating the appropriateness of its proposed IEP” (Grim v. Rhinebeck

Cent. Sch. Dist., 346 F3d 377, 379 [2d Cir. 2003]).

Once it has been determined that a student has been denied a FAPE, hearing officers have broad equitable powers to fashion a remedy that is appropriate to address the student’s needs, based upon the unique facts of the case. Application of a Student with a Disability, Appeal No. 08-052 at p. 17-18 (July 16, 2008). “Compensatory education awards are based upon finding of the denial of FAPE, and they require additional services, beyond the prospective entitlement to an appropriate educational program, to address deficits caused by delay or failure to offer educational services to an eligible child.” Terry Jean Seligmann & Perry A. Zirkel, Compensatory Education for IDEA Violations: The Silly Putty of Remedies?, 45 Urb. Law. 281, 282 (Winter 2013)

(citing Perry A. Zirkel, The Remedial Authority of Hearing and Review Officers under the Individuals with Disabilities Education Act: An Update, 31 J. Nat’l Ass’n Admin. L.

Judiciary 1 (2011).

State Review Officers have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such privation of instruction could be remedied through the provision of additional services before they become 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 a State Review Officer to order a school district to provide remedial education services to a student upon the school district's failure to provide those educational services to L during home instruction). See also Application of a Student with a Disability, Appeal No. 09-

111 (adding summer instruction to an additional services award); Application of the Bd. Of Educ., Appeal No. 09-054 (awarding additional instructional services to remedy a deprivation of instruction); Application of a Student with a Disability,

Application of a Student with a Disability, Appeal No. 09-035 (awarding instruction as compensation for a deprivation of a FAPE); Application of a Student with a Disability, Appeal No. 08-072 (awarding after school and summer instruction as to remedy a denial of a FAPE); Application of a Student with a Disability, Appeal No. 08-035 (awarding ten months of home instruction services as ). Notably, a parent’s request for a specified number of hours at has been granted at the . See, e.g., Appeal No. 09-044 at 17-18 (affirming hearing officer’s award of additional in the form of of services at or a different agency of the parent’s choosing).

Compensatory education awards can be generally crafted pursuant to two schools of thought: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award with an eye towards making up that time. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996) (holding generally that subject to equitable adjustment, the “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem.”).

In 's case, his 2012-2013, 2013-2014 and 2014-2015 IEPs failed to contain adequate information as to his then present levels of functioning, failing to include accurate IQ testing. The need for such assessments was clear, as his achievement scores alone failed to shed light on his processing of information and the reason for his struggles.

DOE Ex.5;9. Thus, it is without question, that the DOE violated the IDEA and New York Law 20U.S.C.§1414(d)(1)(A)(i);34 C.F.R.§300.320 (a)(1); 8NYCRR§200.4

(d)(2)(i). For the last three school years, the DOE has failed to develop accurate IEPs for , lacking any data or evidence as to his

IEP. DOE

Ex.3;5;7;9; 10; 13. received a Psychoeducational Evaluation in 2011, 2012,and

2013,further revealing the DOE's inability to ascertain his abilities and difficulties.

Parent's Ex. A;DOE Ex.5,9.Therefore,the DOE's IEP recommendations are flawed and without merit.

Even after the DOE administered a number of evaluations during 's 2012- 2013 school year, it failed to utilize them at his February 4, 2013 IEP meeting, failing to consider the results of his "most recent evaluations, "in violation of New York law.8

NYCRR §200.4(d)(2); DOE Ex7. The District substantively denied a FAPE, because its educational programs were not appropriate to meet his unique special education needs, as is exhibited by his failure to make meaningful educational progress.

The record lacks proof of progress and only at best reveals trivial advancement. DOE

Ex.12; 15. A declaration of progress is inadequate to justify the appropriateness of a student's educational program; instead, there must be concrete evidence proving that it was meaningful and not trivial advancement. Walczak,142F.3d 130.In applying the Second Circuit's ruling, meaningful educational progress may be determined by passing marks, movement from grade to grade, test scores and other objective criteria. Id.

However, there is no bright-line rule to determine a student's progress and therefore, social promotion should be subjected to strict scrutiny. Id. The DOE simply asserted that made progress via its witnesses, lacking any evidentiary support. Not one of 's

Report Cards was entered into evidence by the DOE, though has presented a host of documents revealing his academic decline throughout his school years. Parent's Ex. C; M; N; O; P. Furthermore, the DOE failed to present any evidence or call any witnesses regarding 's academic program for the 2014-2015 school year, solely submitting Report to defend its April 9, 2014IEP. This submission is insufficient to meet the DOE's burden, as it lacks any information regarding his academic program ,and fails to prove meaningful educational progress.

While Ms. commented on this report, she merely restated the findings of his present provider. Tr. 111. What's more, this evidence is contradicted by the 's , and the DOE's own 2014-2015 school year IEP, which places on a . Parent's

Ex.B;DOE Ex.13. As a result,the DOEfailed to provide any proof of such in relation to 's school year, and therefore, I find in favor of regarding 's2014- 2015 school year. As per Parent’s counsel, the DOE failed to call 's teacher to testify, relying instead on the testimony of Ms. and Ms. to assert meaningful progress. Ms. failed to interact with aside from her February 10, 2012 evaluation, as she did not observe him in the classroom. DOE Ex. 3. I agree that Ms. failed to proffer any evidence in support of the DOE's claims of progress, as she was only asked one question as to 's school year performance and it pertained solely to his placement into an classroom. IMs. 's testimony consisted of her review of 's grade IEPs; however, she failed to assert any meaningful educational progress, simply claiming that his programs were suited to meet his needs. Tr. 16-34.

Still, when asked as to her knowledge of 's performance in an class, she replied

"good, "without any further explanation. Tr.34.Consequently,while Ms. testified in detail as to adequacy of 's IEPs she failed to profess any real awareness as to his performance throughout the 2012-2013 and 2013-2014 schoolyears.4

Ms. , who worked work with during his 2013-2014school year claimed made progress, she noted his continuing struggles Tr.93,102,104,133,176.

The Student Progress Report dated April 23, 2014 failed to demonstrate progress. DOE

Ex.12; the report repeatedly denotes 's related service struggles, and while it explains his then present abilities, it lacks any claim of improvement. Id. The DOE claims to have raised 's IEP level from within that same timeframe. DOE Ex.10 and 13. There are no other progress reports or report cards submitted in regards to 's school year, and therefore, the DOE is only relying on testimonial evidence.

Parent’s counsel correctly maintained that Ms. was not questioned regarding DOE Ex.13, 's2014-2015 school year IEP, and that program remains undefended. Throughout her testimony, Ms. only commented once regarding

's progress: "[h]e was able to reduce his

, but he had done better in identifying and recalling basic information." Tr.99-100. This doesn’t demonstrate meaningful educational progress. I agree that Ms. 's 2012-2013 school year testimony is only valid to discern his related service standing, and it should not be utilized to support his academic progress and IEP overall. Accordingly,,

Ms. 's testimony fails to provide a sufficient basis for the DOE to assert more than trivial advancement during 's 2012-2013 school year.

The record reflects that regressed through out his school year. DOE Ex. 5. testified that he failed to meet his 2012-2013school year IEP goals. Tr.286. Thus, the DOE has failed to meet its burden regarding 's 2012-2013

school year.

The only school year left to consider, is 's 2013-2014 school year. All three of the DOE's witnesses testified as to his 2013-2014 school year; however, only Mr. taught him. As stated above Ms. simply stated that he did "good" after moving into an class, and her frame of reference is di minimis at best. Tr. 34. Similarly, Ms. testimony is diminished by 's switch to a new provider; however, it would behoove us not to examine her assertions concerning the two IEPs in play during this school year: Apri l 23, 2013and April 9, 2014.

I agree with Parent that the DOE witnesses statements are the only declarations provided to prove meaningful 's progress in regards to school year, as the DOE has not provided any documents showing his 2013-2014school year advancement. Thus, Ms. 's testimony is unsubstantiated, and even her assertions “are . Tr. 107-109.

Mr. 's testimony failed to provide sufficient verification of development.

Tr. 163-164. When asked to detail 's progress throughout the 2013-2014 school year, Mr. only felt comfortable stating that "he was definitely a lot better when he left in

June," citing his number skills as the sole example of his advancement. Tr. 164.; his testimony is uncorroborated by the record and in fact is contradicted by 's testing, as he claims that 's , and yet, he failed to master a single on the Placement Exam Tr.164. Mr. 's comments are insufficient to prove meaningful advancement, and therefore, the DOE has failed to meet it's burden of proof in regards to 's 2013-2014 school year.

The Court of Appeals has recently held that "testimony regarding state-offered services may only explain or justify what is listed in the written IEP. Testimony may not support a modification that is materially different from the IEP,and thus, a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP."R.E.,694 F.3d 185-187. District Courts within this Circuit have similarly ruled that evaluations as to the appropriateness of a student's IEP should refrain from "Monday-morning quarterbacking." Antonaccio v. Bd.of Educ.

of Arlington Cent. Sch. Dist.,281F.Supp.2d 710,724(S.D.N.Y.2003);see also J.R.v. Bd.of

Educ.of City of Rye Sch. Distr., 345 F.Supp.2 386,395(S.D.N.Y.2004). Likewise, despite the Second Circuit's failure to hold all retrospective testimony invalid, no matter the factual context ,D. F.ex rel.N.F.makes clear that the responsibility to provide an appropriate IEP may not be circumvented ,even thru the use of retrospective testimony.D.F.exrel. N.F.,430 F.3d 599.

Under New York law, parents are required to receive "prior written notice of any changes to the IEP," pursuant to section 200.5(a) of this Part ,in addition to copies of the document that amends or modifies the IEP "to provide meaningful participation in the creation of their son or daughter's educational program 8NYCRR§200.4(g)(2)

Accordingly ,any added services and supports subsequent to the student's annual review, should adhere to the appropriate regulatory procedure, as per New York Law. Id. No IEP changes maybe authorized without "prior written notice," and parental consideration. Id.

Therefore, any reliance on retrospective testimony to rehabilitate An IEP is wholly misplaced because it reveals violations of procedural and substantive rights rather than recuperating the educational program .Id.

I find that the DOE neglected to prove the appropriateness of 's 2012-2013, 2013-2014, 2014-2015 IEPs, lacking evidence of meaningful educational progress. A number of the DOE's own documents reveal 's failure to make more than trivial advancement. was not made aware of any additional services and supports aside from those stated within their contents, revealing a violation of her procedural and substantive rights. Tr.8990; 115-116; 123;141;159-160;166;275.

Moreover, it is well established that an IEP must provide "personalized instruction and to permit the child to benefit from that instruction." Evans ,930F.

Supp.at 98 (quoting Rowley,458 U.S. at 203). Furthermore, under 8 NYCRR §200.4(d)

(2), an IEP must contain goals and objectives which are tailored to meet the individual needs of the student at hand. For that reason, I agree with Parent’s counsel that any reliance on the general use of and techniques to rehabilitate 's IEPs is flawed, because such lacks the particularized level of special education required under the IDEA and New York law.

The DOE denied him a FAPE when it failed to justify its lack of a special education classroom for ’s school years, and switch to an for , despite a failure to make meaningful educational progress. In New York ,prior to the construction of a student's IEP, the District must examine the pupil's "academic, developmental and functional needs."8NYCRR§200.4(f)(1)(v). According to the State Review Office in Application of a Child with a Disability, Appeal No.93-9, an appropriate IEP starts with an accurate reflection of a student's educational needs, eventually integrating within the child's curriculum to address their individual needs." Application of a Child with a Disability, Appeal No.93-9;

Application of a Child with a Disability,AppealNo.93-12. A failure to fully review the needs of a student with a disability or truthfully reflect the information procured, results in a substantive denial of a FAPE under New York law.

The DOE did not consider 's needs, or the harmful effects of his failure to receive a special education classroom, thereby denying him a FAPE. DOE Ex 3;7;10.It is clear that the DOE failed to recognize 's need for a more intimate classroom, and additional and supports. Parent's Ex. A; M;O;P. The DOE ignored 's , despite throughout his time in , and therefore, the same

. DOE Ex.3;7.

Additionally, Ms. stated that she "couldn't justify placing in an

[ ]classroom; her rationale that "scores well," deeming him ineligible for such supports is without merit, as the format of the exams should be considered Tr. 64.

Ms. testified repeatedly as to 's profound , though she failed to recognize his need for a more intimate and distraction free setting. Id.; Tr,20, 25, 27,

29. Ms. testified that rather than providing with an or classroom, she recommended that seek outside help. Tr.29. Ms. similarly asserted that was performing on when he began his September of 2012 school year, though she noted that he began to fall behind. Tr.144.However,his failed to recognize that he had repeated his school year, thus masking his special education needs .Id. Nevertheless, the DOE failed to hold an IEP reconvene to adjust his February 16, 2012 IEP. Ms. claims that the DOE performed additional evaluations, but she is sorely mistaken as it was who took it upon herself to take further action, not the DOE.Id.; DOE Ex.8. When asked as to whether would have benefitted from an classroom throughout his school year, Ms. testified that she wasn't sure as to "whether the extra teacher would have made a difference; as per Parent’s counsel "thereby revealing the inappropriateness of the DOE's later recommendation. DOE Ex.10; Tr.144.

failed to make meaningful academic progress throughout his school year, despite being placed into an classroom as a student.

Parent's Ex.B; M;O; P; he scores on his New York State and show academic stagnation and regression. DOE Ex. 5 at 3; 9 at 2.Therefore, it was apparent that required a smaller classroom. Yet, the February 4 ,2013 IEP team rejected a classroom, failing to consider or , on the grounds that his cognitive and academic skills were in the ; however, within that same IEP 's instructional and functioning level was listed at , thereby revealing the inaccuracy of the DOE's rationale for rejecting a smaller classroom. Again, on April 23, 2013, a classroom is rejected as being too restrictive, failing to review or .DOEEx.10at 11.

When asked as to the DOE's rationale behind keeping in an classroom,

Mr. responded with an explanation as to why a ratio would not have been appropriate. Tr. 166. Nonetheless, 's need for a more intimate setting should not have been disregarded simply because of the type of class available. The DOE substantively denied a FAPE for his school years, because it failed to draft goals and objectives on his IEPs that were tailored to meet his unique special education needs. In New York, an IEP must contain measurable annual goals which "enable the student to be involved and progress in the curriculum."8

NYCRR§200.4(d)(2)(iii);20 U.S.0 §1414(d)(1)(A). Yet, an IEP need not be calculated to maximize a student's potential; rather, the document must provide "personalized instruction and to permit the child to benefit from that instruction.

"Evans, 930 F.Supp.98(S.D.N.Y.1996

The record reveals that the DOE failed to examine 's special education needs when it drafted the goals and objectives on his IEPs, failing to conduct , substantively denying him a FAPE. DOE

Ex.5;9. For 's school year, the DOE recommended a total of goals. DOE Ex.3. Not only are there zero academic goals within 's

February 16, 2012 IEP, but his goals are entirely deficient, lacking reference to spelling, decoding, and encoding, his disfluencies, as well as expressive and receptive aims. DOE Ex.3 at 4. Ms. failed to defend the lack of additional annual goals and objectives, simply stating that the " read the report and worked on those goals." Tr. 52. In addition, she stated that would not have received academic goals, because he was only slated to receive services. Tr. 63.

Moreover, Ms. stated that she "could only speak to , "explaining that she's "not an academic teacher." Tr. 117.Yet, the DOE failed to proffer any witnesses in support of its failure to provide any academic goals and objectives. Furthermore, Ms. 's sole justification for the lack of goals in the above noted areas of deficiency was the DOE's Evaluation. DOE Ex.6;Tr.

116-118.However,Ms. ailed to state that did not need such help; instead, she explained that the assessments failed to indicate as such. Tr. 120-122.In fact, Ms.

later testified that"[w]e don't diagnose. We have to go find the original paperwork," noting that "he does have difficulty with expressive, and he does have difficulty with receptive." Tr. 123. Moreover, Ms. was unable to explain the lack of expressive and receptive goals. Tr. 53-53. Nevertheless, his February 10,2012

Psychoeducational Evaluation shows his "pseudo-word decoding "to be one of his lowest scores. DOE Ex.3.Therefore,it is evident that a number of 's deficits were no incorporated into his February 16,2012 IEP.

The DOE failed to provide with any short-term goals, and his goals were vague and overly broad, failing to contain the appropriate measurement criteria. DOE Ex. 3. In violation of the Second Circuit's ruling, failed to receive any objectives relating to his distractibility ,and the following deficit areas were excluded entirely:

.DOEEx.3;

See M.S.exrel S.S.,231 F.3d at 100-101.

As per the Parent for school year, the DOE rubber stamped its prior recommendations, providing yet again with goals, and lacking any reference to his academic issues, though it was well-aware of their existence.

Parent's Ex.M; O; P; DOE Ex.7. Not one of his goals deals with his decoding and encoding faults, or his failure to comprehend temporal concepts, nor his need to work on expressive and receptive language. Tr.116-118;140-141;148; 186.Ms. stated that his February 4, 2013IEP lack s a vocabulary goal because it was an area of strength, but his Evaluation showed that he struggled with relating objects to one another, thereby failing to understand their meaning. DOE Ex.6 at 4. What's more, on the portion of this same exam, he . DOE Ex.6 at 4;7at 3. It was not until 's

April 23, 2013 and April 11, 2014 IEPs that the academic goals he needed. DOE

Ex.10;13. The DOE still failed to recognize 's

Clearly, the Parent presented evidence and testimony from as to the extent of ’s deficits, and an appropriate plan to remedy his skill deficits (See testimony of generally ). I find that the hours and services proposed by the are appropriate.

For the foregoing reasons, the DOE has failed to provide with a FAPE for his school years. The DOE has permitted to regress academically, as well as .

After due deliberation, I order as follows:

1. A declaration that was denied a FAPE, both in substance and due to procedural violations which also impeded the Parent’s opportunity to participate in the decision-making process; the DOE failed to provide appropriate services and support, and thus, is entitled to compensatory relief in the form of remedial additional services.

2.I direct the DOE to pay for hours, at a rate not to exceed per hour at , as compensatory and remedial additional services to compensate for the denial of a FAPE, payable directly to upon submission of invoices monthly to the DOE and that these hours will not expire and will be scheduled at the Parent’s discretion so that the Student can be assured of being able to use and access the services.

3. I direct that the DOE to pay the registration fee and the testing fee directly to upon submission of an invoice for the same to the DOE.

4. I direct that the DOE to provide to and to enable them to attend the sessions at .

Dated: October 7, 2015

GARY PETERS, 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 Exhbt. Description Date Pages

A Impartial Hearing Request 1/8/15 11

B 12/20/14 60

C Student Progress Report 4/23/13 2

D PsychoEducational Evaluation Report 3/13/13 4

E PsychoEducational Evaluation 2/10/12 3

F Evaluation 2/7/12 6

G Classroom Obseration 2/6/12 2

H Social History Evaluation 12/22/11 2

I Teacher Report 12/6/11 2

J PsychoEducational Evaluation 5/11/11 4

K Request for Evaluation 5/29/11 1

L Social History Evaluation 3/29/11 1

M Parent Link 9/7/07 9

N Explanation of Grades 11/11/14 2

O Parent/Report undated 2

P Test Parent/Report undated 2

Q Report Card undated 1

R IEP Progress Report undated 1

S IEP Progress Report 11/13/14 2

T Correspondence with DOE/Parent 7

U Report Card 2014/2015 2

V Progress Report Jan. 2015 1

W IEP Progress Report undated 4

DOE

1 Due Process Complaint 1/8/15 9

2 Due process Response 1/16/15 3

3 IEP 2/16/12 10

4 Final Notice of Recommendation 2/16/12 1

5 Psych Educational Eval. 2/10/12 3 6 Eval. 2/7/12 5

7 IEP 2/4/13 8

8 Request for Re-Evaluation 2/11/13 1

9 Psycho Educational Evaluation 2/10/12 4

10 IEP 4/23/13 13

11 FNR 4/23/13 1

12 Progress Report 4/23/13 2

13 IEP 4/9/14 11

14 Prior Written Notice 4/11/14 4

15 Report 2/4/15 3

16 various 6

17 1/30/15 1