New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 1, 2015

May 14, 2015

Actual Record Closed Date: June 15, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 1, 2015

Impartial Hearing Officer

Esq. Attorney — Student

Parents

DOE Representative — DOE

DOE Representative — DOE

School Psychologist (Via Telephone) — DOE

Provider (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 14, 2015

Impartial Hearing Officer

Esq. Attorney — Student

Parents

DOE Representative — DOE

Teacher (Via Telephone) — DOE

Teacher (Via Telephone) — DOE

INTRODUCTION AND PROCEDURAL HISTORY

is an student who has been classified by the

Department of Education (DOE) as (DOE-6). Such classification is not in dispute1 By letter dated January 20, 2015 (DOE-1), amended on that same date

(DOE-2), the parents, through counsel, initiated a due process hearing through which several challenges were asserted with respect to the student’s 2013-2014 and 2014-2015

Individualized Eudcation Programs (IEP). A different hearing officer was initially appointed to hear and decide this dispute. Such initial hearing officer conducted the first hearing date on April 1, 2015, at which time documentary evidence was admitted and testimony taken. The initial hearing officer thereafter recused herself for reasons that are not relevant to a determination of the hearing issues. I was appointed on April 15, 2015 and conducted status conferences on April 16 and April 27, 2015, at which time May 14, 2015 was selected as the second hearing date. I was thereafter provided a copy of the April 1, 2015 hearing transcript as well as copies of all of the documentary evidence that was introduced on that day, all of which I have since reviewed.

The primary area of disagreement in this case appears to be a May 30, 2013 CSE decision, which was reaffirmed on May , 2014, to change the student’s primary placement from a program to a program, with supports. Any issues regarding requests for independent educational evaluations were resolved through the resolution process (T: 139). The remaining hearing issues that were raised in the amended complaint letter were summarized in a May 10, 2015 e-mail from the Impartial Hearing Officer (IHO) to the parties (IHO-II), who thereafter confirmed on the record the accuracy thereof (T: 139). Such hearing issues were identified as follow:

2013-2014

1. The DOE failed to provide as mandated by the student’s IEP.

1

There was some confusion as to why ’s classification was reported as learning disabled on document and as (see DOE Exhibits 14 and 13) on others, but the complaint letter (DOE Exhibits 1 and 2) did not raise any challenge to the appropriateness of the student’s classification. Counsel for the parent confirmed during the course of the hearing that there was no issue being raised with respect to the appropriateness of ’s classification (T: 232). It is likely that the learning disability classification in the Final Notice of Recommendation (DOE-14) was erroneous, as an earlier IEP (PE-C, p. C-1) reflected a classification.

2. The DOE’s placement of student in a classroom denied her free appropriate public educaiton (FAPE).

3. The DOE failed to meaningfully consider a number of placement options, as required by 34 CFR Sections 300.551(a) and 300.302.

4. The 5/21/14 IEP was not based upon current evaluations and did not reflect the student’s present levels of academic achievement and functional performance.

5. The DOE failed to provide a copy of the 5/21/14 IEP to the student’s mother at the end of the meeting. Rather, the mother only had a draft. As a result, the DOE failed to offer a placement recommendation – appropriate or otherwise – to student.

6. The DOE failed to timely implement the 5/21/14 IEP, either starting on

6/1/14 or for the Summer of 2014.

7. The 5/21/14 IEP did not include goals to address the student’s weaknesses in sentence construction, and other and challenges.

2014-2015

1. The DOE failed to provide as mandated by the student’s IEP.

2. The DOE’s placement of student in a classroom denied her FAPE.

3. The DOE failed to meaningfully consider a number of placement options, as required by 34 CFR Sections 300.551(a) and 300.302.

4. The 5/21/14 IEP was not based upon current evaluations and did not reflect the student’s present levels of academic achievement and functional performance.

5. The DOE failed to provide a copy of the 5/21/14 IEP to the student’s mother at the end of the meeting. Rather, the mother only had a draft. As a result, the DOE failed to offer a placement recommendation – appropriate or otherwise – to student.

6. The DOE failed to timely implement the 5/21/14 IEP, either starting on

6/1/14 or for the Summer of 2014.

7. The 5/21/14 IEP did not include goals to address the student’s weaknesses in sentence construction, and other and challenges

The Positions of the Parties

The DOE

The 2013-2014 educational program recommended for the student, consisting of placement in a classroom with and services, offered the student a free appropriate public education in the least restrictive environment. The

2014-2015 educational program, which included the 2013-2014 program and services along with a professional, was appropriate and was consented to by the parent. Finally, the DOE maintains that the student made meaningful academic and social progress in each such year.

The Parent

The IEPs developed by the DOE for both the 2013-2014 and 2014-2015 school years were both procedurally and substantively inappropriate2 and were not appropriately implemented. As a result, the student should be placed in an appropriate private school for the 2015-2016 school year and receive compensatory education services.

The Hearing Evidence

The DOE’s initial witness was , who testified that she was a school psychologist employed at and (T: 51). She had served in that capacity for approximately years (T: 51), held a Master’s degree in education and school psychology and was a certified school psychologist (T: 52). Ms.

testified that she knew since the 2013-2014 school year and that she had completed her re-evaluation during that school year (T: 52).

The DOE’s second witness was , who indicated that she had been employed by the DOE for approximately 10 years and that she was currently employed at as a ( ) teacher (T: 90). She had a Bachelor’s and a Master’s degree in special education and was certified in Special Education grades 1 through 6 (T: 91). Ms. testified that she had known since September, 2013 through the first week in November 2013 (T: 99) and that she had been her teacher since September, 2014 (T: 91), during which time she provided with

(T: 92).

The DOE’s third witness was , who indicated that she had been employed by the DOE for approximately 14 years and that she was currently employed at as a teacher (T: 145). She had a Bachelor’s degree in and a Master’s degree in teaching and was certified (T:

146). She was ’s and teacher in and her teacher in

(T: 146). There were students in ’s class and students in her class (T: 159). Ms. saw every day during both school years (T: 146-47).

The DOE’s fourth witness was , who indicated that she had been employed by the DOE for approximately 14 years and that she was currently employed at as a teacher (T: 183). She had a Master’s degree in early childhood education and had a pre-through certification (T:

184). She was ’s and teacher in , during which time she taught daily for periods, and was her teacher in , during which time she taught daily for periods (T: 184-185).

’s mother was the first and only witness called in the parent’s case-in-chief.

She testified as to ’s educational background and contrasted her through school years with the past school years.

The hearing evidence revealed that ’s 2013-2014 IEP was developed at a May 30, 2013 CSE meeting (SD-13). After relatively successful years in a placement, during which time passed her classes without the need for a

(T: 292-293), the CSE discussed placing is a setting with supports. ’s mother was sick and was unable to physically attend the meeting, so she participated by telephone (T: 233). During the meeting, she expressed the view that was not ready for a setting. ’s mother testified that she was assured that, if ’s educational staff saw her struggling at all during her school year, they would not hesitate to come back to the table and return to her setting (T: 234). I found testimony in this regard to be credible.

There was little evidence presented by the DOE with respect to the development of ’s 2013-2014 IEP. No DOE staff who participated in that meeting were called as witnesses during the course of the instant hearing. However, several staff members who played a role in the implementation of such IEP did testify. Ms. testified that she had been ’s teacher when this IEP had been implemented (T: 149). Ms.

testified that she had been ’s and teacher during that school year (T: 185-186). In , she gained from a level “ ” (which she indicated was mid ) to a level “ ” (which she indicated was the end of (T:

186-188). She also made some progress in (T: 189). Ms. testified that she had been aware during ’s school year that her mother wanted her back in a program.

testified that did “ ” in her school year.

testified that wasn’t eager to go to school, was depressed, became bitter, started fighting in school and didn’t pass anything (T: 236). waited until mid-year before requesting that the CSE revisit her placement because she wanted to give the new placement time. In January, 2014, she approached the building principal and requested that the CSE be reconvened to review ’s placement. She was advised to put her request in , which she did (T: 280-281). By letter dated January 15, 2014, apparently received by the DOE on that same day, ’s mother expressed her view that was struggling in the larger classroom setting and requested that be reevaluated

(PE-G). The parent provided consent for the requested reevaluations on January 16, 2014

(T: 85-86; T: 238-239; PE-H). She was advised that she would be contacted with the date of the CSE meeting, which did not take place until May , 2014 (T: 239). It appears that no reevaluation was undertaken in response to this request until the May 5, 2014 educational evaluation (DOE-8) and the May , 2014

(DOE-5). Ms. was unable to explain the basis for this delay (T: 86-87).

During the time period between the January 15, 2014 request for reevaluation and the May , 2014 CSE meeting, continued to fail her courses and ultimately had to attend

Summer school (T: 239). During Summer school, she was in a class with students and teachers. According to her mother, she did well and was advanced to (T: 240).

testified that, notwithstanding the fact that ’s 2013-2014 IEP called for to be provided for in a (DOE-13, page

6), did not receive any during her school year (T: 253). The

DOE did not present any evidence as to this claim.

Ms. testified that she participated in the May , 2014 CSE meeting at which ’s 2014-2015 IEP was developed (T: 55; SD-6). That program was intended to commence on September 4, 2014 (T: 84-85; DOE-6, page 1). A teacher report, running records, a May 5, 2014 educational evaluation (DOE-8) and a May 21, 2014

(DOE-5) were reviewed at this meeting (T: 55; T: 57-58). A

(DOE-7) was developed at the May 21, 2014 CSE meeting.

The most current evaluation as of that meeting was the one that had been conducted on June 6, 2011 (T: 64-65; T: 84). No reevaluation was conducted despite the January 16, 2014 written notification to ’s mother that was required (DOE-10).

The only assessment administered as part of the educational evaluation, the of – , revealed that was generally in the in and in the in and (DOE-8; T: 56). Ms. testified that the , which was developed and written at the May , 2014 CSE meeting (T: 59), based in part upon information obtained by ’s mother in a telephone interview (T: 78), concluded that needed “ ” (T: 60) and with respect to her leaving the classroom. Ms. testified that was easily frustrated with longer tasks and tended not to be able to finish her work because of her inability to focus (T: 95-96). Ms. concurred that needed additional educational supports to address her ability to focus (T: 151). It was the intent of the CSE that such additional support was to be provided through the (T: 60; T: 79).

The hearing evidence was unclear as to what the qualifications were to be for such . Ms. testified that she did not know what the difference was between a and a teacher aide (T: 172). Ms. recalled that ’s mother seemed very happy that was going to get a (T:

152). Ms. testified that the sat next to , clarified tasks, worked with the teacher on shortening classroom assignments and pulled from the classroom when she needed breaks (T: 109; T: 111). There were, to Ms. ’s knowledge, no other students in ’s classroom who had a

(T: 112).

The May 21, 2014 CSE recommended that be placed for in a classroom with and supports. They also recommended that she be provided with a based upon teacher reports that, although she was “ ” “ ” (T: 56-57). Ms. testified that DOE staff

felt that ’s “

” (T: 61). Ms. testified that ’s mother really wanted a small classroom setting for , but the CSE felt that this was not appropriate (T: 61-62).

In terms of her in the CSE’s 2014-2015 recommended program, Ms.

testified that “

” (T: 62). Ms. testified that, in her opinion, had made gains in the areas of (going from a level “ ” “ ”, which was a mid level [T: 102)) and (T: 97-98). Ms. could not explain why ’s May , 2014 IEP indicated that her level was at a grade level (T: 102; DOE-6, page 1). Ms. acknowledged that ’s report card grades in reflected that she was performing well-below standards and below standards in (T: 104; PE-L). She also acknowledged that had difficulty completing assignments (T: 104). Ms. testified that had made gains in in the 2014-2015 school year (T: 154; DOE-15). Ms. testified that has made gains in the area of (T: 194-195). Ms. , Ms. , Ms.

and Ms. each voiced the opinion that was appropriately placed in the 20142015 school year (T: 62-63; T: 98; T: 157; T: 195).

This assessment of ’s progress during the 2014-2015 school year was in sharp contrast to the description provided by ’s mother, who testified that she continued to do “ ” in , , and (T: 245-248).

indicated that she was happy that had the because was a “ ”. She would try to run out of school and hide in the staircase from staff.

would frequently be called by staff advising that wanted to be taken .

would get into fights with other students and would be punished by being placed in a or class for the day. was prevented from going on school trips due to her (T: 249-250). testified that she would receive daily phone calls from District staff complaining about ’s and that, as a result, she ( ) was exhausted (T: 250-251). ’s medication was increased to the point where her medical providers did not want to increase it anymore (T: 276). was advised that was, again, in danger of not being promoted to the next grade level (T: 251-252;

PE-S). testified that was only receiving “ ” of her IEP during the 2014-2015 school year (T: 253; see DOE-13, p. 6).

Ms. testified that continued to be distracted at times, even with the . She would sometimes shut down if she didn’t get what she wanted (T: 147). She would refuse to complete work (T: 178). This distractibility would happen “ ”, even with the (T: 177). No specific data was presented during the course of the hearing relating to the frequency or intensity of the interfering or to the effectiveness of the interventions utilized by the . would participate better in small group instruction (T: 179-180).

Ms. indicated that the would generally have to take out into the hallway per week for an entire class period, during which time would engage in independent (T: 212). According to , there has been no review of ’s during the current school year (T: 260). The DOE presented no evidence to refute this claim.

Findings of Fact

I make the following Findings of Fact:

1. At all times relevant to this proceeding (the 2013-2014 and 2014-2015 school years), was a NYC resident, classified with a disability under IDEA, who attended NYC public schools (T: 225-226).

2. was initially classified under IDEA in (T: 299).

3. As part of the initial classification process, was administered a Psychoeducational Evaluation on June 6, 2011 (PE-Q). She was determined to be a friendly and inquisitive student of average cognitive ability with relative weaknesses in , comprehension and and a more significant deficit in the area of . She was noted to be and as having difficulty staying on task (PE-Q).

4. In her school year and the following school years, was placed in a at a NYC DOE Community School, during which time she reportedly “ ” and was advanced from grade to grade (T: 229-230). She reportedly did not, during this time period, present with that required the conduct of a or a (T: 292-

293; PE-C, p. C-2). I found the mother’s testimony in this regard to be credible.

5. ’s mother remained actively involved in ’s educational programming throughout the time period that was classified as a student with an educational disability. I found the mother’s testimony in this regard to be believable and the mother to be an overall credible witness.

6. A CSE meeting was held on May 30, 2013 for the purpose of developing

’s 2013-2014 IEP. ’s mother participated by phone at that meeting, as she was unable to physically attend due to a personal emergency (T: 233). During this meeting, DOE staff generally and ’s special education teacher in particular advocated for moving to a less restrictive placement based upon how well she had been doing in the setting. ’s mother expressed concerns as to ’s readiness for such a move and was assured by DOE staff as to her readiness. According to ’s mother, the plan was to carefully monitor in the setting and, if warranted, return her to setting (T: 234). I have credited the mother’s testimony that she was advised, if not assured, by ’s teacher that, if struggled, she would be returned to the program (T: 234).

7. I find that, as of May 30, 2013, the IEP Team had reasonable and credible information justifying the movement of to a less restrictive placement. This conclusion is based, at least in part, upon information suggesting that was a child of average cognitive ability who had “ ” over a period of years in a setting.

8. presented with challenging in the setting from the very beginning (T: 235-236). These interfered with ’s ability to be successful in her classroom setting (see, e.g. PE-P) and were not appropriately addressed through the conduct of a or the development of a . Indeed, an was not conducted until May , 2014 and the resulting was not to be implemented until September 4, 2014 (see DOE-5; DOE-

6; DOE-7).

9. There was some evidence in the hearing record suggesting that had made at least some academic progress in her school year (T: 186-188; T: 189).

However, the evidence of academic gains during such school year was called into question by ’s report card grades ( testified that did not pass anything [T:

236]) and the disparity between her levels as reflected in the testing completed by her teacher and the achievement testing conducted by the school psychologist (DOE-8).

10. The hearing evidence as to whether was provided during the 2013-2014 school year was scant. The parent testified as to her understanding that was not provided. This belief on part was based upon the fact that would talk to her about everything that went on at school and, during the 2013-2014 school year, never mentioned to her (T: 253; T: 288-289). The DOE presented no evidence as to the provision of during such school year.

11. Contrary to the assurances provided to ’s mother at the May 30, 2013 CSE meeting, the DOE thereafter failed to carefully monitor ’s progress in the setting and failed to meaningfully or timely respond to expressions of concern by the Parent, including but not limited to the January 15, 2014 letter (PE-G) expressing concern as to how was doing in the setting and requesting that be re-evaluated. In this regard, although the request for consent to evaluate (PE-H)

was sent by the DOE to the parent on the following day and returned by the parent on the same day that she received it (T: 85-86; T: 238-239; PE0H), the DOE apparently took no action towards conducting any of the requested evaluations until May 5, 2014, when the minimal educational evaluation (DOE-8) and May 21, 2014, when the (DOE-5), were conducted. Even then, the DOE’s response was inadequate. The was apparently not conducted until the day of the annual review and the was not put into place until the following September. The 2013-2014 IEP was not “ ”, as had been requested by ’s mother (T: 237). In fact, no IEP changes were made to address the concerns articulated by ’s mother, both orally and in , in January, 2014, until September, 2014. By that time, had experienced a highly unsuccessful school year.

12. The CSE met on May , 2014 for the purpose of conduction ’s annual review and developing her 2014-2015 educational program. The evaluations before the CSE at that meeting were incomplete and inadequate. There was no social history, no classroom observation and an outdated evaluation. The school psychologist testified that she did not conduct an updated evaluation and instead relied upon the June 6, 2011 evaluation (PE-Q) because she “ ” (T: 64). There was no indicated that this purported belief was ever shared with or agreed upon by the parent.

The CSE recommended a continuation of the program along with the addition of a “ ” to begin in September, 2014 (DOE-6). The role of this

“ ” was to assist with her attentional deficits (T: 79). I find that the qualifications and role of the “ ” “ ” makes it virtually impossible to determine the efficacy of this educational support.

13. ’s performance in her setting was problematic throughout the entirety of the 2014-2015 school year. again. She presented with ongoing interfering (T: 147; T: 177; T: 249-250). again, she received failing report grades and was advised that she was in danger of not being advanced to the next grade level (T: 251-252; PE-S).

14. The DOE’s response to the problematic was, at times, unsettling. By way of example, ’s mother described or occasions in which, in response to misbehavior on the part of , she was removed from her class and placed for a full day in a and classroom (T:285-287). No review of or changes to the / were made during the course of the 2014-2015

school year.

15. As was the case in the 2013-2014 school year, the hearing evidence as to any academic progress made by in her school year was, at best, inconsistent. Compare testimony of Ms. (T: 62), Ms. (T: 97-98; T: 102),

Ms. (T: 154) and Ms. (T: 194-195) with ’s report card grades (PE-L and PE-R), the letter (PE-S) and testimony as to the lack of academic progress during such school year (T: 245-248).

16. The hearing evidence with respect to whether received IEP-mandated services was, again, scant. testified that some, but not all, of such services were provided (T: 253). The DOE presented no evidence with respect to this claim.

17. There was little evidence presented during the course of the hearing regarding the appropriateness of the 2014-2015 IEP goals relating to and .

I have, however, reviewed such goals (DOE-6) and find that, while they are unimpressive, they are nonetheless marginally appropriate.

Legal Standard and Conclusions of Law

Pursuant to the IDEA, all children with disabilities are entitled to a “free appropriate public education” (“FAPE”) which must include “special education and related services” tailored to meet the unique of the child and be “reasonably calculated to enable the child to receive educational benefits.” B oard of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 207 (1982); (20 U.S.C. § 1400[d][1][A]; Schaffer v. W east, 126 S. Ct. 528, 531 [2005]; Frank G. v. B oard of Education, 459 F.3d 356, 371 [2nd Cir. 2006]). A FAPE is offered to a student when

(a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA ’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Paw ling Central School District, 427 F.3d 186, 192 [2nd Cir.

2005]). The Second Circuit Court of Appeals in W alczak v. Florida Union Free School District, 142 F.3d 119 (2nd Cir. 1998) held that the IDEA does not articulate any specific level of educational benefits that must be provided through an IEP. The Court citing to the Supreme Court ruling in Rowley reiterated that the IDEA does not require the states to maximize the potential of disabled children, but was meant “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside” (at pg. 192). The Second Circuit in W alczak also cites to a D.C. Circuit Court decision by now Supreme Court Justice Ruth Bader Ginsburg which held that because “public resources are not infinite,” federal law “does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child” (Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1583 [D.C. Cir. 1984]). The Third Circuit has held that an appropriate education under the IDEA is one that is “likely to produce progress, not regression” (Cypress-Fairbanks Indep. Sch. Dist. V . Michael F., 118 F.3d 245, 248 [3rd Cir. 1997]; cert denied 522 U.S. 1047 [1998]; Cerra, 427 F.3d at 195, quoting W alczak, 142 F.3d at 130 [citations omitted]; see Perricelli v. Carmel Central School District, 2007 WL 465211, at *15). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (W alczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 [2nd Cir. 1989][citations omitted]; see Grim, 346 F.3d at 379). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford B oard of Education, 103 F.3d 1114, 1120 [2nd Cir. 1997]; see Rowley, 458 U.S. at 192). Objective factors such as the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress and one important factor in determining educational benefit (Rowley, 458 U.S. at 207, n.28, 203-04; W alczak, 142 F.3d at 130; V iola v. A rlington Central School District, 414 F. Supp. 2d 366, 382 [S.D.N.Y. 2006]).

The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; see W alczak, 142 F.3d at 132). The LRE is defined as “one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled” (Carlisle A rea Sch. V . Scott P., 62 F.3d 520, 535 [3rd Cir. 1995]). The IDEA mandates that all students with disabilities may only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. 1412[a][5][A]; 34 CFR

300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3rd Cir. 1993]; Briggs v. Bd.

of Educ., 882 F.2d 688, 691 [2nd Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]).

“The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Borough of Clementon Sch. Dist., 995 F.2d 1204 [3rd Cir. 1993]). The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes such as language and role modeling with nondisabled peers (Greer v. Rome City Sch.

Dist., 950 F.2d 688 [11th Cir. 1991]).

The Second Circuit Court of Appeals adopted the Oberti LRE test in P. v.

Newington B oard of Educ., 546 F.3d 111 (2nd Cir. 2008) requiring the consideration of whether the school has made reasonable efforts to accommodate the child in a regular classroom, the educational benefits to the child with appropriate supplementary aids and services versus a and the possible negative effects of the inclusion of the child on the education of the other students in the class.

Federal district courts have upheld the appropriateness of an IEP “given what the CSE knew about [the child] at the time it was developing the … IEP” E.S. v. K atonah-

Lewisboro School District, 742 F.Supp.2d 417 (S.D.N.Y. 2010). In J.R. v. B oard of Education of the City of Rye School D istrict, 345 F.Supp. 386 (S.D.N.Y. 2004), the Court held that in reviewing the appropriateness of an IEP that:

“This determination is necessarily prospective in nature; we therefore must not engage in Monday-morning quarterbacking guided by our knowledge of

S.R.’s subsequent progress at Eagle Hill, but rather consider the propriety of the IEP with respect to the likelihood that it would benefit S.R. at the time it was devised. See A ntonaccio, 281 F.Supp.2d at 724 (noting that this issue has not yet been addressed by the Second Circuit and holding that ‘the …IEP…must be evaluated at the time the CSE devised the IEP, on June 15, 1999, and the IHO and SRO erred by regarding any information about [the student’s] education after that date’).”

The SRO has consistently considered the IEP “at the time it was formulated” to determine if it was reasonably calculated to enable the student to receive educational benefit

(A pplication of a Student with a Disability , SRO Appeal Nos. 11-154, 09-034, 09-013).

Based upon the above, I make the following Conclusions of Law:

1. was, during the entirety of the 2013-2014 and 2014-2015 school years, a student classified under IDEA and a resident of New York City. As such, New York City owed her a duty of FAPE for the entirety of each such school year.

2013-2014

2. The determination of the issue with respect to the provision of during the 2013-2014 school year is a simple product of applying the burden of proof. As the DOE possesses the burden of proof as to the appropriateness of both the CSE recommendations and as to the appropriateness of the implementation of such recommendations, I must find that the failure to produce any evidence as to the provision of during the 2013-2014 school year must yield a finding that the DOE has failed to sustain its burden of proof with respect to the provision of in such school year. Such failure to provide IEP-mandated during the 2013-2014 school year constituted a denial of FAPE in such school year.

3. I find that, while the DOE had a reasonable basis for concluding that was ready for a less restrictive placement in the 2013-2014 school year, the manner in which such program was implemented denied FAPE during the second of the 2013-2014 school year. The bases for such conclusion include the following:

a. I find that the failure of the DOE to conduct a functional assessment or develop a until May , 2014 notwithstanding the presence of significant interfering on the part of throughout the 2013- 2014 school year constituted a denial of FAPE for the second of the 2013-2014 school year. Indeed, even when the was conducted, there was no evidence suggesting that the supports that were deemed necessary for were provided during the balance of the 2013-2014 school year. Rather, such supports (consisting primarily of a “ ”) were apparently not implemented until September of the following school year (DOE-6).^[3]

b. I find that the failure of the DOE to act upon the parent’s request for a re-evaluation in a timely fashion after the parent’s January 15, 2014 written request for a re-evaluation resulted in a denial of FAPE for the period of February 15, 2014 through June 30, 2014.

c. I find that conducting the on the very same day that the May 21, 2014 CSE meeting was conducted and purportedly developing the at such CSE meeting, effectively denied the parent the opportunity to be a meaningful participant in the IEP-development process.

4. I find that the hearing evidence does not support the parent’s contention that the CSE failed to meaningfully consider a number of placement options for the 2013- 2014 school year.

5. I find that the May 21, 2014 IEP did not relate to the 2013-2014 school year, as its projected start date was September 4, 2014.

6. I find that the failure to provide the parent with a copy of the 5/21/14 IEP at the end of the 5/21/14 CSE meeting did not result in a denial of FAPE for the remainder of the 2013-2014 school year, as such IEP did not relate to the 2013-2014

school year.

7. I find that the alleged failure to timely implement the May 21, 2014 IEP was irrelevant as it relates to the 2013-2014 school year, as such IEP did not relate to the 2013-2014 school year. However, I find that the failure of the DOE to have an IEP in place for the month of June, 2014 effectively resulted in the denial of FAPE to student during such month (compare DOE-13 and DOE 6).

8. I find that the goals set forth in the May 21, 2014 IEP are irrelevant to the issue of whether was offered FAPE during the 2013-2014 school year.

2014-2015

9. The determination of the issue with respect to the provision of during the 2014-2015 school year is also a simple product of applying the burden of proof. As the DOE possesses the burden of proof as to the appropriateness of both the CSE recommendations and as to the appropriateness of the implementation of such recommendations, I must find that the failure to produce any evidence as to the provision of during the 2014-2015 school year must yield a finding that the DOE has failed to sustain its burden of proof with respect to the provision of in such school year. Such failure to provide IEP-mandated during the 2014-2015 school year constituted a denial of FAPE in such school year.

10. I find that the DOE’s placement of in a classroom with support, and a in the 2014-2015 school year, under the facts of this case, constituted a denial of FAPE for the 2014-2015 school year. While there is some evidence that made some academic gains, the DOE has most assuredly failed to meet its burden of demonstrating that it appropriately addressed ’s in such school year. In this regard, I find that the / was both procedurally and substantively inadequate and that it was not properly implemented. The failure to provide any information regarding the qualifications of the “ ” or any data as to the efficacy of the interventions utilized, whatever they might have been, renders this support inappropriate as a matter of law.

11. I find that the hearing evidence does not support the parent’s contention that the CSE failed to meaningfully consider a number of placement options for the 2014- 2015 school year.

12. I find that the May 21, 2014 IEP was not based upon current and complete evaluations and did not accurately reflect ’s current levels.

13. I find that the failure to provide the parent with a copy of the May 21, 2014 IEP at the end of the May 21, 2014 CSE meeting did not result in a denial of FAPE for the 2014-2015 school year. Moreover, I do not find that there is credible evidence suggesting that the May 21, 2014 IEP was not thereafter timely provided to the parent, even if this issue has been properly raised in the amended complaint letter.

14. I find that the hearing record does not support the claim that the DOE allegedly failed to timely implement the May 21, 2014 IEP, as it relates to the 2014-2015 school year. In this regard, I will note that the IEP does not call for services (DOE-

6, page 10) and there is no evidence indicating that such IEP was not otherwise timely implemented (with the exception of services).

15. I find that the hearing evidence does not support the claim that the 2014- 2015 goals were inappropriate.

Order

1. The DOE shall provide with compensatory education services in the form of of sessions. Such compensatory education shall be provided during the course of the 2015-2016 school year in accordance with the form and schedule to be mutually agreed upon by the DOE and the parent or, if no mutual agreement is reached by September 30, 2015, in a form and schedule to be determined by the DOE.

To the extent that such compensatory is provided as part of an extended day program, the DOE is directed to offer such transportation as may be required to enable to access such service.

2. The DOE shall conduct an updated evaluation not later than August 30, 2015. The CSE shall meet within 30 calendar days of the completion of such updated evaluation and make any recommendations that may be deemed by the CSE to be appropriate based upon the results of such evaluation.

3. The DOE shall conducted an updated evaluation to reconcile the differences between ’s overall levels as currently measured by the testing administered by the special education teacher and the educational testing administered by the school psychologist. Such updated evaluation shall be conducted not later than August 30, 2015. The CSE shall meet within 30 calendar days of the completion of such updated evaluation and make any recommendations that may be deemed by the CSE to be appropriate based upon the results of such evaluation.

4. The DOE shall, within 30 calendar days of ’s return to school in September, 2015, conduct an updated and develop a new with full parental participation. The CSE shall meet within 30 calendar days of the completion of such updated evaluation and make any recommendations that may be deemed by the CSE to be appropriate based upon the results of such evaluation. Such shall be presented to the parent at least 5 business days prior to the CSE meeting at which it is reviewed.

5. The DOE shall provide with for the denial of FAPE during some or all of the 2013-2014 and 2014-2015 school years. The specific elements of such program shall be developed at a CSE meeting to be held within 30 calendar days of the date of this Decision. Such compensatory services shall be provided in the 2015-2016 school year.

SO ORDERED: Dated: June 29, 2015

, 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 3 5-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 EXHIBITS:

A. (Withdrawn)

B. 3/2/15 Resolution Agreement (3 pages)

C. 6/6/12 IEP (11 pages)

D. (Withdrawn)

E. (Withdrawn)

F. 5/30/13 Final Notice of Recommendation (1 page)

G. 1/15/14 Parent Letter (1 page)

H. 1/16/14 DOE Consent Letter (1 page)

I. 11/5/14 DOE Letter to Parent (2 pages)

J. (Withdrawn)

K. (Withdrawn)

L. 11/12/14 DOE Report Card for 2014-2015 Term One (2 pages)

M. 6/24/14 DOE Report Card for 2013-2014 Term One (2 pages)

N. 8/5/14 and 8/11/14

(5 pages)

O. (Withdrawn)

P. 6/6/12 Final Notice of Recommendation (1 page)

Q. 6/6/11 Psychoeducational Evaluation (6 pages)

R. 2014-2015 Report Card, Quarter 2 (2 pages)

S. Letter (1 page)

DEPARTMENT OF EDUCATION EXHIBITS:

1. 1/20/15 Due Process Complaint (6 pages)

2. 1/20/15 Amended Due Process Complaint (6 pages)

3. 2/10/15 Due Process Response (3 pages)

4. 6/2/14 Prior Written Notice (4 pages)

5. 5/21/15 (7 pages)

6. 5/21/14 IEP (17 pages)

7. 5/21/14 (5 pages)

8. 5/5/14 Educational Evaluation (2 pages)

9. 11/5/14 Observation Form (4 pages)

10. 1/16/14 Year Reevaluation (1 page)

11. (Withdrawn)

12. (Withdrawn)

13. 5/30/13 IEP (13 pages)

14. (Withdrawn)

15. Benchmark Assessments for 2014-2015 (6 pages)

16. Levels for 2014-2015 (2 pages)

IMPARTIAL HEARING OFFICER EXHIBITS:

1. 5/14/15 Scheduling Order (2 pages)

2. 5/10/15 E-Mail to Parties Summarizing Hearing Issues (2 pages)

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Footnotes

[2] Counsel for the parent has cited to certain information in her post-hearing brief that was not derived from the hearing record (see, e.g., footnote 1 on page 5 of the post-hearing brief. This material, as well as any other material outside the hearing record, has not been considered in deciding this matter.

[3] Under certain circumstances, I might be inclined to find that the failure to conduct an or develop a until May 21, 2014 would not constitute a denial of FAPE, particularly as did not have a history of needing an or a . Such a delay may be considered reasonable in order to determine how was going to respond to the less restrictive environment. However, given the lack of evidence suggesting that the DOE took any steps to properly address ’s during the first semester, including the lack of any evidence that the DOE was delivering the IEP-mandated , or that any other steps were taken to ensure that ’s transition from the setting to a less restrictive setting was reasonably calculated to be successful, I find that the manner in which the DOE addressed ’s during the second semester of the 2013-2014 school year amounted to a denial of FAPE.