Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 12, 2015

April 9, 2015

April 20, 2015

Actual Record Closed Date: May 6, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED March 12, 2015 April 9, 2015 April 20, 2015

Esq. Attorney — Parents

Esq. Attorney — Parents

DOE

Esq. Attorney Mother — Parents

Department of Education Representative — DOE

Committee on Preschool — DOE

(via telephone) Education Administrator

Esq. Attorney — Parents

DOE

Esq. Attorney Mother — Parents

Department of Education Representative — DOE

DOE

(via telephone)

Program Director, — Parents

(via telephone)

Esq. Attorney Attorney — Parents

Esq. Mother — Parents

DOE

Representative — DOE

Ph.D. — Parents

(via telephone)

INTRODUCTION

On March 12, 2015, April 9, 2015, April 20, 2015 I held an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C.

1415(f)(1) regarding the education program of a school-aged child, (“ ”). The hearing commenced at ., respectively, and was held at the Impartial Hearing Office, . A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

BACKGROUND

is years months old and is classified as a Student With a Disability as per his September 22, 2014 Committee on Preschool Education Individualized Education Program (“CPSE IEP”) (DOE Ex. 8 at 1). In a letter dated January 23, 2015, ’s mother (“ ”), by her attorney, , Esq., of , filed a due process request for an impartial hearing. In that request, ’s mother maintained that the Department of Education did not offer a Free and Appropriate Public Education (“FAPE”) for the 2014-2015 school year in that the Department of Education “failed to conduct a valid evaluation of [ ], has failed to develop an appropriate IEP and has failed to make and implement a program recommendation that is reasonably calculated to confer a benefit to [ ]”

(Parents’ Ex. A). The Department of Education did not file a response.

Following a hearing on March 12, 2015, at the request of the parent and with the agreement of the Department of Education representative, , I issued an Interim Order dated March 25, 2015 directing the Department of Education to pay for a evaluation by , Ph.D., at the full market rate and for (“ ”) and (“ ”) evaluations to be conducted by

(“ ”). The evaluations were completed on March 20 and 21, 2015 (Parent’s Exs. F, G, H, I).

I was appointed as the Impartial Hearing Officer in this case on January 23, 2015.

The original compliance date was April 6, 2015. On March 12, 2015, at the request of both parties for the availability of witnesses, the compliance date was extended to May 6, 2015. At the conclusion of the hearing on April 20, 2015 at the request of both parties for the receipt of the transcripts and the issuance of a Decision and Order the compliance date was extended to June 5, 2015.

The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations. Specifically, (a) the child was attending school and evaluations were completed pursuant to an Interim Order and thus there was no negative impact on the child’s educational interest or well-being as a result of the delay; (b) in accordance with due process the parties were entitled to the opportunity to secure witnesses to appear at the hearing in support of their position and the parties were entitled to have this hearing officer review the transcript and consider the evidence prior to the issuance of a Decision and Order; (c) the parties jointly requested the adjournments thus there is no reason to conclude that there were any financial or detrimental consequences likely to be suffered by either party by the delay; and (d) for the reasons indicated above any prior delays due to the unavailability of witnesses did not require the denial of a subsequent extension request.

ISSUES TO BE RESOLVED

The issues to be resolved are: (1)whether the IEP developed on September 22, 2014 was procedurally and substantively appropriate and provided with a FAPE for the 2014-2015 school year and (2) whether, if was deprived of a FAPE, he is entitled to compensatory relief and if so, the type and frequency of those services.

REPRESENTATION AT THE HEARING

The parent was represented at the impartial hearing by , Esq., , Esq. and , Esq. The Department of Education was represented by

.

FINDINGS OF FACT

is a certified as a special education teacher and a licensed school administrator. She currently works as an IEP specialist and previously worked as an educational evaluator ( : 15). is a certified teacher of students who have a disability ( : 79).

has a Master’s Degree in early childhood education and an advanced certificate in . She is New York State certified as both a general and special education teacher ( : 98). , Ph.D., is a licensed psychologist in New York State. He has a doctorate in and a Diplomate in ( : 127-128). is ’s mother.

’s Early History

When was -old ,

and

. When was years-old asked for services. At that time she was told that

(“ ”) services would be provided for months and that the program would be changed when turned ( : 140-141). It took months for the services to be approved and received months of services times a week.

After the provider started working with he began and . The provider taught how to play with and gave some training on . However, when the services stopped and tried to get to keep up his progress he refused to work with her ( : 142, 151-152).

Evaluations/Assessments Prior to the IEP Meeting

During July and August 2014 the Department of Education arranged for to be evaluated in preparation for his September 2014 IEP meeting (DOE Exs. 2, 3, 4, 5).

A Evaluation was administered on July 30, 2014. The evaluator noted that was and required a “ ” The evaluator indicated that “ ” which stated was ’s

(DOE Ex. 2 at 2). The report notes that ’s skills were in the “ ” range but that “they are believed to be delayed as he did not

” (DOE Ex. 2 at 3). ’s scores on the

and (“ ”) showed him to be in the “ ” range and he scored in the percentile in , the percentile in , and was in the percentile ( :

38-39; 41-42, 47-48; DOE Ex. 2 at 6).

The results of the which measures “ ” showed

that was below the percentile in areas of , , and ( : 42-44, 47-48; DOE Ex. 2 at 3). The evaluation notes that ’s were an “ ” as were his areas of when compared to same-age peers (DOE Ex. 2 at 4).

The evaluator told that she thought might be . However, she said that she was not including that diagnosis on her report because was , but that needed to be evaluated at a later date ( : 148-150; DOE Ex. 2).

A Educational Evaluation was conducted on August 12, 2014. It reported that demonstrated ability in and , that his skills were in the “ ” and that his l skills were within the range (DOE Ex. 6 at 4). The Social History dated July 31, 2014 references that was and required

(DOE Ex. 5 at 2).

A Evaluation was conducted on August 19, 2014.

reported to the evaluator that had and

(DOE Ex. 4 at 1). The evaluation report states that during formal testing frequently required and that he “ ” “ ” The evaluator recommended a “follow up with ” ( : 48-49; DOE Ex. 4 at 2, 4). During the evaluation did not . Rather, he “ ” (DOE Ex. 4 at 3).

The evaluator concluded that although was old at the time of the evaluation, his skills were between a child of ( : 50-51; DOE Ex. 4 at 3-4). The evaluation report also indicated that scored in the percentile in and the percentile in . His “ ” score was in the percentile ( : 49-50; DOE Ex. 4 at 6).

The September 22, 2014 IEP Meeting

Ms. is the CPSE administrator who conducted ’s September 22, 2014 IEP meeting. The IEP team reviewed ’s social history, educational evaluation, evaluation, report and “ ” ( : 16-

17, 33; DOE Exs. 2, 5, 6, 7). The other participants at the meeting were as a special education teacher/related service provider and and her husband, ’s . was also at the meeting ( : 25; DOE Ex. 8 at 14). There was no psychologist at the IEP meeting qualified to interpret the results of the evaluation. Rather, Ms. and Ms. , who was an educational evaluator for years, interpreted those results ( : 20-21, 54-55).

At the IEP meeting Ms. completed the Child Outcome Summary

(“Summary”) -- a rating of how a child is in areas – with , ’s and Ms. . The Summary for is incomplete in that some areas are blank, a circumstance that Ms. either attributed to “ ” The skill areas that were completed were rated as “ ” “ ” ( : 29-32, 55, 57-58; DOE Ex. 6).

According to , ’s score was below the percentile ( : 56).

Despite the discrepancy between the evaluation, which found that ’s level of was in the “ ” and the educational evaluation, which

“ ” did not consult with the psychologist at the evaluation center about the discrepancies. Rather, since she concluded that most of the things was not able to do in the reports were related to “ ” In making that determination she considered that had not been receiving his services and she believed that “if he improved in then maybe other areas could improve.” If that did not “work” she would then “try something else” ( : 26-27, 38-41; DOE Ex. 2 at 2-3, Ex. 6 at 2).

Ms. acknowledged that ’s “ ” score on the in skills and his percentile score on the in , which covers, among other domains, , could be addressed by an or a Special Education (“ ”) but she did not recommend either of those services for ( : 41-44, 47-48; DOE Ex. 2 at 3). She also acknowledged that another domain is , which can be addressed by a but she did not recommend that service for The final domain under is “ ” “ ” (DOE Ex. 8 at 4). Ms.

acknowledged that deficiencies could be addressed by if a evaluation showed the required . However, Ms. did not recommend a evaluation because she did not observe any concerns during the time was at the IEP meeting ( : 45-46).

In light of the recommendation in the evaluation that have a evaluation, Ms. “ ” “ ” a evaluation with her physician ( : 48-49; DOE Ex. 4 at 2).

At that time of the IEP meeting Ms. believed that had . She testified that “ ” “usually begin[s] with a week for .” did not agree with that recommendation and she told the IEP team that required additional services. Ms. no longer requires services days a week “ and that if the found that the recommended sessions were not sufficient, the service could be increased ( : 32, 52-53, 65-66; : 156).

At the time the IEP was developed was not receiving any of the services he was mandated to receive under ( : 34-35, 52). The only service included on ’s resulting IEP was a week for at his program to begin on October 6, 2014 (DOE Ex. 8 at 10-

11).

The mandate on the IEP is for individual service. However, there are goals on the IEP that indicate is to demonstrate ability and to “ ” Ms. did not know who was meant to address those goals ( : 60-63 (DOE Ex. 8 at 7). Although the reports referred to the fact that needs , there are no goals on the IEP to address that issue ( : 62-63; DOE Ex. 2 at 2, Ex. 4 at 2).

No one on the IEP team provided with notice of her legal rights and procedural safeguards and Ms. did not know whether, as the district representative at the meeting, she was required to do so ( : 66-67). No one at the IEP meeting offered a placement for or offered to provide with any additional evaluations : 146).

September 2014 to February 2015

No provider came to work with called the District about this but no responded. When was still not receiving services by Christmas, of ’s friends referred her to an attorney ( : 144, 156-157). The week after ’s attorney contacted the Department of Education the provider began giving his services

( : 145).

’s Services Since February 2015

Since February 2015 Ms. has been providing services to at his school a week for about in a classroom with that is designated for that purpose. The services are being provided to as mandated on his September 22, 2014 IEP ( : 80-81, 84-87; DOE Ex. 8 at 10). Ms.

did not have access to the August 19, 2014 evaluation prior to beginning her work with Rather, the school gave her the evaluation shortly before she testified at the impartial hearing ( : 87; DOE Ex. 4).

is “eager to participate” in He has some

skills and can “

” which she provides ( : 81-82). His difficulties have improved since the initiation of but he needs ( : 82-83). “benefits from during ”

“ ”

” ( : 83). ’s

He is able to

. When Ms.

,“ ”

“ ” “ ” and ( : 92-

94). was making progress with the -minute sessions per week but Ms.

opined that his progress would be . Had the began in September 2014 would be “ ” than he was at the time of Ms. ’s testimony at the impartial hearing ( : 94).

Evaluations in February 2015 Pursuant to Interim Order

On March 21, 2015 Dr. conducted a evaluation of

(Parents’ Ex. G). The evaluation was primarily in but there was a evaluator present. was old at the time and was . He used , had a “ ” “ ” his age ( : 129, 131).

The assessment indicated that was “ ” in and in ( : 129-120; Parents’ Ex. I). It was difficult to do formal evaluations due to ’s “ ” and his profile. Thus, Dr.

was only able to administer parts of the ( : 130). The results of the evaluation showed that has “ ”

“deficits in , , [and]

.” ’s profile is consistent with a child on the and is in need of levels of support and service ( : 130-131). Had the evaluation been administered in September 2014 the results would have been the same because they reflect deficits as part of ”s diagnostic profile. Had begun receiving appropriate intervention earlier he could have made some progress ( : 132).

In Dr. ’s experience for testing children of a similar age and profile of the Department of Education has typically offered hours of services. He opined that the appropriate services for would be “ ” for a period due to the “ ” necessary because he was not provided with services earlier and is not , thus reinforcing his ( : 133). Dr. believed that because of ’s it is “imperative” to provide “ ” and, among other things, he recommended hours of (“ ”) to reinforce and that are “ ” in at this age ( : 134-135). Dr. also recommended parent training and that , and be provided with the “ by his services providers.” He found that should

(DOE Ex. I at 6-7).

Ms. is the program director and a special educator at ,a center that offers , , , , and ( : 99-100). On March 20 and 21, 2015 had an evaluation and evaluation at ( : 102; Parents’ Exs. F, G, H).

is a licensed who conducted ’s

evaluation ( : 112-113; Parents’ Ex. F). is at the level of a old in certain skills, although at the time of the evaluation he was old

( : 114-115). Ms. recommended that receive

minute sessions of in a because he needs to “ ” and his ability to ( : 113-116).

is the licensed who conducted ’s

evaluation ( : 116; Parents’ Ex. G). exhibits

. Ms. was concerned about since he was on level which was not only inappropriate for ( : 117-118). Ms.

recommended that receive a week for ( :

117; Parents’ Ex. G at 3).

Ms. observed during both observations and issued a report

( : 102-103; Parents’ Exs. F, G, H). During both observations had difficulty

. Each time

“ ”

“

. For example,

( : 103-107). did

not

.

( : 104; Parents’ Ex. H).

Ms. observed that ’s in that he “ ”

“

” ( : 108-109). Generally, ’s was not what is should be for a year-old child ( : 109-111).

Ms. recommended that would function best in a setting with . Ms. opined that is was

“ ” “

” “ ” to build his and skills. She opined that would benefit from , and and recommended that he receive support and instruction from a special education teacher and/or ( : 111-112, Parents’ Ex. H). Ms.

opined that has “ ” and she agreed with

Dr. finding that ’s profile is that of a child on the

( : 119).

April 2015

At the time that testified that the impartial hearing and, for the most part, was not able to . Rather, he did so by “ ” An exception was that “ ” “ ”( : 138). He

was not able , “ ” At

( : 138-

139). and

. ( : 139).

CONCLUSIONS OF LAW AND DISCUSSION

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

The Department of Education has the burden of demonstrating that it provided such students with that standard. 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S.

Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet a child’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D) 34 C.F.R. § 300.13; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.347; Rowley at 181-182. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit a child to benefit educationally from that instruction.” Rowley, 458 U. S. at 203.

An IEP must be developed using a “variety of assessment tools and strategies to gather relevant functional, developmental, and academic information that may assist in determining the content of a child’s individualized education program as required by the IDEA.” 34 CFR 300.304(b)(1)(ii); 20 U.S.C. §1414(b)(2)(a), 8 NYCRR §200.4(b)(1).

The IEP must accurately reflect the results of those evaluations to identify the child's needs, provide for the use of appropriate special education services to address the child's special education needs, and establish annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2nd Cir. 2012).

A school district must recommend a program that is reasonably calculated to allow the child to receive some “meaningful' benefit,” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192, and develop an IEP that is “’likely to produce progress, not regression”' and “ affords the student with an opportunity greater than mere 'trivial advancement'." Cerra v. Pawling Cent.

School District, 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Application of a Student With a Disability, Appeal No. 13-169.

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

A. The Department of Education failed to provide with a FAPE for the 2013-2014 School Year

As noted above, to meet its burden, the Department of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits and that the recommended program is the LRE for the child. Rowley, 458 U.S. at 188-189; 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1].

In developing an IEP a school district must comply with the procedural requirements set forth in the IDEA and the IEP must be “reasonably calculated to enable the child to receive meaningful educational benefits. R.E, 694 F.3d at 175,190 citing Rowley, 458 U.S. at 175, 207. While a substantively inadequate IEP automatically entitles a parent to reimbursement, not all procedural violations are considered “material and not all procedural errors render an IEP legally inadequate under the IDEA. Id.; Grim

v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). When procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies: (a) impeded the child's right to a FAPE, (b)

significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513[a][2]; K.R.

and S.R. v. N.Y. City Dept. of Educ., 13 Civ. 7454 (SAS) April 20, 2014; R.E, 694 F.3d at 190.

The evidence and testimony presented at the impartial hearing left no doubt that the IEP was procedurally flawed and that it deprived for a FAPE for the 2014-2015

school year.

At the outset, the IEP team was not properly composed. Whenever a new evaluation is reviewed a school psychologist is a mandated member of the IEP team. 8 NYCRR 200.3(c)(2)(v). It is uncontested that there was no school psychologist present at the IEP meeting despite the fact that the evaluation administered on July 30, 2014 was the first of its kind and a significant document with respect to the development of ’s IEP. This omission was a procedural violation that deprived of a FAPE.

The evidence and testimony at the impartial hearing conclusively refuted Ms.

’s claim that she and Ms. , a special education teacher, alone or together were qualified to interpret the results of the evaluation (see : 19-21).

In particular, there is no indication that Ms. ever considered or discussed with the IEP team or with the results of the evaluation that showed to be in the “ ” “ ” range in skills, that he was and that he required t . Nor did she address the concerns about his that could have been addressed by or (DOE Ex. 2 at 2). At the very least the information regarding ”

Instead, Ms. based her decision not to refer for a evaluation on her observation of

Moreover, at the impartial hearing Ms. testified that

“ ”

“ ”( : 32, 39)

Moreover, despite the concerns apparent in the results of the evaluations, Ms.

did not refer for a evaluation as recommended in the Evaluation report (DOE Ex. 4 at 2, 4). Nor did she consider the evaluator’s finding that and that he scored within the “ ” range for (DOE Ex. 6 at 3), or ’s concerns that required more than a week of to meet his needs. Rather, as she testified at the impartial hearing, she simply offered minute sessions of , noting that she “usually begin[s] with a week for .” and that if the thought additional service was necessary, additional services could be provided

( : 26-28, 53). Clearly, Ms. ’s reasoning in recommending that mandate did not reflect ’s unique educational needs but merely reflected the “usual” services that Ms. provides when a student has difficulties. Thus, the IEP did not accurately reflect the results of the evaluations in determining ’s level of achievement and specific needs in order to develop an appropriate educational program. See R.E, v.

New York City Dept. of Educ., 694 F.3d at 175, citing Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir.2007). Indeed, a review of the evaluations available at the time leaves no doubt that more substantial services were required (see Findings of

Fact, above).

The subsequent evaluations in March 2015 pursuant to the Interim Order of this hearing officer further demonstrate the failure of the Department of Education to provide with a FAPE. I note the finding in Dr. ’s evaluation that ’s delays are exacerbated by the fact that he has not been receiving the appropriate services, which he explained, should be . While the March 2015 evaluations were not available to the IEP team, had Ms. arranged for a evaluation as recommended by the evaluator in August

2014, the IEP team would have been aware of the entirety of ’s delays and his diagnosis as on the , and could have developed an IEP that was appropriate to meet his specific needs. Finally, and significantly, it is uncontested that even the meager services mandated on the IEP to begin on October 6, 2014 were not provided to until February 2014, only after contacted an attorney who in turn contacted the Department of Education.

In light of the foregoing I find that the procedural violations in developing the September 22, 2014 IEP (a) impeded ’s right to a FAPE, (b) significantly impeded

’s opportunity to participate in the decision making process regarding the provision of a FAPE to , and (c) caused a deprivation of educational benefits. Because of these procedural violations and as the foregoing analysis demonstrates, the resulting IEP was also substantively defective in that it failed to provide with the appropriate services and goals necessary to ensure that he received an educational benefit.

B. Requested Program and Compensatory Services

At the conclusion of the impartial hearing the District, without explicitly conceding that it failed to provide with a FAPE, offered to conduct a new IEP meeting to develop an IEP taking into consideration the evaluations that were conducted in March 2015 (Hearing: 160-161). The parents, while agreeing to attend a new IEP meeting, asked for compensatory services to make up for the services that should have received from the beginning of the 2014-2015 school year (Hearing: 163-164).

The parents asked that beginning immediately, the Department of Education be ordered to pay for hours of services, minute individual sessions of per week, minute sessions of per week and minute sessions of per week, each service to be provided by a licensed practitioner in the specific area at an enhanced rate. This request was based on the recommendations in the March 2015 evaluations. The parent also asked for transportation to and from the program and for per week of parent training (Hearing: 163-164).

In addition, the parents asked for a “compensatory package” consisting of the services specified above as calculated by the number of hours of each service he would have received had the requested program started on September 22, 2014, the date of the IEP meeting. The compensatory services would be in addition to the services put in place going forward (Hearing: 164, 166-167).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).

Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA. See 20 U.S.C. §§ 1401(3); 1412(a)(1)(B); Educ. Law §§ 3202(1); 4401(1); 4402(5). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE. And, the IDEA allows a hearing officer to fashion an appropriate remedy, such as compensatory education, for the denial of FAPE. Newington, 546 F.3d 111 at 123; Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008); Application of XXXXXXXXX, Appeal No. 13-048; Application of the Dept. of Educ., Appeal No. 12-135; Application of the Dept. of Educ., Appeal No. 11-13. The ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from the special education services that the school district should have supplied in the first place.

Application of XXXXXXXXX, Appeal No. 13-048. Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See Newington, 546 F.3d at 123.

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 compensatory services 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.”). Another approach is the qualitative approach, which focuses on the child’s needs. See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits.

Id. at 526. 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).

As per my ensuing Order, the Department of Education will be directed to begin providing with the program requested in the parent’s closing statement for remainder of the 2014-2015 school year (Hearing: 163-164). In light of the number of hours that program will encompass – hours of , hours of , hours of and hours of -- hours of services per week in total, the qualitative approach to compensatory services will be appropriate. As such, the Department of Education must provide the with additional , , , and as requested by the parent throughout the remainder of the 2014-2015 school year, throughout the summer of 2015 and during September and October and November of the 2015-2016 school year, in an amount not to exceed the number of hours for each service that would have received had the services been in place from September 22, 2014. The services may be provided over the course of a -day week. The CSE is to reconvene in November 2015 and consider up-to-date reports by ’s and , and providers and his then-current teachers to assess ’s progress up to that point and determine the appropriate number of hours remaining in each service area, if any, required to compensate for the Department of Education’s failure to provide the services to from September 22, 2015 until the services are put in place following the receipt of this Decision and Order. This

Order for compensatory services shall remain in effect until a new compensatory program, if one is deemed to be required at that point, is developed by the CSE in

November 2015.

This Order for compensatory services shall remain in effect until a new compensatory program is developed by the CSE in November 2015.

ORDER

Therefore, it is hereby ORDERED that:

1) Immediately upon receipt of this Decision and Order the Department of Education is to place in an appropriate program and provide him with:

hours of services per week, services per

week, services per week and serves

per week;

2) Within 14 days of the receipt of this Decision and Order the CSE is to convene a meeting and develop an IEP for for the remainder of the 2014-2015 school year, with all of the required members present as well as any persons that the parent wishes to include who have relevant information about and could contribute to the development of the IEP;

3) The IEP must include the services as indicated in (1) above;

4) In order to compensate for the lack of an appropriate program from September 22, 2015 until the new IEP with the services in (1) above is put into effect, the Department of Education must provide with additional , , , and as requested by the parent throughout the remainder of the 2014-2015 school year, throughout the summer of 2015 and during September and October and November of the 2015-2016 school year, in an amount not to exceed the number of hours for each service that would have received had the services been in place from September 22, 2014. The services may be provided over the course of a -day week.

5) The CSE is to reconvene in November 2015 and consider up-to-date reports by ’s and , and providers and his then-current teachers to assess ’s progress up to that point and determine the appropriate number of hours remaining in each service area, if any, required to compensate for the Department of Education’s failure to provide the services to from September 22, 2015 until the services are put in place following the receipt of this Decision and Order. This Order for compensatory services shall remain in effect until a new compensatory program, if one is deemed to be required at that point, is developed by the CSE in November 2015.

6) The Department of Education must provide special education transportation for to attend the recommended placement. Date: May 19, 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 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

DEPARTMENT OF EDUCATION:

Exhibit 1 Omitted as Duplicative

Exhibit 2 Evaluation

dated July 30, 2014, 7 pages

Exhibit 3 Observation dated August 12,

2014, 2 pages

Exhibit 4 Evaluation dated August 19,

2014, 6 pages

Exhibit 5 Social History dated July

31, 2014, 3 pages

Exhibit 6 Educational Evaluation

dated August 12, 2014, 6 pages

Exhibit 7 Child Outcome Summary dated

September 22, 2014, 9 pages

Exhibit 8 Individualized

Education Program dated September

22, 2014, 14 pages

Exhibit 9 Final Notice of Recommendation

dated September 24, 2014, 1 page

PARENTS:

Exhibit A Impartial Hearing Request dated

January 23, 2015, 7 pages

Exhibit B - and Educational

Review dated February 6, 2015, 5

pages

Exhibit C Omitted as Duplicative

Exhibit D Omitted as Duplicative

Exhibit E Omitted as Duplicative

Exhibit F Evaluation

dated March 20, 2015, 8 pages

Exhibit G Evaluation dated

March 20, 2015, 3 pages

Exhibit H Educational Observation dated

March 20, 2015, 2 pages

Exhibit I Evaluation

dated March 21, 2015, 9 pages

HEARING OFFICER:

Exhibit I Case Follow-Up Sheets with

Exhibit II Extension Information various dates,

2 pages