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 20, 2015

June 17, 2015

Actual Record Closed Date: July 29, 2015

Hearing Officer: Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 20, 2015

Attorney — Parents

Mother — Parents

District Rep CSE — DOE

School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 17, 2015

Attorney — Parents

Mother — Parents

Parents

School Psychologist — DOE

District Rep CSE — DOE

INTRODUCTION

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 hearing was conducted at the impartial hearing office, New York City Department of Education at . The Department of Education,

hereinafter referred to as the “DOE” was represented by their designee and the parent was represented by her attorney Esq.

BACKGROUND

The child, hereinafter referred to as , is a old student with a disability and is classified as “ (also referred to as the “parent”) brought this hearing challenging the DOE’s failure to provide the child with a free appropriate public education (“FAPE”) during the 2013-2014 and 2014-2015

school years.

THE PARENT’S POSITION

Parents allege that evidence will demonstrate that the DOE did not provide appropriate IEP’s which were not reasonably calculated to allow the student to make meaningful educational progress. Furthermore, all of the goals were completely inappropriate. The parent requested the impartial hearing alleging, inter alia, that her son was denied access to a FAPE by the New York City Department of Education (“DOE”) through the actions of the Committee on Special Education (“CSE”), that and that the child is entitled to compensatory education.

The Parent seeks placement in a state-approved non-public school for her son and funding for an independent (“ ”). She alleges that the DOE inappropriately classified the student with an (“ ”)

instead of (“ ”), failed to timely identify the student as having a disability, failed to develop an appropriate individualized education program (“IEP”) and failed to recommend an appropriate placement.

THE DEPARTMENT’S POSITION

The DOE asserts that the Student was appropriately not identified as a student with a disability until the 2013-2014 school year. It is the DOE’s position that the placement recommended for the Student was appropriate at the time of the IEP meeting that was held in June 2014. Furthermore, the DOE designee maintained that the when an appropriate non-public school (“NPS”) placement was offered in fall 2014, the parent rejected that placement. The CSE reconvened in October 2014 to recommend a program; the Parent again requested a reconvene, and the CSE complied. Based on reports that was exhibiting challenges and with , the CSE recommended a , and the is currently attending the

The DOE argued that the CSE must be permitted to come to an appropriate and non-pre-determined recommendation. If the Parent is now requesting a change in program recommendation from to , the district should be given an opportunity to reconvene the CSE. The District should not be held accountable for parental delays or the rejection of FAPE. Accordingly compensatory services should not be awarded.

THE DEPARTMENT’S CASE

is a -year-old and is currently placed at the , a state-approved non-public . (Tr. 241-242) and receives as a related service. (DOE Ex. 31-8) Prior to being placed at the , he attended

; (Tr. 22) During the 2012-2013 school year, attended a at . (Tr. 209); he was not classified as a student with a disability, however received section 504 accommodations including , , and . (Tr. 210).

As stated above, in September 2013, attended .

(Tr. 23) and was enrolled in a class. (Tr. 23); in March 2014, the student was referred for an initial evaluation. (Tr. 23). The IEP team conducted a social history assessment, a classroom observation, a , and developed a . (DOE Ex. 6, 9, 11, 12). The Parent provided the school with independent and evaluations. (DOE Ex. 7, 10). An IEP meeting was held on June 19, 2014, wherein was classified as and recommended placement at a state-approved non-public school with as a related service. (DOE Ex. 13)

In September 2014, was offered placement at , the Parent rejected the offer and an IEP meeting was held in October 2014 (Tr. 39) An IEP

was developed which recommended a class with

(“ ”) times per week and times per

week. (Doe Ex. 17-8) The Parent did not sign consent for initial services until December

8, 2014. (DOE Ex. 20)

On December 18, 2014 the Parent requested a reevaluation. (DOE Ex. 19) A new social history update, classroom observation, and psychoeducational were conducted to evaluate the student’s present levels of performance. (DOE Ex. 21, 23, 25) An IEP meeting was held on January 16, 2015 to discuss the results of those evaluations. (Tr. 49)

The new IEP recommended placement in a NYS approved with services. (DOE Ex. 26-8) The student was offered placement at the on April 27, 2015. (DOE Ex. 30) The placement was accepted by the Parent and the student began attending approximately two weeks before the commencement of this hearing. (Tr. 57)

The DOE’s position is that most of the 2012-2013 school year is barred by

IDEA’s two year statute of limitations. The Parent filed this DPC on March 24, 2015 which would set the statute of limitations at March 24, 2013. The Parent testified that the student’s teacher recommended that her child receive accommodations because he was . (Tr. 209) She testified that a meeting was held and a 504 accommodation plan was developed. (Tr. 209-210) This plan included a provision for , and . (Tr. 209-210)

The Parent confirmed that these accommodations were provided for the 2012-2013 school year. (Tr. 209)

The DOE maintained that it met its obligations for the 2013-2014 School Year; the Parent testified that during his month at , . (Tr. 211) The school first began documenting concerns in mid-October of 2013. (DOE Ex.33-

41) Ms. the school psychologist at testified that the school utilizes system called to document . (Tr. 24); the Parents and school have access to this system (Tr. 65) The Parent testified that shortly thereafter, the school developed a 504 plan to address some of these concerns. (Tr. 214)

Ms. testified that the student’s included

, . (Tr. 28) In

March 2014, the Parent wrote a letter requesting that receive an initial evaluation for special education services. (DOE Ex. 3) Ms. testified that evaluations were not conducted because the Parent revoked her consent for evaluations. (Tr. 25, DOE Ex. 4)

She testified that the Parent stated that although she was concerned about her son’s

, she did not believe it rose to the level of requiring services. (Tr. 26) Ms.

testified that the case was reopened in May because was exhibiting performance in areas. (Tr. 27) The Parent signed consent for evaluations on

June 2, 2014. (DOE Ex. 5) Ms. the school social worker conducted a social history assessment and a classroom observation. (Tr.28, DOE Ex. 6, 9)

Ms. testified that she conducted a (Tr. 29) and that she and Ms.

observed ; she also interviewed teachers and reviewed anecdotes. (Tr. 29) The team noted and , and . (Tr. 30) The team subsequently developed a (DOE Ex.12) which provided that the school counselor and teachers work with on and along with and . (Tr. 31)

An IEP meeting was held on June 19, 2014 to discuss the evaluations that had been completed. (DOE Ex. 13) Ms. testified that in addition to the school personnel present at the meeting, Dr. who conducted the independent evaluation and an advocate from the program participated in the meeting. (Tr. 32, DOE Ex. 13-10) Ms. testified that the team reviewed Dr.

’s evaluation, and the teachers discussed his performance in their classes. (Tr. 33) She stated that Dr. reported that ’s main diagnosis was , the report stated “Given ’s , he needs a more comprehensive program which can provide him with , during the months, and for both and his mother. (Parent Ex. Z-16) Ms. testified that based on the report from both Dr. and ’s teachers, the team determined that the most appropriate classification was . (Tr. 35) She stated that the parent disagreed with that classification, however the team reiterated the reasons why he should be classified as . (Tr. 35) The team recommended a deferral to the CBST for placement at a state-approved non-public school. (Tr. 36, DOE Ex. 13-5)

Despite all of ’s challenges during the 2013-2014 school year, he managed to . (DOE Ex. 35)

The DOE alleges that it met its obligations for the 2014-2015 School Year and that on September 11, 2015 placement was offered at - . (DOE Ex. 15) The Parent testified that she visited the school but indicated that she wanted to visit again when school was in session. (Tr. 230) She stated that she also visited the . (Tr. 246) The witness testified that she spoke with the Parent who indicated that she did not like the school. (Tr. 39) As such, the student returned to for the 2014-2015 school year; the CSE held a reconvene in October 2014 to discuss next steps. (Tr. 39) At the meeting, the teachers reported on ’s present levels of performance; that he had not been as the previous year and was making more of an effort to . (Tr. 40) Ms. testified that the Parent requested that the team consider a less restrictive program at that time. (Tr. 41). The classification remained and the team recommended a with services and .

(DOE ex. 17-8) This was similar to the recommendations made by Dr. in June listed under “ ” (Parent Ex. Z-14)

Ms. testified that the services were not implemented for until the end of December 2014 because the Parent did not sign consent for initial services which is required for initial evaluations (Tr. 176); the consent for initial services was sent to the Parent on October 29, 2014, but the Parent did not sign consent until December 8, 2014.

(DOE Ex. 18)

On December 18, 2014 the Parent wrote a letter requesting a reevaluation to consider that the case be sent back to CBST for placement at a non-public school. (DOE Ex. 19) At that time, was enrolled in a class with and services; another social history update was conducted as well as a classroom observation. (Tr. 46-47) Ms. testified that she also conducted a records review which formed her update; she concluded that was during the 2014-2015 school year as compared to the previous year when he was . (Tr. 48) She also stated that he presented with and . (Tr. 48) An IEP meeting on January 16, 2015, the Parent discussed her concerns about her son’s and his teachers reported that . (Tr. 50) Ms.

testified that the educational advocate from the program requested that the team consider placement at a . (Tr. 51-52) The CSE complied and recommended that the case be deferred to the Central Based Support Team for placement at a . (DOE Ex. 26-8) The Parent testified that she never told the school that she did not want recommended for a placement. (Tr. 249)

The Parent testified that in March of 2015 the CBST caseworker Ms.

contacted her to set up school visits. (Tr. 249) On April 27, 2015 was offered placement at the . (DOE Ex. 30) The Parent further stated that her son is currently attending that and that she has had conversations with the school social worker and that . (Tr. 242)

The Parent stated that she did not require the assistance of an interpreter in order to testify and that she was able to read and understand the evaluations conducted by the Program. (Tr. 217) Additionally, that she is a (Tr.

20) Ms. was present for each IEP meeting held for and testified that when she spoke with the Parent, they communicated in . (Tr. 178) As such, the DOE’s designee maintained that the Parent’s participation in the special education proceed was not impeded by .

THE PARENT’S CASE

is a old who has been classified as a student with an . In , September 2013, attended , located at , which is a DOE school, in September of 2013. Tr. 64. During the school year

2012-2013, he was in a program at and received 504 Accommodations when his teacher noticed he had difficulty . Tr. 209. During the 2013-2014 school year, the Student was given a

, , ,

. Tr. 209-210. began attending for the school year

2013-2014 with a 504 Plan in place. Tr. 65. The Parent testified that approximately one month after school began, she met with Ms. , the school counselor, to show her an evaluation from the Program at diagnosing the Student with (hereinafter “ ”). Tr. 211-

212. The Student was moved into a different classroom with 504 accommodations such as access to the counselor, , . Tr. 214.

The Parent stated that the Student’s teachers reported that he was

. Tr.

214. As a result, the Parent wrote a letter to the Principal of School, Ms.

, on March 11, 2014 expressing her concerns regarding her son’s struggles in school and reporting his diagnosis of from the Program. Ex. 3. The Parent testified that this letter was written with the help of her son’s from , who recommended that the required class and additional support. Tr. 215-216. After the letter was hand-delivered and faxed to the school, the Parent testified that she spoke to Ms. who informed her that the DOE would be conducting evaluations and the Parent responded that there was a very recent evaluation done at . Tr. 218-219. . The Parent explained that she had an independent evaluation completed by Dr.

at the Program at . Tr. 219 and Ex. Z. The

Parent testified that Ms. ’s informed her that she must put that information in , so the parent wrote a letter and faxed it over on April 25, 2014. Ex. 4 and Tr. 218-

219. The Student was evaluated by Dr. during three dates of assessment, April 7, 17, and 18, 2014. Ex. Z. This evaluation describes the Student’s , having declined and that this decline has a direct impact on his . Ex. Z, p. 1.

In the school setting, the Student displays , , and , , and as a result of these , the has received and this has had a direct impact on his grades and test taking. Ex. Z, p. 2. Dr. noted in the evaluation that prior to entering for his year (school year 2013-2014), the Student attended for his year (2012-2013), had , but it did not affect the access to his education. Ex.

Z, p. 4. Dr. further reports that after a few months at , the Student was moved to a different class containing students with and it was at this time that the Student’s difficulties became . Ex. Z, p. 4.

As indicated in the evaluation, Dr. determined: the Student’s ability fell within the range; the of his is a significant area of concern; he has and , however these abilities decline dramatically when he is in school; the Student also demonstrated weaknesses in his ability to , as well as in and he has a “ ” Ex. Z, p. 11-13. Dr.

determined that the Student is and

. Ex. Z, p. 12. The Student’s skills are in the and his is . Ex. Z, p. 8.

As part of the evaluation, education coordinator conducted a classroom observation On March 6, 2014, whereby the displayed , , and

;

. Ex. Z, p. 10. Dr. writes, “Until

the current school year, [the Student] has . More specifically, he was doing well this school year until he was placed in a classroom. As per school observation, this new classroom has a and . This setting appears

. This may, in part, explain his .” Ex. Z, p. 13.

Dr. ’s diagnostic impressions in this evaluation include a longstanding history of

, , and

Ex. Z, p. 11-13. Dr.

recommended non-public school placement with a program and concluded; “It is critical that [the Student] be in a school that can provides

[sic] the necessary support. In addition, it is important that the primary aim of the school is to help its students achieve on a level commensurate with their abilities and to prepare them to …” Ex. Z,

p. 14. Dr. reported that if the Student is , he would require a classroom and needs a until . Dr. recommended:

in ; a weekly; classroom accommodations; ; a

and ; group; and parent counseling and training. Ex.

Z, p. 14-15. The Parent testified that Dr. explained to her that a non-public school “

” Tr. 224.

On June 2, 2014, the Parent signed consents and met with DOE Social Worker to complete a Social History Evaluation. Ex. 5 and 6. In this Social History

Evaluation, the Parent indicates that her preferred is and the of interview indicates: . Ex. 6, p. 1. In this evaluation, the Parent expressed her concerns for her son and that he was diagnosed from age with . Ex. 6, p. 1. The Parent testified that her son . Tr. 222 and Ex. 6, p. 2. The Parent reported to Ms. that have to do with his and .

Ex. 6, p. 3

On June 9, 2014, the DOE wrote a letter to the Parent informing her of the CSE meeting that was to take place on June 19, 2014. Ex. 8 and 9.

On June 10, 2014, Ms. conducted a classroom observation and she reported the Student did not . Ex. 9 and Tr. 88. A Evaluation was conducted on June 13, 2014 and as Ms. testified that it is “ ” Tr. 89. This evaluation noted that the Student has had a long history of , , and . Ex. 10, p. 4. Ms. testified that she spoke to the Student’s teachers prior to the meeting and reviewed the evaluations. Tr. 90-92. The Parent attended the first CSE meeting on June 9, 2014 and Dr. participated telephonically. Tr. 226 and Ex. 13, p. 10. The Parent testified that Dr. told the CSE that the Student would benefit from class in a non-public school, -to- until his and emphasized his need for .

Tr. 225, 228. The Parent testified that there was no discussion at the meeting about the classification options for the Student and it wasn’t until the end of the meeting when Ms.

handed the Parent a paper with the classification “ ”

(hereinafter “ ”) on the right side. Tr. 227. The Parent disagreed with the classification and the IEP that stated, “Mother also expressed worry about current classification which was further discussed and clarified in light of current diagnoses and concerns as experienced in the current school year.”

Tr. 13, p. 8 and Tr. 227. Ms. testified that the Parent was very concerned with the classification of Tr. 127. This IEP describes the Parent’s concerns and that it was explained to the Parent that “…every year his IEP and program would be reviewed…” Ex. 13, p. 8. Ms. testified that she drafted the IEP prior to the meeting. Tr. 133.and that she wrote the one and only goal prior to the meeting and does not recall discussing it at the meeting. Tr. 131.

The June 2014 IEP only provided the Student with his classification with weekly session for minutes. Ex. 13, p. 5. The recommended placement is a NYSED-Approved non-public school program with a class size ratio of students to teacher and aide. Ex. 13, p. 5. There is goal in this June IEP: “Through session , and the development of strategies [the Student] will be able to . He will also and .” Ex. 13, p. 4. This goal was to be measured by teacher and counselor observations, reports and checklists a month with an criteria. Ex.

13, p. 4. The levels that are listed as grade for and for , however there is no offering of support for the Student’s deficit in . Ex. 13, p. 8. At no point during the meeting did anyone discuss a for the Student, even though the IEP indicated that he required supports. Tr. 229.

On the same date as the CSE meeting, Ms. wrote a and , both dated June 19, 2014. The contains a section under “ ”

“provide a narrative data description with regard

to

.” The only information is a general

statement: “[The Student’s] of concern

, His are considered

.” Ex. 11, p. 5. Both the merely

quote the evaluation and do not contain “ ” or actual data taken from the school setting. Ex. 11 and 12.

The next letter from the DOE was not until August 28, 2014, informing the Parent that her son’s case has been assigned to the CBST and a case manager will be contacting her to “discuss the placement process.” Ex. 14. On September 11, 2014, a letter from school psychologist notified her of placement at . Ex. 15. The Parent visited the proposed placement and determined it was inappropriate to meet her son’s individual needs and did not comply with the detailed recommendations articulated in the evaluation. Tr.

230-231. Based on her own observations and interviews, this school did not conform to the school setting that Dr. recommended in that it did not provide the necessary support. Tr. 230-231.

The DOE via a letter dated October 24, 2014 in informed the Parent that there would be another CSE meeting to be held on October 27, 2014. Ex. 16. The Parent did not receive any documents, updated evaluations, or data from the DOE prior to the CSE meeting. Tr. 232. The second CSE meeting changed the placement recommendation to with (“ ”) periods a week in . Ex. 17, p. 8. The

related services provided in this IEP include weekly for minutes each. Ex. 17, p. 8. The same goal remained from the June 2014 IEP and October 2014 IEP adds more goals involving

,

. Ex. 17, p. 7. The October 2014 IEP added a goal. Ex. 17, p. 7. The

Parent concerns were noted on the IEP: “Mother expressed concern about current classification and inquired about [her son’s] current diagnoses of hindering

.” Ex. 17, p. 11. The classification continued to be despite the Parent’s objections. The promotional criteria were altered from to of his year. Tr. 17, p. 11. The IEP indicated that the program and services were to begin on November 26, 2014. Ex. 17, p. 8.

On December 8, 2014, the Parent signed a Prior Written Notice for the services indicated on the IEP which were to begin on November 26, 2014. Ex. 18, p. 2. On

December 18, 2014, the Parent wrote another letter to Principal and Ms.

requesting a more supportive placement. Ex. 19. The Parent testified that during this time her son was and she was receiving phone calls from the school that . Tr. 237-238. The Parent signed a consent on December 23, 2014. Ex. 20. Another Social History Evaluation was created by Social Worker and the Parent again reported the issues around the Student’s diagnosed . Ex. 21, p.

3. wrote a teacher report dated December 22, 2014 and in this report she indicates that she has never seen an IEP for the Student. Ex. 22, p. 2. Ms.

conducted another Classroom Observation on January 14, 2015, and the Student did not display any . Ex. 23. The Parent was sent letters informing her of a third CSE meeting to take place on January 16, 2015. Ex. 24. On the same day as the meeting, Ms. wrote a Update. Ex. 25; it.

included assessment methods: parent interview, teacher interview, and the April 7, 2014 . Ex. 25, p. 1. The CSE meeting held on January 16, 2015 resulted in the removal of altogether and changed the to an program in a school. Ex. 26, p. 8; related services did not change

The only progress report in evidence is one dated February 10, 2015 that indicates that the Student was only receiving weekly and describes him as having difficulty . Ex. 27, p. 1.

On March 24, 2015, the Parent filed a Due Process Demand. Ex. A. The Parent testified that she did not hear from anyone from the DOE offering a placement until April 27, 2015, when she received a letter from Ms. indicating that placement had been secured at the program. Ex. 30. The Parent testified that she observed schools and selected the because it was the school and she felt that she had no choice but to place her son there. Tr. 240-

241. currently attends the program and the Parent testified that the there and other staff members have told her that he does not display any

; instead the staff emphasized his . Tr. 243. The Parent has found this placement to be inappropriate for her son. Tr. 242-243.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C. section 1400~1482) ensure-that students with disabilities have available to them a FAPE-see Schaffer v. Weast, 126 S. Ct. 528,531 [2005]; Bd. Of Education v. Rowley 458 S.CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356371 92d

2006). FAPE includes special education and related services designed to meet the student's unique need provided inconformity with a comprehensive written IEP (20U.S.C.

section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 'd'. The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a] [5] a; CFR section 300.13 [a] [2] [i], .200. 1.116 [a] [2]; 8 NYCRR 200.6 [a] [IJ; see Walczak v. Fla. Union Free School Dist. 142 F. 3d 119, 132[2d Cir. 1998]

In conformity with a written IEP, a school district must provide special education and related services designed to meet the student’s unique needs. 20 U.S.C. §1401(9) (D); See 20 U.S.C. § 1414(d)). “‘The core of the statute’ is the collaborative process between parents and schools, primarily through the IEP process.” Application of a Child with a Disability, Appeal No. 06-121; See Schaffer, 126 S.Ct. at 532.

A school district provides a FAPE 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. Bd. of Educ. v. Rowley, 458 U.S. 176, 206-7 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 (2d Cir. 2003). If a procedural violation has occurred, relief is warranted only if the violation affected the student’s right to a FAPE. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

The IDEA directs that a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE. 20 U.S.C. § 1415(f) (3) (E) (i)). Under the IDEA, if a procedural violation is 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 8 NYCRR 200.5(j)(4)). Also, an impartial hearing officer is not precluded from ordering a local educational agency to comply with IDEA procedural requirements (20 U.S.C. § 1415(f) (3) (E) (iii)).

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child's parents if: 1. the services offered by the Department of Education were inadequate or appropriate; 2. the services selected by the parents were appropriate and 3. Equitable considerations support the parents claim (Sch. Comm. of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch.

Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. School Dist. 427 F. 3d 186, 192 [2d Cir. 2005] _ "reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.

Parent’s attorney maintains that the DOE failed, procedurally and substantively, to offer a FAPE for the school years in dispute. Decisions regarding IEPs and the provision of related services must be governed by a student's needs, rather than matters of administrative convenience or cost for the district. 34 C.F.R. § 300.116[b] [2]; 8 NYCRR

200.6[a] [2]; see Rowley, 458 U.S. at 203; A dams, 195 F.3d at 1150-51; Reusch, 872 F.

Supp. at 1425-26; see also Placem ents, 71 Fed. Reg. 46588 [Aug. 14, 2006]; Letter to

Clark e, 48 IDELR 77 (OSEP 2007).

I agree and find that the evidence confirms procedural violations that significantly impeded the Parent opportunity to participate in the decision-making process regarding the provision of FAPE to her child. 34 CFR §300.513 (a) (2) (ii). As a result these violations also caused a deprivation of educational benefit to this Student. 34 CFR

§300.513(a) (2) (iii). For example, the DOE failed to provide proper written notice of the refusal to change the child’s classification. Part 200 regulations set for the requirements for the notice of recommendation or prior written notice when removing or changing a special education student’s program. Such notice “must be given to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, educational placement of the student or the provision of a free appropriate public education to the student.” 8 N.Y.C.R.R. §

200.5(a). The prior written notice must include:

(i) a description of the action proposed or refused by the district;

(ii) an explanation of why the district proposes or refuses to take action;

(iii) a description of other options that the CSE considered and the reasons why those options were rejected;

(iv) a description of each evaluation procedure, assessment, record, or report the CSE used as a basis for the proposed or refused action;

8 N.Y.C.R.R. § 200.5 (a) (3). The Prior Written Notice sent to the Parent failed to describe the actions proposed, explain the actions, indicate other options considered, and did not provide data utilized for the basis of the action. There was no explanation as to why the DOE refused to change the classification of which the Parent disagreed. Ex. I. As per Parent’s counsel, during all the CSE meetings the Parent was clear that she disagreed with the classification. The final notice of recommendation dated April 29, 2015 failed to provide specific information as to the reason the Parent’s objection to the classification was rejected. Ex. 32. The Parent testified that the members of the CSE did not discuss the classification during the meeting, but instead she noticed it on the paper that Ms. showed her after the meeting. Tr. 226.

As a matter of law, the parents have a right to equal participation at a CSE meeting. 34 C.F.R. § 300.345. The DOE’s failure to properly explain or describe the reasoning why the CSE refused to change the classification at each of the four meetings further denied the Parents the opportunity to meaningfully participate. I agree with Parent’s counsel that this predetermination and “virtual exclusion” of the parents from an equal role in determining classification and participating in the process eliminated any meaningful participation and therefore violates the Regulations and denied a FAPE to

Additionally, the DOE failed to provide reports to the Parent prior to any of the CSE meetings. Federal Law protects parents of children with special education needs by ensuring that they are provided procedural safeguards designed to protect the rights of children with disabilities and their parents; these safeguards include the right to participate in meetings and to examine all educational records. 20 U.S.C. § 1415(b) (1).

The Parent in this case was not given any of the Department’s reports prior to each and every meeting. This prohibited the Parent from meaningfully participating in the CSE meeting armed with the information that the CSE would be utilizing to create an appropriate program for her son. As a result, there was no meaningful participation in this “committee” decision and this is a direct violation of 20 U.S.C. § 1415 and denied the student a FAPE as a result.

Additionally, the regulations define native language (in pertinent part) as “if used with reference to an individual of limited English proficiency, the language normally used by that individual, or, in the case of a student, the language normally used by the parents of the student, except that, in all direct contact with a student (including evaluation of the student), native language means the language normally used by the student in the home or learning environment[.]” 8 N.Y.C.R.R. § 200.1(ff). The regulations are clear that paperwork relating to special education must be provided to the parent in his native language. See, e.g., 8 N.Y.C.R.R. § 200.5(f)(2) (procedural safeguard notice); 200.4(a)(4)

(prior written notice); 200.4(b)(6)(xii) (evaluation); 200.1(1) (definition of consent requires communication in parent’s native language). The record is clear that the Parent’s native tongue is as she indicated on the Social History evaluation that her preferred language is . Ex. 6, p. 1. The Social History was completed in the language. Ex. 6, p. 1. The IDEA states that districts must take whatever action is necessary to ensure that parents understand the IEP team discussions; including arranging for an interpreter for parents who are deaf or whose primary language is not English. 34 CFR § 300.322 (e). The DOE’s failure to comply with these regulations adversely impacted on the Parents’ ability to meaningfully participate in the process as she was unable to read the evaluations on which the CSE based its recommendation. The DOE provided letters in the language notifying the Parent of meeting times, however failed to provide any meaningful information in her native language. Specifically, the reasons why her son continued to be classified as , or the definitions of or in her native language would prove much more vital than when to appear for a meeting. Had these IEPs or evaluations been provided in the Parent’s native language, she could have advocated more effectively on her son’s behalf. The DOE’s actions herein at the very least hindered her from full participation in the decision-making process.

Parent’s counsel maintained that the IEPs created on June 19, 2014, October 27, 2014, and January 16, 2015 are facially inappropriate; allegedly they fail to provide meaningful and measurable short-term objectives, fail to provide appropriate support and services for the ’s needs, deficits, issues and

.

The Part 200 Regulations require that “[t]he IEP shall report the present levels of academic achievement and functional performance and indicate the individual needs of the student according to each of the four areas listed in section 200.1(ww)(3)(i) of this Part, including….how the student’s disability affects involvement and progress in the general educational curriculum[.]” 8 N.Y.C.R.R. § 200.4(d)(2)(i)(a). Goals and objectives must be meaningful and measurable. SRO 04-026; see also 34 C.F.R. Part 300, Appendix A, Notice of Interpretation; an appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services. SRO 93-12; SRO 93-9.

Parent’s counsel stated that is a student whose educational records are riddled with issues surrounding his and , and that the IEPs do not address his individual deficits. More particularly, that he goal that has remained on his IEP throughout the many IEPs is vague and convolute: “Through session discussions, exercises and the development of strategies [the Student] will be able to . He will also and .” Ex. 13, p. 4. This

goal was to be measured by teacher and counselor observations, reports and checklists a month with an criteria. Ex. 13, p. 4. Counsel argued that this goal is impossible to measure and implement and that without a clear understanding of when is , how will the goal be measured? Furthermore, are vague and not easily defined. Additionally, when the CSE finally added a goal it was stated to be too is complex and multi-layered leaving it to misinterpretation: In a year of strategies and given a program,

[the Student]

. Ex. 17, p. 7. Parent maintains that this goal seems to imply that the , without a clear measure of level. The

DOE failed to present any evidence of checklists or proof of implementing any of the convoluted goals that appear on the Student’s IEPs.

I agree with the Parent and find that the IEP prepared for failed to describe in detail the results of his most recent evaluations, as well as an accurate and consistent description of his strengths, then-present levels of , as well as the concerns of the Parent regarding his educational needs. 20 U.S.C. § 1414(d)(1)(A); 34 C.F.R. §300.324.

In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation, the student's strengths, the concerns of the parents for enhancing the education of their child, the needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments, as well as any special factors as set forth in federal and State regulations. 34 CFR 300.324(a); 8 NYCRR 200.4(d)(2).

I agree that that the goals are vague, outdated and fail to address all of the areas in which ’s disability impacts upon his ability to progress; the IEP fails to adequately detail his current skills, strengths and weaknesses.. The DOE’s failure to have updated evaluations that assessed his needs, to include information from the existing evaluations as well as feedback from the Parent and outside providers in the IEPs, rendered the IEP inadequate and demonstrates the DOE’s disregard for ’s needs.

Additionally, an IEP must include a written statement of measurable annual goals, including academic and functional goals tailored to the student’s needs that result from his or her disability, to enable the student to make progress. See 20 U.S.C. § 1414 (d)(1)

(a)(i)(ii); 34 CFR 300.320(a)(2)(i); 8 NYCRR 200.4(d)(2)(iii)). Each annual goal must include evaluative criteria, evaluation procedures, and schedules to be used to measure progress. 8 NYCRR 200.4(d)(2)(iii)(b); 20 U.S.C. § 1414(d)(1)(a)(i)(III); 34 CFR

300.320(a)(3).

I agree with Parent’s counsel that the IEP and the evidence failed to establish and or describe the ways in which the student’s needs would be addressed by the CSE’s recommendations including the needs as outlined as well as the needs as described by the representative from his current school The IEP fails to address how the recommended program in IEP would address the student’s needs.

The ways in which the student’s needs would be addressed must be included in the IEP in the CSE’s services and recommendations instead of relying on what might be offered in the recommended placement. R.E. held that courts and IHOs hearing claims may not consider services the district "would have" provided in determining whether the district offered FAPE. R.E. on behalf of J.E. v. New York City DOE, 694 F.3d 167, (2nd Cir. 2012). Furthermore, the DOE did not offer services and recommendations on the IEP sufficient to meet the student’s needs as noted above.

A “major consideration in deciding whether [equity] is satisfied is whether the parents have cooperated with the City throughout the process to ensure that their child receives a FAPE.” See N.R., on behalf of T.R., v. The Dept. of Educ. Of the City Sch.

Dist. Of the City of New York, 2009 WL 874061 (S.D.N.Y., March 2009). The Court looks at whether the parents obstructed the Department’s placement process or its ability to provide the student with a FAPE. See id. at 16. Both parties’ positions are considered.

See SRO Appeal No. 04-045.

Nothing in this case suggests that the parents ever acted inequitably. As they have met the Burlington factors, they have a right to tuition reimbursement. Mr. and Mrs. A v.

NYC Dept. of Educ., 09 CV 05097 (February 1, 2011).

“In the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement.” See SRO Decisions 05-030, 04-091, 04-049. The parents cooperated with the CSE throughout the process and never obstructed the CSE. Despite the parents’ detailing their concerns about the IEP and placement recommendations, the CSE never remedied the issues or gave the parent an opportunity to discuss an alternate program for , consequently, equity favors the parent.

The IEPs created on June 19, 2014, October 27, 2014, and January 16, 2015 are facially inappropriate. They fail to provide meaningful and measurable short-term objectives, fail to provide appropriate support and services for the Student’s needs, deficits, issues and .

The Part 200 Regulations require that “[t]he IEP shall report the present levels of academic achievement and functional performance and indicate the individual needs of the student according to each of the four areas listed in section 200.1(ww)(3)(i) of this Part, including….how the student’s disability affects involvement and progress in the general educational curriculum[.]” 8 N.Y.C.R.R. § 200.4(d)(2)(i)(a). Goals and objectives must be meaningful and measurable. SRO 04-026; see also 34 C.F.R. Part 300

An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services. SRO 93-12; SRO 93-9. is a student whose educational records are replete with issues surrounding his and , and the IEPs do not address those deficits. The goal that has remained on this Student’s IEP throughout the many IEPs is vague and unclear: “Through session

, and the development of strategies [the

Student] will be able to

. He will also and

.” Ex. 13, p. 4. This

goal was to be measured by teacher and counselor observations, reports and checklists a month with an criteria. Ex. 13, p. 4.

As per Parent’s counsel, this goal is impossible to measure and implement.

Without a clear understanding of when the is , how can the goal be measured?

.

goals are puzzling; in a year of strategies and given a program, [the Student]

. Ex. 17, p. 7. This goal seems to imply that is , without a clear measure of level. The

DOE failed to present any evidence of checklists or proof of implementing any of the convoluted goals that appear on the IEPs.

The DOE bears the burden of demonstrating the appropriateness of the program recommended by its CSE. Matter of Handicapped Child, 22 Ed. Dept. Rep. 487, SRO 92-

7; SRO 93-9. To meet its burden, the DOE must show that the recommended program is reasonably calculated to allow the child to receive educational benefits, and that the recommended program is the least restrictive environment for the child. Bd. of Ed.

Hendrick Hudson CSD v. Rowley, 458 U.S. 176 (1982); 34 C.F.R. § 300.550(b); 8 N.Y.C.R.R. § 200.6(a)(1). And see SRO 00-027. The Department failed to meet their burden of demonstrating the appropriateness of the program as recommended by its CSE at each meeting on June 19, 2014, October 27, 2014, and January 16, 2015.

The DOE failed to prepare an appropriate and .

means “the process of determining why a student that impede learning and how the student’s relates to the environment. The shall be developed consistent with the requirements in section 200.22(a) of this Part and shall include, but is not limited to,

.” 8 N.Y.C.R.R. § 200.1 A is “

.” 8 N.Y.C.R.R. §200.1( ). Under the

Commissioner’s Regulations, the CSE or CPSE shall consider the development of a for a student with a disability when:

8 N.Y.C.R.R. §200.22

The evidence clearly established that the Student’s required an and . The DOE failed in providing a that documented the . Ms. testified that she received trainings on “any processes that needs to be reinforced by the DOE. I don’t recall when we received the / trainings, though.” Tr. 96. She could only testify to general training on that consisted of modules and a Department presenter. Tr. 97. In the past five years, she has completed approximately or a year. Tr. 97. In this particular case, she did an informal observation of the Student during a portion of one classroom and the Student did not . Tr. 99-100 and 101.

Ms. testified that she did not do any or

. Tr. 103. testified that she reviewed the only and created for this Student during the past school years and the only in evidence. Ex. 11 and 12. Ms. testified that she had some serious concerns about the as the are not defined concretely so that they can be quantifiable so as to make them vague and open to subjectivity. Tr. 189. Ms.

explains that without clear and measurable data the functions of the Student’s can be misconstrued and the responses actually , such as . Tr. 191-192. Ms. testifies, “ ” Tr. 192. All of these records indicate that is ineffectual and poorly executed have not addressed the Student’s needs and therefore have denied him access to his education. The failure to provide an appropriate denied the Student a FAPE.

Additionally, the DOE failed to consider the classification of as an appropriate classification to address the Student’s inability to is defined in the Regulations as meaning “

”

N.Y.C.R.R.§ 200.1 (zz)( ). The educational records support that the Student suffers from and it is the school environment that exacerbates the disability. By never considering this proper classification, the CSE denied the Student access to appropriate placements. I agree that was improperly classified with an and has never been diagnosed with a .

The Parent testified that her son did not , and . Tr. 238-239. Additionally, the goals in the Student’s IEPs refer to , this was not a Student who

. means

.

The term includes . The term does not apply to students who are

.

N.Y.C.R.R §200.1(zz)( ). There is no evidence whatsoever that the Student has displayed any of these characteristics. It is clear from the Student’s educational records that his . He was able to . The many documented happened within setting and . His were a manifestation of his , not an . The continual classification over the Parent’s objection violated the Student’s right to a FAPE and prevented him from being placed in an appropriate program.

Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It may be awarded 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. Mrs. C. v. Wheaton, 916 F.2d 69

(2nd Cir. 1990). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).

While compensatory education is a remedy that is available to students who are no longer eligible for instruction, State Review Officers have upheld hearing officers awards of “additional services” to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. SRO 06-074.

1). I find that has been deprived of FAPE in numerous ways. His program and services were inadequate over the course of more than full school years and did not allow him to progress meaningfully. The DOE has failed to offer any proof of provision of the mandated services of - , , and . The

DOE failed to present any evidence of any related services or . There is only progress report in evidence and it contains information that the was only provided weekly , not the mandated weekly sessions. Ex. 27.

2). I find that the DOE should be ordered to provide additional services by means of a Related Service Authorization (RSA) letter to compensate for its failure to provide appropriate services and services for the past two full years. I award compensatory services to for the past years and services as follows:

times per week for for hours total. has never been provided with for and should be given make-up services as follows:

hours a week from the inception of his IEP in June of 2014, for a total of hours of service.

3). I order the DOE to provide a to conduct an appropriate and comprehensive utilizing concrete data, and subsequent , to be incorporated into and appended to the Student’s IEP.

4). I order the CSE to reconvene within 15 days from the date of this order with all mandated and appropriate members (including the Parents, special education teacher,

) to develop an IEP to incorporate meaningful and measurable annual goals and short-term objectives in all areas of need, based on recent assessments of the Student’s abilities and needs, specifically addressing his and to consider changing the student’s classification to to address the symptoms of his disability and .

5). I order that the CSE consider the evaluations and the individual needs for and that he be afforded placement to a non-public school with students of similar needs and abilities, and a placement and program that can meet the recommendations illustrated in the evaluation; specifically a school that can provide classes but provide him with appropriate support to address his and while allowing him to progress .

6). I order the CSE to defer the student’s case to the Central-Based Support Team to locate an appropriate placement where the can be educated with students of similar needs and abilities.

7). I order the DOE to provide to the Parent with copies of all evaluations and other documents on which it will rely during the above mentioned meeting of the Committee in the , and will do so at least five business days prior to the scheduled dates of such meetings.

Dated: July 29, 2015

GARY D. PETERS, ESQ.

Independent Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO RECORD

PARENT’S EVIDENCE

Exhibit Name of Document Date Pages

A. Demand for Due Process 3/24/15 12

B. - G Intentionally Omitted

H. Authorization to Attend 12/9/14 4

I. Prior Written Notice 10/29/14 7

J.- K Intentionally Omitted

L. Checklist 6/19/14 2

M. Intentionally Omitted

N. Letter to from Parent 5/19/14 1

O. Notice of Social History 3/25/14 1

P. Notice of Social History/ 3/25/14 1

Q.-R. Intentionally Omitted

S. Classroom Observation 1/14/15 2

T.- Y Intentionally Omitted

Z. Re-evaluation 4/18/14 26

AA. Intentionally Omitted

BB. Student Permanent Record 1/16/15 1

CC. Student Transcript 1/16/15 1

DD. Student Report Card 2014 /1 Qtr. 2

EE. Student Report Card 2013 /4th Qtr. 2

FF. Student Progress Report/Counseling undated 2

GG. Intentionally Omitted

HH. Student Attendance Report 2014-15 1/16/15 1

II Intentionally Omitted

DEPARTMENT’S EVIDENCE

1. Intentionally Omitted

2. Due Process Complaint 4/15/15 4

3. Request for Evaluation 3/11/14 1

4. Letter revoking Consent 4/25/24 1

5. Consent for Evaluation 6/2/14 1

6. Social History Evaluation 6/2/14 4

7. Independent Eval. 4/18/14 13

8. Notice of IEP Meeting 6/9/14 5

9. Classroom Observation 6/10/14 2

10. Evaluation 6/13/14 5

11. 6/19/14 8

12. 6/9/14 7

13. IEP 6/19/14 10

14. CBST Letter 8/28/14 1

15. Notice of Securement 9/11/14 2

16. Notice of IEP Meeting 10/24/14 5

17. IEP 10/27/14 13

18. Consent for initial Services 10/29/14 2

19. request for Re-evaluation 12/18/14 1

20. Consent for Evaluation 12/23/14 1

21. Social History Update 12/23/14 3

22. Teacher Report 12/22/14 3

23. Classroom Observation 1/14/15 2

24. Notice of IEP meeting 1/6/14 5

25. Update 1/16/15 3

26. IEP 1/16/15 13

27. progress Report 2/10/15 2

28. Teacher Reports March 2015 22

29. Notice of Amendment/Reconvene 4/16/15 5

30. CBST Memorandum 4/27/14 2

31. IEP Revision 4/29/15 13

32. Prior Notice of Written Recommendation 4/29/15 7

33. 1/20/15 41

34. Exam History 1/16/15 2

35. Report Card 2013-14 2

36. Report Card 2014-15 2