Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

______________________________________ In the Matter of the Due Process Hearing under Education Law 4404: XX, Parent of XX, a Child with a Disability,

Petitioner,

v. NYSED Case No.

XXXXXX Central School District,

Respondent. ______________________________________

Findings of Fact and Decision

Lana S. Flame, Esq. Impartial Hearing Officer

August 10, 2015 XX v. XXXXXX Central School District

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 8, 2015

XX, — Parents

XXXXXX, — Parents

XXXXXX, Attorney for the — Parents

XXXXXXXXXXXX, Director of Special Education — District

XXXXXX XXXXXX, Consultant Teacher — District

XXXXXX XXXXXX, — District

XXXXXX, Attorney for the — District

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 9, 2015

XX, — Parents

XXXXXX, — Parents

XXXXXXXXXXXX, Principal XXXXXXSchool — Student

XXXXXX XXXXXX, Teacher XXXXXXSchool — Student

XXXXXX, Attorney for the — Parents

XXXXXXXXXXXX, Director of Special Education — District

XXXXXX R. XXXXXX, Teacher’s Aide — District

XXXXXX XXXXXX, — District

XXXXXX, Attorney for the — District

Introduction

On or about September 16, 2014, the Parent of the student, through her attorney, requested an impartial hearing pursuant to the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. §§ 1400 et. seq. Joint Ex. J. On October 29, 2014, the Parent’s attorney submitted an Amended Complaint dated October 28, 2014. Joint Ex. M. The Parent alleged that the student was denied a free and appropriate public education (“FAPE”) for the 20142015 school year because the XXXXXX Central School District failed “to provide sufficient special education, related services, and supplementary aids and services to ensure the student will make progress in her general education curriculum and towards her IESP goals.” Id. The Parent alleged that the student’s Individualized Education Services Plan (”IESP”) failed to offer a FAPE because it reduced the student’s resource room services, ,

, and removed the student’s personal 1:1 aide. The Parent also claimed that the student was deprived of necessary services because of the District’s failure to implement her IESP in a timely manner and is entitled to compensatory services. Id.

Procedural History

Pre-hearing conferences were held on October 21, and October 22, 2014, and February 2, 2015. During the February 2, 2015, pre-hearing conference, the issues for the hearing were identified. The Parent alleged a denial of FAPE based on the District’s recommendations in the student’s September 9, 2014, IESP, and requested compensatory educational services.^[1] Tr. 5-6.

The Parent requested a pendency determination. The Parent and District agreed that there were no questions of fact, only law, to be addressed with respect to pendency, and asked to submit legal memoranda to argue their respective positions. IHO Exs. XV, XVI. Upon receipt of the parties’ papers, and a subsequent Stipulation of Facts (Joint Ex. AA), it appeared that there was a significant question of fact to be addressed, that is, whether the program and services the District claimed to be the student’s pendency were substantially similar to the student’s May 28, 2014 IESP recommendations developed by the XXXXXX Central School District (“XXXXXX”), the last IESP agreed to by the Parent with the then district of location. After the parties were informed that a pendency hearing would be required, the parties agreed that the student’s pendency was the program and services recommended by the XXXXXX IESP. IHO Ex. III; Joint Ex. BB. On or about February 6, 2015, the parties informed me that a settlement agreement had been executed. Joint Exs. V-15, Q. On or about February 10, 2015, the Parent informed me that the Parent was not withdrawing the hearing request because the Parent had a different understanding of the terms of the settlement agreement than that held by the District. IHO Ex. VI, Joint Ex. Q. On or about February 23, 2015, the District filed a Motion to Dismiss the Parent’s claims because of the executed agreement. Joint Ex. P. On or about March 5, 2015, I denied the District’s Motion to Dismiss. Joint Ex. V. On or about March 16, 2015, the District filed an Order to Show Cause in New York State Supreme Court, asking that the agreement be enforced. IHO Ex. XIII. On or about, April 20, 2015, the District’s Motion was denied. Joint Ex. Y.

A hearing was held on June 8 and 9, 2015.

Extensions of the Compliance Date

The parties jointly requested extensions of the compliance date and they were granted, pursuant to the regulations. See IHO Exs. XVII-XXIII. The current compliance date is August 12, 2015. The record was closed on July 27, 2015.

Stipulation to Facts

The parties stipulated to the following facts. Tr. 45 – 54.

1. The student is 9.1 years old and is classified with a . The student’s classification is not in dispute.

2. The student resides in the XXXXXX School District.

3. For 2013-2014, the student attended XXXXXX, a nonpublic school located in the XXXXXX

Central School District, hereinafter XXXXXX. For the 2013-2014 school year, the student received special education services pursuant to an Individualized Educational Services Plan, hereinafter IESP, developed by the XXXXXX Committee on Special Education, hereinafter CSE, on April 24, 2013 and May 28, 2014.

4. The April 24, 2013 IESP provided the following recommendations:

a. Effective June 6, 2013, the student was to receive once per week for 30 minutes and speech consult two days per month for 30 minutes.

b. Effective June 6, 2013 to June 21, 2013, the student was to receive indirect consultant teacher services in the area of English Language Arts (“ELA”) for 30 minutes once per week, daily resource room support for 30 minutes, and individual twice per week for 30 minutes.

c. Effective September 4, 2013, the student was to receive indirect consultant teacher services in the area of ELA one time per week for 30 minutes, daily resource room support for 45 minutes, and individual three days per week for

30 minutes.

d. The student also received for 30 minutes per week, consultation once per month for 30 minutes, and a personal aide to assist, “with transitions, sustaining attention to academic or non-preferred tasks, as well as support with academic tasks that pose a challenge” daily.

5. The April 24, 2013, IESP provided the following program modifications and accommodations on a daily basis starting June 6, 2013: Wait time (seven to eight seconds between prompts); flexible transition between classes; special seating arrangements; directions repeated and clarified; clearly defined routine (visual schedule); academic breaks; curricula content organized in smaller parts; and modification of assignments. On an as-needed basis, the student received an alternate work location if the student appears to be distracted.

6. The XXXXXX CSE also met and developed an IESP for the student for the 2013-2014 and 2014 -2015 school years on May 28, 2014.

7. The May 28, 2014, IESP provided the following recommendations:

a. Effective September 4, 2013, to June 24, 2014, the student was to receive indirect consultant teacher services in English once a week for 30 minutes, resource room to work on ELA and math skills five times per week for 45 minutes, individual once a week for a 30 minute session, consult twice per month for 30 minutes, indirect group two days per month for 30 minutes per session, and individual for three days per week for 30 minutes per session on a pull-out basis.

b. Effective September 3, 2014, to May 28, 2015, the student was to receive indirect consultant teacher services in English twice a week for 30 minutes per session, resource room in math five times per week for 30 minutes per session, resource room in ELA five times per week for 45minute sessions, individual three times per week for 30 minutes sessions on a pull-out basis, individual two times per week for 30 minute sessions on a pushin basis, and individual once a week for 30 minutes per session.

8. Effective July 2nd, 2014, the May 28th, 2014 IESP provided the following supplementary aides and services, program modifications, or accommodations. a. The student had a personal aide daily to assist her with sustaining attention to academic or non-preferred tasks, as well as support with academic tasks that pose a challenge, and a consultation once a month for 30 minutes per session. b. The following program modifications and accommodations were provided on a daily basis: Wait time (seven to eight seconds between prompts); special seating arrangements; directions repeated and clarified; academic breaks; curricula content organized in smaller chunks; and modification of assignments. c. On an as-needed basis, the student received an alternate work location if the student appeared to be distracted. d. The student was provided with an hour-long monthly meeting for the parent to review progress toward the IEP goals. e. Twice a month for 30 minutes per session the special education teacher was to meet with the general education teacher to provide strategies that benefit the student.

9. The May 28th, 2014 IESP also recommended a 12-month program for the student, which included individual to be provided by XXXXXXonce per week for 60 minutes at the child's home from July 2nd, 2014, to August 30th, 2014. The IESP specified that there would be six sessions given over six weeks.

10. The XXXXXXclosed the XXXXXX School on or about June 24th, 2014.

11. The parent enrolled the student at XXXXXXSchool. The student has been attending the XXXXXXSchool since September 4th, 2014. She is in the second grade.

12. The parent submitted special education paperwork regarding the student to the XXXXXX Central School District, hereinafter XXXXXX, in May 2014.

13 XXXXXX convened a Committee on Special Education on September 9th, 2014 to review the student's IESP.

14. XXXXXX CSE recommended a 12:1:1 self-contained program for the student contingent upon the student's attendance at the public school

15. The parent stated her desire to continue the student's placement in the private school. Accordingly, the District recommended an IESP.

16. The IESP was developed on September 9th, 2014, by the XXXXXX CSE. It indicates that the student's placement is at XXXXXX, a non-approved, in-state, parochial school, and it included the following recommendations: a. Effective September 10th, 2014, the student would receive three times weekly for 30 minutes on a pull-out basis. b. Effective September 10th, 2014, to June 24th, 2015, the student would receive resource room program four times weekly for 45 minutes per session, direct consultant teacher services in math one time weekly for 45 minutes, direct consultant teacher services in ELA one time weekly for 45 minutes, and one time weekly for 30 minutes.

17. The September 9th, 2014 IESP also recommended the following supplementary aids and services, program modifications, and accommodations: Wait time (seven to eight seconds between prompts); special seating arrangements; directions repeated and clarified; academic breaks; preferential seating; curricula content organized in smaller chunks; and modification of assignments. On an as-needed basis, the student received an alternate work location if the student appeared to be distracted.

18. On behalf of the student, school personnel were recommended to receive a consult once a month for 30 minutes per session, consultations once a week (for an undesignated amount of time), and a parent meeting twice a month.

19. The student was not recommended for a 12-month program.

20. The student's classroom at XXXXXXSchool has a teacher and classroom aide.

21. Among the services that the district did not continue from the prior school year was the provision of a one-on-one aide.

22. The Parents disagreed with the discontinuance of the one-on-one aide and contended that the personal aide was necessary to receive FAPE at the XXXXXXSchool.

23. The District, notwithstanding the parents' disagreement, concluded the one-to-one aide was not necessary or appropriate.

24. Based on their objections to the District IESP, the Parent submitted a due process complaint by letter dated September 12th, 2014, which was received by XXXXXX on September 16th, 2014.

Additionally, the parties stipulated that the student has been diagnosed with

. Tr. 243.

Findings of Fact

The participants of the September 9, 2014, CSE meeting included Ms. XXXXXX as chairperson, the parents, the school psychologist, a special education teacher from the District who it was anticipated would provide the student with services, a , and the XXXXXXschool principal. Tr. 80, 108-110. Only the parents and the principal knew the student. Tr. 110. None of the District personnel who participated had ever met the student, observed her, or conducted an evaluation of her. Tr. 110.

The District received only the student’s XXXXXX IESP upon her transfer to the District. Tr. 63-64. The student was evaluated by the XXXXXX School District on June 1, 2012. Joint Ex. G, BB. The District requested the evaluations from the XXXXXX and XXXXXX School Districts, but never received copies. Tr. 107-108. Prior to conducting the September 9, 2014, CSE review, the CSE did not conduct any evaluations of the student. Tr. 107-108. At the time, the District did not feel that evaluative data, beyond that which was summarized in the XXXXXX May 28, 2014 IESP, was necessary in order to make a recommendation for the student. The thinking was that once the student settled in and was observed, the District might conduct some evaluations. Tr. 130.

The XXXXXX IESP indicated that the student’s Full Scale IQ on the Wechsler Preschool and Primary Scale of Intelligence III was a standard score of , or . Joint Ex. BB-1, Tr. 67-68. The student’s June 1, 2012, Expressive One-Word Picture Vocabulary Test- 3rd Edition, standard score was .^[2] The student was noted as capable of 1-2 word spontaneous utterances, consisting mostly of nouns. Joint Ex. BB-2, 3. Receptively, the student could follow simple verbal directions including some spatial concepts. Id. The student’s articulation was

.” Id. Pragmatically, the student used verbal and non-verbal language to request items, request assistance, negate, protest, label, ask and answer questions and comments. Joint Ex. BB-2-3, Tr. 71. The student’s “speech intelligibility is . It is challenging for staff members as well as peers to decipher [the student’s] wants needs and ideas.” Joint Ex. BB-5. The student was noted as generally refusing to speak to adults with whom she is not presently working or to ask questions of an adult when prompted by another adult to do so. Joint Ex. BB-3.

Academically, the student was reading at the level and was noted as having progressed over the course of the year. Joint Ex. BB-4. In math, the student was capable of completing simple addition and subtraction with the use of a number line. Joint Ex. BB-4. The student had mastered ordering numbers 1-15. Id. Her math skills were at a or . Tr. 145, Ex. G.

The student was noted as needing “support with sustaining attention to task.” Joint Ex. BB-5. The student can neglect to focus on the task at hand, but was found easy to redirect. Joint Ex. BB-6.

The IESP noted that the student “is social with her peers and willingly participates in the activities.” Joint Ex. BB-4. The student was observed to play “well during free time and loves to interact with her classmates.” Joint Ex. BB-5. The student “needs to improve her communication skills,” but bonded well with her class. Joint Ex. BB-5, 6.

The student was noted as needing to improve fine motor, visual motor, and visual perceptual skills. Joint Ex. BB-6. Over the 2013-2014 school year she was observed to show some improvement in appropriate letter formation, pencil grasp, and cutting. Id.

The student was noted as requiring the support of a personal aide “with attention to task and breaking assignments into small manageable parts.” Joint Ex. BB-6.

Based on the student’s present levels of performance as stated in the XXXXXX IESP, Ms. XXXXXX believed that the student would "best" be serviced in a small student-teacher ratio classroom environment. Tr. 71. Ms. XXXXXX was concerned that with respect to instruction, the services and the amount of pull-outs that the student was getting would compromise her time within the classroom. Tr. 76.

The CSE discussed what services the District would provide if the student were placed in district. The student was “ and . The concern was that would she be able to keep up with her peers within the classroom environment given her delays.” Tr.

69. The CSE recommended the 1:12:1 placement because it thought that it was “the least restrictive environment that we felt that she could be successful academically and socially.” Tr. 82.

The Parent did not want the student to be in the recommended 12:1:1 because the Parent felt that the student does well in a general education environment. Academically, the student is motivated to try to do the same work as the other children. Tr. 485-486. Socially the student is included in all of the activities. Id. The Parent felt that the student’s non-disabled peers model proper behavior and that the student tries to model their behavior. Tr. 506.

At the time of the CSE review, the team was aware that XXXXXXwould have greater enrollment than usual since a number of schools had closed. In September, there was no provision for the part-time classroom aide who currently serves in the classroom. Tr. 152. There was just one classroom teacher. Id.

Since the parents wanted the student to remain in the private parochial school, the District developed the IESP to “provide the amount of services comparable to what we could provide in school.” Tr. 84, Joint Ex. G. Because the District had concerns about how much time the student would be pulled out of the classroom for support and the parents’ main reason for wanting the student in the general education setting was the opportunity for socialization with typically developing peers, the CSE recommended a combination of direct consultant teacher services for the student as a push-in service in the classroom and related services as pull-out services. Tr. 84-86, 88, 89, 94-95. While the classroom instruction was taking place, the Direct Consultant teacher would provide the student instructional support, modifying the lesson, and making sure that she understood what was being presented to her. Tr. 87

In order to address the student’s needs with respect to transitions and attention issues, the CSE recommended a behavioral consultant for the staff, once per month for 30 minutes. Joint Ex. G – 13, Tr. 91. In an effort to decrease the student's distractibility, the CSE recommended breaking down the student’s assignments into manageable chunks and preferential seating, near the teacher. Tr. 92; Joint Ex. G-12. In the event the student was losing focus and needed a break, the CSE also provided for the student to leave the classroom “to take a short walk, go get a drink, run an errand for the teacher.” Tr. 92-93.

In order to reduce the student’s frustration level, testing was recommended to be completed over multiple days. The class material was to be modified by either the consultant teacher and/or resource room teacher. Tr. 93, 96, 125, Joint Ex. G.

The CSE discussed the need for the student to have a 1:1 aide. At the CSE the Parent and District discussed what the aide previously had done. In the CSE chairperson’s view, the Parent made clear at the meeting that the Parent wanted an aide for the purpose of repeating learned facts to the student, “someone teaching her as she goes alongside of the gen. ed. Teacher.” Tr.

116. The CSE position is that those duties are appropriately fulfilled by a consultant teacher, not an aide. The District was concerned about a personal aide performing any academic support. Id. The CSE chairperson understood the Parent as stating that during the 2013-2014 school year, the personal aide provided this type of service to the student pursuant to the XXXXXX IESP. Tr. 87. The District understood that the aide previously provided the student with some direct instruction. Tr. 148. The Parent did tell the CSE that the student needed an aide to keep the student on task, provide her with needed breaks, and to keep her focused. Tr. 516.

The CSE chairperson told the Parents that the student does not meet the requirements of an aide and that the CSE would not recommend one. Tr. 513. The CSE chairperson explained that the CSE “did not have anything substantiating a medical or behavioral need.” Tr. 90. According to the student’s profile, the CSE chairperson did not think that the student fit the requirements for either medical or behavioral needs justifying a personal aide. Tr. 114, 116. The student had needs that the CSE chairperson described as “established, but those needs were felt best serviced in a different setting.” Tr. 114. The chairperson explained that the setting was in the “recommendation as a special class student.” Id. In her view, “[p]utting an aide on a student is extremely restrictive in the eyes of the State.” Tr. 115. The school psychologist suggested conducting a functional behavior assessment ("FBA") to learn whether an aide would be warranted. Tr. 512-513, 116-117. The CSE did not recommend an FBA, but did include a consultant on the IESP to explore the behavioral issues raised at the CSE meeting by the Parent. Tr. 117, 512-513. To date, an FBA has not been completed. Tr. 483.

The District’s IESP includes the student’s “Present Levels of Performance” verbatim from the May 28, 2014, XXXXXX IESP. Cf. Joint Ex. BB, pp. 2-6 with Joint Ex. G, pp. 3-7. The District’s IESP contains the same “Management Needs,” verbatim, as the May 28, 2014, XXXXXX IESP, including: “[The Student] requires the support of a personal aide with attention to task and breaking assignments into small manageable parts.” Cf. Joint Ex. BB -6 with Joint Ex. G-7. The District’s IESP contains the same ten goals, as the May 28, 2014, XXXXXX IESP. Cf. Joint Ex. BB, pp. 8-9 with Joint Ex. G-pp. 8-10. The District’s IESP contains the same “Supplementary Aids and Services/Program Modifications/Accommodations" as the May 28, 2014, XXXXXX IESP, with the exception of the aide. Cf. Joint Ex. BB, pp. 10-12 with Joint Ex. G, pp. 10-12.

In terms of the recommendations, in addition to removing the aide, the District eliminated indirect consultant teacher services and provided 1.50 hours of direct consultant teacher services. The District reduced the student’s resource room services from 6.25 hours to 3 hours, and did not differentiate between the focus on math or ELA services. The District reduced the student’s services by eliminating the two 30 minute sessions of 1:1 push-in and added a consultant for school staff for an unspecified amount of time per week. Joint Ex. BB; Stipulation Paragraph 18, supra p. 7. The CSE informed the Parent that the IESP would be in effect for 30 days after which the CSE would reconvene. The CSE did not reconvene. Tr. 501.

At XXXXXX, the student is in a class of approximately 24 students with one teacher, Ms. XXXXXX, and an aide, Ms. XX, who is in the classroom only in the mornings. Tr. 264, 316-317, 458. Ms. XXXXXX has a BA in special education. Tr. 426. The aide walks around the classroom and helps to supervise the work that the students are doing at their desks or in small groups. Tr. 458. In the beginning of the school year, when the student did not have a personal aide, the classroom aide sometimes would sit with the student and help her work while Ms. XXXXXX walked around to the other students. Tr. 459.

The student had a difficult start to the school year, academically, and at times, behaviorally. Tr.

384. At the beginning of the year, the student did not have the resource room teacher, provider, or a personal aide. Tr. 384-385. In the fall, the student was not doing the work unless someone was at her desk with her. Tr. 459. At times, the student started doing activities that were not the same as what the class was doing such as getting up from her desk and looking at an unrelated book. Id.

The student began to receive the services of a personal aide in December 2014. Since then, the student has had three personal aides assigned to her. The first aide, Ms. XXXXXX, had difficulty working with the student. Tr. 391. In an email dated January 7, 2015, Ms. XXXXXX wrote that that she could not continue with the placement because of the student’s ongoing and increasing behavioral issues. District Ex. 1, Tr. 102-103. Ms. XXXXXX wrote that based on her observations, she believed that the student required working with someone “who has specialized training in working with students.” District Ex. 1. Ms. XXXXXX was not given specific training to work with the student, but had previously worked in the District with students with behaviors, discussed the student with Ms. XXXXXX, and reviewed the student’s IEP. Tr. 119-120. A second aide, Mrs. XXXXXX, was hired as promptly as possible and stayed until almost the end of February. Tr. 104. With Ms. XXXXXX, the student was having success and doing much better. Tr. 392. Ms. XXXXXX left because of prior work commitments. Tr. 105. About one week later, the District hired XXXXXX XXXXXX as the student’s aide. Tr. 105.

Ms. XXXXXX was the 1:1 aide for the student from the end of February 2015, to the time of the hearing. She primarily redirects the student and tries to keep the student on task. Tr. 263, 299. Ms. XXXXXX accompanies the student from class to class, reads directions and also repeats instruction as needed by the student. Tr. 263-264, 270. The aide does not assist the student complete the tasks or provide instructional support. Tr. 270 271. The aide may reword a question in an effort to help the student understand what is being asked, which sometimes is helpful. Tr. 271. The aide sits with the student for all of her services, as well, except for . Tr. 267.

With Ms. XXXXXX, the student becomes frustrated if the material is difficult for her, at least on a daily basis, and “starts to shut down.” Tr. 271-272, 275. The student will begin to look around the room, and is easily distracted. Tr. 271-272, 297. The student also may push the aide away, throw her pencil on the ground or flick the paper or book in use. Tr. 203, 272. The student’s behaviors can escalate to the extent that she may drop to the floor and crawl away under the tables, in the hallways during transitions, or under bathroom stalls. Tr. 202, 205, 280-82; District Exs. 9 - 10, 17. At lunch, the student exhibits behaviors during bathroom breaks. Tr. 292-293; District Ex. 9 - 23. The aide now accompanies the student to gym because when the student was unaccompanied she went under the bleachers and the gym teacher was unable to get her out. Tr. 293-294; District Ex. 9-29.

In Ms. XXXXXX’s opinion, her services as an aide have not been effective. Tr. 299. Ms. XXXXXX received an orientation with respect to who the student was and what her responsibilities were, but no one spoke to her about the student’s behaviors or what strategies to use to address them. Tr. 305-306. Since starting, Ms. XXXXXX has asked for advice from Ms. XXXXXX, the consultant, and Ms. XXXXXX. Ms. XXXXXX was advised to stay close to the student to keep her safe, and the decision was made to stop taking walks as breaks when the student was frustrated because the student would run. Tr. 307. The aide has had no formal training in managing the behavior of students with . Tr. 304.

The student’s teacher believes that “when things are put in place for her, [the student] is certainly able to work…and function in our classroom and learn.” Tr. 440-441. The student does modified assignments. The length of the assignment might be reduced as much as by 50%. Tr. 441. The teacher works with the student, 1:1, on a regular basis. Tr. 443. The resource room teacher works with the student on the classroom assignments, as modified. Tr. 455. Ms. XXXXXX XXXXXX is the student’s resource room teacher as well as the consultant teacher, who provides indirect services. Using the Reading A-Z program, the student was able to progress from a to a Tr. 175-178. Although gradual and slow, the move up one level represented progress in the student’s reading skills. Tr. 181-183, Joint Ex. W. In writing, the student had greater difficulty, but demonstrated some progress over the year. With repetition and a lot of prompting, the student progressed from producing only a few words to working with longer sentences. Tr. 193-194. In spelling, the student progressed from generating the first few letters of a word to spelling five words on a modified list she was given. Tr. 196. Recently the student progressed to a seven word list. Id. In math, Ms. XXXXXX works with the student on the same work as the class. Tr. 196. The student is unable to complete the classwork independently. Tr. 196-197. The student is given fewer questions, fewer choices of answers, many picture examples and rewording of questions. Tr. 197. The student learned the class unit on coin identification, but she did not learn how to count coins. Tr. 227. The student can count to 20, but does not know her math facts. Tr. 198. The student was unable to learn at the rate of her peers. Tr. 197.

The student’s willingness to work changes daily. Ms. XXXXXX keeps rewards to give the student throughout the session to keep the student motivated. The student frequently is distracted and needs redirection. On occasion, Ms. XXXXXX will push-in the classroom when there is not a good space available for pull-out resource room services. The student is “not very reluctant to the assistance in the classroom.” Tr. 185-186. While Ms. XXXXXX provides instruction to the student, the aide is present. Tr. 184-185. Usually Ms. XXXXXX likes for the aide to sit back. At times, when the student is not complying with Ms. XXXXXX’s requests or getting her work done, the aide will sit in close proximity to the student which prompts the student to sit up and do her work. Tr. 225.

Ms. XXXXXX views the classroom environment as beneficial to the student, although at times the student gets overwhelmed or overstimulated. Tr. 211, 202. “The student is working on the goals that are set in place for her, but they are modified at her level….” Tr. 213. The student is making progress commensurate with her ability. Tr. 211-212. The student is with her peers and is able to function independently at her level. Tr. 213-222.

The student’s behaviors such as refusing to do work, and sitting under the table, have been pervasive and fairly consistent from the time Ms. XXXXXX began to work with the student. Tr.

314. The student’s behaviors are more significant when she works with Ms. XXXXXX, in a smaller setting. Tr. 319-320. With Ms. XXXXXX, the student will “kick out the chairs, and she’ll run around the room….” Tr. 326. In contrast, in the smaller setting of , the student is very cooperative. Tr. 327. The student is less demonstrative and appears to manage her frustration more around her classmates. Tr. 320. Still, during English Language Arts in the general education classroom, the student does not want to sit still and read along with the other students. She closes her book, plays with the pages, plays with her clothes, throws her pencil to the floor, and pushes away the aide’s hand. Tr. 323-324, 325-326. Since the student has had a personal aide, the behaviors that the student manifests when frustrated have decreased, not stopped. Tr. 386, 409, 415-416, 460-461; see Dist. Ex. 9.

The student gets along with her peers, and she is well-liked by them. Tr. 313, 427. The student’s peers “are a strong influence on her, on her learning and her behavior….” Tr. 427. She wants to be part of the group. Id. The classroom is a nurturing environment for her. Tr.

313. The students in the class are very kind to the student. The student will initiate speaking to her peers using utterances of very few words. Tr. 206. The student tries to listen to her peers and interact with them. Generally, the students care for the student, but when she engages in maladaptive behaviors, her peers move away from her. Tr. 274, 295-296.

Ms. XXXXXX XXXXXX is the student’s New York State certified . Tr.

333. Ms. XXXXXX began to work with the student at the end of October 2014. Tr. 335. Initially, Ms. XXXXXX read the student’s IEP, met with the student, did an informal assessment, and felt that she had a fairly good understanding of the student’s speech abilities. Tr. 336. The student’s delays are estimated to be “ ,” that is, “ for her age.” Tr. 348, 353-354.

Ms. XXXXXX believed that the student must have regressed during the months at the beginning of the school year when she did not receive her mandated services. Tr. 363. Ms. XXXXXX could not say whether the student recouped whatever she had lost during those initial months because she only first was exposed to the student’s levels when they met in October. Ms. XXXXXX explained, though, that without a “consistent drill of her language skills, I would assume that she would have lost something….” Tr. 363. Ms. XXXXXX was unable to say whether the student would be any further ahead now if the student had received the two months of services that she missed. Tr. 364-365. Although Ms. XXXXXX believes that the student would be more delayed having missed the two months of therapy, she also believed that she was able to get the student to where she would have been had she had those two months because the student “is a , in need of constant repetition, plus what we’re working on is extremely difficult for her.” Ms. XXXXXX added: Would I have gotten further? Maybe—maybe, but I can’t make that call, because kids are slow paced. Speech is a slow-paced kind of learning.” Tr. 365-366.

Ms. XXXXXX opined that if the student were to receive the services that she missed, added to the services that she is getting, “it would be beneficial because it would be more drill…,” but if it were provided by someone new who had to learn how to work with the student, “it may not be of any service. You know, it may be that you’re spending a lot more time…on behavior issues or getting her to engage.” Tr. 366. Ms. XXXXXX’s “basic opinion” is “if we missed therapy, give her the therapy. It’s not going to hurt her. It’s only going to help her.” Tr. 366. The student would have benefitted from getting the additional drilling and repetition earlier in the school year. Tr. 367.

XXXXXX XXXXXX has been the student’s since October 2014. Tr. 244. Ms. XXXXXX performed an assessment of the student’s abilities when she initially began to work with the student. Tr. 235. Ms. XXXXXX had the student write the alphabet, cut a number of shapes and draw a picture of herself. Id. Ms. XXXXXX was looking for the student’s accuracy in performing these tasks. Tr. 235. The student was performing . Tr. 236. The student’s needs included handwriting, scissor skills, visual motor skills, and fine motor skills. Tr. 238. The student was compliant with the tasks asked of her. The aide was not needed in order for the student to perform any tasks. Tr. 242. The student responded well to positive reinforcement. Tr. 238, 244. The student did not have significant improvement writing letters; the student still had letter reversals. Id. The student made some gains with scissor skills in that she became able to cut straight up and stop. The student made progress with snaps and zippers. Tr. 240-241. The student’s progress in her sessions has been commensurate with her abilities. Tr. 245-46.

Mid-year, the student’s teachers and providers implemented the use of a communication book with the parents. District Ex. 9; Tr. 276-278, 398, 408. The teachers and providers, as well as the parents, include what has transpired with the student each day. The communication journal has entries describing numerous incidents of the student’s maladaptive behaviors, including taking and refusing to return a student’s lunchbox, hitting other students, hitting the aide, throwing books on the floor, and dropping on the floor and refusing to move. Tr. 464-467; Dist. Ex. 9. The journal also includes entries from the Parent describing the death of a pet or grandparent, both important relationships to the student, that coincided with some of the student’s maladaptive behaviors. Dist. Ex. 9; Tr. 488-492.

The student has a behavior chart that she fills in every day for the activities that she completes. The student must have all stars in order to receive a reward. Tr. 400. The student checks in with the principal during the day about her behavior and is rewarded for her positive behavior. Tr. 206, 429. At first, it was difficult to get all staff to implement the plan consistently. In the few months prior to the hearing, implementation became more consistent. Tr. 208. The communication book includes entries that describe negative behaviors yet in the behavior charts indicate positive student behavior for those dates. Dist. Ex. 9. The communication book is the extent to which XXXXXXhas a behavior plan in place for the student. Tr. 429. Discussion and Conclusions of Law

The only issues to be determined are whether the IESP developed on September 9, 2014, offered the student a FAPE, and if not, is the student entitled to any compensatory services. The question of whether the District’s recommendation of a 12:1:1 special class would have provided the student with a FAPE, is not before me. The District never formalized an IEP with a 12:1:1 recommendation. See Joint Ex. G; See also, footnote 1, supra. Although the Parent argued in closing that the program recommended by the XXXXXX Central School District, May 28, 2014, IESP provided by XXXXXX to the student as her pendency program and placement provided an appropriate education, that issue also is not before me. Similarly, the question of whether the student requires a personal aide in order to receive an appropriate education in a general education setting is not before me.

Mootness

As a preliminary matter, contrary to the argument raised by the District in closing, the issues raised in the Parent’s due process complaint are not moot. The parent’s claims for compensatory education and whatever equitable relief the impartial hearing officer deems appropriate, hinge first on a determination of whether or not the District provided a FAPE, and are not moot. A decision on the merits of whether the District provided FAPE in the IESP developed by its CSE on September 9, 2014, also potentially impacts on the recommendations for the student’s upcoming school year. See, e.g., New York City Department of Education v. V.S. and D.S., 10-CV-05120 (S.D.N.Y. July 29, 2011).

Additionally, the harm alleged by the Parent, is within the "capable of repetition, yet evading review" exception to the mootness doctrine. See U.S. v. Quattrone, 402 F.3d 304, 309 (2d Cir. 2005); Bd. Of Educ. Of the Pawling Central Sch. Dist. v. Schutz, 290 F.3d 476, at 479 n.1 (2d Cir.

2002) (describing an IDEA action challenging an administrative decision ordering reimbursement to be "a classic instance of harm 'capable of repetition yet evading review.'"). The narrow "capable [*6] of repetition" exception applies when "(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again." In re Zarnel, 619 F.3d 156, 163 (2d Cir. 2010) (citation omitted).

Both conditions are satisfied in this case. "IEP disputes likely satisfy the first factor [of the capable of repetition test] for avoiding mootness dismissals," Lillbask ex rel. Mauclaire v. State of Connecticut Dept. of Educ., 397 F.3d 77, 85 (2d Cir. 2005), since administrative and judicial review of an IEP is "ponderous" and a final judicial decision on the merits of an IEP will often come at least one year after the subject school year has passed. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 369 (2d Cir. 2006) (citation omitted). The "reasonable expectation" of repetition necessary to bring this action within the mootness exception also is satisfied. Lillbask, 397 F.3d at 86. The ongoing pecuniary interest of the school district based on the IDEA'S stay-put provision and the prospect of continuing litigation over the student's placement likely will continue to be at issue. Even where the Court found that Parents had been reimbursed by the school district for a unilateral private placement under pendency, the Court found that the parents’ claims fell squarely within the exception to the mootness doctrine because the alleged deficiencies in the IEP could easily arise the following year. New York City Department of Educ. v. S.A. and J.A., 12 Civ. 1108 (DLC) (S.D.N.Y. December 4, 2012). In such cases, as here, the case is not moot "because the alleged deficiencies in the IEP [are] capable of repetition as to the parties before it yet evading review." Bd. of Educ of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 186 n.9, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1985).

Applicable Legal Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, 458 U.S. 176, 206-07 [1982].

To determine whether a school district provided an appropriate education as required under IDEA, courts examine: 1) whether the school district complied with the procedural requirements of the IDEA; and, 2) whether the educational plan developed by the school was “reasonably calculated to confer education benefits to the child. Rowley, 458 U.S. 176, 206-07 (1982) ; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]. The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415[f][3][E][i]. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189. A school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide 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). 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 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2D 384, 388 [S.D.N.Y. 2009].

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029.

New York State Education Law § 3602-c gives parents of students with disabilities the right and ability to select a nonpublic school willing to enroll their child, and places the burden of developing and providing appropriate special education programming upon the school district in which such school is located. The school district must develop an appropriate program for the student in the environment in which the student will receive her education (i.e. – the nonpublic school). Section 3602 (c) explicitly states that a school district of location’s CSE “shall develop an [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP].” Education Law § 3602-c (2)(b)(1). “The committee on special education shall assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” Id.

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y.S. Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010].

12:1:1 program The District argued that it offered the student a FAPE in its recommendation of a 12:1:1 placement, as well as in the IESP developed on September 9, 2014. Although the District proposed the 12:1:1 program in the belief that it appropriately met the student's needs in the least restrictive environment, the mere fact that that the CSE explained its position to the Parent, that a 12:1:1 program within the District was appropriate to meet the student’s needs, does not elevate that discussion to a CSE formal recommendation. As required by Education Law 3602-c, once the parent opted to place the student in a private school willing to accept the student, the District developed the September 9, 2014, IESP, and can defend its recommendation only on that basis. The District is tasked with the burden of demonstrating the appropriateness of its recommendation. Education Law § 4404(1)(c).

The September 9, 2014, IESP

The District IESP did not offer the student a FAPE because it reduced the student's overall services without providing an adequate amount of services, it reduced the number of hours of individual instruction the student would receive whether from resource room or direct consultation from a total of 6.25 to 4.50 hours without providing for appropriate individual instruction, and it did not provide for sufficient adult support in a general education setting of 24 students and one teacher given the student’s acknowledged academic delays, delays, behavioral issues, and attention deficits. See Joint Exs. G, BB; see Tr. 384, 459. Moreover the student was noted to be a flight risk. Tr. 91; see Tr. 307. Given the student’s significant needs and the size of the general education class, the classroom teacher could not provide the student with the attention or support the student needed in order to receive a FAPE. Tr. 459. Even with the assistance of the part-time classroom aide, who started sometime after the start of the school year and who assisted the teacher with the entire class only for a half day, there was not enough support for the student. Tr. 152. The District did not demonstrate how its recommendations would sufficiently address the student’s significant needs nor did it adequately justify the changes it made to the student’s previous IESP. The District’s IESP was not reasonably calculated to allow the student to make meaningful progress. Rowley.

The District did not provide the student with sufficient adult support or services in order for her to derive meaningful educational benefit from her educational placement. The District acknowledged that at the time of the September 9, 2014, CSE meeting, the student's behavioral needs were "established" and best served in a special class with a small student to teacher ratio. Tr. 114. Once the District was required by Section 3602-c of the Education Law to develop an appropriate program in the private school chosen by the Parent and willing to accept the student, the student's needs had to be addressed appropriately in a general education class of approximately 24 students with one teacher, the placement known by the CSE to be the student's placement at the time of the CSE meeting. It defies reason that a student whose behavioral needs would best be served in a 12:1:1 class, with the attention, focus and transition issues attributed to the student, could derive meaningful educational benefit in such a large class, with one teacher and a once monthly 30 minute consult for staff. Joint Ex. G; Tr. 91, 117, 152, 264, 316-317, 458. Even with the assistance of the classroom aide who began subsequent to the CSE meeting and works only a half day, the student would not and did not receive appropriate support in the classroom. Tr. 152, 384-385,

459. As found, at the beginning of the year, the student often was off task. Tr. 384-385, 459. The CSE adopted wholesale the student's present levels of performance, management needs and goals from the student's May 28, 2014, IESP, including: “[The Student] requires the support of a personal aide with attention to task and breaking assignments into small manageable parts.” Cf. Joint Ex. BB -6 with Joint Ex. G-7. Yet the CSE eliminated the personal aide and offered only the once monthly 30 minute consult for staff without demonstrating how the student would maintain focus and attention in order to learn with the student to teacher ratio of the placement. Joint Ex. G. Moreover, the student who was noted by the District to be a flight risk (Tr. 91) was not provided with sufficient adult staffing or services for the recommendation “to take a short walk, go get a drink, run an errand for the teacher” or to leave the classroom in the event the student was losing focus and needed a break. Tr. 92-93; see Joint Ex. G. The student's tendency to run was corroborated by the current personal aide. Tr. 307. In the absence of an FBA, or other current evaluation that appropriately considered the students behavioral needs, the District was unable to develop and did not provide the student with a FAPE because its IESP was not "reasonably calculated to confer education benefits to the child." Rowley, at 206-07.

The District argues that the record evidence unequivocally demonstrates that the student made “gradual progress” in all areas (Joint Ex. W), and thereby establishes that the IESP the District offered, similar to the XXXXXX IESP but for the personal aide, provided FAPE. However, the student received the program and services of the XXXXXX IESP, not the XXXXXX IESP, and there are substantial differences in the IESP the District offered and the program that was implemented. Under the implemented May 28, 2014, IESP, the student received the services of a personal aide, 1.75 hours more individual instruction through resource room than the hours provided by the District through resource room or direct consultation services combined, and more services in the form of two 30 minute push-in sessions. Cf. Joint Ex. BB with Joint Ex. G. The student's gradual progress made with the provision of the May 28, 2014, IESP in no way corroborates the appropriateness of the District's September 9, 2014, IESP. What was corroborated, is that the student made gradual progress commensurate with her abilities with the substantially different supports and services of the implemented IESP. Tr. 460-461.

The District explained that it removed only a small amount of the student’s speech services in order to limit the amount of time the student was out of the classroom, a concern shared by the District and the Parents. Tr. 88-89. However, the District eliminated only the two 30 minute weekly push-in services that the student previously was receiving. Joint Ex. BB, G. The justification offered is unfounded since those services were to be delivered in the classroom where the student would be with her non-disabled peers, as desired, practicing the skills she needs. Given the student’s pragmatic language skills the reduction was not justified. Ms. XXXXXX, the student’s noted that the student has great difficulty learning the skills she needs, was in need of constant repetition, and is a slow learner. While the District provided consultation for school personnel once a week for an unspecified amount of time per week, the increased skill the staff might gain to assist the student is not an adequate substitute for the direct push-in service that the student was receiving. Ms. XXXXXX also suggested the need for a communication device, for which the District never tested the student. Tr. 359, 361.

The retrospective evidence about how the student performed during the 2014-2015 school year is relevant and material to the extent that it corroborates what the CSE knew at the time it developed the student’s IESP. The CSE was aware that the student had progressed in a general education environment with the supports of the 2013-2014 XXXXXX IESP, including the personal aide, and that the XXXXXX CSE developed the 2014-2015 IESP, increasing and resource room services, with the input of individuals who had worked with or knew the student. The student’s performance and progress over the course of the 2014-2015 school year corroborated that the services of the 2014-2015 XXXXXX IESP enabled the student to access her education in the least restrictive environment. The XXXXXX IESP did not provide appropriate services or supports. Accordingly, the District denied the student a FAPE for the 2014-2015 school year.

Compensatory Education

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. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]. Likewise, SROs have awarded compensatory "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. Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of a Student with a Disability, Appeal No. 09-111 [adding summer reading instruction to an additional services award]; Application of the Bd. of Educ., Appeal No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; Application of a Student with a Disability, Appeal No. 09-044 [awarding "make-up" counseling services to remedy the deprivation of such services]; Application of a Student with a Disability, Appeal No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; Application of a Student with a Disability, Appeal No. 08-072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE].

The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE. See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]. S.A. v. New York City Dep't of Educ., 2014 WL 1311761, at *7 [E.D.N.Y. Mar. 30. 2014] [noting that compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted].

It is undisputed that the student was entitled to receive services and did not receive any services at the start of the school year until at least the beginning of October. Tr. 335, 224. The record does not firmly establish when the student began to receive resource room, , or . Tr. 244, 335. The student did not begin to receive the services of the personal aide until December 2014. Given the student's delays, slow rate of learning, her previously established need for a 12 month program to minimize regression, and her need for constant repetition, the student should receive all of the resource room and related services that she missed up until the date of the filing of the Amended Complaint because of the District's denial of FAPE.

Since the student did not have the benefit of the classroom aide until December or indirect consultant teacher services, she unlikely derived any meaningful educational benefit from the classroom (Tr. 384-385) and is entitled to all of the hours of resource room that she was recommended to receive under the May 28, 2014 IESP, in the form of individual tutoring, from the September 2014 start date of school until the filing of the Amended Complaint.

Additionally, the student is entitled to all of the missed sessions of and individual that she was recommended to receive under the May 28, 2014 IESP, from the September 2014 start date of school until the filing of the Amended Complaint. In order to determine the amount of services to which the student is entitled, the parties shall jointly conduct an audit of the and sessions provided by the District to the student from the first day of school in September 2014 to October 29, 2014. The service hours that were provided during this time frame shall be deducted from the number of hours that the student should have received under the May 28, 2014, IESP. The balance of the hours over what the student received shall be provided to the student as compensatory educational services. The Parent and service providers will be best able to determine how to schedule the additional services for the student taking into account the student's ability to attend and the shared concern to keep the student in the classroom as much as possible. If desired by the Parent, the services can be provided outside of the school day hours.

ORDER

1. The District did not provide the student with a FAPE for the 2014-2015 school year.

2. The District shall evaluate the student in all suspected areas of disability, including whether the student needs an assistive communication device, within 21 calendar days of the date of this order.

3. The District shall conduct a Functional Behavior Analysis and develop a Behavior Intervention Plan within 21 calendar days of this order.

4. The CSE shall convene prior to the fall session of the 2015-2016 school year to make an appropriate recommendation for the student for the 2015-2016 school year, taking into account the evaluations conducted pursuant to paragraphs two and three of this order.

5. Since the student's placement or program did not change, the student's placement and program remain that provided in the May 28, 2014, IESP until the District changes the student's placement with an appropriate IEP or IESP, or the parties otherwise agree.

6. The student is entitled to compensatory education services for the District's denial of a FAPE from the start of school in September 2014, to the date of the filing of the Amended Due Process Complaint, October 29, 2014. The amount of individual tutoring in math and English Language Arts, , and shall be determined by a joint audit conducted by the parties consistent with this decision. The Parent and service providers shall determine the scheduling of the services for the student, during or outside of school hours. The student shall receive the services prior to September 2016. ______/s/______________________ Date: August 10, 2015 Lana S. Flame, Esq. Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the XXX 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.” (8 NYCRR 279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions for filing an appeal and forms can be found on the Office of State Review website: www.sro.nysed.gov/appeals.htm. Documents Entered into Evidence on June 8, 2015

Joint Exhibits

A Birth certificate, June 9th, 2006 one page

B Student's IEP, April 24th, 2013, 13 pages

C Immunization report from XXX Pediatrics, May 8th, 2013, two pages

D XXXXXX Central School District student registration form May 20th, 2014, three pages

E Letter to the parents from XXXXXXXXXXXX, meeting notice for CSE August 11th, 2014, two pages

F CSE meeting minutes, September 9th, 2014, one page

G IEP, September 9th, 2014, 15 pages

H Prior Written Notice, September 15th, 2014, two pages

I Letter from XXXXXXXXXXXX to the parents, September 15th, 2014, one page

J Impartial hearing request from XXX to XXXXXX Central School District, 09/12/14 3 pp.

K E-mail from XXXXXX to XXXXXX, September 25th, 2014, one page

L E-mail fromXXXXXX to XXXXXX, October 16th, 2014, one page

M Letter, P. XXXXXX to L. Flame and R.XXXXXX, Amended Due Process Complaint, 10/29/14, 4 pp.

N District's response, XXXXXX toXXXXXX and Impartial Hearing Officer Flame, November 4th, 2014, two pages

O Letter from XXXXXX to Lana Flame, February 12th, 2015, three pages

P District's Notice of Motion, Affirmation of XXXXXX, and Memorandum of Law, February 23rd, 2015, 38 pages

Q E-mails betweenXXXXXX and XXXXXX, February 9th, 2015 to February 10th, 2015, two pages

R Letter from XXXXXX to Impartial Hearing Officer Lana Flame, February 10th, 2015, 12 pages

S Memorandum of Law in response to the District's Motion to Dismiss, February 27th, 2015, five pages T Letter from XXXXXX toXXXXXX, March 4th, 2015, two pages

U Letter, XXXXXX to IHO Flame, March 4th, 2015, five pages

V Order on District's Motion to Dismiss and exhibits, March 5th, 2015, 17 pages W Student Progress Report, XXXXX BOCES, 5/27/2015, 5 pp.

X Schedules for XXXXXXMarch 5th, 2015, two pages

Y Order for index number 2015-00052, April 20th, 2015, two pages

Z Letter from , to Whom it May Concern, July 25th, 2014, one page

AA Stipulation, November 14th, 2014,4 pp.

BB XXXXXX Central School District IEP, May 28th, 2014, 16 pages

CC Report card, for September 3rd, 2014 to December 5th, 2014, December 5th, 2014, one page

District Exhibits

1 E-mail to XXXXXXXXXXXX from Kim XXXXXX, 1/7/15, pp. 2 Benchmark C lesson, undated, 11 pages 3 Journal entries, 5/24/15 and 5/26/15, two pages 4 Journal entry, 3/10, one page

6 Student work, single sheet, double-sided, 3/23/15, 2 pp. Documents Entered into Evidence on June 9, 2015 District Exhibits

9 Communication Log, 2/28/15-5/27/15, 97 pages Impartial Hearing Officer Exhibits IHO Ex. I – Pre-hearing Conference Memoranda, 10/21/14, 10/22/14 – 2 pp. (Joint Ex. V at 9,10) IHO Ex. II – Email IHO Flame to AttorneysXXXXXX and XXXXXX, 11/13/14, 11/16/14 - 2 pp. (Joint Ex. V at 11,12) IHO Ex. III – Email from R.XXXXXX to IHO Flame, P. XXXXXX, 11/26/14 – 1 p. (Joint Ex. V-13) IHO Ex. IV – Notice of Scheduled Pre-hearing Conference, 1/30/15 – 1 p. (Joint Ex. V-14) IHO Ex. V – Email from IHO Flame to AttorneysXXXXXX and XXXXXX, 2/6/15 – 1 p. (Joint Ex. V15) IHO Ex. VI – Email from P. XXXXXX to IHO Flame, 2/10/15 – 1 p. (Joint Ex. V-16) IHO Ex. VII – Email from P. XXXXXX to R.XXXXXX and IHO Flame, 3/4/15 – 1 p. (Joint Ex. V-17) IHO Ex. VIII – Letter from R.XXXXXX to J.XXXXXX , 9/18/14 – 3 pp. IHO Ex. IX – Letter from R.XXXXXX to P. XXXXXX, 10/30/14 – 3 pp. IHO Ex. X – Notice of Scheduled Pre-Hearing Conference, (undated) – 1 p. IHO Ex. XI – Pre-hearing Conference Memorandum, 2/10/15 – 1 p. IHO Ex. XII – P. XXXXXX Affidavit in Response District’s Motion to Dismiss, 2/27/15 – 3 pp. (plus exhibits) IHO Ex. XIII –District Cover Letter re Order to Show Cause, Verified Petition, Order to Show Cause, Memorandum of Law and Affirmation, 3/16/15 – 3/18/15 – 36pp. (plus attached exhibits) IHO Ex. XIV – Cover letter and Affirmation of IHO Flame, 3/22/15, 3/23/15 – 10pp. IHO Ex. XV – Cover letter and District’s Pendency Memorandum, 11/7/14, 11pp. IHO Ex. XVI – Letter from P. XXXXXX re Pendency, 11/7/14 – 3pp. IHO Ex. XVII – Order to Extend Compliance Date, 12/19/14 – 1p. IHO Ex. XVIII – Order to Extend Compliance Date, 2/27/15 – 2pp. IHO Ex. XIX – Order to Extend Compliance Date, 3/13/15 – 1 p. IHO Ex. XX – Order to Extend Compliance Date, 4/13/15 – 1p. IHO Ex. XXI– Order to Extend Compliance Date, 5/18/15 – 1p.

Documents Entered into Evidence on July 24, 2015

Impartial Hearing Officer Exhibits

IHO Ex. XXII – Order to Extend Compliance Date, 6/15/15 – 1 p. IHO Ex. XXIII – Order to Extend Compliance Date, 7/14/15 - 1 p. IHO Ex. XXIV – Parent’s Redacted Verified Answer and Affirmative Defenses to District’s Order to Show Cause, 3/24/15, 49pp. (with Exhibits) IHO Ex. XXV – District’s Closing Memorandum, July 10, 2015, 35 pp. (with cover letter and attachments) IHO Ex. XXVI – Parent’s Closing Memorandum of Law, July 10, 2015, 16 pp. IHO Ex. XXVII – IHO Flame email to parties re District’s argument on Mootness – July 14, 2015, 1 p. IHO Ex. XXVIII – Parent’s Supplemental Memorandum of Law, July 17, 2015, 3 pp.

Footnotes

[1] It was established during the pre-hearing conference that the District initially recommended a 12:1:1 placement in the public school, but once the Parents chose to enroll the student in a private parochial school the District “changed its recommendations to an IESP and made its recommendations…in accordance with the parents' decision….” Tr. 8-9.

[2] The Parent does not think that the score is an accurate reflection of the student’s ability because the test administered was a verbal test, and at the time of the testing the student was not verbal. Tr. 478.