Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: July 3, 2013

August 7, 2013

February 26, 2014

March 17, 2014

March 24, 2014

June 23, 2014

July 23, 2014

July 31, 2014

August 14, 2014

September 10, 2014

September 18, 2014

October 27, 2014

Actual Record Closed Date: January 16, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 3, 2013

ESQ. Attorney

(Via Telephone)

ESQ. Attorney — DOE

(Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 7, 2013

Attorney — Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 26, 2014

Attorney — Parents

Attorney — DOE

Mother — Parents

School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 17, 2014

Attorney — Parents

Attorney — DOE

Mother — Parents

School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 24, 2014

Attorney — Parents

Attorney — DOE

Mother — Parents

School Psychologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 23, 2014

Attorney — Parents

Attorney — DOE

Teacher/ — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 23, 2014

Attorney — Parents

Attorney — DOE

Dr. — Parents

Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 31, 2014

Attorney — Parents

Attorney — DOE

Mother — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 14, 2014

Attorney — Parents

Attorney — DOE

Ass’t. Tech. Evaluator — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 10, 2014

Attorney — Parents

Attorney — DOE

Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 18, 2014

Attorney — Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 27, 2014

Attorney — Parents

Attorney — DOE

PROCEDURAL HISTORY

The Parent filed a Due Process Complaint (“DPC”) on June 26, 2013. (IHO Ex. I).

A pendency hearing was held on July 3, 2013, at which time the parties agreed and I ordered (IHO Ex. II), that the child hereinafter referred as would receive the following services, based upon the prior Impartial Hearing Order Case# , dated February 10, 2012 :

(a) tuition for ’s attendance at the ;

(b) ( , ) via an RSA;

(c) ( , ) via an RSA;

(d) ( , ) via an RSA;

(e) ( , ) via an RSA;

(f) a in school;

(g) a school year; and

(h) special education transportation

The DOE submitted a Motion to Dismiss alleging that ’s case was not “ripe for adjudication” because she was not a student (IHO Ex. III). The DOE maintained that the DPC did not allege that the DOE’s failure to recommend a program constituted a “ ” in the proposed IEP and that the case should not be litigated as if were a student.

On August 22, 2013 the CSE conducted an IEP meeting wherein it was decided to reconvene at a future date in order to obtain updated reports and information.

Tr. 115. The IEP team had “already considered deferring the case back to CBST”, however required additional information and progress reports before doing so. Tr. 114,

115.

On August 23, 2013, I denied the DOE’s Motion to Dismiss and permitted the Parent to amend the DPC to (a) clarify that the Parent was seeking a school year and (b) address any issues that may have arisen as a result of the new IEP

meeting(s).

The IEP team reconvened on September 4, 2013 and recommended that attend a non-public program on a basis. Ex. 1. However, despite the fact that was attending the via pendency, the team declined to specify the school on ’s IEP, and deferred her case back to the CBST. Tr. 162-63. The IEP was not “finalized” and team reconvened on November 14, 2013 and recommended the on ’s IEP. The Parent alleges that she was never given a copy of the “draft” IEP that was created at the September IEP meeting and that aside from adding placement on the November IEP, there were no differences between the September and November IEP’s.

An Amended DPC was filed on January 9, 2014. Ex. C, wherein the Parent reiterated her objections and allegations regarding the May 2013 IEP meeting, clarified her position that required a school year, and challenged the IEPs that were created in September and November of 2013.

BACKGROUND

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

THE DOE’s POSITION

That the IEP developed was tailored to meet the student’s educational needs and that they provided a FAPE. Alternatively, the DOE submits that the equities do not favor the parent and that the relief requested be denied.

THE PARENT’S POSITION

The Parents maintain that the DOE failed, procedurally and substantively, to offer a free and appropriate public education (“FAPE”) for the 2013-2014 school year.

THE DEPARTMENT’S CASE

On May 2, 2013 the CSE convened and developed an IEP for The team was composed of , Special Education Teacher and District Representative; , school psychologist; , Director at the ; , the Student’s teachers at the , , the Student’s at the ; and , a Parent member.

DOE Exh. 2-12. The Parent was notified of the meeting by mail on April 18, 2014. DOE Exh. 9-14 and concededly did not attend this meeting Tr. 701. The CSE left a phone message regarding the IEP meeting scheduled for April 29, 2013 and called the parent at all phone numbers which were provided. Tr. 718-719. The IEP team recommended a in a for a month school year with related services of , , and - . DOE Exh. 2-7. The Parent was sent two Final Notices of Recommendation (FNR) on August 9 and August 15, 2013 for placement in a public school. DOE Exhs. 5 & 6.

The Parent filed a due process complaint on June 26, 2013 procedural and substantive violations of FAPE. Parent Exh. A. The parties agreed to pendency for the for related services through RSA’s and placement at The , where she was attending.

On July 22, 2013, the DOE notified the Parent of a reconvene of the IEP team on August 5, 2013. DOE Exhs. 9-10 & 10-7. The Parent was unable to attend and there was an agreement to reconvene on August 22, 2014. DOE Exhs. 9-5, 9-9 & 10-6. The Parent attended this meeting. Tr. 114-115. At the meeting, the team considered deferring the case to CBST so that would remain at The . The team required additional information regarding ’s related services to develop an IEP and the meeting was adjourned. DOE Exhs. 8, 10-5 & 10-6; Tr.114-115.

On September 4, 2013, the CSE reconvened and confirmed receipt of ’s related services reports and updated materials from the . Tr. 116-124; DOE Exhs. 6-1 to 6-3 & 10-5. The attendees at the meeting were as follows: the Parent, School Psychologist and District Representative Dr. , special education teacher , the Student’s summer school teacher Ms. and Ms.

. DOE Exh. 1-14; Tr. 131-134. Allegedly, the Parent objected to the presence of the Student’s , Ms. , despite her knowledge of Tr. 134-

135. The team agreed to defer the case to the CBST with the belief the Student would remain at The , as well as recommending (“ ”) and weekly, weekly (“ ”) and weekly (“ ”). DOE Exh. 6-3 & 10-5; Tr. 136-143. The team declined to continue the recommendation for a , did not recommend the use of any ; the Parent stated she would provide the Student’s vision

(VT). DOE Exh. 6-3 & 10-5; Tr. 144-148. The Parent disagreed with removal of the . DOE Exh 6-3; Tr. 147 and the matter was deferred to the CBST to secure placement. Tr. 162-163.

On September 18, 2013, the CBST confirmed placement at the for DOE Exh. 10-3; Parent Exh. M. The DOE asserts the earliest date the Parent could agree to meet was November 14, 2013, and the Parent made no objection to the meeting not being scheduled earlier. Tr. 163-164; DOE Exh. 9-1& 10-3.and the IEP was completed. In attendance were the Parent, Dr. , , as well as and classroom teacher Ms. . Tr. 164-165;

DOE Exh. 1-15. The team reviewed the independent educational evaluation (“IEE”)

obtained by the Parent discussed the program recommendation and considered the Parent’s opinions regarding programming. Tr. 166-167, 192 & 197-198; DOE Exh. 6-5.

The Parent disagreed with the program recommendation. DOE Exh. 6-5; Tr. 170. The

IEP was finalized and recommended a non public school (NPS) and the services agreed to on September 4, 2014. DOE Exh. 1; Tr. 208.

The Parent filed an amended DPC on January 7, 2014 alleging procedural and substantive violations of FAPE, specifically: an untimely IEP; impermissible policies; denial of parental participation; failure to consider proper documentation; failure to recommend , related services through RSA’s, , and , as well as failure to recommend sufficient related services; inappropriate goals; inaccurate description of the Student in the IEP; and that there was an improperly constituted IEP team. The Parent also alleges the DOE failed to provide the Parent her rights, provide

Prior Written Notice, and that there has been a violation of Section 504 of the Rehabilitation Act. Parent Exh. C.

The Parent agreed that the was appropriate for and seeks the following: , increased related services, and reimbursement for the Student’s , and - evaluations, ,

, in . Id.

The DOE maintained that educational planning for was timely; the CSE met and developed an IEP on May 2, 2013 and sent the Parent an FNR for placement for the 2013- 2014 school year The Parent was notified of this meeting by mail and reminded via phone. DOE Exhs. 9-14, 10-8 & 10-9 Parent Exh. C9, No. 76.; Tr. 701. The Parent admitted that her phone numbers had not changed during this time period Tr. 767. The notice of meeting and SESIS log confirms numerous attempts by mail and phone to secure the Parent’s attendance, and failure of the Parent to participate. The DOE claims that the “notice issue” is not a violation of parental participation or FAPE.

In November 2013 the DOE changed its recommendation for the to remain at the for a school year. Mr. opined that the only issues remaining are the recommendations of the November 2013 IEP.

Dr. testified, the Parent’s input was considered at the September 2013 meeting as well as her perspective for decision-making. Tr. 135-136, 201, 213-214, 232-

233 & 296. There was discussions regarding the Parent’s disagreements, including the termination of the ; the majority of the team disagreed with her on this issue. Tr. 147-149.

At the reconvene, the team considered the Parent’s input and concerns, including reviewing the evaluation and discussed the issue of the . 163-164, 166-167, 170 & 352-353. Additionally, it is claimed that the CSE reviewed the Parent’s due process rights. Tr. 166-167. Dr. stated that all team members collaboratively worked to develop the IEP. Tr. 204 .

The DOE’s counsel maintained that the Parent contradicted herself or could not remember numerous facts at the CSE meeting or the dates that the meetings occurred. For example, she testified that the DOE never reviewed the related service reports with her, but she could not recall to which meeting she brought the reports. She testified that she never said they were not reviewed, and then stated that they were reviewed with her, and then on redirect again claimed they were not reviewed with her. Tr. 724-729, 741-744 &

770. She claimed the CSE never reviewed the evaluation with her at the November 2013meeting; then stated that she could not recall for sure whether they did or not and then once again on redirect claimed they did not. Tr. 745-747 & 770.

Additionally, she initially claimed she never received an FNR for a public school when confronted with the document she admitted that did. Tr. 703 & 751-753. She testified that the goals were never reviewed with her at the November 2013 meeting, and admitted on cross examination, that they had already been reviewed with her at the September meeting. Tr. 713 & 749-750. Mr. maintained that the Parent testified that her attorney contacted the DOE’s Implementation Unit regarding lack of a provider over the summer of 2013-2014 and there was no result; noteworthy, her attorney was provided with a list of new providers to contact and requested that if no provider was found to advise the DOE so one could be secured; the Parent and her attorney failed to do until months later after the Parent’s testimonyTr.770-771; Parent Exh. T.

Finally, the Parent received Dr. ’s evaluation in July or August 2013and provided it to the CSE prior to the September 4, 2013 meeting; on cross examination when confronted with the fact that the evaluation was dated September 3, 2013, she stated that what she previously had was perhaps not a completed version. Tr.

733-738. The Parent claimed that she brought the evaluation to the September 4, 2013 meeting because it was emailed to her on the previous day. Mr. maintained that it is unlikely and that Dr. ’s testimony that they were not given the evaluation until

November-which was corroborated by the minutes Tr. 166-167, 192 & 197-198; DOE Exh. 6-5. , the CSE , corroborated Dr. ’s version in SESIS on August 22, 2013, noting the Parent said the report had not been completed. DOE Exh. 10-6.

Dr. testified regarding Parental participation afforded to the Parent and that the meeting minutes and SESIS events log confirm her testimony. Mr. opined that employees confirm the DOE’s position: in her SESIS entry that stated the DOE left the Parent a message about the May meeting; stated that the May 2013 IEP meeting was agreed to be adjourned and that she called the Parent’s numbers on the day of the May IEP meeting, as well as that the August 2013 meeting was adjourned to get more related service reports; also stated that the meeting was adjourned to get related service reports for follow up in September; Dr. and Mr.

confirmed that the IEP team reviewed the related service reports at the follow up meeting and the meeting after that. Tr. 721-724, 724-729, 738, 745,

770, 775-777 & 789 and DOE Exhs. 10-5, 10-6, 10-8, 10-9, 6-5, & 8-2; Tr. 114-124, 135,

192, 197-198, 210, 333-334 & 345. Mr. stated that the Parent’s testimony is disingenuous regarding Dr. and the DOE team participants communicating with the members outside her presence prior to IEP meeting, which Dr. stated is completely untrue Tr. 229. Finally, Parent claims was denied by the DOE despite her request for it; wherein Dr. and SESIS minutes confirm is entirely untrue as the Parent said she was obtaining those services herself. Tr. 144, 296, 298-299 & 371-372;

DOE 10-5.

Mr. maintained that there is no “policy” regarding what services were offered the Student. Dr. testified as to why the DOE made its recommendations based upon on the team’s discussions considering all participants’ input (as opposed to policy considerations). Tr. 204-207. Dr. explained that the DOE’s recommendations were based on the ’s needs and that she was not even aware of any policies at the time of the IEP meeting that would inhibit her from recommending anything differently. Tr. 240,

270-271& 277. She testified that the DOE has no control over The ’s recommendations or decisions and agreed with their recommendations regarding the termination of the . Tr. 241, 273-276, 354-355, 367, 369-370, 376. The

DOE asserts that there is no basis to find that the DOE has engaged in impermissible policies that deprived this student of a FAPE.

Dr. testified that the information that was provided to her was more than sufficient to understand the Student’s needs, and that the team was updated on the Student’s performance by the Student’s teachers who were at the meeting, which also gave the CSE an appropriate understanding of the Student’s needs from the people who work with the Student daily and know her school-functioning best. Tr. 130, 133-136, 358

& 387; DOE Exh. 6.

Additionally, the DOE maintained that the evidence established that was last evaluated in 2012 (See DOE Exhs. 17 & 18), and was not due for re-evaluation by the DOE for the 2013-2014 school year The DOE asserts that the IEP team was properly composed with all the required participants mentioned supra. The DOE maintains that there is nothing in the IDEA, State Education Law or Commissioner’s regulations that requires the presence of related service providers other than noting they can attend “as appropriate”. Mr. stated that the team had the service provider’s reports and that Dr. testified that they were sufficient to provide the information they needed to determine the Student’s needs. Tr.

126-128, 140-143, 210, 212, 240-241 & 373-374. The Parent didn’t express a need for the presence of the related service providers. Tr. 374-375.

Dr. testified that she was under no constraints as to what she and CSE could recommend; most of the recommendations were at the behest of the school, though she agreed with the recommendations based on the information presented. Tr. 131, 202, 273-

277, 354-355 & 369-370.

The DOE maintained that the CSE made an appropriate recommendation for despite the termination of the . Dr. testified, the CSE deferred the Student’s case to CBST and ultimately recommended a because the Student required class and school and they wanted to maximize the Student progress beyond what could be offered in a public school. Tr. 136-140 & 145-

146 and nobody disagreed with this determination. Regarding the assigned the Student, while Dr. and special educator Mr. agreed with the termination recommendation; the staff deemed it unnecessary to recommend this related service because the had shown

. Tr. 147-148, 151, 354-355, 369-370, & 387. The team believed that the would be too restrictive, in that it could . Tr. 147-148, 246-247 & 289-290.

The Parent disagreed and relied upon the doctor ’s letters to justify the ; the team and professionals working with the felt that she had the ability to make progress with the supports of the special education teacher, classroom teacher’s aide and needs utilized by all staff working with her. Tr. 148-189, 225, 285-286 & 382-384. The DOE maintained that while the CSE considered the doctor’s letters, they deferred to the people who worked with the Student daily and not non-educators who only infrequently see the Student. Tr. 127-128,

234 & 385-386.

Mr. opined that Dr. established that it was a group decision to remove the and that the determination was not made on any one factor, but based on the available data and a number of factors, such as ’s progress,

.

Tr. 232-233, 227-228, 235-236, 248, 285-286, 379-382, 384-385, 389-390.

The DOE asserts that the testimony from the Student’s classroom teacher, Ms.

, corroborated the decision to remove the . Ms. initially could not state what the Student’s progress would have been without the , since she only had experience with the , but she could say the Student made progress when working with her. Tr. 429. Additionally, it was argued by the DOE that Ms. ’s testimony reinforces that she and her classroom were more than sufficient to meet the Student’s needs and make progress. She specifically stated that ’s progress in , , , and . Tr. 460, 464-465, 467, 469 & 476. She testified that the Student showed the ability to . Tr. 461, 477-478 & 497. Ms. stated the Student could ; she noted that on days the Student’s was absent, she was more than able to step in to adequately support Tr. 462 & 497-499. She testified the Student could receive the support of any of the staff in class for the , and that the Student was similar to other Students in the class who did not need . Tr. 458, 467, 469-470 & 475.

Regarding related services, Mr. conceded that requires the services of ,

, and and that they were recommended by the CSE. The DOE asserts that the Parent is not entitled to related services via RSA’s and that there is no legal or factual justification for such a claim. The issuance of RSA’s are procedural, not a substantive issue, and the IEP is meant to reflect what the Student’s needs are, not whether the school has the personnel or not to implement on site. Tr. 217-218, 223 & 377. Dr. testified, and Ms. corroborated her testimony, that the preferred the related services be provided at the school so as to integrate services and coordinate working on the Student’s skills. Tr. 149-151, 240-242, 376, 431 & 491. The Parent’s own related service witnesses admitted it would be useful to have that type of intervention in the school environment to coordinate with teachers and implement strategies to address student deficits. Tr. 629-630 & 899-901. Dr. noted such services can be provided during any of the Student’s . Tr. 248 & 251. Ms.

confirmed that all the students at The are receiving related services and the school has all the services recommended in the Student’s IEP. Tr. 431 & 488-489.

Mr. maintained that the Parent’s witnesses are not educators or school administrators with expertise to speak to educational effect, and admit they have never spoken to the school regarding their concerns about . Therefore there is no basis for believing the scheduling would affect academic class participation. Tr. 629-631,

873-874, 887-888 & 898-899. Moreover, the Student’s concedes students he works with in school do make progress, even if slower, and the Student’s admits the purpose for outside services would be maximization. Tr.

628-629 & 896-897.

Regarding and compensatory education, the DOE asserts that there is no basis for same. Dr. testified the team believed that with the supports provided the Student could make progress; that the Parent never requested such services. Tr. 151-

154. Although the evaluation recommended , the team believed the Student’s needs could and would be addressed in school. Tr. 168-170. Ms.

confirmed the Student made appropriate progress in numerous areas while at the , including substantial improvements in , and that while it could always be beneficial, she did not believe the Student required in order to make progress .

Tr. 412-420, 427-428 & 482-483. The Student’s mid-year progress report from the 2013- 2014 school year confirms this progress. DOE Exh. 24; Tr. 433.

Mr. asserts that the IEP was reasonably calculated for the Student to make progress without and made appropriate progress under the IEP. Notably,

Dr. and Ms. felt the Student was in fact very well-served and being given support with what was provided by the DOE. Tr. 138-140, 423.

The DOE argues that the Parent attempts to characterize the Student’s results on the common core testing or her grade level achievement as being relevant to the appropriateness of her progress. As Ms. explained has substantial disabilities and her progress, testing and achievement levels cannot be measured by the standards of typically developing peers. Tr. 424-427. Ms. opined that the student’s progress, considering her disability, was very appropriate. Tr. 420.

Finally, the DOE maintained that Dr. ’s testimony regarding to the Student’s needs, should not be afforded weight for the following reasons: he was advocating maximization of the Student’s services, since he acknowledges that made progress at The . Tr.606. He was testifying about the Student without an understanding of her as he never observed her in an educational setting. Furthermore, the CSE and Dr. communicated with ’s providers regarding their opinions on what was appropriate. Tr. 583-587, 593 & 603. Dr. does not know the curriculum, what differentiation of instruction is, and has never taught Tr. 587-588

& 590.

The DOE argued that the Student does not require in order to make appropriate progress and there is no evidence in the record that it is needed to confer FAPE. The

CSE’s determination not to recommend was supported by the evaluative material.

The DOE conducted an updated evaluation which found the Student was not previously been implemented, and the team discussed and relied upon that, which was the most updated information. Tr. 144-145; DOE Exh.

21; the Parent raised no objections to the termination of Tr. 375. Additionally, progressed without last year. Ms. , as discussed above, saw the Student making sufficient progress and testified that she did not see any reason for the use of . Tr. 495-

496.

The DOE asserts that is a , not , and therefore not required to be recommended on the IEP. She reiterated that is a ; the DOE addresses the ’s needs to the extent that they are educational through the said . Tr. 218-219

& 377-378. Mr. opined that the DOE is not obligated to address the Student’s and that there is no evidence in the record that cannot

; notably, the Parent didn’t request any such service of the DOE. Tr. 396-397 & 402.

Regarding , (“ ”) and

; the DOE maintained that they are entirely extraneous to a provision of FAPE and only serve the purpose of maximization, and should be precluded; nor is there a cause of action for reimbursement of the Parent’s evaluation. Dr. testified that the related services recommended for the were sufficient to meet her ,

, , and .

Tr. 140-143. She felt the Student could make appropriate progress with those services and was concerned that additional services would . Tr. 151-152. Mr.

noted that no one at the IEP meeting who believed the Student needed any other services and the Parent never made an issue of it. Tr. 153-154. When the team reviewed Dr.

’s evaluation, they read the recommendation but there was no evidence the Student’s needs could not be met by such as Tr. 168-170. Ms.

reiterated that made progress at The this year the Student without these additional services Tr. 418-420.

The team reviewed the Parent’s evaluation and was prepared to discuss offering this service, but the Parent stated she would provide that service herself. Tr. 129, 144, 296

& 298-299. Additionally, it was argued that the Parent should not be entitled to reimbursement for her evaluation.

The DOE maintained that a parent is entitled to one IEE at public expense each time the school district conducts an evaluation with which the parent disagrees. The Parent did not contest or disagree with any District evaluation prior to hearing; but rather just turned over her evaluation. DOE Exh. 2-1. To obtain an IEE, the DOE stated that a parent must both disagree with an evaluation and request independent evaluation to obtain reimbursement; the Parent did not allege same in the DPC or her testimony. Mr.

stated that the fact that the IEP team relied upon the evaluation has nothing to do with the issue of IEE’s and there is no basis for relief requested in this matter.

The DOE asserts that the IEP’s present performance sections (PLOP) and goals are appropriate and accurately and sufficiently describes the Student’s performance. Dr.

testified, without contradiction in the record, that the IEP’s PLOP accurately described the Student’s performance

, and was a result of the extensive discussion at the meeting of the Student’s performance and a reflection of the evaluative documentation submitted. Tr.

135-136, 153-155, 204-208 & 284. A comparison of the IEP and all of the reports and evaluations in the record confirm the PLOP is appropriate and sufficiently details as to the Student’s then-present performance. Com pare DOE Exhs. 1 & 11 to 21.

According to Mr. the Parent contests that the IEP does not include the results of Dr. ’s evaluation, which is true. However, as Dr explained, the evaluation’s results were largely consistent with the information the CSE already had and did not require updating the PLOP since the PLOP was accurate and commensurate with the results of the evaluation. Tr. 167-168 & 376.

Finally, the DOE asserts that the IEP goals are appropriate and address the Student’s specific , and even were that not the case; there is no substantive violation of FAPE or relevant remedy. There is nothing in the record contradicting the team’s reasonable determinations that these were appropriate goal.

THE PARENT’S CASE

is currently years old and began her year at The in 2011, a state-approved non-public school (“ ”). Tr. 649-50. She has been diagnosed with , including , , , and other issues; she is unable to symptoms due to the risk of . Tr. 653, 655 and 658. does not remember . Tr. 686. She is unable , and . Tr. 685. is , has and which prevents her from , including team sports and bike riding. Tr. 651-53, 654. She has difficulties

. Tr. 876-77.

is , but struggles with

. Tr.650- 651. She is

Tr. 665. She tries to

. Tr. 652.

Prior to 2011 attended in an (“ ”)

classroom. As per Parent’s counsel, she was not making progress and her related service mandates required her to miss class time. The DOE issued the RSA’s to enable her to and . Tr.680, 683-84. She began receiving , and after the RSAs were issued; she was unable to receive the service before then because the school did not employ a to provide services for said needs. Tr. 682. ’s . she began receiving the service, the Parent immediately noticed an improvement in ’s in this area.

For the 2011-2012 school year, the IEP team deferred ’s case to the DOE’s

“CBST” for a non-public school placement as she was not making progress in the class; however the DOE did not offer a placement. As a result an Impartial Hearing Decision, the DOE was directed to (a) fund ’s placement at the for the duration of the 2011-2012 ; (b) continue to provide the Parent with RSAs for ,

, , and so that could receive services after school; and (c) provide a for in the . Ex. B.

remained at the with the above-referenced services through the end of the 2011-2012 school year. For the 2012-2013 school year, the DOE stipulated to fund ’s placement at the and for the , , ,

, and services via RSAs.

In April 2013, the DOE notified the Parent of an IEP meeting/annual review to be held on May 2, 2013. Tr. 701. The Parent testified that she contacted the DOE’s representative to request that the meeting be rescheduled due to her employment schedule. She was informed that she could choose from two alternative dates and the DOE would accommodate one of them. Tr. 701-02. Despite being on notice that the Parent could not attend the meeting and after offering other options, the DOE conducted the meeting on the original date without Parent participation. Tr. 701; Ex. 2.

Parent’s counsel maintained that the “May 2013 IEP” was substantively and procedurally flawed and did not afford a FAPE. More particularly, the IEP team recommended a change to ’s placement (from a placement in non-public school to a placement in a public school), modified her related service mandates and conditions and terminated her . Ex. 2. Additionally, it is claimed that the DOE did not send the Parent a copy of the May 2013 IEP after the meeting.

In May 2013, was evaluated by Dr. , a with experience evaluating children and as a contractor for the DOE. Tr. 518-20 and was paid by the DOE, Ex. N. Dr. confirmed that has significant

See Ex. 20. was diagnosed

with “ ”

“ ”“

” – i.e. , and . Tr. 554; Ex. 20. Dr.

recommended that continued to require the support of a in the classroom as well as , support services, updated

/ and evaluations, and placement in a non-public school environment with a ratio. Ex. 20.

The DOE reconvened on September 4, 2013 and the IEP team recommended that attend a non-public program on a basis. Despite the fact that was attending the via pendency, the team declined to specify the school on ’s IEP, and deferred her case back to the CBST. Tr. 162-63. The IEP could not be

“finalized” and the team reconvened in November 2013 for the purpose of recommending the on s IEP. The Parent maintains that she was never given a copy of the “draft” IEP that was created during the September IEP meeting and that except for The placement be added to the November IEP, there were no differences between the IEP’s. Tr. 280-83.

An Amended DPC was filed on January 9, 2014. Ex. C, wherein the Parent reiterated her objections and allegations regarding the May 2013 IEP meeting, clarified her position that required a school year, and challenged the IEPs that were created in September 2013 and November 2013; the Parent requested various independent educational evaluations “IEE[s]” and reiterated her request in the Amended DPC.

With regard to the above referenced meetings, Dr. testified that she reviewed the Meeting Minutes (Ex. 7,8); the June 2013 and June 2012 Year-End Progress Reports from (Exs. 12 and 13, respectively), the August 2012 Psycho-educational evaluation (Ex. 17), the July 2012 Social History (Ex. 18), the May 2012 (Ex. 19), the DOE ’s , dated April 2013 and the May 2013 IEP & “draft” IEP from the August 22, 2013 Meeting. Tr. 118.

Dr. stated that she received ’s summer progress report from prior to the meeting (Ex. 11) and related service progress reports from January and February 2013 (Exs. 14, 15) on the day of the meeting. Tr. 122-24. Dr. testified that she did not have a copy of Dr. ’s report at the September 2013 meeting; however the Parent maintained that it was submitted to her predecessor on the IEP team in June 2013 (Ex. N).

Parent maintains that at the IEP meetings, Dr. was the “ ” and was unfamiliar with numerous aspects of ’s program, did not understand the nature of the services or any of her other related services and on a child's IEP. Tr. 214-19, 223-24, 229-38.

Regarding ’s , Dr. did not recognize the difference between and - . She defended the team’s failure to recommend by stating that she “ ” and maintained, without explanation, that it was sufficient to address ’s needs. Tr. 215, 217-8. She stated that could not be recommended on the IEP since the “ ” deficits. Tr. 218.

Ms. maintained that Ms. ’s position on this matter ignored the fact that . Furthermore, according to Dr. the only instances in which a would be requested were

. Tr.

231. Ms. maintained that Ms. ignored the fact that had been recommended for a in prior years without exhibiting any of those conditions. Further, she admitted that, on a general basis, the school is “not encouraged” to recommend a for students; she argued that the need for such supervision would have to be established “way before the IEP meeting” for the recommendation to even be considered. Tr. 230-1.She stated that she was not obligated or allowed to provide services to address students’ medical needs. Tr. 373.

Parent’s counsel asserts that the record is replete with evidence that, even in a small setting, that requires the assistance of a throughout the school day.

As stated above, Dr. ’s evaluation established that presented with and issues, which relate to

n. Tr. 543-44. ’s weaknesses in these areas help to explain why she has “ ” . Tr. 544-45. To complete these and other tasks, required

“ ” or else

. Tr. 545-47. Moreover, Dr. concluded that has , such that she “ ” when trying to , which leads her to

. Tr.551, 552.

Dr. opined that requires “ ” in order to

, she needs , and will have

. Tr. 559. He concluded that the classroom

setting was not sufficiently supportive, and that required her own in the classroom to consistently reinforce what is being taught. Tr.561-

63, 567. could make progress if she was provided with individual attention. Tr. 562-

64 and recommended that receive on a basis. Tr. 562-4, 568-70.

In a letter dated April 18, 2013, ’s , Dr. , stated that had deficits in which impair her ability

. Dr. opined that

“ ” Ex. K.

“

” “

” “ ”

“continue to receive ” on a with “ ” “

” “

” Ex. Q.

The progress reports indicate that continues to require a great deal of support in the classroom. As per Parent’s counsel, to the extent that the Reports or any other evidence indicates that made progress during the 2013-2014 school year, it cannot be ignored that such progress was made with the assistance of a . Additionally, ’s teacher, Ms.

, testified that she could not speak to what progress would or would not have made had she not been assigned the for the 2013-2014 school year Tr. 428. When asked whether ’s progress was dependent on the , Ms. stated that “ ” “ ” She could not opine as to whether or not continued to “ ” the as she could not predict what might happen if it were taken away; for the entire time had been in her class, she had been assisted by a . Tr. 429-30, 452.

In the June 2012 Progress Report, her teacher notes that “benefits from support to follow the directions of a written assignment.” Ex.13.4. In the February 2014

Report, her teacher noted that, benefits from assistance to .” Tr. 24.5. In benefits from

” Tr. 24.7

“

“benefits from assistance” Tr. 24.7; “ ” “

” of material. Tr. 24.8.

’s provider testified that, due to ’s

, she has

. Tr. 622-3; when was given

,” she was The witness recommended

that continue to receive “ ” and that these services should be provided to , so as to provide her with more attention. Tr. 623-4. Ms.

testified that, with the he has been providing , she has made progress in , particularly in her ability to

s. Tr. 625.

was evaluated by an independent AT consultant, Mr. , in 2012; he performed an in-depth evaluation, after reviewing various reports, observing at the , meeting with ’s teachers and speaking with her mother. Ex. F, Tr. 814-820. ’s teacher expressed concerns to Mr. about ’s “ ,” noting further that she could benefit from the use of certain . Tr,

816-17.

Almost one year after Mr. administered the evaluation, in April 2013, the DOE provided with a “trial.” Ex. F.10-11; Ex. 21. The

DOE failed to call any witnesses to explain what specific types of was trialed and the nature of any training that was done. Ex. 21. The “ ” conducted by the DOE - without consulting with Mr. concluded that should not receive any and failed to clarify the extent of the or any training effort. Ex. 21.

Ms. opined that one fatal flaw in the DOE’s AT “update” is that the evaluator made a decision regarding ’s needs based solely upon a comparison of how she was performing in her class at the in relation to the other children with IEP’s . Ex. 21-2. Yet, when compared to her typical peers and the general curriculum, the record is clear that is very . Second, the trial was extremely brief. Further, the “update” is a brief overview of the trial and does not include a record review or any assessment of such as the one conducted by Com pare Ex. F and 21. Moreover, the “update” shows that the DOE did not trial all of the initially recommended by Mr.

, particularly for and and offered no explanation for failing to do so.

Id. With respect to the DOE’s conclusion that she cannot benefit from for , the DOE wholly ignored the fact that Mr. initially recommended that be provided (Ex. F-8-9). As per Ms. , if a child does not yet have it would be difficult to benefit meaningfully from that requires such skill. Finally, the DOE failed to implement any of the at or to explain why this was not explored. Ex. 21.

At the IEP meeting, the DOE then ignored the recommendations in the comprehensive independent evaluation in favor of its follow-up “update.”

Ex. 21; Tr. 144-45. Dr. admitted to only considering the DOE report at the September IEP meeting. Tr. 117. She noted that was not her area of “expertise”; she made no effort to invite an expert to the IEP meeting or to consult with Mr. before determining that the DOE evaluator’s follow-up was conducted appropriately and yielded reliable results. Tr. 347-48. The Parent testified that was not discussed at the various IEP meetings. Tr. 708-9.

Overall, the DOE did not defend the “update” nor present any evidence that the IEP team(s) gave meaningful consideration to the question of whether or not should be provided with , or even had members that were qualified to make such determinations.

Mr. conducted a follow-up assessment in July 2014 to determine if his prior recommendations remained appropriate. Tr. 839. Thereafter, he decided that would still benefit from the following :

1. Use of a for school and

. Ex. F.8; Tr. 835-36.

2. web site called “

”

3. that

. Ex. F, Tr. 827-8.

4. for using in school. Ex. F-8.

5. Program (Ex. F, Tr. 828-9): In order to help use her , suggested that she regularly practice

, provided by the Department of Education. Tr. 836-7. He qualified this suggestion by stating that she might need some

. Tr. 837.

6. , a software

. Ex. F—8, Tr. 829-30. Although the DOE claimed that was unable to use “ ” during the trial (Ex. 21), Mr. found that in a setting, found could be very . Tr. 829-30.

7. , a program that

. Ex. F; Tr. 830-31.

8. , . Ex. F.9;

Tr. 832.

9. . Ex. F.9;

Tr. 830.

10. Modification of : Mr. continued to recommend that should be seen by a in order to . Ex. F-8-9, Tr. 834-5.

’s provider recommended that receive , times

per week, for each session, on a basis. He further opined that the services that had been receiving services up until June 2014 and were delivered in an appropriate setting as the number of children in the room was kept to a maximum of to . This permitted “ ” “

” Tr. 895-96.

Dr. , ., provided to between

February 2012 and June 2013. He wrote a letter indicating that “

”

” Ex. L. made progress in her

sessions but continues to require the service to help her

. Ex. L.

Dr. opined that should receive in order to help with her ability to at school because she should not . Tr. 573-75.

As per Ms. , requires services that focus on feeding skills. Exs, 14, 18, 20; Tr. 214-15, 396-400, 651-55, 669, 673-74, 679-80, 682-87, 695-

97. has been diagnosed with “ ” and has , which Dr. admitted. Tr. 214-15; 396-400, 651-55. See also Exs. 18-1, 20. A November 2012 letter from notes that requires “ ” Ex. 16-3. The progress report from her service provider notes that has “ ” Ex. 14-1. Further, she “

This which in turn

” Ex. 14-1-2. The report notes that made progress in terms of her . Ex. 14-1. It suggests that, as a goal, should “ ” Ex. 14-2. The

Parent testified that the feeding have been helpful and continue to be required.

Tr. 685, 695-97. . The service is not available at the (Tr. 491) and Dr.

testified that such a service is not available through the DOE, regardless of her needs.

Lastly, Parent’s counsel asserts that the DOE failed to prove that it assessed or evaluated ’s needs in the critically important area of feeding or adequately considered those needs at the IEP review or addressed them through the recommendation of services.

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 counsel maintains that the DOE failed, procedurally and substantively, to offer a FAPE for the 2013-2014 school year and that the evidence has established that the DOE applied blanket policies to ’s IEP’s and discriminated against her in violation of the IDEA and section 504. 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 find that the IEP prepared for failed to describe in detail the results of her most recent evaluations, as well as an accurate and consistent description of her strengths, then-present levels of academic achievement and functional performance, as well as the concerns of the Parent regarding her 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 academic, developmental, and functional 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 with Parent’s counsel that the PLPs are vague, outdated and fail to address all of the areas in which ’s disability impacts upon her ability to progress; the IEPs fail to adequately detail ’s current academic, developmental, physical and functional skills, strengths and weaknesses. The IEPs do not include adequate information regarding her and . Similarly, the September and November IEPs do not fully describe ’s needs. The DOE’s failure to have updated evaluations that assessed her 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 demonstrate the DOE’s disregard for ’s individual 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).

A per Parent’s counsel, the May 2013 IEP goals do not comport with the above-referenced requirements. The IEP only contains nine goals; , ,

, and goals There are no goals for the remaining related services was to receive; , , and . The measurement criteria are vague and there are no short term objectives. The goals do not address all of ’s deficit areas as described in then-current reports or in the IEP itself. The September/November IEP goals include the same nine goals from the May 2013 IEP and are insufficient for the same reasons articulated above, except for an additional three goals which were added to address ’s “ ” “ ” “ ” Ex. 1.7-8. I agree with Ms. that as the six goals that were copied from the May 2013 IEP and that the three new goals are not measurable as written, contain similarly vague measurement criteria, are not tailored to ’s specific deficits and needs, and altogether fail to comport with the above-referenced legal requirements with 8 NYCRR 200.4(d)(2)(iii). Additionally, the September/November IEP does not contain any , , , or goals that would address her needs as articulated in the recent reports. Lastly, the majority of the goals in the finalized IEP were copied verbatim from an IEP that was created six months earlier

I concur with the Parent’s position that the DOE made recommendations and that it failed to establish that its recommendations for were based on her individual needs. More particularly, none of the reports considered by the IEP teams supported the recommendations in the IEPs, and that the evidence established that the teams were not permitted to consider various services that were a part of her last agreed-upon placement. Dr. testified that she could not have recommended a for unless she presented with very specific issues, and could not have recommended - . Ms. maintained that he team lacked the ability to recommend that ’s related services be provided , even though there was no evidence that she could benefit from services. I agree that the team made decisions without a true understanding of ’s needs.

Ms. stated that in the absence of evidence that the recommendations were individualized for and that the teams were not constrained by policies, the Parent requests that a determination be made that Parent’s and ’s rights were violated under the IDEA and Section 504.

The Parent is also seeking compensatory damages and maintained that compensatory services should be awarded on a basis when the DOE fails to implement pendency. Student X . v. New Y ork City Dep’t of Educ., 2008 WL 4890440 (E.D.N.Y. October 30, 2008); SRO 12-209.The Parent testified that did not receive under pendency due to her inability to find a provider who would accept the

RSAs. Tr. 677-79 and also that the DOE was unable to find a provider. Ex. T.

Accordingly, it is requested on behalf of the child that these services should be given back to , and that she should be authorized to utilize any appropriate provider, and should not be constrained by the DOE’s RSA rates or procedures.

A parent has a right to request an IEE at public expense if she disagrees with an evaluation obtained by the school district. 34 CFR §300.502(b) (1); 8 NYCRR §200.5 (g)

(1). In response, the DOE must, without unnecessary delay, either provide the IEE, or initiate an impartial hearing to defend its own evaluation(s). Id. An IHO may use equitable powers to order an IEE where a district fails to adequately evaluate a child. L.A.

Unified School District v. D.L., 548 F. Supp. 2d 815 (C.M.H.A. 2008). The IDEA also contains a separate provision for funding evaluations called “Requests for Evaluations by Hearing Officers.” 34 CFR § 502(d); 8 NYCRR§ 200.5(g) (2) pursuant to which an IHO can order an IEE to be conducted on his or her own initiative and without a request from either party. 34 CFR § 502(d). As the majority of SRO decisions and court cases in New York are tuition reimbursement cases, only one SRO opinion discussing IHO-directed

IEEs was identified. See A pplication of a Child with a Disability , Appeal No. 02-005.

Parent’s counsel stated that there is no legal support for the contention that the parent must first request the evaluation(s) “during or prior to any…committee on special education meetings” or that including the request in the DPC renders the request untimely. I agree with Parent’s position that, the DOE has been on notice since June 2013 that the Parent disagreed with the evaluations that were conducted and that the DOE did not defend its evaluations, nor argue that the Parent was not entitled to IEEs for any credible reason.

Due to ’s difficulties with ,

Dr. recommended that receive an . 570-71. He substantiated this recommendation by pointing out that could help with her problems . Tr. 571. Dr. advised that receive an updated and evaluation so as to properly address her issues with , , and . Tr. 571-2. I agree with Dr.

’s recommendations and that updated evaluations should be ordered given the DOE’s repeated attempts to make substantial changes to ’s program, including changes to her related services. I agree that the DOE has not demonstrated an appropriate understanding of ’s , which should mandate an evaluation. In light of the foregoing, I order the DOE to fund in (with a

), , and / .

The IEPs failed to recommend ); I agree with

Ms. that an IEP team is mandated to consider whether a child requires assistive technology (“ ”), such as an . 34 C.F.R. §§300.5;

300.6, 300.105; 300.324(a)(2)(v). The DOE failed to prove that it did so; more particularly, IEPs fail to establish that it was discussed. I find the DOE’s witness to be not credible, wherein she stated that the Parent failed to object to its removal; the Parent testified that it was not brought up or discussed and this seems to be confirmed in the minutes.

As stated above was evaluated by an independent consultant, Mr.

, in 2012; he performed an in-depth evaluation, after reviewing various reports, observing at the , meeting with ’s teachers and speaking with her mother. Ex. F, Tr. 814-820. ’s teacher expressed concerns to Mr. about ’s “ ,” noting further that she could the I agree with Parent’s counsel that the DOE’s “update” was based solely upon a comparison of how was performing in her class in the in relation to the other children with IEPs in that class. Ex. 21-2. However, when compared to her typical peers and the general curriculum, the record is clear that is very . Furthermore, the “update” is only a brief overview of the trial and does not include a record review or any assessment of such as the one conducted by

Additionally, “update” shows that the DOE did not trial all of the initially recommended by Mr. , particularly for and and offered no explanation for failing to do so. Id. With respect to the DOE’s conclusion that she cannot benefit from for , the DOE ignored the fact that Mr. initially recommended that be provided instruction in keyboarding (Ex. F-8-9). Finally, the DOE failed to implement any of the at home or to explain why this was not explored.

Ex. 21.

At the IEP meeting, the DOE then ignored the recommendations in the comprehensive independent evaluation in favor of its follow-up “ ” Ex. 21; Tr. 144-45. Dr. admitted to only considering the DOE report at the September IEP meeting. Tr. 117. She noted that was not her area of “expertise”; yet, as a psychologist and the district representative at the meetings, she was presumably the person in charge of interpreting the implications of the reports. Tr. 347. She made no effort to invite an expert to the IEP meeting or to consult with Mr. before determining that the DOE evaluator’s follow-up was conducted appropriately and yielded reliable results. Tr. 347-48. The Parent testified that was not discussed at the various IEP meetings. Tr. 708-9.

Overall, the DOE did not defend the “update” nor present any evidence that the IEP team(s) gave meaningful consideration to the question of whether or not should be provided with , or even had members that were qualified to make such determinations. Mr. conducted a follow-up assessment in July 2014 to determine if his prior recommendations remained appropriate. Tr. 839.

Thereafter, he decided that would benefit from the following :

1. for

and . Ex. F.8; Tr. 835-36.

2.

3. , a program that

. Ex. F, Tr. 827-8.

4. . Ex.

F-8.

5. Program (Ex. F, Tr. 828-9): In order to help use her , suggested that she regularly practice her by using a program, provided by the Department of Education. Tr. 836-7. He qualified this suggestion by stating that she might need

. Tr. 837.

6. , a software that

. Ex. F—8, Tr. 829-30. Although the DOE claimed that was unable to use “ ” during the trial (Ex. 21), Mr. found that in a setting, found could be very useful as a . Tr. 829-30.

7. , a program that

level. Ex. F; Tr. 830-31.

8. , a . Ex. F.9;

Tr. 832.

9. , a . Ex. F.9;

Tr. 830.

10. Modification of : Mr. continued to recommend that should be seen by a in order to . Ex. F-8-9, Tr. 834-5.

This case does not require the application of a B urlington/Carter analysis because, in the absence of a FAPE, the Parent sought to continue the last agreed-upon program and services and did not unilaterally place

Additionally, I find that the DOE did not establish that the Parent failed to act in good faith and prove that she violated equitable principles. Although there was a difference of opinion if the Parent received proper notice for the IEP meeting of May 2, 2013, I find that she cooperated with team and exchanged all relevant reports and evaluations. I find that the Parent acted in good faith, cooperated with the DOE, attended meetings when she confirmed that she was provided with notice, provided the DOE with the details of her concerns, and didn’t impede the DOE’s efforts to offer her child a

FAPE.

Although the DOE argued that some of the Parent’s claims are moot; the Parent disagrees that her claims are moot but asserts that even if they are now moot, they fall under an exception to the mootness doctrine. More particularly, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). Where a dispute between the parties is no longer “real and live” but has become “feigned, academic, or conjectural,” an action no longer qualifies as a “case” or “controversy” within the meaning of Article III of the Constitution, and a court lacks jurisdiction to rule on its merits. Russman v. Bd. of Educ., 260 F.3d 114, 118 (2d Cir.2001); see also Powell, 395

U.S. at 496 n.7 (“The rule that this Court lack jurisdiction to consider the merits of a moot case is a branch of the constitutional command that the judicial power extends only to cases or controversies.”). See Also U.S. v. Juv. Male, 131 S. Ct. 2860, 2864 (2011) (“[i]t is a basic principle…that a justifiable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed”) (internal citation and quotation marks omitted); see also K am agate v. A shcroft, 385 F.3d 144, 150 (2d Cir. 2004) (“[a]

case becomes moot if, at any stage of the proceedings, it fails to satisfy the case-or- controversy requirement”) (internal citations omitted); “Cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted. See, e.g., A pplication of the Bd. of Educ., Appeal No. 11-102; A pplication of the Bd. of Educ., Appeal No. 05-058; A pplication of a Child with a Disability, Appeal No. 04-027. The mootness doctrine is designed to ensure that a plaintiff’s interest in the outcome of an action continues “through the life of the lawsuit.” Comer v. Cisneros, 37 F.3d 775, 798

(2d Cir. 1994). As long as a party “retains some interest in the case, so that a decision in its favor will inure to its benefit,” the case is not moot. New England Health Care

Employees Union, Dist. 1199, SEIU A FL–CIO v. Mount Sinai Hospital, 65 F.3d 1024,

1029 (2d Cir.1005).

Again, I agree with Parent’s counsel that special education claims concerning policies and practices, such as the ones alleged here, are not moot; as long as remains eligible for a FAPE, the Parent retains a personal stake in the outcome of this action under the IDEA and Section 504. See Heldman v. Sobol, 962 F.2d 148 (2d Cir.

1992). I agree with the Parent that the claim for IEEs are a live controversy and not “finally resolved”. Moreover, the IEP was created last November and remains in effect today; my decision will have an impact on ’s rights and the services she receives.

The Parent’s DPC claims that the DOE has impermissible policies which denied the Student a FAPE. The case law aligns with the DOE’s position in this case: Hearing Officers and State Review Officers lack jurisdiction to consider and make determinations on issues regarding the practices and procedures of the DOE with respect to the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973. 29 USC § 794; App. of a Child with a Disability , Appeal No. 96-37.

Complaints about the DOE’s practices and procedures with regard to IDEA should be resolved in accordance with 34 CFR § 300.660-662 by the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities. See, J.S.

ex rel. N.S. v. A ttica Cent. Schs., 386 F.3d 107, 112-114 (2d Cir. 2004) (citing several cases in which exhaustion was excused as futile where plaintiffs' "problems could not have been remedied by administrative bodies because the framework and procedures for assessing and placing students in appropriate educational programs were at issue, or because the nature and volume of complaints were incapable of correction by the administrative hearing process"); S.W . v. WARREN, 528 F.Supp.2d 282 (SDNY 2007);

Scaggs v. N.Y . Dept. of Ed., 2007 U.S. Dist. LEXIS 35860, 2007 WL 1456221 (EDNY

2007) ("Plaintiffs' allegations of complete inadequacy of the educational environment at

Riverhead, arising from a total lack of programs designed to address the needs of disabled students, the decrepit physical plant and a total absence of basic services and supplies, constitute allegations of systemic violations that, if true, cannot be remedied by individual administrative hearings."); App. of a Child with a Disability, Appeal No. 96-37. The SRO recently, yet again, upheld this rule, noting “there is no provision in the IDEA or the Education Law that confers jurisdiction upon an IHO or SRO to sit in review of alleged systematic violations (see Levine v. Greece Cent. Sch. Dist., 2009 WL 261470, at *9

[W.D.N.Y. Feb. 4, 2009] [noting that the Second Circuit has “consistently distinguished….systematic violations to be addressed by the federal courts, from technical questions of how to define and treat individual students’ learning disabilities, which are best addressed by administrators]” App. of the NY C Dep’t. of Educ., Appeal No. 12-176, p. 4.

In light of the foregoing and the evidence presented during the hearing, I find in the Parent’s favor and issue an Order that includes the following:

a. That the DOE failed to provide with a FAPE for the year in question;

b. That the DOE’s IEPs were inappropriate

c. That the DOE must continue to fund ’s last agreed-upon program and placement, including the placement at the , related services consistent with her pendency mandates, a , special education transportation, an , and all other agreed-upon services.

d. That equitable considerations favor the Parent;

e. That the Parent is entitled to IEE’s in , / to be ordered within 30 days and funded by the DOE.

f. A finding that the Parent is not entitled to compensatory services for and .

g. That the DOE fund consistent with the recommendations of as follows: I agree that should be provided with a computer to use at and with the following programs:

. The school staff and Parent shall receive training to utilize and implement the programs.

h. That the above-referenced program must be memorialized in a legally valid IEP.

Dated: January 23, 2015

, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Exhbit Description Date Pages

A Impartial Hearing Request 6/26/13 11

B Clarification/Statement of Agreement 2/10/12 6

Case#

C Amended Impartial Hearing Request 1/7/14 13

D / Evaluation 5/19/11 5

E Student Progress Report/ 6/1/11 3

F 7/10/12 11

G Letter from Dr. 4/18/13 1

H NYS Test Results 2013 4

I Notice of Secured Placement 9/18/13 2

J NYSED Memo re NPS 7/2/12 4

K Letter from Dr. 11/30/12 1

L Letter from Dr. 6/19/13 1

M Level 2012 1

N Letter to re payment to Dr. 6/27/13 1

O E mail from Dr. to Ms. 9/4/13 1

P RSA Provider Reports 2/4/14 6

Q Letter 4/18/14 1

R NYS Memo’s to various 8

S FNR & Fax cover sheet 11/14/13 &1/16/14 2

T E Mails from & to Ms. multiple dates 9

DEPARTMENT OF EDUCATION

1 IEP 11/14/13 15

2 IEP 5/2/13 12

3 Final Notice of Recommendation 11/14/13 1

4 Final Notice of Recommendation 8/15/13 1 5 Final Notice of Recommendation 8/9/13 1 6 Meeting minutes 9/4/13 & 11/14/13 5

7 Meeting minutes 5/21/13 2

8 Meeting minutes 8/22/13 2

9 Notices to Parent multiple dates 15

10 Events Log multiple dates 9

11 Prog. Report 8/16/13 4

12 Year End Prog. Report 06/2013 7

13 Year End Prog. Report 06/2013 10

14 Report 2/15/13 2

15 Report 1/13/13 4

16 Letters multiple dates 3

17 Eval. 8/6/12 7

18 7/24/12 2

19 . Eval 5/30/12 8

20 Evaluation 9/3/13 23

21 Update 4/30/13 3

22 Due Process Response 7/1/13 4

23 Amended Due Process Response 7/31/13 3

24 Mid Year Progress Report 02/14 15

IMPARTIAL HEARING OFFICER

I Due Process Complaint 6/26/13 11

II Pendency Order 7/3/13 4

III DOE Motion to Dismiss 7/31/13 3

IV Opposition to DOE’s Motion

and Memorandum of Law undated 14