New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 163728

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: December 16, 2016

January 10, 2017

January 17, 2017

January 26, 2017

Actual Record Closed Date: March 26, 2017

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 16, 2016

Father

Attorney — Parents

District Representative — District

District

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 10, 2017

Father

Attorney — Parents

District Representative — District

via — District

telephone

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 17, 2017

Father

Attorney — Parents

Attorney — Parents

District Representative — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 26, 2017

Father

Attorney — Parents

via — Parents

telephone

District Representative — District

On October 31, 2016, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA") 20 U.S.C. §1415(f)(1) in the matter of (hereinafter " ") after several recusals. The Parent filed the initial request for an impartial hearing on October 11, 2016. Hearings were held on December 16, 2016, January 10, 2017, January 17, 2017 and January 26, 2017.

The parties moved to extend the compliance date during the course of the hearing.

In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly, the request for extensions of the compliance date was (trans. 395; Exhs. 1-II). The current record close date is March 3, 2017 and the decision due date is March 17, 2017. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

This proceeding arose under Article 89 of the New York State Education Law and Commissioner’s Regulations as set forth in Part 200 of Title 8 of the New York Code, Rules and Regulations ("NYCRR"). Specifically, Section 200.5 of the Regulations provides the mechanism whereby a parent may challenge the validity of the recommendation made by a public school district's Committee on Special Education

("CSE"). The hearing was initiated by the Parent who challenged the 2014-2015, 2015- 2016 and 2016-2017 school years.

The hearing was requested by the Parent to demand that the Department of Education ("DOE") fund an independent evaluation and to fund an independent evaluation and to obtain funding for the cost incurred by the Parent for at the (" ") and pay for the costs for compensatory at . The Parent seeks an Order that the DOE pay for the following: (1) for the cost of the ; (2)

for ; (3) at per hour (4) funding in the form of and

(5) fund an independent evaluation and to fund an independent evaluation (Exh 1 at 6).

BACKGROUND

is a who has

(Exh. 5 at 12) currently attending in and prior to attending , she attended from through (Tr. at 18).

The conducted on June 14, 2012 when was by

, , during in , per the Parent's

request as he did not observe improvement in (Exh. J at 1). Ms. noted that was classified as and noted that was placed in an with related services of and that and her "

" (Exh. J

at 2). The contained (Tr. at 206).

On June 14, and 15, 2012, a Evaluation was conducted by , who noted that was classified as and assessed by the and found and noted that and and and administered the and found

and (Exh. K at

3). On May 16, 2014, 's CSE met classified as and recommended that be placed in an with related services of (Exh. 19 at 11). The

Individualized Education Program ("IEP") indicated that

(Exh. 19 at 15).

On January 4, 2015, the Teacher Report indicated that and the teacher noted that "

" (Exh. 18 at 1).

On January 10, 2015, the provider's report indicated that and the provider noted that 's "

" (Exh. 17

at 1).

On February 10, 2015, the Update indicated that the Parent was concerned that " " (Exh. 16

at 1).

On February 25, 2015, an Educational Evaluation was conducted by , , who used the and found and noted that and noted that and that

"

"

(Exh. 14 at 3).

On March 3, 2015, 's CSE met classified as and recommended that be placed in an with related services of (Exh. 13 at 9). The IEP indicated that (Exh. 13 at 13).

On April 29, 2015, the indicated that

(Exh. 9 at 6) (Exh.

11 at 5).

On February 4, 2016, ’s CSE met classified as and recommended that be placed in an with related services of (Exh. 5 at 8) and the IEP indicated that

(Exh. 5 at 13).

THE DOE'S CASE

The DOE presented the testimony of , the and , .

Ms. , at the CSE for since 2008, testified

that she had a Master’s degree in and was a NYS certified (Tr. at 26). She recalled that she was present for the May 16, 2014 review, as well as the March 3, 2015 review and she stressed that the CSE team reviewed the (Exh. J) and the Evaluation (Exh. K) and the Evaluation (Exh. 14) and recalled that the teachers felt was appropriately placed in the (Tr. at 33). She noted that she conducted the Evaluation and noted that (Tr. at 37). She recollected a discussion from the Parent of and recalled that the team did not consider her sufficient to warrant (Tr. at 41;54). She related that she conducted the Evaluation and recalled the consensus of the team was to recommend an (Tr. at 44). She explained that (Tr. at 46). She stressed that there was progress in as assessed by and (Tr.

at 50) and recalled a discussion about the goals and did not recall a disagreement (Tr. at 57).

On cross Ms. stated that there were at and allowed that when she conducted the Evaluation (Exh. 14), was in , (Tr. at 65), and that , and that there was a discrepancy with and (Tr. at 67). She explained that

(Exh. 14 at 1)

(Tr. at 70). She acknowledged that with the same program recommendation of an and maintained that the team expected to progress another year with the same program for the 2015-2016 school year (Tr. at 75;96).

She did not recall if there were any concerns from the Parent about the recommendation and whether the program was in the least restrictive environment (Tr. at 75; 78). She did not recall a discussion with the provider who noted that (Tr. at 88), and could not comment on the provider's report, but opined that the provider did not need to be present for the review (Tr. at 99).

She did recall that 's teachers informed the team that , but noted (Tr. at 92). She

opined that the allowed to progress with and that it was important for to be placed with (Tr. at 97). She did not recall when (Tr. at 102).

Ms. , a NYS licensed and certified , employed by for , testified that she was 's teacher for the 2015-2016 school year for (Tr. at 115;151). She stated that the contained and that was classified with a (Tr. at 117). She noted that she utilized the March 3, 2015 IEP for the 2015-2016 school year (Exh. 12) and addressed the goals with (Tr. at 120). She opined that made some progress in (Tr. at 121), and that at the end of the 2015-2016 school year, she progressed in her goal as she was according to the (Tr. at 123). She explained that required (Tr. at 126). She stated that she did not recall if 's provider told her that progressed in (Tr. at 129). She recalled that in May 2016, another teacher assessed in the and noted (Tr. at 131). She explained that progressed in the 2014-2015 school year as she (Tr. at 133). She noted that progressed in as and that she (Tr. at 136). She stressed that , but she progressed during the 2015-2016 school year and so the February 2016 IEP team recommended the same classification of and the same program of an for the 2016-2017 school year (Tr. at 138;141).

She opined that any more restrictive placement would prevent from making progress and that the provider did not recommend (Tr. at 140). She opined that the goal to was more challenging than the prior goal to (Exh. 5 at 5;Tr. at 143). She opined that with support could meet the goal to (Tr. at 145). She noted that and opined that received sufficient support (Tr. at 146). She further noted that affected her progress as (Tr. at

148).

On cross Ms. stated that she was 's teacher and teacher (Tr. at 152). She noted that she was present for the February 6, 2016 IEP (Tr. at 154). She recalled that she .at some point in the during the 2015-2016 school year (Tr. at 158). She stated that she could not explain why (Tr. at 163), as noted on the February 2016 IEP (Tr. at 177). She explained that she had assessed 's after the IEP was written (Tr. at 167). She acknowledged that there was a single goal in despite ; there were no goals for (Tr. at

169).

THE PARENT'S CASE

The Parent's case was presented by the testimony of the Parent and Ms.

.

The Parent stated that he worked with his daughter after school each night to (Tr. at 204). He recalled that his daughter received special education services in of (Tr. at 205). He noted that received special educational services in in a class with at and that her teacher threatened to . He stated that he requested services for in and that he was told that because she did not receive services in (Tr. at 208). He stressed that even with services and an his daughter and that were added to her program in the second year of , but that was removed (Tr. at 213). He related that for the his daughter was placed in an for the 2014- 2015 school year and that (Tr. at

216). He recalled that with every parent teacher meeting from and his daughter's teacher told him that and that (Tr. at 218;222). He recollected that her teacher told him that his daughter (Tr. at 223). He related that he placed his daughter in a new school for because did not offer any support besides an and (Tr. at 224). He recalled that he requested a different program in and with and was told that the budget did not allow (Tr. at 226). He recalled an incident in when

(Exh. E at 14) and that he requested , but was told that (Tr. at 233). He recollected that he obtained in for his daughter through and the staff advised that he should remove his daughter from (Tr. at 237), and he opined that his daughter because (Tr. at 242). He stated that he did not recall a discussion of (Exh. 12) during the March 3, 2015 IEP and that when he mentioned , he was told that (Tr. at 246). He stated that he did not recall a discussion about and that he did not agree to (Tr. at 248). He recalled that he was told that if , then his daughter and (Tr. at 249;254). He related that he worked with his daughter to and that (Tr. at 259). He stressed that his daughter's biggest deficit was (Tr. at 262). He recalled that one of her teachers recommended for his daughter and so he contacted (Tr. ate 268). He further recalled that when he placed his daughter at , he had trouble with the admission process because (Tr. at 272). He related that there was an at and that after the IEP meeting he was told that the school staff wanted to (Tr. at 277).

On cross he acknowledged that improved in her school work during the 2014- 2015 school year in and that her provider gave him strategies to and that her improved (Tr. at 282). He stressed that her did not improve to the extent that (Tr. at 283). He related that the March 2015 IEP did not change the mandate because she was making progress (Tr. at 289).

Ms. , , explained that is qualified to help

and that would receive based on the results of the assessments (Exh. C) and that a (Exh. B) was developed based on the assessment (Tr. at 319). She stated that the was administered for and that 's were assessed (Tr. at 320). She noted that and (Tr. at 323). She stressed that was an issue as assessed by the (Tr.

at 325). She stated that 's was assessed and that (Tr. at 327). She noted that provides (Tr. at 329). She noted that was evaluated at on July 14, 2016 (Exh. A) and that (Tr. at 333). Ms. testified that provides based on and a was developed to assuming she received , but if she were able to receive , she would (Tr. at 332-333). She stated that the staff includes (Tr. at 336). She testified that is accredited by the and that some of the curriculum followed the (Tr. at 310;339). Ms. reviewed in detail the results of the administered to in July 2016 (Exh A) and stated that and (Exh.

A at 1). She stated that and that

(Exh. A at 1; Tr. at 373). Ms. opined that needed to and that could address 's learning needs and that she had personal knowledge that had worked with children with a profile like and that had (Tr. at 351;354).

The Parent seeks an Order that the Dept. of Education provide the following: (1)

prospective Connors funding for at the located at for from the date of this Order in the amount of dollars per hour; (2) prospective Connors funding for the from the in the amount of dollars and of dollars and as well as funding for an independent and evaluation at an enhanced rate (Exh. 1 at 6).

FINDING OF FACT, CONCLUSION OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Gagliardo v. A rlington Cent.

Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13).

To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that 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, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M .S . ex rel. SS. V . Bd. of Educ. of the City Sch. Dist. of the City of Y onkers, 231 F.3d 96 at 103 (2d Cir. 2000); see W alczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The Second Circuit further observed that the IDEA is not intended to "secure the best education money can buy” or “guarantee any particular level of education" (W alczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted).

In A pplication of the New Y ork City Dept. of Educ., Appeal No.12-087, the SRO held that an "appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i];Tarlowe v. Dep't of Case No. 163728

Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "'results of the initial evaluation or most recent evaluation'" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also 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; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9)."

The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

The Parent's attorney claimed that the 2014-2015 IEP and the 2015-2016 IEP and the 2016-2017 IEPs were defective as the was not appropriate as had not progressed (Exh. 1 at 2). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student'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 student, or (c)

caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ. 2008 W L 3930028, at *7

[N .D.N.Y . Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S .D.N.Y . 2007] aff'd 2008 W L 3852180 [2d Cir. Aug. 19, 2008]); Bd. of Educ. v.

Schaefer, 923 N.Y .S.2d 579, 56 IDELR ¶ 234 (A pp. Div. 2011.)

The DOE representative stated in her post hearing brief that the "two-year statute of limitations limits the Parent from raising claims preceding October 10, 2014, two years prior to the filing of the Due Process Complaint. As such, the District contends that the Parent cannot challenge the creation of the May 16, 2014 IEP as it is outside the timeframe at issue in this Complaint. However, the District notes that this was the operative IEP at the start of the 2014-2015 school year, and so the appropriateness of that program recommendation from October 10, 2014 is the only aspect of that IEP that may be challenged in this hearing, not its creation" (Exh. V at 2). I find I must consider whether is entitled to compensatory services for the 2014-2015, 2015-2016 and the 2016-2017 school years. I find 2015-2016 and 2016-2017 are clearly covered in this action as they fall within the 2-year statute of limitations set forth in the IDEA. (20 U.S.C. §1415(f)(3)(c); N.Y.Educ. Law§4404(1)(a)). I find that the Parent’s attorney did not assert that the 2014-2015 claim should not be time-barred. I find that 2-year statute of limitations established under the IDEA shall not apply to a parent if the parent was prevented from requesting the hearing due to (i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint, or (ii) the local educational agency's withholding of information from the parent that it was required under this part to be provided to the parent. 20 U.S.C. 1415(f)(3)(c); N.Y. Educ. Law §4404(a). The presence of these factors vitiate the statute of limitations. I find that the Parent's attorney did not assert the presence of these factors. Therefore, I find the 2- year statute of limitation applied. The DOE representative noted that May 16, 2014 IEP "was the operative IEP at the start of the 2014-2015 school year, and so the appropriateness of that program recommendation from October 10, 2014 is the only aspect of that IEP that may be challenged in this hearing" (Id.). I agree and will consider the appropriateness of the program.

2014-2015

The Parent claims that the IEP was substantively and procedurally defective. I find the district representative's claim that its program was appropriate was not supported by the district witnesses or the district's evidence. The parents alleged that the DOE failed to provide FAPE for the 2014-2015 school year on procedural and substantive grounds: the May 16, 2014 IEP was not appropriate because the team failed to consider and the discontinued so started with ; the IEP goals, objectives were not measurable and did not contain sufficient specificity to guide instruction or evaluate progress and the goals did not address adequately; the IEP was not appropriate because the team failed to consider appropriate evaluative data as the last evaluation was 2009 and was no longer a reliable report of and could not be used as a basis for the classification of ; and the lack of evaluations denied the Parent meaningful participation (Exh. 1 at 3).

The Parent's attorney alleged that the failure to conduct appropriate evaluations and to conduct a comprehensive evaluation caused a denial of FAPE and requested independent comprehensive evaluation to determine and provide appropriately individualized goals and services. The Parent's attorney asserted that was classified with , and yet "

" (Exh.

IV at 4).

I find that the CSE recommended that be placed in an and receive related services of , in a with no , no , and no (Exhs. 19 at 11, 12 at 13). I find that there was insufficient evidence to conclude that this program would enable to make meaningful educational gains and caused a deprivation of educational benefits as I find testimony adduced at the hearing established that and (Tr. at 242). I find that the DOE failed to provide a FAPE for 2014-2015 because she required a program than the DOE was willing to provide (Tr. at 226). I credit the Parent's testimony that he requested

, but due to budget concerns additional

was not provided (Tr. at 246). I find that May 16, 2014 IEP team and the March 3, 2015 IEP team failed to provide the evaluations that required and I find the failure to provide evaluations significantly impeded the Parent's opportunity to participate in the decision-making process.

The Parent's attorney asserted that "

"(Exh. IV at 15). I

agree and I find that the failure to to address as documented by the report (Exh. 17 at 1) and (Exh. 16 at 1) caused a deprivation of educational benefits (Exh. 16 at 1).

The Parent's attorney asserted that made little or no progress at for the 2014-2015 school year. She noted that the "'grading and advancement system ...

constitutes an important factor in determining educational benefit.'" Rowley, 458 U.S. at 203. Thus, poor grades and the failure to progress are significant factors in determining whether a FAPE has been denied. A comparison between the June 4, 2014 and April 23, 2015 IEPs illustrates stagnant performance with no meaningful progress during the 2014-

15 school year" (Exh. IV at 10-11). I find the DOE representative failed to establish that progressed at for the 2014-2015 school year. The Parent's attorney argued that 's "

"(Exh. IV at 12). I find that the on the February 25, 2015 Evaluation indicated and that and that

"

" (Exh. 14 at 3). The Parent's attorney argued that the

"

"(Exh. IV at 14). I agree and I find

the Evaluation did not establish progress.

The Parent's attorney argued that failure to evaluate in all areas of disability denied her a FAPE for the 2014-2015 school year (Exh.1 at 3). I find that the 2012 evaluation indicated that had and her was and her was and the indicated that

(Exh. K at 3), yet no further

evaluations were conducted to get to the root of . I find there was no testimony from the DOE to establish what evaluations were considered to develop the June 4, 2014 IEP program especially considering with the same program. I find the evidence indicated that the Parent requested evaluations (Tr. at 218) and the DOE did not conduct the evaluations.

The Parent's attorney argued "

" (Exh. IV at 4). I agree and find the failure to consider a caused a deprivation of educational benefits.

The Parent's attorney argued that failure that the (" ") on the IEP created on March 3, 2015 and to be implemented on April 23, 2015

lacked "

" (Exh. IV at 14). I agree.

The Parent's attorney argued "

"(Exh

IV at 14). I agree.

I find that March 3, 2015 IEP noted that

(Exh. 12 at 3). I credit the Parent's testimony that in when

and that

(Exh. E at 14) and that he requested , but was told that (Tr. at 233). The Parent's attorney asserted that while CSE was aware of , "

"( Exh. IV at 16).

I agree and find the failure to consider caused a deprivation of educational benefits.

Because I find the IEP is procedurally defective and FAPE was not provided to for the 2014-2015 school year.

2015-2016

The Parent's attorney claimed that the 2015-2016 IEP was substantively and procedurally defective. The parents' attorney argued that there were numerous procedural errors during the IEP process that caused a denial of FAPE for the student. A procedural violation can rise to the level of substantive harm if it (a) impeded the student'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 student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).

The parents alleged the March 3, 2015 IEP was not appropriate because the DOE failed to assess all 's areas of deficits. I find that the CSE recommended that be placed in an and receive related services of , in a with no , no , and no (Exh. 12 at 13). I find that there was insufficient evidence to conclude that this program would enable to make meaningful educational gains and caused a deprivation of educational benefits as I credit the Parent's testimony that her teacher told him that (Tr. at 223). I find that the DOE failed to provide a FAPE for 2015-2016 because she required a program than the DOE was willing to provide. I credit the testimony of 's teacher and teacher (Tr. at 152), who noted that she was present for the February 6, 2016 IEP (Tr. at 154) and recalled that she during the 2015-2016 school year (Tr. at 158). She stated that she could not explain why (Tr. at 163), as noted on the February 4, 2016 IEP (Tr. at 177). I find the further indicated a lack of progress.

The Parent's attorney asserted that 's teacher and teacher acknowledged that "

"(Exh. IV at 16). The Parent's attorney further argued that the

"

" (Exh. IV at 16). I agree. The Parent's attorney asserted that "

"(Exh. IV at 17-18). I agree. The parents' attorney argued that the IEP team ignored the parent's concerns for . I find the failure to consider a denied the parent meaningful participation in the development of the IEP for the 2015- 2016 school year.

The Parent's attorney asserted that "

" (Exh. IV at 19) and that the "

" (Id.). I agree

Accordingly, I find the IEP is procedurally defective and FAPE was not provided to for the 2015-2016 school year 2016-2017

The parents alleged the February 4, 2016 IEP was not appropriate because the DOE failed to assess all 's areas of deficits. I find that the CSE recommended that be placed in an and receive related services of , in a with no , no , and no (Exh. 5 at 8). I find that there was insufficient evidence to conclude that this program would enable to make meaningful educational gains and caused a deprivation of educational benefits as I credit the Parent's testimony that her teacher told him that (Tr. at 223). The Parent's attorney asserted that the Parent " (Exh. IV at 21). I credit the Parent's testimony that he had difficulty enrolling at due to (Tr. at 272). The Parent's attorney argued that the "

" (Exh. IV at 22). I agree.

The Parent's attorney alleged that the failure to conduct appropriate evaluations, to conduct comprehensive evaluation caused a denial of FAPE and requested independent comprehensive evaluation to determine and provide appropriately individualized goals and services. The Parent's attorney asserted that was classified with , and yet "

" (Exh. IV at 4). I agree

and find that the failure to conduct appropriate evaluations, to conduct comprehensive evaluation caused a denial of FAPE for the 2014-2015, 2015-2016 and the 2016-2017 school year.

The DOE representative argued that "

" (Exh. V at 2).

I find that a school district may not pay for a Parent's independent educational evaluation if: "(1) the DOE filed for a due process hearing without unnecessary delay, and either (2) show that its evaluation was appropriate, or (3) show "that the evaluation obtained by the parent did not meet school district criteria" 8 N.Y.C.R.R. § 200.5(g)(1)(iv). I find the DOE representative did not file for a due process hearing to show that its evaluation was appropriate. I find Parent is entitled to an independent evaluations.

The parent's attorney maintained that was entitled to compensatory services and that "'

"(Exh. IV at

22).

I find compensatory education is available as an appropriate remedy under the Individuals with Disabilities Education Act (“IDEA”). P. ex rel. M r. and M rs. P. v.

Newington Bd. of Ed., 546 F. 3d 111 (2nd Cir. 2008). Compensatory education, as with other forms of available remedies, serves the purpose of ensuring that the student is appropriately educated within the meaning of the IDEA. Newington, 546 F.3d at 123, quoting Parents of Student W . v. Puy allup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir.1994).

The aim of compensatory education services is to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See Case No. 163728

Reid v. District of Columbia, 401 F.3d 516, 518 (D.C.Cir. 2005) as cited in Newington, 546 F.3d at 123. I credit the testimony of Ms. regarding the amount of hours that required to .

The DOE representative stated in her post hearing brief that was not appropriate as and the hours recommended were conjecture by Ms. (Exh. V at 19) The Parent must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. (Frank G., v. Bd of Educ. Of Hyde Park , 459 F. 3d 356, 365 [2d Cir. 2006]). The courts have held that, in determining the appropriateness of a private placement, the Parent is not required to show that the placement is perfect

(W arrant v. Cum berland County Sch. Dist., 190 F.3d 80, 84 [3rd Cir. 1999]). After reviewing the testimony and evidence in this case, I find that the Parent has met her burden of proof with respect to the to be provided by . I credit Ms.

’s testimony that will receive based on the results of the assessments (Exh. C) and that a (Exh. B) is developed based on the assessment (Tr. at 319). I find required to . I also find persuasive Ms. 's unrebutted opinion that needs and that her needs could be addressed at . I find the record supports a finding that provided an appropriate program for as I credit the testimony from Ms. that could receive from a . I also credit Ms. ’s testimony that had successfully taught students with profiles similar to 's profile. The DOE representative argued Ms. was not a and yet she determined the number of hours (Exh. V at 19). I find that were reasonable in light of the number of years that FAPE was denied. I find that the DOE presented no witnesses or evidence to demonstrate was not appropriate. I find the equities favor the Parent. Prospective funding is an appropriate remedy under IDEA.

"Once the Burlington prerequisites relative to a non-approved private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of Case No. 163728 the private placement immediately." (Connor v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y)). I find the Parent is entitled to prospective funding.

ORDER

Therefore, it is hereby ordered that the DOE provide the following that:

(1) the DOE shall fund IEE for a evaluation and a evaluation;

(2) the DOE shall pay 's at for at a rate not to exceed per hour;

(3) the services shall be provided by a and these services shall be completed by the end of the 2018- 2019 school year;

(4) the DOE shall reimburse the Parent in the amount of for the cost of the ;

(5) the DOE shall reimburse the Parent in the amount of for

; and

(6) the DOE shall provide

.

Dated: March 17, 2017

LINDA AGOSTON, ESQ.

Impartial Hearing Officer

LA:

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 16, 2016

1 Due Process Complaint, 10/10/16, 8 pp. District

2 Due Process Response, 11/14/16, 3 pp. District

3 Attendance Records, various dates, 3 pp. District

4 Prior Written Notice, 2/27/16, 3pp. District

5 IEP, 2/4/16, 3 pp. District

6 Prior Written Notice, 2/2/16, 3 pp. District

7 Meeting Notice, 1/26/17, 3 pp. District

8 Waiver to amend IEP, 1/19/16, 1 p. District

9 , 1/4/16, 6 pp. District

10 Prior Written Notice, 6/26/15, 3 pp. District

11 4/29/15, 5 pp. District

12 IEP, 3/3/15, 16 pp. District

13 IEP (revision), 3/3/15, 15 pp. District

14 , 2/25/15, 3 pp. District

15 Meeting Notice, 2/12/15, 3 pp. District

16 , 2/10/15, 1 p. District

17 Related Services Progress Report, 1/20/15, 1 p. District

18 Teacher Progress Report, 1/14/15, 2 pp. District

19 IEP, 5/16/14, 18 pp. District

I Decision on Extension, 12/16/16, 1p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 17, 2017

A Evaluation Results, 7/14/16, 3 pp. Parent

B , undated, 1 p. Parent

C , 7/14/16, 49 pp. Parent

D , 6/13/16, 1p. Parent

E , 1/26/15, 14 pp. Parent

F 2015-2016 Report Card, undated, 2 pp. Parent

G 2014-2015 Report Card, undated, 2 pp. Parent

H 2012-2013 Report Card, undated, 2 pp. Parent

I 2011-2012 Report Card, undated, 2 pp. Parent

J , 6/14/12, 2 pp. Parent

K , 6/15/12, 6 pp. Parent

L , 3/10/09, 3 pp. Parent

M , 3/10/09, 4 pp. Parent

N , 3/10/09, 4 pp. Parent

O , 3/10/09, 1 p. Parent

P Consent for Initial Evaluation, 3/5/09, 1 p. Parent

Q , undated, 1 p. Parent

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 26, 2017

I Decision on Extension, 12/16/16, 1p. IHO

II Decision on Extension, 1/26/17, 1 p. IHO

POST HEARING SUBMISSIONS

III Decision on Extension, 2/20/17, 1 p. IHO

IV P arent's Closing Brief, 3/2/17, 27 pp. IHO

V District's Closing Brief and Memoranda of Law, 3/2/17, 19 pp. IHO