New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 164677

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 8, 2017

July 27, 2017

September 7, 2017

Actual Record Closed Date: July 6, 2018

Hearing Officer: Jeffrey Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 8, 2017

ESQ., Attorney — Student

District Representative, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 27, 2017

ESQ., Attorney — Student

Parents

Ed.D., (via telephone) — Student

District Representative, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 7, 2017

ESQ., Attorney — Student

CSE Coordinator (via telephone) — Student

District Representative, — DOE

District Representative, — DOE

I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parent in a due process complaint notice dated November 30, 2016. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education for the 2014/15, 2015/16, and 2016/17 school years (Ex. P-A).^[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).

The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).

II. PROCEDURAL HISTORY

The DOE appointed me to hear this matter on December 7, 2016. See 8 NYCRR § 200.5(j)(3)(i). Hearings on the merits of this matter were thereafter held on: March 8, 2017; July 27, 2017; and September 7, 2017.^[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

III. FACTUAL BACKGROUND

At the time of the November 30, 2016 due process complaint, the student was twelve (12) years old and had been diagnosed with: a language-based learning disability; a language impairment; an auditory processing disorder; a social communication disorder; an articulation deficiency; an anxiety disorder; and ptosis (Exs. P-A at 2, P-H, P-N at 1, 4-5, P-P at 5, P-Q at 16, P-R at 2, P-Y at 4, P-AA at 5, P-BB at 4, P-CC at 4, P-DD at 5, P-MM at 1, 7). For the 2016/17 school year, the student attended the seventh grade at the

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(Exs. P-A at 1, P-B at 1, P-C, P-E, P-F, P-G, P-JJ, P-KK, P-NN, P-OO, P-PP). The Commissioner of Education has not approved the School as a nonpublic school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with a speech or language impairment is not in dispute in this hearing (Exs. P-A, P-O at 1, P-V at 1, P-EE at 1, P-GG at 1, P-HH at 1). See 34 C.F.R. § 300.8(c)(11); 8 NYCRR § 200.1(zz)(11).^[3]

The student was born in and was in from infancy until he was when he was three years old. Upon his he was immediately evaluated and received an IEP through the Committee on Preschool Education (the “CPSE”). He began receiving speech/language, occupational, and physical therapies and was enrolled in a 12:1+1 preschool class at the (Exs. P-P at 2, P-Q at 1, P-R at 2-3).

The student attended from kindergarten through fifth grade (Exs. P-P at 2, P-R at 3). On June 3, 2013, the CSE convened to develop an IEP for the student for the 2013/14 school year (4th grade). The CSE recommended that the student receive instruction in a general education setting with support of group speech/language therapy, two (2) times per week for thirty (30) minutes per session (Ex. P-GG at 6).

On May 28, 2014, the CSE reconvened to develop an IEP for the student for the compliance date were granted (R. 5-7, 202-203; Exs. IHO-I - IHO-XVIII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

2014/15 school year (5th grade). The CSE continued to recommend that the student receive general education instruction supported by group (3:1) speech/language therapy, two (2) times per week for thirty (30) minutes per session (Ex. P-EE at 5).

On January 21, 2015, the student participated in a pediatric developmental behavioral assessment by provided recommendations including, but not limited to a school placement with a low student-to-teacher ratio and being taught using a multisensory approach (Exs. P-Q at 2, P-Y at 4-5).

The student participated in a DOE psychoeducational evaluation over three (3) sessions in January and February 2015. The school psychologist administered the Wechsler Intelligence Scale for Children - Fourth Edition (“WISC-IV”) to the student. The student achieved a Full Scale IQ of 90 (25th percentile), which was in the lower limit of the Average range. On an administration of the Wechsler Individual Achievement Test - Third Edition (“WIAT-III”), the student performed in the Average range for math computation (107), math problem solving (89), essay writing (98), and word decoding (105). He performed in the Below Average range in reading comprehension (83) and sentence composition (Exs. P-Q at 2, P-X at 3-4).

On February 13, 2015, the student participated in a speech/language evaluation through the DOE. The results of the Clinical Evaluation of Language Fundamentals Fifth Edition (“CELF-5") revealed the student to have moderate delays in his Core Language (81), Receptive Language (80), Expressive Language (75), and Language Memory (64) Indexes. The student demonstrated weaknesses in: following two-to-three step directives, recalling sentences, formulating sentences, identifying word relationships, understanding the relationships of time, space, and comparisons, and defining grade-level vocabulary words. Speech/language therapy was recommended (Ex. P-W at 5).

On February 13, 2015, the CSE reconvened to develop an IEP for the student through February 2016. The CSE recommended that the student’s general education instruction be supported by special education teacher support services (“SETSS”) for ELA and math, five (5) times per week. The CSE also recommended that the student receive group (3:1) speech/language therapy, two (2) times per week for thirty (30)

minutes per session (Ex. P-V at 6).

In the spring of 2015, the student score a proficiency level of 2.2 on the New York State ELA exam and a level 2.9 on the New York State math exam (Ex. P-O at 1).

In sixth grade, the student was enrolled at (Ex. P-R at 3). In a November 17, 2015 auditory processing evaluation, the student demonstrated weakness in the areas of speech understanding in noise, short-term auditory memory, binaural integration and separation, auditory decoding and linguistic report of pitch pattern sequences. Trial use of an

- system in the classroom was recommended to help address the student’s listening issues, as well as preferential seating in the classroom (Exs. P-S, P-HH at 1).

In January 2016, the student was referred to the at for a psychological evaluation due to concerns regarding his academic functioning. On an administration of the Wechsler Intelligence Scale for Children - Fifth Edition (“WISC-V”), the student earned a Full Scale IQ score of 84 (14th percentile). On the Visual Spatial Index (“VSI”) the student composite score was 92 at the 30th percentile falling in the Average range. On the Processing Speed Index (“PSI”), the student placed within the Average range overall with an index score of 95 at the 37th percentile. On the Fluid Reasoning Index (“FRI”), the student’s composite score was 91 falling at the 27th percentile in the Average range. On the Verbal Comprehension Index (“VCI”), the student performed in the Low Average range with a composite score of 86 at the 18th percentile (Ex. P-Q at 13).

The WIAT-III was administered to the student to evaluate his listening, reading, writing, and mathematics skills. The student’s overall reading skills (Total Reading Composite), including word reading and reading comprehension fall in the Average range for his age with a standard score of 91 at the 21st percentile. The student’s Mathematics Composite score was in the Average range with standard score of 95 at the 37th percentile. The student’s Oral Language Composite fell in the Below Average range with a standard score of 82 at the 12th percentile (Ex. P-Q at 14).

On the Beery-Buktenica Developmental Test of Motor Integration (“Beery VMI”) - Sixth Edition, used to assess visual motor ability, the student obtained a standard score of 97 at the 42nd percentile falling the Average range. On the Vineland Adaptive Behavior Scales - Second Edition (“Vineland-II”), the student’s Adaptive Behavior Composite score was 87 at the 19th percentile falling in the Adequate range. That score suggested that the student required age appropriate support and supervision in order to complete daily tasks effectively and maintain his well-being (Ex. P-Q at 14).

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Based on the data obtained from the January 2016 psychological evaluation, the psychologist recommended that the student would benefit from a school placement with a low student-to-teacher ratio with instructor that have expertise in working with children with language disorders and difficulties with learning (Ex. P-Q at 16).

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On January 26, 2016, the CSE reconvened to develop an IEP for the student through January 2017. Notwithstanding the psychologist’s recommendation, the CSE continued to recommend that the student receive the majority of his instruction in a general education setting supported by SETSS, five (5) periods per week, and group speech/language therapy, two (2) times per week for forty (40) minutes per session (Ex. P-O at 6). On May 10, 2016, the CSE amended the IEP to change the location of recommended SETSS (but not the number of sessions per week) and to add group counseling, one time per week for thirty (30) minutes per session, and the use of an

(Exs. P-A at 2, P-HH at 6-7). -

On May 18, 2016, the parent signed a contract for the student’s enrollment at the School for the 2016/17 school year (Ex. P-F). In a letter dated August 23, 2016, counsel for the student and parent advised the CSE that the parent was rejecting its proposed program for the student and would unilaterally place the student at the School at public expense for the 2016/17 school year (Ex. PB). This hearing ensued.

IV. POSITIONS OF THE PARTIES

A. The DOE

The DOE declined to make any presentation of evidence at the hearing in this matter. The DOE representatives who attended the hearings in this matter made no opening statement, declined to cross-examine the parent’s witnesses, called no witnesses of their own, and offered no exhibits (R. 57, 81, 136, 145, 162, 199, 204). Consequently, the DOE failed to establish that its recommended placement was appropriate could meet the student’s needs. The DOE also failed to provide any basis upon which the CSE team could have reasonably relied to justify its recommendations as appropriate.

B. The Parents

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The DOE failed to provide the student with a FAPE for the 2014/15, 2015/16 and 2016/17 school years. The parent’s unilateral placement of the student at the School for the 2016/17 school year was appropriate. The student is entitled to compensatory additional services to address the denial of FAPE during the 2014/15 and 2015/16 school years (Ex. P-A).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176,

206-07 (1982).^[4]

A FAPE is offered 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. See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are 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. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).

1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity reater than mere 'trivial advancement.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).

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 Case No. 164677

34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals 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 C.F.R. §§ 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 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

B. Proposed Public Program

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).

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

1. Denial of FAPE - 2014/15 School Year

By the time the student entered his fifth grade year at he was already at least one year behind grade level in reading and math and continued to suffer the same struggles and deficiencies he had the year before, i.e., struggles with comprehending instructions in class, "processing oral and written directions," reading comprehension, and the need for support, prompts, and direction from the teacher throughout the day (Exs. P

GG at 4; P-EE at 1-4). When the CSE met on May 28, 2014 to draft the student’s fifth grade IEP, they were aware of his continued deficiencies and struggles. The CSE was in possession of a November 2013 Auditory Processing Evaluation, which documented the student’s below age-level performance in most areas and confirmed his longstanding weaknesses in phonology, memory, comprehension, following directions, sequencing, vocabulary, writing, and expressive and receptive language (Ex. P-GG at 3, 6, 8, 10, 14). The student’s general education teacher also confirmed that he showed deficits in recalling information, sound discrimination, articulation, auditory learning, delayed responses, and below average performance in most academics (Ex. P-FF at 2).

The CSE reconvened on February 13, 2015 to draft an IEP for the remainder of the 2014/15 school year and the beginning of the following year. The parent participated in the meeting and told the CSE team that the student could only do his homework with significant parental assistance and that she no longer felt able to re-teach all of the student’s school work to him at home (R. 100, 102, 124-126). The parent requested that the CSE to provide the student with a more supportive placement (R. 102, 119). The parent provided the CSE with December 2014 and January 2015 private Pediatric Developmental and Behavioral Assessments by the student’s pediatrician, which showed that despite the student’s "good cognitive potential" (Ex. PCC at 2), he was neither performing at age level nor was he working to his potential (Exs. P-AA at 2-4, P-BB at 3, P-CC at 2). Rather, he struggled with processing information, self-esteem, articulation, reading, verbal and reading comprehension, vocabulary, verbal reasoning, linguistics, processing information/directions, and expressive and receptive language (Exs. P-Y at 1-4, P-AA at 2-4, P-BB at 2-3, P-CC at 1-2, P-DD at 2, 3). Additionally, the student’s evaluative testing showed that his general knowledge, verbal reasoning, vocabulary skills, and short term and working memory were years behind agelevel (Ex. P-AA at 2-4). diagnosed the student with Language Based

Learning Disabilities, Auditory Processing Disorder, Language Impairment Articulation Deficiency and Ptosis, and recommended that be placed in a school that specialized in working with children with language-based learning disabilities, a low student-teacher ratio, a multi-sensory approach, a classroom with similar performing peer models, an educational program individualized to accommodate 's strengths, weaknesses, and learning needs, and the use of an

- system (Exs. P-Y at 4-5, P-AA at 5). The CSE disregarded recommendations (Ex. P-V at 6). Although the CSE discussed the student’s need for an 122; Ex. P- V). - unit, it failed to recommend or provide an unit (R. 121-

Moreover, at the February 13, 2015 meeting, the CSE also had possession of the student’s triennial January/February 2015 DOE Psychoeducational Evaluation and February 2015 DOE SLT Evaluation (Exs. P-W, P-X). The reports stated that the student’s Full Scale IQ was within the Average range, but he still struggled with memory, processing speed, writing, expressive and receptive language, vocabulary and reading, and auditory comprehension (Exs. P-X at 2-4, P-W at 1-2). His "only strength" was his ability to manipulate words to form grammatically and semantically correct sentences (Ex. P-W at 2). The student’s teacher reported that he was reading below grade level, required help recalling information, needed repetition of directions and frequent checks of his classwork, and that his mathematical problem solving, reading comprehension, and writing skills were all weak (Ex. P-X at 2-3). Additionally, the student’s grades in his core subjects were all below and well below standards, further evidencing that his placement in a general education classroom was preventing him from accessing his education and making progress (Ex. P-U at 1-2).

Although the CSE team indicated that it "did not disagree" with the recommendation for a smaller, more supportive classroom environment for the student, it claimed that did not have a smaller classroom with children who had academic needs similar to his (R. 109-111; 120-121; 141-145). The CSE told the parent that the problem was that the "grouping was wrong;" the student would have been too academically advanced for the students in the smaller classroom, and that did not have a smaller classroom or an ICT setting at all (R. 109-111, 120-121, 143). The CSE never discussed placing the student in a more supportive setting in another NYC DOE school or district (R. 145). Instead, the CSE simply recommended the same general education classroom with SETSS that had failed to provide enough support for the student in past years (Ex. P-V at 10; R. 109-111). The parent expressed her disagreement with the CSE's program recommendation, stating that a SETSS provider could not provide the significant amount of support the student would need in a class setting of over thirty (30) students (R. 110-111, 120-121).

The resulting IEP, implementation date February 13, 2015, recognized the student’s failure to progress and identified the same struggles that had been apparent for years, i.e., difficulty following directions, formulating verbal and written sentences with grade level vocabulary, recall/memory, expressive and receptive language, reading comprehension, and self-confidence (Ex. P-V at 1-2). The February 2015 IEP indicated that the student remained at a fourth grade reading level, having made no progress in two

(2) years, and scored below grade level on New York State testing. Nevertheless, the CSE stated in the IEP that a more supportive setting was rejected as "too restrictive" (Ex. P-V at 10).

The student failed to make meaningful progress in the DOE's recommended program over the course of the 2014/15 school year. The student's teachers and therapists consistently reported that he performed below grade level and struggled on a daily basis (Ex. P-X at 2-4). In May 2015, the parent contacted the school and asked again about an

- unit for the student. The parent was informed that

- equipment was not available because the school year was coming to an end (R. 122-123). The student continued to flounder for the remainder of the 2014/15 school year, yet the CSE failed to reconvene to offer additional support (R. 120).

2. Denial of FAPE - 2015/16 School Year

The DOE failed to establish that its recommended placement for the student for the 2015/16 school year was appropriate and could meet his needs. The February 13, 2015 IEP was the operative IEP entering the student’s grade school year. The CSE convened for its annual review on January 26, 2016. The resulting IEP recommended the same general education classroom with SETSS for ELA three (3) times per week in a separate location and SETSS for math two (2) times per week in the general education classroom as previously recommended in February 2015 (Ex. P-O).

During the student’s sixth grade year, he continued to struggle with reading and comprehension (R. 95-96; Ex. P-I). He required increased processing time and redirection throughout the day (Ex. P-O at 1-3). At a 2015/16 parent-teacher meeting, the student’s science and ELA teachers told the parent that they had tried breaking the class into smaller groups, but it did not help the student’s comprehension, attention, and focus problems (R. 95). All of the student’s teachers told the parent that he struggled in all language-based areas (R. 96). The student’s reading skills had not progressed for at least two (2) years and he performed below grade level in math, showing regression (Ex. P-O at 1, 10).

At the time of the January 25, 2016 IEP meeting, the CSE had possession of a November 17, 2015 private auditory processing evaluation (Ex. P-S) and a January 2016 private psychological assessment (R. 97-99; Exs. P-Q, P-R). The student was again diagnosed with a language disorder. The evaluators recommended a school placement with a low student-to-teacher ratio, multiple teaching media, and instructors that have expertise in working with children with language disorders and difficulty learning (Ex. PQ at 16). The student’s grades, which dramatically declined throughout his sixth grade year, confirmed his need for a more supportive learning environment (Ex. P-I at 1). The student’s ELA grades went from 77 to 67, social studies from 80 to 63, math from 91 to 66, and science from 80 to 78 (Ex. P-I). The parent again asked the CSE for additional support for the student, but was refused (R. 105-107).

On February 2, 2016, one month after the January CSE meeting, the student was reevaluated by his pediatrician, (Ex. P-N). reiterated that the student still struggled with language deficits, weakness in auditory and reading comprehension, auditory processing issues, following directions, sequencing information, and maintaining social interaction (Ex. P-N at 1). also emphasized that, despite many recommendations, the student had still not received an system from the DOE. reported that the student tested below grade level in all academic areas other than math and that his scores in reading and writing were slightly worse than his scores from December 2014. again recommended placement for the student in a school for children with language-based learning disabilities, a low student-to-teacher ratio, a multi-sensory learning approach an individualized educational program, 1:1 support, an

- system, and a neuropsychological evaluation to better understand learning processes and weaknesses (Ex. P-N at 5). consider recommendation.

The CSE failed to reconvene to

3. Denial of FAPE - 2016/17 School Year

The parent participated in a meeting on May 10, 2016 to develop an IEP for the student’s 2016/17 school year. The resulting IEP, implementation date May 10, 2016, recommended the same general education classroom with the same number of hours of SETSS services (only partially changing locations) - three (3) times per week for ELA (once in the general education classroom and twice in a separate location) and two (2) times per week for math (once in the general education classroom and once in a separate location), as well as group SLT two (2) times per week for forty (40) minutes, group counseling one time per week for thirty (30) minutes, and an system (Ex. P-HH at 7). The parent disagreed with the CSE's SETSS recommendation and renewed her request that the student be placed in a smaller class setting to better support his auditory, language, and processing needs (Ex. P-HH at 8). The CSE refused.

The student’s then-recent evaluations and teachers' reports reflected that he continued to have difficulty with writing tasks, grasping abstract ideas, comprehending language in math class, and following lessons, and had below average exam scores and declining grades (Ex. P-HH at 1). According to the IEP, the student still remained at a fourth grade reading level - having made no progress in three years (Ex. P-HH at 10). An April 12, 2016 classroom observation showed that the student continued to have difficulty remaining engaged, completing classwork independently, and participating in class discussion, and that he required redirection and prompting to complete class assignments (Ex. P-L). The student’s teachers reported that his performance and quality of work had decreased and were below average (Ex. P-J at 1). His teacher stated that he needed repetition and reinforcement, had trouble starting and finishing assignments, had a hard time grasping and answering abstract ideas, and that his answers were often very basic and simple. The student finished his sixth grade year failing social studies and barely passing ELA and math (Ex. P-J at 2, 4).

C. Appropriateness of

Given my finding that the DOE failed to provide the student with a FAPE during the 2016/7 school year, I turn to the appropriateness of the parent’s private program. With respect to the second criterion for an award of reimbursement, the parents must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.

In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).

Based on the evidence entered into the hearing record, including the credible testimony of ( CSE Coordinator) and the student’s parent, I find that the School was an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs.

is a small, private, special education school with specially designed instruction targeted to meet the unique needs of its students (Ex. P-D). testified that is a self-contained school for students with language-based learning disabilities and executive functioning disorders that prevent learning in a traditional educational environment (R. 169). Prior to admission, the admissions team reviews all outside reports and documents provided by the student to make sure that is a school that will meet his or her needs (R. 173). In most cases, a student interview follows (R. 173-174). testified that all classrooms at are equipped with interactive and assistive technologies as well as FM systems to amplify the teacher's voice (R. 171). Students' needs are also addressed in the classroom through a small student-to-teacher ratio, repetition, teacher provided notes, 1:1 help, extra time and significant assistance with organization (R. 171-172). The staff consists of teachers, therapists, specialists, and administrators, who all help the students (R. 171, 177).

teachers have all been trained in evidence-based programs and reading interventions such as the Judy Hochman Writing Skills Program, which provides a standardized system to structure sentences and paragraphs to enable students to construct detailed paragraphs and essays (R. 193-194). Teachers augment each student's curriculum to tailor it to his or her individual needs and update each curriculum throughout the year (R. 175-176). Students are tested throughout the school year for reading fluency using the Fountas & Pinnell system (R. 174). teaching teams meet on a weekly basis to discuss ways that each student can be better supported (R. 176).

testified that she observes classrooms on a daily basis to help determine if each student's interventions are working optimally (R. 177-179). Math and literacy teaching groups are small, consisting of 3:1 to 6:1 student-to-teacher ratios (R. 171).

teachers participate in professional development both in and out of the school (R.

179-180). Students' grades are based not only on tests and quizzes, but also on effort, homework, responsibility, organization, and behavior (R. 183). Students' progress is closely monitored and parents are kept well informed on a regular basis throughout the year (R. 179-180).

testified that the student’s placement at provides the educational services he needs in a suitable environment in which, inter alia, his language, attentional, social, emotional, and academic needs are being appropriately addressed, thus allowing him to make meaningful educational progress (R. 198). In particular, testified that the student was in a seventh grade class of twelve (12) students with two (2) teachers (R. 182). He met in a smaller group of four students for math instruction and a group of five students for literacy instruction (Ex. P-KK at 2-3). The "small group setting provides individualized attention which greatly supports ] learning." The student also received SLT individually for reading and in a small group of six (6) students for language instruction on a weekly basis (R. 190). All of the student’s teachers at were "guided" by his speech-language therapist to help him become more fluent, articulate, and able to express his thoughts (R. 191). testified that the student was an "ideal" student because, despite his many deficits, he was hardworking and bright (R. 188). At , the student was given extra time to answer questions (R. 188). Class material and directions were "chunked" and repeated. Additionally, classwork was previewed so that he knew what to expect in the classroom (R. 189). The student’s teachers uniformly prompted him throughout the day to ask for help when needed.

testified that the student made a "great amount" of progress (R. 196). Specifically, his reading level jumped "significantly" from level "V" to level "Y" (R. 196197). His reading fluency, self-advocacy, and ability to answer questions all increased significantly (R. 196-198). Through the use of the Judy Hochman Basic Writing Skills Program, the student’s ability to organize and convey his thoughts improved (R. 193). The student’s seventh grade report card showed that he either exceeded or met all expectations in almost every core subject category at (Ex. P-C at 1-4). The

student’s teacher reviews showed that he was a diligent, determined, neat, and organized student (Ex. P-KK at 2). He often acquired information taught at the school easily, with some individual assistance, and made continuous progress in math, literacy, Spanish, current events, and history. He was always willing to help his peers who were struggling and consistently worked hard to complete his own work to the best of his ability. The student’s fluency improved and he began volunteering to read aloud in class (Ex. P-KK at 3).

D. Relevant Equities

The final criterion for a reimbursement award is that the parent's claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16. The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger, 348 F.3d at 523-24; Rafferty, 315 F.3d at 27; see also Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 (E.D. Pa. Oct. 22, 2007).

The relevant equities support an award of tuition reimbursement and/or direct payment for the student’s unilateral placement at for the 2016/17 school year. In a letter dated August 23, 2016, the parent gave the DOE adequate written notice of her intent to make a unilateral placement of the student at the for the 2016/17 school year at public expense (Ex. P-B). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is also no evidence indicating that the parent was uncooperative with the CSE (Exs. P-O, P-V, P-EE, P-GG, P-HH), see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the cost of the student’s tuition and related services at the unreasonable given the severity of the student’s needs and services necessary to address those needs (Exs. P-F, P-OO), see Carter, 510 U.S. at 16.

E. Compensatory Additional Services

Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).

State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Child with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).

Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Reg’l Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem”). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hourfor-hour replacement of the time spent without FAPE.” See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Id. at 526.

As noted above, the CSE failed to develop an appropriate IEP for the student for the 2014/15 and 2015/16 school years and the absence of an appropriate IEP denied the student a FAPE. Therefore, I find that the student is entitled to compensatory additional services to remedy the denial of FAPE. Using the credible testimony offered by and the student’s parent, I shall apply a qualitative approach in fashioning a remedy of additional services for the student.

-

the founder of testified that specializes in providing one-on-one tutorial services to special education students (R. 67-69).

programming is specifically custom-tailored to the needs of each student using a combination of research-based multi-sensory techniques that are most appropriate for that particular student (R. 68). Testing at indicated that the student performed below his grade level "across the board" in reading, comprehension, writing, spelling and math skills (R. 73-76). Specifically, although the student was about to enter the eighth grade, his decoding and spelling skills were on a fifth grade level, his qualitative reading skills were on a sixth grade level, and his math skills remained at a "low" seventh grade level. testified that, without 1:1 tutoring support, the student’s struggles would increase and his gap would widen as he moves forward as a result of his language-based learning disability, auditory processing deficits, and working memory challenges (R. 76-85). She testified that was appropriate for the student because his private evaluations recommended use of the Orton-Gillingham teaching method, which would recommend, in conjunction with other researchbased multi-sensory methodologies order to build the student’s writing, comprehension, and expressive language skills (R. 77).

Based on the foregoing, estimated that the student would need approximately 500 hours of tutoring to bring him up to his appropriate grade level (R. 77, 80). That calculation was based on the student’s test results, experience in working with many children with similar learning problems, and the development of a specific and individualized program for the student (R. 77-80). According to would maintain a "portfolio" for the student and she would communicate regularly with his instructors to "tweak" his learning program if it was not working as well as it could (R. 79-80). would also work with the student’s teachers at his school to integrate his learning programs (R. 80).

Applying a qualitative approach to the circumstances of this case, the student was deprived of a FAPE during the 2014/15 and 2015/16 school years. As there are 180 days in a school year and two (2) years at issue in this proceeding, an award of 500 hours equates to less than two (2) hours per day of compensatory instruction to compensate for the DOE's failure to provide the student with a FAPE in the past. The hearing record and testimony demonstrated that the program is appropriate, individualized, and tailored to meet the student’s needs in an intensive, but focused, manner and shall be awarded to the student to compensate for the DOE's failure to meet its obligations to him.

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,

IT IS

HEREBY ORDERED THAT:

The parent’s claim that the student was denied a free appropriate public education (FAPE) for the 2014/15, 2015/16 and 2016/17 school years is SUSTAINED;

The parent’s claim for reimbursement and/or direct payment of the student’s tuition to, and related services costs at, the for the 2016/17 school year is GRANTED; and within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parent for all costs associated with the student’s unilateral private placement at for the 2016/17 school year, and shall directly pay the private school for any and all outstanding costs, including tuition and related services costs, associated with said placement; and

The parent’s claim for compensatory additional services for the student is also GRANTED; and within thirty (30) days of its receipt of this Order the DOE shall authorize the student’s receipt of 500 hours of tutoring to be provided by Dated: July 25, 2018 /s/ Jeffrey J. Schiro mv

JEFFREY J. SCHIRO, ESQ.

Impartial Hearing Officer JS:mv

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. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD

PARENTS

A. Due Process Complaint Notice/Impartial Hearing Request, 11/20/16, 10 pgs.

B. Ten Day Notice, 8/23/16, 3 pgs.

C. School 7th Grade Report Card, 12/2016, 4 pgs.

D. School Program Description, undated, 2 pgs.

E. School Student Schedule, 2016/17, 1 pg.

F. School Enrollment Contract, 5/18/16, 4 pgs.

G. School Contract Addendum, 5/18/16, 2 pgs.

H. Audiologist Letter, 5/16/16, 1 pg.

I. 6th Grade Report Card, 2015/16, 1 pg.

J. 6th Grade School Assessment Team - Teacher Input Form, undated, 4 pgs.

K. Prescription - 5/15/16, 1 pg.

L. Classroom Observation, 4/12/16, 1 pg.

M. Social History Update, 3/2/16, 2 pgs.

N. Doctor Revisit Form, 2/2/16, 6 pgs.

O. Individualized Education Program (IEP), 1/26/16, 11 pgs.

P. Evaluation, 1/21/16, 5 pgs.

Q. Psychological Evaluation, 1/21/16, 22 pgs.

R. Psychosocial Assessment, 1/6/16, 7 pgs.

S. Auditory Processing Evaluation, 11/7/15, 7 pgs.

T. Waiver of IEP Meeting, 9/17/15, 1 pg.

U. [Reserved]

V. Individualized Education Program (IEP), 2/13/15, 12 pgs.

W. Speech/Language Diagnostic Evaluation, 2/13/15, 5 pgs.

X. DOE Psychoeducational Evaluation Report, 2/9/15, 4 pgs.

Y. Pediatric Developmental Behavioral Assessment, 1/21/15, 5 pgs.

Z. Social History Update, 1/16/15, 2 pgs.

AA. Pediatric Developmental Behavioral Assessment, 1/7/15, 6 pgs.

BB. Pediatric Developmental Behavioral Assessment, 12/31/14, 4 pgs.

CC. Pediatric Developmental Behavioral Assessment, 12/23/14, 5 pgs.

DD. Pediatric Developmental Behavioral Assessment, 12/22/14, 5 pgs.

EE. Individualized Education Program (IEP), 5/28/14, 12 pgs.

FF. Auditory Processing Evaluation, 11/6/13, 19 pgs.

GG. Individualized Education Program (IEP), 6/3/13, 11 pgs.

HH. Individualized Education Program (IEP), 5/10/16, 11 pgs.

II. [Withdrawn]

JJ. School 7th Grade Report Card, 3/2017, 4 pgs.

KK. School Mid-Year Narrative, 1/2017, 3 pgs.

LL. Letter, 6/22/17, 1 pg.

MM. Developmental & Behavioral Pediatric Revisit, 2/21/17, 8 pgs.

NN. School Attendance Report, 2016/17, 1 pg.

OO. School Tuition Affidavit, 5/22/17, 1 pg.

PP. School 7th Grade Trimester 3 Report, 6/2017, 8 pgs.

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I. Confirmation of Extension, 2/13/17, 1 pg.

II. Confirmation of Extension, 3/15/17, 1 pg.

III. Confirmation of Extension, 4/10/17, 1 pg.

IV. Confirmation of Extension, 5/11/17, 1 pg.

V. Confirmation of Extension, 6/14/17, 1 pg.

VI. Confirmation of Extension, 7/3/17, 1 pg.

VII. Confirmation of Extension, 8/8/17, 1 pg.

VIII. Confirmation of Extension, 9/13/17, 1 pg.

IX. Confirmation of Extension, 10/9/17, 1 pg.

X. Confirmation of Extension, 11/6/17, 1 pg.

XI. Confirmation of Extension, 12/13/17, 1 pg.

XII. Confirmation of Extension, 1/8/18, 1 pg.

XIII. Confirmation of Extension, 2/12/18, 1 pg.

XIV. Confirmation of Extension, 3/9/18, 1 pg.

XV. Confirmation of Extension, 4/9/18, 1 pg.

XVI. Confirmation of Extension, 5/7/18, 1 pg.

XVII. Confirmation of Extension, 6/19/18, 1 pg. XVIII. Confirmation of Extension, 7/5/18, 1 pg.

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”

[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case

[3] Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student’s educational experience. 8 NYCRR § 200.1(zz).

[4] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section