New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 165014

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 3, 2017

April 24, 2017

June 1, 2017

Actual Record Closed Date: June 30, 2017

Hearing Officer: Linda S. Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 3, 2017

Attorney — Parents

Chairperson Designee, CSE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 24, 2017

Attorney — Parents

Parents

Chairperson Designee, CSE — DOE

Teacher (via telephone) — DOE

via — DOE

telephone

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 1, 2017

Attorney — Parents

Parents

via — Parents

telephone

via — Parents

telephone

Chairperson Designee, CSE On January 16, 2017, I was designated by the New York City Department of — DOE

Education (“DOE”) as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York in the matter of and the parents through their attorney initiated this hearing on December 28, 2016 after a recusal. Hearings were held on March 3, 2017, April 24, 2017 and June 1, 2017. The parents seek a Final Order for the following: (1) a finding that the Department failed to offer a free appropriate public education ("FAPE") for the past two years; portions or all of the school years 2015-2016 and 2016-2017; (2) a referral to the Central-Based Support Team for identification of a non-public school ("NPS") equipped to meet his individual needs, (3) payment for for the deprivation of appropriate program and placement for the 2015-2016 and 2016-2017 school years by , by one of their specialized providers at the enhanced rate of an hour; (4) payment for a (" ")

, of , to conduct a " (" ") to identify and address ; (5) a (" ") to be conducted by a , from to be developed consistent with the , with participation by parent and then shared with all members of the staff who provide instructional and related services to and then the will be incorporated into ’s IEP; (6) payment for an independent evaluation by Dr.

in the amount of ; (7) the Department to fund an independent evaluation, to determine whether the use of would facilitate 's actual progress and enable him to obtain access to appropriate educational services; (8) the Department to fund an independent updated evaluation and evaluation to determine ’s current and provide appropriately individualized goals and services; (9) the Department to provide at least as recommended by Ms. ; and provide these corrective services outside the regular school day at an enhanced rate of ; (10) the Department to reconvene upon completion of all independent evaluations to consider the recommendations of Dr. 's evaluation to create an appropriate IEP in a education program (Exhs. 1 at 7 to 10; IV at 28). The parent's requested that I order that the DOE shall continue to provide related services of ; and per the November 10, 2014 IEP until these proceedings concluded and I granted the parent's request by interim order dated May 11, 2017

The parties moved to extend the compliance date in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing memoranda. 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 this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and the required documentation provided to the parties (Tr. at

14;163;256; 268; Exhs. I-VI). The current record close date is June 30 2017 and the decision due date is July 13, 2017. Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.

BACKGROUND

is a with a history of , who was diagnosed with is attending at , in the in (Exh. 8 at 1; Tr. at 37).

On March 12, 2014, the parent consented to initial evaluations (Exh. W).

On November 10, 2014, Committee on Preschool Special Education ("CPSE")

met and developed an initial IEP that classified , then aged as a preschool student with a disability and recommended be placed in a with a staffing ratio of and receive related services of

, , and

(Exh. E at 21).

On June 16, 2014, the Evaluation was conducted by , Ph.D., ,who assessed 's by and found a of , in the (Exh. SS at 4). She used the and found he met the criteria for (Exh. SS at 1). Dr. noted that "

" (Exh. SS at 2) and (Exh. SS

at 3) and that he exhibited " " and had "

" with " " (Exh.

SS at 4).

On June 26, 2014, the Evaluation was conducted on and the evaluator noted that he "

" (Exh. at QQ).

On June 26, 2014, the Educational Evaluation was conducted by the and the evaluator noted that received

(Exh. PP at 1) and recommended placement in a

"

" (Exh. PP

at 4).

On July 18, 2014, the rated 's in the and the reporter found that was previously diagnosed with in early intervention and continued to be diagnosed in the (Exh.

NN at 3) and that he was "

" (Exh. NN at 4) and that he required "

" (Exh. NN at 6).

On August 13, 2015, CPSE met and developed anl IEP that classified , then aged as a preschool student with a disability. The CPSE review team recommended be placed in a with a staffing ratio of and receive of services and receive related services of i

, and (Exh.

21 at 1).

On July 5, 2015, the CPSE report indicated that was attending in a class with a staffing ratio of and received and his skills and his skills were (Exh. 24 at1). The special education teacher noted that "

" and displayed " "(Exh. 24 at 2).

On January 21, 2016, the parent consented to new testing and assessments (Exh.

13).

On March 7, 2016, the indicated that was placed in a class with a staffing ratio of and that he "

" and that " " (Exh. 18 at 1).

On May 2016, the parent emailed the district concerning the meeting that took place on March 16, 2016 (Exh. K). The parent wrote to the chairperson to state that her son struggled in his current preschool class with a staffing ratio of and that throughout his educational career her son struggled and that a recommendation of a with a staffing ratio of was insufficient to meet his needs (Id.). She stated requested other evaluations take place after his hearing was tested (Id.).

On August 4, 2016, the Evaluation was conducted when was and the evaluator noted that the parent reported that had "

" (Exh. 9 at 2), and recommended

as

(Exh. 9 at 3) and

(Exh 9 at 5).

On August 4, 2016, the evaluation was conducted and the evaluator noted that

" " and "

" (Exh. 8 at 1) and that had and recommended (Exh. 8 at 4) and and , and

(Exh. 8 at 5).

On August 4, 2016, the Evaluation was conducted by , Ph.D., at , who assessed 's the and reported a score of ; his were assessed by the and compared the with the noted "

" (Exh. 7 at 2) and his "

" (Exh. 7 at 3). Dr. found "

" (Id.), and noted that attended for 2 years with and that for his first year of preschool, did well in a class with a staffing ratio of ; however, he was less successful in his second year of preschool in a class with a staffing ratio of and noted that the recommended class staffing ratio of concerned the parent as she felt there was inadequate support (Id.).

On August 8, 2016, the was conducted and the reporter noted that was diagnosed with and at the and related the parent's concerns as her son's first year of preschool was successful in a class with a staffing ratio of ; however, her son struggled in his second year of preschool in a class with a staffing ratio of (Exh. 6 at 1). The reporter indicated that struggled with and per the evaluation and that needed " " (Exh. 6 at 2). The reporter noted that the parent was concerned that CSE recommended a class with a staffing ratio of as he struggled in his preschool class with a staffing ratio of and requested a than (Exh. 6 at 3).

On August 16, 2016, the CSE met and classified with and recommended he be placed in with a with a staffing ratio of for and receive related services of ; and

; as well as

(Exh. 2 at 11). The IEP did not recommend a school program and did not recommend , or a , but recommended and (Exh. 2 at 15,16).

, Ph.D., , conducted a evaluation on April 24, 2017, when was in at and assessed his on the and found a , in the and he scored

(Exh. XX at 20). He recommended an NPS with resources to deal with his as well as his and a (Exh. XX at 21).

THE DOE'S CASE

The DOE representative presented the testimony of , teacher and , for the 2016-2017 school year and did not present any witnesses for the 2015-2016 school year (Tr. at 158). The DOE representative stated that FAPE was provided to in the 2015-2016 and 2016-2017 school years and that the was tailored for in the least restrictive environment ("LRE") and that did not require compensatory services (Exh. V at 2;

Tr. at 36-37).

Ms. , a NYS licensed and certified special education teacher at and employed by the DOE for 15 years, testified that the school used a (Tr. at 42). She described the for the 2016-2017 school year (Tr. at 44). She explained that was placed in her class with another student and that her class contained in a class of children (Tr. at 46). She described 's started in September 2016, as she noticed that . She stressed that she addressed (Tr. at 48). She

recalled that had issues and and she noted

that helped him as did and (Tr. at 51). She explained that had decreased as he was given (Tr. at 54). She stated that she was aware of the parent's concerns about and that the classroom became his unofficial (Tr. at 57). She opined that made progress in his ability to and could and that did not require a (Tr. at 60-62). She stressed that there were for and that the IEP noted that he required a (Tr. at 64). She recalled that there were (Tr. at 67) and so the staffing ratio was .

On cross Ms. stated that her school was composed of and that (Tr. at 71) and that (Tr. at 68). She stated that the goal to was not appropriate as and when she tested him in March 2017, he was on in the with her help (Tr. at 74). She explained that the (Tr. at 76). She

described the classifications in her class included (Tr. at 84). She

recalled that had issues and recalled (Tr. at 87). She recollected that (Tr. at 88) and she noticed in September (Tr. at 91) and that (Tr. at 77). She described his in the fall of 2016 (Tr. at 93). She recalled in October 2016. She recollected that the parent informed her that her son (Tr. at 97). She recollected an incident in December 2016, when (Tr. at 99). She stressed that (Tr. at 101). She agreed that had issues when (Tr. at 99; 106).

Mr. , a NYS licensed and certified employed by the DOE for 3 years, testified he participated in the IEP meeting on August 16, 2016 and that the team reviewed the CPSE IEP and noted there were for and that he required a and that he had (Tr. at 116). He stated that based on that a class was too restrictive (Tr. at 119) and that any setting besides a was too restrictive (Tr. at 121)

On cross Mr. stated that he did not recall that parent told the team about her son's (Tr. at 123). He recalled that the team reviewed the IEP conducted in March 2016 and the classroom observation (Exh. 18) and that the team was aware that needed to address as well as (Tr. at 124;128). He stated that he recalled that the parent commented in the IEP that her son received (Tr. at 133). He noted that the , Dr. stated that did well in a class of and that the parent requested a NPS in a class with a staffing ratio of at the IEP meeting (Tr. at 135), but maintained that the listed in the IEP and the were sufficient support to address his (Tr.

at 138). He stressed that unless the CPSE had developed the initial , then the CSE would also develop a and since the CPSE did not develop the , the CSE did not develop a . He opined that was addressed by the listed in the IEP (Tr. at 143). He recalled that there were no providers at the meeting and the recommendations for the related services were determined by the related service provider's reports (Tr. at 144). He admitted that he did not remember who drafted the related service goals (Tr. at 145;148). He acknowledged that he was not aware of the requirement for a for as he was coming to a in a community school from a NPS in a classroom (Tr. at 153). He stated that he did not recall the parent requesting a to address her son's (Tr. at 158).

THE PARENT'S CASE

The parent's case was presented in the testimony of the parent, Dr. ,

, , and the .

The parent maintained that required a program with in addition to a program to progress (Exh. 1 at 10; IV at 31).

testified that he has a Ph.D. in and is (Tr. at 205) and employed as a for 20 years (Tr. at 207). Dr. stated that he questioned the parent and the teachers to obtain the current functioning (Tr. at 208). He recalled that (Tr.

at 210). He noted that 's scores were mostly in the (Tr. at

212). He stressed the required " "

(Tr. at 214). He diagnosed with (Tr. at 216). He

opined that the LRE would be a NPS (Tr. at 219), and that one of the most research-based methods to address 's issues would be by a

(" ") and recommended (Exh. XX at 22) to (Tr. at 221). He further recommended evaluation as a related service (Tr. at 222). He stressed that had issues (Tr. at 224) and and so his had to develop ways of dealing with his (Tr. at 225) and that his rate for a report was (Tr. at 227).

Ms. , a possessor of a certification in and a NYS licensed , and a , testified that she was employed as for 16 years (Tr. at 173-174). She stated that she conducted the and then created a to (Tr. at 175). She opined that she interviewed 's parent and charged to conduct a and in her role as she conduct 60 to 70 s (Tr. at 179). She noted that serviced many students per year with various academic and behavioral disorders to provide positive, proactive behavior support strategies to increase appropriate behavior (Tr. at 175). She explained that she was a in various public schools in NYC and observed all types of ratios and described the assessments with the parent and school staff she used to develop an appropriate and determine the conditions that caused the behavior and the consequences of the behavior and to analyze the behavior and then create a report (Tr. at 181). She stressed the difference between a DOE and her and noted that the DOE failed to include (Tr. at 183) and without it was impossible to determine (Tr. at 185). She stated that the parent informed her of (Tr. at 186-187). She noted that she developed 35 to 45 BIPs on a yearly basis and she charged for her created (Tr. at 188). She described ' experience with and noted that the staff was trained in as they were supervised by a (Tr. at 189). She opined that required make-up services to (Tr. at

191). She stressed that he should receive hours at the rate of per hour by to address for 2 years (Tr. at 192-193). She opined that his parent should receive to (Tr. at

194). She noted that and would

. She recommended at the rate of per hour (Tr.

at 197). She opined that many parents were unable to attend session at school and that was able to provide as well as (Id.).

The parent testified that her son attended , a community for the 2016-2017 school year (Tr. at 235). She stated that he went to for 2 years and that his first year the staffing ratio of and he did well and she recalled that because her son did well in the second year at her son was placed in a less restrictive environment in a class with a staffing ratio of and that his last year at was difficulty as he (Tr. at 238). She opined that her son was , but he regressed in his last year at as the class size was (Id.). She recalled that she participated in the review for the 2015-2016 school year and told the administrator that the class size ( ) was and her son needed more support (Id.). She further recalled that she participated in the review for the 2016- 2017 school year and that she told the team that the class size of did not have sufficient support (Tr. at 239). She recalled that her son received at the age of and that in addition to helped her son (Tr. at 241). She recalled that did not use , but in a class of children, her son was able to progress in a (Tr. at 242). She opined that her son responded well to and and that she conveyed her feelings about the benefits of a with and that the team disregarded her input (Tr. at 243). She stated that she participated in the March 2016 IEP meeting and the team rejected her request for a than , but stated that they would consider adding a , and in August 2016, and her son were assessed by the CSE, but the August 2016 IEP team disregarded her request for a and a (Tr. at 248). She stated that her son had issues during the 2016-2017 school year and that she agreed with Ms. 's recommendation of hours of services for her son (Tr. at 255), as he had done very well with in the past (Tr. at 256). She stated that requested an independent

(Exh. F) and agreed with his conclusion that a school using like would be very beneficial (Tr. at 258). She further stated that a would benefit him to (Tr. at 259).

FINDINGS OF FACT AND DECISION

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 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 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].

(2015-2016)

The parent claims that the 2015-2016 IEP was substantively and procedurally defective. The parent's 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 seriously infringes upon the parents' opportunity to meaningfully participate in the IEP process. 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 parent alleged the August 13, 2015 IEP was not appropriate because the DOE failed to assess all 's areas of deficits (Exh. V I at 18). The parent's attorney asserted that "Federal law requires that be 'assessed in all areas related to the suspected disability.' 34 C.F.R. § 300.304(b)(4). An evaluation must be 'tailored to assess specific areas of educational need[.]' 34 C.F.R. § 300.304(b)(2). And evaluations must be 'sufficiently comprehensive to identify all of the child's special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified[.]' 34 C.F.R. § 300.304(b)(6). Federal cases indicate that a failure to abide by regulatory requirements renders an evaluation inappropriate. See, e.g.,

Seattle Sch. Dist. No. 1 v. B.S., 82 F.3d 1493 (9th Cir. 1994)" (Exh. V I at 18).

I credit Dr. 's Evaluation that concluded that had

(Exh. SS at 3) and that he exhibited "

" and had " " with

" " (Exh. SS at 4).

I find credible the Evaluation that noted

"

" (Exh. at QQ).

I find that the Educational Evaluation recommended placement in a "

" (Exh. PP

at 4). I credit the that described as "

" (Exh. NN at 4) and that he

required " "

(Exh. NN at 6).

I find the August 13, 2015 CPSE team was aware of the need for sufficient support as I credit the CPSE special education teacher who noted that "

" and displayed "

"(Exh. 24 at 2), as well as deficits in and find the failure to conduct appropriate evaluations including a and and conduct comprehensive evaluations caused a denial of FAPE. I find that the initial CPSE recommended a in a program with (Exh. E at 21). I find that there was insufficient evidence to conclude that a with in a program would enable this student to make meaningful educational gains as he struggled in the and I find that the inappropriate caused a deprivation of educational benefits. I find that the DOE failed to provide a FAPE for 2015-2016 because he required a more intense program than the DOE was willing to provide. I credit the parent's testimony that she requested that the August 13, 2015 IEP team provide and a of children (Tr. at 239) and I find that the IEP did not did not reference and find the failure to consider a of with a staffing ratio of significantly impeded the parent's opportunity to participate in the decision-making process.

The parent's attorney asserted that the DOE failed to follow the requirements to notify the parent under 8 N.Y.C.R.R. § 200.5(a). The parent's attorney argued that the parent was never provided with any explanations "

." (Exh V I at 12). I

agree and find there was no testimony from the Department to establish what evaluations were considered to develop the August 13, 2015 IEP program an d the District's representative did not a present any witnesses to support her assertion that FAPE was provided for the 2015-2016 school year (Tr. at 158; Exh. V a 2).

The parent alleged the August 13, 2015 IEP was not appropriate because the team was not properly composed (Exh. V I at 13). I find the District representative did not present any witnesses or evidence to defend the August 13, 2015 IEP and its members.

The parent's attorney argued that the DOE failed to present to the parent "other options that the CSE considered; a description of each evaluation procedure, assessment, record or report that the CSE used as a basis for the proposed or refused action" per §

200.5(a)(3) (Exh. VI at 12). I agree and find that the DOE failed to explain why would not be provided.

Because I find the IEP is procedurally defective and FAPE was not provided to for the 2014-2015 school year I could end my inquiry; however, I note the parent made several claims of substantive defects.

The parent's attorney argued that the DOE failed to provide an appropriate placement for (Exh. VI at 14) and noted that that had a "

"(Exh. VI at 16). I agree.

The parent's attorney further argued that the IEP team did not conduct the necessary assessments including a or a to address his "

". (Exh. VI at 19). I agree and I

find that under 8 N.Y.C.R.R. § 200.4[b][1][v] was required as

(Exhs. SS at 4, NN at 4; PP at 4) and I find the record was replete with examples that (Tr. at 46-48,88,93,99,106) and I find that the failure to address was a denial of FAPE. I further find that the failure to assess and evaluate in all areas related to his disability caused a denial of FAPE.

The parent's attorney asserted that the "goals that were included on ’s IEPs reflect no particular level of present ability, establish no measurable goal with respect to the advancement of his academic abilities, and provide meaningless criteria for determining whether the goals have been met (Exh. VI at 19). The parent's attorney further asserted that "the absence of meaningful and measurable goals contributes to the failure of the Department to provide a FAPE (Exh. VI at 20). I agree.

The parent's attorney asserted that the failure to offer mandated by 8 NYCRR 200.1(kk). was a denial of FAPE (Exh. VI at 22). I agree.

Accordingly, I find the DOE failed to establish that FAPE was provided to for the 2015-2016 school year.

(2016-2017)

The parent claim that the 2016-2017 IEP was substantively and procedurally defective. The parent's 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 parent's 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].

I find the parent established that she expressed to the CSE that her son needed than the recommended class as her son struggled in his then current class (Exhs. K; 7 at 3;6 at 3; Tr. at 238). and I find the program recommendation was made without consideration of Dr. 's report or the DOE's or evaluation that noted (Exhs. 7 at 3; 8 at 4,5). I find that August 16, 2016 IEP team ignored the parent's concerns for (Exh.

243) and the need for the and a than the recommended (Tr. at 248). I find the CSE team was aware of the exhibited by as documented by Dr. 's evaluation that noted " " and had "

" with " " (Exh.

SS at 4). and I find that the CSE ignored the parent's request for and a and a then the recommended class which significantly impeded the parent's opportunity to participate in the decision making process. I further find the decision to deny and a caused a deprivation of educational benefits. I find record was replete with during the 2016-2017 school year as I credit the teacher's testimony of his and and his , ( Tr. at 51;57)

even with an unofficial and , and and continued (Tr. at 88;94). Accordingly, I find FAPE was not provided to during the 2016-2017 school year.

The parent alleged the August 16, 2016 IEP was not appropriate because the team was not properly composed and argued that the "Department did not provide any evidence as to who was actually participated in this meeting"(Exh. VI at 13). The parent's attorney asserted that the special education teacher who participated did not provide instruction to student (Id.). I agree and credit the testimony of Mr. , who stated that there were no related service providers at the IEP and he did not know who drafted the related service goals (Tr. at 144). I find the failure to include a special education teacher and related service providers impeded the parent's opportunity to participate in the decision making process.

The parent's attorney argued that the parent was never provided with any explanations "of why the Department refused to provide her requested more specialized program and of what evaluations were considered to determine what program, placement, services, and supports were offered to and she was never given notice of any other programs or services considered.....The Prior Written Notices that were submitted by the Department, do not include the information required by the Regulations. Ex. 5, 12, 20. " (Exh. VI at 12). I agree.

The parent's attorney asserted that the DOE failed to follow the requirements to notify the parent. I agree and find there was no testimony from the Department to establish what evaluations were considered to support recommendations the change of class size in the August 16, 2016 IEP program. I find the failure to provide any data in prior written notice when removing or changing a special education student's program in the notice, denied the parent meaningful participation in the development of ’s

August 16, 2016 IEP. I find the record was devoid of any evaluations to support the change in the program from to and Mr. 's explanation of change in class size was to comply with LRE mandate lacked evaluative support (Tr. at121).

Because I find the IEP is procedurally defective and FAPE was not provided to for the 2016-2017 school year I could end my inquiry; however, I note the parent made several claims of substantive defects.

The parent's attorney argued that the DOE failed to provide an appropriate placement for (Exh. VI at 14). I agree.

The parent alleged the August 16, 2016 IEP was not appropriate because the DOE failed to assess all 's areas of deficits (Exh. VI at 18). I agree and find that the DOE failed to assess all 's areas of deficits. I credit the testimony of Mr. who stated the he was present at the August 16, 2016 CSE meeting, but stressed that he did not consider a program for more restrictive than the recommended despite Dr. 's report and the classroom observation (Exh. 18) that noted (Tr. at 124;128;138), and that he could not consider a as the CPSE IEP did not include a (Tr. at143). I find there were no evaluations to support a program with in a program. I further find that the DOE’s claims that its program is appropriate was not supported by the district witnesses or the district's evidence (Exh. V at 2). I find that the record established that required of education and related services to prevent regression during the summer. I credit the testimony of the special education teacher who stated that required a and yet continued to exhibit (Tr. at 101). I find the August 16, 2016 CSE team was aware of the need for by Dr. 's report and from the report that listed and (Exh. 8 at 2) and find that the failure to provide an appropriate program resulted in a lack of FAPE. I find the DOE failed to provide a FAPE for 2016-2017 because he required a more intense program than the DOE was willing to provide.

The parent's attorney further argued that the IEP team did not conduct the necessary assessments including a or a to address his "

" (Exh. V I at 19). I agree and I

find that under 8 N.Y.C.R.R. § 200.4[b][1][v] an was required as

(Exhs. 7 at 3, 6 at 3; 8 at 4) and I find the record was replete with examples that and the failure to address was a denial of FAPE.

The parent's attorney maintained that the DOE failed to adequately assess 's needs (Exh. V I at 20). I credit the special education teacher's testimony that during the 2016-2017 school year that (Tr. at 73;88;93;99;106). I find that DOE failed to conduct any and failed to develop a to address . I further find that the failure to assess and evaluate in all areas related to his disability caused a denial of FAPE.

The parent's attorney asserted that the "goals that were included on ’s IEPs reflect no particular level of present ability, establish no measurable goal with respect to the advancement of his academic abilities, and provide meaningless criteria for determining whether the goals have been met (Exh. VI at 19). I agree and I credit the testimony of the special education teacher who stated that the goal was not appropriate (Tr. at 74).

The parent's attorney asserted that the failure to offer mandated by 8 NYCRR 200.1(kk). was a denial of FAPE (Exh. VI at 22). I agree.

The parent's attorney asserted that the DOE failed to provide the parent with progress reports and "failed to put forward any evidence of ’s progress towards any of his goals during any of the school years in question. In fact, the Department only admitted two 'progress reports' into evidence, neither of which address his progress towards his goals; an educational progress" (Exh. VI at 24). I agree.

The parent's attorney asserted that the DOE failed to provide appropriate services to to address his issues (Exh. VI at 25). I agree.

The parent's attorney asserted that the DOE failed to provided evaluation to identify so can gain access to his education and make meaningful progress (Exh. VI at 26). I agree.

Accordingly, I find the DOE failed to establish that FAPE was provided to for the 2016-2017 school year.

The parent's attorney maintained that was entitled to compensatory services where "a student with disabilities is denied a FAPE, 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 Reid v. District of Columbia, 401 F.3d 516, 518 (D.C.Cir. 2005) as cited in Newington, 546 F.3d at 123"(Exh. IV at 27). I agree. I credit the testimony Ms. regarding the amount of services that required and find he required (Tr. at 192). I find that required a total of for two years of missing services for the 2015-2016 and the 2016-2017 school years. I further credit her testimony regarding her conclusion that was required to make up for two years of missed hours of (Tr. at 197) and I credit her testimony that the hourly rate for was (Id).

The parent's attorney maintained that the parent was entitled to an appropriate and resultant (Exh. IV at 26) and I credit the testimony of Ms. regarding the cost of the and . The parent's attorney maintained that the parent was entitled to updated and evaluations and evaluation (Id.). I find the parent communicated his disagreement with the CPSE recommendation and I find the DOE failed to produce evaluations sufficiently comprehensive to identify all the student’s special education needs and to ascertain the physical, mental, behavioral, and emotional factors which contribute to the suspected disability. 8 N.Y.C.R.R. § 200.4(b)(6)(xi), §

200.4(b)(1)(v) § 200.4(b)(5)(iii). See, 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. 300.305(c); See also, A .D. v. Ed. Of Educ., 690 F.Supp.2d 193 (S.D.N.Y . 2010).

As to the claim for reimbursement for the private evaluations I find the parent's attorney argued that the DOE "failed to appropriately and timely respond to her request for an Independent Educational Evaluation. The Regulations of the Commissioner of Education §200.5(g)(1)(iv) states; 'If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.'" (Exh.

V I at 26). I find the parent requested an independent educational on December 15, 2016 (Exh F). I find that it was undisputed that the DOE did not timely evaluate Under the Jose P. Order, "parents of handicapped students who have been referred for evaluation and who have not been evaluated within thirty days may obtain an independent evaluation". I find that the district did not file an impartial hearing request defending their failure to evaluate. 34 C.F.R. § 502 (b)(2)(i); 8 NYCRR 200.5(g)(1)(v).

Based on the foregoing, I find the parent is entitled to funding for Dr.

evaluation (Exh. XX) at the of (Tr. at 225)

The parent's attorney maintained that the parent was entitled to independent evaluations (Exh. V I at 30). I find the parent communicated her disagreement with the CPSE and the CSE recommendations and I find the DOE failed to produce evaluations sufficiently comprehensive to identify all the student’s special education needs and to ascertain the physical, mental, behavioral, and emotional factors which contribute to the suspected disability. 8 N.Y.C.R.R. § 200.4(b)(6)(xi), § 200.4(b)(1)(v) §

200.4(b)(5)(iii). See, 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. 300.305(c); See also, A .D. v.

Ed. Of Educ., 690 F.Supp.2d 193 (S.D.N.Y . 2010). I further find the district did not file an impartial hearing request defending their failure to evaluate. 34 C.F.R. § 502 (b)(2)(i); 8 NYCRR 200.5(g)(1)(v). Based on the foregoing, I find the parents are entitled to funding for independent evaluations.

Order

Therefore, it is hereby ordered that the DOE shall provide with the following:(1) a referral to the Central-Based Support Team for identification of a NPS school equipped to meet his individual needs, and in particular enroll in an approved nonpublic school program utilizing consistent with his needs in a program; (2) payment for for the deprivation of appropriate program and placement for the 2015-2016 and 2016-2017 school years by , by one of their specialized providers at the enhanced rate of an hour; (3) payment for a , , of , to conduct an in the amount of to ; (4)

payment in the amount of for a to be conducted by a from to be developed consistent with the , (5) fund independent evaluations, (6) provide payment for an independent evaluation by Dr. in the amount of ; (7) provide at least make-up as recommended by Ms. ; and provide these corrective services outside the regular school day at an enhanced rate of ; (8) the DOE must reconvene upon completion of all evaluations and consider the recommendations of Dr.

and to create an appropriately individualized education program for a program.

Dated: July 13, 2017

LINDA S. AGOSTON, ESQ.

Impartial Hearing Officer LSA:

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 MARCH 3, 2017

1 Due Process, 12/17/15, 1 p. District

2 IEP, 8/16/16, 18 pp. District

3 Assessment Planning, 1/30/17, 1 p. District

4 CSE Meeting Notice, 8/4/16, 3 pp. District

5 Prior Written Notice, 8/18/16, 4 pp. District

6 8/8/16, 4 pp. District

7 Report, 8/4/16, 4 pp. District

8 , 8/4/16, 5 pp. District

9 Evaluation, 8/4/16, 4 pp. District

10 Name Change Notice, 2/22/16, 1 p. District

11 IEP, 3/16/16, 13 pp. District

12 Prior Written Notice, 3/31/16, 3 pp. District

13 Assessment Planning, 1/21/16, 1 p. District

14 CSE Educational Progress Report, 1/11/16, 2 pp. District

15 CSE Progress Report, 12/22/15, 3 pp. District

16 CSE Annual Report, 6/18/15, 2 pp. District

17 , 3/16/16, 2 pp. District

18 , 3/7/16, 1 p. District

19 Meeting Notice CSE, 3/1/16, 3 pp. District

20 Prior Written Notice, 6/10/16, 5 pp. District

21 CPSE IEP, 8/13/15, 13 pp. District

22 Authorization of IEP Change, 8/13/15, 1 p. District

23 Notice for Recommendation/Modification of IEP, 8/13/15, 1 p. District

24 CPSE Report, 7/6/15 2 pp. District

25 CSE Progress Report, 6/23/15, 3 pp. District

26 CSE Annual Report, 6/18/15, 2 pp. District

27 CSE Annual Report, 6/19/15, 1 p. District

I Decision on Extension, 3/3/17, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ONAPRIL 24, 2017

E IEP, 11/10/14, 24 pp. Parent

II Decision on Extension, 4/12/17, 1 p. IHO

III Decision on Extension, 4/24/17, 1p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ONJUNE 1, 2017

A Withdrawn Parent

B Withdrawn Parent

C Withdrawn Parent

D Withdrawn Parent

E IEP, 11/10/14. 24 pp. Parent

F IEE Request Letter, 12/15/16, 1 p. Parent

G Records Request, 12/6/16, 1 p. Parent

H Withdrawn Parent

I Withdrawn Parent

J Withdrawn Parent

K Email Correspondence btw Parent and DOE, 5/24/16, 2 pp. Parent

L Withdrawn Parent

M Withdrawn Parent

N Email Correspondence on Legal Name Change, 2/22/16, 1 p. Parent

O Withdrawn Parents

P Withdrawn Parent

Q Withdrawn Parent

R Withdrawn Parent

S Correspondence to Change Placement, 7/31/15, 1 p. Parent

T FNR/modification of IEP, 11/10/14, 1 p. Parent

U Authorization of IEP Change, 11/10/14, 1 p. Parent

V CPSE Authorization Form, 6/26/14, 1 p. Parent

W Consent for Evaluation, 3/12/14, 1 p. Parent

X Withdrawn Parent

Y Withdrawn Parent

Z Meeting Minutes, 8/16/16, 5 pp. Parent

AA Withdrawn Parent

BB Withdrawn Parent

CC Withdrawn Parent

DD Withdrawn Parent

EE , 7/20/16, 1 p. Parent

FF Withdrawn Parent

GG Withdrawn Parent

HH Withdrawn Parent

II Withdrawn Parent

JJ Withdrawn Parent

KK Withdrawn Parent

LL Withdrawn Parent

MM , 7/30/14, 5 pp. Parent

NN , 7/12/14 10 pp. Parent

OO , 7/26/14 5 pp. Parent

QQ Evaluation, 6/26/14, 4 pp. Parent

RR , 6/16/14, 3 pp. Parent

TT Student Evaluation Summary Report, 6/16/14, 3 pp. Parent

UU Parent Notes, various dates, 3 pp. Parent

VV , 11/22/13, 1 p. Parent

WW 's resume, various dates, 4 pp. Parent

XX Evaluation, 5/22/17, 28 pp. Parent

YY ,

5/16/16, 3 pp. Parent

IV Decision on Extension, 6/1/17, 1p. IHO

POST HEARING SUBMISSIONS

V Ms. ’s Closing Brief, 6/30/17, 13 pp. IHO

VI Ms. 's Closing Brief, 6/30/17, 31 pp IHO