New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 165178

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 6, 2017

May 31, 2017

August 3, 2017

Actual Record Closed Date: September 22, 2017

Hearing Officer: Linda S. Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 6, 2017

Attorney Father Mother — Parents

Interpreter — Parents

via — Parents

telephone

District Representative — DOE

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 31, 2017

Attorney Father Mother — Parents

Interpreter — Parents

via — Parents

telephone

via — Parents

telephone

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 3, 2017

Advocate — Parents

via — Parents

telephone

District Representative — DOE

On January 17, 2017, I was designated by the New York City Department of Education 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 who initiated this hearing on January 17, 2017. Hearings were held on April 6, 2017, May 31, 2017 and August 3, 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. The joint requests for extensions of the compliance dates were granted and the required documentation provided to the parties (Tr. at 26; 285; 319-320 Exhs. I-V).

The current record close date is September 22, 2017 and the decision due date is October 6, 2017. The parents' attorney submitted her closing brief on September 22, 2017. The district's representative declined to submit a closing brief. Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.

The hearing was requested by the parents through their attorney to challenge the April 4, 2016 and the April 7, 2016 review and the recommendation of the Committee on Special Education ("CSE") and to challenge the program and placement and to obtain funding for a unilateral placement at the (" ") for the 2015-2016 and the 2016-2017 school years (Exh. A) and compensation for missed related services and missed educational services.

BACKGROUND

is a with

(Exh. S at 1; Z at 1;Q at 3). She was diagnosed with , in November 2014, at the age of and she was diagnosed with (Exh. T at3). attended for a program for the 2016–2017 school year in .

.

On January 29, 2014, the Committee on Special Education ("CPSE")

annual review indicated that for the 2014-2015 school year, attended at for early intervention ("EI") program in a center based program in a class with a student to staff ratio of with for the 2014-2015 school year (Exhs. Q, T; Tr. at 207). The review indicated that

(Exh. Z at 1).

On February 11, 2014, the evaluation was conducted and the evaluator noted that "

" (Exh. AA at 4) and sessions were recommended to (Id.).

On February 2014, the Evaluation was conducted on when she was and the evaluator noted that

(Exh. CC at 5).

On November 19, 2014, 's diagnosed

with and "

(Exh. S at 1).

On February 5, 2015, the CPSE recommended center based program in a class with a student to staff ratio of with and for the 2015-2016 school year for (Exh. X at 1, 11).

On June 1, 2015, 's recommended a placement in a special education classroom with an based program and and continuing (Exh. T at 4).

On June 8, 2015, the CPSE recommended placement for at

(" ") for the 2015-2016 school year (Exh Y).

On June 8, 2015, the CPSE recommended a center-based program, for , for with a student to staff ratio of (Exh. W at 1). The related service recommendation was (Id.).

On December 2, 2015, the " " progress report was conducted and the evaluator assessed at the age of by the and noted that

(Exh. J at 3).

On February 10, 2016, , conducted the

Evaluation and assessed 's performance by the , but found that . The found that required

(Exh.

F at 1).

On February 10, 2016, the was conducted when was and the reporter noted that was given the diagnosis of and had and was placed in a class at (Exh. E at 1),

, , and

(Exh. E at 3).

On February 10, 2016, the Classroom Observation indicated that was placed in a at and the reporter noted that

(Exh. H at 2).

On March 8, 2016, CPSE met and developed an IEP that classified , then aged as a . The CPSE review team recommended that be placed in a with a staffing ratio of and receive and receive

(Exh. V at 1).

On March 11, 2016, the quarterly Educational progress report was conducted and the teacher noted that and that

(Exh. K at 2).

On March 28, 2016, the report indicated that

and

(Exh. G at 2).

On March 29, 2016, the CPSE review team recommended that be placed in a with a staffing ratio of and receive and receive

(Exh. U at 1).

On April 4, 2016, the CSE met and classified with and recommended that she be placed in with a with a staffing ratio of in a with related services of as well as and and and (Exh. C at 10- 11). The IEP indicated that

(Exh. C at2). The IEP signature

page contained the date, April 4, 2016 and a note "signed on 4/7/16" (Exh. C at 19). that and noted that (Ex. C-2).

On April 8, 2016, the Prior Written Notice ("PWN") recommended a placement in a in a of with related services of

(Exh. 7).

On May 9, 2016, the PWN listed the School Location at , at in a class effective September 2016 per the April 4, 2016 IEP (Exh. 19 at 2).

On January 16, 2017, the parents requested prospective payment/reimbursement for the tuition at from September 1, 2016 through June 30, 2017 as the "

" IEP meetings on April 4, 2016 and April 7, 2016 were procedurally flawed because members left the meeting and did not hear the parents concerns and on April 4, 2016, the district representative recommended a NPS to address 's complex needs and then another IEP meeting was scheduled on April 7, 2016, and the recommendation in a class with related services of was presented to the parents rather than a referral to the Central Based Support Team ("CBST") for identification of a NPS without explanation (Exh. A at 6). The parents asserted that the April 7, 2016 IEP was substantively flawed as the IEP goals were not developed in the meeting and the IEP failed to describe the present levels of performance and did not list or ; the goals did not address or or

(Exh. A at 5). The parents requested a finding that the DOE failed to offer a free appropriate public education ("FAPE") for the school year 2015-2016 for the failure to provide and that received in EI and the first year of CPSE (Exh. A at 3), and a lack of FAPE the school year 2016-2017 school year. The parents requested

; and requested compensatory and for services missed during the 2015-2016 school year (Exh. A at 7).

THE DISTRICT’S CASE

The district's representative did not submit any witnesses to support its position that a FAPE was offered for the 2015-2016 school year (Tr. at 15; 156) and the 2016- 2017 school years, but rested on the evidence (Tr. at 15;321). The district's representative did not dispute the missing hours of and for two years, but was unsure of the amount of missing hours of and (Tr. at 88).

THE PARENTS' CASE

The parents' case was presented in the testimony of the parent, the provider and the to support their request to prospective funding/reimbursement for the tuition at for the 2016-2017 school year and

.

The of , a holder of a Master's degree in and a Master's degree in and employed by for the past year as and for the past years as the for , testified that there were students at , aged through (Tr. at 34). She stated that had many children who were and diagnosed with (Tr. at 31). She described : ,a program for ; the and the , a program for (Tr. at 39;93). She

stressed that was offered in all the programs, but in the program was offered all day (Tr. at 40). She explained that was offered by (Tr. at 45). She explained the were used for (Tr. at 47-48). stated that started in the Program in September 2016, in a program with a student to staff ratio of (Tr. at 44;53). She described that

(" ") that was conducted to identify and address developed for to (Tr. at 54). She described the included and and that was used to (Tr. at 55). She explained that the was monitored by 's teacher and NYS licensed and certified related service providers (Tr. at 58). She explained that required at to address and was used to focus on , and to address (Tr. at 59). She stated that the was provided and and were provided for (Tr. at 61). She stressed that 's had a Master’s degree in (Tr. at 66). She explained that required and (Tr. at 94). She opined that progressed in as she was now able to and improved and (Tr. at 97). She stressed that improved and decreased such as (Tr. at 99). She explained that had an and the worked to as (Tr. at 100). She opined that progressed in as (Tr. at 102). She described that that needed to work on and the that was developed by the (Tr. at 108). She stressed that mastery of a skill was attained when (Tr. at 110-111). She opined that required to progress in her and in her (Tr. at 113-114), and opined that was an appropriate placement (Tr. at 115).

On cross she stated that 's teacher was not certified by NYS to teach special education, but was a year away from obtaining her certification (Tr. at 117). She explained that 's classroom teacher had 11 years of experience teaching at and was supervised by a (" ") and (Id.). She stated that the DOE provided (Tr. at 122). She opined that improved and that she could now , , and attributed as the reason that (Tr. at 126). She noted that there were other children in 's class who were and and described (Tr. at 134), and explained that (Tr. at 135). She related that was given by 's teacher monthly and the provider worked with the family to help (Tr. at 138). The provider, a NYS license and certified provider employed at for 11 years, testified that she provided (Tr. at 145). She stated that she provided to for since October 2016 and that she observed (Tr. at 146). She stressed that she and to improve (Tr. at 147). She recalled that she gave the teacher suggestions to carry over her work with into the classroom and that she used in her sessions (Tr. at 148). She opined that progressed in (Tr. at 152), and that she increased 's sessions from to to improve her progress (Tr. at 153;158). She listed

, and noted that and so (Tr. at 157), and that improved (Tr. at 152).

On cross the provider stated that she assessed with ,

, and found that (Tr. at 155)

and recommended as much as possible for (Tr. at 160).

The parent testified that her daughter attended since September 2016 and that she needed as her daughter responded to before and her daughter was able to (Tr. at 176). She stated that at her daughter did not receive and her daughter regressed. She opined that at her daughter received and progressed in (Tr. at 181), and to (Tr. at 185). The parent recalled that her daughter had received and , but without at , but now she improved (Tr. at 188). She stated that her daughter did not receive as recommended by her in 2014, who recommended and that noted that her daughter needed (Tr. at 190;196; Exh. S). She stated that her daughter visited her doctor on May 17, 2017, and was a continuing recommendation (Tr. at 198), and that her daughter needed a as (Tr. at 199;Exh. TT).

She recollected that terminated in

June 2015, and that she attended the June 2015 IEP meeting for the 2015-2016 school year (Exh. W) and that she disagreed with the program recommendation and that she requested as did her daughter's from school and that her daughter attended for the summer of 2015, and attended in September 2015 (Tr. at 214). She stated that had , but did not have or (Tr. at 216). She recalled that she provided her 's letter dated November 19, 2014 (Exh. S) to the CPSE on February 2015 and June 2015 (Tr. at

223).She recalled that none of her daughter's related service providers attended the June 15, 2015 IEP meeting (Tr. at 228), and that no team member told her that or were removed from the IEP (Tr. at 235). She recalled that the June 2015 IEP team members all recommended for her daughter (Tr.

at 237).

The parent recalled that her daughter attended from September 2015 through August 2016 and that she attended the March 29, 2016 IEP meeting (Exh. U) and she learned that her daughter was not receiving or and she attended the April 4, 2016 IEP meeting (Exh. C) and she recalled that the team members told her that her daughter required and a deferral to CBST and that paperwork for a NPS would be sent on April 6, 2016 (Tr. at 246), but on April 6, 2016, she and her husband were told to come to an IEP meeting on April 7, 2016, (Tr. at 249). She recollected that on April 7, 2016, the IEP team removed CBST referral and recommended a placement in a with a student to staff ratio of in (Tr. at 251). She recalled that she requested an for Case No. 165178 daughter to address and that she requested for her daughter (Tr. at

253).

The parent stated that she visited the proposed school for the 2016-2017 school year in listed on the PWN (Exh. 19) dated May 9, 2016, and observed the proposed classroom and was told by the classroom teacher that was not offered in the proposed school because they had different methods to teach (Tr. at

260;267). She recalled that she observed students in the proposed class (Tr. at 269), and that the were provided in the and there was no dedicated person available to work on with her daughter and she opined that the proposed class and school was not appropriate (Tr. at 270). She stated that she signed the contract for in September 2016 and paid for a deposit (Exh. II) towards the full tuition of (Tr. at 271).

The at testified that he was a NYS licensed and certified employed at since 2013 (Tr. at 295-296). He stated that employed NYS certified related service providers and NYS certified with significant experience and training in (Tr. at 297). He stated that (Tr. at 298). He stated that the providers at contacted 's current classroom teachers and related service providers and that a plan was developed for to address (Tr. at 302), and that staff had targeted such as . He recommended to help (Tr. at 306), and that the fee for was per hour and that the rate of supervision of the by a was (Tr. at 309; 316).

FINDINGS OF FACT AND CONCLUSION OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his 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. Arlington 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 Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak 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" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted).

In Application of the New York 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. .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 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)

I find the DOE representative presented no witnesses and did not dispute any claims of the parents that FAPE was not offered for the 2015-2016 school year.

The parents' attorney asserted that without a "DOE witness testimony to explain how ’s deficits are addressed within the IEP and other DOE documents as well as to explain the CSE’s rationale in recommending the disputed program, the DOE is unable to meet their burden. The SRO has found that allegations that are left unchallenged are deemed as true. (See Application of a Student with a Disability, 01-044). By failing to present witnesses, the DOE has conceded the parent’s allegations as laid forth in the parent’s impartial hearing request (Exh. VIII at 5). I agree. I further find that the February 5, 2015, IEP recommended for the 2015-2016 school year for (Exh. X at 1, 11). I find that the June 8, 2015 IEP recommended (Exh. W at 1), without following the requirements to notify the parent under 8 N.Y.C.R.R. § 200.5[a]. I find that the parents were never provided with any explanations for the removal of and in the June 8, 2015, IEP. I find the removal of and was made in contraction of the February 11, 2014, provider who recommended

(AA at 4) and in contradiction of the progress report that indicated that

(Exh. J at 3) and was in contraction of 's letter of June 1, 2015, who recommended and continuing and (Exh. T at 4). I find it was a denial of FAPE not to consider the 's letter or the evaluation in the IEP. There was no testimony to identify the evaluative data considered to determine that the of with only as a related services was an appropriate placement. I find that the June 8, 2015 IEP team was aware of the 's need for and and I find that the elimination of and without providing RSAs for and was a denial of FAPE for the 2015-2016 school year.

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]).

I credit the parent's testimony that terminated in June 2015, and that when she attended the June 2015 IEP meeting for the 2015-2016 school year (Exh. W) she disagreed with the program recommendation and she requested as did her daughter's from and that her daughter attended for the summer of 2015, and attended in September 2015 (Tr. at 214). I credit her testimony that had , but did not have or (Tr. at 216). I find that the June 2015 CSE team ignored the parent's request for more support which significantly impeded the parent's opportunity to participate in the decision making process. I find the program recommended was made in contradiction of the parent and the then-current and doctor's request for caused a deprivation of educational benefits. Accordingly I find that FAPE was not offered for the 2015-2016 school year.

(2016-2017)

The parents have asserted substantive and procedural defect claims and claim that the procedural deficiencies seriously infringed on the parent participation in the April 7, 2016 IEP and resulted in a denial of FAPE and also challenge the placement proposed by the DOE. I find the DOE's claim that its program was appropriate was not supported by the district's evidence.

It is the DOE’s burden to establish that the recommended program was supported by sufficient evaluative material (8 NYCRR 200.4[b][4][5][6]). The parents' attorney asserted the program did not provide with sufficient support as the recommended program of was less supportive than the , and a failed to provide a that required for , and failed to provide or as recommended by 's doctors and failed to recommend sufficient to address (Exh. A at 4); the IEP did not include a sufficient description of present levels of performance and did not include

; the goals were vague and were insufficient to address , and there was no goal for (Exh. A at 5). The parents asserted procedural claims in the April 7, 2016 IEP: the parents were denied meaningful participation; the team members left before the meeting ended; the then current teachers were denied meaningful participation that led to confusing and inconsistent programs on the April 4, 2016 of an NPS placement and the April 7 2016 placement of a class in (Exh.A at 6). The parents' attorney asserted that the recommended placement was not appropriate because was not provided, nor was the school able to provide and claimed that the related services were provided and that was only offered once a month and not as mandated (Id.).

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]).

As to the claim that the DOE failed to follow the requirements to notify the parent under 8 N.Y.C.R.R. § 200.5[a], I find that the parents were never provided with any explanations of why the district refused to provide with a more specialized program and the parents were never given notice of any other programs or services considered. The parent's attorney asserted that the "

(Exs. E, F,

G, H, I, J, K, M, P, Q, R, , U, V, W, X, Z, AA, BB, CC, DD, EE, FF, GG). Moreover, the DOE had ample recent documentation of ’s continued, significant special needs at the time of the April 4, 2016 CSE meeting" (Exh. VIII at 7). I agree and find that the CSE was on notice of the by the Social History (Exh. E at 3) and the by the Classroom Observation (Exh. H at 2), and by the progress report that noted that (Exh. K at 2) and by the report of (Exh. G at 2). I find that the April 7, 2016 IEP failed to consider 's doctors' recommendations of (Exh. S at 1) and and and (Exh. T at 4). I find that required a more supportive program than the CSE was willing to provide.

The parents' attorney asserted that the IEP team ignored the parents' concerns at the April 4, 2016 and April 7, 2016 IEP meeting for a placement with (Exh. VIII at 9). I credit the parent's testimony that she told the team members that her daughter required and a deferral to CBST and that the team seemingly agreed on April 4, 2016, that paperwork for a NPS would be sent on April 6, 2016 (Tr. at 246), but on April 6, 2016, she and her husband were told to attend the IEP meeting on April 7, 2016, and a class in was recommended (Tr. at 249). I find that the April 7, 2016 CSE team ignored the parent's request for more support which significantly impeded the parent's opportunity to participate in the decision making process. I find the program recommended was made in contradiction of the parent and evaluations and recommendations (Exhs. S;T)

for caused a deprivation of educational benefits. I find the April 7, 2016 IEP recommendation of a class in and not a deferral to CBST for a NPS recommendation as determined by the April 4, 2016 IEP team impeded the parents' opportunity to participate in the decision making process. I find the April 7, 2016 IEP team had ample evidence of (Exh. G at 2) and failed to provide a program to address her deficits.

The parents' attorney asserted that the April 7, 2016 IEP was substantively inadequate because the present levels of performance did not sufficient describe deficits as the social history indicated that

(Exs. E-2, I-3). The DOE’s failure to include this information in her IEP put ’s safety at risk"(Exh. VIII at 10). I agree and find the IEP was substantively inadequate. .

The parents' attorney asserted that the April 7, 2016 IEP was substantively inadequate because the goals failed to address and no there were no goals to address . (Id.) The parents' attorney asserted that there was no goal for despites her documented and one goal to and goal to and goal did not address her (Exh. VIII at 11) I agree and find that the goals did not address

.

The parents' attorney asserted that the proposed placement was adequate because it did not offer the that required and the related services were not and there was no to as required. The parents' attorney argued that "districts do not have 'carte blanche' to assign a child to a school ‘that cannot satisfy the IEP’s requirements.’”

M.O. v. N.Y.C. Dept. of Educ., 793 F.3d 236, 244 (2d Cir. 2015) (citing T.Y. v. N.Y.C.

Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009)); see also G.B. v. N.Y.C. Dept. of Education, 145 F.Supp.3d 230, 254 (S. .Y.2015)" (Exh. VIII at 12). I agree and find that the parents established that the proposed placement was inappropriate.

Accordingly I find that FAPE was not offered for the 2015-2016 school year.

Because I find that FAPE was not offered the parent prevailed on the first prong.

I further find that the parents established that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. The fact that the facility selected by the parents to provide special educational services to the child is not State-approved as a school for children with disabilities is not dispositive of the parent's claim for tuition reimbursement (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]). The parents must prove that received an appropriate educational benefit from the program at . The Second Circuit framed the legal standard for the second prong in Frank G. v. Board of Education, 459 F.3d 356 (2d Cir. 2006) and Gagliardo v.

Arlington Central School District, 489 F.3d 105 (2d Cir. 2007). Under Frank G. the Court held that "to qualify for reimbursement under the IDEA, Parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction" (Id.).

Testimony adduced at the hearing clearly demonstrates that provided a as recommended by 's doctors (Exhs. S;T). I find that was appropriate because 's progressed academically as well as socially and emotionally. I find that while progress is not required in order to show that a school is appropriate, the program must be designed so that the student can progress. G.R. v. New York City

Dep’t.of Educ., No. 07 Civ. 4711(TPG), 2009 WL 2432369, at *3 (S. .Y. Aug. 7, 2009); see also Gagliardo, 489 F.3d at 115 (noting that evidence of progress is relevant, but not dispositive). I credit the testimony of the and find a plan was designed and implemented to and . I credit her testimony that required (Tr. at 94), and I find that progressed in and improved (Tr. at 97). I credit the testimony of the and find that (Tr. at 99). I credit her testimony and find that had an and the worked with to (Tr. at 100). I credit the testimony of the who explained that with the plan and addressed 's special education needs. I credit the testimony of the and find that was placed in a class with student with similar needs and that her teachers met 's special educational needs and her related service providers met her needs and her needs. The evidence presented from the parents indicated that were issues for and I find testimony adduced at the hearing established that these special education needs by her teachers and her related service providers. I find that her needs were met by (Tr. at

134) and and I credit the testimony of the provider who provided since October 2016 and find that she observed to be and (Tr. at 146) and that and to improve her (Tr. at

147), and find that the provider gave the teacher suggestions to carry over her work with into the classroom and that she used in his sessions (Tr. at 148). I credit her testimony and find that progressed in (Tr. at 152). I credit the testimony of the provider and the and I find that progressed

. I find were addressed by the and the and the , and providers. I find her issues improved and her decreased and her increased. I find that was grouped appropriately for her and her at in her classes. I find that 's needs were met at during the 2016-2017 school year.

Therefore, I find that the parents met their burden regarding the unilateral placement at for the 2016-2017 school year.

The parents' attorney asserted that compensatory "education awards are based upon finding of the denial of FAPE, and they require additional services, beyond the prospective entitlement to an appropriate educational program, to address deficits caused by delay or failure to offer educational services to an eligible child. Terry Jean Seligmann & Perry A. Zirkel, Compensatory Education for IDEA Violations: The Silly Putty of Remedies?, 45 Urb. Law. 281, 282 (Winter 2013) (citing Perry A. Zirkel, The Remedial Authority of Hearing and Review Officers under the Individuals with Disabilities Education Act: An Update, 31 J. Nat’l Ass’n Admin. L. Judiciary 1 (2011). For a child who has been denied an appropriate education for a protracted period of time, including the time during which the matter is litigated, prospective placement without a compensatory remedy is analogous to an 'empty victory.' Id. at 296 (noting that parents with the financial means to do so can avoid this harm if they are able to unilaterally place their child or provide services privately and then seek reimbursement)" (Exh. VIII at 22).

I find that compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. Wenger v. Canastota, 979 F. Supp. 147 (N. .Y. 1997). I find that equitable powers extend to prospective payments for educational instruction where parents cannot afford the financial outlay required by reimbursement cases. Mr.

and Mrs. A. ex rel. D.A. v. NYC Dep’t of Educ., 769 F.Supp.2d 403 (S. .Y. 2011). I find that was entitled to compensatory services for the denial of FAPE for the 2015- 2016 and the 2016-2017 school year. I further find that the parents were unable to pay for . I find compensatory education is available as an appropriate remedy under the Individuals with Disabilities Education Act (“IDEA”). P.

ex rel. Mr. and Mrs. 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. Puyallup 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. I credit the testimony of the at regarding the amount of hours that required and the need for a licensed by NYS and that find that he developed a to address her and established the need for and that he developed goals to promote progress (Exh. WW at 5). I further credit his testimony that providers at collaborated with 's teachers and the fee for was per hour and that the rate of by a was (Tr. at 309; 316). I find that the parents have met their burden of proof with respect to the services to be provided by . I credit the testimony and find that will receive on the results of the report (Exh. W) and that goals were developed based on the assessment. I find that required . I also find persuasive the unrebutted opinion that needs to help obtain (Tr. at 306), and that her needs could be addressed by . The record supports a finding that provided an appropriate program for as I credit the testimony from the at that the plan was developed for to address her (Tr. at 302). I further find that the DOE presented no witnesses or evidence to demonstrate was not appropriate.

The parents' attorney asserted that there was no dispute that the did not receive or for the 2015-2016 school year and was entitled to and (Exh. VIII at

28). I agree.

The third prong of the test for tuition reimbursement/prospective is whether the equities favor the parents' position. I find that the parents established the third prong.

Tuition reimbursement to be reduced or denied if the Parent (1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal

(2) did not make the student available for an evaluation requested by the district prior to his “removal”, (3) took actions determined to be unreasonable. 28 U.S.C. Section

1412(a)(10)(c)(iii). I find the parents informed the CSE that they intended to continue to enroll at for the 2016-2017 school year when no appropriate program/placement was offered and after the most recent CSE meeting and complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). I find that the parents advised the DOE that based on the program recommendation at the CSE meeting of April 7, 2016, that would be unilaterally placed at (Exh. A,B). I find the equitable considerations do support the parents' claim for reimbursement/prospective. In this case, the parents fully cooperated with the district to the best of their ability and that the equities favor the parents' position.

I find that parents who have satisfied each of the Burlington factors have a right to retroactive direct tuition payment relief (Mr. and Mrs. A ex. rel D.A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-429 (S. .Y. 2011). I find the Parent is entitled to prospective funding for the tuition at for the 2016-2017 school year and for .

ORDER

Therefore, it is hereby ordered that the DOE shall provide with the following: (1) provide prospective payment for tuition at for the 2016-2017 school year in the amount of ; (2) tuition reimbursement to the parents in the amount of ; (3) payment for for the deprivation of appropriate program and placement for the 2015-2016 and 2016-2017 school years by one of providers at the enhanced rate of an hour and payment for by an provider at the rate of an hour. I further order that the DOE provide compensative related services for services missed during the 2015-2016 and 2016-2017 school years as follows: (a)

; (b)

;

Dated: October 11, 2017

LINDA 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 APRIL 6, 2017

A Impartial hearing request with delivery confirmation, 1/16/17, 9pp. Parent

B -day notice with delivery confirmation, 8/23/16, 4pp. Parent

C IEP, 4/4/16, 9pp. Parent

D Omitted Parent

E Social history update, 2/10/16, 3pp. Parent

F update, 2/10/16, 3pp. Parent

G report, 3/28/16, 9pp. Parent

H Classroom observation, 2/10/16, 2pp. Parent

I , 2/10/16, 4pp. Parent

J progress report, 12/3/15, 3pp. Parent

K , quarterly educational progress report, 3/11/16,

4 pp. Parent

L List of all programs, 2015/2016 school year, 1p. Parent

M , quarterly educational progress report, 12/4/15,

3pp. Parent

N Child outcome summary form, 4/4/16, 1p. Parent

O evaluation, 3/18/16, 9pp. Parent

P , 2/11/16, 12pp. Parent

Q summary, 5/13/15,

3pp. Parent

R evaluation, 10/8/15, 6pp. Parent

S Letter of , 11/19/14, 2pp. Parent

T Letter of , 6/1/15, 5pp. Parent

U Summary student information and IEP, 3/29/16, 12pp. Parent

V Summary student information and IEP, 3/8/16, 14pp. Parent

W Summary student information and IEP, 6/8/15, 14pp. Parent

X Summary student information and IEP, 2/5/15, 14pp. Parent

Y Authorization of IEP change, 6/8/15, 1p. Parent

Z CPSE annual review, 1/29/15, 3pp. Parent

AA CPSE evaluation ( ), 2/11/14, 4pp. Parent

BB CPSE annual report, 11/18/14, 2pp. Parent

CC CPSE evaluation, February 2014, 5pp. Parent

DD CPSE evaluation, 2/10/14, 3pp. Parent

EE CPSE annual review, 11/13/14, 4pp. Parent

FF assessment, 1/31/14, 4pp. Parent

GG evaluation, 2/4/14, 4pp. Parent

HH Parent guarantee of tuition, related services and supplemental aids at , 9/2/16, 5pp. Parent

II Affidavit of , 3/8/17, 1p. Parent

JJ Class schedule, 2016/2017 school year, 1p. Parent

KK Student attendance, 9/7/16 through 3/7/17, 4pp. Parent

LL Tax return transcript, 12/31/16, 5pp. Parent

Portion of VISA credit card statement, 9/20/16 through 9/26/16,

1p. Parent

NN Academic annual review, 3/24/17, 3pp. Parent

OO , annual review, 3/23/17, 4pp. Parent

PP annual review, 3/23/17, 3pp. Parent

QQ annual review, 3/23/17, 3pp. Parent

RR , 3/24/17, 4pp. Parent

SS , 3/24/17, 3pp. Parent

1 Omitted District

2 Omitted District

3 Omitted District

4 Notice of IEP meeting, 2/10/16, 4pp. District

5 Omitted District

6 Authorization of IEP change, 3/29/16, 1p. District

7 Prior written notice (notice of recommendation), 4/8/16, 5pp. District

8 Omitted District

9 Omitted District

10 Omitted District

11 Omitted District

12 Quarterly educational progress report by ,

12/4/15, 2pp. District

13 Omitted District

14 Omitted District

15 Omitted District

16 Omitted District

17 Request for , to be completed by student's physician, 2/21/16, 2pp. District

18 Omitted District

19 Prior written notice (notice of recommendation), school location, 5/9/16, 6pp. District

I Decision on Extension, 4/3/17, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 31, 2017

II Decision on Extension, 5/1/17, 1 p. IHO

III Decision on Extension, 5/31/17, 1 p. IHO

TT Updated letter of , 5/17/2017, 2 pp. Parents

DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 3, 2017

TT Updated letter of , 5/17/2017, 2 pp. Parents

UU letter, 6/14/17, 1 p. Parents

VV attendance records, 9/15 - 8/16, 4 pp. Parents

WW , 7/12/17, 13 pp. Parents

XX attendance records, 9/6/16 - 6/23/17, 7 pp. Parents

IV Decision on Extension, 6/21/17, 1 p. IHO

V Decision on Extension, 8/3/17, 1 p. IHO

POST HEARING SUBMISSIONS

VI Decision on Extension, 8/30/17, 1p. IHO

VII Decision on Extension, 9/9/17, 1 p. IHO

VIII Closing Brief, 9/22/17, 32 pp. IHO