NY IHO #502752-20170807: New York...

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FINDINGS OF FACT AND DECISION

Case Number: 165330

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 24, 2017

May 4, 2017

Actual Record Closed Date: July 28, 2017

Hearing Officer: Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 24, 2017

Attorney — Parents

DOE Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 4, 2017

Attorney — Parents

DOE Designee — DOE

Mother — Parents

Parents

CSE Member — DOE

INTRODUCTION

On the above date, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing . The hearings were conducted at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. The student’s parent submitted a request for an impartial hearing on 1/26/17. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its designee and the parent was represented by their counsel

BACKGROUND

is an diagnosed with a and is currently attending a public charter school at . The Parent requested the impartial hearing alleging, inter alia, that their son was denied access to a FAPE by the “DOE” through the actions of the Committee on Special Education (“CSE”). Parent’s attorney alleges that the CSE failed to offer a valid and appropriate IEP and service recommendations for the 2015-2016 and 2016-2017 school years; accordingly, parent is seeking compensatory education services at , hereinafter referred to as and that the DOE pay for a evaluation.

THE DOE’S POSITION

The DOE designee stated that on ’s IEP dated 2/1/17, he was recommended to receive with related services including

The DOE maintained that the February 1, 2017 IEP Team recommended an appropriate program for the child’s class along with related services, specifically designed to meet his needs. Additionally, the DOE asserted that at the time of the 2017

IEP meeting, .

Additionally, the CSE team addressed all areas which were identified by the Charter School. Furthermore, the has been helpful and the child is making progress. Furthermore, it was stated that the March 30, 2016 IEP team recommended the following services in : related services for

It is the District’s position that a FAPE was offered to ; the student attends a charter school at . . The DOE asserts that the IEPs, most recently dated

2/1/17 were appropriate to meet the academic, social and emotional needs of the student in the Least Restrictive Environment (LRE) and that did not require compensatory education.

THE PARENT’S POSITION

The Parents challenge the appropriateness of the IEP and its recommendations for for the 2015-2016 and 2016-17 school years is based on the failure of the DOE to provide a “FAPE” to . More particularly, the DOE failed to provide with an appropriate IEP with sufficient intensive supports; failed to evaluate and to address ’s varied needs. As a result of the above, struggled, and failed to meaningfully progress in academic areas. Parent alleges that the child requires intensive compensatory services in order to and requests that the DOE pay for same at the .

During the 2015-16 school year, attended at a Charter School, , , New York. Parent’s Counsel maintained that the DOE has a shared responsibility with in order to provide the child with a sufficient and appropriate Special Education with supports. A evaluation was performed in June, 2015 wherein it was stated that requires a “ ” and the child was not provided with same.

Parent’s Counsel is requesting an independent evaluation from Dr. of at standard industry rates.

This request is made claiming that the DOE’s evaluation by Dr. failed to contain the level of specificity that required as his assessment.

It is claimed that throughout this 2015-16 school year, failed to receive appropriate support as per Management Needs Section of the IEP. Allegedly the DOE, following the June, 2015 evaluation, made no changes to the child’s present program and no review was conducted subsequent to the independent evaluation by the DOE.

Parent’s Counsel maintained that a new IEP was crafted in March, 2016 and added ; that the DOE, without any rationale, without testing.

Parent’s Counsel further alleged that the DOE has acknowledged the child’s failure to make progress from through ; for example, ’s March, 2016 IEP confirmed that he remain on the , wholly unchanged from the August, 2015 IEP. Counsel asserts that some goals year after year, remained exactly the same.

. Counsel further stated that a

( ) and ( ) were never discussed and/or created.

THE DOE’S CASE

Ms. , after being duly sworn, stated that she is currently employed at the CSE as a “ ”. Her duties include being a liaison between the schools, the CSE and the Parents. She manages a caseload for different schools, holds annual reviews, is a Chairperson as a District Representative at CSE meetings and participates in meetings as a Special Education Teacher (Tr. Pages 30-31).

The witness is licensed as a . She has worked with children who are (Tr. Page 33).

Ms. stated that she chaired an IEP meeting on March 30, 2016 regarding this student. The meeting was conducted telephonically as the Parent elected to participate from the . She described the meeting as an annual review and stated that there were no assessments. The IEP meeting was held based on information provided including teacher reports, related service reports etc. (Tr. Page 34). Her role at the meeting was to assist in making decisions regarding supports/services for the child, curriculum modification and goals if necessary. As the Chairperson of the meeting, she helps guide the meeting and makes final decisions. (Tr. Page 36). Other attendees at the meeting were the Parent ( ), the , Ms. , and the

, Ms. .

Ms. stated that prior IEP’s were available in the school computer system,

CESIS, and that she had copies. She reiterated that there were no new assessments at the annual review and that the team could consider new testing at a tri-ennial for re-evaluations. (Tr. Page 38). At the time of the CSE meeting neither the school nor the Parent requested a re-evaluation for the child. The witness testified that at the prior IEP, August 13, 2015 (Exhibit 20), recommendations made for . (Tr. Page 39).

Ms. stated that was doing well in the program, however, it was noted that the Parents requested more sessions for as the previous IEP was only supporting . A review of the report recommended a continuation of the same mandates; recommendations were also made to continue the Mandate. (Tr. Page 40). The witness identified Exhibit 14 as the June, 2015 evaluation and reiterated that the report was in the CESIS system but was not discussed at the IEP meeting. The witness recalled the Parent expressing concerns as the child’s (Tr.

Page 41).

Upon further questioning the witness, she stated that at the March 30, 2016 IEP meeting, input from the teachers working with and the information in the system was considered, including but not limited to teacher reports and conversations. Management needs were addressed jointly by teachers working with the child and the CSE team. The team’s understanding of the child’s were that based on assessments, Teacher reports and classroom activities (Tr. Page 43).

Ms. stated that different programs were considered including the least restrictive setting which would be

. She

believed that would be a good fit for the child, however, the Parent chose to enroll the child at which did not provide same (Tr. Page 45).

Ms. stated that the recommendation on the IEP was for a community school wherein he would have the opportunity to receive , related services and other programs (Tr. Page 46). Ms. stated that as the child was going to remain at the charter school, the IEP team thought it would be helpful to recommend to give the child an opportunity to and that were added. (Tr. Page 48). The witness stated there were (Tr. Page 48).

She recalled the Parents were in agreement, as the child would be receiving more support including a continuation of related services for (Tr.

Page 49).

The witness was referred to Exhibit #12 and reiterated the documents reviewed included Teacher reports and prior IEP’s. In examining Teacher reports, she checked for current levels of performances. (Tr. Page 57); however, she did not review pages 12-3 and 12-4 as they were completed after the meeting. The witness further testified that she had concerns about the repetitive nature of the student’s progress reports and the redundant present levels of performance. She stated that Ms. was the and Ms. was the .

Ms. testified that she is aware of the CSE’s responsibilities regarding oversight Special Education Practices at Charter Schools. (Tr. Page 63). She was directed to Exhibit 16, page 1 which indicated performance estimates and stated that estimated levels were provided from Ms. and Ms. . She explained that the progress reports are not itemized in the evaluation results on the IEP as they are compiled and entered into the system separately as required as it was an annual review.

Ms. stated that to her knowledge the Parents received copies of the student progress reports that were reviewed before the IEP meeting in March, 2016. She was uncertain if the Parent was provided with the progress reports in . The reports were discussed in during the IEP meeting and that she personally translated same to the Parents (Tr. Page 68).

Upon further cross-examination, Ms. stated that there were no discussions held during the meeting regarding the difficulties the child had including , and conceded that . She testified that she is not a and was not qualified to make a diagnosis for . When questioned about missing persons at the meeting, Ms. stated that “Charter Schools work in a different way” and that at the time of the meeting, the related services providers were with students and that the participating Teachers commented on their reports. (Tr. Page

72). All related service goals were developed by the related service provider and discussed at the meeting (Tr. Page 72).

Ms. stated that in reviewing Exhibit 16, page 14, the IEP team did not consider it a class as they believed it would be too restrictive in violation of LRE and that would be sufficient (Tr. Page 80); there was also no discussion regarding a classroom. With reference to Exhibit 16, Page 17, the witness stated that as stated in the goals were determined by the IEP team and that “

”.

Upon re-direct examination, the witness stated that minutes were taken at the meeting in order to be a guide for her in finalizing the IEP. She also stated that she is not required to perform classroom observations for annual reviews at Charter Schools. She was referred to Exhibit 12, Page 9 wherein new annual goals were listed and stated that the goals were discussed at the meeting (Tr. Page 89).

Ms. stated that all required attendees were at the meeting and that the team was duly constituted. The Teachers from did not recommend an or .

With respect to management needs on page 4, the IEP, the list provided for . She stated these management needs were reflected in the IEP so that teachers can abide by it and include them in their everyday practice (Tr. Page 92).

THE PARENT’S CASE

, after being duly sworn, duly stated that she is the (hereinafter referred to as ) in New York City, New York. Her duties include being responsible for oversight of all operations including student testing, instruction, hiring, management and training of staff (Tr. Page 98). Her certifications in are from the and she is trained in

. provides

for students from through (Tr. Page 99). The school services children with (Tr. Page 100). She stated that there is adequate staff to cover all areas of concern and that most of them are certified in the State of New York in and .

Ms. was familiar with and stated that he returned to in November, 2016 for testing. She was provided with the IEP from March, 2016. The witness was referred to Exhibit P a summary report of the findings reflected in the November testing, Exhibit Q the “ ” that she developed outlining a curriculum for the child’s instruction and Exhibit R the actual test instruments utilized

(Tr. Page 102). The witness stated the ; this test provides . The child score , . (Tr. Page 104). The next test was the wherein

. She described the child’s scoring as (Tr. Page 105). The

, which is a test of , was administered and

; however,

. The indication was that and his would be at in accordance with the IEP. (Tr. Page 107).

Ms. stated that the is to

; she was referenced to Page R 11 which was the which is an . ’s performance clearly indicated and that he had some difficulty in

The next test was the to evaluate

. He was also provided with the which is given to students who , (Tr. Page 115). had on this test; his scoring was , however,

The was provided as

. This test evaluates (Tr. Page 117). He

scored a which Ms. believed

. (Tr. Page 117). Next, the was administered, this test underscored that . (Tr. Page 120).

The which is a was administered; ’s grade equivalency was a which was also consistent with the DOE’s own findings.

Ms. stated that emphasis would be placed on in order to impact . The witness was directed to Page R 33 which was a .

. She described the responses as “ ” (Tr.

Page 125). This reiterated that he would need help with which would begin by .

Ms. was directed to Exhibit R, Page 34 which was the administered in November, 2016. His work product indicated that

(Tr. Page

129).

Ms. stated that the child’s negatively impacts his and that he requires . could provide

. (Tr.

Page 131).

Ms. was referred to Exhibit P, Page 2 which was a chart describing the child’s performance, a shortened version of his results from the (Tr. Page 132). She explained how the program would address the skills expected to be reached within . The chart was detailed in ; her estimate was that would require . (Tr. Page 135). She recommended

. In her estimation, were recommended to bring the child to full proficiency at a (Tr. Page 138).

Ms. reiterated that she believes her test results were accurate as they were consistent with the DOE’s own results. She stated that there are bilingual teachers at who speak dominantly (Tr. Page 151).

In order to implement a program, Ms. stated she would begin by meeting with the Parent to set a schedule. is available

. The cost for includes for an , for and billed at per hour.

On cross-examination of the witness, she stated that is a who administered the testing to She reported that (Tr. Page 145). Upon further questioning, she stated that does not utilize a as . Ms. stated that the child had attended previously for about hours and was able to do some tasks on and she believed he made significant meaningful progress in the first group of hours (Tr. Page 148).

Ms. testified that she believed that would reach grade level within . She referred to a and stated that the intention was to get him to which is the grade he presently is attending. Concededly, it would be impossible for him to complete hours before September, 2017 when the child would begin . (Tr. Page 148).

The last witness to testify was the Parent who testified that she had attended all the child’s IEP meetings by phone or in person. She conceded that she received translation, however, did not receive evaluations or assessments in (Tr. Page

155). The parent stated that her son is not “getting better in any ways” in . She stated that and that she was informed by his teacher that ; however, . Ultimately, it would be up to her “whether or not” to (Tr. Page 157).

The Parent recalled that her child went to previously and attended once a week and more often during recess. She stated that either she or his father would take him to . She requested a and requesting if she prevails in this matter. She also testified she is unable to pay for her son’s testing, registration and/or tuition.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C. section 1400-1482) ensure that students with disabilities have available to them a FAPE; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. Of Education v.

Rowley 458 S. CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356 371 92d Cir 2006). A FAPE includes special education and related services designed to meet the student’s unique need provided in conformity with a comprehensive written IEP (20 U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 ‘d’; 34 CFR Section 200-347_; The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a][5][A]; CFR section 300.13 [a][2][i], 200.1.116 [a][2]; 8 NYCRR 200.6 [a][1]; see Walczak v. Fla Union Free School Dist. 142 F. 3d 119, 132 [2d cir. 1998].

This hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §1404 et seq. (“IDEA”). “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education…designed to meet their unique needs… [and] to ensure that the rights of children with disabilities and parents of such children are protected.’ ” M.H.

v. N.Y .C. Dep’t. of Educ., 685 F.3d 217m 223 (2d Cir. 2012) (quoting 20 U.S.C.

§1400(d)(1)(A)-(B)). The IDEA mandates that students with disabilities must be provided with a FAPE tailored to meet their unique needs and one that is reasonably calculated to “enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., __ U.S. __, 137 S.Ct. 988,999 (2017); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982); SRO 17-007, p. 10. A focus on the particular child is at the core of the IDEA.

Endrew F., 137 S. Ct. at 999. To meet the IDEA’s requirements, a school district’s program must provide special education and related services that is “specif ically designed’ to meet a child’s ‘unique needs’ ” and is reasonably calculated to enable the child to receive educational benefits. Endrew F., 137 S.Ct. at 999 (emphasis in original); M.H., supra, 685 F.3d at 224 (quoting Gagliardo v. A rlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007)).

A denial of FAPE can be one that is substantive or results from violations of the procedural protections of the IDEA and its implementing regulations. Procedural violations result in the denial of FAPE “if they ‘impeded the child’s right to a [FAPE},’ ‘significantly impeded the parents’ opportunity to participate in the decision-making process,’ or ‘caused a deprivation of educational benefits.’ ” 20 U.S.C. §1415(f)(3)(C)(ii);

A .C. ex rel. M.C. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); see also Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005) (“Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations considered individually do not.”) In sum, Rowley stands for a two-part entitlement: eligible families are entitled to an IEP that both (a) affords a placement that, substantively, is “reasonably calculated” to afford meaningful educational benefit to the child, and (b) is developed in procedural accordance with the requirements of federal law.

Furthermore, with regard to the sufficiency of the IEP, the Commissioner’s regulations require that: The IEP shall report the present levels of academic achievement and functional performance and indicate the individual needs of the student according to each of the four areas listed in section 200.1(ww)(3)(i) of this Part, including:

a. how the student’s disability affects involvement and progress in the general education curriculum….

§ N.Y.C.R.R. § 200.4(d)(2)(i); see also 34 C.F.R. § 300.20(a). In turn, section 200.1(ww)(3)(i) provides, in relevant part that the areas to be considered shall include:

(a) academic achievement, functional performance and learning characteristics which shall mean the levels of knowledge and development in subject and skill areas, including activities of daily living, level of intellectual functioning, adaptive behavior, expected rate of progress in acquiring skills and information, and learning style;

(b) social development which shall mean the degree and quality of the student’s relationships with peers and adults, feelings about self, and social adjustment to school and community environments;

(c) physical development which shall mean the degree or quality of the student’s motor and sensory development, health, vitality, and physical skills or limitations which pertain to the learning process; and

(d) management needs which shall mean the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction. Management needs shall be determined in accordance with the factors identified in each of the three areas described in clauses (a)-(c) of this subparagraph.

§ N.Y.C.R.R. § 200.1(ww)(3)(i):

With regard to the sufficiency of the IEP’s annual goals, the Commissioner’s regulations require that:

The IEP shall list measurable annual goals, including academic and functional goals, consistent with the student’s needs and abilities. The measurable annual goals must relate to:

(1) meeting the student’s needs that result from the student’s disability to enable the student to be involved in and progress in the general education curriculum; and

(2) meeting each of the student’s other educational needs that result from the student’s disability.

The IEP has been described as the “centerpiece” of the IDEA system. See

Murphy v. A rlington Cent. Sch. Dist., 297 F.3d 195, 197 (2d Cir. 2002); Endrew , 137 S.Ct. 1t 994. This key document “sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.” D.D. v. N.Y .C. Bd. of Educ., 465 F.3d 503, 507-08 (2d. Cir. 2006)

(internal quotations omitted). Under the IDEA, for a child’s IEP to be adequate, it must be likely to produce progress, not regression, and must afford the student with an opportunity greater than mere trivial advancement. The IDEA “requires an educational program reasonably calculated to enable a child to make progress in light of the child’s circumstances.” Endrew F., 137 S. Ct. at 1001; M .H., supra, 685 F.3d at 224 (quoting T.P. ex rel. S.P. v. M amaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009)

(internal quotations and citations omitted). For a student who is fully integrated in a regular general education classroom, a child’s unique needs are typically met when the school provides “a level of instruction reasonably calculated to permit advancement through the general curriculum.” Endrew F., 137 S.Ct. at 1000. When a child is not fully integrated into a regular classroom and not able to achieve on grade level, an “IEP need not aim for grade-level advancement. But [the student’s] educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in a regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Id.

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” SRO

080052; SRO 08-060 (citations omitted). The goals must be “sufficiently specific and measurable” (SRO 07-108, p. 12) and the IEP must contain goals to address identified needs. Id.; SRO 08-060; see also SRO 05-049. The goals must be “sufficiently described so as to allow the student’s teacher or therapists to understand the CSE’s expectations with respect to each goal.” SRO 07-108, p. 12.

Part 200.4(d)(2)(iii) of the New York State special education regulations requires than an IEP contain:

(iii) Measurable annual goals. (a) The IEP shall list measurable annual goals, including academic and functional goals, consistent with the student’s needs and abilities. The measurable annual goals must relate to:

(1) meeting the student’s needs that result from the student’s disability to enable the student to be involved in and progress in the general education curriculum; and

(2) meeting each of the student’s other educational needs that result from the student’s disability.

(b) Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee.

To the extent that the parent's claim may be read as one for compensatory education services, compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y.

1997]). Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). In New York State, a student who is otherwise eligible as a student with a disability may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 C.F.R. § 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-

037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b];6 8 NYCRR 100.9[e], 200.1[zz]; see 34 C.F.R. § 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-

100). Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation 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 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C, 916 at 69; Burr, 863 at 1071; Cosgrove v. Bd. of Educ., 175 F.

Supp. 2d 375, 387 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No.

03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]).

Given that compensatory education is an equitable remedy within the broad forms of relief on the merits that are permissible under the IDEA (see Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100 [S.D.N.Y. Apr. 7, 2011]; see also Forest Grove v.

T.A., 129 S. Ct. 2484, 2490-91, 2494 n.11 [2009]).

I agree with the Parent’s Counsel that the DOE failed to provide witnesses regarding the child’s August, 2015 and February, 2017 IEP’s, relying solely on their disclosure. A review of the child’s 2016-17 IEP as per the testimony of Ms.

indicated the DOE has failed to provide the child with a FAPE for the school years in question. Initially, with respect to the 2016-17 school year, the IEP failed to review any of his prior evaluations or assessments. Additionally, the Parent could not review any document as it was not in her native language.

The Parent’s Counsel opined that the DOE’s reps stated that progress reports were reviewed under Exhibit 12, however, Ms. herself did not state such and her recollection was “vague”. Accordingly, it is difficult to ascertain what documents were being reviewed at the IEP meeting as they were not within the IEP. As per the IEP, the child did not receive . He did not have and did not receive . The management tools and supports were stated unequivocally to be necessary and for some reason, the IEP team ignored them.

Furthermore, the goals on the 2016-17 IEP failed to address . The March, 2016 IEP appeared to pre-determine what the child’s goals should be. Ms. failed to provide any explanation as to the failure of the IEP to include more than one goal or more than one goal. Additionally,

Exhibit 20-6 and 16-7 had the same exact IEP goals year after year and yet the DOE only recommended .

The Parent is requesting an Independent Evaluation by Dr.

at a standard and customary rate. The Parent’s Counsel maintained that due to the child’s potential and the DOE’s failure to provide reports to the parent in , all played a huge role in the child’s failure to make progress.

Parent’s counsel maintained that in reviewing the IEP’s, there is a decline which is not addressed in any of the goals which remained the same. The DOE maintained that at the time of the February, 2017 IEP, the child was . Additionally, is an appropriate program for the child and that he has been making progress according to the teachers and reports.

The DOE concluded that the child would be served with an increase in but not a more restrictive program such as . Additionally, that the IEP’s offered FAPE and that has not provided irrefutable proof to show that he will make progress in their program. The DOE maintained that they would complete evaluations of the child in an effort to consider new programs or placement and that they should be ordered not because FAPE is denied; additionally, there was no testimony from Dr. .

Supp. 2d 375, 387 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No.

03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]).

T.A., 129 S. Ct. 2484, 2490-91, 2494 n.11 [2009]).

Lastly, I find that the parent cooperated with the DOE and did not engage in any conduct that would have precluded the CSC from creating an appropriate IEP.

Under the circumstances in this case, I find that the parent asserted a viable compensatory education claim and request for reimbursement for an evaluation and grant the Parent’s application for as follows: The DOE shall pay for the following:

1. for at a rate not to exceed upon presentation of invoices in a form satisfactory to the DOE.

2. Up to at at a rate not to exceed as per the Due Process Complaint

3. and his Parent to be provided with a so that he is able to access the

4. An Evaluation by Dr. at a rate not to exceed

and

5. That the CSE reconvene within 30 days of receipt of the evaluation.

Dated: August 7, 2017

GARY D. PETERS

Impartial Hearing Officer GDP:

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

PARENT’S EVIDENCE

A. Impartial Hearing Request/fax receipt 1/26/17 ^[7]

B. Progress Report 5/24/16 2

C. Progress Report 4/21/15 2

D. Progress Report 4/18/16 2

E. Goal Setting Worksheet undated 1

F. Progress Report 2/9/16 2

G. Progress Report 2/2/16 2

H. Progress Report undated 1

I. Progress Report 6/18/15 1

J. Progress Report 6/10/15 2

K. Teacher report 6/4/15 5

L. Progress Report/ 2/24/15 2

M. Progress Report/ 2/19/16 2

N. Report 8/4/15 2

O. Report 6/15/15 9

P. Report 11/26/16 ^[2]

Q. undated ^[1]

R. undated 48

S. Corrected IHR 4/14/17 ^[5]

BOE’S EVIDENCE

3. Progress Reports various 6

4. Progress Reports 1/30/17 2

6. Intentionally Omitted

8. Intentionally Omitted

9. Notice of Recommendation 3/7/17 5

10. Reports various 4

11. Reports various 6

12. Teacher Reports various 19

13. Reports 8/4/15 2

14. Reports 6/15/15 9

15. Meeting Minutes 3/20/16 4

16. IEP 3/30/16 16

17. Notice of Recommendation 4/13/16 8

18. School Location Letter 4/13/16 3

19. Meeting Minutes 8/13/15 3

20. IEP 8/13/15 17

Footnotes

[1] Due Process Complaint 1/26/17 5

[2] Intentionally Ommitted

[5] Teacher Reports various 7

[7] IEP 2/1/17 15

New York City Department of Education, Impartial Hearing Decision