New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 165959

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: May 12, 2017

May 24, 2017

May 31, 2017

June 14, 2017

June 19, 2017

June 23, 2017

Actual Record Closed Date: July 28, 2017

Hearing Officer: Bruce Olinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 12, 2017

Attorney — Student

Attorney — DOE

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

Attorney — Student

Attorney — DOE

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

Attorney — Student

District Representative — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 14, 2017

Attorney — Student

Attorney — DOE

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 19, 2017

Attorney — Student

Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 23, 2017

Attorney — Student

(Via Telephone) — Student

(Via Telephone) — Student

Attorney — DOE

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education laws. The New York City Department of Education will be referred to as District or the DOE and the parents as Parents or and the child will be referred to as Student or

JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR §

200.5(k).

PROCEDURAL HISTORY

This hearing was requested by a Due Process Complaint on April 11, 2017 by , the parent of student (Parent Ex. A). An Amended Due Process Complaint was filed on May 8, 2017. The nature of the complaint to be addressed in this decision is the Parent’s claim that the DOE failed to provide with a FAPE for the 2015/16 school year, including the failure to conduct a and and the failure to provide appropriate related services, , and . Parent seeks an . The undersigned was appointed as Impartial Hearing Officer on April 12, 2017. An Order directing that the instant case not be consolidated with a prior hearing that addressed the Parent’s claim for the 2016/17 school year was issued on April 14, 2017 (IHO Ex. I). Thereafter, hearings were held on May 12, 2017, May 24, 2017, May 31, 2017, June 14, 2017, June 19, 2017, June 23, 2017 and June 28, 2017. During all such hearings, the DOE was represented by , with the exception of the hearing held on May 31, 2017, during which the DOE was represented by and the hearing held June 19, 2017, during which time the DOE was . The Parent was represented at all such hearings by The undersigned presided during all hearing dates.

During the course of the proceedings, the parties moved to extend the case compliance date in this matter on June 14, 2017 and July 25, 2017 in order to allow for an examination of all relevant witnesses and documents, and to complete the hearing. In considering such requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extension of time for such purposes were in accordance with the requirements of due process. Accordingly, the requests for an extension of the case compliance date was granted (IHO Exhibit II). See 34 C.F.R. § 300.515(c); 8 NYCRR §

200.5(j)(5).

The hearing record was closed effective July 28, 2017.

Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

FACTUAL BACKGROUND

Student is a disabled child who is diagnosed with

.

. He presents

with and with

. He was not, during the subject year of this hearing, the 2015/16 school year, , requiring . He also presents with .

The instant hearing and Decision addresses Student’s needs for the 2015/16 school year, during which time he was a student at the ( ).

He is currently in receipt of numerous related services, including

, and requires

, such services being provided first under an Order on Pendency pursuant to a separate Due Process Hearing filed to address the 2016/17 school year and, additionally, pursuant to a final Decision and Order issued on April 12, 2017, which Order includes substantial compensatory services.

PARENT’S POSITION

The Parents allege that Student has been denied a FAPE for the 2015/16 school year, due to the failure of the DOE to conduct a and and the failure to provide appropriate related services, . Parent seeks an . Parent further alleges that, due to such denial of FAPE, has been harmed educationally and seeks, pursuant to the hearing request, the requested evaluations, services and compensatory education to address such denial and to compensate for the 2015/16 school year.

DISTRICTS POSITION

The District contends that was properly evaluated for the 2015/16 school year and that the subsequent education program provided for the 2015/16 school year was appropriate.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

Applicable Legal Standards

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

T.A ., 557 U.S. 230, 239 (2009); B oard of Educ. of the Hendrick Hudson Cent. Sch. Dist.

v. Rowley, 458 U.S. 176, 206-07 (1982) 1.

1. The term “free appropriate public education” means special education and related services that –

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

The IDEA requires a school district to have an Individualized Educational Plan (IEP) in effect for each child with a disability at the beginning of each school year. See 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a); see 71 Fed. Reg. 46682 [stating that the IDEA "is clear that at the beginning of each school year, each [district] must have an IEP in effect for each child with a disability in the agency's jurisdiction. Further, An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii).

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. New York City Bd. 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 Case No. 165959

34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii).

See also 34 C.F.R. §§300.303-300.311, 300.315; 8 N.Y.C.R.R. § 200.4(f). All reevaluations shall be conducted by a multidisciplinary team, including a specialist in the area of the student’s disability. 8 N.Y.C.R.R. § 200.4(b)(4). Children must be assessed “in all areas of suspected disability” using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” 20 U.S.C.

§1414(d); 34 C.F.R. § 10.

Additionally, 8 N.Y.C.R.R. § 200.4(b)(6) provides that every reevaluation must identify “all of the special education and related services needs, whether or not commonly linked to the child’s classification.” 34 C.F.R. § 303(c)(6).

Pursuant to the Decision in L.O. v. New Y ork City D ep't of Educ., 822 F.3d 95 (2d Cir. 2016), "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not." R.E., 694 F.3d at 190.

Parents should be central members of IEP teams. See 20 U.S.C. §§ 1414(a)(1)(A), 1414(c), 1414(d)(1)(B)(i); 34 C.F.R. §§300.15; 300.303. Further, regulations provide that the parent must have an adequate opportunity to participate in the development of the child’s IEP Cerra v. Paw ling Cent. School District, 427 F.3d 186, 192 (2d Cir. 2005, requiring that the Parent be properly notified of the IEP meeting and that such meeting be scheduled at a “mutually agreed upon time and place.” 34 C.F.R. § 300.322.

An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). 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 (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 C.F.R. § 300.320[a][3])

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).

Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at

132).

However, in the recent decision of the United States Supreme Court, Endrew F. v.

Douglas County School District, 580 U.S. __, 14 (2017), argued January 11, 2017, and decided March 22, 2017, the Court held that, while Rowley declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act”, 458 U. S., at 202, it nevertheless still held that “a substantive standard was “implicit in the Act”. Rowley , 458 U. S., at 193, n. 15. It similarly held that “the statement that the Act did not “guarantee any particular level of education” simply reflects the unobjectionable proposition that the IDEA cannot and does not promise “any particular [educational] outcome.” Id.at 192. Rather, the Court in Endrew held that, “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circum stances (emphasis added), as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. . In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth”. §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all”. The Court in Endrew further stated that “The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”. And although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created”. Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v.

Rowley, 458 U. S. 176, 203, n. 25 (1982).

Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320). The school district must provide special education and related services to a student with a disability in accordance with the student's IEP and must make a good faith effort to assist the student to achieve the annual goals and, if appropriate, short-term instructional objectives or benchmarks listed in the student's IEP. See 8 NYCRR 200.4(e)(7). With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way (T.L. v. New

York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S., 2011 WL 3919040, at *13; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; see A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]). In order to show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimis failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP (see Houston Indep. Sch. Dist., 200 F.3d at 349; see also Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524–25 [3d Cir. 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]). Accordingly, in reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" (A.P., 370 Fed. App'x at 205; see Van Duyn, 502 F.3d at 822 [holding that a "material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled [student] and the services required by the [student's] IEP"]; see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D. D.C. 2007] [holding that where a student missed a 'handful' of speech-language therapy sessions as a result of the therapist's absence or due to the student's fatigue, nevertheless, the student received consistent speech-language therapy in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program]).

Section 504 provides that “[n]o otherwise qualified individual with a disability . . .

shall, solely by reason of his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.” 29 U.S.C. §794(a). Section 504 and the IDEA are often seen as “complementary” statutes that, to a degree, mandate parallel requirements on schools to provide special education and related services. See R.B. ex rel. L.B. v. Bd. of Educ. of City of New Y ork, 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000) (citations omitted). The Section 504 regulations clarify the nature of the prohibited discrimination. 34 C.F.R. § 104.4(b)(ii)-(iii). In addition, the Section 504 regulations place similar and even parallel requirements on schools to provide a FAPE. See 34 C.F.R. §§ 104.33-104.37.

RELATED SERVICES

As provided in 8 NYCRR 200.6(e):

Related services shall be recommended by the committee on special education to meet specific needs of a student with a disability as set forth in the individualized education program (IEP).

(1) The frequency, duration and location of each such service shall be in the IEP, based on the individual student's need for the service.

(2) For students with disabilities determined to need speech and language services, the total caseload of such students for teachers providing such services shall not exceed

65. 103 200.6

(3) When a related service is provided to a number of students at the same time, the number of students in the group shall not exceed five students per teacher or specialist except that, in the city school district of the city of New York, the commissioner shall allow a variance of up to 50 percent rounded up to the nearest whole number from the maximum of five students per teacher or specialist.

(4) A student with a disability may be provided with more than one such service in accordance with the need of the student.

(5) Related services may be provided in conjunction with a regular education program or with other special education programs and services.

A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).

CHILD FIND

The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446.

F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F.Supp.2d 221, 225 [D.

Conn. 2008], aff'd, 370 Fed. App'x 202, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 C.F.R. § 300.111; 8 NYCRR 200.2[a][7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St.

Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004])). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.111[c][1]; see 8 NYCRR 200.2[a][7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. 2011]). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][7]).

A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S.,826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw.

2001]). To determine that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate the student (A.P., 572 F.Supp.2d at 225, citing Bd. of Educ. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F.Supp.2d 815, 819 [C.D.Cal. 2008], citing 20 U.S.C. § 1400[c][5]). Additionally, the school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's RtI program (8 NYCRR 200.4[a]; see also 8 NYCRR 100.2[ii]).

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [ finding that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826

F. Supp. 2d at 660; New Paltz, 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ. v.

Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To support a finding that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate (A.P., 572 F. Supp. 2d at 225, quoting Bd. of Educ. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch.

Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D.Cal. 2008], citing 20 U.S.C. § 1400[c][5]).

Additionally, the school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program (8 NYCRR 200.4[a]).

NY STATE CHILD FIND:

State regulations specify procedures for identifying students with learning disabilities, providing, among other things, that:

A student may be determined to have a learning disability if, when provided with learning experiences and instruction appropriate for the student's age or State-approved grade-level standards, the student does not achieve adequately for the student's age or to meet State-approved grade-level standards in one or more of the following areas: oral expression, listening comprehension, written expression, basic reading skills, reading fluency skills, reading comprehension, mathematics calculation, mathematics problem solving; and . . . the student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development that is determined by the CSE to be relevant to the identification of a learning disability. . . .(8 NYCRR 200.4[j] [3], [3] [i] [b] [emphasis added]).

LEAST RESTRICTIVE ENVIRONMENT

Generally, when determining an appropriate placement on the educational continuum, a CSE should first determine the extent to which the student can be educated with nondisabled peers in a public school setting before considering a more restrictive nonpublic school option (see E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *15 [E.D.N.Y. Aug. 19, 2013]; [explaining that "under the law, once [the district]

determined that [the public school setting] was the least restrictive environment in which [the student] could be educated, it was not obligated to consider a more restrictive environment, such as [the nonpublic school]"]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *8 [S.D.N.Y. Mar. 19, 2013] [finding that "[o]nce the CSE determined that [public school setting] would be appropriate for the [s]tudent, it had identified the least restrictive environment that could meet the [s]tudent's needs and did not need to inquire into more restrictive options such as nonpublic programs"]).

The IDEA requires that a student's recommended program must be provided in the

LRE (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR

200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 111; Gagliardo, 489 F.3d at 105; Walczak, 142 F.3d at 132; Patskin, 583 F. Supp. 2d at 428). In determining an appropriate placement in the LRE, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling or other removal of students with disabilities from the general educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][5][A]; see 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; Newington, 546 F.3d at 112, 120-

21; Oberti v. Bd. of Educ., 995 F.2d 1204, 1215 [3d Cir. 1993]; J.S. v. N. Colonie Cent.

Sch. Dist., 586 F. Supp. 2d 74, 82 [N.D.N.Y. 2008]; Patskin, 583 F. Supp. 2d at 430; Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 144 [N.D.N.Y. 2004]; Mavis v.

Sobol, 839 F. Supp. 968, 982 [N.D.N.Y. 1993]). The placement of an individual student in the LRE shall "(1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home" (8 NYCRR 200.1[cc]; 8 NYCRR 200.4[d][4][ii][b]; see 34 CFR

300.116). Consideration is also given to any potential harmful effect on students or on the quality of services that they need (34 CFR 300.116[d]; 8 NYCRR 200.4[d][4][ii][c]).

Federal and State regulations also require that school districts ensure that a continuum of alternative placements be available to meet the needs of students with disabilities for special education and related services (34 CFR 300.115; 8 NYCRR 200.6). The continuum of alternative placements includes instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions; and the continuum makes provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement (34 CFR

300.115[b]). To apply the principles described above, the Second Circuit adopted a two-pronged test for determining whether an IEP places a student in the LRE, considering (1)

whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate (Newington, 546 F.3d at 119-20; see J.S., 586 F. Supp. 2d at 82; Patskin, 583 F. Supp. 2d at 430; see also M.W., 725 F.3d at 144; Oberti, 995 F.2d at 1217- 18; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048-50 [5th Cir. 1989]). A determination regarding the first prong, (whether a student with a disability can be educated satisfactorily in a general education class with supplemental aids and services), is made through an examination of a non-exhaustive list of factors, including, but not limited to "(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class" (Newington, 546 F.3d at 120; see J.S., 586 F.

Supp. 2d at 82; Patskin, 583 F. Supp. 2d at 430; see also M.W., 725 F.3d at 144; Oberti, 995 F.2d at 1217-18; Daniel R.R., 874 F.2d at 1048-50). If, after examining the factors under the first prong, it is determined that the district was justified in removing the student from the general education classroom and placing the student in a special class, the second prong requires consideration of whether the district has included the student in school programs with nondisabled students to the maximum extent appropriate (Newington, 546 F.3d at 120).

In fashioning a test to assess a student's placement in the LRE, the Court acknowledged that the IDEA's "'strong preference'" for educating students with disabilities alongside their nondisabled peers "'must be weighed against the importance of providing an appropriate education'" to students with disabilities (Newington, 546 F.3d at 119, see Walczak, 142 F.3d at 122; Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir.

1989]; see also Lachman v. Ill. State Bd. of Educ., 852 F.2d 290, 295 [7th Cir. 1988]). In recognizing the tension created between the IDEA's goal of "providing an education suited to a student's particular needs and its goal of educating that student with his non-disabled peers as much as circumstances allow," the Court explained that the inquiry must be fact specific, individualized, and on a case-by-case analysis regarding whether both goals have been "optimally accommodated under particular circumstances" (Newington, 546 F.3d at 119-20, citing Daniel R.R., 874 F.2d at 1044).

COMPENSATORY SERVICES

The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New

York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]. Compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup

Sch. Dist., 31F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]; Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10- 052). Accordingly, an award of additional services should aim 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 Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; S.A. v. New York City Dep't of Educ., 2014 WL 1311761, at *7 [E.D.N.Y. Mar. 30, 2014] [noting that compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v.

L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's]

educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puyallup, 31 F.3d at 1497 [finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]; Application of a Student with a Disability, Appeal No. 13-168; Application of the Dep't of Educ., Appeal No.12-135; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v.

Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996) (holding generally that subject to equitable adjustment, the “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem.”).

Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v.

District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Reid, supra at 526.

THE TESTIMONY

It is first noted, before a full inquiry into whether a FAPE was provided for for the 2015/16 school year, and the remedies available, should it be determined that a FAPE was not so provided, that there are two areas of ’s educational placement that are not in dispute: ’s authorization for a school year and, due to his and , ’s requirement for

.

The first inquiry to be addressed is whether the DOE provided with a FAPE for the 2015/16 school year.

As noted above, the DOE has the burden of establishing that it provided a FAPE for a student for each school year in which a challenge is made by the Parent. In the instant case, the DOE presented one witness whose testimony is summarized immediately below.

For this witness, as well as the Parent’s witnesses testimony summarized thereafter, all numbers in parenthesis shall refer to transcript pages.

Testifying for the DOE was , ’s teacher at during both the 2014/15 and 2015/16 school years, both of which were ’s grades.

Ms. holds a Master’s degree in and

, with a professional New York State certificate in

(p. 79). During both the 2014/15 and 2015/16

school years, ’s classroom contained

. (p. 83-84). was described as

. Ms. further testified that while during the 2014/15 school year, he demonstrated during the 2015/16 school year

(p. 84). She further testified that required

(p. 84). Additionally, was described as

. He was able to (p, 85).

However, with regard to demonstrated weaknesses, Ms. testified that had delays in . He was not able to . He was

, requiring

. As a result, strategies were used to address such weaknesses, such as , which particularly responded well to (p. 85-86).

was also utilized, particularly to address the IEP goals (p. 86).

With particular regard to the creation of the IEP for the 2015/16 school year, Ms.

testified that was once again recommended for the placement plus related services because he was and and did not have , and therefore required the of a placement (p. 89). Additionally, related services were continued for the 2015/16 school year to address ’s deficits in

(p, 90). The witness

additionally testified that she could not recall if Parent was present at the IEP meeting, nor could she recall if she expressed any concerns about any of the recommendations (p.

91-93).

With respect to the progress, if any, that made during the 2015/16 school year, the witness testified that, , was able to and was able to . When provided with

, was able to

. He also demonstrated improved

, compared to previously, and to

. He also showed the ability to , compared with

p. (95-96).

With respect to , the witness testified that

(p. 96).

However, with respect to ’s

, Ms. testified that she did not see significant improvement from the previous year. continued to show difficulty in , which affected .

. He did demonstrate, however, the ability to

(p. 96-97).

With respect to ’s Educational Progress Reports contained in DOE’s Exhibits

5, 6, 13, 14 and 15, of which Ms. was the author of the educational ( )

portions, Ms. testified that demonstrated mixed results in terms of progress

(p. 100-101). Ms. further stated that she had difficulty reaching Parent on a regular basis to discuss such reports, but that she nevertheless provided such reports to the Parent by sending them home with (p. 101-102).

Additionally, when asked whether it was her testimony that Parent did not attend either the IEP meeting dated June 1, 2015, Ms. stated that she could not recall her being there (p. 91-92).

On cross examination, Ms. testified that ’s class for the 2015/16 school year was comprised of approximately students with varying degrees of disabilities and functioning, none of whom were , and that

(p. 119). She stated that became during the course of the 2015/16 school year, during which time he made his greatest progress (p. 119-122).

She stated that during the June, 2015 IEP meeting for the 2015/16 school year, was recommended for the aforementioned program because it was believed to be the most appropriate for him, but also stated that did not offer other placements; any child requiring a different student/teacher ratio would be referred to another school (p.

124). Ms. testified that was not considered for a ,

, because he displayed no warranting

same (p. 125-128). In refreshing her recollection by looking at the June 1, 2015 IEP, Ms.

stated that was ,

, which she partially attributed to

(p. 138-139), but that he did eventually (p. 138-

139). She stated that, with regards to , she worked with in the area of , and believed that , but , and believed that

(p. 139-140). With respect to , Ms.

stated that was able to (p.145) and that, by the end of the 2015/16 school year,

(p.147). She

reiterated that ’s most significant advancements occurred towards the end of the 2015/16 school year p. (147) and that he was able to

, and that

(p.148). She further testified that received

, and could not recall

Parent requesting (p.149). Regarding , Ms. stated that but struggled with

(p.150), but that such improved during the 2015/16 school year (p.151). She stated that were addressed by

(p.151-154).

In reviewing the results of the administered by herself for , for both the 2014/15 and 2015/16 school years, Ms. stated that remained around the in , a slight improvement in the 2015/16 school year over the 2014/15 school year, and was able to , but that such improvement was not always consistent. She again reiterated that his greatest progress occurred towards the end of the 2015/16 school year (p.155-165). With respect to , Ms. stated that still exhibited difficulties with

(p.166). With respect to , scored in the (p.166). With respect to , showed some improvement, but not so with (p.167). The placed as being at the end of the 2015/16 school year (p.168).

On redirect, Ms. stated, in response to a request to clarify her earlier testimony, that was making small and steady progress during both the 2014/15 and 2015/16 school years, but that she saw his greatest progress towards the end of the 2015/16 school year (p.170-171). Upon re-cross examination, Ms. stated that did not offer parent-teacher conferences during the evening to accommodate parents who work or are unable to take off work during the day (p.172-173).

The Parent presented three (3) witnesses, including the Parent herself who testified first.

Parent testified that, at the beginning of the 2015/16 school year, had

(p.185-186).

(p.186-187),

(p. 188-191). He also was unable to

(p. 188). In terms of , Parent testified that

(p. 191-192). Nor was he able to

(p.193). In terms of , Parent testified that

(p. 194). In terms of ,

Parent testified that (p. 194), and

(p.

195-196),

(p. 196-197). As for , Parent testified that he could only and could not

(p. 197-198).

In comparing his progress, if any, achieved during the 2015/16 school year, and in doing so focusing on at the end of the 2015/16 school year, Parent testified that

(p. 200-201), but that

. There was also some improvement noted in

(p. 201). In terms of , Parent testified that

(p. 202-203), but that overall, Parent did not observe significant improvement in (p. 203). With regard to , Parent testified that she did not observe much improvement, although

(p. 203). In terms of , Parent testified that she could not recall if improved (p. 204), but did state he improved

, and no improvement in

(p.204-207). She additionally testified that

(p. 207-208). When

asked to assess what improvement she believed made during the course of the 2015/16 school year, Parent initially stated that she felt made none, but when reminded of the areas of improvement that she herself testified to earlier, Parent amended her testimony to state that made improvement in the areas about which she testified

(p. 209-211), but that she still saw little to no progress in terms of

(p. 211-212). Parent further testified that she believed had the potential to have made greater progress, especially in light of the inconsistency of any progress that he showed and the failure of such progress to consistently remain in place

(p. 212-213), and that she believed would have benefitted him (p.

214). Parent further testified she was unaware that such instruction was available to , and that she was never informed of such availability by school personnel (p. 214). Parent also stated that she was unaware of an IEP meeting for in June, 2015 for the 2015/16 school year, and never received notification of such IEP meeting (p. 215-216).

On cross examination, Parent testified that ’s improved during the 2015/16 school year (p. 220). When asked her opinion of the contents of the Progress Report dated February, 2016 (DOE Ex. 15), which indicated that showed progress in

, and in

, Parent stated that she agreed with such assessments (p. 222-223).

On redirect examination, Parent stated that in terms of , she saw some improvement in from the beginning of the 2015/16 school year to the end of such year (p. 126-127), and that she also saw some improvement in his , but that (p. 127-128).

Next to testify for the Parent was Dr. , whose direct testimony was provided by sworn affidavit dated June 14, 2017 and who was thereafter made available for cross examination during the hearing dated June 23, 2017. Dr.

holds a master degree in from ,

, and an advanced graduate certificate in from . Additionally, he holds a master's degree in , from . He was previously a doctorate student at the , from where he transferred to a , which he completed recently. As for his professional background, Dr. was the at for 15 years ( ) and, for the past 5 years, he has been the

at

. He has also been a New York state certified teacher for 10 years, in , and a since 2004, for which he has a doctorate degree. He is the of , which provides . As part of such function, he conducts evaluations and assessments and develops recommendations and educational plans for such students requiring services. He has published research and manuscripts parent training, and conducted studies in teaching parents to train non-verbal children to communicate, with research having been cited in 120+ peer-reviewed scientific journals and numerous textbooks, as well as such recommendations having been adapted by several state legislatures for recommended practices.

Dr. testified, by his affidavit, that is

. A major goal of is to

. He conducted a assessment and school observation of on November 19, 2017, and submitted a report of such evaluation dated January 28, 2017 (Parent Ex. I).

He utilized, among other tools of assessment, the , together with home and school observation of and interviews with ’s parent, teacher and .

Dr. testified that presented with , with

, resulting in . He had

. His ability to indicates a potential to . Additionally, presented with ; , and was reported to , such as . also demonstrated and is unable to

.

. He did demonstrate, however, the ability to , as well as . He also presented with , such as , which indicate the ability to make more progress than previously shown.

As a result of all of the foregoing, Dr. recommended, among other services, , allocated as , together with and

. Dr. stated

that the recommended would assist in

,

.

The purpose of providing such is to allow to

, and to

. Based on the evaluations set

forth above, Dr. stated that such should have been provided during the 2015/16 school year which, based on his demonstrated emerging skills, would have allowed to make greater progress during such 2015/16 school year had he received such services during such time. He further testified that had received such services during the 2015/16 school year, would have been expected to have made ,

, and , all of which would have resulted in

. He further testified

that the receipt of during the 2015/16 school year would have likely resulted in , as well as an improvement in and improved

. All of such skills are able to be developed and improved with practice; the fact that was largely deficient in such skills indicates that, had he received the appropriate instruction with resulting practice, such as with , he would have made significant improvements

.

On cross examination, Dr. testified that he was the author of his affidavit previously identified. He further testified that if his agency were to provide the recommended , as articulated above, his hourly fee would be in the lower range of the fees charged for such services (p. 238-239). He further stated that although he could not state with certainty ’s level of performance during the 2015/16 school year, having not met him until November, 2016, he could state with certainty that , and that based on his experience, training and orientation in this particular field, as well as research in such area, it could be reasonably deduced that such skills were even more regressed during the 2015/16 school year than during the assessment that occurred in November, 2016 (p.239-243). Upon direct examination from the undersigned, Dr.

elaborated on his earlier testimony regarding ’s need for during the 2015/16 school year, by stating that the strength of a response is directly correlated with frequency of training and reinforcement; i.e., the more one practices, the better one gets. He further testified that there are 5 major domains in education:

cognitive, speech/language communication, social-emotional functioning, motor abilities and adaptive skills. The appropriate instruction or teaching of all such domains results in increased functionality in all such areas, because humans are able to learn, whether it is behavior, communication, using utensils or engaging in other daily activity of life skills, and imitate. Dr. was adamant that was not a detriment to his ability to learn. He testified that is not a deficiency in , nor does it prevent learning in all areas, so that certainly could have learned during the 2015/16 school year had he received the appropriate instruction (p. 242-250). Dr. further reiterated that teaching success corresponds to hundreds and hundreds of trials, training responses to teach behavior, such that had received the recommended during the 2015/16 school year, he might have had better

(p. 252). Dr. additionally stated that, such being the case, if were to receive the recommended now, retroactively, he would still derive the benefit of response strength – the repeated practice would bring him up to . In particular, would address the major domains in which remains deficient, such as

(p.

252-253). , in particular, would be effectively addressed by , which ties in with , as would improving and teaching ; essentially, the would address (p. 252-

254).

On redirect examination by Parent’s attorney, Dr. testified that demonstrated

, such that he demonstrated

. That demonstration indicated to Dr.

that and , and would have shown greater improvement in , had he received the appropriate instruction during the school year at issue (p.255-257). Finally, on redirect,

Dr. testified that his evaluation of was a “cold probe” – an assessment done without having first reviewed the observations and assessment of others, such as teachers, in order to reach a fully unbiased and objective assessment of without any expectations (p. 259).

On redirect examination by the undersigned, Dr. testified that, with respect to ’s evaluation, presented as

. For example,

(p. 261). Such issues would interfere with educational development if not addressed and corrected by “ ”, and that the as recommended would teach

(p. 262).

The final witness to testify for Parent was , whose testimony was submitted by affidavit sworn to and dated June 21, 2017, and which comprises Parent Exhibit L. Ms. was thereafter made available for cross examination during the hearing dated June 23, 2017. By such affidavit, Ms. testified that she is a New York State licensed , with a Bachelor’s Degree in and 24 years of clinical experience, as well as additional training in

. She

conducted an evaluation of on January 24, 2017 (Parent’s Exhibit G), utilizing, in addition to clinical observations and , the evaluation. was observed to be and relies on . He presented with . Additionally, such condition impacts , causing . He also presents with . Such deficits in affects ’s ability to

.

. His deficits as described above result in

.

is also delayed, with , affecting his ability to or to . With regard to , presents with , indicating issues with . He cannot

, affecting , and resulting in . His creates the risk that . The aforesaid difficulties affect , including

, such as

, as well as

. His further impact

, including .

As a result of the foregoing, Ms. recommended to address the numerous areas of . She further testified that, although she did not meet during the 2015/16 school year, her evaluation findings support the opinion that should have received such services with such duration and frequency during the 2015/16 school year.

She stated that due to the significant nature of his delays and his age, the 2015/16 school year was a critical time for him to have received such therapy to address the delays described above, and that the recommended , as contained in his 2015/16 IEP, of , was inadequate to meet the goals of such IEP and to progress in the areas sought to be addressed. She finally stated that with a sufficient mandate of , as recommended, she would have expected to make progress in

, including

, and that to adequately address all such issues, required of greater frequency and duration.

On cross examination, Ms. stated that she is the author of her affidavit

(p.266). She further testified that, based on her review, had made some progress in areas pertaining to his goals (p. 267).

Upon direct examination by the undersigned, Ms. was asked to clarify such testimony in light of her earlier statement, as contained in her affidavit, that would have required greater duration and frequency of in order to achieve progress.

She testified that while he did make some progress, his goals were nevertheless not met

(p.267). In further clarifying, Ms. stated that, in having the received the , instead of the recommended , made some progress, but not as much progress as he might have, and not sufficient progress to fully achieve the goals of the IEP (p. 268-269).

Additionally, in explaining the exact relationship between greater duration and frequency of and the belief that such would have resulted in greater progress, Ms.

testified that such conclusion was based on ’s specific diagnosis of .

She stated that ’s specific type of is a , an . His particular type of presents with . His are best addressed in the earliest parts of childhood and with the most amount of therapy to focus on . The earliest part of childhood is the biggest window of time to effectuate such progress. While will still yield benefits after this time period, since his is not a , the best time to address the deficit in his and facilitate change is early (p.269-271). She additionally stated that, with regard to his particular disability, which is , it is accurate to say that if had received more frequent and longer to address his particular disability, there is a reasonable expectation of greater gains (p. 271-272).

On redirect examination, and in further clarifying ’s progress and its relationship to the goals set forth on the IEP, Ms. stated that while the goals contained therein reflected his area of need, there were other areas of need not reflected in the goals, such as and , which are part of the for , because that's where his impacts his within those areas. Those areas were not addressed in the goals, but were areas that could be addressed. works most effectively, and with the greatest amount of success, based on repetition, frequency and duration, and will pertain to (p. 273-

274). She additionally stated that she saw no evidence of progress in , as were not addressed in the goals set forth in the IEP for the 2015/16 school year, and that are a significant part of

(p. 275).

ANALYSIS

The determination of whether or not a FAPE has been provided requires an examination of both procedural as well as substantive factors.

Procedurally, as noted above, parents are required to be, and have the right to be, central members of IEP teams. See 20 U.S.C. §§ 1414(a)(1)(A), 1414(c), 1414(d)(1)(B)(i); 34 C.F.R. §§300.15; 300.303. Regulations further provide that the parent must have an adequate opportunity to participate in the development of the child’s IEP Cerra v. Paw ling Cent. School District, 427 F.3d 186, 192 (2d Cir. 2005, which further requires that the Parent be properly notified of the IEP meeting and that such meeting be scheduled at a “mutually agreed upon time and place.” 34 C.F.R. § 300.322.

In the instant case, Parent testified that she was unaware of the IEP meeting that created the educational program for for the 2015/16 school year. ’s teacher, Ms.

, also testified that she could not recall the Parent attending the IEP meeting for the 2015/16 school year. It is noted that the attendance/signature page of the IEP meeting fails to include the signature of Parent , supporting the testimony of both Parent and Ms. that parent did not attend the IEP meeting. No evidence was presented by the DOE to establish that it had ever advised Parent of such meeting and of her right to participate therein.

Additionally, statutory regulations, cited above, as well as the Court in Rowley, holds that a FAPE is established "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). In that regard, it is noted that during the June 1, 2015 IEP meeting, no service providers participated in such meeting either; rather, only the classroom teacher and district representative were part of the IEP meeting and the resulting IEP created for for the 2015/16 school year. The hearing record fails to establish how an appropriate related service plan could be deemed to have been created for , a child with significant needs in the areas of , when none of the providers in any of those disciplines participated in the IEP meeting. Indeed, as a result of the non-participation of the relevant service providers noted above, the DOE has failed to establish that the related services, as contained in the IEP, complied with the standard established by Endrew which mandates that such plan was reasonably calculated to enable to make progress appropriate in light of his particular circumstances.

It is further noted that no evidence was presented by the DOE to establish that the CSE conducted a in preparation for the creation of ’s IEP, despite the DOE’s own documentation (Education Annual Progress Report – DOE Ex. 12) finding that is “

” (DOE Ex.

12-1). It has been held in L.O. v. NEW Y ORK CITY DEPT. OF EDUC., 822 F.3d 95 (2d Cir. 2016), citing a prior Decision of that Court, that the failure to conduct a for a student with known problems constitutes "a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all." R.E., 694 F.3d at 190. The description of ’s issues were repeated during the testimony of Ms. , wherein she stated that was “

” (86).

Thus, at least 3 procedural violations have been identified during the course of the creation of the IEP for the 2015/16 school year, as well as the resultant IEP itself. The

Court in R.E., (R.E. v. New Y ork City Dept. of Educ., 694 F.3d 167 (2012) has held that “multiple procedural violations in a school district's individualized education program (IEP) for a qualifying child under the IDEA may cumulatively result in the denial of a free appropriate public education (FAPE) even if the violations considered individually do not” (Individuals with Disabilities Education Act, § 614(d), 20 U.S.C.A. § 1414(d).”

Here, the three identified procedural violations, including that which the Court in L.O.

identified as a “serious procedural violation”, are determined to constitute, cumulatively, a denial of FAPE.

Even if the procedural violations discussed above failed to constitute a denial of FAPE, it is determined that, based solely on substantive factors, the DOE has failed to establish that it provided a FAPE for the 2015/16 school year, particularly with respect to the substantive obligation found by the Court in Endrew to exist under the IDEA that a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circum stances (emphasis added), and that such instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. Of particular note is the fact that failed to make any measurable progress in , as confirmed by Ms. , ’s for two consecutive years at the , who testified, as noted above, that continued to show difficulty in , which affected , as well as the fact that

.

Additionally, the DOE’s own exhibits 12 and 19, the Education Annual Progress Reports dated April 23, 2015 and May 12, 2016, respectively, establish that in numerous areas, including , as measured by the , showed either minimal or no progress whatsoever during the 2015/16 school year as compared to the 2014/15 school year. In any objective analysis, it can hardly be said that such significant lack of progress across numerous areas does not violate the requirements as set forth in Endrew that, in order to establish a FAPE, an IEP must be reasonably calculated to enable a child to make progress appropriate in light of the child’s circum stances. This is even more particularly true when considering the uncontested testimony of both Dr. , , and , New York State licensed , both of whom testified that the inadequate services provided during the 2015/16 school year significantly impeded his development and progress. Specifically, Dr. credibly testified, without contest, that presented with ,

, with , such as

, with , and without the ability to

, including

. He further testified, however, that had received such services during the 2015/16 school year, he would have been expected to , all of which would have resulted in . He further testified that the receipt of during the 2015/16 school year would have likely resulted in , as well as an improvement in and improved

, all of which are able to be developed and improved with practice. The fact that was largely deficient in such skills indicated to Dr. that, had received the appropriate instruction with resulting practice, such as with , he would have made significant improvements following

. This testimony was then elaborated upon, during which time Dr. testified as to the value and efficacy of , and that the strength of a response is directly correlated with frequency of training and reinforcement; i.e., the more one practices, the better one gets. He further testified that with respect to the 5 major domains in education (cognitive, speech/language communication, social-emotional functioning, motor abilities and adaptive skills), increased functionality in all such areas will occur when appropriate instruction is applied. Of upmost importance was Dr. ’s adamant opinion that ’s was not a detriment to his ability to learn, stating that is not a

, nor does it

. As a result, certainly could have learned during the 2015/16 school year had he received the appropriate instruction, as teaching success corresponds to hundreds and hundreds of trials and training responses to teach behavior, and that had received the recommended during the 2015/16 school year, he it could be expected that would have . Finally, Dr. stated that the receipt of such recommended now, retroactively, would still confer educational benefits to , as the repeated practice inherent in would bring up to age-appropriate leveling in such areas where remains deficient, such as

.

Similarly, Ms. ’s testified credibly and without contest regarding ’s , all of which affect

. She further testified as to

. She testified to ’s deficits in , resulting in , all as noted above. Most significantly, however, Ms. testified, again without contest, that due to the significant nature of ’s delays and his age, the 2015/16 school year was a critical time for him to have received such therapy to address the delays described above, and that the recommended , as contained in his 2015/16 IEP, of , was simply inadequate to meet the goals of such IEP and to progress in the areas sought to be addressed. It is again noted here that, with respect to the IEP’s recommendation of , there was no service provider that participated in the IEP meeting which made such recommendation.

Ms. further stated that with a sufficient mandate instead of , as recommended, she would have expected to make progress in , including . Finally, and of upmost importance, especially in endeavoring to satisfy the mandates of Endrew , which requires that an IEP be specifically created to address a child’s particular circumstance, Ms. noted that ’s specific type of is a , an , and presents with . As a result, his are most appropriately addressed in the earliest parts of childhood and with the most amount of therapy to focus on , during which time there exists the largest window of opportunity to achieve such progress. As is not a , the best time to address and to facilitate change is early childhood, and that, with regard to ’s particular disability, which is , more frequent and longer sessions of to address such particular disability would yield a reasonable expectation of greater gains.

Therefore, based on both procedural as well as substantive grounds, it is determined that the DOE failed to provide a FAPE for for the 2015/16 school year.

The next consideration to be addressed, following the determination of a denial of FAPE, is to determine the appropriate amount and type of compensatory services to “compensate” for lost educational services that was otherwise entitled to, as the 2015/16 school year has long been completed.

It is noted that Parent requests, among other items of relief, compensatory services of . With regard to such therapy, it is noted that the IEP recommended

. Neither the

DOE nor the parent presented witness testimony regarding ’s , but both parties presented reports/evaluations.

The DOE presented two Reports, dated April 20, 2015 (DOE

Ex.7) and April 13, 2016 (DOE Ex. 16), respectively. The first report predated ’s

2015/16 school year, and the second assessment occurred towards the end of such school year, thereby providing some measure of progress, or lack thereof, during the 2015/16 school year. While it is noted that much of the information pertaining to remained the same between the two reports, there were some significant differences. For example, the second report, measuring ’s status following most of the 2015/16 school year, states that, with respect to reflexes, demonstrated

(same as previous year) but with improvement with .

With respect to , was found to have

, and was found to have

; no such findings existed during the earlier assessment. In , demonstrated improved

, improvement with , and

. He also demonstrated

, none of which were documented in the earlier assessment. In , showed improved ability in , and demonstrated , a skill that was not documented on the prior assessment.

Parent entered into evidence a Evaluation which occurred on, and is dated, January 9, 2017 (Parent Ex. F), which recommended, in addition to the aforesaid recommendation,

. Parent’s evaluation occurred

well after the end of the entire 2015/16 school year. Parent attempts to address the inherent difficulty of an evaluation that occurred after the completion of a school year, and which is now being offered as the basis for a claim of compensatory education, by stating that “ ”. This may very well be true. However, as noted above, neither the DOE’s , nor Parent’s, were made available to testify; the record of this hearing regarding , therefore, without the benefit of direct testimony and cross examination, must rely solely on the evaluations as contained in the aforementioned reports.

The reports noted above of the DOE show progress in numerous areas, as stated, based on having received . The report of Parent was based on an assessment well after the end of the 2015/16 school year. While it noted, correctly, all of ’s deficits due to his , and provided recommendations of

(which recommendations were accepted and included in a Findings of Fact and Decision when a review of ’s educational program was undertaken for the following (2016/17 school year)), it did not (and could not) assess the educational benefits and advancements made during the 2015/16 school year, as the author of such evaluation had no knowledge of ’s degree of disability and improvement between the 2014/15 and 2015/16 school years. The area of review for this hearing is the 2015/16 school year and whether the DOE has met its burden in establishing that it provided with appropriate during the 2015/16 school year. Based on ’s improvement documented in the April 13, 2016 Report, it is determined that the DOE has met its burden with regard to provided to during the 2015/16 school year in its provision of .

Parent also seeks a and

, a , and an assessment.

However, even if was determined to be eligible for a , and , the results of such assessments would not be known until well after the issuance of this Decision, and any appropriate relief resulting from such evaluations, which have yet to take place, could not be included in this Decision.

Nor can the ordering of such assessments for the purpose of having whatever accommodations are found appropriate for the 2017/18 school year be ordered here, as any relief pertaining to the 2017/18 school year is beyond the purview of this Decision, which is limited to the 2015/16 school year.

As to the other areas in which Parent seeks compensatory services:

With respect to the findings and recommendations of Dr. , following his extensive evaluation of and his testimony (subjected to cross examination), and in the absence of evidence to the contrary, the appropriate services to which wass entitled for the 2015/16 school year is:

1)

, comprised of

;

2)

;

3)

.

With respect to the findings and recommendations of Ms. , following her extensive evaluation of and her testimony (subjected to cross examination), and in the absence of evidence to the contrary, the appropriate services to which was entitled for the 2015/167 school year is:

-

, the division of which is to be determined by the responsible for .

The appropriate services noted immediately above to which has been determined eligible for the 2015/16 school year must, by virtue of such 2015/16 school year having been long since passed, be provided as compensatory services. As noted earlier, compensatory services are required to place the child in the position he would have been had a denial of FAPE not occurred in the first place. Also as noted earlier, there are two methods for determining the appropriate level of compensatory services.

Under the facts and circumstances of this case, given the severe disabilities of the child, and especially given the fact that, due to his severe disabilities, it is impossible to determine at the present time the exact compensatory measures required to correct the deficits resulting from the denial of FAPE, the quantitative approach is determined to be the more effective and equitable form of compensatory award, as indicated below.

NOTE ON COMPENSATORY SERVICES AWARD

All compensatory services, as Ordered below, shall be based on a period of (the “school year”) and shall be reduced by the number of hours verified by the DOE for which had already received such services at during the 2015/16 school year. Services verified as having already been provided that do not conform exactly to the Ordered directives, below, shall not count as having been already received. Further, given the fact that the 2015/16 school year has long since ended, and given the extent of ’s disabilities, all such hours to which is determined eligible under a compensatory award shall be placed in a compensatory service “bank” to be utilized during the entire 2017/18 school year and, if necessary, for an additional 6 month period beyond the end of the 2017/18 school year, administered as each respective service provider sees fit, in his/her best professional judgment, to best serve the educational needs of and to maximize the benefit of such service to

ORDER

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

IT IS HEREBY ORDERED THAT THE DOE PROVIDE STUDENT THE

FOLLOWING:

1. As compensatory services for the 2015/16 school year:

a) , comprised of

, for a period of (calculated at total);

b)

, for a period of (calculated at total);

c)

for a period of

(calculated at total);

d) , for a period of

(calculated at total), (said total amount

computed by the appropriately determined minus the already received). The division of hours between shall be determined by the responsible for such .

2. For all such services and Ordered above that are provided outside of the school and cannot be provided at the standard DOE rate, or for any such service provided in the school that cannot be provided at the standard DOE rate, an enhanced rate authorization shall be provided

3.

, including for any instruction or related services listed below that cannot be provided in ;

4. The DOE shall comply in all respects with this Decision and Order. Dated: August 11, 2017

BRUCE S. OLINGER, ESQ.

Impartial Hearing Officer BO:

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

A. Due Process Complaint 4/11/17 4 pages

B. Amended Due Process Complaint 5/8/17 6 pages

C. IEP 6/1/15 15 pages

D. IEP 5/23/1414 21 pages

E. Report 6/23/16 6 pages

F. 1/9/17 6 pages

G. 1/24/17 8 pages

H. 1/30/17 23 pages

I.

Report 1/28/17 9 pages

J. Classroom Observation 3/4/16 5 pages

K. Affidavit of 6/14/17 5 pages

L. Affidavit of 6/21/17 5 pages

M. Closing Brief 7/15/17 29 pages

DOE

1. Amended Due Process Complaint 5/8/17 6 pages

2. Due Process Response 5/2/17 3 pages

3. IEP 6/1/15 15 pages

4. IEP 6/15/16 13 pages

5. Quarterly Report 11/30/14 7 pages

6. Quarterly Report 2/28/15 7 pages

7. Report 4/20/15 5 pages

8. Re-Assessment 4/13/15 3 pages

9. 4/23/15 3 pages

10. Social History Update 4/24/15 2 pages

11. Psychological Update 4/21/15 4 pages

12. Education Annual Progress Report 4/23/15 3 pages

13. Quarterly Report 8/14/15 6 pages

14. Quarterly Report 11/30/15 7 pages

15. Quarterly Report 2/28/15 7 pages

16. Report 4/13/16 5 pages

17. Re-Assessment 4/11/16 3 pages

18. 4/12/16 3 pages

19. Education Annual Progress Report 5/12/16 3 pages

20. 6/18/14 3 pages

21. Update 4/24/15 2 pages

22. Update 7/11/16 2 pages

23. Closing Brief 7/25/17 8 pages

IHO

I. Order 4/14/17 5 pages

II. Extensions of Compliance Date 6/14/17; 7/25/17 2 pages