NY IHO #166264: New York City... | Special Education Law

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FINDINGS OF FACT AND DECISION

Case Number: 166264

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: July 17, 2017

July 21, 2017

November 20, 2017

January 16, 2018

February 7, 2018

March 15, 2018

Actual Record Closed Date: May 4, 2018

Hearing Officer: Elise Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 17, 2017

Esq. Attorney — Student

Parents

For the Department of — Student

Education: — Student

District Representative — Student

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 21, 2017

Esq. Attorney — Student

Parents

For the Department of — Student

Education: — Student

District Representative — Student

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 20, 2017

Esq. Attorney (via telephone) — Student

For the Department of — Student

Education: — Student

District Representative (via telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 16, 2018

Esq. Attorney — Student

Psychologist (via telephone) — Student

BCBA (via telephone) — Student

Occupational Therapist (via telephone) — Student

Physical Therapist (via telephone) — Student

Speech-Language Pathologist (via telephone) — Student

For the Department of — Student

Education: — Student

District Representative — Student

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 7, 2018

Esq. Attorney — Student

Parents

For the Department of — Student

Education: — Student

District Representative — Student

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 15, 2018

Esq. Attorney (via telephone) — Student

For the Department of — Student

Education: — Student

District Representative — Student

Introduction: — Student

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with

-- Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by ., the Parent (“Parent”) on behalf of the student (“Student”), through her attorney, Esq. from the PC, by filing a Due Process Complaint dated May 22, 2018, with the District.

The Parent is alleging that her son, , was denied a free and appropriate public education (“FAPE”) for the 2015-16 and 2016-17 school years and is seeking compensatory hours of academic tutoring, parent training, counseling services, social skills training, speech and language therapy, and occupational therapy to make up for failures to provide with a FAPE for the 2015-16 and 2016-17 school years. She is also seeking a placement recommendation for the 2017-18 school year.

There were six days of hearings in this matter. Hearings were conducted on July 17, July 21, and November 20, 2017 and January 16, February 7, and March 18, 2018. Extensions were granted in this case making the final compliance date May 10, 2018.^[1] A list of Exhibits is attached as Exhibit A. The Parent, the District, and the Impartial Hearing Officer all submitted exhibits.

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Background

This case involved a year old student. During the 2015-16 school year, attended preschool at the in Brooklyn.

With respect to the 2015-16 school year, an Individualized Education Program (“IEP”) was developed on June 5, 2015. Pursuant to the June 5, 2015 CPSE IEP, the following recommendations were made:

1 The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering these requests, I weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly requests for extensions of the case compliance date were granted. IHO-V.

2. Speech-Language therapy, 1:1, two times per week for 30 minutes each time; and

3. Occupational therapy, 1:1, two times per week for 30 minutes each time.

During the 2016-17 school year, the Student attended kindergarten at the School, a Charter School. With respect to the 2016-17 school year, beginning January 4, 2017, an Individualized Education Program (“IEP”) was developed on December 14, 2016 which provided the following:

1. SETSS services, Math, group service, four times per week for one period each time;

2. SETSS services, ELA, group service, four times per week for one period each time;

3. Occupational therapy, 1:1, two times per week for 30 minutes each time;

4. Speech-Language therapy, 1:1, one time per week for 30 minutes each time; and

5. Speech-Language therapy, 3:1, one time per week for 30 minutes each time.

During the 2017-18 school year, the Student attended first grade at the School. With respect to the 2017-18 school year, beginning November 13, 2017, an Individualized Education Program (“IEP”) was developed on October 30, 2017, which provided the following:

1. SETSS services, Math, group service, four times per week for one period each time;

2. SETSS services, ELA, group service, four times per week for one period each time;

3. Occupational therapy, 1:1, two times per week for 30 minutes each time;

4. Speech-Language therapy, 1:1, one time per week for 30 minutes each time; and

5. Speech-Language therapy, 3:1, one time per week for 30 minutes each time.

The Parents filed a Due Process Complaint dated May 22, 2017. P-A. I was appointed as an Impartial Hearing Officer at that time.

Hearings took place on July 17, 2017 and July 21, 2017, and an Interim Order was issued on August 9, 2017 so that evaluations could be obtained. The evaluations were reviewed at a CSE meeting dated October 30, 2017 and a new IEP was issued at that time. IHO-IV.

Parents’ Case

The Parents called six witnesses,

and the Parent, and placed fifteen documents in evidence (P-A – P-O).

The first witness was She has a PhD in school psychology and did a fellowship. Tr. 86. She is presently in private practice with Tr.

88. She has not met face-to-face, however, had interviews with the mother and supervised assessment of him. Tr. 88. is a newly licensed psychologist who supervised. Tr. 88. As supervisor, every time had an interaction with the Student she had to call her and discuss it and she went over every practical with her, scored them, and interpreted them. Tr. 90. stated that she reviewed his previous records including his IEP and Occupational Therapy evaluation and talked to his mother about his development. Tr. 91. His mother indicated that he was a fraternal twin born prematurely at 27 weeks. She noted that he had developmental delays such as motor and cognitive functioning, communication and language delays. He is also very fidgety and active and is sensitive to sounds and suffers some anxiety. Tr. 92. and conducted the Wechsler Preschool and Primary Scale of Intelligence (WPPSI). Tr. 93. They also did the Feifer Assessment of Mathematics due to the mother’s indication of math deficits and a sensory profile and behavior rating inventory of executive functioning. Tr. 94.

stated that he has some good cognitive skills and phonemic awareness, and under the right conditions, he is able to shift his attention. He also has adequate visual-spatial processing and good visual memory. Tr. 94; Tr. 95. On the other hand, he has difficulties sustaining his attention and if asked to focus for more than five minutes, becomes fidgety and will be unable to remember what is told to him. Therefore, he will have difficulty with two or three step directions. He also has deficits in verbal retrieval of information and needs information presented across modalities. Tr. 95. He

also showed deficits in processing speed and working money and does not do well with timed tasks. Furthermore, he has sensory sensitivities, especially to auditory stimuli and needs movement to stimulate his brain and access education. Tr. 97. He also has deficits in body awareness. Tr. 97. Based on his deficits, he is already set up for learning disabilities across reading, math, and writing, and needs certain accommodations in order to access his education and will need to be watched in these areas. Tr. 98-99. He also struggles with ADHD, the combined hyperactive and inattentive type. Tr. 99. Right now his learning disability with impairment in reading and writing is emerging and in math he has been diagnosed with a specific disability. Tr. 101. He also is diagnosed with a sensory processing disorder. In this regard, he requires a sensory diet which must be part of his entire day. Tr. 102.

Based upon his diagnoses, testified that “he needs to be in a learning environment with a smaller class size (1:12, or 1:15), reduced distractions, and something that’s focused on children with learning disabilities.” Tr. 102. He does not have behavioral disabilities and should not be in a classroom with students with behavioral needs. She stated that his energy level, poor body awareness, and fidgeting, with deficits in working memory may make him look like he is oppositional and just not engaging in the learning environment, but this is not the case. Tr. 102. In terms of a specific program, believes that the School would be an appropriate place for this student since it focuses on the unique learning disabilities with the sensory component built into the learning environment. Tr. 103. They have a contingency management system building to their program (which is similar to a positive behavior intervention plan). Tr. 104. She has toured private and public school programs and has not come up with a program appropriate for this child. Tr. 105. believes that a public school program would not be appropriate for him to access his education at this time. Tr. 105.

Based on her recommendations, he requires one-to-one math remediation services. Tr. 105. He needs to go backwards and learn the skills his is lacking before he can move forward. Tr. 106. Going forward, she believes he would need one-to-one math remediation two to three times a week for 30 minutes each time by a math specialist. Tr.

107. She indicated that they can do an assistive technology evaluation or they can give the Student a calculator and computer for written tasks. Tr. 107. She believes that doing the interventions to remediate his deficits will help later. Tr. 109.

On cross examination, stated that the difference in a program is based on the teacher. She, however, also indicated that the focus of the schooling in a public vs. a private school is different. She indicated that the training for a school for students with learning differences is more focused and they have more training on how to deal with learning disabilities and also how to integrate sensory processing into it. Tr. 112. She does not think a class of 25 to 30 students with special education instruction for ELA and math would be sufficient since he has a gateway disability so it’s going to affect him the whole day in every course and also the overarching ADHD and sensory processing disabilities are also going to affect him the whole day. Tr. 112.

The next witness was She is a board certified behavior analyst at the doctoral level. She has her own practice and also works through the school districts to conduct FBAs or to conduct independent evaluations and also provides behavior analytic consultation and programming for children in their respective school programs.

Tr. 117.

She is familiar with because she conducted an FBA and BIP for this Student in mid-September after he first started in his new school. Tr. 121; Tr. 124. She observed him in his classroom at the Charter School for an entire day. Tr. 123; Tr. 125. He was very active. When he was engaged in manual tasks, he was more attentive; however, when they were sitting on the floor, he was unable to sit still. Tr. 124. She did observe him in both an Occupational therapy session and Speech session and found him to be more attentive in the one-to-one situations than he was in the group. Tr. 124. He asked to go to the bathroom and was not allowed. Tr. 124. She stated that in the classroom they had a rudimentary system of reinforcement which was class wide. observed that one of his most significant behaviors was fidgeting. She also noted that although he can speak, he did not interact socially with any of the kids in the class, and even when he interacted with his

- brother during recess, it was all motor activity. Tr. 125. He seemed to follow directions most times and tried hard. Tr. 125-126. She also felt he really needed movement breaks due to the fact that he is wiggly and has an excessive amount of motor movement. Tr. 127. There were 19 students in the class and most of the time, two teachers with general and special education students. Tr. 127.

After analyzing the data she collected, did not think his behaviors were motivated by attention or escape, he merely needs the movement. Therefore, in his plan, it is important that a movement schedule be developed in conjunction with the Occupational therapist at school. Tr. 129. She also found that he often responds incorrectly to teacher presented directions and also fails to have social interactions. Therefore, she believes he needs communication training to be provided by a Speech therapist as well as more intrusive programming and social skills training. Tr. 131. The functional communication training would include responding to questions from the teacher and other students. Due to his deficits in language skills including receptive, expressive, and pragmatic skills, he would also need speech therapy and/or social skills training. He will also need movement breaks through the day. Tr. 133. thinks that the current frequency of Occupational therapy and Speech is appropriate but she also added home based ABA instruction for 1.5 hours per day. Tr. 133. She feels the social piece can be addressed at home since he has a brother. Tr. 135. She thinks a combined school/home program is appropriate and there would need to be coordination between home and school. Tr. 135. The ABA is important in breaking down skill deficits into smaller parts. Tr. 137. would be able to learn to categorized and classify items which is limiting his ability to make inferences and in order to read well, one needs to make inferences. Tr. 137. Therefore, everything can be carried from school to home, the functional communication training, the social skills training, as well as integrating a sensory diet. Tr. 137. Therefore, even at home, he would need sensory breaks built into his home program. Tr. 137. The ABA at home could be conducted by a BCBA or it could be set up by a BCBA and implemented by a registered behavior technician or a board certified assistant behavior analyst. Tr. 139. stated that he should have had a plan and remedial instruction last year. Tr. 43. Pursuant to the December 14, 2106 IEP, the Student was mandated to receive the following: SETSS services, Math, group service, four times per week for one period each time; SETSS services, ELA, group service, four times per week for one period each time; Occupational Therapy, 1:1, two times per week for 30 minutes each time; Speech -Language Therapy, 1:1, one time per week for 30 minutes each time; and Speech - Language Therapy, 3:1, one time per week for 30 minutes each time, as remedial instruction last year. Tr. 143.

On cross examination, she stated that she is not sure whether the class size he is in is appropriate. It would be dependent on whether the recommendations are being addressed and his needs are being met. Tr. 145. She stated that he may be appropriately serviced in the ICT class he is in as long as the class size is small. They need to further evaluate to see whether his present program works out with the plan that has created. Tr. 149.

The next witness was She has been an Occupational therapist for over 40 years and has worked in a variety of schools and has taught Occupational therapy and sensory integration on a college level. Tr. 157. There are differences in Occupational therapy. School based Occupational therapy which is getting involves push-in to classroom or moving the student to a quiet corner in order to work on motor skills and handwriting. Tr. 155. Sensory integration Occupational therapy involves special therapeutic equipment. Tr. 155. It is different than school based therapy and helps children with organization skills, motor planning, executive functioning and attention, as well as gross and fine motor skills. Tr. 155.

conducted her evaluation on in September of 2017. Prior to seeing him, she reviewed his history including the fact that he was born prematurely and was in an ICU and there is sometimes a relationship with sensory motor processing. She also took note of the fact that he had when he was little and issues. Tr. 157. From her clinical observations, he had a high intensity of activity, had a hard time regulating and sitting, and his attention span was challenged. Tr. 157. He muttered to himself, wandered about, and required an enormous amount of sensory breaks. Tr.

157. She stated that he needed very structured activities to help him stay organized and needed supervision in the gym to keep him safe. Tr. 158. He could throw a ball to target but couldn’t catch and could balance on one foot but couldn’t jump and balance. Tr. 158. He had trouble negotiating bilateral coordination and sequencing tasks. Tr. 158. She observed that he could only do things switching sides from one side of his body to the other and had difficulty crossing midline. Tr. 159. His visual motor skills were strong if there wasn’t a motor component. Tr. 159. He had difficulty with his handwriting which was large and unevenly spaced and had difficulty with lower case in relationship to going below the line on his y and z. Tr. 160. Accordingly, his handwriting, his attention, the strength in his hands, his sensory issues, and auditory processing challenges were issues. Tr. 161.

She stated that when she was testing him, the verbal directions weren’t enough and he learned more kinesthetically and visually by watching someone else do something. Tr. 161. Accordingly, she felt that that validated him receiving special education support in the classroom because his learning style with just verbal directive would be difficult for him and needed someone one-on-one to show him the steps of how to do certain things. Tr. 167. He also needed directions repeated multiple times and had sensitivity to sound, and had a hard time staying programmatically within a conversation. Tr. 162.

stated that he would benefit from having a sensory diet throughout the day including ten minutes of rigorous physical activity in the morning and the same thing during the school day as well as items like a squishy seat, being able to stand intermittently and use of TheraPutty. Tr. 163. These activities and items help with focus and attention. Tr. 165. It also regulates him and helps him focus, and take in language information. Tr. 166. He needs scaffolding or a buddy system to help engage him and have him fully participate. Tr. 164. He also needs work on his visual spatial skills through games and activities.

recommended Occupational therapy three times a week for 45 minutes each time, with one of these sessions in a sensory gym. Tr. 166. She felt that he needed the sensory gym for self-regulation and organizational skills. Tr. 166. In a school setting, it is difficult to work on whole body organization and motor planning. Tr. 167. Sensory gyms also help with fine and gross motor skills and kinesthetic directional planning of the body in space. The gym is also helpful for children with auditory sensitivity. Tr. 167.

stated that she was aware that as far as she knew, he had school based Occupational therapy last year and is having it this year. Tr. 168. He also had some work at a sensory gym but was not able to continue it because it was not provided through the District but through the Parent’s insurance. Tr. 168. In terms of kindergarten, testified that would have benefitted from having sensory integration therapy to complement the work at school. Tr. 170. She is basing this on the fact that his selfregulation, his organizational skills, and his motor planning skills are developmentally delayed. Tr. 170. She stated that there is so much changeability in a younger nervous system in early childhood and between five and seven there is tremendous potential to augment changes. Tr. 171. By seven or eight, a child’s neural systems are the way they are and it’s more difficult to achieve change with respect to sensory processing. Tr. 172. She believes it would be helpful for him to get additional services in a sensory gym to make up for some of the lost time. Tr. 172.

recommendation was for two longer sessions of Occupational therapy in school (45 minutes each) so that he/she can work with the teachers to give them insight into how he needs sensory breaks, to work on his handwriting, and his fine and gross motor and visual motor skills in relationship to the curriculum in the classroom and the first grade work. Tr. 174. She also feels he needs the sensory gym once a week for 45 minutes to address his auditory processing, motor planning, body in space, selfregulation, and attention. Tr. 174. In addition, in order to catch up for lack of servicing last year, an additional sensory gym session should be added to the IEP for the duration of his school year through the summer so he could have sensory gym twice a week. Tr. 174. His make-up sessions are based on the fact that he did not get the sensory gym last year nor from September through January of this year. Tr. 175. If he can get himself organized, believes there is a chance they can change his neuro construct and he could be more auditorily attentive. In addition, it will help with processing, motor planning, staying focused, and inclusion in the regular classroom situation. Tr. 175.

-- did not observe him in his classroom; however, based on her observations believed he should be in a class setting with special education support through a SETSS teacher or through an inclusionary model so that accommodations can be made for him in terms of processing and his organizational skills. Tr. 176.

On cross examination, stated that he did receive push-in therapy last year and the make-up services she is requesting is for the sensory gym.

The next witness was She is a Physical therapist. She is licensed in New York State and Connecticut and has certifications in sensory processing and Pilates. Tr. 186-187. The District stipulated to the recommendation made in the Physical therapy evaluation for Physical therapy, two times per week for 30 minutes each time, 1:1, from the date of the evaluation. P-J; Tr. 187.

Her initial observations of were that he had trouble being still, holding his body, using his eyes, and then using his hands, and listening. Tr. 192. The ability to do auditory skills, visual skills, and motor skills together is called multitasking which the child needs in order to perform appropriate school classroom skills. Tr. 192. These neurodevelopmental problems are usually there when the child is younger and they were not addressed. Tr. 194. She believes that the Physical therapy sessions going forward should have been done last year. Tr. 195. She stated, however, that although she wasn’t there, based on scientific facts, unless you had some kind of accident, you just don’t develop these issues and they are forcing diagnoses of developmental coordination or attentional problems because foundations weren’t dealt with as they should have been. Tr. 195-196. stated that the provider working with should have continuing education in neurodevelopmental issues. Tr. 197.

The next witness was She has a Master’s degree in SpeechLanguage Pathology and is certified through the American Speech-Language Hearing Association. Tr. 202. The District stipulated to the recommendation made on the Speech and Language Therapy evaluation for Speech, , 1:1two times a week for 30 minutes each time from the date of the evaluation. Tr. 201; P-N. It should be noted that last year

(2016-17), he was mandated to receive two sessions of Speech, one session 1:1 and one session in a group (3:1), both for 30 minutes. Tr. 181; D-1. She is familiar with as she conducted his Speech evaluation. Tr. 204. She did both a formal language assessment and an informal one. Based on her testing, he had difficulty with listening comprehension including vocabulary, “like” concepts, linguistic concepts, and complex sentence structure. Tr. 207. She noticed when giving him a single word picture test that he had trouble hearing words she said (i.e. for slumber, he said “slunder”). This indicated that he had trouble hearing the accuracy of words even in a one-on-one session with no distractions. Tr. 208. She also noticed that in addition to mishearing words, he’s asking for repetition. Tr. 209. She further determined through testing that even if he knew a single word, if embedded in a sentence or when the language complexity increases, he uses his ability to understand the word. Tr. 210. He did not have a consistent problem with compound and complex sentences. Tr. 211. She also found that his comprehension was not great, but better when no listening was involved. Tr. 212. She noticed that when she gave him words to remember, he said them back to himself indicating that he had deficits holding onto language and being able to process but had begun to develop strategies on his own. Tr. 213. He also was weak with receptive tasks. Tr. 213.

recommended that he be evaluated by an audiologist to rule out an auditory processing issue. Tr. 214. She did not view him in the classroom. She came up with some strategies and modifications for his classroom to enable him to access the curriculum and perform his best in the classroom. Tr. 216.

stated that the classroom he is in would be appropriate as long as there is a teacher’s assistant in the classroom who can provide the type of support or scaffolding that he needs in order to do his best in that classroom. Tr. 216. She suggested 2:1 for those portions of the day where listening and learning through listening is important or required. Tr. 216. She said a teacher’s assistant who would work with a special education teacher would be appropriate. Tr. 217. recommended Speech, two times a week for 30 minutes each time, 1:1. Tr. 217.

testified that based on last year, she did not have a recollection of his services, but would assume that he would need what he continues to need now based on how he presented at the evaluation. Tr. 218. She would have recommended therapy in a group setting if he had pragmatic language issues; however, it was not apparent through her evaluation that he had deficits in pragmatics in terms of social language or how he used language with peers. Tr. 219. She based this on parent conversations since she did not see him in the classroom. Tr. 219. She reviewed teacher reports but also did not see indications that he had difficulty with language with peers. Tr. 219. She also recommended that there should be team meetings between school staff and parents to stay

-- connected and coordinated. Tr. 221.

The last witness was the Parent. is a year old. He is a He is a student with disabilities that he struggles with but is ambitious, works hard, and never gives up. Tr. 232. He was premature and had milestone delays. Tr. 233. He had services in preschool. Kindergarten (2016-17) became an issue, and he significantly struggles in his classroom. Tr. 234. He had Speech delays, Occupational therapy issues, and he was assigned a SETSS teacher. Tr. 237. According to the Parent, the teacher, did not understand the child’s needs and became abusive. She would deny him trips to the bathroom and he would come home wet and she would physically turn his neck or put his hand down when raised, and act in other inappropriate ways. Meetings were arranged with the principal, however it still persisted. Tr. 235-236. She stated that with respect to his mandated services, he wasn’t receiving them consistently and did not know how many he missed. Tr. 238.

In kindergarten (2016-17), he was in a classroom with 30 students and two teachers and was mandated to receive Speech, Occupational therapy, and SETSS. At some point she learned that he wasn’t receiving the Occupational therapy listed on his IEP, which was Occupational therapy, two times per week, for 30 minutes each time. She stated that “he received some of it, but not all of it from what was told to her by the school”. Tr. 241. She was told this by an administrator in the office. She stated that she estimated that she called approximately 40 times to inquire about it. Tr. 242. She

received Occupational therapy progress reports but his goals and achievements were always the same. Tr. 243. She could not recollect who she spoke to during the 2016-17 school year regarding Occupational therapy; however, (who wrote the progress report in evidence (P-6)) may have been one of the Occupational therapists. Tr.

244. He may have had three Occupational therapists during the 2016-17 school year. Tr.

245. She said that she remembers having conversations about his frustrations and finding the therapy difficult, and she also remembers the things they indicated that she could try at home to help him. Tr. 245. She stated that she wasn’t aware until the hearing that he had sensory issues as she was not told this by any of the Occupational therapists. Tr. 246. The Occupational therapists advised her that when he was having difficulty, he should be redirected. Tr. 246. She did not see any progress in his Occupational therapy during the 2016-17 school year. He still can’t tie his shoes. Tr. 247.

The Parent stated that was supposed to receive Speech services, two times a week for 30 minutes each time during the 2016-17 school year but did not receive it. Tr.

247. She stated she would call and ask for the therapist’s name and call the therapist. Tr.

247. They told her struggles with pronunciation and comprehending. Tr. 248. She stated that she would call the office and find the therapist changed due to pregnancy or for another reason and there would be a lapse before the next therapist. Tr. 248. If she had to come up with a number of how many sessions of Speech were missing during the 2016-17 school year, it may be 40 times during the 2016-17 school year, based on calling the school 40 times. Tr. 249-250.

The Parent testified that for the 2016-17 school year, he was supposed to receive SETSS services and he also was not receiving them consistently and often they would group him and not provide him with individualized services. The IHO explained to the Parent that based on his IEP he was, in fact, supposed to get math and ELA SETSS services in a group and she indicated that she wasn’t aware of that. Tr. 252. She said he did not receive consistent services based on her phone calls to the school. Tr. 253. The Parent reviewed progress reports of what they thought was going on, which was always the same. Tr. 253.

At the end of the 2016-17 school year, the Parent received a Promotion in Doubt Letter. Tr. 254. She stated that they didn’t really give her an appropriate response as to why he wasn’t ready to move on to first grade. Tr. 255. She decided to move him to another school because she felt he wasn’t getting the education he needed and she also mentioned that there was an abusive situation. Tr. 256.

For the 2017-18 school year, he was placed in the by the Parent. Tr. 257. His class has 20+ students and he has a nice teacher but he still struggles. Tr. 258. She stated that they do not seem to be following the IEP and he has not received any SETSS this year. Tr. 258. There is an e-mail chain with respect to this which is included as Parent Exhibit O. She first reached out to the teacher who advised her that he wasn’t getting any SETSS and was getting Occupational therapy and Speech inconsistently and then she reached out to the dean of instruction. Tr. 268. She does not know how many sessions of Speech and Occupational therapy he has missed. Tr. 269.

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The Parent testified that she obtained a neuropsychological evaluation from and she recommended that enroll in a nonpublic school aimed for students with learning disorders. Tr. 270. She also diagnosed with a sensory disorder and stated that he processes at a slower rate and needs more time on testing. Tr. 271. Based on the foregoing, the Parent indicated that he needs sensory breaks and a sensory diet. Tr.

272. He is very fidgety in reading time and gets distracted easily and has trouble completing tests. Tr. 271-272. She testified that “in a public or charter school, they can’t give him the kind of attention as they would in a private school where it’s a smaller setting and teachers a more aware of…[the Student’s] struggles so they can help implement these things to [him]”. Tr. 272. She stated that she is consistently trying to work with him and one day he will make progress in sight words because she worked with him on that but then he will fall behind in math or reading because they will not have time to review that Tr. 273. The Parent stated that this year his teacher is kind and he trusts her, but he is still struggling and the teacher has stated that she is not knowledgeable about kids with these disorders. Tr. 274. She told the Parent at the time of the IEP meeting that she couldn’t help Tr. 274. At the most recent IEP meeting, they stated that they could put him in a special education class (12:1) and he would get his services in class. Tr. 275. She stated that she doesn’t believe he “needs special ed”. Tr. 275. She indicated that if he got the specialists that he needs, he would do better. She believed that in a special education class, they don’t raise the bar. Tr. 276. The Parent actually indicated that she was confused as to what he was to receive. Upon looking at the IEP, the Impartial Hearing Officer showed the Parent that on the IEP it stated that a 12:1:1, 12:1, and an ICT class were rejected. It stated in the IEP that “the Parent did not want to move her child to a different class, felt transition would be difficult. The Parent wanted to wait for new testing to be done.” Tr. 278; IHO-I. The Parent testified that since the Parent did not want the Student moved mid-year, he remained where he was. Tr. 280. The Impartial Hearing Officer also pointed out that the testing had already been done in the summer. Tr. 281. Position of the Parties District’s Case The District did not call any witnesses, and placed twelve documents in evidence. D-1 – D-13.2

Findings

Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. 1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. Of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

A school district offers 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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; 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). Nonetheless, a

D-12 was not included in evidence.

school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and …affords the student with an opportunity greater than mere ‘trivial advancement’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see, Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (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 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. Of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007). York City Dep’t of Educ., 2010 WL 3398256, at*7 [S.D.N.Y. Aug. 27, 2010]).

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). 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

I (A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297, at *2 [2d Cir. Mar. 23, 2010]; see Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821-22 [9th Cir. 2007]; Houston Indep. School District v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]; -

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]).

With respect to Parent’s request 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, 150-51 [N.D.N.Y. 1997]). 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. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; 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]). Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at *24 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at *12-*13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]). Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13- 226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]). In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that 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., 31 F.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"]). 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"]; 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, 525 [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 ["There is no obligation to provide a day-for day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

Where there has been a violation of FAPE, hearing officers have broad authority to grant such relief as they deem appropriate, including compensatory education. 20 U.S.C. 1412 (a)(1), 1415(i)(2)(C)(iii), 34 C.F.R. 300.51 (c)(5); P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). A hearing officer should thus award compensatory education in the form of education or services where such an award is necessary to make up for a FAPE deprivation. P., 546 F. 3d at 123 (citation omitted). In evaluating a claim for compensatory education, a hearing officer must engage in a factspecific inquiry to fashion an award that is “reasonably calculated to provide educational benefits that likely would have accrued from…services the school district should have supplied in the first place.” Reid v. Dist. Of Columbia, 401 F.3d 516, 524 (D.C. Cir).

The first issue is whether there was a denial of FAPE for the 2015-16, 2016-17, and 2017-18 3 school years and whether compensatory and/or other services should be provided. With respect to the 2015-16 school year, although the District did not put on witnesses, the CPSE IEP dated June 5, 2015 provided for SEIT services, seven hours per week; Speech-Language Therapy, 1:1, two times per week for 30 minutes each time; and Occupational Therapy, 1:1, two times per week for 30 minutes each time. IHO-I. The Parent stated in her testimony that he had services in preschool and he began to have issues in kindergarten. Tr. 237. There is no discussion in the testimony or in the documentary evidence indicating that there was a denial of FAPE and the Parent testimony clearly indicates that there was not.

With respect to the 2016-17 school year, it is clear that the District did not provide the Student with all of his mandated services, and therefore, did not provide the Student with FAPE. I credit the testimony of the Parent that the District did not provide all of the 3 It was determined that the Parents were requesting a placement recommendation for the 2017-18 school year following the review of the evaluations by the CSE in their due process complaint. Accordingly, at the hearing, clarification was made on this issue and it was determined that the issue of FAPE for the 2017-18 school year would be included in the inquiry. Tr. 80-82. The District confirmed this by stipulating to some of the services he should be receiving for the 2017-18 school year.

sessions mandated for Speech and Occupational therapy, and that the failure to provide these services hindered his ability to receive educational benefit. The District was asked to provided attendance records for the 2016-17 school year from the providers and could not find them on SEISIS and was otherwise not able to provide them. Tr. 294. Pursuant to the December 14, 2106 IEP, the Student was mandated to receive the following: SETSS services, Math, group service, four times per week for one period each time; SETSS services, ELA, group service, four times per week for one period each time; Occupational therapy, 1:1, two times per week for 30 minutes each time; Speech-Language Therapy, 1:1, one time per week for 30 minutes each time; and Speech-Language Therapy, 3:1, one time per week for 30 minutes each time.

Some of the evaluators that evaluated in September of 2017 took the position that should have received the services they were recommending for the 2017-18 school year for the 2016-17 school year, however, they did not evaluate the Student prior to the 2016-17 school year nor at any time during the school year, nor was there documentation addressing this. Therefore, their recommendations for the 2016-17 school year were based on assumptions. With respect to Speech therapy, the Speech therapist that evaluated him, testified that “based on last year [2016-17], she did not have a recollection of his services, but would assume that he would need what he continues to need now based on how he presented at the evaluation”. Tr. 218. With respect to Physical therapy, the Physical therapist that evaluated him in September of 2017, testified that she believes that the Physical therapy sessions she was recommending for 2017-18 should have been done during the 2016-17 school year. Rather than observing him during the 2016-17 school year or looking at reports from his teachers, she stated that her recommendation is based on scientific facts. Tr. 195. She stated that “…[although] I wasn’t there, but I could imagine, because I’ve done (therapy) with dozens and dozens of children, that there are problems that need to be addressed earlier so that the time the child is ready to sit in an academic setting and look down at their paper and look up and do everything they’re supposed to do, these foundational skills need to be strong”. Tr. 195. Although I credit her testimony with respect to her evaluation of him for the 2017-18 school year and the recommendations she is making, her recommendations for the 2016-17 school year are based on general assumption not specifics relating to this child.

With respect to Occupational therapy for the 2016-17 school year, he was mandated to receive Occupational therapy, two times a week for 30 minutes each time, 1:1. the Occupational therapist that evaluated him in September of 2017 stated that “ would have benefitted last year [2016-17] from having sensory integration therapy to complement the work at school. Tr. 170. She also indicated that he would have benefitted from 45 minute sessions instead of 30 minute sessions. She did not evaluate him during the 2016-17 school year but only in September of the following year. Accordingly, although I credit her testimony with respect to her evaluation of him for the 2017-18 school year and the recommendations she is making, her recommendations for the 2016-17 school year are based on assumptions. It is clear that he was not receiving his mandated services consistently and he requires make up services to put him in the position he would have been in had the services been provided.

For the 2016-17 school year, the Student was mandated to receive the following: SETSS services, Math, group service, four times per week for one period each time; SETSS services, ELA, group service, four times per week for one period each time; Occupational Therapy, 1:1, two times per week for 30 minutes each time; Speech Language Therapy, 1:1, one time per week for 30 minutes each time; and Speech Language Therapy, 3:1, one time per week for 30 minutes each time. I ordered the District to produce a record of the services that were provided for the 2016-17 school year and testified that none were available on SEISIS. Tr. 302. The Parent testified that she would estimate based on her calls to the school and conversations with the therapists, that he missed approximately forty sessions of Occupational therapy during the 2016-17 school year and forty sessions of Speech-Language therapy. Tr. 241-243; Tr. 249-250. That would mean that she would have called every other day regarding his related services. She stated that he may have had three Occupational therapists during the 2016-17 school year and although she received progress reports, his goals and achievements remained the same with respect to his Occupational therapy needs. Tr. 242. Based on the foregoing, since there are no official records of the services he received at the charter school for the 2016-17 school year, I credit the testimony of the Parent that he missed many sessions of related services and as a result did not make the progress he should have, but I am not persuaded that he missed forty sessions of Occupational therapy and forty sessions of Speech (which would be half of his mandated services in these areas for the year). Accordingly, since there are no records of how many sessions were missed, I am providing him with twenty-seven make up sessions for Speech for the 2016-17 school year and twenty-seven make up sessions for Occupational therapy, which would account for approximately one third of the services he was mandated to receive during that year. He has significant needs in these area and it is clear that there was a failure by the District to provide consistent services, thus these make up services will hopefully place the Student in the position he would have been in if the services had been provided.

Although the Parent testified that he was receiving SETSS services inconsistently during the 2016-17 school year, the Parent did not give any specific testimony regarding this. Tr. 252. It should be noted that for the 2016-17 school year, the SEISIS event log for September 14, 20016 states that although he was mandated for a Special class (12:1) on his aging out preschool IEP, his mother placed in in a charter school where this setting was not offered and accepted SETSS services in its place. D-13. She stated that they often would group him and not provide him with individualized service and it was explained, at the time of the hearing, that he was mandated for group service not individualized service. Tr. 252. Accordingly, I am not persuaded by her testimony in this regard.

With respect to the 2017-18 school year, it is clear that the District did not provide the Student with all of his mandated services and the level and type of services that were provided were not appropriate in certain instances to provide him with academic benefit based on the reports from the evaluators. Therefore, the District did not provide the Student with FAPE for the 2017-18 school year. For the 2017-18 school year, his mandated services on his October 30, 2017 IEP were as follows: SETSS services, Math, group service, four times per week for one period each time; SETSS services, ELA, group service, four times per week for one period each time; Occupational therapy, 1:1, two times per week for 30 minutes each time; Speech-Language therapy, 1:1, one time per week for 30 minutes each time; and Speech-Language therapy, 3:1, one time per week for 30 minutes each time. In connection with his IEP, the Student was mandated to receive SETSS services four times a week for one period each time in a group for ELA and four times a week for one period each time in a group for math. Based on the email record between the Parent and the District in the fall of 2017, the District was not providing any SETSS to the Student and he is entitled to make up sessions for all the SETSS services he was mandated to receive during the 2017-18 school year for both math and ELA. P-O.

Before the Physical therapist ( testified at the hearing, the District stipulated that they were in agreement that the Student should have received Physical therapy, two times a week for 30 minutes each time, 1:1, during the 2017-18 school year.

had made that recommendation in her evaluation. The Student was not provided with any Physical therapy on his IEP for the 2017-18 school year. Accordingly, the Student is entitled to eighty (30 minute) make up sessions of Physical therapy to make up for the hours the child did not receive during the 2017-18 school year. Tr. 187.

Before the Speech therapist ( testified at the hearing, the District stipulated that they were in agreement that the Student should have received Speech, two times a week for 30 minutes each time, 1:1, during the 2017-18 school year. had made this recommendation in her evaluation. Since the Student was only receiving one thirty minute period of Speech 1:1 per week (and one group session) during the 2017-18 school year, he is entitled to forty (30 minute) make up sessions for the periods of Speech 1:1 that the Student did not receive during the 2017-18 school year. In addition, the District provided attendance records indicating that the District did not provide the Student with thirty-three in school Speech sessions for 30 minutes each time during the 2017-18 school year. Therefore, the Student is entitled to make up session for the sessions that were not provided.

In terms of Occupational therapy for the 2017-18 school year, the Student was mandated to receive two 30 minutes sessions of Occupational therapy per week, 1:1. The

District provided attendance records indicating that the District did not provide the Student with twenty-four sessions of Occupational therapy during the 2017-18 school year. Therefore, the Student is entitled to twenty-four (30 minute) make up sessions for the periods of Occupational therapy the Student did not receive during the 2017-18 school year. the Occupational therapist that evaluated the Student recommended Occupational therapy three times a week for 45 minutes each time, 1:1, with one of these sessions in the sensory gym for the 2017-18 school year. She is basing this on the fact that his self-regulation, his organizational skills, and his motor planning skills are developmentally delayed. Tr. 170. She testified that he needed the sensory gym for selfregulation, for organizational skills and to help with fine and gross motor skills, kinesthetic directional planning of the body in space, and for auditory sensitivity. Tr. 166-

167. She stated that between the ages of five and seven there is tremendous potential to augment changes and that by seven or eight, a child’s neural system is the way it is and it is difficult to achieve change with respect to sensory processing. Tr. 172. Accordingly, based upon the testimony, and his needs in these areas, should receive one 45 minute session per week in a sensory gym for the 2017-18 school year. Although, the therapist requested that all three sessions be for 45 minutes, I am keeping the other two in school sessions at 30 minutes because I believe that collaboration with the teachers can be done outside of the sessions. Tr. 174.

With respect to SETSS for the 2017-18 school year, although the Student was mandated to receive SETSS for math, group service, four times per week for one period each time and ELA four times per week for one period each time, he received no SETSS. The Parent testified that he has not received SETSS this year and provided emails between herself and the District regarding same. P-O. Accordingly, the Student is entitled to make up services for the SETSS services he missed during the course of the 2017-18 school year which amounts to one hundred sixty periods of SETTS services for math and one hundred sixty periods of SETSS services for ELA for the 2017-18 school year.

Although the Parent requested funding for 630 hours of compensatory in home ABA “to teach social skills and functional communication skills to as recommended by in her Functional Behavioral Evaluation dated September 17, 2017. P-L.

indicated in her evaluation that the behaviors she is targeting are “Failure to follow group verbal directions”, “fidgeting while seated on the floor”, and “initiating verbal interactions with peers.” P-L. It is clear that when preparing a new IEP, the Behavior Intervention Plan should be incorporated in his IEP, and his Speech and Occupational therapy should also address these target behaviors. In this regard, goals should be created with this in mind. The compensatory services provided to the Student can and should also address these issues. I am not persuaded by testimony and evaluation that home based ABA is necessary for this purpose, nor that it should be awarded as a compensatory remedy at this time.

In addition to the foregoing, at this time, the CSE must be convened to develop an appropriate IEP for At the meeting, the CSE must review all of the recommendations provided by the evaluators in their reports including but not limited to the: Physical Therapy Evaluation (P-J); Developmental-Behavioral and Psychological Evaluation (PK); Functional Behavioral Evaluation (P-L); Occupational Therapy Evaluation (P-M); and Speech and Language Evaluation (P-N). The CSE shall also review all of the teacher reports and related service reports for the 2016-17 and 2017-18 school years, as well as any other documents they deem appropriate in making a determination regarding placement and related services.

With respect to placement, the CSE should consider all evaluations and reports and come up with an appropriate placement for the Student based on his needs at this time taking into consideration the evaluators recommendations for a small class size with special education support. The evaluators provided different recommendations for placement for the Student and they should be reviewed carefully and assessed based on his present needs.^[4] In this regard, the CSE should take into consideration the Parent’s request and recommendation for a “nonpublic school with a small teacher/student ratio and reduced distractions, focused on children with learning disabilities who do not have behaviors, complete with a sensory component built into the learning environment” as well as the recommendations of the other evaluators. IHO-VI. The placement recommendation must address his unique special education needs, allow him to make progress and permit him to receive academic benefit from his instruction. It is also clear that the Behavior Intervention Plan prepared by must be incorporated into IEP that is being developed. In addition, the CSE should consider providing the Student with a sensory diet, to be utilized at home and at school.

With respect to mandates for related services, the District clearly stipulated to the recommendations provided in the Physical Therapy Evaluation (P-K) and the Speech and Language Evaluation (P-N) for the 2017-18 school year, and careful thought should be given as to whether that will be enough going forward or additional services will be necessary. With respect to Occupational therapy, although the District did not stipulate to the services recommended, it is clear that Occupational therapy is necessary for this child and the CSE should carefully consider the recommendations made on the Occupational Therapy Evaluation (P-M).

In order to provide for a timely and appropriate placement, the CSE is ordered to convene within 15 days of the date of this Order.

ORDER

Based upon the foregoing, it is hereby

ORDERED

1. The CSE shall convene within fifteen days of the date of this Order and prepare a new IEP for this Student. The CSE shall review all of the evaluations provided by the evaluators and their recommendations, the teacher reports and related service reports, as well as any other documents they deem appropriate in making a recommendation regarding placement and related services for the Student. The recommendation must address his unique special education needs, allow him to make progress and permit him to receive academic benefit from his instruction. The Behavior Intervention Plan prepared by should be incorporated into IEP that is being developed. In addition, the CSE should consider providing the Student with a sensory diet in his IEP, to be utilized at home and at school. The CSE shall also create meaningful and measurable goals to address the Student’s needs at this time.

2. The District shall fund the following:

a) Eighty (30 minute) sessions of Physical therapy, 1:1, which the District stipulated that the Student should have received for the 2017-18 school year at a reasonable rate consistent with the prevailing rate in the community for such services which must be used within three years of the date of this Order.

b) Fifty-one (30 minute) sessions of Occupational therapy, 1:1, to make up for the twenty-seven sessions he did not receive during the 2016-17 school year and for the twenty-four sessions he did not receive during the 2017-18 school year at a reasonable rate consistent with the prevailing rate in the community for such services which must be used within three years of the date of this Order.

c) Forty (45 minute) sessions of Occupational therapy in a sensory gym to address the Student’s self-regulation, organizational, motor planning skills, etc. which I have determined the Student should have received for the 2017-18 school year at a reasonable rate consistent with the prevailing rate in the community for such services which must be used within three years of the date of this Order.

d) Sixty (30 minute) sessions of Speech to make up for the twenty-seven sessions he did not receive during the 2016-17 school year and for the thirty-three sessions he did not receive during the 2017-18 school year at a reasonable rate consistent with the prevailing rate in the community for such services which must be used within three years of the date of this Order.

e) Forty (30 minute) sessions of Speech, 1:1, which the District stipulated that the Student should have received for the 2017-18 school year at a reasonable rate consistent with the prevailing rate in the community for such services which must be used within three years of the date of this Order.

f) One hundred sixty (one period) sessions of SETSS for math and One hundred sixty (one period) sessions of SETSS for ELA to make up for the sessions he did not receive during the 2017-18 school year at a reasonable rate consistent with the prevailing rate in the community for such services which must be used within three years of the date of this Order. Dated: May 9, 2018

Elise B. Kestenbaum, Esq. gc

ELISE B. KESTENBAUM, ESQ.

Impartial Hearing Officer

EBK:gc

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO RECORD

Appendix A

Evidence

Parent’s Exhibits

No. Date Document Pages

A. 5/22/2017 Due Process Complaint 7

B. 7/20/2017 Letter Brief from Parent’s Counsel 6

C. undated Rate Letter 1

D. 7/17/2017 Rate Letter 9

E. undated Rate Letter 1

F. 7/18/2017 Rate Letter 1

G. 7/17/2017 Rate Letter 2

H. 7/18/2017 Rate Letter 1

I. undated BCBA-D Rate Letter 1

J. 9/9/2017 Physical Therapy Evaluation 11

K. 9/13/2017 Developmental-Behavioral and Psychological

Evaluation 16

L. 9/17/2017 Functional Behavioral Evaluation 20

M. 9/21/2017 Occupational Therapy Evaluation 11

N. 9/27/2017 Speech and Language Evaluation 8

O. misc. dates E-mails 4

District Exhibits

No. Date Document Pages

1. 12/14/2016 IEP 10

2. VOID

3. 12/12/2016 Speech Therapy Report 2

4. 12/7/2016 Teacher Progress Report 2

5. 12/14/2016 Authorization to Attend 3 6 12/13/2016 Progress Report/Occupational Therapy 2

7. 12/14/2016 Prior Written Notice 3

8. 7/10/2014 Social History 4

9. 7/11/2014 Psychological Evaluation 4

10. 7/17/2014 Speech and Language Evaluation 3

11. 7/16/2014 Physical Therapy Evaluation 3

12. 7/18/2014 Educational Evaluation 4

13. 7/14/17-12/14/16 SEISIS Events/Minutes 2

Impartial Hearing Officer’s Exhibits No. Date Document Pages

I. 10/30/17 IEP 20

II. misc. dates CPSE IEPs 36

III. misc. dates E-mails Regarding Related Services 2

IV. 8/11/2017 Interim Order 5

V. Misc. dates Compliance Decisions 10

VI. 3/23/2018 Parent’s Closing Argument 26

Footnotes

[1] SEIT services, seven hours per week;

[4] It should be noted that at the time of the October 2017 IEP meeting, the Parent did not want the Student’s placement moved. Tr. 281; IHO-I.

New York City Department of Education, Impartial Hearing Decision