New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 166275

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August |, 2017

August 31, 2017

October 30, 2017

December 14, 2017

Actual Record Closed Date: February 11, 2018

Hearing Officer: Gary D. Peters, Esq.

NAMES AN _ TITLES OF PERSONS WHO APPEARE ON AUGUST 1, 2017

Attorney Parent

DOE Designee DOE

Mother Parent

NAMES AN __ TITLES OF PERSONS WHO APPEARE ON AUGUST 31, 2017

Attorney Parent

DOE Designee DOE

Mother Parent

DOE

NAMES AN _ TITLES OF PERSONS WHO APPEARE ON OCTOBER 30, 2017

Attorney Parent

DOE Designee DOE

Mother Parent

DOE

Parent

NAMES AN TITLES OF PERSONS WHO APPEARE ON ECEMBER 14,

2017

Attorney Parent

DOE Designee DOE

Director Parent

INTRO UCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case # 166275. The hearings were conducted at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its designee and the parent was represented by their counsel

BACKGROUN

The student hereinafter referred to as is an student with the disability classification of He is currently attending at . As per his March 15, 2017 IEP, was recommended for an program to begin in September 2017 with continuation of from March 2017 through the end of the 2016-2017 school year. Additionally, the IEP recommended the following:

THE OE’S POSITION

That the IEP team discussed needs; set annual goals, short term objectives, and discussed the appropriate program recommendation. Additionally, that the IEP team considered sufficient information to make an appropriate program recommendation and Parent was given a full opportunity to participate in the planning of the IEP. The IEP identified struggles with goals designed to address his difficulties and implemented special education services to meet his unique needs. Lastly, that the IEP was reasonably calculated to enable him to obtain meaningful educational benefit.

THE PARENT’S POSITION

It's the Parent’s position that that IEP is not providing the student with a free and appropriate public education (FAPE). . The student has been attending the wherein he receives ; it is the parent's opinion the that program at is required in order for to make meaningful educational progress. Parent is requesting of compensatory services through , registration fees and costs; payment of to for an evaluation; payment of an unspecified amount for a and by a ; payment for independent evaluations for - and , In the amounts of and respectively; compensatory related services in the form of services, ; , and - at an enhanced rate with costs; and that the matter be deferred to the Central Based Support Team (“CBST”’) for placement in an approved non-public school.

THE _OE’S CASE

The DOE maintains that an program is appropriate to meet needs and that the evidence and testimony provided at hearing indicates that the Student can succeed within the curriculum with supports recommended to him through his March 15, 2017 IEP. ; at attended the March 15, 2017 IEP meeting; he testified as to the appropriateness of the program recommendation and stated that has made progress in that program recommendation. (TR. 44-53). testified that was enrolled ina program with ; prior to the March 15, 2017 IEP meeting the CSE conducted an evaluation and as requested by the Parent, both of which were discussed at the meeting. (Tr. 32).

The witness stated that ; provider for the 2016-2017 school year discussed the results of the and and assessments at the March 2017 CSE meeting; the results were incorporated into the IEP (TR. 40).

informed the CSE team that was able to understand grade-level material and that he’s made a lot of progress in . (TR. 41-42).

As per ; is a student (TR. 44). informed the team that would be an appropriate program recommendation to support specific deficits. He explained the benefit of having two teachers in the classroom and that an with a fulltime special education teacher in the room that the teacher will be able to support issues (TR. 45-46). testified that in order to address the issues, in conjunction with the service recommendation, (TR. 50). Additionally, that, unlike the restrictive non-public school request that the parent has made, an placement allows the student to have access to typically developing peers throughout the school day. stated that

. (TR. 51).

As per , the CSE team had sufficient information available to them at the March 2017 IEP meeting, including the evaluation , an and an updated report which was compiled shortly before the meeting. (DOE Ex. 3). testified that the documents were considered, discussed and that the team incorporated the recommendations made in the March 2017 IEP (TR. 45).

asserts that the CSE team complied with its obligation to provide the Student with a FAPE in the LRE; that an program with related services, , and services, , 1S appropriate to meet needs. Lastly, that has demonstrated academic and social progress and, that compensatory services should be denied.

THE PARENT’S CASE

The Parent also referred to as after being duly sworn stated that the CSE classified and that has not been evaluated by the DOE for years. Tr. 251. stated that The Parent stated that she brought her son to on October 22, 2015, December 10, 2015 and January 19, 2016, in order to evaluate his and for a evaluation. The Parent shared this evaluation with the DOE and testified that the DOE did not implement any of the recommendations. Tr. 252.

As per Parent’s counsel, on March 18, 2016, the CSE held a meeting to review the evaluation and to develop an IEP for The CSE noted that The CSE recommended

_ Ex. 23,

p. 12-13.

conceded that the Parent was not in agreement with the CSE’s recommendation and that he believed required a more restrictive placement. Tr. 130. stated that the services included on this IEP is time that is not actually spent with _ , but rather preparation time for the provider. Tr. 132 opined that the evidence established that on December 20, 2016, the Parent sent a letter to disagreeing with the DOE’s evaluations and requesting an independent evaluation by . Ex. 14. The Parent stated in her letter that the DOE failed to adequately evaluate her son and that she was not in agreement with the limited evaluations that had been conducted as they were insufficiently comprehensive. /d. , admitted that he received the Parent’s request for independent evaluations but that he did not authorize the evaluations or initiate a due process complaint to defend the DOE’s evaluations. Tr. 127-128. The Parent testified that she was requesting another evaluation as the DOE failed to consider the recommendations of the evaluation and believed that the CSE needed more information to develop an appropriate program. Tr. 252. As per , on January 12, 2017, the DOE conducted the first part of an extremely limited evaluation that did not include any actual formal testing. Ex.

5 and that there is no indication as to what, if any, formal testing was performed. Instead, the evaluator simply noted that the results of the evaluation did not indicate the need for to address , even though it was noted that . Ex. 4, p. 3. During the evaluation, The Parent testified that her son did not receive this until a week before the trial ended despite the fact that responded well to the technology, the school seemed more concerned about keeping the device in school than with success with it (TR 242). Parent’s counsel stated that a limited and inappropriate follow-up evaluation was completed after the trial. Ex. 4. This follow-up only included a review of , Interview with staff, and interview/observation of using the technology. Jd. Despite SUCCESS with the device, the evaluator found that was not indicated orrecommended for Ex. 4, p. 3-4. The Parent testified that during the 2016-2017 school year, , her son’s teacher constantly informed her of

Additionally, the Parent testified that made no progress during the 2016-2017 school year and that she never received any progress reports. Tr. 237. The only documentation that she received was a January 31, 2017 letter indicating that was

Ex. B. The evidence indicated that on February 1, 2017, the DOE conducted an Ex. 8. opined that the failed to identify the triggers of , failed to include any information from a Parent interview or present levels of performance from IEP. Jd. Additionally, the was only based on indirect data and failed to include any direct data whatsoever. /d. conceded that he did not take any specific data during the although he claimed to have observed . Tr. 62. referred to an observation of —_, however, he could not recall how long he observed him and did not memorialize any observation dates in the . Tr. 60-61. opined that the failed to include relevant and appropriate documentation attached with any data to show the Frequency, Duration, Intensity, and Latency or the . Ex. 8. Parent’s counsel stated that the was inadequate as it is based on the incomplete information from the . Although the states that it was developed on February 2, 2017, admitted that it was not developed until after the March 2017 CSE meeting. Tr. 74. Further, the fails to include appropriate strategies to alter and fails to include strategies to teach alternative and . Ex. 7. The also fails to include appropriate and adequate positive reinforcement strategies. /d. Even if this was appropriate, it was not to be implemented until September 2017, leaving without an for the remainder of the 2016-2017 school year. Tr. 94-95. testimony confirms the inappropriateness of the and ; he admitted that he is not familiar with the NYS Regulations and did not even know if he was qualified to perform an stating, “I believe I’m qualified.” Tr. 99-100. further admitted that it was not the DOE that decided to do the , but rather, it was because of the Parent’s request Tr. 77 He admitted that he did not give the Parent a copy of the before the March 2017 meeting. Tr. 80. As the DOE failed to respond to her request for an independent evaluation and with her son in an inappropriate placement, the Parent brought to for a comprehensive evaluation on February 20", 23", and March 7", 2017,. Ex. A. after being duly sworn stated that he has a Ph.D.

> he completed his doctoral internship , and a postdoctoral fellowship in . He is currently in private practice, where he primarily conducts evaluations for school-aged children. The witness stated that he administers approximately evaluations per year. Additionally, that some were done at the reqest of the DOE; he is an approved independent evaluator for the DOE. He explained that he is “listed as one of the approved evaluators, and so when parents receive a voucher, an assessment authorization voucher, they receive a list of approved providers, and I am one of the providers on the list” Tr.

195.

report confirmed that . Ex. A, p. 14.

also confirmed that

Id. There was significant variability among his academic performances as well. Jd.

Parent’s counsel asserted that found that assessed found that By counsel, compared his results with the results of the October 22, 2015 conducted by . Id.; he found that when compared with his previous academic performances, Additionally, Dr. Ferrera noted that Based on his comprehensive evaluation of and his diagnoses, made several recommendations Ex. A, p. 16. recommended . Tr. 206. testified that he is familiar with all DOE placements and that in his professional opinion, an is not appropriate for and that his needs cannot be met in this placement. Tr. 206, 218; that a placement would also be inappropriate for Tr. 208. stated that his rate for evaluation was and that he has not been paid. His rate has since gone up to , the prevailing rate in the community. Tr. 198-199. testified that he only accepts a limited number of authorized assessments per year and that these assessments are not truly independent. Tr. 196-197,

220. The reports are owned by the DOE, he is only allowed to share the reports with the Parent after the DOE approves the report; he has even been asked by the DOE to change his report and his recommendations. Tr. 196-197. The Parent testified that at the March 2017 IEP meeting, the CSE team informed her that

243. conceded that the Parent was not included in the development of the goals on this IEP. Tr. 54. When asked who contributed to the development of the goals, he responded that it was a collaboration between only school personnel: “the special education teacher, the general ed teacher, the - , the , and the . Tr. 54. He admitted that the DOE was not sure if the Parent understood what was recommended stating that the Parent “appeared” to understand what was being recommended. Tr. 55. acknowledged that the DOE was aware that suffers from ; but did not discuss this issue at the March 2017 meeting and that it did not have a in place. Tr.147-148. The evidence established that on May, 19, 2017, the Parent sent the DOE a letter requesting a comprehensive independent evaluation of Ex. 2. She requested independent and - evaluations by at their independent rate for such evaluations, each, and an independent evaluation to be conducted by at their customary rate of . ld. Additionally, on November 7, 2017, the Parent brought her son to for a comprehensive evaluation to determine his highest level of skill mastery, to identify any gaps in his academic skills, and to develop a program of instruction that would meet his needs. Ex C. Ex. F, p. 1, #3. determined that Ex. C. Ex. F, p. 2, #5. On the test,

, director at the submiited an affidavit in lieu of testimony and appeared telephonically for cross examination. She testified that E, p. 10. Ex. F, p. 4, #9.

Td. testified that these evaluations confirm that stated that given the fact that this is the kind of questioning that takes place in the classroom, she would expect . Id. She also testified that . Id. determined that instruction must begin no higher than level in order to ensure that he has successful experiences early on, and that they are able to close all the gaps that currently exist in his academic skills. Ex. F, p. 4, #9.

On the , Id.

On the , demonstrated

Id. Based on the totality of the testing, testified that She explained that his progress in this short period has been in accordance with the estimate of , and that he will need all of those hours to close his skill gaps. Jd. Accordingly, recognizing the award, should be awarded the balance of of . Id. The fee for the diagnostic evaluation at is . Ex. F, p. 9, #22. The registration fee is , and is billed at a rate of . Id. testified that she is confident that if is given the opportunity to participate in the program developed for him at , he will be able to make meaningful academic progress, as well as to build up his confidence levels as he learns not only new materials, but also how to retain and build upon what he has learned when he is outside of the setting. Ex. F, p. 9, #22.

Upon cross examination, stated that as part of its training, doesn’t require that staff receive specific training in special education aside from being taught how to implement testing accommodations on an IEP. The witness was uncertain if received any breaks throughout the testing, however stated that it is practice, through our training, to direct people to give students breaks when there's an obvious need for it, and so “I'm confident that that was done. But I don't have any record of it” Tr. The witness conceded that the testing was not administered by a certified special education teacher. She was referred to the sand confirmed that received

Upon further cross examination, confirmed that in her affidavit, she noted that given the fact that this is the kind of questioning that takes place in the classroom, that she would expect that would The witness was directed to the IEP that is dated 3/18/16; she wasn’t aware that there is an IEP dated 3/15/17 and stated that she was not given a copy of that IEP. In the IEP that reviewed it was noted that was recommended

The witness stated that these testing accommodations were implemented Tr. 265. She didn’t know if used the during the testing, however, stated that if he had brought it, he would have been allowed to use it. Additionally, in assessing , She didn’t request any samples from the school and that in developing the program map, she relied solely on the administered by

FIN_INGS OF FACT AN CONCLUSIONS OF LAW

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

v. N.Y.C. Dep’t. of Educ., 685 F.3d 217m 223 (2d Cir. 2012) (quoting 20 U.S.C. §1400(d)(1)(A)-(B)). The IDEA mandates that students with disabilities musbe provided with a FAPE tailored to meet their unique needs and one that is reasonably calculated to “enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist, U.S. __, 137 S.Ct. 988,999 (2017); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982); SRO 17-007, p. 10. A focus on the particular child is at the core of the IDEA. Endrew F., 137 S. Ct. at 999. To meet the IDEA’s requirements, a school district’s program must provide special education and related services that is “specifically designed’ to meet a child’s ‘unique needs’” and is reasonably calculated to enable the child to receive educational benefits.

999

Endrew F., 137 S.Ct. at 999 (emphasis in original); M1H., supra, 685 F.3d at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007)). A denial of FAPE can be one that is substantive or results from violations of the procedural protections of the IDEA and its implementing regulations. Procedural violations result in the denial of FAPE “if they ‘impeded the child’s right to a [FAPE},’ ‘significantly impeded the parents’ opportunity to participate in the decision-making process,’ or ‘caused a_ deprivation of educational benefits.’” 20 USC. §1415((3)(C)Gi); 4.C. ex rel. MC. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); se also Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005) (“Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations considered individually do not.”) In sum, Rowley stands for a two-part entitlement: eligible families are entitled to an IEP that both (a) affords a placement that, substantively, is “reasonably calculated” to afford meaningful educational benefit to the child, and (b) is developed in procedural accordance with the requirements of federal law. Furthermore, with regard to the sufficiency of the IEP, the Commissioner’s regulations require that: The IEP shall report the present levels of academic achievement and functional performance and indicate the individual needs of the student according to each of the four areas listed in section 200.1(ww)(3)(1) of this Part, including: a. how the student’s disability affects involvement and progress in the general education curriculum....

§ N.Y.C.R.R. § 200.4(d)(2)(1); se also 34 C.F.R. § 300.20(a). In turn, section

200.1(ww)(3)(1) provides, in relevant part that the areas to be considered shall include: (a) academic achievement, functional performance and _ learning characteristics which shall mean the levels of knowledge and development in subject and skill areas, including activities of daily living, level of intellectual functioning, adaptive behavior, expected rate of progress in acquiring skills and information, and learning style; (b) social development which shall mean the degree and quality of the student’s relationships with peers and adults, feelings about self, and social adjustment to school and community environments; (c) physical development which shall mean the degree or quality of the student’s motor and sensory development, health, vitality, and physical skills or limitations which pertain to the learning process; and (d) management needs which shall mean the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction. Management needs shall be determined in accordance with the factors identified in each of the three areas described in clauses (a)-(c) of this subparagraph.

The IEP has been described as the “centerpiece” of the IDEA system. Se Murphy v. Arlington Cent. Sch. Dist., 297 F.3d 195, 197 (2d Cir. 2002); Endrew, 137 S.Ct. 1t 994. This key document “sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.” D.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d. Cir. 2006) (internal quotations omitted). Under the IDEA, for a child’s IEP to be adequate, it must be likely to produce progress, not regression, and must afford the student with an opportunity greater than mere trivial advancement. The IDEA “requires an educational program reasonably calculated to enable a child to make progress in light of the child’s circumstances.” Endrew F., 137 S. Ct. at 1001; MH, supra, 685 F.3d at 224 (quoting T.P. ex rel. S.P. v. Mamaroneck Union Fre Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009) (internal quotations and citations omitted). For a student who is fully integrated in a regular general education classroom, a child’s unique needs are typically met when the school provides “a level of instruction reasonably calculated to permit advancement through the general curriculum.” Endrew F., 137 S.Ct. at 1000. When a child is not fully integrated into a regular classroom and not able to achieve on grade level, an “IEP need not aim for grade-level advancement. But [the student’s] educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in a regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Jd.

An appropriate educational program begins with an JEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” SRO 080052; SRO 08-060 (citations omitted). The goals must be “sufficiently specific and measurable” (SRO 07-108, p. 12) and the IEP must contain goals to address identified needs. /d.; SRO 08-060; se also SRO 05-049. The goals must be “sufficiently described so as to allow the student’s teacher or therapists to understand the CSE’s expectations with respect to each goal.” SRO 07-108, p. 12; stated that with this inadequate IEP, not only mad _ inadequate progress, but actually declined in many areas. compared the results of his evaluation from February and March of 2017 to the evaluation conducted by in October of 2015 and Ex. A, p. 15.

Despite this lack ofprogress, for the 2017-2018 school year, the DOE only recommended services not to begin until September of 2017, leaving the minimal direct for , and Ex. 17, p. 13. stressed that an is too crowded for and that his needs cannot be met in an . Tr. 206, 218. recommended a change in class placement since had not ben succe ding in the academic environments that have be n provided by the DOE and due to evidence of declining academic abilities when compared with his previous valuation. Ex. A, p. 16. specifically recommended . EX. A, p. 16. Tr. 206. However, the DOE has ignored this recommendation and continues to languish in his inappropriate program. Additionally, that the DOE’s continual failur to provide an appropriate educational placement for and failur to consider more specialized programs violate FAPE.

The federal regulations require that a child be “assessed in all areas related to the suspected disability.” 34 C.F.R. § 300.304(b)(4). An evaluation must be “tailored to assess specific areas of educational need[.]” 34 C.F.R. § 300.304(b)(2). And evaluations must be “sufficiently comprehensive to identify all of the child’s special education and related service needs, whether or not commonly linked to the disability category in which the child has been classified[.]” 34 C.F.R. § 300.304(b)(6). Federal cases indicate that a failure to abide by regulatory requirements renders an evaluation inappropriate. See, e.g., Seattle Sch. Dist. No. 1 v. B.S., 82 F.3d 1493 (9" Cir. 1994); Warren G., supra.

I agree that despite consistent recognition throughout the DOE’s records

These evaluations were extremely limited and did not give an accurate and complete picture of abilities and deficits and failed to make appropriate and specific recommendations to address myriad of deficits. Jd.

Furthermore, despite deficits throughout the past years, the DOE failed to order appropriate evaluations, including, but not limited to, a ; , and - evaluations. This lack of proper evaluation in all areas of suspected and known disabilities contributed to the denial of FAPE for this child.

I agree that IEPs have not established annual goals that reflect his present levels of abilities and needs. As per parent’s counsel the annual goals are not tied to benchmarks and fail to establish meaningful criteria for measurement and reporting. The IEPs fail to comply with this mandate where the absence of appropriate, meaningful, and measurable goals and objectives in the IEP demonstrates their inability to monitor progress. Additionally, the DOE failed to put forward any evidence to show how these goals were addressed, what, if any, progress was made, and how the providers were working towards meeting his goals. The DOE failed to adequately address deficits in the goals in any of his IEPs. Although the goals listed on IEPs purport to address some of his other deficits areas, they reflect no particular level of present ability, establish no measurable goal with respect to the advancement of his academic abilities, and provide meaningless criteria for determining whether the goals have been met. Ex. 17, p. 7-13. The DOE’s failure to provide with meaningful and measurable goals deprived him of a free appropriate public education.

It is well documented that . I agree with the Parent that educational records show that Ex. 23, p. 3. Ex. A, p. 14, 15. Ex. 17, p. 5. Tr. 44. The DOE has failed to provide appropriate supports or services to adequately address these issues.

recommend that receive services

. Ex. A, p. 17. The DOE failed to provide any evidence regarding during the progress or lack of progress that has experienced. Additionally, the DOE has failed to recommend appropriate or other service to address deficits or to promote peer socialization, which has impacted his ability to access his education and denied him a FAPE.

The DOE has consistently failed to conduct an appropriate and comprehensive to identify antecedents of . The shall be developed consistent with the requirements in section 200.22(a) of this Part and shall include, but is not limited to, the identification of the problem , the definition of the in concrete terms, the identification of the contextual factors that contribute to the (including and affective factors) and the formulation of a hypothesis regarding the general conditions under which a usually occurs and probable consequences that serve to maintain it.” 8 N.Y.C.R.R. § 200.1(7). A is “a plan that is based on the results of a and, at a minimum, includes a description of the problem , global and specific hypotheses as to why the problem occurs and intervention strategies that include positive supports and services to address the^[8] 8 N.Y.C.R.R. §200.1(mmm).

Under the Commissioner’s Regulations, the CSE or CPSE shall consider the development of a for a student with a disability when the student exhibits that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions; the student’s places the student or others at risk of harm or injury; the CSE or CPSE is considering more restrictive programs or placements as a result of the student’s 8 N.Y.C.R.R. §200.22(b).

As per Parent’s counsel the record clearly reflects have required an and a resulting

. Tr. 44, 62, 235, 236. Ex. A, p. 15. Despite these serious and persistent , the DOE failed to recommend an until the Parent requested same; thereafter the DOE conducted an albeit wholly insufficient and incomplete. Tr. 77. Following his evaluation, recommended that receive an appropriate to identify the and to provide positive reinforcement interventions for such

Ex. A, p. 17. Despite the negative impact they have on his ability to access his education, the DOE failed to complete an appropriate and sufficient ; the failure to conduct a timely and appropriate and to develop an appropriate caused to be denied a FAPE.

By failing to provide sufficient instruction and to employ a methodology that addressed unique needs, the DOE denied a FAPE. The DOE failed to provide instruction by a specialist despite a lack of progress and persistent struggles . Ex. A, p. 14

16. Ex. F, p. 3, #7. Ex. F, p. 4, #9. Ex. 23, p. 2. Ex. B. Ex. 17, p. 2. Ex. F, p. 2, #5. Ex. 4, p. 3. Ex. F, p. 5, #11. The Part 200 Regulations define “specially—designed instruction” as “adapting, as appropriate to the needs of [a special education student] the content, methodology, or delivery of instruction to address the uniqu ne ds that result from the student’s disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students.” 8 N.Y.C.R.R. § 200.1(vv) (emphasis added). The Regulations go further and define “specially designed reading instruction [is] specially designed individualized or group instruction or special services or programs ... in the area of reading ... provided to a student with a disability who has significant reading difficulties that cannot be met through general reading programs.” 8 N.Y.C.R.R. § 200.6(b)(6).

It is documented that

. Ex. 17, p. 2. Ex. 23, p. 2. Despite these concerning issues, the DOE has failed to address issues and to provide him with a specialist. The DOE’s failure to adequately address issues and their failure to provide with a specialist has denied a FAPE.

IDEA § 300.320(a)(2)(1) requires that goals be designed to meet the child’s needs that result from the child’s disability to enable the child to be involved in and progress in the general curriculum and meet each of the child’s other educational needs that result from the child’s disability. The DOE failed to offer into evidence any report cards for the 2016-2017 or 2017-2018 school years for academics or related services; they offered one progress report into evidence from January 2016 and failed to submit any proof that it was ever provided to the Parent. Ex. 25, p. 1. The DOE ’’s failure to provide meaningful progress reports to the Parent has impeded her ability to meaningfully participate in the educational decision-making process and therefore contributed to the DOE’s failure to offer aFAPE.

The DOE has failed to recommend appropriate services, Ex. 23, p. 3. Ex. A, p. 14, 15. Ex. 17, p. 5. Tr. 44. The DOE has failed to offer appropriate services to address individual needs; failed to adequately consider the extent to which deficits are a result of deficits, and failed to consider the extent to which appropriate services could assist in attending and engaging in the instructional process. Furthermore, specifically recommended that be provided with services , a recommendation that the DOE has completely ignored. Ex. A, p. 17; this failure contributed to the denial of a free appropriate public education. The DOE has also failed to provide with appropriate services, appropriate services, appropriate - services. has clear attentional deficits that are severely impacting ability to access his education, yet the Department has failed to conduct a comprehensive and appropriate evaluation and has failed to provide with appropriate services. Ex. 44. Ex. 17, p. 2. Ex. A, p. 5. Even after specifically recommended that receive , the DOE failed to include any on IEP. Ex. A, p. 17. Ex. 17, p.13-14.

Ex. 17, p. 3. Despite these deficits, the DOE has failed to conduct a comprehensive and appropriate evaluation and has failed to provide with appropriate services. Even after specifically recommended that receive , the DOE failed to include any on IEP. Ex. A, p. 17. Lastly, continues to have expressive and receptive deficits that have continued to go unaddressed by the insufficient and inappropriate services provided by the DOE. Ex. 17, p. 3. Ex. A, p. 15. Even after recommended that - services be increased , the DOE failed to do so, leaving with inadequate and inappropriate services. Ex. A, p. 17. Ex. 17. P. 13-14. The neglect of these vital service has denied a FAPE.

Furthermore, the DOE’s records indicate that . Ex. A, p. 14-16. Ex. F, p. 3, #7. Ex. F, p. 4, #9. Ex. 23, p. 2. Ex. B. Ex. 17, p. 2. Ex. F, p. 2, #5. Ex. 4, p. 3. Ex. F, p. 5, #11. The DOE conducted a cursory and inappropriate evaluation. Ex. 4. However, this evaluation indicated that Ex. 4, p. 1. Despite success with the , the DOE failed to recommend its use. Ex. 4, p. 3-

4. Furthermore, admitted that the DOE had no intention of even conducting an evaluation and only did so after the Parent requested it. Tr. 77. The DOE’s failure to conduct an appropriate and comprehensive evaluation and its failure to recommend appropriate has contributed to being denied a FAPE.

The DOE also failed to offer appropriate despite the clear need for one and specific recommendation for one. The DOE has been aware that suffers from . Tr. 148. Ex. 17, p. 15. Ex. 23, p. 6; the DOE failed to establish what training the has. In fact, admitted that the DOE did not discuss at the March 2017 CSE meeting and that there is no in place. Tr. 148; this places safety and health at risk and is another indication of the failure to offer a FAPE.

I agree with the Parent and find that despite the comprehensive testing and concrete recommendations of that the DOE failed to implement almost all of the recommendations. The DOE’s failure to follow recommendations has led to the development of an inappropriate IEP that fails to address unique needs. Additionally, the DOE failed to appropriately and timely respond to Parent’s request for an Independent Educational Evaluation. The Regulations of the Commissioner of Education §200.5(g)(1)(iv) states; “If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.” As the DOE repeatedly failed to offer an appropriate program, placement and failed to conduct sufficient evaluations, the Parent formally requested Independent Educational Evaluation (“TEE”) in the area of by way of a letter dated December 10, 2016. Ex. 14. The DOE failed to respond to the Parent’s request and did not initiate a due process hearing to defend its own evaluations as required by law. Ex. 14. The Parent sent at follow up letter requesting independent ; , and evaluations. The DOE failed to appropriately respond to this request as well.

In fashioning a compensatory award, "the inquiry must be fact-specific” and the 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.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); se also 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 V.D.is appropriately educated within the meaning of the IDEA"). That is, a compensatory 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.” Application of a Student with a Disability, Appeal No. 13-208; se also Newington, 546 F.3d at 123 (holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"); 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) 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"). The Parents did not need to establish that a “gross” violation of the IDEA occurred in order for the IHO to award compensatory education. Se , e.g. Newington, 546 F.3d 111 (2d Cir. 2008) (finding that the "gross violation" standard only applies to compensatory education awarded to students over the age of 21). Even when Courts have applied a “sross” standard, the term has not been clearly defined; at a minimum, “it appears that exclusion of the student from school for a substantial period of time would suffice” to meet the standard. Application of a Student with a Disability, Appeal No. 13-208 (citing Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d. Cir. 1990]; V.M. v. Colonie Sch. Dist., 2013 WL 3187069, at *19).

I agree with the Parent that the DOE’s repeated failure to provide an appropriate public education to suit his individual needs, has prohibited from making any meaningful progress resulting in the DOE’s denial of FAPE of their programs for the school years 2016-2017 and 2017-2018 and award of compensatory services.

testified that requires of additional compensatory to get him . Ex. F, p. 9 #21. The remedial authority of administrative hearing officers in fashioning equitable relief is broad. Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 237 (2009). An administrative hearing officer may order a district to place a student in a nonpublic school where either the school has been approved by the Commissioner of Education or where the officer has made a finding that the school constitutes an appropriate placement for the student. SRO 14-077 at 8. Here, the Parent is simply requesting placement in an appropriate, state-approved non-public school.

A state-approved nonpublic school is a permissible placement for a school district to make on a student’s IEP. 8 N.Y.C.R.R. § 200.6(j). A “Nickerson letter” is a letter from the district authorizing a parent to place a student in a New York State-approved nonpublic school at no cost to the parent. Jose P. v. Ambach, Case No. 79 Civ. 270, 553 IDELR 298 (E.D.N.Y. Jan. 5, 1982). The remedy of a Nickerson letter is intended to address the situation in which a student has not been evaluated or placed in a timely manner. See, e.g., SRO 11-046. “Nothing precludes the parties to an administrative due process proceeding from developing a hearing record with regard to the individual needs of a student and asserting arguments regarding appropriate relief, which may, in some cases, be similar to the relief granted to individual plaintiffs in Jose P.” SRO 11-105 at 16, fn. 10 (emphasis added).

In light of these authorities, I order deferral to the DOE’s unit called the CBST for an appropriate non-public school placement, so long as it is state-approved.

The equities, they clearly favor the Parents. A parent must act with a high level of “unreasonableness or misconduct” in order for such conduct to raise an equitable bar to relief. N.R. ex rel. T.R. v. Department of Educ. of City School Dist. of City, 2009 WL 874061 (S.D.N.Y.). In the absence of evidence demonstrating that the Parent failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support an equitable remedy sought by the Parents. Jd. _, the notion of equities requires a balancing of both parties’ conduct and interest. Wolfe v. Taconic Hills Central School District, 167 F.Supp.2d 530 (N.D.N.Y. 2001); SRO No. 04-045 (balancing thLO’se cooperation of the parents and the significant extent to which district failed to offer a FAPE, reimbursement was awarded).

The DOE bore the burden of proof regarding equities. Application of a Student with a Disability, Appeal No. 13-200; N.Y. Educ. Law § 4404(1)(c). In this case, the DOE failed to provide convincing evidence demonstrating lack of cooperation on the part of the Parent I find and order the following items of relief in order to remedy the DOE’s failure to provide with a FAPE during the 2016-2017 and 2017-2018 school years:

I find that the DOE failed to offer a FAPE for the school years 2016-2017 and 2017-2018.

I order the DOE to defer case to the CBST for placement and identification of a non-public school equipped to meet his needs for the 2017-2018 school year.

I order the DOE to pay for the independent evaluation conducted by in the sum of I order the DOE to pay for an and to be conducted by a at a rate ont exceed and contain direct and indirect data of frequency, latency and duration.

I order the DOE to pay for independent evaluations in the areas of by at a rate not to exceed , and by at a rate not to exceed , as well as any and all services recommended from these evaluations.

I order the DOE to reconvene the CSE within 15 days of receipt of all evaluations to develop an JEP that meets individual educational needs. Based on the completed evaluations, the CSE will review the evaluations within 15 days of receipt and include on the IEP provisions for the recommended services and provide measurable annual goals and short-term objectives based on the current assessment in all areas.

I order the Department to pay for by to remedy the failure to offer an appropriate program of related services from school years 2016-2017 and 2017-2018 school years. This includes the evaluation , registration fee and rate

I order the DOE pay for and to provide

I order that the DOE provide additional services to compensate for its failure to provide appropriate related services during these years, at an enhanced rate for contained in the years in dispute as well as

Dated: March 1, 2018

GARY PETERS,ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City epartment of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education epartment under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with isabilities Education Act.

irections and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview. html

DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EVIL ENCE

A. Evaluation Report 3/17/17 18

B. Letter 1/31/17

C. / Progress Report undated

D. Test Results 11/17/17

E. Program Map 11/7/17

F, Testing Packet 11/7/17

G. Affidavit

OE’S EVIL ENCE

— Due Process Complaint 5/23/17

2. Parent Request for Reevaluation/Draft 5/19/17

3. / report 3/14/17

SFfe

4. follow Up report 3/3/17

5. Trial Period Plan 1/12/1

6. End of Trial Attendance 3/2/17

7. 2/2/17

8.

9.

10.

Sample

Item List

21/17

1/12/17

1/12/17 a

11. Trial Period Plan 1/12/17

12. Sample 1/12/17

13. 1/12/17

14. Parent Request for Eval. 12/10/16

15. Consent for Additional Assessments 12/21/16

16. Notice of IEP Meeting 3/9/17

17. TEP 3/21/17

18. Evaluation Referral 4/3/17

19, Prior Written Notice 3/18/16

20. IEP 3/18/16

21. Evaluation 3/14/16 10

22. Waiver of Attending IEP Meeting 4/13/16

23. IEP-Revision 2/22/16 19

24. parent Checklist 1/22/16

25. Monthly Progress report Jan. 2016

26. 1/22/16

WN&=wOnW

27. Evaluation report 1/21/16

28. Evaluation Report-revised 2/29/16

29. teacher report 3/23/16

30. 6/10/16

31. Classroom observation 9/16/15

32. School function Evaluation 9/18/15 AK

---

Footnotes

[8] N.Y.C.R.R. §200.22(b). As per Parent’s counsel the record clearly reflects have required an and a resulting . . Tr. 44, 62, 235, 236. Ex. A, p. 15. Despite these serious and persistent , the DOE failed to recommend an _J until the Parent requested same; thereafter the DOE conducted an albeit wholly insufficient and incomplete. Tr. 77.