New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 166482

Student’s Name:

Date of Birth:

District: 11

Hearing Requested By: Parent

Date of Hearing: September 25, 2017

November 14, 2017

November 28, 2017

Actual Record Closed Date: January 12, 2018

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 25, 2017

Mother

Attorney — Parents

District Representative — District

(via telephone) — District

(via telephone) — District

- (via telephone) — District

District Representative — District

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

Mother

Attorney — Parents

via Director I I — Parents

telephone

District Representative — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 28, 2017

Mother

Attorney — Parents

(via telephone) — Parents

District Representative — District

On July 5, 2017, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA") 20 U.S.C. §1415(f)(1) in the matter of (hereinafter " ") after several recusals. Hearings were held on September 25, 2017, November 14, 2017 and November 28, 2017. An Interim Order on Pendency was issued on September 25, 2017. I ordered that the that the Department of Education ("DOE") pay for independent and evaluations and such evaluations mustl be completed by October 27, 2017.

The parties moved to extend the compliance date during the course of the hearing.

In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly, the request for extensions of the compliance date was (Tr. at 194-195;206 Exhs. 1-V). The current record close date is January 12, 2018 and the decision due date is January 26, 2018. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

This proceeding arose under Article 89 of the New York State Education Law and

Commissioner's Regulations as set forth in Part 200 of Title 8 of the New York Code, Rules and Regulations ("NYCRR"). Specifically, Section 200.5 of the Regulations provides the mechanism whereby a parent may challenge the validity of the recommendation made by a public school district's Committee on Special Education

("CSE"). The hearing was initiated by the Parent who challenged the 2015-2016 and 2016-2017 school years.

The hearing was requested by the Parent on June 15, 2017, to demand that the DOE fund the cost incurred by the Parent for services at the and pay for the costs for compensatory services at and compensatory services and (Exh. 1 at 5). The Parent seeks an Order that the DOE pay for the following: (1) ; (2)

standard registration fee; (3) of services at (4)

funding in the form of a and (5)

compensatory 7 and compensatory (Exh. VI at 2). The Parent challenged the 2015-2016 school year and the 2016-2017 school year as was inappropriately placed in an class for both years and did not receive appropriate related services (Exh. 1 at 3-4). The Parent withdrew her request for independent and evaluations as the evaluations were obtained as a result of the interim order (Tr. at 281).

BACKGR UND

is an who is currently attending the

in .

she had received

from (Exh. 6 at 1) to present day. She was classified with a on a CSE review on November 18, 2016 (Exh. 2 at 19,20).

She has a (Exhs. 2 at 5,6;6 at 2).

The Prior Written Notice ("PWN") dated November 21, 2016, indicated that was classified as and noted that was placed in

an

==

with related services of

On April 21, 2015, an LJ

, , and evaluation was conducted on

(Exh. R at 1).

enrolled in in a class

at for the 2016-2017 school year, and the evaluator noted that had n

(Exhs. E at 2;L at 2). The evaluator used the

_J to assess skills and the evaluator

determined that had

(Exhs. E at

8;L at 8).

On August 12, 2015, ., conducted a evaluation on August 6, 2015 and August 12, 2015, when was and and found that had a (Exh. 6 at 12). noted that (Id.). diagnosed a

7 n

~-L_J

(Exh. 6 at 13). recommended

-~--~_J __ L_~~LJ-~~L__~-~

(Exh. 6 at 14,15).

n ctober 21, 2016, the progress report was conducted and the [J provider, , noted that was diagnosed with a and and the evaluator recommended that discontinue intervention as her teachers reported

(Exh. 5 at 4).

The IEP was conducted on October 25, 2016 and a follow-up meeting was held on November 18, 2016 and the CSE classified as and

- - - - -

recommended that be placed in an for , , , with related services of ;

; (Exh. 2 at 13) and the IEP indicated

that had and CJ skills (Exh. 2 at 16).

On October 25, 2016, the LJ progress report was conducted and the provider, , concluded that no longer required services as she had met all her IEP goals and achieved average scores (Exh. 4 at

3,7). assessed her

(Exh. 4 at 6).

THE DOE'S CASE

The DOE presented the testimony of , ,

- ~ L, J provider, and - - ~ L, J provider.

a NYS licensed and employed by the

DOE since 2003, testified that she participated in the CSE meeting on 2016 IEP meeting with the classroom teacher and teacher who thought that an program would be appropriate for _ J (Tr. at 21). She recalled that the Parent expressed concerns with and was placed in an program for the 2015-2016 school year (Tr. at 23). She stated that the team reviewed the evaluation (Exh. 6), but considered the recommendation for a class (Tr. at 24). She explained that the October 25, 2016 IEP contained different dates and attendance pages (Exh. 2 at 19)

because there was follow-up meeting on November 18, 2016 with different participants

(Exh. 2 at 20). She stated that the follow-up meeting was to provide the parent with a copy of IEP (Exh. G) and the only change was (Tr. at 30-31).

On cross stated the 2 IEP 2016 meetings for the 2016-2017 school year were the result of an order from a hearing officer (Tr. at 36). She acknowledged that skills were on an early level and that (Tr. at 41-42;46).

She maintained that while the 2016 IEP recommended the same program, there were more supports _ J L _ ~ (Tr. at 45) and that the IEP team considered the recommendation of a by the (Tr. at 48). She recalled that at the time of the 2016 IEP meeting that skills were (Tr. at 49), and had met standards (Tr. at 52;54). She stated that at the time of the 2016 IEP meeting that (Tr.

at 55).

, a NYC licensed and certified 7 provider with a Master's degree in and employed by the DOE for 3 years, testified that she provided to school for L_J from 2015 through 2017 (Tr. at 64). She stated that

(Exh. 5 at 2) L_J

(Tr. at 67;78). She recalled that she assessed in the fall of 2016 (Exh. 5) and that she participated in the 2016 IEP meeting to decrease services to services and recollected that the parent had concerns with (Tr. at 70-72).

On cross stated that she could not recall if she conducted any prior _J evaluations before she conducted evaluation in 2015 (Exh. K) as she was licensed in 2015 (Tr. at 83). She stated that she stressed that in 2016, L_J took more time on the assessment (Tr. at 86). She acknowledged that she could not explain the result of the on the evaluation on August 2015

(Tr. at 89).

, a NYC licensed and certified _J provider with a Master's degree in and employed by the DOE for 4 years, testified that she provided for from 2014 through 2017 (Tr. at 95-96). She

recalled that was assessed by a in 2015 (Exh. L) and that she assessed L_J on October 2016 and that she participated in the 2016 IEP meeting and reviewed the results with the CSE team and noted that the Parent was concerned about reducing _J services to services; however, she assured the Parent that services were to ensure that the strategies were used in the classroom (Tr. at 102). She recalled that no IEP member raised concerns about or development (Tr. at 103).

On cross stated that was correctly classified with a and no IEP member requested a change in her classification in the 2016 IEP meetings (Tr. at 106). She stated that she concluded that L_ was within the mean on standardized testing of the , not academic testing (Tr. at 110). She stated that she did assess , but her report did not contain the score (Tr. at 112), and that she was aware that (Tr. at 114).

THE PARENT'S CASE

The Parent's case was presented by the testimony of the Parent and , Director for , , and

, n provider.

testified that she possessed a Master's degree in and was certified and was currently employed as a for post graduate students obtaining their license in (Tr. at 138).

She stated that so was also employed as an independent evaluator and conducted a evaluation on on April 21, 2015 (Exh. E) (Tr. at 139).

She recalled that she used the and a test, and that she reviewed the progress reports from 's teachers at and recalled that (Tr. at 141). She

stressed that based on her assessment that (Tr. at 143). She explained that the Assessment indicated that

_J (Tr. at 145), and that she recommended (Tr. at 147). She recalled that she conducted another assessment on October 23, 2017 (Exh. X) after interviewing the parent, reviewing the sample (Exh. M at 19) and the DOE evaluation (Exh. 4) and found similar scores on the to her prior assessment

(Exh. E at 4) and (Tr. at

150). She stated that she was unable to explain how the DOE evaluator in 2016

indicated that

(Exh. 4 at 4), when in 2017,

(Exh. X at 4) as all the other documents (Exh. M) and her in 2015 (Exh. L at 3), the sample demonstrated (Tr. at 153;156) and that she recommended (Tr. at

158;163).

The Parent testified that the since September 2017 in , and for the 2016-2017 school year, in an with 20 to 26 students (Tr. at 253). She stated that in her daughter received and received and that she provided the with a evaluation (Exh.

X) conducted by , on October 23, 2017, who recommended . She recalled that another IEP meeting was conducted on November 16, 2017 and her daughter's LJ mandate was increased (Tr. at 255). She recalled that she filed a due process request for the 2014-2015 school year and attending 7 and that the order from the prior due process request provided and and evaluations (Tr. at 260). She

opined that (Tr. at 263) and that she told the staff at that required more support than the program as (Tr. at 264-265). She stressed that and that she expressed her concerns at the 2016 IEP meeting (Tr. at 267). She stated that no one at the 2016 IEP meeting discussed a and that she told the team that the were almost over and that her required more services and no one responded to her (Tr. at

268).

, a NYS licensed and certified 7 provider, testified that she provided to clients and she conducted an 7 on on November 2, 2017 (Exh. BB) as the Parent was concerned that (Tr. at 205). She

stated that ~ -

777 7

(Tr. at 213). She explained that (Tr. at 215). She

stressed that (Tr. at 220). She stated that (Tr. at

223) (Tr. at 225). She opined that (Tr. at

228;237). She stated that the DOE _J evaluation (Exh. 5 at 2) indicated that (Tr. at 237).

, Director for the past 16 years, explained that L_J provided supplemental instruction in basic academic skills, , , , and study skills (Tr. at 166). She recalled that (Tr. at 169). She recollected that (Tr. at 172). She stated that the program map (Exh.

M) based on the assessment on December 2016, confirmed that (Tr. at 173). She stated that the

- ~ L _ - ~ _ J was administered for _J and that

(Exh. M at 13) and that (Tr. at 174). She noted that

_L_L_J_~~_JL_J_~-----~--_J~~

(Tr. at 71; 101). She stressed that

Tr.

at 184; Exh. M at 4). llLJ __ opined that of instruction could be completed over a single year (Tr. at 189) and that would bring up to (Tr. at 190).

FINDING OF FACT, CONCLUSION OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Ga liardo v. Arlin ton Cent.

Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances…." and "a student offered an educational program providing 'merely more than de minimis progress' from year to year can hardly be said to have been offered an education at all" (Endrew F. v.

Dou las County School District, 580 U.S. ___ (2017), 2017 WL 1066260 [March 22, 2017]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The Second Circuit further observed that the IDEA is not intended to "secure the best education money can buy" or "guarantee any particular level of education" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted).

In Application of the New York City Dept. of Educ., Appeal No.12-087, the SRO held that an "appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i];Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "'results of the initial evaluation or most recent evaluation'" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9)."

The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

The Parent's attorney claimed that the 2015-2016 and 2016-2017 IEPs were defective as the _J program with LJ and was not appropriate as L_J had not progressed academically, (Exh. 1 at 2 - 4).

The Parent's attorney alleged the November 25, 2015 IEP (Exh. G) and the December 11, 2015 PWN of an L_ was not appropriate because the DOE failed to consider recommendation that attend a smaller classroom setting and ignored the Parent's concern during the meeting (Exh. 1 at 2). The Parent's attorney asserted that the November 25, 2015 IEP recommended the same L_ program that a prior hearing officer (Exh. B at 5) found deficient as the DOE conceded there was no Case No. 166482

FAPE for the 2014-2015 school year in an (Exh. 1 at 3). The Parent's attorney alleged that despite of

.

The Parent's attorney alleged that the November 18, 2016 IEP's recommendation of an 7 placement with reduced and 7 was not reasonably calculated to enable to progress (Id.). The Parent's attorney argued that there was no explanation to classify with a on the November 18, 2016 IEP and then reduce the to services and that the IEP contained no diagnosis of n nor any specially designed instruction to address her and the goals were insufficient to meet her needs (Exh. 1 n at 4). I agree. The Parent's attorney challenged the 2016 DOE to terminate asserted that was not provided i --, evaluation was used as mandated on the IEP (Id.). I agree and find that this assertion was not disputed. The Parent's attorney argued that in additional to the substantive defects the November 2016 IEP had procedural defects as the CSE did not consider recommendations in the evaluation (Exh. F)

and failed to provide a duly qualified district representative and failed to consider the Parent's concerns and failed to allow the Parent to participate (Id.). Iagree.

(2015-2016)

I find the DOE's representative's claims (Tr. at 21-31;Exh. VII at 3-8) that the November 25, 2015 program and the November 15, 2016 program were appropriate was not supported by the witnessed or the evidence. The Parent's attorney asserted that could not provide any explanation regarding why the CSE chose to reject the recommendations of the Evaluation and continue in the same setting that the DOE had recently conceded ... (See Tr. 36-37, 42-45; and see Exs. V and

AA, confirming the school’s receipt of evaluations and FOFD)"(Exh. VI at 6). The parent's attorney argued that " also could not recall anything relating to the CSE’s decision to reject the 2015 Evaluation’s recommendation 7

(See Tr. 37) (Exh. VI at 7). I find that without a DOE witness to explain how were addressed within the November 25, 2015, IEP and other DOE documents as well as to explain the CSE’s rationale in recommending the disputed program, the DOE is unable to meet their burden. In

Application of the New York City Dept. of Educ., Appeal No.01-044, the SRO has found that allegations that are left unchallenged are deemed as true. The Parent's attorney asserted that "when the CSE convened in November and December 2015, (see Ex. G-17,

G-18), to develop a new program for , no changes were made other than the reduction of her

(Compare Ex. D-7 to Ex. G-11; Tr. 261)"(Exh. VI at 3). I find that the November 25, 2015 IEP (Exh. G) and the December 11, 2015 PWN recommendation of an with reduced related services were not appropriate because the DOE failed to consider recommendation that L_ attend a smaller classroom setting and ignored the Parent's concern for a smaller class and more related service. The Parent's attorney asserted that (Tr. 263)"(Exh. VI at 6). I agree. I credit testimony who acknowledged that (Tr. at 41-42;46). I find there was no evidence of progress in an inappropriate program. I find that _J was

.

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 adeprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]). I credit the parent's testimony that that she told the staff at that her daughter required more support than the program (Tr. at 264-265). I find required more services during the 2015-2016 school year than the DOE was willing to provide. I find the inappropriate program and reduces related services impeded the Parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, and caused a deprivation of educational benefits. Accordingly I find that FAPE was not offered for the 2015-2016 school year.

(2016-2017).

The Parent asserted substantive and procedural defects and claimed that the procedural deficiencies seriously infringed on her participation in the November 15, 2016 IEP and resulted in a denial of FAPE and also challenged the program and the reduction of the and 7 to services I find the DOE's claim that its program was appropriate was not supported by the evidence.

It is the DOE’s burden to establish that the recommended program was supported by sufficient evaluative material (8 NYCRR 200.4[b][4][5][6]). The Parents' attorney asserted the program did not provide with sufficient support. The Parent's attorney asserted many substantive flaws in the November 25, 2016 IEP meeting:

~ - ~ - ~ L - ~ __ _ J _ L _ L ~ ~

(Exh. 1 at 4). I find there assertions

were not contested. The Parent's attorney asserted that the inappropriate DOE evaluation was conducted in 2016 and the results were used to improperly and alleged that the Parent was never provided with the 2016 DOE _J evaluation and disagreed with the DOE evaluation conducted in 2016 (Id.). I find that this assertion was not contested.

The Parent's attorney asserted many procedural deficits as the CSE failed to consider the deficits as diagnosed by and his recommendation of a . I credit the Parent's testimony that and that she expressed her concerns at the 2016 IEP meeting that her daughter required a and requested increased not decreased (Tr. at 267). I credit her testimony that no one at the 2016 IEP meeting discussed a and that she told the team that the were almost over and that her daughter required more services and no one responded to her (Tr. at 268). I find the inappropriate program was predetermined and this impeded the Parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, and caused a deprivation of educational benefits. I credit the Parent's testimony that another IEP meeting was conducted on November 16, 2017 and her daughter's mandate was increased (Tr. at 255).

I find the DOE representative did not address the inconsistent evaluations from 2015 and 2017. I credit the testimony of the Parent's witness, the who recalled that she conducted another assessment on October 23, 2017 (Exh. X) after interviewing the parent, reviewing the (Exh. M at 19)

and the DOE evaluation (Exh. 4) and found similar scores on the to her prior assessment (Exh. E at 4) and a 7

-77

(Tr. at 150). I credit her testimony and find that she was unable to explain how the DOE evaluator in 2016 indicated that

(Exh. 4 at 4), when in 2017,

_ J _ ~ _ _ J _ _ _J_~L_JLJLU_L_LLJ_U

(Tr. at 153;156).

I credit the testimony of the DOE's provider who stated that

(Tr.

at 110) and (Tr. at 114).

I do not credit her testimony that that no IEP member raised concerns about (Tr. at 103). I credit the Parent's testimony that she raised concerns about daughter's requirement and requested increased not decreased [ (Tr. at 267). Moreover, I find the decision to decrease [ to services was not supported by the testimony or evidence.

I credit the testimony of Parent's evaluator who opined that required (Tr. at 228;237), and

(Tr at 237).

I credit the testimony of the D E's provider who stated that

I I LJ

-1

I n

(Exh. 5 at 4). I find the decision to decrease

~-

to

I services was not supported by the testimony or evidence.

The Parent's attorney asserted that the November 18, 2016 IEP was substantively inadequate because the goals were not appropriate, and there were "no goals in the IEPs to address J7

7 7

(Exh. VI at 13). I agree and find

17that the goals did not address in

The Parent's attorney asserted that the November 18, 2016 IEP was substantively inadequate because

(Exh. 1 at 3). I

agree. The Parent's attorney argued that (Id.). I agree. I credit testimony that at the 2016 IEP meeting that skills were (Tr. at 49), and (Tr. at 52;54). She stated that at the time of the 2016 IEP meeting that (Tr.

at 55). I find the IEP was not reasonable calculated to enable L_ to progress academically.

Accordingly I find that FAPE was not offered for the 2016-2017 school year I find that compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. Wen er v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).

I find that equitable powers extend to prospective payments for educational instruction where parents cannot afford the financial outlay required by reimbursement cases. Mr.

and Mrs. A. ex rel. D.A. v. NYC Dep’t of Educ., 769 F.Supp.2d 403 (S.D.N.Y. 2011). I find that was entitled to compensatory services. and that and the Parent was unable to pay for at . I find compensatory education is available as an appropriate remedy under the IDEA. P. ex rel. Mr. and Mrs. P. v. Newin ton Bd. of Ed., 546 F. 3d 111 (2nd Cir. 2008). Compensatory education, as with other forms of available remedies, serves the purpose of ensuring that the student is appropriately educated within the meaning of the IDEA. Newin ton, 546 F.3d at 123, quoting Parents of Student W. v.

Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir.1994). The aim of compensatory education services is to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See Reid v. District of Columbia, 401 F.3d 516, 518 (D.C.Cir. 2005) as cited in Newin ton, 546 F.3d at 123. I credit the testimony of regarding the amount of hours that L_J required to gain skills.

The DOE representative stated in his post hearing brief that was not appropriate as and the hours recommended were excessive in light of skills (Exh. VII at 6). The Parent must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. (Frank G., v. Bd of Educ. Of

Hyde Park, 459 F. 3d 356, 365 [2d Cir. 2006]). The courts have held that, in determining the appropriateness of a private placement, the Parent is not required to show that the placement is perfect (Warrant v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3rd Cir.

1999]). After reviewing the testimony and evidence in this case, I find that the Parent has met her burden of proof with respect to the services to be provided by . I

_J L_ credit testimony that will receive based on the results of the assessments (Exh. M) and that a program map was developed based on the assessment. I find that . I also find persuasive unrebutted opinion that _J needs LJ and that her needs could be addressed at . I find the record supports a finding that provided an appropriate program for ~ as I credit the testimony from that could receive from a . I also credit testimony that had successfully taught students with profiles similar to profile. I find that were reasonable in light of the number of years that FAPE was denied. I find that the DOE presented no witnesses or evidence to demonstrate was not appropriate. I find the equities favor the Parent. Prospective funding is an appropriate remedy under IDEA.

"Once the Burlington prerequisites relative to a non-approved private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately." (Connor v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y)). I find the Parent is entitled to prospective funding.

The Parent's attorney asserted that there was no dispute that the L_ did not receive for the 2016-2017 school year and received for the 2015-2016 school year and was entitled to of compensatory (Exh. VI at 17).

I agree. The parents' attorney asserted that there was no dispute that the did not receive L for the 2016-2017 school year and received for the 2015-2016 school year and was entitled to of compensatory (Id.). I agree. I find that the amount of compensatory and were reasonable in light of the number of years that and were reduced or eliminated.

The request that I order the DOE to develop an IEP with a specific setting such as is outside my jurisdiction as argued by the DOE representative. "(See Application of a Student with a Disability, Appeal No. 15-077, pgs. 19-20 (Oct. 9, 2015)), the State Review Officer determined that it would be improper to order placements that are not on a student’s IEP as it is improper to circumvent the CSE/IEP process"(Exh. VII at 10). I

agree.

ORDER

Therefore, it is hereby ordered that the DOE provide the following that:

(1) the DOE shall pay

;

(2) the --~~-LJ-~-LJ~~-~L~

and these services shall be completed by the end of the 2019-2020 school year;

(4) the DOE shall pay ~-7 n7,7n

;

(5) the DOE shall pay L_ _ _J_~L-~L~~-

; and

(6) the DOE shall provide

; and

(7) the DOE shall provide compensative related services for services missed during the 2015-2016 and 2016-2017 school years as follows: ULL_U

This case is remanded to CSE to consider the current evaluations.

Dated: January 22, 2018

LINDA AGOSTON, ESQ.

Impartial Hearing Officer

PLEASE TAKE N TICE

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 fficer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

Directions and forms can be found on the ffice of State Review website: http://www.sro.nysed.gov/RevisedRegulations verview.html

DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 25, 2017

1 Due Process Complaint, 6/15/17, 5 pp. District

2 IEP, 11/18/16, 20 pp. District

3 Minutes from CSE meeting, 10/15/16, 4 pp. District

4 Student Progress Report, 10/25/16 7 pp. District

5 Report, 10/21/16, 4 pp. District

6 Evaluation, 8/12/15, 19 pp. District

A Omitted Parent

B Findings of Fact, 7/8/15, 12 pp. Parent

C IEP, 6/25/14, 14 pp. Parent

D IEP, 12/16/14, 12 pp. Parent

E Evaluation, 4/21/15, 9 pp. Parent

F Omitted Parent

G IEP, 11/25/15, 19 pp. Parent

H Prior Written Notice, 12/11/15, 5 pp. Parent

I Records, 11/18/16, 1 p. Parent

J Letter 7/11/16, 1 p. Parent

K Evaluation, 12/14/15, 7 pp. Parent

L Evaluation, 4/21/15, 9 pp. Parent

M Assessment, 12/21/16, 59 pp. Parent

N Assessment, 11/28/14, 59 pp. Parent

O Checklist, undated, 12 pp. Parent

P Parent's IEP, 11/15/16, 20 pp. Parent

Q Omitted Parent

R Prior Written Notice, 6/24/16, 4 pp. Parent

S Final 2016-2017 Report Card, 6/24/17, 2 pp. Parent

T Letter Requesting Evaluation, 10/13/16, 1 p. Parent

U Meeting Minutes, 11/18/16, 2 pp. Parent

V Email from , 11/19/15, 3 pp. Parent

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 14 2017

V Email from , 11/19/15, 3 pp. Parent

W Emails to/from DOE , 9/17/15, Parent

X Evaluation, 10/23/17, 1 p. Parent

Y Progress Report, 9/29/17, 2 pp. Parent

Z Report Card, 11/3/17, 3 pp. Parent

AA Emails to and from DOE, 11/5/15, 2 pp. Parent

I Decision on Extension, 7/20/17, 1p. IHO

II Decision on Extension, 9/25/17, 1 p. IHO

III Decision on Extension, 10/13/17, 1 p. IHO

IV Decision on Extension, 11/14/17, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON NOVMEBER 28 2017

BB Evaluation, 11/2/17, 9 pp. Parent

V Decision on Extension, 11/28/17, 1p. IHO

POST HEARING SUBMISSIONS

VI Parent's Closing Statement, 1/12/18, 20 pp. IHO

VII District's Closing Statement, 1/12/18, 11 pp. IHO