New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT & DECISION

Case Number: 166747

Student Name:

Date of Birth:

District:

Hearing Requested By: Parents

Date of Hearing: March 28, 2019

Actual Record Close Date: February 20, 2020

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 28, 2019

For the Student:

ESQ., Attorney

parent

Intervenor (via telephone)

Physical Therapist (via telephone)

Vision Therapist (via telephone)

Occupational Therapist (via telephone)

speech/Language Therapist (via telephone)

Interpreter (via telephone)

For the Department of Education:

District Representative, CSE

I]. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the attorneys for the student and the parents in a due process complaint notice dated June 29, 2017. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education (“FAPE”’) for the 2017/18 and 2018/19 school years (Ex. P- A).^[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”’) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R.

§§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(1).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such as “Ex.” student.” See 8 NYCRR § 200.5(1)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R.

§§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”’) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C.

§§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.52 1(a)(1)-(4); 8 NYCRR §§ 200.5(G)(3)(v), (vii), (xil).

The THO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(G)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).

Il. PROCEDURAL HISTORY

The DOE appointed the undersigned to serve as the hearing officer in this matter on June 30, 2017. See 8 NYCRR § 200.5(4)(3)G). On November 29, 2017, the parents moved for an interim order on pendency (Ex. IHO-I at 2). The DOE did not oppose the parents’ motion (Ex.

THO-I at 2). In an Interim Order on Pendency dated March 2, 2018, I directed that the DOE maintain the student’s placement at , with related services both in-school and after-school, at public expense until such time as the due process proceedings in this matter are completed (Ex. IHO-I at 6-7). See 20 U.S.C. § 1415q); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). The parents filed an amended due process complaint on September 24, 2018. See 8 NYCRR § 200.5(1)(7). A hearing on the merits of the matter was thereafter held on March 28, 2018.” Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; anda list of the documents received into evidence. See 8 NYCRR § 200.5(4)(5)(v).

Hl. FACTUAL BACKGROUND

At the time of the September 24, 2018 amended due process complaint, the student was ( ) years old and displays a variety of physical, medical, hearing, and vision deficits. He demonstrates significant delays in communication, speech and language, gross motor skills, fine motor skills, and social/emotional development. During the 2017/18 and 2018/19 school years, the student attended (“ ”), which has been approved by the Commissioner of Education as a school with which public school district may contract to provide special education and related services to student with disabilities (Exs. IHO-I at 4, P-H at 2). See 8 NYCRR §8§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with is not in dispute in this hearing (Exs. P-A, P-H, SD-1,

C.F.R. § 300.8(c)(3); 8 NYCRR § 200.1(zz)(3).?

The parties’ familiarity with the student’s educational history prior to the 2017/18 school year is assumed and will not be restated in full here.

The student has numerous medical issues related to a diagnosis of (Ex. SD-3 at 1).

The student was evaluated in January 2013, as part of the process. On the Wechsler Preschool and Primary Scale of Intelligence — Fourth Edition (“WPPSI-IV”), an intelligence test for preschool and primary students, the student’s performance fell within the Borderline range. On the Visual Spatial Scale, the student earned a standard score of 75, placing him in the Borderline range and at the fifth (5) percentile in comparison to others of the same age. The student also obtained a standard score of 109 for visual motor skills using the BerryBuktenica Developmental Test of Visual-Motor Integration (“VMI-6”). Educational testing was conducted using the Kaufman Educational Test of Achievement — Second Edition (“KTEA-IT’).

The student obtained grade equivalents of <K.0 for both Letter & Word Recognition and Math Concepts & Applications (Ex. SD-3 at 2).

The student was reevaluated at in October 2015, as part of a triennial reevaluation. Cognitive testing was completed using the Comprehensive Test of Nonverbal Intelligence — Second Edition (“CTONI-2”). The student obtained an overall Nonverbal

Quotient of 80 which placed him in the Below Average range. Visual-motor skills testing using the VMI-6 resulted in a standard score of 89, which fell in the upper end of the Low Average range. On the KTEA-3, the student earned grade equivalent scores of K.4 and K.3, for Reading Comprehension and Math Computation, respectively. The Adaptive Behavior Assessment

System-Second Edition (“ABAS-II’) was completed with one of the student’s teachers as the informant. Results indicated a Global Adaptive Composite of 53, which placed him in the Extremely Low range (Ex. SD-3 at 2).

On October 6, 2017, the CSE convened to develop an IEP for the student for the 2017/18 school year. The CSE recommended that the student receive the majority of his instruction in an 8:1+1 special class in a New York State-supported on a twelve (12) month basis, supported by an ASL/English intervenor.t The CSE also recommended that the student receive related services of: specialized transportation; individual occupational therapy, two (2) times per week for thirty (30) minutes per session; individual parent counseling and training, monthly; individual physical therapy, two (2) times per week for thirty (30) minutes per session; full-time individual school nurse services, daily; individual speech and language therapy, three (3) times per week for thirty (30) minutes per session; and individual vision education services, one time per week for sixty (60) minutes per session (Ex. SD-1 at 13-15, 22-23).

In April 2018, the student was again reevaluated at to determine his thencurrent levels of cognitive, academic and socio-emotional functioning for program planning. The student obtained a Full Scale Composite of 75 on the CTONI-2, which placed his nonverbal cognitive functioning in the Poor-to-Average range. The student obtained a Pictorial scaled score of 73, which placed him in the Poor range, and a Geometric scaled score of 83, which placed him in the Below Average range. The student obtained a standard score of 96 for visualmotor skills on the VMI-6, indicating some skill development (Ex. SD-3 at 7).

The student’s academic skills were assessed using selected subtests from the KTEA-3.

The student obtained grade equivalent scores of 1.3 and K.8, for Reading Comprehension and Letter & Word Recognition, respectively. He also obtained a grade equivalent score of 2. for Math Computation. When compare to the results of the October 2015 reevaluation, these scores reflected some gains in academic skills. Further support was required, however, with decoding unfamiliar vocabulary and reading more complex sentences (Ex. SD-3 at 7-8).

The student’s adaptive behavior skills were assessed through a checklist filled out for the ABAS-3 by the student’s mother. The student obtained a General Adaptive Composite scaled score of 55, which placed him in the Extremely Low range. While the student’s adaptive skills were below age expectations, they reflected some gains with family and school support (Ex. SD-times per week for thirty (30) minutes per session (Ex. SD-5 at 14-15, 22-23).

The parents object to the absence of after-school services from both the October 2017

TEP and the May 2018 IEP. The parents also object to the removal of in-school vision education services from the May 2018 TEP (Ex. P-H at 10). This hearing ensued.

IV. POSITIONS OF THE PARTIES

A. The DOE

The DOE did not submit a due process response, did not offer an opening or closing statement, and did not present any witness testimony at the hearing. At the hearing, the DOE rested following its submission of written evidence into the hearing record (R. 12).

B. The Parents

The DOE denied the student a FAPE during the 2017/18 and 2018/19 school years. The student requires a myriad of after-school services to meet his occupational, physical, speech and language, and vision therapy needs, yet year after year, the CSE terminates those services, based on local and/or State policies rather than the student’s individualized needs, and requires the family to pursue those service via due process. While all representatives from recommend an intervenor for the student to allow him to access the instructional curriculum, the DOE refuses year-after-year to create and staff such a position. The parent is then required to identify a suitable provider and initiate due process for that provider to be compensated. Lastly, prior to the 2017/18 school year, ’s vision therapist resigned, resulting in missed student’s IEP, rather than attempt to secure those necessary services for the student through other means. The parents seek compensatory additional services to remedy the denial of FAPE during both school years (R. 13-16; Exs. P-A, P-H).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Applicable Legal Standards

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

§ 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).^[5]

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.

See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); MH. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

"TA |dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP."". Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M_H., 685 F.3d at 245; 4.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 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 procedural violations are 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. See 20 U.S.C. § 1415(f)(3)(E)(i); 34 C.F.R.

§ 300.513(a)(2); 8 NYCRR § 200.5(j)(4)Gi1); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; 4.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), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); 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).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C.

§ 1415(f)(3)(E)G). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See 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." Walezak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a 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." See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some ‘meaningful’ benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192.

The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)Q), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also 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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp.

2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y.

2008).

An appropriate educational program begins with an JEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R.

§ 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), 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 C.F.R. §§ 300.320(a)(2)(1), (2)()(A); 8 NYCRR § 200.4(d)(2)(ii1), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M-P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

B. 2017/18 School Year — Timing of the October 2017 IEP The DOE failed to provide the student with a FAPE during the 2017/18 school year because its CSE failed to develop an IEP for the student until well after that school year had commenced. A school district is required to have an JEP in effect for each student with a disability at the beginning of the school year and provide a copy of the IEP to the parents. See 34 C.F.R. §§ 300.322(f), 300.323(a); 8 NYCRR § 200.4(e)(1)(ii), (e)(3)(iv); Cerra, 427 F.3d at 193-94 (holding that a school district "fulfill[s] its legal obligations by providing the IEP before the first day of school"); B.P. v. New York City Dep't of Educ., 841 F. Supp. 2d 605, 614 (E.D.N.Y. 2012). Failure to provide a finalized IEP before the beginning of the school year is a procedural violation that may result in a finding that the district failed to offer the student a FAPE. See C.U. v. New York City Dep't of Educ., 23 F. Supp. 3d 210, 225-27 (S.D.N.Y. 2014).

Only two IEPs were offered by the DOE into the hearing record: one from an October 6, 2017 meeting, the other from a May 25, 2018 meeting (Exs. SD-1, SD-5). Both IEPs recommended that the student receive twelve (12) month services, meaning that he was entitled to receive specialized instruction and related services during the months of July and August 2017 (Exs. SD-1 at 15, SD-5 at 15). See 8 NYCRR § 200.1(eee). The October 6, 2017 IEP was transmitted to the parents the following day, i.e., October 7, 2017, which is approximately a month after the commencement of the ten (10) month 2017/18 school year (Exs. SD-1, SD-2). I therefore find that the CSE failed to develop a timely IEP for the student for the 2017/18 school year and that the absence of a timely IEP denied the student a FAPE. See Application of the New York City Dep’t of Educ., Appeal No. 11-016 at 14 (SRO April 13, 2011) (‘A district must have an IEP in effect at the beginning of each school year for each student with a disability in its jurisdiction’).

C. 2017/18 & 2018/19 School Years — Missed/Terminated Services

Based on the evidence contained in the hearing record, I find that the student was denied a FAPE during both the 2017/18 and 2018/19 school years on substantive grounds.

The hearing record reflects that the student was denied recommended services. During the 2017/18 school year, the student was recommended to receive in-school vision education services (Ex. SD-1 at 14). It was stipulated at the hearing, however, that has lacked a vision education provider since June 2017 (R. 119). Likewise, while the CSE recommended intervenor services for the student for both the 2017/18 and 2018/19 school years (Exs. SD-1 at 13, SD-5 at 14), the student’s intervenor resigned in January 2019, and there was an interruption in that service until another provider could be secured (R. 15-16).

Other appropriate and necessary services were terminated by the CSE without evaluation or explanation. Both in-school vision education services, and multiple after-school services, were omitted from the May 2018 IEP despite the undersigned’s November 9, 2017 Findings of Fact and Decision, concerning the 2016/17 school year, which held that the student required those services in order to receive a FAPE (Exs. P-B at 15, SD-5 at 14-15). No evaluations were secured by the CSE prior to the May 2018 IEP which endorsed a termination of those services.

D. Compensatory Additional Services

Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded 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 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).

State Review Officers also 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. See Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer 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 a Child with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).

Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Reg’l Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem’’). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting

6G from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Jd. at 526.

As noted above, the CSE failed to develop appropriate IEPs for the student for the 2017/18 and 2018/19 school years and the absence of appropriate IEPs denied the student a FAPE. Therefore, I find that the student is entitled to compensatory additional services to remedy the denial of FAPE. Using the credible testimony offered by Ms. , Mr.

, Ms. , Ms. , Ms. , and the student’s parent, I shall apply a qualitative approach in fashioning a remedy of additional services for the student.

1. Intervener Services

As noted above, the CSE recommended intervenor services for the student for both the 2017/18 and 2018/19 school years (Exs. SD-1 at 13, SD-5 at 14). Additionally, the DOE was obligated to ensure the student’s receipt of intervenor services pursuant to the undersigned’s

March 2, 2018 Pendency Order (Ex. IHO-I at 6).

Ms. and the student’s parent credibly testified that the role of an intervener is unique from that of a sign language interpreter or a school aide. Prior to receiving intervener services, the student made minimal progress. The student’s awareness of the visual environment and of the other individuals around him has significantly increased since he began receiving intervener services. He began to make significant and meaningful progress over a variety of domains, and by all accounts he continues to require intervener services in order to make meaningful educational progress. Without these services, the student does not respond or participate in class (R. 44-65; Ex. P-J).

Based on Ms. and the parent’s credible testimony, I find that the student was entitled to receive the services of a full-time (35 hours per week) one-to-one intervener, certified and/or proficient in ASL, and five (5) hours per week of after-school assistance from the intervener to help with homework, during both the 2017/18 and 2018/19 school years. The DOE will be directed to authorize the student’s receipt of any missed hours of intervenor services incurred during the 2017/18 and 2018/19 school years.

2. In-School Vision Education Services

As noted above, the October 2017 CSE recommended that the student receive, inter alia, individual vision education services, one time per week for sixty (60) minutes per session (Ex.

SD-1 at 13-15, 22-23). The May 2018 CSE terminated vision education services for the student for the 2018/19 school year without evaluation or explanation (Ex. SD-5 at 14). The DOE was obligated, however, to ensure the student’s receipt of individual vision education services at school, five (5) times per week for thirty minutes per session, pursuant to the undersigned’s

March 2, 2018 Pendency Order (Ex. I[HO-I at 6). At the hearing, the parties stipulated that has been without a vision education services provider since June 2017 (R. 119).

Ms. stated that she provides the student with vision therapy outside of school, twice weekly for forty-five (45) minutes per session, and that he benefits from her service (R. 88-89; Exs. P-F, P-G). Ms. credibly testified that, based on her familiarity with the student’s vision needs, he requires vision education services in school in order to receive an appropriate education (R. 89-90). I therefore find that the student was entitled to receive individual vision education services in school, five (5) times per week for thirty (30) minutes per session, during both the 2017/18 and 2018/19 school years. The DOE will be directed to authorize the student’s receipt of any missed hours of in-school vision education services incurred during the 2017/18 and 2018/19 school years.

3. After-School Related Services

Based on the information available to the CSE at the time of the October 2017 and May 2018 meetings, the student continued to benefit from, and required, after-school related services.

There were no progress reports, evaluations, or recommendations from any service providers that would have warranted the termination of after-school related services. Moreover, the credible testimony of Mr. (physical therapist), Ms. (occupational therapist), Ms.

, (vision therapist), and Ms. (speech therapist) supports the parents’ contention that the student required after-school related services during the 2017/18 and 2018/19 school year in order to learn (R. 44-118).

Unless otherwise paid via pendency, the DOE will be directed to reimburse the parents and/or directly fund the following after-school related services, delivered to the student during the 2017/18 and 2018/19 school years: (a) individual speech/language therapy, two (2) times per week for forty-five (45) minutes per session; (b) individual vision therapy, two (2) times per week for forty-five (45) minutes per session; (c) individual physical therapy, three (3) times per week for thirty (30) minutes per session; and (d) individual occupational therapy, two (2) times per week for thirty (30) minutes per session.

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

1. The parents’ claim that the student was denied a free appropriate public education for the 2017/18 and 2018/19 school years is SUSTAINED;

2. For the 2017/18 and 2018/19 school years, the student was entitled to the following special education and related services at school: a) Placement at, and tuition for, the in an 8:1+1 special class program with the following related services in-school:

(1) individual speech/language therapy, four (4) times per week for thirty (30) minutes per session;

(11) group (3:1) speech/language therapy, one (1) time per week for thirty (30) minutes per session;

(111) individual occupational therapy, three (3) times per week for thirty (30) minutes per session; (iv) individual vision education services, five (5) times per week for thirty (30) minutes per session; and

(v) individual physical therapy, two (2) times per week for thirty (30) minutes per session; b) A full-time (35 hours per week), 1:1 intervener who is properly trained and is certified and/or proficient in ASL;

Cc) Five (5) hours per week of after-school assistance from the intervener to help with homework; d) A full-time nurse; e) Special transportation consisting of a car seat and limited time travel; and f) A twelve month program.

3. In addition, during the 2017/18 and 2018/19 school year, the student was entitled to receive the following after-school related services: a) individual speech/language therapy, two (2) times per week for forty-five (45) minutes per session; b) individual vision therapy, two (2) times per week for forty-five (45) minutes per session; c) individual physical therapy, three (3) times per week for thirty (30) minutes per session; and d) individual occupational therapy, two (2) times per week for thirty (30) minutes per session.

4. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of the following compensatory additional services: a) Any hours of intervenor services less than the mandate referenced in paragraphs 2(b) and 2(c) of this Order incurred by the student during the 2017/18 and 2018/19 school years; b) Any hours of in-school vision education services less than the mandate referenced in paragraph 2(a)(iv) of this Order incurred by the student during the 2017/18 and 2018/19 school years; and c) Unless otherwise paid via pendency, the DOE will be directed to reimburse the parents and/or directly fund the following after-school related services, delivered to the student during the 2017/18 and 2018/19 school years:

(1) individual speech/language therapy, two (2) times per week for fortyfive (45) minutes per session;

(11) individual vision therapy, two (2) times per week for forty-five (45) minutes per session;

(111) individual physical therapy, three (3) times per week for thirty (30) minutes per session; and

(iv) individual occupational therapy, two (2) times per week for thirty (30) minutes per session.

Dated: March 5, 2020

/s/ Jeffrey J. Schiro

Jeffrey J. Schiro, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 40 days of the date of this decision, the parent and/or the public school district has a right to appeal the decision to the State Review Officer ("SRO") of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the either party plans to appeal the decision, a notice of intention to seek review Shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DOCUMENTATION ENTERED INTO THE HEARING RECORD

PARENTS

Due Process Complaint Notice/Impartial Hearing Request, 6/29/17, 13 pgs.

m“MmoaADO>

Findings of Fact & Decision (Case No. ) THO Jeffrey J. Schiro, 11/9/17, 20 pgs.

Physical Therapy Summary of Progress, 3/10/19, 5 pgs.

Speech Progress Report, 3/1/19, 2 pgs.

Occupational Therapy Progress Report, 6/28/18, 2 pgs.

Vision Progress Report, 2017/18, 1 pg.

Vision Progress Report, 2018, 1 pg.

Amended Due Process Complaint/Impartial Hearing Request, 9/24/18, 15 pgs.

NYC DOE Speech/Language Goals, undated, 8 pgs.

Intervenor Report ( ), 3/19/19, 3 pgs.

DEPARTMENT OF EDUCATION

Individualized Education Program (IEP) w/ Attendance Page, 10/6/17, 26 pgs.

AWDNBS

Prior Written Notice (Notice of Recommendation), 10/7/17, 3 pgs.

Psycho-Educational Evaluation, 1/3/18, 8 pgs.

Triennial Audiological Evaluation, 1/31/18, 2 pgs.

Individualized Education Program (IEP) w/ Attendance Page, 5/25/18, 25 pgs.

Prior Written Notice (Notice of Recommendation), 6/3/18, 3 pgs.

IMPARTIAL HEARING OFFICER

I. Interim Order on Pendency (Case No. 166747) IHO Jeffrey J. Schiro, 3/2/18, 8 pgs.

II. Consolidation Order (Case Nos. 166747 & ), IHO Jeffrey Schiro, 8/21/17, 3 pgs.

at 8). On May 25, 2018, the CSE reconvened to develop an IEP for the student for the 2018/19 school year. The CSE recommended that the student receive the majority of his instruction in an 8:1+1 special class in a New York State-supported on a twelve (12) month basis, supported by an ASL/English intervenor. The CSE also recommended that the student receive related services of: specialized transportation; individual occupational therapy, two (2) times per week for thirty (30) minutes per session; group parent counseling and training, monthly; services. For the 2018/19 school year, the CSE deleted vision education services from the individual physical therapy, two (2) times per week for thirty (30) minutes per session; full-time individual school nurse services, daily; and individual speech and language therapy, three (3)

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Footnotes

[1] ‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted

[2] “Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 124-125). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). SD-5). See 34

[5] The term “free appropriate public education” means special education and related services that — (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) ofthis title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.