Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 167091

Student’s Name:

Date of Birth:

District: I I

Hearing Requested By: Parent

Date of Hearing: July 18, 2017

November 22, 2017

December 7, 2017

January 2, 2018

January 9, 2018

Actual Record Closed Date: February 7, 2018

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 18, 2017

Advocate — Parents

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 22, 2017

Advocate Mother — Parents

CSE Representative — DOE

(via telephone) — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 7, 2017

Advocate — Parents

Mother — Parents

(via telephone) — Parents

(via telephone) — Parents

I I (via telephone) — Parents

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 2, 2018

Advocate — Parents

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 9, 2018

Advocate — Parents

(via telephone) — Parents

(via telephone) — Parents

CSE Representative — DOE

The matter of came for hearing before me on July 18, 2017. I was appointed on July 10, 2017, as the impartial hearing officer, pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §1415(b)(2). The request was received on July 3, 2017 and amended on September 19, 2017. On October 19, 2017, I scheduled this hearing to commence on November 22, 2017. Hearings were held on November 22, 2017, December 7, 2017, January 2, 2018 and January 9, 2018. The parties moved to extend the compliance dates 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 requests for extensions of the compliance dates were granted. The current record close date is February 6, 2018 and the compliance date for issuing a decision is February 20, 2018. Appended to the record are lists of persons in attendance and of documents submitted into evidence including the written decisions for the requests for extensions and post hearing closing statements (Tr. at 246-247;435-

437;502 Exh. 1-IV).

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 parents of L_J_, who challenge the December 21, 2015 Individualized Education Service Plan ("IESP") and maintain that no IESP was conducted for the 2016-2017 school year and challenged the IESP dated August 22, 2017 (Exhs. A at 2,3; J at 2,3).

An Interim Order on Pendency was issued on July 18, 2017, and I ordered that the Department of Education ("DOE") provide to related services of per the February 24, 2014 Individualized education program ("IEP").

The parents seek a Final Order for the following: (1) a finding that the DOE failed to offer a free appropriate public education ("FAPE") for the school year 2015-2016 and the school year 2016-2017 and the current school year 2017-2018; (2) the continuation of at the rate for per the February 24, 2014 IEP and the continuation of the related services of i per the August 22, 2017 IESP for the 2017- 2018 school year (Exhs. J at 5;30 at 7;Tr. at 494). The parents seek prospective payment of for ,a who provided for the 2015-2016, 2016-2017 and part of the 2017-2018 school year and seek payment of for , a who provided for the 2015-2016 school year (Tr. at 495;Exhs. H,I). The parents withdrew their request for related services authorizations for for the 2017-2018 school year and withdrew their request that the DOE fund a evaluation and withdrew their request for services for a (Tr. at 497).

BACKGROUND

is a . She is a and is currently attending

and has attended since (Exh. 22 at

2). She was diagnosed with and was diagnosed with by in July 2017 (Exh. 28 at 10). She was classified as on the IEP dated August 5, 2014, and the portion of the IEP indicated that "

"

and that " "

(Exh. B at 1). The portion of the IEP further indicated that "

" (Id.).

On June 9, 2014, the CSE determined that did not require special educational services and declassified her with the projected date of declassification of August 31, 2014 (Exh. 4 at 1).

By letter dated August 5, 2014, the parent requested that the CSE evaluate her daughter and have a new IEP meeting and reopen her case (Exh. 5 at 1).

The consent by the parent for special education services was signed on June 8, 2015 (Exh. 35 at 1).

A was conducted on June 6, 2015, and indicated that when was and attending her "

" (Exh. 36 at 2).

A dated June 8, 2015, indicated that when was in , the parent requested a CSE evaluation due to concerns and the evaluator noted that L_J "- - - - - - - - - - ~

" (Exh. 6 at 1).

An initial review evaluation dated October 26, 2015, by , when was . Ms.

indicated that per an IESP that L_J received as a student in and that her teachers were "_J _ _ L_ L_ LJ _J

"( Exh. 7 at 1).

Ms. used the

_J to assess and the results indicated

_J (Exh. 7 at 6,8). Ms. used the and found scored

(Exh. 7 at 6). Ms. concluded that there were no concerns (Id.).

On November 3, 2015, the evaluation was conducted and the evaluator noted that "

" (Exh. 8 at 1). The L evaluator further noted that 's teacher stated that had "L_L_ _ _" and had " " and

" " (Exh. 8 at 3). The evaluator recommended

"

__JL_" and noted that L_J presented "

"(Exh. 8 at 5).

On November 17, 2015, another was conducted at and the examiner noted that "

" and "

" (Exh. 9 at 1).

The provider, Ms. , wrote an IEP review report and indicated that L_J was in she had "

" and that L_J could not "

" (Exh. D at 1). Ms. reported "

" and " " (Id.). Ms. noted that

" " or " " (Exh. D at 3).

On December 21, 2015, an IESP was developed by the CSE and was found to be eligible for special education services and CSE classified as

(" ") and recommended

(Exh. 12 at 7).

The consent by the parent for special education services was signed on May 11, 2016 (Exh. 15 at 1).

On November 15, 2016, the DOE progress report was conducted and the noted that at times during sessions "

" and that L_J "_ _ _~

" (Exh. 16 at 1). Continued

were recommended (Exh.

16 at 2).

The consent by the parent for additional testing for a , a

~ - L, _ and LJ evaluations, and evaluations was signed on April 27, 2017 (Exhs. 20 at 2;37 at 1).

A dated May 15, 2017, indicated that was

_ _ _ J _ and the L_ provider told the evaluator that _ J was had " " and that the teacher reported that was "

" (Exh. 21 at 2).

A Evaluation dated May 15, 2017, indicated that the parent reported that and the provider indicated that had "

" (Exh. 22 at 2).

An another evaluation was conducted on May 18, 2017, by Ms when was in and Ms.

indicated that through pendency had received services (Exh. 23 at 1).

Ms. again used the to assess _ J's - - - ~ and the results indicated . She found that had and determined that

(Exh. 23 at 2-5). Ms. noted that the scores were

(Exh. 23 at 6). Ms. used the and found that that indicated that and required "

. Ms. noted that the provider, Ms. told her that

(Exh. 23 at 14). Ms. used the scale scores indicated " " (Exh. 23 at 11) and noted that the scale scores indicated "

" (Exh. 23 at 13).

On June 21, 2017, the Evaluation was conducted when was and the evaluator noted that "

" and her "

" (Exh. 25 at 4).

On July 7, 2017, I's I teacher provided Ms. with an assessment of 's and noted that 's indicated that

(Exh. 26

at 1). Per the teacher her indicated that "

" (Id.). The teacher

further related that - ~ L _ J's "

" (Exh. 26 at 2).

On July 7, 2017, the 7 evaluation was conducted and the 7 provider, noted that 's classification was and that L_J presented "

" (Exh. 27 at 3). L was recommended to

" " (Id.).

On July 13, and 21, 2017, , conducted a evaluation when L_J was and found L_J's scores were __J

(Exh. 28 at 3) and the results were , but

(Exh. 28 at 8). Dr. noted that the score "

"(Exh. 28 at 4). Dr.

reported that the parent related that " ", but stopped (Exh. 28 at 2). Dr. diagnosed with (Exh. 28 at

10).

On August 22, 2016, an IESP was developed by the CSE and was classified with and the team recommended that receive related services of (Exh. 30 at 7).

The CSE Conference Agenda sheet indicated that the parent reported that and that Ms. , the provider, told the team that L_J did not receive services at the beginning of the year and so she regressed and that she was "

" (Exh. 31 at 2).

The PWN dated August 25, 2017, indicated that was placed in a non-public school for a program and that she received

(Exh. 32 at 1) and recommended a program with related services only to meet her needs (Exh. 32 at 2).

The consent by the parent for was signed on

September 6, 2017 (Exh. 34 at 1).

On December 13, 2017, Ms. provided a notarized statement to verify that she provided to from January 15, 2016 until June 21, 2016 for a total of due to her (Exh. E) and provided monthly vendor service invoice forms dated September 2015 through June 2016 (Exh. I).

On December 14, 2017, Ms. provided a notarized statement to verify that she provided special education services from February 27, 2017 until June 20, 2017 for a total of due to her (Exh. F) and submitted monthly vendor service invoice forms dated February 2017 to June 2017 (Exh. H).

On December 26, 2017, the parent provided a notarized statement of the family income of (Exh. G).

THE DOE'S CASE

The DOE case was presented in the testimony of for the 2015-2016 CSE review to develop the IESP on December 21, 2015 (Exh. 12) and , the for the 2016-2017 CSE review to develop the IESP on August 22, 2017 (Exh. 30).

Ms. , a licensed and certified employed by the DOE for 23 years, testified that she was present at the December 2014 IESP meeting for and recalled that the team reviewed the evaluation on October 26, 2015 (Exh. 7), the June 8, 2015 (Exh. 6), the October 17, 2015 (Exh. 9) and the November 3, 3015 evaluation (Exh. 8) and recalled that it was initial meeting as L_J was declassified from special education services at the time of the evaluations (Tr. at 42;46). She recalled that _J provider Ms. and the parent participated as did the special education teacher, the regular education teacher and she participated as district representative (Exh 12 at 9;Tr. at 48). She recalled that had scores, (Tr. at 53), but and so the L provider recommended (Tr. at 54). She recalled that had no as there was no concern with her , and that 's classification was L_ and were recommended to address (Tr. at 61;62;77;80). She recalled that the team further recommended to address her (Tr. at 65) and to help (Tr. at 59;64). She recollected that the parent submitted a prescription for a LJ evaluation, but insisted that the team would not consider the request for a CJ unless the parent accepted the IESP recommendation (Tr. at 69). She stressed that services were not recommended because no longer and that would address (Tr. at 70). She noted that the

~ L ~ - was recommended to - ~ _ J _ _ L_J

(Tr. at 80).

On cross Ms. acknowledged that she was not a , but she was familiar with students with (Tr. at 83). She stated that were characteristic of child with a diagnosis of (Tr. at 85-86). She recalled that there was a delay between May 12, 2015, the date the parent requested evaluations and her October 16, 2015 evaluation (Exh. 7).

Ms. stated that she could not explain why the evaluations were conducted more than 60 days after the request for evaluations on May 12, 2015, when the parent requested evaluations for special education services (Exh. 5 at 1) after was declassified and could not explain why the evaluations were conducted more than 60 days from the June 8, 2015, the date the parent consented to special education services for evaluations to commence (Exh. 35 at 1) as the evaluation was conducted on November 3, 2015 (Tr. at 95). She explained that the parent was not around in the summer of 2015 (Tr. at 97). She recalled that the December 21, 2015 IESP team considered both (Exhs. 6,9) and that the indicated concerns with (Tr. at 109), but there was no indication that (Tr. at 110). She recalled as indicated in her notes of the meeting that the parent presented the team with a doctor's prescription for a evaluation to address (Exh. 13 at 4), but maintained that unless the parent agreed to the IESP recommendation, then no evaluation could be conducted as noted in the conference agenda minutes (Exh. 13 at 5;Tr. at 117-

118;121;128-129;132).

Ms. stressed that could address any issues and if the parent agreed with the services recommended on the December 21, 2015

IESP, then the CSE would conduct a evaluation (Tr. at 133). She was unable to explain why she conducted the on her evaluation on May 15, 2017, but did not conduct the on October 26, 2015, except to note that L_J was a different child 2 years later (Tr. at 140). She stated that she could not explain why she did not conduct any test for on her initial evaluation (Tr. at 142).

, a licensed and certified employed

by the DOE for the summer of 2017, testified that she was present at the August 22, 2017 IESP meeting for L_ (Tr. at 150). She stated that the team reviewed the evaluation on May 18, 2017 (Exh. 23), the May 15, 2017 (Exh.

21), the May 15, 2017 (Exh. 22), the June 21, 2017 evaluation (Exh.

25), the July 8, 2017 L evaluation (Exh. 27), the July 7, 2017 evaluation (Exh. 28), the 2015 (Exh. 9) and the November 3, 3015 I I evaluation (Exh. 8) and saw (Tr. at 155). She noted _ J's scores on the were and scores indicated (Tr. at 157).

Ms. recalled that 's teacher described her as " " and that (Tr. at 158). She noted that the evaluation

revealed

and that (Tr. at 160). She related that the parent shared her concerns and that 's needs were discussed and that was appropriately classified as (Tr. at 164), and that was appropriately placed in a class with related services of (Tr. at 165) to make academic progress (Tr. at 170). She noted that despite the fact that was diagnosed with and despite the fact that her teacher reported to Ms. on July 5, 2017, (Exh. 26) that " " and " " (Tr. at 172), those deficits did not affect her (Tr. at 174).

On cross Ms. explained that she had 22 years of experience working with and that she was trained in and supervised staff (Tr. at 176). She recalled that while the selectively participated in the August 22, 2017 IESP, the provided the team with her input (Tr.

at 180). She stated that only team members with personal knowledge of _ J was her and the parent (Tr. at 182). She agreed that the (Exh. 21)

conducted in May 2017, described was typical

of (Tr. at 187).

Ms. explained the observation indicated that a " " was used by the L_ as (Tr. at 188), and that the evaluation indicated , (Exh. 25 at 4), (Tr. at 193). She reviewed both evaluations by Ms. (Exhs. 7 at 8, and 23 at 19) who found similar L_J and scores and acknowledged that the December 2015 IESP( Exh. 12) recommended , but maintained that the May 2017 IESP did not recommend appropriately (Tr. at 200).

Ms. stated that she could not speculate on whether through pendency prevented regression (Tr. at 205). She stressed that despite the fact that according to the 2017 results that was not appropriate as were added to the IESP to meet 's special education needs (Tr. at 207). She stated that the IESP team determined that while required in 2015, she did not required in 2017 because per the July 2017 teacher report (Exh.

26) and the 2017 evaluation (Tr. at 217). She noted that the IESP minutes (Exh. 31) indicated that the _J provided services during to work on and not on so were not recommended (Tr. at 229).

Ms. acknowledged that did not master the 2015 IESP goal to and so a similar goal was developed for the 2017 IESP (Tr. at 232), but maintained that were rejected in the 2017 PWN (Exh. as 32 at 2) as only related services in the classroom would meet L_J's needs (Tr. at 235). She acknowledged that there was no justification for the removal of noted on the PWN nor did the PWN list the changes in the IESP as required (Tr.

at 238). She agreed that the PWN should have noted the change in classification from to (Tr. at 239). She explained that because the parent did not agree to the 2015 IESP no justification was needed for the removal of (Tr. at 242).

THE PARENTS' CASE

's mother, , , , and , at testified in support of the parents' claim for direct payment for the of Ms. and Ms.

and continued for the 2017-2018 school year.

The parent testified that her daughter was placed in and noted that the staff told her that so she was instructed to open a case the Committee of Preschool Special Education and that her daughter received the IEP (Exh. B) dated February 24, 2014, that recommended (Tr. at 393). She recalled that she attended the IESP meeting for her daughter on June 9, 2014, and that she did not agree with the recommendation to declassify her daughter for special education services (Tr. at 394).

The parent noted that she attended the IESP meeting on December 12, 2015 (Exh.

12) and recalled that she told the team that her daughter was not keeping up the class (Tr.

at 399) and that she attended the IESP meeting August 22, 2017 (Exh. 30), and again recalled that she did not agree with the recommendation to remove and did not feel that the team listened to her concerns. She stated that she agreed with the change in classification to (Tr. at 402). She related that her daughter was not supported in her class this current school year (2017-2018) without her and that and opined that (Tr. at 403). She stated that she was responsible to pay for the of Ms. and Ms. and would take out a loan to pay them (Tr. at 405), and that her husband earns last year before taxes (Tr. at 407).

Dr. , the at , a school of students from to _JL_J, testified that she was licensed in and had a doctorate degree in Case No. 167091 and that she worked at her school for 13 years and that starts at to and starts at to (Tr. at

312-313;324). She stated that she observed _J in the classroom during the 2016-2017 school year and that her issues were typical of (Tr. at 316). She recalled that , and that she spoke to the classroom teacher and that she spoke to both Ms. and Ms. who explained that (Tr. at 317). She stressed that (Tr. at 319). She recalled that L_ as she did not have the special education support that she had in prior years (Tr. at 321). She stated that while did not receive special education services for the 2017-2018 school year, she did receive (Tr. at 329).

On cross Dr. stated that her school did not provide special education services and that for the 2016-2017 school year and that had received (Tr. at 331-332).

Ms. , the L_ provider and a provider, stated that she had a Master's degree in special education and that she provided for for the 2013-2014 school year and the 2014-2015 school year when was in (Tr. at 337;353;469). She opined that

__ _J_J~-~-~__J---~-~-L

(Tr. at

338;341). She recalled that and the _J provider told that (Tr. at 343). She recollected that Ms.

provided for in in the 2015-2016 school(Tr. at

346), and that she provided for _J in in 2016- 2017 school year under the supervision of Ms. (Tr. at 348;353;377).

Ms. noted that (Tr. at 350) and (Tr. at 354). She recalled that in that ; however, with her support of (Tr. at 356). She related that she stopped services during the summer of 2017 (Tr. at 357). She recalled that she participated in the August 22, 2017 IESP meeting and that she told the team that _J needed special education services to progress academically, but she opined that the team considered 's problems were (Tr. at 362). She stated that she charged per hour and that she provided services in the morning and in the afternoon (Tr. at 365). She stated that she provided to _J per week between February 27, 2017 and June 20, 2017 for n hours at the rate of per hour and was owed (Tr. at 471) as indicated on the December 14, 2017 Affidavit (Exh. F) and that _J attended a during the 2016-2017 school year (Tr. at 475).

Ms. stated that she provided services during the morning when occurred and that her goal with was to and to and she did not focus on teaching (Tr. at 477). She stated that her goal was to (Tr. at 478). She stated that she also

L_ _ _ J ~_ _J_~-_ _ __

provided services during the afternoon to work on (Tr. at 481). She explained that the subject matter during the morning was (Tr. at 483). She stressed that she provided special education services to (Tr. at 484)

(Tr. at 487).

On cross Ms. stated that as indicated in the July 2017 teacher's report (Exh. 26) because of the services she provided (Tr. at 369). She opined that because of the support (Tr. at 371). She explained that she met weekly with Ms. , a who trained her in the and that she used _ J to help _ J with (Tr. at 373). She related that so that she worked to and (Tr. at 386), based on her she worked on (Tr. at 388).

Ms. , a , testified that she had training in as part of continuing education (Tr. at

273). She stated that she provided _ J services to through pendency during the 2015-2016 school year for and recalled that required

L_~ _J _ _ (Tr. at 275;278). She described (Tr. at 276). She

recalled that she collected data on to determine and defined data as Lj _ _ _ J ~ LJ

(Tr. at 277). She explained that she developed a for the teacher to provide and the teacher would (Tr. at 461).

Ms. opined that L_ responded positively to the and she faded her support to promote 's generalization and (Tr. at 278) and that she and _J's classroom teacher discussed (Tr. at 461). She opined that should have been classified as with based on as well as (Tr. at 280). She recalled that she participated in the December 21, 2015 IESP meeting (Exh. 12 at 10) and that she provided an undated report (Exh. D) to the team (Tr. at 281). She recalled that the parent disagreed with the IESP's recommendation of (Tr. at 282), and that the team did not respond to report (Exh. D) to develop a n as a result of the IESP meeting (Tr. at 283).

Ms. recalled that she regularly contacted the principal and Dr.

and the classroom teachers and the related service providers and opined that required special education services and not just as and that she was paid under pendency for some of the services she provided, but was owed as indicated in the Affidavit (Exh. E; Tr. at 285;449). She opined that regressed during the summer months when did not receive special education services and related that while she was not involved in L_J's 2016-2017 school year, she consulted with the L_ provider to implement the LJ she developed for L_J during the 2015-2016 school year (Tr. at 286). She stated that were taught at until and that she worked with during the morning to and that she did not provide (Tr. at 454-554). She stated that she was present in the class from to , and that (Tr. at 457). She stated that students learned (Tr. at 459).

On cross Ms. stated that she provided services for during the _J in generally from to or to for and that the portion of the day in the (Tr. at 297). She stated that required that the classroom teacher was unable to provide and that (Tr. at 299). She recalled that she was in contact with the classroom teacher and that she developed goals for the and at times she did provide services during the (Tr. at 301). She stated that she received adifferent rate as a because she was a (Tr. 465).

Ms. stressed that she was in touch with the classroom teacher and that she provided a chart for the classroom teacher so she had knowledge of how performed in class without her and to reinforce the goals that she developed for (Tr. at 466). She explained that in the morning that she received the chart from the classroom teacher from the prior day and that she communicated with the teacher through notes on the chart and by text and in person (Tr. at 468).

FINDINGS OF FACT AND 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]).(Gag iardo v. Ar ington 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). The school must offer an "an IEP reasonably calculated to enable [ ] to make progress appropriate in light of [her]

circumstances" (Endrew F. ex. re . Joseph F. v. Doug as Cnty. Sch. Dist., __S.Ct.__,

2017 WL 1066260, *10 (Mar. 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. Row ey, 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'" (Weixe v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex re . 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 Wa czak v. F orida 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 Row ey also observed that states are not required under IDEA to maximize every disabled child’s potential (Row ey, 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" (Wa czak v. F orida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted).

"It is through the IEP that '[t]he [FAPE] required by the Act is tailored to the unique needs of' a particular child" ( Endrew F. ex re . Joseph F. v. Doug as Cty. Sch. Dist. RE-

1, 137 S. Ct. 988, 1000 (2017) (quoting Row ey, 458 U.S. at 181).

In App ication 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].

In matters alleging a procedural violation, a hearing officer may find that a child did not receive FAPE only if the procedural inadequacies: (i) impeded the student’s right to FAPE; (ii) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of FAPE for the student; or (iii) caused a deprivation of educational benefit (20 U.S.C. § 1415(f)(3)(E); 34 C.F.R. §

300.513(a)(2)).

2015-2016

The parents claim that the IESP was substantively and procedurally defective.

The parents alleged that the DOE failed to provide FAPE for the 2015-2016 school year on procedural and substantive grounds: the December 21, 2015 IESP was not appropriate because the team did not consider the parent's input or the _J's input and the team failed to consider appropriate evaluative data; there was no ~

L_J_ evaluation and no goal; the IESP goals were vague and a single 7 goal was insufficient; the IESP failed to provide sufficient support as the recommendation of

L__ was insufficient to address her needs in

L__J

(Exh. J at 3).

Procedura c aims concerning fai ure to consider the parent's participation

I credit the parent's testimony that she attended the IESP meeting on December 12, 2015 (Exh. 12) and recalled that she told the team that her daughter (Tr. at 399). I credit Ms. 's testimony that she told the team that should have been classified as with L_J based on as well as (Tr. at 280). I credit the testimony of the parent and Ms. who described her issues, and issues and I credit their testimony that they informed the team that required more special education services than . I find that the parent told the team that her daughter struggled in a program with . I find that CSE had ample evidence of ’s issues and I find the hearing record is devoid of evidence supporting the appropriateness of the decision to reduce special education services from to . I find the was not sufficient to meet 's learning needs and impeded the parent's ability to participate in the decision making process and caused a deprivation of educational benefit and was a denial of FAPE.

Because I find the IESP is procedurally defective and FAPE was not provided to for the 2015-2016 school year I could end my inquiry; however, I note the parents made several claims of substantive defects.

C aim concerning fai ure to conduct sufficient eva uations for and

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 asserted that the CSE did not conduct sufficient evaluations including a evaluation. I find that the CSE was aware of _ J's issues. I find that the CSE was aware of 's by the evaluator in the dated June 8, 2015, who noted that "

" (Exh. 6 at 1). I find that the CSE was aware of _ J's by the November 17, 2015, as the examiner noted that " " and

" " (Exh. 9 at 1). I

find the dated, June 6, 2015, indicated that when _ J was and was attending a her "

" (Exh. 36 at

2). I conclude that the IESP did not adequately address the and in these circumstances find that the team did not conduct sufficient evaluation to meet unique

's needs and needs. I credit Ms. 's testimony that she participated in the December 21, 2015 IESP meeting (Exh. 12 at 10) and that she provided an undated report (Exh. D) and told the team that should have been classified with based on as well as (Tr. at

280) and that she recalled that the parent disagreed with the IESP's recommendation of n (Tr. at 282), and that the team did not respond to report (Exh. D) to develop a L_ as a result of the IESP meeting (Tr. at 283). I find the CSE failed to obtain sufficient evaluative information of 's including and I find that the team had insufficient information upon which to base her educational program recommendation.

C aim concerning inappropriate goa s

The parents challenged the goals as vague and insufficient. I find the single goal to (Exh. 12 at 4) did not meet 's problems as outlined in the evidence (Exhs. 8, D) and I find the lack of goals did not address 's that required intervention. I find the single n goal did not address 's . Therefore, I find that the IESP annual goals were not appropriate. C aim concerning the fai ure to conduct time y eva uations

The parents asserted that the district did not timely conduct evaluations. I find that the parent consented for special education services on June 8, 2015 (Exh. 35 at 1).

The parents asserted that the evaluations must be conducted within 60 days of receiving parental consent for the evaluation and noted that there was "no information as to why an IEP was not convened for the student in November of 2015 and was first scheduled in December 2015"(Exh. V at 2) I agree. The district representative argued that" Sarah's parent repeatedly refused to sign the consent for initial provision of services form and did not formally inform the CSE that she is not in agreement with this recommendation until a due process complaint was filed on November 17, 2016 .... Sarah was also not entitled to receive any of the services recommended on the December 21, 2015 IESP, as her parent did not sign the initial provision of consent for services"(Exh. VI at 10). I find that the parent was not required to consent to inappropriate services and the district failed to conduct timely evaluations.

C aim concerning insufficient support

I credit the testimony of Ms. who recalled that had no as there was no concern with her , and that 's classification was _J and were recommended to address 's (Tr. at 61;62;77;80). I find the decision to classify as and to reduce the amount of special education services was not support by the evidence. I find that the team was on notice of the 's issues as the _J evaluation noted that she " (Exh. 8 at 1). The I I evaluator further noted that 's teacher stated that had " " and had "

" and " " (Exh. 8 at 3). I find that the team was aware of by Ms. 's report who noted that (Exh. D at 1), and referenced " " and that "

" or " " (Exh. D at 3). I find that required a more supportive program than the district was willing to provide.

Accordingly, I find that FAPE was not provided during the 2015-2016 school year as I find CSE failed to offer an appropriate program for the 2015-2016 school year.

2016-2017

The parents alleged that the DOE failed to provide FAPE for the 2016-2017 school year as there was no IEP or IESP for the 2016-2017 school year. The district representative asserted that at the "start of the 2016-2017 school year, the CSE had still not received written notice that L_ ...'s parent was consenting to services or rejecting the recommendation made at the December 21, 2015 IESP meeting. As a result, _J was not entitled to any services through the DOE"(Exh. VI at 11). I disagree. I find that the parent was not required to consent to inappropriate services. Accordingly, I find that FAPE was not provided during the 2016-2017 school year as I find CSE failed to offer an appropriate program for the 2016-2017 school year

2017-2018

The parents alleged that the DOE failed to provide FAPE for the 2017-2018 school year as the August 22, 2017 IESP was substantively and procedurally defective and resulted in a denial of FAPE (Exh. J at 4). The parents asserted that the IESP was not appropriate because the team was invalidly constituted because L_J's special education teacher joined half way through the meeting; 's teacher was not present; there was no parent member, and the team failed to consider 's diagnosis and the evaluation and while the IESP team changed the classification from to , the team did not recommend special education services. The parents alleged the CSE did not conduct a and and the goals were insufficient and the goals were vague and the lack of goals failed to address L_'s needs that were the result of her diagnosis of . The parents asserted that there was no goal to address (Id.).

Procedura c aim concerning the ack of mandatory members

The parents asserted that the August 22, 2017 IEP lacked the mandated members.

I credit Ms. 's testimony that the selectively participated in the August 22, 2017 IESP (Tr. at 180). I credit Ms. 's testimony that the only team members with personal knowledge of L_J were her L_ and the parent (Tr. at 182). I find that the special education teacher who knew L_ who participated by telephone for only part of the meeting (Tr. at 180) and that there was no testimony to establish that she had access to the written evaluations available to the IESP team who appeared in person and only participated for part of the meeting. I find that the State Review Officer held that a member who participates by telephone must have the same materials as the members of the CSE team (00-069). As to the claim that the team was not validly composed because there was no parent member, and no general education teacher who knew I find that assertion was not contested and I find there was no testimony at the hearing to establish that the required members were present. Therefore, I find the August 22, 2017 IESP team was not validly composed.

Procedura c aim concerning parenta participations

I credit the testimony of the parent and Ms. who informed the team that would not without special education service. I credit the parent's testimony had she told the team that _ J _ ~ - - - and that she did not agree with the recommendation to remove and did not feel that the team listened to her concerns (Tr. at 402). I find that CSE had ample evidence of 's , and in the evaluation. I find CSE had ample evidence of 's and that she required . I find the hearing record is devoid of evidence to support the decision to not provide special education services. I further find the recommendation not to provide special education services was not only insufficient to meet 's special education needs, but was in contradiction of the recommendations of the evaluation and impeded 's right to FAPE. I find the lack of participation of the parent and _J's significantly impeded the parent's opportunity to participate in the decision making process regarding the provision of FAPE. I find that the district representative failed to establish that the parent and 's teachers meaningfully participated in the decision making process. The lack of CSE evaluations to support a decision not provide special education services impeded the parent's opportunity to participate in the decision making process.

Procedura c aim for fai ure to conduct 7 or-

The parents argued that the IESP team did not conduct the necessary assessments including a or a to address . (Exh. J at4). I find that while the Second Circuit has held that the failure to conduct an L_ is a serious procedural violation for just this reason, R.E. v. NYC Dept. of Educ. 694 F.3d 167, 190 (2d. Cir.

2012), not every failure to conduct an LJ will rise to the level of a denial of FAPE; the failure must have been mitigated by other information regarding the student's behavioral issues and supports to appropriately accommodate them. Id. I find that under 8 NYCRR §

200.4[b][1][v] and 34 CFR. § 300.324[a][2][i] an L_ was required as L_'s behavior impeded her learning and the learning of others. I find the record was replete with examples that the that impeded learning as documented in the of (Exh. 21 at 2), the of n

(Exh. 22 at 2), the evaluation of

(Exh. 23 at 11;13), the _J evaluations that (Exh. 8 at 1) and that was recommended to " n

(Exh. 27 at 3) and the evaluation (Exh. 28 at 2-

4). I find required aLJ and aLJ as her impeded her learning and the learning of others. The failure to conduct a constitutes a denial of FAPE when the IEP fails to adequately identify problem or prescribe adequate ways to manage them. C.F. v. N.Y. City Dep’t of Educ., 746 F.3d 68, 81 (2d Cir. 2014); R.E., 694 F.3d at

190.

Because I find the IESP is procedurally defective and FAPE was not provided to for the 2017-2018 school year I could end my inquiry; however, I note the parents made several claims of substantive defects.

C aim concerning fai ure to consider appropriate eva uative data

I find CSE had ample evidence of 's and that she required as recommended by the evaluation (Exh. 28 at 10). I find the hearing record is devoid of evidence supporting the appropriateness of the decision to not provide special education services. I further find the recommendation would not meet her special education needs as outlined in the dated May 15, 2017, that indicated that "

" and that the teacher reported

that was " "

(Exh. 21 at 2). I find the record is devoid of evidence supporting the appropriateness to eliminate special education services. I find that special education services were required as outlined in the evaluation conducted on May 18, 2017, by Ms who found that that indicated that L_J had L_J and required . I find that Ms. noted that the provider, Ms. told her that

" "

(Exh. 23 at 14). I find that Ms. used the scores indicated "

" (Exh. 23 at 11) and noted that the scale scores indicated "

" (Exh. 23 at 13). I find the need for special education services was evident in Ms. 's evaluation.

I find the team was aware of 's as noted by 's teacher who stated that L_J's indicated that

(Exh. 26 at 1). I find that the teacher further reported that L_J's "

"

(Exh. 26 at 2). I find the hearing record is devoid of evidence supporting the decision to not provide special education services in light of this report.

The parents asserted that the IESP failed to adequately address her and and the proposed program was inappropriate and the CSE ignored her concerns (Exh. J at 4). I agree. I find that the team was aware of the evaluation by Dr. who found

(Exh. 28 at 8) and the "

"(Exh. 28 at 4) and diagnosed with (Exh. 28 at 10). I find the hearing record is devoid of evidence supporting the decision not to provide special education services in light of Dr. 's evaluation. I credit the testimony of Ms.

who participated in the August 22, 2017 IESP and told the team that L_J needed special education services to progress , but that the team considered

's problems were merely (Tr. at 362). I credit her testimony and find that there was no discussion of 's or special education needs or as diagnosed by Dr. . I find the decision to not provide special education services was not support by the evidence.

I credit Ms. 's testimony that 's scores on the were and scores indicated (Tr. at 157) and that 's teacher described her as " " and (Tr. at 158)

and that the _J evaluation revealed (Tr. at 160). I do not credit her testimony that was appropriately placed in a class with related services of (Tr. at 165) to make academic progress (Tr. at 170). I find that the district witnesses relied primarily upon I's I and scores and did not consider Dr. 's evaluation, (Exh.

28), the evaluation (Exh. 25), the teacher report (Exh. 26) the , the _J evaluation (Exh. 27) and the second evaluation (Exh. 28).

There was no dispute that met the criteria for and her affected her learning. Testimony adduced at the hearing established that had . I find that the district representative failed to present any evidence that a with no special education services provided sufficient support for in the classroom and to address her issues from her diagnosis of L_J and .

Goa s

The parents asserted that the goals were vague and insufficient and inappropriate as there were no goals to address the challenges of a child with

. I agree.

Therefore, I find the district failed to establish that FAPE was provided during the 2017-2018 school year as I find CSE failed to offer an appropriate program and placement for the 2017-2018 school year.

The parents have the burden to prove that the services they obtained for are appropriate to her needs. The parents must prove that will receive an appropriate educational benefit from L_ and I find the parents offered substantial evidence to meet this burden. I find that the testimony adduced at the hearing demonstrated that Ms.

and Ms. supported her , her and her and enabled to progress . I credit the testimony of the Dr. and find that L_J required (Tr. at 317). I find credible the testimony of parent's witnesses and find that progressed with from Ms. and (Tr. at

356;301. I find the record was replete with 's and I find that the district representative did not dispute the deficiencies described and did not rebut the testimony with regard to the efficacy of . The district representative asserted that the "payment for ~ services provided by Ms. should be paid at the standard _J rate of LJ per hour, as it has already been established that there was no pendency order in place during the time period in which Ms. is seeking to be paid" (Exh. VI at 21). I disagree as I credit the testimony of Ms. , and find as a , she provided with at the rate of L_J per hour, the customary and usual rate. As I find there was a lack of FAPE for the 2015-2016 school year I find that Mr. should be paid at the rate of per hour for the from January 15, 2016 until June 21, 2016 as I credit her testimony and her notarized statement and invoices (Exhs. E, I; Tr. at 285;449).

I further find that as there was no FAPE for the 2016-2017 school year I find that Ms.

should be paid at the rate of per hour for the special education services from February 27, 2017 until June 20, 2017 as I credit her testimony (Tr. at 365;471) and her notarized statement and invoices (Exhs. F, H).

I find that the parents established that required and the continuation of the related services per the August 22, 2017 IESP for the 2017-2018 school year (Exhs. J at 5;30 at 7;Tr. at 494). I credit the testimony of Ms. who recalled that as she did not have the special education support that she had in prior years (Tr. at

321). I further credit the testimony of Ms. and find that that ; however, with her support of (Tr. at 356). I find that were essential to prevent regression as I credit the testimony of Ms.

(Tr. at 362). I credit the testimony of parent who stated that her daughter was not supported in her class this current school year (2017-2018) without her _J and that and opined that (Tr. at 403).

The district representative asserted that, "unlike related services or , publicly funded given during are both and , and therefore the DOE should not be responsible for payment of provided during "(Exh. VI at 22).

The district representative further argued "the fundamental test for public funding of religious instruction was established in the case of Lemon v. Kurtzman, 403 U.S. 602

(1971). Under this Lemon test, in order to be permissible the government funded services must: (1) have a secular (non-religious) purpose; (2) neither advance nor inhibit religion; and (3) not result in excessive entanglement of the services in the religious mission." (Exh. VI at 24)

The parents asserted that pursuant to "Appeal No. 96-14, the State Review Officer found that the parents of a 13 year old student should be awarded full tuition reimbursement despite the fact the school where the student had been unilaterally [placed] by the parents had religious subjects (Exh. V at 9). The parents further asserted that "some of the was provided during , it did not serve the purpose of furthering , nor did it financially aid the school. Similar to Zobrest, where the student required the interpreter to appropriately participate in school, requires the support of to learn and participate in school"(Exh. V at 10).

The district representative argued" while Agostini found that publicly funded secular instruction in religious schools was permitted, Agostini v. Felton, 521 U.S.203

(1997), during religious education cannot reasonably be interpreted as secular instruction"(Exh. VI at 28).

I credit the testimony of Ms. and find she provided with

"

" (Tr. at 454). I credit the testimony of Ms. and find that she worked with "

"(Tr. at 477).

The parents argued that the L_J were "

" (Exh. V

at 10). I agree. I find that the were entitled to direct payment for their services during _L_ _ _ _ L

. The parents asserted that "

"(Exh. V at 8). I disagree.

I find that the L_J were entitled to direct payment for their services during the . I further find that the were entitled to direct payment for the provided to during the as I credit Ms. 's testimony and find that she also provided services to (Tr. at 481). However, I do not find that the were entitled to direct payment for services during . I credit the testimony of Ms. and find that was taught _J (Tr. at 482).

I do not find that the L_J were entitled to direct payment for the portion of the when they provided services when the were taught as I find that that the were both required and conceptually linked to the religious education offered in the . I find that is not a elective. I find it is essential to the religious education. ( See Lemon v.

Kurtzman, 403 U.S. 602). I credit the testimony of Ms. and find that the children received "

" (Tr. at 458). Accordingly, I conclude that there was of religious instruction in the morning in .

I find the parents are entitled to an Order directing the DOE to directly payment for the providers excluding

.

ORDER

Therefore, it is hereby ordered that the DOE provide direct payment for Ms.

in the amount of per hour less the of that were provided during her instruction during the religious portion of the hours that she provided services per day for the 2016-2017 school year. It is hereby ordered that the DOE provide direct payment for Ms. in the amount of per hour less the that were provided during her instruction the religious portion of the hours that she provided services per day for the 2015-2016 school year upon proof of service.

This case is remanded to the CSE to develop at appropriate IESP and I order the receive for the 2017-2018 school year and the continuation of the related services per the August 22, 2017 IESP for the 2017-2018 school year until an appropriate IESP is developed.

Dated: February 26, 2018

LINDA AGOSTON, ESQ.

Impartial Hearing Officer LA:

PLEASE AKE NO ICE

he parent and/or the New York City Department of Education has aright to obtain areview of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

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

DOCUMENTATION ENTERED INTO THE RECORD ON JULY 18, 2017

A Impartial hearing request, dated 5/2/17, received 7/3/17, 4 pp. Parent

B IEP, 2/24/14, 19 pp. Parent

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 22, 2017

1 Events, undated, 22 pp. District

2 Omitted

3 Omitted

4 Declassification from special ed services, 6/9/14, 2 pp. District

5 Initial evaluation request, 5/12/15, 1p. District

6 , 6/8/15, 2 pp. District

7 evaluation, 10/26/15, 8 pp. District

8 evaluation, 11/3/15, 6 pp. District

9 , 11/17/15, 1 p. District

10 CSE meeting notice, 12/1/15, 2 pp. District

11 CSE meeting notice, 12/3/15, 2 pp. District

12 IESP, 12/21/15, 10 pp. District

13 Conference agenda/minutes, 12/21/15, 11 pp. District

14 Prior written notice, 12/28/15, 3 pp. District

15 Parent notice of intent, 5/4/16, 1 p. District

16 progress report, 11/15/16, 2 pp. District

17 Notice of scheduled resolution meeting, 12/12/16, 2 pp. District

18 Omitted

19 Notice of scheduled resolution meeting, 3/31/17, 2 pp. District

20 Resolution agreement, 4/27/17, 2 pp. District

21 , 5/15/17, 2 pp. District

22 evaluation, 5/15/17, 3 pp. District

23 evaluation, 5/18/17, 21 pp. District

24 Addendum to , 6/19/17, 1 p. District

25 evaluation, 6/21/17, 6 pp. District

26 Teacher Report, 7/5/17, 2 pp. District

27 evaluation, 7/8/17, 4 pp. District

28 evaluation, 7/21/17, 6 pp. District

29 CSE meeting notice, 8/2/17, 2 pp. District

30 IESP, 8/22/17, 10 pp. District

31 Conference agenda sheet, 8/22/17, 2 pp. District

32 Prior written notice, 8/25/17, 3 pp. District

33 Consent for initial provision of services, 8/25/17, 1 p. District

34 Signed consent for initial provision of services, 9/6/17, 1 p. District

7 Prior Written Notice, 11/18/16, 1 p. District

I Decision on Extension, 8/17/17, 1p. IHO

II Decision on Extension, 11/22/17, 1p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 7, 2017

C report, undated, 1 p. Parent

D IEP review report by , undated, 3 pp. Parent

35 Consent for initial evaluation, 6/8/15, 1p. District

36 evaluation, 6/8/15, 2 pp. District

37 Consent for initial evaluation, 5/15/17, 1 p. District

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 2, 2018

I Decision on extension, 8/18/17, 1 p. IHO

II Decision on extension, 11/22/17, 1 p. IHO

III Decision on extension, 1/2/18, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 9, 2018

A Impartial hearing request, 5/22/17, 4pp. Parent

B IEP, 2/24/14, 19 pp. Parent

C report, undated, 1 p. Parent

D IEP review report from , undated, 2 pp. Parent

E affidavit, 12/13/17, 1 p. Parent

F affidavit, 12/14/17, 1 p. Parent

G affidavit,12/26/17, 1 p. Parent

H Vendor invoices for , various dates, 7 pp. Parent

I Vendor invoices for , various dates, 10 pp. Parent

J Amended due process complaint, complaint, 9/18/17, 5 pp. Parent

IV Decision on Extension, 1/9/18, 1 p. IHO

POS HEARING SUBMISSIONS

V 's Closing Statement, 2/6/18, 10 pp. IHO

VI 's Closing Statement 2/6/18, 30 pp. IHO