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UNIVERSJTY OF THE STATE OF NEW YORK
STATE EDUCATION DEPARTMENT
------X In the Matter of the Impartial Hearing brought by XXXX,
Petitioners,
-against-
xxxx,
Respondent.
------------X
INTRODUCTION AND POSITION OF THE PARTIES
This hearing is held pursuant to Section 200.50) of the Regulations of the New York State Commissioner of Education [8 N.Y.C.R.R. Section 200.5(j)). Petitioners,
XXXX and XX.XX (hereinafter referred to as the "Parents"'}, requested aIn Impartial Hearing on behalf of their child, XXXX, (hereinafter referred to as the "Student"), contesting on procedural and substantive grounds, the appropriateness of IEP and placement recommendations made by the District's Committee on Special! Education
(hereinafter referred to as the NCSE") for the Student for t he XXXX and XXXX school years. As part of their hearing request, the Parents seek the following independent evaluations at public expense: XXXX. They also seek an appropriate IEP for the 2017/18 school year in the least restrictive environment; provision of compensatory
XXXX services, payment of attorneys' fees and expenses, and p!iOvision of any further relief, including further compensatory education (Ex. IH:0-3).
On or about XXXX, the District submitted a Response to the Impartial Due Process Hearing Request (Ex. IHO-4). In addition to asserting a general denial as to the allegation that the District failed to provide the Student with a Free Appropriate Public Education (hereinafter referred to as ''FAPE"), the pistrict alleg,e d the folfowing :
XXXX (Ex. IHO-4).
During the course of the Impartial Hearing, the Parents proceeded on a pro se, basis and they withdrew all of their requests for independent evaluations contained in their Due Process Complaint Notice, with the exception of XXXX, which the District agreed to provide at public expense. The Parents' other requests for independent evaluations at public expense were withdrawn by them on the record (Tr. at pp . 431-
433, 437-439).[1]
PROCEDURAL HISTORY
In a Due Process Complaint Notice dated July 7, 20,17, and received by the District on July 11, 2017, the Parents requested an Impartial Hearing challenging the District's recommendations with respect to placement oif the·Student in XX.XX (Ex. lHO-
3).
In a letter dated July 12, 2017, I was appointed as the Impartial Hearing Officer (hereinafter referred to as "IHO") by the District to hear this matter (Ex. IHO-1 ). On
August 16, 2017, the first of three pre-hearing telephone conferences was held for the purpose of clarifying the issues (Transcript of Telephonic Conference dated Aug1us,t 16i,
2017 at pp. 1-23). At that time, the Parents were represented by an attorney, who stated her intention to file an application for recusal of the IHO. On August 30, 2017, a written motion for recusal was filed (Ex. IHO-7). On September 13, 2017, the District submitted responding papers objecting to the IHO's recusal (Ex. IHO-8). On September 19, ~017, the IHO issued an Interim Decision and Order denying the Parents' motion for recusal (Ex. IHO-9).[2] A second pre-hearing telephone conference was held on October 5, 2017 (See Transcript of Telephonic Conference dated October 5, 2017 at pp. 1-23).
A paralegal from the Parents' attorneys' office participated in the call. One day later, in response to an e-maH sent from the IHO requesting information sought at the pre hearing telephone conference the previous day, counsel sent an e-mail transmission advising the IHO that the Parents determined to discharge her law firm and proceed to the hearing on a prose basis (Ex. IHO-21).3 On October 19, 2017, a third pre-hearing telephone conference was held directly with the Parents, to clarify the issues, to answer procedural questions raised by them, and regarding other matters (See Transcript of
Telephonic Conference dated October 19, 2017 at pp. 1-109). Hearing dates which were originally scheduled with the Parents' counsel were revised to accommodate the Parents' schedules (See Transcript of Telephonic Conference dated October 19, 2017 at pp. 50-54) (Ex. IHO-4).
There were a total of 10 days of hearing in this matter. The first day of hearing was held on November 15 and hearings continued on November 20, November 27, November 28, November 29, December 8, and December 22, 2017, as well as on January 16, January 25, and February 1, 2018 (Tr. at pp. 1- 2016).
The District presented 7 witnesses on its direct case. The Parents presented 7 witnesses on their direct case. The transcript is 2,016 pages in length. The District submitted a total of 54 exhibits. The Parents submitted a total of 32 exhibits. The parties submitted a total of 14 joint exhibits. The Impartial Hearing Officer submitted a total of 28 exhibits. The Impartial Hearing Officer granted a total of 9 requests for extension of the 45 day rule. The actual record close date was May 11, 2018. The
IHO's decision was due on May 25, 2018 (Ex. IHO-26). Both parties submitted post hearing t;>riefs (Exs. IHO-27. IHO-28).
ISSUES
In their Due Process Complaint Notice, the Parents state that XXXX failed to provide the Student with a FAPE for the XX.XX and XX.XX school years. Specifically, that the District XX.XX (Ex. IHO-3 at pp. 2-5).
FINDINGS OF FACT
The Student, born on XXXX. is currently XXXX years old (Ex. 0 -40 at p. 1). The record contains little early background information XX.XX about the Student. He is classified as X.XXX, and he has XXXX (Ex. J-2 at pp. 1-2). The Student takes X.XXX including XXXX (Ex. 0-40 at p. 1). The Student had a XXXX (Ex. J-2A).
The Student's academic needs in the XXXX, were described as follows: XXXX.
For the X.XXX school year, he was placed in XXXX (Ex. P-EE at p. 6). In addition, he X.XXX (Ex. P-EE at p. 7). Supplementary aids and services, program modifications, and accommodations included XXXX (Ex. P-EE at p. 7). He was also recommended for XXXX. Testing accommodations included XXXX. He also received XXXX (Ex. P-EE at pp. 8-9).
On XXX.X, the Student XXXX (Ex. P-E).
The documentary evidence shows that several CSE meetings were held for the Student during the XXXX school year, his XXXX grade year. The Student was placed in
XXXX. He participated in X.XXX. Related services included XXXX (Ex. P-AA at p. 1).
In a meeting held on XXXX, the CSE added XXXX. The Student reportedly XXXX. At that time, the CSE discussed XXXX. The Parents had concerns about X.XXX (Ex. P-AA
at p. 2).
Progress reports from the XXXX school year indicate that the Student X.XXX
(Exs. P-N, P-O, P-P, P-W). A complaint which the Parent filed with the New York State Education Department was XXXX (Ex. D-23).
On XXXX, a meeting was held for a XXX.X. It was determined XXXX. There was a program review and lengthy discussion about XXXX. In XXXX the Student underwent
XXXX (Ex. J-8). On XXXX, the CSE reconvened and XXXX. However, XXXX. The XXXX reported XXXX. No changes were made to his then current IEP (Ex. P-AA at pp.
1-2).
On XXXX, the CSE met for the Student's annual review for the XXX.X, and to review the results of triennial testing (Ex. D-2 at pp. 2-4). In addition to XX.XX, the Student was XXXX (Exs. D-1 , 0-2 at p. 1). The CSE recommended XXXX (Ex. 0-2 at
p. 6).
Supplementary aids and services, program modifications, and accommodations for the XX.XX school year included XXXX (Ex. 0-2 at pp. 8-9). He was recommended for XX.XX (Ex. 0-2 at p. 9). Testing accommodations included XXXX (Ex. 0-2 at p. 10).
He also received XX.XX (Ex. 0-2 at p. 11).
On XXXX, the CSE reconvened at the Parents' request for a program review.
The parties engaged in a lengthy discussion with respect to XX.XX. They also discussed XX.XX (Exs. 0-3, 0-4 at pp. 2, 11 ).
On XXXX, the Student's IEP was amended to XXXX. The amendment occurred with an agreement between the parties that no meeting would be held to amend the IEP (Exs. 0 -5, 0-6 at p. 1).
On XX.XX, the CSE reconvened for a program review at the Parents' request to review XX.XX. Staff reported XXXX. The CSE also reviewed XX.XX (Exs. 0-7, 0-8 at pp. 1-2).
On XXX, the IEP was amended without a meeting, on consent, to reflect that XXXX (Exs. D-9, D-10 at p. 1). On XXXX, the IEP was again amended without a meeting, on consent, to XXXX (Exs. D-11, D-12 at pp. 1, 10-11 ).
On XXXX, the CSE reconvened for the Student's annual review for the XXXX school year, the Student's XXXX grade year (Exs. J-12, D-13). Staff reported that
XXXX. The CSE discussed XXXX. The CSE also considered XXXX. The CSE recommended XXXX. It was agreed that XXXX. Specific decisions on XXXX. The
CSE continued to recommend XXXX (Exs. J-12, D-13).
On XXXX, the CSE reconvened for a discussion regarding XXXX (Exs. D-14, D-
15). The Parents XXXX. The Student was XXXX. The Parents expressed their desire for XXXX. The CSE agreed that XXXX, and it formally recommended XXXX. The
Student was also recommended for XXXX (Ex. D-15 at pp. 1, 10).
The CSE also recommended supplementary aids and services/program modifications/accommodations for the XXXX school year to include XXXX (Ex. D-15 at pp. 10-11}.
Testing accommodations for the Student for the XXXX school year included
XXXX. He was also recommended for XX.XX (Ex. D-15 at p. 11).
The Student was also scheduled to receive XXXX (Ex. P-F). After discussion with school staff, XXXX confirmed with the Parent that the Student would receive XX.XX
(Exs. P-F, 0-51, J-4 at p. 5).
On XXXX, the CSE met at the Parents' request for a program review due to concerns about XXXX (Exs. J-13, D-16). There was discussion regarding XXXX. The
Parents expressed concerns about XXXX. The CSE considered XXXX. They also considered XXXX. It was determined that XXXX (Tr. at pp. 373-375; Exs. D-16, D-17,
D-17A, D-36, D-37, J-13 at pp. 1-2).
The Parents also expressed concerns about XXXX (Ex. J-13 at p. 2).
In XXXX, XXXX contacted the Parents to discuss XXXX. The Parents stated that XXXX (Exs. D-17A at pp. 1-2, D-38).
On XXXX, the CSE met with the Parent~ for a requested review (Tr. at pp. 377-
386; Exs. D-17, D-17A). The Parents did not XXXX (Tr. at pp. 376-377; Ex. D-17A at p.
1). The CSE reviewed XXXX (Exs. D-36, D-37).
The CSE reviewed the Student's then current levels of performance and noted that XXXX (Ex. D-17 A at p. 2). The Parents expressed their desire for the District to XXXX (Ex. D-17A at p. 2).
The Parents requested XXXX (Ex. D-17 A at p. 2).
The CSE reconvened with the Parents on XXXX to review XXXX (Exs. J-3 at p.
1, D-20). XXXX reviewed XXXX (Ex. J-3 at p. 1). XXXX (Ex. J-3 at p. 1). The Parents
XXXX (Ex. J-3 at p. 1). Both XXXX (Ex. J-3 at pp. 1-2).
The CSE discussed that XXXX (Ex. J-3 at p. 2). Staff reported that XXXX (Tr. at pp.1395-1403; Ex. J-3 at p. 2). A review of the Student's Progress Report for IEP goals for that period of time indicates XXXX (Exs. J-4, D-34). A review of his report card for the XXXX school year shows that XXXX (Tr. at pp. 728-731; Ex. J-5 at p. 2).
On XXXX, the CSE recommended a full re-evaluation , including XXXX. The
Parent signed consent for the re-evaluation (Exs. D-18, D-19, D-20). The Parent expressed XXXX. Staff expressed XXXX (Ex. J-3 at p. 2). It was determined that the CSE would reconvene for a re-evaluation review/annual review meeting (Ex. J-3 at p.
2).
On XXXX, XXXX (now known as, and hereafter referred to as, XXXX) the District's XXXX, conducted a XXXX (Ex. J-9). XXXX reviewed the Student's previous evaluations and conducted current testing. Results of the XXXX revealed XXXX (Ex. J g at pp. 3-4) . XXXX also XXXX (Ex. J-9 at pp. 4-5). The Parent and the Student's teacher and case manager, XXXX, XXXX. Both XXXX (Ex. J-9 at pp. 5-6).
XXXX's evaluation was also comprised of XX.XX (Ex. J-9 at pp. 6-8).
XXXX concluded that although XXXX. XXXX recommended XXXX (Ex. J-9 at p.
8).
XXXX, a XXXX, conducted XXXX (Tr. at pp. 755, 782-783, 1464-1465; Ex. D-40
at p. 1).
The Parent reported that XXXX (Ex. 0-40 at p. 1).
XXXX, a XXXX (Tr. at p. 1663; Ex. D-43). She also XXXX. XXXX administered
XXXX (Ex. J-7). Results of the XXXX (Ex. J-7 at p. 2). The Student demonstrated
XXXX (Ex. J-7 at p. 3).
XXXX, a XXXX, conducted XXXX. Administration of the XXXX (Ex. D-35 at pp.
1-2). The XXXX measures XXXX. The Student scored in XXXX (Ex. 0-35 at pp. 1-2).
XXXX also conducted XXXX relating to the Student's performance in XXXX (Ex.
D-35 at pp. 2-3).
In the area of XXXX, the Student XXXX (Ex. 0-35 at p. 3).
On XXXX, XXXX conducted XXXX (Exs. J-1, J-6 at p. 1). During the XXXX school year, the Student had XXXX (Exs. P-1, P-J, P-K, P-L, P-M). The evidence shows that XXXX (Tr. at p. 1351 ; Exs. P-Q, J-6). The XXXX (Ex. J-1 at pp. 7-10). Additional
XXXX (Tr. at pp. 771-774; Ex. J-1 at pp. 3-6) .
XXXX identified the XXXX as XXXX (Ex. J-6 at p. 2). XXXX conducted a total of XXXX (Ex. J-6 at pp. 3-5).
On XXXX, the CSE reconvened with the Parents to discuss the results of the Student's Reevaluation and for an Annual Review (Exs. J-2, J-11 , 0-21 ). The CSE reviewed the results of each of the updated evaluations that were conducted. The
Parents XXXX, which was granted (Tr. at pp. 428-429; Ex. J-2 at p. 2). The CSE recommended XXXX (Ex. J-2 at p. 11 ). Supplementary Aids and Services/Program
Modifications/Accommodations included XXXX (Ex. J-2 at pp. 2, 11).
Recommended testing modifications included XXXX (Ex. J-2 at p. 11 ). The
Student was recommended for XXXX (Ex. J-2 at p.12). The IEP also details XXXX (Ex.
J-2 at p. 13).
The IEP includes the following annual goals. In the area of XXXX (Ex. J-2 at pp.
9-10).
The Parents disagreed with the CSE's recommendations but stated they might be interested in XXXX (Exs. J-2 at p. 2; J-11 at pp. 57-58, D-26) . The parties stipulated during the course of the Impartial Hearing that XXXX (Tr. at pp. 1935, 1981).
At a date prior to XXXX, the Parents filed with the District with a XXXX. The
District's Superintendent of Schools, XXXX, acknowledged the Parents' XXXX and enclosed a copy of Section XXXX of the Commissioner's Regulations pertaining to XXXX (Ex. 0-25). The Parents submitted a proposed XXXX which was deemed insufficient by XXXX (Ex. D-25A). The Parents XXXX (Ex. D-258).
The Parents requested the Impartial Hearing on XXXX, and the parties agreed that the Student's status quo placement was XXXX (See Transcript of Telephonic
Conference dated XXXX at pp. 14-15, 56; Ex. 0-29 at p. 2). The evidence shows that XXXX (See Transcript of Telephonic Conference at pp. 56-73, 92; Tr. at pp. 665-667,
1190-1200, 1941, 1945; Exs. D-29 at pp. 1-2, D-45).
XXXX is the District's Director of Pupil Personnel Services. She is New York State certified as a School District Leader, a School Building Leader, and as a school psychologist. Her duties are to oversee the operations of supports for students, primarily special education students, students who are in foster care, and homeless students, as well as English as a new language, and Section 504 compliance (Tr. at pp.
313-315). At the time of her testimony, she was employed by the District for 3 years and spent approximately 10 years in another public school district, serving in the capacities as the Assistant Director of Pupil Personnel Services and as a school psychologist, where she conducted student assessments, classroom observations, and was a member of the Instructional Support Team (the "IST') and the Response to Intervention Team (the "Rtl") (Tr. at pp. 315-317).
XXXX became familiar with the Student through CSE meetings which she chaired, as well as through observations of and interactions with the Student, and discussions with XXXX, the District's Interim Director of Pupil Personnel Services prior to XXXX's arrival and who is currently the District's Supervisor of Special Education.
XXXX first became familiar with the Parents in the beginning of the XXXX school year at XXXX (Tr. at pp. 321-322, 330-331, 335). She attended a CSE meeting for the Student on XXXX, which was held for the purpose of XXXX. She stated that XXXX (Tr. at pp.
338-339, 341-345, 349-351, 548-550; Exs. D-8, D-9, D-10, P-D). XXXX testified that subsequent to XXXX, the Student XXXX (Tr. at pp. 352-353).
An issue was raised as to the XXXX. Some opined that XX.XX (Tr. at pp. 362-
368). There was a difference of opinion at the CSE meeting held in preparation for the Student's annual review for the XXXX school year regarding whether XXXX {Tr. at pp.
369-370) . He was placed in XXXX (Tr. at pp. 370-372; Exs. D-13, D-14, D-15).
During the XXXX school year, XXXX stated that the Student had XX.XX (Tr. at pp. 353-357; Ex. J-1). On cross-examination, XX.XX stated that she did not believe that XXXX (Tr. at pp. 508-510) . Moreover, that the Parent requested XXXX (Tr. at pp. 519-
520, 529-531; Exs. P-Q, J-1 at pp. 7-10). The record reflects that subsequently, on XXXX, the Student XXXX (Tr. at pp. 534-537; Ex. J-1 at p. 6). On XXXX, the Student XX.XX (Tr. at pp. 541-544; Ex. J-1 at p. 5). On XX.XX, during a XX.XX, the Student XXXX (Tr. at pp. 567-574; Ex. J- 1 at p. 4). However, XXXX.
XX.XX testified that the Student's XXXX, XX.XX, told her that the Student expressed to her that XXXX (Tr. at p. 358; Ex. P-M at p. 2). XX.XX stated that the
XXXX. The assessment did not occur until XX.XX (Tr. at pp. 360-361 , 694-696; Exs. J-
1, J-3, J-6)).
XX.XX testified that the results of the re-evaluation confirmed the CS E's ultimate recommendation for XX.XX. The CSE discussed the possibility of XX.XX but determ ined that XXXX (Tr. at pp. 390-391 , 1109-1110).
XX.XX reported that while the Student had opportunities for XX.XX, he did not XXXX (Tr. at pp. 395-396). The recommended program at XX.XX has no XX.XX (Tr. at pp. 465-466). However, should the Student wish to participate in XXXX, that program is located on the XX.XX (Tr. at pp. 397400). XXXX testified that the CSE considered the issue XX.XX when making its recommendation for XX.XX. She stated that XXXX. And although XXXX, his teacher stated XXXXX. On cross-examination, XX.XX confirmed that when the District is considering XX.XX, it is a factor that the CSE considers (Tr. at pp. 401405, 462-463).
XX.XX also testified with respect to the XXXX considered by the CSE in making its recommendations for the Student for the XX.XX school year. They had XX.XX. In addition, the CSE XX.XX, a fact confirmed by XXXX. There was no placement available that was XX.XX but XX.XX (Tr. at pp. 683-684, 687-691 , 892, 894-898; Ex. D-13).
XXXX testified that the Student had difficulty XXXX (Tr. at pp. 408-409). She stated that the CSE discontinued the recommendation for XXXX because the XXXX.
She also visited XXXX and walked through his schedule. She noted that XXXX (Tr. at pp . 409-411 , 636-638). On cross-examination, XXXX confirmed that on XXXX, she received an e-mail from the Parent enclosing XXXX, which stated, in part, her belief that
XXXX. However, the CSE was not reconvened to review the issue of XXXX (Tr. at pp.
616, 618-620; Ex. P-A).
XXXX stated that the CSE discussed the Student's XXXX. The CSE discussed that the Student had XXXX. They also discussed the Student's XXXX (Tr. at pp. 411-
414). She also explained to the Parents that XXXX (Tr. at pp. 702-704). XXXX also testified that a letter from XXXX was not submitted by the Parents to the CSE (Tr. at pp.
697-698; Ex. P-DD).
XXXX also discussed the CSE's recommendation for XXXX (Tr. at pp. 414-415).
At least one of the Parents disagreed with the recommendation (Tr. at p. 415). The f:>arent later clarified that there was no disagreement to the recommendation for XXXX in principle, but that they disagreed with XXXX (i.e., XXXX) and the Parent requested
XXXX. XXXX did not respond and she did not know if any other staff member responded in her absence. The District provided a copy of an e-mail sent by XXXX, the District's Supervisor of Special Education, in response to the Parent's request (Tr. at pp.
4 19-421 , 628-629, 724-725; Exs. P-V, D-26). XXXX stated that it was the CSE's hope that XXXX (Tr. at pp. 424-425). XXXX testified that the Student ultimately did not receive XXXX. He also did not receive XXXX (Tr. at pp. 622-627). However, the issue was discussed at a resolution session and the parties agreed in principle that XXXX (Tr.
at pp. 704-707).
XXXX testified that the CSE also discussed XXXX for the Student, including XXXX (Tr. at pp. 422-423}.
-
XXXX stated that all of the CSE members were in agreement with the recommendations for XXXX with the exception of the Parents, who expressed concerns that XXXX. XXXX encouraged the Parents to speak with the Principal at XXXX when they re-visited the program (Tr. at pp. 425-426). XXXX did not have any concerns with respect to the Student's XXXX. She also reminded the Parents that XXXX. No other
XXXX (Tr. pp. 426-427). The Parent sought to adjourn the XXXX prior making a recommendation for the XXXX school year, stating that the recommendation was not expected and he needed time to process the recommendation and reconvene at a later date. XXXX declined to do so, since she believed that the CSE had sufficient information to make the recommendation , the recommendation was discussed at length at prior CSE meetings, the end of the school year was upon them, and the CSE needed to make a recommendation for XXXX (Tr. at pp. 427-428).
XXXX testified that the triennial evaluations indicated the need for XXXX. In addition, he was not XXXX, he was XXXX, and he expressed to XXXX. The CSE took the Parents' input into consideration in the decision-making process and ultimately recommended placement for the Student at XXXX, which XXXX believed was an appropriate recommendation (Tr. at pp. 442-444; Exs. D-34,J-4. J-5 at p. 2).
XX.XX testified that she was employed by the District as XX.XX. She works at the District's XX.XX. Her main duties include XX.XX. She also writes reports in connection with re-evaluations and initial referrals (Tr. at pp. 751-754).
XX.XX is familiar with the Student in her role as XXXX. She met the Student as part of XX.XX. In working with the Student, she provided XX.XX. XXXX was concerned that the Student XXXX (Tr. at pp. 755-758) . On cross-examination, XXXX acknowledged that the XXXX (Tr. at p. 806). After having reviewed XXXX letter at the Impartial Hearing, she stated that XXXX (Tr. at pp. 868-869) . She thereafter clarified that based on the information that was available to the CSE during the XXXX, school year she supported XX.XX (Tr. at pp. 898-902).
The Student told XX.XX that he really struggled with XX.XX. XX.XX spoke with his teachers and XX.XX. She saw that the Student was XX.XX (Tr. at pp. 759-760). The
Student was XXXX. XX.XX reassured the Student that XX.XX (Tr. at pp. 760-761 , 893-
894).
XXXX spoke with the Student about XXXX (Tr. at pp. 762-763) .
With respect to the XXXX (Tr. at pp. 763-767).
XXXX testified that the first CSE meeting that was convened during the XXXX school year occurred in XX.XX, for a program review because of concerns about the Student's XX.XX (Tr. at pp . 768-771).
XX.XX stated her belief that the Student's XXXX. However, the Student's XX.XX
(Tr. at pp. 771-774, 783-784).
XX.XX recalled that in meetings during the XX.XX school year, prior to his annual review for the XXXX school year, the CSE explored XXXX (Tr. at pp. 779-781, 784-
785). On cross-examination, XXXX testified to her opinion that the Student XXXX, a XXXX (Tr. at pp. 854-855). On re-direct examination, she stated her belief that XXXX's
XXXX (Tr. at pp. 873-874, 886-890).
XXXX stated that she recommended XXXX for the XXXX school year to those which he had during the XXXX school year, because XXXX. In fact, the Student did not XXXX (Tr. at pp. 786-789; Ex. D-34).
XX.XX testified that on one occasion the Student said XX.XX (Tr. at pp. 874-877).
XXXX testified that XX.XX sought her input in the XXXX (Tr. at pp. 879-882).
XXXX, a certified XXXX, provided direct testimony by affidavit and was present for cross-examination by the Parent and to provide direct testimony on behalf of the Parents (Tr. at pp. 924, 926; Ex. D-27 at p. 1). She was part of the CSE that made recommendations for the Student for the XXXX school year. She worked with the student's XXXX, with XXXX , and with XXXX, to assist with XX.XX (Ex. D-27 at pp. 2-3).
XX.XX provided assistance in XXXX (Ex. D-27 at p. 3). She also participated in XXXX.
The purpose of the XXXX was to XXXX (Tr. at pp. 940-948; Exs. D-27 at p. 4, P-D, P-I,
P-J , P-K, P-L, P-M, P-O).
XXXX testified that in her opinion, at no time during the XXXX school year did the Student XXXX (Ex. D-27 at pp. 4-5), despite the Parents' requests that XXXX (Tr. at pp.
1134, 1138-1139; Exs. D-38, P-Q, P-Y). She also testified to her belief that, even though the Student XXXX (Tr. at pp. 1034-1'035; Ex. J-1 at pp. 7-10). The evidence reflects that XXXX (Tr. at pp. 1036, 1044-1046; Ex. J-1 at pp. 3-6). At a CSE meeting held on XXXX, the CSE determined to recommend, and XXXX ultimately conducted
XXXX. Although the Student's triennial evaluation was not due until XXXX, the CSE decided to conduct the re-evaluation early to insure that it had sufficient data to inform and ensure appropriate recommendations for the Student's XXXX (Exs. J-3 at p. 2, J-6,
0-27 at pp. 7, 9) . XXXX stated that as part of the XXXX, she conducted XXXX (Tr. at pp. 1115-1116).
XXXX testified that the results of the Student's XXXX evaluation supported a recommendation to XXXX (Ex. 0-27 at pp. 8, 10-11). On cross-examination, XXXX confirmed that the Student had XXXX (Tr. at pp. 1055-1057, 1061-1063, 1077; Ex. J-11
at p. 15).
XXXX stated her belief that the recommended XXXX (Tr. at pp. 1082-1085).
XXXX stated that all of the CSE members were in agreement with the recommendation for placement at XXXX, with the exception of the Parents (Ex. 0 -27 at pp. 9-10). On cross-examination, XXXX stated that at the time of the CSE meeting, she was familiar with XX.XX; that it would XXXX (Tr. at pp. 1067-1069, 1086-1087, 1105-1106).
XXXX confirmed that, although the Student was recommended for XXXX (Tr. at pp. 1092-1097; Ex. 0-15 at p. 1). She also testified that XXXX (Tr. at pp. 1141-1142).
However, XXXX testified that XXXX (Tr. at pp. 771-774; Ex. J-11 at p. 17). XXXX also testified that XXXX (Tr. at pp. 1150-1155).
XXXX was one of the Student's XXXX (i.e., XXXX) at the XXXX. He was also his case manager (Tr. at pp. 1265, 1267-1268). XXXX worked collaboratively with XXXX and XXXX in regard to the Student. Prior to his entry into XXXX, XXXX reviewed the Student's XXXX. There was also a team meeting held XXXX (Tr. at pp. 1270-1271).
XXXX testified that in XXXX (Tr. at pp. 1271-1273). The Student participated in XXXX (Tr. at pp. 1274-1275).
The Student loved XXXX (Tr. at pp. 1275-1276). In XXXX, the Student was interested in XXXX (Tr. at pp . 1276-1281).
The XXXX was XXXX. The teacher XXXX (Tr. at pp. 1281-1283).
XXXX testified that the only XXXX (Tr. at pp. 1284-1285). He also testified that XXXX (Tr. at pp. 1289-1290). XXXX stated that the CSE did not recommend the XXXX (Tr. at pp. 1293-1294). On cross-examination, he testified that he believed that the issue of the need for XXXX (Tr. at pp. 1341, 1357). Moreover, having read the XXXX submitted by the Parents at the Impartial Hearing, it did not change his opinion with respect to XXXX (Tr. at pp. 1338-1342; Ex. P-A). He testified that XXXX (Tr. at p. 1343;
Ex. J-2A). With respect to the need for XXXX (Tr. at pp. 1344-1350; Exs. J-4 at p. 2; P
H at p. 2).
XXXX stated that he had frequent drscussions with the Student's XXXX regarding the Student's needs. Academic goals included XXXX (Tr. at pp. 1297-1300).
XXXX testified that at the XXXX. Rather, XXXX. XXXX believed that the Student could have used more assistance in XXXX (Tr. at pp. 1301-1303).
With respect to XXXX, the Student was XXXX (Tr. at pp. 1303-1307).
L-..----~--------- Ul-
XXXX testified that the Student XXXX (Tr. at pp. 1308-1309). XX.XX also testified regarding the Student's XX.XX (Tr. at pp. 1312-1314; Ex. J-5 at p. 2).
XXXX also stated that in XXXX, the Student XX.XX (Tr. at pp. 1314-1315).
On cross-examination, XXXX reviewed XXXX (Tr. at pp. 1361-1371 , 1379-1381 ;
Ex. J-1).
XXXX testified that the XXXX (Tr. at pp. 1425-1430). He also stated that use of a XXXX (Tr. at pp. 1431-1432).
XXXX is the XXXX at the XX.XX program, which consists of XXXX (Tr. at pp.
1526-1531, 1541-1543).
XXXX stated his familiarity with the Student upon his initial referral to XXXX in XXXX, at which time XX.XX. The Student was subsequently recommended for XX.XX
(Tr. at pp. 1530-1532).
XXXX described XX.XX (Tr. at pp. 1534-1540, 1601).
X.XXX acknowledged on cross-examination that XX.XX (Tr. at pp. 1602-1605; Ex.
J-4 at p. 2). However, XXXX also stated that he was not concerned that the CSE XX.XX
(Tr. at pp. 1605-1607, 1620-1623; Ex. 0-39 at pp. 3-4).
XX.XX testified that he was aware that the Student XXXX, and stated that XXXX (Tr. at pp. 1546-1549).
XXXX described XX.XX (Tr. at pp. 1549-1550). XXXX are provided on XXXX (Tr.
at pp. 1551-1554).
XXXX testified that XXXX has XXXX (Tr. at pp. 1554-1560).
Opportunities for XXXX at XXXX during the school day include during XXXX (Tr.
at pp. 1560-1561 ).
XXXX has XXXX to meet student needs regarding XXXX (Tr. at pp. 1565- 1566).
There is an opportunity for the Student to XXXX (Tr. at pp. 1591-1592). On cross examination, XXXX stated that there are some students who attend XXXX and also
XXXX (Tr. at p. 1598).
XXXX testified that based on his review of the Student's educational records, he was XXXX (Tr. at pp . 1594-1595, 1599). On cross-examination, XXXX confirmed that XXXX (Tr. at p. 1597). Staff at XXXX work hard at XXXX (Tr. at pp. 1600-1601).
On cross-examination, XXXX acknowledged that one of the Parents asked questions about XXXX through an e-mail, but that the information which was sought by the Parent was too complicated to be responded to in an e-mail, and he offered to meet with the Parent in person or communicate through the telephone to answer her questions. He testified that he would have made time for a parent to come and meet him (Tr. at pp. 1615-1618; Ex. P-FF).
XXXX is a self-employed XXXX, who contracts with the District for the provision of XXXX. XXXX is a New York State XXXX. She provided XXXX (Tr. at pp. 1662-1667,
1670).
XXXX conducted the Student's triennial XXXX evaluation in XXXX and participated at the Student's annual review for the XXXX school year. She continued to recommend XXXX (Ex. J-2 at pp. 2, 11). She stated that her recommendation with respect to the XXXX is due to XX.XX (Tr. at pp. 1671-1676).
XXXX testified that she worked with the Student on XXXX (Tr. at pp. 1677-1681).
She did not see XXXX (Tr. at pp. 1681-1683, 1761).
XX.XX also testified that she did not recommend XXXX because during the time that she XXXX (Tr. at pp. 1683-1687).
XXXX stated that she saw the Student XXXX (Tr. at pp. 1687-1688).
XX.XX stated her agreement with the CSE's recommendation for placement of the Student at XXXX. She stated that she XXXX (Tr. at pp. 1683-1690, 1753-1754,
1760-1761).
She also listened at the CSE meeting to reports of the Student's progress in XXXX (Tr. at pp. 1691-1692, 1697-1704).
On cross-examination, XXXX stated that the Student's XXXX (Tr. at pp. 1712- 1714). XXXX testified that the Student might benefit in XX.XX (Tr. at pp. 1717-1719,
1721-1724, 1750-1751, 1753, 1762).
XXXX testified that she believed that the Student would XX.XX (Tr. at pp. 1735-
1737).
XXXX testified to her belief that the Student would initially have difficulties XXXX and XX.XX (Tr. at p. 1758).
XXXX is the XX.XX. She has been employed in that capacity for 5 years. She possesses New York State certification as XXXX (Tr. at pp. 1770-1772).
XXXX became familiar the Student when he XXXX. She was aware that the Student received XXXX (Tr. at pp. 1772-1775). XX.XX stated that there were staffing changes made XX.XX (Tr. at pp. 1775-1776). She confirmed that the Student received all of his required XXXX. She did not review whether the Student received XXXX during the XXXX {Tr. at pp. 1779-1780, 1782).
XXXX has been employed by the District as a XXXX. She possesses New York State certification as XXXX. XX.XX became familiar with the Student when he was assigned to her in the fall of the XXXX school year (Tr. at pp. 1788, 1791). XXXX testified that the Student participated in XXXX. She did not know why the Student was not scheduled for XXXX from the beginning of the XXXX school year (Tr. at pp. 1794- 1798; Ex. P-F).
XXXX testified that she has never interviewed the Student and she has not observed him in a classroom setting. She stated that her office shares a common waiting area with XXXX's office, and she and the Student XXXX. Her communications were mainly with the Student's mother, related to XXXX (Tr. at pp. 1803-1805). She had access to the Student's XXXX. She also consulted with XXXX and with other members of the CSE regarding the Student. She stated that the Student was XXXX (Tr.
at pp. 1808-1809). XXXX also did not feel the need to reach out to the Parents with ' respect to the Student's XXXX (Tr. at pp. 1812-1813).
XX.XX stated her familiarity with the CSE's recommendations for the XX.XX school year with respect to the XXXX (Tr. at pp. 1818-1821, 1833, 1840-1841}.
XX.XX stated her belief that the Student can XX.XX, in that it is a goal of the program and he would have an opportunity to XXXX (Tr. at pp. 1823-1825).
XX.XX testified regarding the amount of XXXX which the Student received during the XXXX and XXXX school years. XXXX described the Student's Attendance
Summary for XXXX. The report is derived from IEP Direct and the service providers enter information regarding the sessions (Tr. at pp. 1896-1897; Ex. D-42). If a staff member is absent on a particular day when a student is scheduled to receive services, students are given compensatory services. However, when school is closed on a particular day or if a student is absent on a day when he or she is scheduled for service, no compensatory services are provided (Tr. at p. 1903). XXXX testified with regard to how to interpret the attendance summary. She stated that XXXX (Tr. at pp. 1903-1906,
1921-1922; Ex. D-42). Put another way, in terms of the number of minutes of XXXX to which the Student was entitled during the XX.XX school year, XXXX testified, and the documents reflect, that the Student was entitled to XXXX. The number of minutes which the Student actually received during the XXXX school year was -
Therefore, he received an extra 20 minutes of service during the XXXX school year than he was mandated to receive pursuant to his IEP (Tr. at pp. 1922-1926; Ex. D-43). The documents do not account for any services which the Student was mandated to receive for the XXXX, and it was stipulated on the record that XXXX (Tr. at pp. 1927-1928,
1935, 1981). XXXX testified that the Student was recommended to receive XX.XX during XXXX at XX.XX, but acknowledged that pendency was in place with respect to that recommendation. She also stated that the District did not have XXXX (Tr. at pp.
1982-1984).
Although the Student was scheduled for XXXX (Tr. at pp. 1916-1918; Ex. 0-44}.
XXXX testified that she had discussions with XXXX and with XXXX regarding the manner in which make up sessions would be provided and after reviewing the Student's schedule, his classes, the provider's availability and other considerations, it was determined that certain of the Student's sessions would be in excess of 30 minutes (Tr.
at pp. 1947-1948, 1950- 1951, 1984-1985; Ex. 0-43). On cross-examination, XXXX stated that she did not know the effect, if any, the increased XXXX sessions had on any of his other academic classes, but to her knowledge, the longer sessions provided during the XXXX school year did not negatively impact the Student. She did note, however, that most of his XXXX occurred during either XXXX (Tr. at pp. 1951-1957,
1985- 1998; Exs, 0-43, D-50, 0 -51). On XXXX, the service was provided during XXXX.
On XXXX, the service was for an hour, which spilled into XXXX. However, XXXX testified that XXXX (Tr. at pp. 2000-2003, 2005-2006, 2008-2010; Exs. D-44, D-50, 0-
51).
With respect to the XXXX, if any, which the Student received during the time of his attendance at XXXX, pursuant to pendency, the record reflects that the Student attended XXXX on XXXX, before his Parents XXXX (Tr. at p. 1941, 1945; Exs. 0-25, D-
25A, 0 -258, 0-45). XXXX testified that the Parents did not XX.XX (Tr. at pp. 1943-1944;
Exs. D-46, 0-47). On cross-examination, XX.XX testified that her office sends home a letter with the annual IEPs for any student who has been recommended for XXXX (Tr.
at pp. 1960-1966, 1973, 1975; Exs. 0-46, D-47, 0-48, D-49).
XXXX confirmed that although the Student received XXXX during the XXXX, it was not in accordance with his IEP, which provided for XXXX (Tr. at pp. 1687-1688,
1978-1981 ; Ex. J-12).
CONCLUSIONS OF LAW
Two purposes behind the Individuals with Disabilities Education Act ("IDEA")
[20 U.S.C. Sections 1400-14821 are (1) 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 (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C.
Section 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S.Ct. 2484, 2491 (2009); Board of Education v. Rowley, 458 U.S. 176, 206-207 (1982)).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley. 458 U.S. at 206-207; Cerra v. Pawling Central School District, 427 F.3d 186, 192 (2d Cir. 2005)]. While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA [A.C. c. Board of Education of the Chappagua Central School District, 553 F.3d 165 (2009); Grim v. Rhinebeck Central School District, 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Central School District, 2007 U.S. Dist. LEXIS 9873
(S.D.N.Y. 2007); see also O'Toole v. Olathe District School Unified School District No.
233, 144 F.3d 692, 701 (10th Cir. 1998)]. Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits [20 U.S.C. Section 1415(f)(3)(E)(ii); 34 C.F.R. Section
300.513(a)(2); 8 N.Y.C.R.R. 200.5(j)(4)(ii); Matrejek v. Brewster Central School District, 471 F.Supp.2d 415,419 (S.D.N.Y. 2007), affd 293 Fed. Appx. 20, 2008 U.S. App.
LEXIS 17947].
The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE [20 U.S.C. Section 1415(f)(3)(E)(i); 34 C.F.R. Section 300.513]. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" [Rowley, 458 U.S. at 203]. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" [Walczak v. Florida Union Free School District, 142 F.3d 119, 130; §.ee Rowley. 458 U.S. at 189]. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving· parents" Walczak, 142 F.3d.at 132, quoting Tucker v. Bay
Shore Union Free School District, 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted); .
see Grim, 346 F .3d at 379].
Additionally, school districts are not required to "maximize" the potential of students with disabilities [Rowley. 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132]. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and ... affords the student with an opportunity greater than mere 'trivial advancement'" [Cerra, 427 F.3d 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see E,erricelli, 2007 U.S. Dist. LEXIS 9873, at *46]. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" [Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997}; ~ Rowley, 458 U.S. at 192].
The student's recommended program must also be provided in the least restrictive environment ("LRE"). In determining an appropriate placement in the LRE, the IDEA requires that children with disabilities be educated to the maximum extent appropriate with children who are not disabled and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily [20 U.S.C. Section 1412(a)(5)(A); 34 C.F.R. Sections
300.114(a)(2)(i), 300.116(a)(2); 8 N.Y.C.R.R. Sections 200.1(cc), 200.6(a)(1); see P. v.
Newington Board of Education, 546 F.3d 111, 114 (2d. Cir. 2008); Gagliardo v.
Arlington Central School District, 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; E.G. v. City School District of New Rochelle, 606 F.Supp.2d 384, 388 (S.D.N.Y.
2009); Patskin v. Board of Education, 583 F.Supp.2d 422, 428 (W.D.N.Y. 2008)].
Also, a FAPE must be available to an eligible student "who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade" [34 C.F.R. Section
300.101(c)(1) ; 8 N.Y.C.R.R. 200.4(c)(5)].
The proper inquiry as to the appropriateness of an IEP is whether the IEP was reasonably calculated to confer educational benefit at the time the CSE devised the IEP. Antonaccio v. Board of Education of the Arlington Central School District, et. al. , 281 F.Supp.2d 710, 724-725 (S.D.N.Y. 2003); Application of the Board of Education of
Harrison Central School District, Appeal No. 04-034.
The IDEA pennits education in more segregated settings such as dedicated special education classrooms, the home, hospitals and private institutions 'when the nature or severity of a child's disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily' [Viola v.
Arlington Central School District, 414 F.Supp.2d 366,376 (S.D.N.Y. 2006); Board of Education of Poughkeepsie City School District v. O'Shea, 353 F.Supp.2d 449,454
(S.D.N.Y. 2005}lquotingWalczak, 142 F.3d 119,122 (2d Cir.1988)].
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs [34 C.F.R. Section
300.320(a)(1); 8 N.Y.C.R.R. Section 200.4(d)(2)], establishes annual goals related to those needs (34 C.F.R. Section 300.320(a)(2)(i); 8 N.Y.C.R.R. Section 200.4(d)(2)(iii)], and provides for the use of appropriate special education services [34 C.F.R. Section
300.320(a)(4); 8 N.Y.C.R.R. Section 200.4(d)(2)(v); see Application of the Department of Education , Appeal No. 07-018; Application of a Child with a Disability, Appeal No.
06-059; Application of the Department of Education, 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]. Subsequent to its development, an IEP must be properly implemented [8 N.Y.C.R.R. Section
200.4(e)(7); Application· of a Child with a Disability, Appeal No. 08-087).
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 [Education Law Section
4404(1)(c)].
In R.E. et.al. v New York City Department of Education, 694 F.3d 167 (2d Cir.
2012), the Court held that courts must evaluate the adequacy of an IEP prospectively as of the time of the parents' placement decision and may not consider "retrospective testimony" regarding services not listed in the IEP. Jn the R.E. case, parents challenged the use of testimony by Departmental personnel about the educational program the student would have received if he or she had attended public school, which the Court termed "retrospective testimony." The Second Circuit held that retrospective testimony about what would have happened if a student had accepted the Department's proposed placement must be limited to testimony regarding the services described in the student's IEP. Moreover, such testimony may not be used to materially alter a deficient written IEP by establishing that the student would have received services beyond those listed in the IEP. !Q.., at 174-175. In addition, testimony regarding state-offered services may only explain or justify what is listed in the written IEP. Testimony may not support a modification that is materially different from the IEP, and thus a deficient IIEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP in a Burlington/Carter proceediing1. 19k. 185-186,.
The Second Circuit did, however, reject a rigid ''four corners"' rule prohibiting testimony that goes beyond the face of the IEP. While testimony tha1t materially al~rs, the written plan is not permitted, testimony may be received that expl aiins or justifies U-ie services
1
listed in the IEP. kL. at 186.
State regulations provide that the age range of students in a special education class in a public school who are less than 16 years of age shall not exceed 36 months
[8 N.Y.C.R.R. Section 200.6(h)(5)}. State regulations also require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs [8 N.Y.C.R.R Section 200.1(ww)(3)(ii1),
200.6(a)(3), (h)(3); see Walczak, 142 F.3d at 133 (upholding a di strict"s determinati'oni toi
1
group a student in a classroom with students of different in1teJleciua11, social, and behavioral needs, where sufficient similarities existed);, Application of the XX.XX fo.r
Review, Appeal No. 11-025 (April 7, 2011). State reg1ufaUons fuirther pmvide that determinatrons regarding the size and composition of a speciial class shaU be based on the similarity of the individual needs of the students according to: leve-ls of academic or educational achievement and learning characteristics.; levels of social develoipme.nt; levels of physical development; and the management needs of the students in the classroom [8 N.Y.C.R.R. 200.6(h)(2); see 8 N.Y.C.R.R. 200.1 (ww)(3)(i)(a),- (d)}. The social and physical levels of development of the individual1students shall be considered to ensure beneficial growth to each student, although nei~her should be a sole basis for1 determining placement [8 N.Y.C.R.R. Section 200.6(a)(3)(ii), (iii}J. Further, the management needs of students may vary and the modifications., adaptations and other resources are to be provided to students so that they do not detract from the opportunities of the other students in the class [8 N.Y.C.R.R. 200.6(a)(3)(iv); Application of the XXXX for Review, Appeal No. 11-025 (April 7, 2011 )].
In order to establish that a student has been properly grouped , it iis permissible to demonstrate age ranges or similarity of abilities and needs through the use of a class profile or by the testimony of a witness who is familiar w itln the children in the classroom in question (see Application of the· Board of Education, Appeal No. 08-0 118 (May 19 [1]
,
2008); Application of a Child with a Disability, Appeal No. 07-068 (August 29, 2007); Application of the XXXX for Review, Appeal No. 11-025 (Aprill 7, 2011 )].
The Parents raise a number of issues in their Due Process Complaint Notice (Ex.
IHO-3), and I will address each issue in seriatim.
The CSE also had XXXX (Exs. D-28, P-Z at p. 3); XXXX (Ex. P-Z at pp. 3-4).
In addition, the CSE had XXXX (Ex. P-Z at p. 5). An administration of the XXXX showed XXXX (Ex. P-Z at p. 6).
The evidence also shows that the Student's needs were identified on the IEP for the XXXX school year, based on those evaluations, as follows: XXXX (Ex. P-Z at pp. 6-
7).
I find that the IEP for the XXXX school year accurately reflects the results of evaluations to identify the Student's needs.
In addition, the evidence shows that the IEP contained annual goals related to the Student's needs. Specifically, he had XXXX (Ex. P-Z at pp. 8-10).
I find that the IEP for the 2016/17 school year establishes annual goals relating to the Student's needs.
Finally, the evidence shows that the IEP provided for the use of appropriate special education services, including the following: XXXX (Ex. P-Z at pp. 10-12).
The record reflects that the CSE convened with the Parents on multiple occasions during the XXXX school years to discuss the Student's progress and functioning in his programs at XXXX (Exs. P-I through P-M, P-R, P-AA, P-EE, D-2 through 0 ~18, D-20, D-21, D-34, J-3, J-4, J-5 at p. 2, J-13).
In sum, I find that the IEP for the 2016/17 school year provided the Student with an appropriate program and placement which was reasonably calculated to confer educational benefit in the LRE, and took into account the Parents' desire to XXXX.
2. Failure to offer an appropriate program and placement in the least restrictive environment for the XXXX school year which adequately addresses [the Student's] academic, physical, social and emotional needs.
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the Student's needs. The evidence shows that the CSE had the following evaluations before it at the time it made its program recommendations for the XXXX: XXXX.
The record reflects that during the XXXX school year, the Student XXXX (Tr. at
' pp. 353-357, 534-537, 541-544, 567-574; Ex. J-1 at pp. 3-10). He also XXXX (Tr. at pp.
358, 874-876, 1162-1165). No one referred the case back to the CSE to discuss XXXX.
A district must insure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. See 20 .
U.S.C. § 1414(b)(3(B); 34 C.F.R. § 300.304(c)(4); 8 N.Y.C.R.R. § 200.4(b)(6)(vii). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified . See 34 C.F.R. § 300.304(c)(4); 8 N.Y.C.R.R. § 200.4(b)(6)(ix); Fort Osage R-1 Sch. Dist. v. Sims, 641
F.3d 996, 1004 (8th Cir. 2011 ); Application of a Student with a Disability v. New York City Department of Education, Decision No. 13-177 at p. 8. I find that the CSE's failure to arrange for XXXX constrtuted a denial of FAPE. The evidence shows that XXXX (Tr.
at pp. 773-775; Exs. J-2 at p. 2). As a result, teachers permitted XXXX (Tr. pp. 1398- 1403). r find that the District's failure to XXXX ultimately resulted in a loss of educational benefit to the Student.
'
The evidence shows that the Student's needs were identified on the IEP for the XXXX school year based on the evaluations that were conducted as part of the triennial evaluation, as follows: XXXX (Tr. at pp. 1061-1062, 1718-1719, 1722, 1753; Ex. J-2 at
p. 5); in the area of XXXX (Ex. J-2 at p. 5).
XXXX, the Student expressed XXXX (Ex. J-2 at p. 6).
XXXX, he required XXXX (Ex. J-2 at pp. 2, 6-7, 11 ).
His XXXX needs included XXXX (Ex. J-2 at p. 7). I find that the Student's IEP for the XXXX accurately reflects the results of evaluations to identify his needs.
The IEP for the 2017/18 school year also establishes annual goals related to his needs (See IHO Decision at pp. 28-29 supra; Ex. J-2 at pp. 9-10).
The IEP for the XXXX school year also provides for the use of appropriate special education services. The evidence shows that the Student XXXX (Tr. at pp.
1314-1315). The XXXX program XXXX (Tr. at pp. 1284-1285). This Student was recommended for placement in XXXX (Tr. at pp. 1526-1531, 1541-1543; Ex. J-2 at pp.
1, 11). XXXX would provide him with XXXX (Tr. at pp. 1565-1566). He would have also
XXXX (Tr. at pp. 1600-1601).
The evidence shows that had he entered the XXXX program for the XXXX school year, as contemplated by the CSE, the Student would have been XXXX (Ex. 0-37). He would have been placed in XXXX (Ex. D-39). See 8 N.Y.C.R.R. §§ 200.6(a)(3),
200.6(h).
I also find that XXXX constituted the LRE in which to educate the Student, given his XXXX. The evidence shows that the Student XXXX and that was one factor which the CSE considered in making its recommendations for the Student (Tr. at pp. 400-406,
462-464, 758). He expressed that XXXX (Tr. at pp. 462-463, 758). Although there were XXXX (Tr. at pp. 762-763). However, the Student enjoyed XXXX (Tr. at pp. 395-
396, 755-758, 762-763; Ex. P-Z at p. 7). In addition, the Student's XXXX all reported that based on their conversations with the Student and their interactions with him, they
· believed XXXX (Tr. at pp. 400-405, 758-760, 1689-1690). In sum, the evidence shows that the nature and severity of the Student's disability is such that XXXX.
I find that the CSE's recommendation for placement of the Student in XXXX at XXXX , together with the recommended XXXX and other accommodations as set forth in the IEP was reasonably calculated to confer educational benefit in the LRE for him for the XXXX school year.
3. Failure to offer methodologies and/or strategies based on peer-reviewed research .
. Pursuant to 8 N.Y.C.R.R. § 200.4(d)(2)(v)(b) , the recommended special education programs and services shall, to the extent practicable, be based on peer reviewed research. The evidence shows that in XXXX, XXXX provided the research based and peer-reviewed technique of XXXX to the Student (Tr. at p. 756).
XXXX testified that the teaching methodologies andl strategies u1sed with the Student in XXXX were based on peer-reviewed research,. such as. XX.XX (Tr. at pp.
1425-1430}. He also stated that use of XXXX (Tr. at pp,. 143,1-1432)..
XXXX confirmed that all of her work with the Student on XXXX is. resea.rch based. She stated that the XXXX are all research-based (Tr. at pp·. 16:86-1687).
In sum, I find that the special education programs and liellated seNices provided to the Student were, to the extent practicable, based on peer-reviewed research.
4. Failure to offer appropriate XXXX for the XX.XX and XXXX school1years.
It is unclear from the face of the Due Process Complaint Notice as to whether the Parents are alleging that the duration and frequency of XXXX. recommended for the Student for the XXXX school years are inappropriate, or whether the al!eged failure to provide the recommended duration and frequency of X.XXX during1the XXXX is at issue· (Tr. at pp. 1928-1935; Ex. IHO-3 at pp. 3, 5). In light of the fact that the complaint was drafted by an attorney who no longer represents the Parents and that the Parents, could not clarify the issue at the Impartial Hearing, I will address each issue.
Regarding the duration and frequency of XXXX recommended for the Student for the XX.XX school yea.rs, X.XXX testified that her recommendation was based,, in part, on XXXX (Tr. at pp. 1671-1676). She also did not see XXXX (Tr. at pp. 168.1-1683). The evidence shows that the Student struggled greatly wi1th XXXX, to the· point where the CSE considered XXXX (Ex. J-2 at p. 8). I also find that XXXX (Tr. at p. 1565)..
p'"
With respect to the alleged failure to provide XXXX, the evidence shows that any services which the Student missed XXXX were made up (See IHO Decision at pp. 66-
69 supra). However, the parties stipulated that the Student did not receive any XXXX as mandated in his IEP or for the XXXX as part of pendency (Tr. at pp. 621-622, 1935,
1981).
The District asserted that the Parents XXXX (Tr. at pp. 622-624; Exs. 0-46, 0-
47). Prior to 2012, Education Law§ 7901 expressly stated that XXXX (L. 1993, ch . 146,
Educ. Law§ 7901), However, in 2011 , the State Legislature amended Education Law§
7901, effective February 3, 2012, to state that XXXX (Educ. Law§ 7901 [emphasis added) ; see L. 2011, ch . 460). The circumstances under which XXXX is now required for the provision of XXXX is specific to XXXX. See Application of the Board of Education of the Dryden Central School District, Decision No. 18-002 at pp. 18-20).
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See Wenger v. Canastota, 979 F.Supp. 147 (N.D.N.Y. 1997). The Second Circuit has held that compensatory education may be awarded to students who are ineligible for services under the IDEA by reason of age or graduation only if the district committed a gross violation of the roEA which resulted in the denial of, or exclusion from, educational services for a substantial period of time.
See Doe v. E. Lyme Board of Education, 790 F.3d 440, 456 n. 15) (2d Cir. 2015);
French v. New York State Dept. of Educ., 476 Fed. App'x 468, 471 (2d Cir. 2011);
Somoza v. New York City Dept. of Educ. , 538 F.3d 106, 109 n. 2, 113 n.6 (2d Cir.
2008); Mrs. C. v. Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990);Burr v. Ambach, 863 F.2d 1071, 1078-1079 (2d Cir. 1988), affd on recon. sub nom, Burr v. Sobol, 888 F.2d 258 (2d Cir. 1989). However, compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA [See 20 U.S.C . §§ 1401(3), 1402(a)(1)(B}; Educ. Law§§ 3202(1}; 4401(1); 4402(5)). The purpose of such an award of compensatory education is to provide an appropriate remedy for denial of a FAPE (See E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014) (holding that compensatory education is a remedy designed to "make up for" a denial of FAPE); P. v. Newington Board of Education, 546 F.3d 111 , 123 (2d Cir. 2008); see also Lyme, 790 F.3d at 456; Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (holding that, in fashioning an appropriate compensatory education remedy, ''the inquiry must be fact-sufficient, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"); Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (See Newington, 546 F.3d at 12:}; see also Draper v. Atlanta lndep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "compensatory awards should place children in the position they would have been in but for the violation of the Act"); Bd. of Educ. of Fayette County v. l.M., 478 F.3d 307, 316 (6th Cir. 2007) (holding that ''a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address (the student's) educational problems successfully"); Reid, 401 F.3d at 518 (holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violation of IDEA"); Application of a Student with a Disability v. Board of Education of the North Syracuse
Central School District, Decision No. 17-068 at p. 14.
In this case, it is undisputed that as part of the XX.XX, he should have received
XXXX. In addition, pursuant to pendency, during the time he attended XX.XX, the Student was entitled to receive XXXX (See Ex. J-12 at pp. 1, 8-10). . I find the District's failure to arrange for the provision of XX.XX caused a deprivation of educational benefits to the Student and therefore violated his right to FAPE.
To make up for the denial of FAPE, I hereby award the Student compensatory education for XXXX which he should have received in XX.XX, in the total amount of
XX.XX sessions lasting 30 minutes each of XXXX, together with XX.XX sessions lasting
30 minutes each of XX.XX.
5. Failure to offer an appropriate XXXX.
Under the IDEA, to the extent appropriate for each individual student, an IEP must focus on providing XX.XX (20 U.S.C. § 1401(34); see Educ. Law§ 4401(9); 34 C.F.R. 300.43; 8 N.Y.C.R.R. § 200.1(fff)). Accordingly, an IEP for a student XX.XX [20 U.S.C. § 1414(d)(1)(A)(i)(VIII); 34 C.F.R. 300.320{b); 8 N.Y.C.R.R. § 200.4(d)(2)(ix)]. An IEP must also XXXX [20 U.S.C. §1401(34)(B)-(C); 8 N.Y.C.R.R. § 200.1(fff)]. It has been found that "a deficient XX.XX" that will only rise to a denial of FAPE if it impeded the student's right to FAPE, significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of FAPE to the student, or caused a deprivation of educational benefits [M.Z v. New York City Dept. of Educ., 2013 WL 1314992, at •5, •9 (S.D.N. Y. March 21 , 2013, citing Klein lndep. Sch. Dist. v.
Hovem, 690 F.3d 390, 398 (sth Cir. 2012) and Bd. of Educ. v. Ross, 486 F.3d 267, 276
(7th Cir. 2007); see A.O. v. New York City Dept. of Educ., 2013 WL 1155570, at *11 (S.D.N.Y. March 19, 2013)].
The evidence shows that the Student's XX.XX. As such, at the time the Student's annual review was conducted for the XX.XX school year on XXXXX, the Student was XXXX (Ex. 0-15 at p. 1). At the time of the Student's annual review for the XXXX school year, on XX.XX he was XXXX (Ex. J-2 at p. 1). Pursuant to State regulations,
XXXX. See 8 N.Y.C.R.R. § 200.4(d)(2)(ix). Pursuant to Federal regulations, XX.XX.
See 34 C.F.R. 300.320(b). I find that the District was not mandated to provide XXXX.
I note, however, that XX.XX was discussed at the annual review (Tr. at pp. 422-
423). In the XXXX section of the Student's IEP for the XX.XX school year, the IEP provides XXXX (Ex. J-2 at p. 13).
6. Failure to conduct a formal XXXX and XXXX.
Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. Among the special factors XX.XX (20 U.S.C. Section 1414(d)(3)(8)(i); 34 C.F.R. Section 300.324(a)(2)(i); see 8 N.Y.C.R.R. Section 200.4(d)(3)(i); see also E.H. v. Board of Education, 361 Fed. App'x 156, 160-161 , 2009 WL 3326627 (2d Cir. October 16, 2009); AC. v. Board 01f Education, 5153 f .3dl 165, 172 (2d Cir. 2009); J.A. v. East Ramapo Central School Districi,1603 f. Supp.2d 684, 689 (S.D.N.Y. 2009); M.M. v. New York City Department of Education., 583 F.Supp.2d 498, 510 (S.D.N.Y. 2008); Tarlowe v. New York City Board of Education, 2008 WL 2736027, at *8 (S.D.N.Y. July 3, 2008); W.S. v. Rye City Central School District, 454 F.Supp.2d
134, 149-150 (S.D.N.Y. 2006). To the extent necessary t'o 01ffer a student an appropriate educational program, an IEP must XX.XX identify the supplementary aids and services to be provided to the student (20 U.S.C.. Section 141I4(d)(1)(A)(i)(IIV); 34
C.F .R. Section 300.320(a)(4); 8 N.Y.C.R.R. Section 200.4(d)(2)(v)(a), (b)i(3); Piazza v.
Florida Union Free School District, 2011 WL 1458100, at *1 (S.D.N.Y. Apriil 7, 2011); Gavrity v. New Lebanon Central School District, 2009 W L 3164435, at *30 (N.D.N.Y.
September 29, 2009); P.K. v. Bedford Central School District, 569 F.Supp.2d 371,380
(S.D.N.Y. 2008).
In New York State, policy guidance explains tha1t "the IIEP must include a statement (under the applicable sections of the IEP) if the student needs a particul!a r device or service (including an intervention, accommodation or other program modification) to address (among other things), XX.XX tn order for the student to receive a (FAPE)" ("Guide to Quality Individualized Education Program (IEP) Development and Implementation," at p. 22, Office of Special Educ. (Dec. 2010), "The XXXX."
The special factor procedures set forth in State regulations further require t.hat the CSE XXXX.
The evidence shows that the Student had XXXX (Ex. P-AA at p. 2), but that on XXXX (Exs. 0 -9, D-10 at p. 1). During the XXXX school year, the Student had XXXX (Tr. at pp. 353-357; Ex. J-1). On XXXX, the Parent requested XXXX (Ex. P-Q) . The record reflects that subsequently, on XXXX, the Student X.XXX (Tr. at pp. 360-361 ; Exs.
J-3, J-6).
I find that the CSE should have XXXX (Tr. at pp. 771-775; Ex. J-2 at p. 2). XXXX identified XXXX (See Ex. J-11 at pp. 25-26).
The failure to conduct XXXX is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's XXXX, leading to their being addressed in the IEP inadequately or not at all.'' RE. v. New York City Department of Education, 694 F.3d 167, 190 (2d Cir. 2012). However, the failure to XXXX will not always rise to the level of a denial of FAPE, but in such instances particular care must be taken to determine whether the IEP addresses the student's
XXXX (id.). The evidence shows that XXXX (Ex. J-2 at pp. 7-8). The IEP also indicates that XXXX (Ex. J-2 at pp. 7-8).
The IEP for the XXXX school year also contains XXXX (Ex. J-2 at pp. 9-11).
Under the circumstances, I find that although XXXX, the District's failure to do so did not rise to the level of a FAPE violation , as the CSE had necessary information about XXXX and addressed them as part of his IEP. In addition, District staff was aware of XXXX. The evidence also shows that the CSE diligently investigated and pursued XXXX.
7. Failure to offer Assistive Technology.
Assistive technology device means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a student with a disability. Such term does not include a medical device that is surgically implanted, or the replacement of such a device. See 8 N.Y.C.R.R. § 200.1(e).
Assistive technology seivice means any seivice that directly assists a student with a disability in the selection, acquisition, or use of an assistive technology device.
The term includes: the evaluation of the needs of a student with a disability, including a functional evaluation of the student in the student's customary environment; purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by students with disabilities; selecting , designing, fitting, customizing , adapting, applying, maintaining, repairing, or replacing assistive technology devices; coordinating and using other therapies, inteiventions, or seivices with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs; training or technical assistance for a student with a disability or, if appropriate, that student's
. family; and training or other technical assistance for professionals (including individuals who provide seivices to, employ, or are otherwise substantially involved in the major life functions of that student. See 8 N.Y.C.R.R. §200.1(f). Related seivices are defined as developmental, corrective, and other supportive seivices as are required to assist a student with a disability and includes ... assistive technology seivices . . . See 8 N.Y.C.R.R. § 200.1(qq).
An IEP shall include special education programs and services ... and as appropriate indicate any assistive technology devices or services needed for the student to benefit from education, including the use of such devices in the student's home or in other settings. See 8 N.Y.C.R.R. § 200.4(d)(2)(v)(b)(6). The CSE shall consider special factors such as whether the student requires assistive technology devices and services, including whether the use of school-purchased assistive technology devices is required to be used in the student's home or in other settings in order for the student to receive FAPE. See 8 N.Y.C.R.R. § 200.4(d)(3)(v).
Assistive technology devices range on a continuum from low technology (low tech) devices to high technology (high tech) devices. Low tech devices can be homemade or purchased items that are not very sophisticated. Examples of low tech devices include but are not limited to wrist stabilizers, adapted pencil grips, pictures or icons attached to objects with Velcro, book holders, and adapted paper. Mid tech devices require more sophisticated technology in their creation and/or use and can include some battery-powered devices and include but are not limited to battery operated word processors, visual timers, voice-output (speaking) devices using picture icons, and talking calculators. High tech devices are advanced in design and typically digital in nature, including such items as voice-output (speaking) devices with touch screens and dynamic displays, and text-to-speech software programs/applications. See
New York State Policy Brief on Assistive Technology for Students with Disabilities, April
2017, at p. 1.
The goal of assistive technology is to facilitate success and independence for students with disabilities while they work toward their academic, social, communication, occupational and recreational goals. An assistive technology evaluation may be included in a student's initial evaluation for determination of eligibility for special education programs and services and/or as part of a student's reevaluation. See New York State Policy Brief on Assistive Technology for Students with Disabilities, April 2017, at pp. 2-3.
There are no specific credentials required to conduct assistive technology evaluations or to provide assistive technology services to students with disabilities in New York State. Assistive technology evaluations may be conducted by school personnel (e.g., special education teachers, speech-language pathologists, occupational therapists, and physical therapists, etc.). The CSE must thoughtfully consider the skill sets required to conduct an appropriate assistive technology evaluation that meets the individual needs of a student with a disability. In some cases, it might be necessary for someone with specialized knowledge of specific assistive technology devices and services to conduct the evaluation. This individual might be an employee of the school district which has an assistive technology background or specialty. See New York State Policy Brief on Assistive Technology for Students with Disabilities, April 2017, at p. 2.
During the Impartial Hearing, the Parents withdrew their demand for an XXXX (Tr. at pp. 432-433, 437-439; Ex. IHO-3). Nevertheless, the evidence shows that the District took the necessary steps to ascertain whether the Student required assistive technology services to benefit from his education and provided him with appropriate assistive technology devices based on his individual needs.
At the District's XXXX the Student was offered the use of XXXX (Tr. at pp. 1303- 1307). In XX.XX, XXXX used XXXX (Tr. at pp. 1272-1273).
XX.XX testified that she did not recommend an XXXX for the Student, because during the time that she saw him, given his XXXX (Tr. at pp. 1683-1686).
I find that the Student was appropriately assessed based on his individual needs by both XXXX and XXXX through direct observation and by working with him, and that he benefitted from XXXX (Ex. J-2 at p. 12).
8. Failure to perform other evaluations uas necessary."
School districts shall ensure that the student is assessed in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, vocational skills, communicative status and motor abilities. See 8 N.Y.C.R.R. §200.4(b)(6)(vii). For the reasons already stated, I find that the District's failure to arrange for XXXX violated the Student's right to a FAPE (See IHO Decision at pp. 84-85, supra), for which I issued an Order for XX.XX during the course of the Impartial Hearing proceedings. The District complied with my Order ano the Student has been evaluated (Exs. IH0-15, IHO-20).
I do not rule with respect to the Parents' request in their Due Process Complaint Notice for XXXX (Tr. at pp. 432-433, 437-439).
9. Failure to provide an assigned, 1:1 Teaching Assistant for the XX.XX school year.
The evidence shows that since the XXXX school year, the Student's XXXX grade year, the District has had concerns about the Student's need to XXXX {Exs. P-EE at pp.
1, 4, 6; P-M at p. 5; P-M at p. 1; P-L at p. 1; P-K at p. 1; P-J at p. 1; P-1 at p. 1; P-D at
p. 1; D-17A at pp. 7-9; D-12 at pp . 5-8; D-10 at pp. 1, 6-9; D-8 at pp. 1, 6-9; D-6 at pp.
6-9; D-4 at pp. 5-8; D-2 at pp. 4-5, 7; J-12 at pp. 1', 5-9; J-13 at pp. 1-2, 7-8). Although the Parents submitted a letter from the Student's XXXX into evidence at the hearing in support of the need for a 1:1 paraprofessional for XXXX, the letter, dated XXXX, was not in existence at the time of the annual review for the XXXX school year, and constitutes retrospective evidence. See RE., supra, (IHO Decision at p. 76). XXXX was ultimately not called by the Parents to testify at the Impartial Hearing. The CSE did not reconvene to review XXXX letter once it was received from the Parents in XXXX (Tr.
at pp. 605-616, 618-620; Ex. P-A).
The evidence also shows that the CSE discussed extensively the issue of XXXX, since theXXXX (Tr. at pp. 410-414; Ex. J-11 at pp. 32-42). In addition, witnesses at the hearing testified in support of the XXXX. XXXX testified that based on the information that was available during the XXXX school year she supported the XXXX (Tr. at pp.
898-902). XXXX testified that the Student had become XXXX (Tr. at pp. 1061-1063,
1077). XXXX agreed that XXXX had XXXX (Tr. at pp. 1289-1290, 1293-1294). XXXX testified that the ultimate goal at XXXX is to make students XXXX (Tr. at pp. 1534-1540,
' 1601). XXXX testified that in her professional view, in helping the Student to XXXX (Tr. at pp. 1717-1719, 1721-1722, 1750-1751 , 1753). XXXX testified that the CSE felt that at XXXX, he would not need XXXX (Tr. at pp. 1818-1821).
I find that the CSE's recommendation to XXXX was appropriate and is supported by the evidence. Although the Progress Report for IEP Goals for the XXXX school year shows that, XXXX, the IEP for the XXXX school year provided for XXXX (Ex. J-4 at p.
2).
ORDER
Based upon the above, it is hereby
. ORDERED, that the Parents' application for a finding that the Student was denied a Free Appropriate Public Education for the XXXX school year is hereby granted to the extent indicated in this Decision; and it is further
ORDERED, that the Parents' application for a finding that the Student was denied a Free Appropriate Public Education for the XXXX school year is hereby denied; and it is further
ORDERED, that the Parents' applications for an XXXX are hereby denied as moot; and it is further
ORDERED, that the Parents' application for a finding that the District's recommended program for the Student for the XXXX school year violated Least Restrictive Environment mandates is hereby denied; and it is further .
ORDERED, that the Parents' request for a finding that the District failed to offer methodologies and/or strategies based on peer-reviewed research is hereby denied; and it is further
ORDERED, that the Parents' request for a finding that the District failed to offer appropriate XX.XX for the XXXX school year is hereby denied; and it is further
ORDERED, that the Parents' request for a finding that the District failed to offer appropriate XXXX for the XXXX school year is hereby granted; and it is further
ORDERED, that the Parents' request for compensatory XXXX is granted to the extent indicated in this Decision; and it is further
ORDERED, that the Parents' request for other compensatory services which the Hearing Officer deems just and proper is hereby granted with respect to XXXX to the extent indicated in this Decision; and it is further
ORDERED, that the Parents' request for a finding that the District failed to offer an appropriate XXXX for the Student is hereby denied; and it is further
ORDERED, that the Parents' request for a finding that the CSE failed to conduct a XXXX is denied; and it is further
ORDERED, that the Parents' request for a finding that the District failed to perform other evaluations "as necessary" is hereby granted to the extent indicated in this Decision ; and it is further
ORDERED, that the Parents' request for a finding that the failure of the District to recommend a 1 :1 teaching assistant for the XXXX school year deprived the Student of a Free Appropriate Public Education is hereby denied; and it is further
ORDERED, that the Parents' request for attorneys' fees and expenses is hereby denied; and it is furthe r
ORDERED, that the Parents' remaining requests for relief are hereby denied .
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision , the Parents and/or the XX.XX District have a right to appeal the decision to a 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 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.
DATED: May 23, 2018
XX.XX, New York
xx.xx
Impartial Hearing Officer APPEARANCES:
xxxx
ATTORNEYS FOR XXXX
xxxx xxxx BY: XXXX, ESQ.
xxxx
PRO SE PARENTS
xxxx xxxx
BY: XXXX
UST OF WITNESSES:
WITNESSES PRESENTED ON BEHALF OF SCHOOL DfSTRICT
xxxx Director of Pupil, Personnel Services, XX.XX xxxx School Social Worker, XX.XX xxxx School Psycho,l ogist, XXXX
xxxx Special Educa.t.i on Teacher, XXXX
xxxx XXXX Principal, XXXX
xxxx NYS Licensed Occupational Therapist
xxxx XXXX Principal, XXXX
ii
WITNESSES PRESENTED ON BEHALF OF PARENTS ANO STUDENT
xxxx Director of Pupil Personnel Services, XXXX
xxxx School Social Worker, XXXX
xxxx School Psychologist, XXXX
xxxx Special Education Teacher, XXXX
xxxx XXXX Principal, XXXX
xxxx NYS Licensed Occupational Therapist
xxxx XXXX Principal, XXXX
xxxx XXXX Counselor, XXXX
iii
LIST OF EXHIBITS ADMITTED INTO EVIDENCE
IMPARTIAL HEARING OFFICER'S EXHIBITS
DATE DESCRIPTION NUMBER EXHIBIT #
OF PAGES OR LETTER
7/12/17 letter from XXXX to IHO
regarding appointment 2 IHO-1
7/13/17 Statement of Schedule Availability 1 IHO-2
7/7/17 Demand for Due Process Hearing 6 IHO-3
7/21/17 Response to Impartial Due Process
Hearing Request 26 IHO-4
7/13/17 Letter from IHO to XXXX and
XXXX, regarding case
time lines 2 IHO-5
7/13/17 Letter from IHO to Parents regarding
Due Process Rights 3 IHO-6
8/30/17 Letter from XXXX to IHO
regarding request for recusal 2 IHO-7
9/13/17 Response to Petitioners' Motion for IHO
Recusal 16 IHO-8
9/19/17 Interim Decision and Order on Motion for
Recusal 48 IHO-9
9/25/17 Letter from IHO to XXXX and
XXXX, regarding request
for an extension of the 45 day rule 3 IHO-10
10/7/17 Letter from IHO to XXXX and Parents
regarding request for an extension of the
45 day rule 3 IHO-11
iv
DATE DESCRIPTION NUMBER EXHIBIT#
OF PAGES OR LETTER
10/19/17 Letter from IHO to XX.XX and
Parents regarding request for an extension
of the 45 day rule 2 IHO-12
11/28/17 Letter from IHO to XX.XX, and
Parents regarding request for an extension
of the 45 day rule 2 IHO-13
12/1/17 Letter from IHO to XX.XX and
Parents summarizing telephone conference
call 3 IHO-14
12/5/17 Interim Order 4 IHO-15
12/4/17 E-mail transmission from XXXX
to Parent 1 IHO-16
12/4/17 E-mail string between XX.XX
and Parent 2 IHO-17
12(1/17 E-mail string between XX.XX
and Parent 4 IHO-18
12/29/17 Letter from IHO to XXXX, and
Parents regarding request for an extension
of the 45 day rule 2 IHO-19
12/13/17 Independent XXXX 5 IHO-20
10/6/17 E-mail transmission from XXXX
to IHO 2 IHO-21
1/27/18 Letter from IHO to XXXX and
Parents regarding request for an extension
of the 45 day rule 2 IHO-22
1/29/18 E-mail transmission from IHO to XXXX and Parents regarding missing IEPs 1 IHO-23
3/5/18 Letter from IHO to XX.XX and
Parents regarding request for an extension
of the 45 day rule 2 IHO-24
V
DATE DESCRIPTION NUMBER EXHIBIT#
OF PAGES OR LETTER
3/24/18 Letter from IHO to XX.XX and
Parents regarding request for an extension
of the 45 day rule 2 IH0-25
4/27/18 Letter from IHO to XX.XX and
Parents regarding request for an extension
of the 45 day rule 2 IH0-26
Undated Parents' Post-Hearing Brief 9 IH0-27
5/9/18 District's Post-Hearing Brief 28 IH0-28
vi
JOINT EXHIBITS
DATE DESCRIPTION NUMBER EXHIBIT#
OF PAGES OR LETTER
2016/17 Student XXXX 10 J-1
6/16/17 IEP for the 2017/18 school year -
Reevaluation/Annual Review 14 J-2
Undated xxxx 1 J-2A
4/21/17 IEP for the 2016/17 school year -
Requested Review 13 J-3
2016/17 Progress Report for IEP Goals 5 J-4
6/23/16 & 6/23/17 Student Report Cards 2 J-5
6/5/17 XXXXbyXXXX 6 J-6
6/2/17 XX.XX Evaluation
Triennial Review by XXXX 4 J-7 10/23/14 11/7/14 XXXX Evaluation by xxxx 7 J-8
6/1/17 XXXX Re-Evaluation by xxxx 9 J-9
2015/16 & 2016/17 Attendance Records 3 J-10
6/16/17 Transcript of CSE Meeting 60 J-11
3/31/16 IEP for the 2016/17 School Year-
Annual Review 13 J-12
11/4/16 IEP for the 2016/17 School Year-
Requested Review 13 J-13
vii
DISTRICT'S EXHIBITS
DATE DESCRIPTION NUMBER EXHIBIT#
OF PAGES OR LETTER
4/7/15 Prior Written Notice 2 D-1
3/26/15 IEP for the 2015/16 School Year -
Annual Review 11 0-2
6/30/15 Prior Written Notice 2 0-3
6/22/15 IEP for the 2015/16 School Year-
Requested Review 12 0-4
7/21/15 Prior Written Notice 2 D-5
7/21/15 IEP for the 2015/16 School Year-
Amendment - Agreement No Meeting 13 D-6
10/20/15 Prior Written Notice 2 0-7
10/13/15 IEP for the 2015/16 School Year -
Requested Review 13 0-8
11/23/15 Prior Written Notice 2 0-9
11/23/15 IEP for the 2015/16 School Year-
Amendment - No Meeting 13 0-10
1/4/16 Prior Writte~ Notice 2 D-11
1/4/16 IEP for the 2015/16 School Year-
Amendment - Agreement No Meeting 13 0-12
4/5/16 Prior Written Notice 2 D-13
6/21/16 Prior Written Notice 2 D-14
6/20/16 IEP for the 2016/17 School Year-
Placement 13 D-15
11/4/16 Prior Written Notice 2 0-16
viii
DATE DESCRIPTION NUMBER EXHIBIT#
OF PAGES OR LETTER
1/12/17 Prior Written Notice 2 0-17
1/10/17 IEP for the 2016/17 School Year -
Requested Review 14 D-17A
4/5/17 Prior Written Notice 3 D-18
4/21/17 Consent Form for Reevaluation 1 D-19
4/24/17 Prior Written Notice 3 0-20
6/26/17 Prior Written Notice 3 0-21
2017/18 Progress Report for First Quarter 1 0-22
12/1/15 Letter from XXXX to XXXX 2 0-23
7/5/16 Letter from XXXX to XXXX and Parent 2 0-24
8/31/17 Confirmation of XXXX 13 0-25
9/13/17 Notice of XXXX 3 O-25A
9/29/17 Notice of XXXX 10 O-25B
6/23/17 E-mail string from XXXX to Parents 2 0-26
11/21/17 Affidavit of XXXX 12 D-27
ix
DATE DESCRIPTION NUMBER EXHIBIT#
OF PAGES OR LETTER
Various xxxx 12 D-28
10/19/17 E-mail transmission from XXXX
to Parent 3 0-29
9/8/17 letter from XXXX to XXXX 10 0-30
9/18/17 E-mail string between XXXX
and XXXX 2 0-31
9/19/17 E-mail transmission from XXXX to
Parents 1 0-32
2015/16 Progress Report on goals 7 0-33
2016/17 Progress Report on goals 9 0-34
6/5/17 XXXX - Reevaluation 5 0-35
11/2016 Class Profile XXXX 1 0-36
12/6/16 Class Profile XXXX 1 0-37
X
DATE DESCRIPTION NUMBER EXHIBIT#
OF PAGES OR LETTER
12/15/16 E-mail string between XXXX
and Parent 4 0 -38
1/8/18 Class Profile and Schedule 4 0-39
6/2/17 XXXXbyXXXX 3 0-40
2016/17 District's School Calendar 1 0-41
9/1 /16- Attendance Summary for XXXX 6/23/17 1 0-42
9/1/16- Attendance Summary for XX.XX 6/23/17 2 0-43
9/23/16- Summary of XXXX 13 0-44 6/23/17
2017/18 District's School Calendar 1 0-45
9f7/17 xxxx 1 0-46
9f7/17 xxxx 1 0-47
Undated Letter to Parents from XXXX 3 0-48
Undated Letter to Parents from XXXX 2 0-49
xi
DATE DESCRIPTION NUMBER EXHIBIT#
OF PAGES OR LETTER
Undated xxxx 1 0 -50
2016/17 Student Schedule XXXX 1 0-51
xii
PARENTS' EXHIBITS
DATE DESCRIPTION NUMBER EXHIBIT#
OF PAGES OR LETTER
9/15/17 Letter from XXXX To
Whom It May Concern 1 P-A
7/8/15 Letter from XX.XX 7 P-8
4/14/16 Letter from XXXX 5 P-C
1/4/17 xxxx 2 P-0
5/6/14 Incident Report XXXX 1 P-E
9/16/16 E-mails between Parent and XXXX 1 P-F
2017/18 XXXX-XXXX 1 P-G
1/11/17 Questionnaire of School Performance
Completed by XXXX 3 P-H
11/10/16 xxxx 2 P-1
12/1'3/16 xxxx 2 P-J
1/23/17 xxxx 2 P-K
2/15/17 xxxx 2 P-L
2/27/17 xxxx 2 P-M
Xlll
DATE DESCRIPTION NUMBER EXHIBIT#
OF PAGES OR LETTER
10/8/14 Progress Report 1 P-N
10/10/14 Progress Report 1 P-O
12/9/14 Progress Report 1 P-P
12/16/16 Memorandum from Parent to XXXX 1 P-Q
2/3/17 xxxx 2 P-R
9/26/17 E-mail transmission from Parent to
xxxx 1 P-S
10/4/17 Memorandum from XXXX to Parent 1 P-T
8/9/16 E-mails between Parents and XXXX 1 P-U
6/23/17 E-mails between Parent and XXXX 2 P-V
12/17/14 Progress Report 1 P-W
9/22/17 E-mail from Parent to XXXX 1 P-X
3/1/17 E-mail from Parent to XXXX 1 P-Y
6/20/16 IEP for the 2016/17 School Year -
Placement 13 P-Z
12/11/14 IEP for the 2014/15 School Year-
Requested Review 11 P-AA
1/3/17 Memorandum from XX.XX to
Parent 1 P-88
9/29/17 Letter from XX.XX to
Parents 1 P-CC
4/25/17 Letter from XX.XX 1 P-O0
xiv
• AX ,,.
DATE DESCRIPTION NUMBER EXHIBIT#
OF PAGES OR LETTER
3/20/13 IEP for the 2013/14 School Year -
Annual Review 9 P-EE
10/25/17 E-mail string between Parent and
x.xxx 1 P-FF
xv
Footnotes
[1] At the CSE meeting held on June 16, 2017, the Parents requested an independent XXXX:, which wa1s granted (Tr. at pp. 428-429). At the hearing, the Parents withdrew th:e1ir request for XXXX (Tr. at p,. 439- 440).
[2] At the first day of Impartial Hearing, the Parents stated that they had no knowledge before the fact that their attorney made a motion for recusal, and they never received copies of the papers filed by their counsel, the District's written response, or the Order of the IHO denying the motion from their attorney. The IHO provided copies of each of the documents to the Parents at the hearing, gave them time to review the documents, and explained the contents of each document to them (Tr. at pp. 36-54). 3At the third Pre-Hearing Telephone Conference, the Parents stated that it was their attorney who determined to no longer represent the Parenl'S and the Student, and they did not know the reason for her decision {See Transcript of Telephonic Conference dated October 19, 2017 at p. 4 ).
[1] Failure to offer an appropriate program and placement for the XX.XX school year which effectively addressed [the Studenf s] academic, social, emotional, physical, and behavioral needs. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the Student's needs. The evidence shows that the CSE had the following evaluations before it at the time it made its program recommendations for the XXXX school year on XXXX: XXXX (Exs. J-8, P-Z at pp. 1-2).