Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 167530

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 20, 2018

July 26, 2018

January 24, 2019

Actual Record Closed Date: March 25, 2019

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES OF TITLES AND PERSONS WHO APPEARED ON APRIL 20, 2018

For the Student:

Attorney

parent

For the Department of Education:

District Representative

Guidance Counselor (via telephone)

NAMES OF TITLES AND PERSONS WHO APPEARED ON JULY 26, 2018

For the Student:

Attorney

Psychologist (via telephone)

parent

For the Department of Education:

District Representative

District Representative

NAMES OF TITLES AND PERSONS WHO APPEARED ON JANUARY 24, 2018

For the Student:

Attorney

parent

For the Department of Education:

District Representative

I]. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing ( ) was originally requested by the parent attorney, Law Offices of Nancy Rothenberg P.L.L.C., for the student and the parent in a due process complaint notice (“DPC”) dated July 11, 2017, pursuant to the Individuals with Disability Education Act (“IDEA”), 20 U.S.C. § 1401 et seg. and Article 89 of the New York Education Law. See 8 NYCRR §§ 200.5 (4)(1), G)(1). The primary issue raised in this hearing was whether the DOE offered the student a free appropriate public education (“FAPE”’) for the 2014/15, 2015/16, 2016/17, 2017/18, and 2018/19 school years (Ex. P-A).'^[1] When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”’) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 USS.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(1).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5()(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in as “Ex.” dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR 8§ 200.5(G)(3)(v), (vii), (x11). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5q)(5). A party may seek a specific extension of time of the 45-day timeline, which the THO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(4)(5). The decision of the [HO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR§ 200.5(k).

II. PROCEDURAL HISTORY

The New York City Department of Education (the “DOE”’) appointed me to hear this matter on July 20, 2017. See 8 NYCRR § 200.5(j)(3)(i). In a due process response dated November 22, 2017, the DOE denied each and every allegation in the complaint (Ex. SD-2). See 8 NYCRR § 200.5()(4).. The DPC was amended on January 18, 2018 (Ex. P-AA). A second DPC involving the same parties and student with a disability was filed on August 6, 2018 (Case No. 175519) (Ex. P-OO), and amended December 18, 2018 (Ex. P-PP). See 8 NYCRR § 200.5 (4)(1), G)(1). On January 24, 2019, I issued a decision consolidating with Case No. 175519 on consent of the parties (Ex. IHO-I). 8 NYCRR § 200.5(G)(3)(41)(a)(4).

A hearing on the merits of the matter began on April 20, 2018. The DOE entered presented one witness, Ms. . The DOE presented a second witness at the April 20, 2018 hearing, however I granted the Parent’s motion to have her testimony stricken from the record when she did not appear for cross-examination at the following hearing date. Tr. 98- 99. The impartial hearing continued on July 26, 2018, at which time the DOE rested its case without presenting any additional witnesses or evidence. The Parent began her case, and presented two witnesses, Dr. , psychologist, and , parent. The impartial hearing continued on January 24, 2019, and the Parent presented one witness, , and rested.^[2]

Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR§ 200.5(j)(5)(v).

Il. FACTUAL BACKGROUND

At the time of the initial DPC, the Student was a boy about to enter the third grade (Exs. P-A, P-AA). He is now an old boy in the fourth grade (Exs. P-OO, P-PP). He has been attending , a Public School located at (Exs. P-A, P-AA, P-OO, P-PP). Since the filing of the initial DPC, the Student has remained classified as a child with a disability, namely learning disabled (Exs. SD-16, SD-26, P-QQ). The Student's eligibility for special education and related services as a student with a learning disability is not in dispute in this hearing (Exs. P-A,

P-AA, P-OO, P-PP). See 34 C.F.R. § 300.8(c)(7); 8 NYCRR § 200.1(zz)(6).°

In her due process complaints, the Parent alleges that the DOE failed to provide the Student with FAPE procedurally and substantively over the 2014/15, 2015/16, 2016/17, 2017/18, and 2018/19 school years (Exs. P-A, P-AA, P-OO, P-PP). The Parent further alleges that the DOE failed to: provide the Student with an appropriate program

C.F.R. § 300.515(c); 8 NYCRR § 200.5(4)(5). > Learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section 200.4(j) of this Part. 8 NYCRR § 200.1(zz)(6). and placement for each of those years; evaluate him in all areas of suspected disability; review the independent evaluations provided by the Parent; provide the Parent with meaningful participation into each of the IEPs developed over the years challenged; provide the Student with appropriate occupational therapy and speech language therapy; adequately address the pervasive bullying of the Student during the 2015/16, 2016/17, 2017/18, and 2018/19; and failed to provide him with an Extended Year Program and appropriate and measurable goals. Jd.

The Student first began receiving special education services during preschool under the Committee for Preschool Special Education (the “CPSE”) (Exs. P-A, P-X).

On January 31, 2013, the CSE conducted a psychoeducational evaluation, and found that the Student’s full Scale IQ scores fell in the Borderline range of functioning; with exceptionally weak abstract reasoning, language ability visiospatial abilities, retention, processing information, and perceptual organization (Exs. P-A, P-X). He had poorly developed academic readiness skills and graphomotor skills, and severe articulation and word retrieval skill deficits. Despite his significant deficits, no other evaluations were conducted or reviewed. /d. In preparation for entering Kindergarten, the CSE convened on March 14, 2013 (Ex. P-F). At that meeting, the CSE recommended he receive a general education classroom with integrated co-teaching (“ICT”). /d.

On November 18, 2013, the Parent made a written request for speech language, occupational therapy, and physical therapy evaluations (Ex. P-J). The CSE conducted the occupational therapy (“OT”) evaluation, physical therapy (“PT’’) evaluation, and speech language (“SL”) evaluation between December 2013 and January 2014 (Exs. P-W, P-V, P-U). The Parent, without objection, asserted that speech language therapy (“SLT”) was added to his program twice per week during that year, but that he was denied OT services (Exs. P-A, P-AA).

The Student’s program remained largely unchanged through the 2013/14, 2014/15, 2015/16, 2016/17 school years, adding only one additional individual SLT in the middle of the 2016/17 school year and assistive technology in preparation for the 2017/18 school year (Exs. SD-5, SD-7, SD-16, SD-18). According to the evidence in the record, the Student demonstrated little to no growth over those four years, remaining at a first grade reading and math instructional level by the end of second grade, despite having completed first grade twice (Exs. SD-5, SD-7, SD-16, SD-18, P-S). There is no evidence in the record of any additional evaluations conducted by the CSE following January 2014 to determine the reason for the Student’s lack of progress during the 2013/14, 2014/15, 2015/16, and 2016/17. Instead, the Parent testified she was informed that it was her responsibility to obtain more comprehensive evaluations at January 2015 CSE meeting (Tr. 142-143).

In November 2016, the Parent secured the additional evaluations of the Student by (“ ” and “ ”), which she provided to the CSE (Exs. P-Q, P-R, P-S, PT; Tr. 144). According to the reports, the Student’s Verbal Comprehension skills fell in the Borderline range, his Working Memory fell in the Extremely Low range, his Fluid Reasoning and Processing Speed fell in the Low Average range, and his visual/perceptual/motor skills within the Average range (Exs. P-Q, P-R). He was diagnosed with a Mixed Receptive/Expressive Language Disorder, significant; Specific Learning Disorders in Reading and Mathematics, significant; Working Memory deficits; and an Adjustment Disorder with Mixed Anxiety and Depressed Mood (Exs. P-Q, P-T). Additionally, his mixed receptive-expressive language impairment affected his: social communication skills; verbal organizations; ability to follow directives; ability to attend to orally presented materials; reduced lexical diversity and word retrieval deficits; and reduced semantic flexibility (Ex. P-T). The evaluators recommended: a more restrictive placement with students of a similar profile in skills, needs, and behaviors; speech/language therapy three times per week in school; an intensive, structured, multisensory reading program tailored to individual needs; counseling in school; accommodations -modifications; and training in compensatory strategies to address his short term memory and working memory deficits (Ex. P-Q).

The CSE reconvened December 2016, and it is clear from the 2016 IEP that the CSE had the evaluations in their possession (Ex. SD-18). However, based upon the extremely limited information included in the December 2016 IEP, the Parent’s testimony that she was informed at the meeting that the setting recommended in the reports was not appropriate for his need without discussion, and the lack of any evidence to the contrary by the DOE, it is clear that the CSE failed to actually consider the independent evaluation reports provided by the Parent and that she was not afforded meaningful participation into that meeting, as is required (Ex. SD-16; Tr. 145). See 8 NYCRR § 200.5(g)(vi). The program recommended in the 2016 IEP remained the unchanged, with only the addition of an individual SLT session per week (Ex. SD-18). However, this limited addition to his related services was more likely based on the recommendation of the DOE’s speech language provider in the December 15, 2016 progress report than any consideration of the evaluation (Exs. SD-12, SD-18, P-T, P-Q).

On May 25, 2017, Dr. , from , provided an update one-page report, which set forth his diagnoses, lack of progress, and recommended “class setting with a smaller student teacher ration, taught by a teacher who is trained to work with children with learning and language disabilities...[and] an individualized and intensive (daily) reading program...[and] math program” in a NPS if an appropriate setting is not located (Ex. P-H). Dr. specified in the report that the Student’s current IEP program was inappropriate and inadequate to meet his needs, and that his feelings of anxiety and depression were related to his “challenges and failures in the classroom.” /d. The CSE reconvened June 2017 IEP and added assistive technology and an extended year program to the Student’s IEP, but there is no indication that a discussion of the Student’s needs occurred at this meeting or that Dr. ’s updated report was considered, as the IEP is basically a restatement of the December 2016 IEP (Exs. SD-16, SD-18). There is also no evidence in the record that any alternative program or supports were considered for the Student in the December 2016 or June 2017 CSE meetings (Ex. P-G).

The CSE conducted its own testing in the fall of 2017, as part of a partial resolution agreement, and found a similar full scale IQ, but almost inverted verbal comprehension, visual spatial skills and fluid reasoning scores, with finding Borderline verbal comprehension and the DOE fining Low Average scores, and finding Average Visual Spatial skills and the DOE finding Very Low scores, and finding Low Average Fluid Reasoning and the DOE finding Very Low scores (Exs. P-K, P-R). The academic achievements, though, showed a decline in the student’s reading skills (a decrease in reading comprehension from the first percentile to the 0.2 percentile, and a similar decline in decoding) when compared to peers, and similar position in math skills (first percentile in both testings), showing no improvement in reading, writing or math over the past year (Exs. P-N, P-S). The presentation showed very different deficits. There is no explanation provided in the updated evaluations as to why the Student’s IQ presentation was so different, or why the Student had not made gains academically over the past year.

A Speech Language evaluation was completed by the CSE and this evaluation also found a very different level of deficit that the evaluation, and different from the SLT progress note from 2016, now stating that his receptive language skills were in the average range and his expressive and pragmatic language skills were within the borderline range.

An Occupational Therapy evaluation was also completed on October 20, 2017, and the evaluator determined that he required occupational therapy to address his visual spatial and visual perceptive challenges in order to improve his spacing and line alignment for writing, copying, visual discrimination, and mathematics (Ex. SD-22).

On November 15, 2017, the CSE reconvened and it once again continued to recommend the same ICT program despite its own testing showing skills in the very low range and no demonstrable progressing in learning in the past year (Ex. SD-26). The CSE also recommended that speech therapy be continued at the same frequency, and added occupational therapy twice a week in a group of three (Ex. SD-26). There is no indication in the evidence in the record that the CSE considered a more supportive or restrictive educational environment for the Student despite all information showing little to know progress in any skills.

Another independent speech language evaluation was provided by the Parent to the CSE on February 22, 2016, and an addendum to that report was provided by the Parent to the CSE on May 8, 2018 (Exs. P-EE, P-FF). The Student was found to have a moderate to severe mixed receptive-expressive language impairment, a significantly more significant impairment than provided by the DOE evaluation a few months earlier and more in line with prior testing. Jd. The evaluator recommended an increase of services to one individual 45-minute session per week, and two small group of only twostudent 45- minute session per week (Exs. P-EE).

On July 9, 2018, Dr. , also of , conducted new academic achievement testings of the Student, and a review of prior evaluations and educational history (Ex. P-GG). The Student’s academic skills were still in the Kindergarten/first grade levels across reading and writing skills, with second grade math skills, still in the extremely low level. /d. Dr. provided the Student’s diagnosis with the following diagnoses: Learning Impairments in Reading, Written Language, and Mathematics, Persistent Depressive Disorder, Unspecified Anxiety Disorder, and a Mixed Receptive/Expressive Language disorder by history. Jd. She recommended a small, therapeutically nurturing, language-enriched classroom setting within a small special education school environment, along with daily, targeted SETSS support in ELA and Math, therapy in and outside school, SLT, OT, and assistive technology. /d.

Dr. testified to the difficulties the Student had with: foundational reading and writing skills; decoding and reading words which was impacting his comprehension; difficulty with sequencing letters; difficulty reading beginning and ending sounds or sight words; difficulty with basic math facts (Tr. 116-119). She also testified that the Parent, current teacher, prior evaluation, prior IEPs, and his presentation in the evaluation raised concern that the student’s emotional well being, specifically sadness, anxiety, adjusting to changing situations, performing daily tasks, able to communicate his needs (Tr. 111, 114, 115-116, 119). She found that his level of sadness and anxiety was “impacting” his functioning at school (Tr. 120, 125). Even with the therapeutic support in school and at home, which she believed needed to be continued, he needed a classroom where he could participate, included positive reinforcement, develop his self-esteem, responded in nurturing fashion, and develop his peer relations, such as a small therapeutically nurturing language-enriched classroom that will support his language-based learning needs and his social emotional growth (Tr. 111, 121, 124, 125-126).

The Student entered the 2018/19 school year in the same inappropriate program based upon the 2017 IEP, that he had attended before without progress. The CSE also failed to review of the independent evaluations provided by the Parent. The Student continued to stagnate in that program, unable to do the work being assigned and sent home as homework (Tr. 8 (in the January 24, 2019 transcript). Throughout the fall of 2018, his peers bullied him, again (Tr. 8-9).

The evidence in the record is that the CSE did not reconvene the IEP until November 5, 2018 (Exs. P-QQ, P-RR). At that meeting the CSE once again failed to review the 2018 independent speech language evaluation and 2018 psychoeducational evaluation despite having these reports in its possession. /d. Instead the CSE used the 2017 evaluations that the Parent contested and a non-standardized teacher conducted Fountas & Pinnell reading assessment and Envision math assessment as the basis of its review. /d. Instead of using the July 2018 academic achievement scores, the CSE provided inaccurate and inflated scores of academic skills (Ex. P-QQ). Also oddly, the CSE referred to a review of a Speech Language Assessment by an outside provider from September 2017, despite having a more recent March 2018 Speech Language Assessment with a May 2018 Addendum (Exs. P-QQ, P-RR).

The inaccuracy of the academic scores relied on by the CSE is reflected by the EnVision 2.0 assessments reported on the IEP that demonstrated that the Student: had not mastered place value, subtracting multi-digit numbers, and multiplying multi-digit numbers by one the October 27, 2018 EnVision 2.0 topic 3 test for multiplying multidigit numbers by one digit with a 32% mastery; and failed all three reading assessments he took in October with either a 54% or 50% mastery. Jd. The Student’s report card further demonstrates that his reading, writing, and math skills, as well as his listening, speaking and language skills were all far below standards (Ex. P-SS).

Ultimately, the CSE once again provided the same program to the Student as it had over the prior years. Jd. The Parent testified that the CSE failed to consider another program, and failed to consider concerns, instead instructing her that the program was appropriate without any discussion despite a note in the IEP (Tr. 9-10 (in the January 24, 2019 transcript).

The hearing record also included additional information that the Student’s was becoming more unhappy, anxious, and isolated over the 2014/15, 2015/16, 2016/17, 2017/18, and 2018/19 school years, and that the DOE was aware of the increasing emotional distress (Exs. P-Q, P-R, SD-16). The Parent testified that he was really depressed, had lost confidence in himself, was trying to avoid school, would complain of being sick (Ex. P-R, SD-16, SD-18; Tr. 138-139,140, 141). And, there is also significant evidence that the Student was bullied throughout the years in question, (Tr. 148-149).

(Tr. 150-154). The Parent laid out the bullying occurring in the 2016/17 and 2017/18 school years in a letter to the school after finding no assistance by the school to protect her son (Ex. P-Z). The DOE’s own witness, Ms. ; acknowledged that she was aware of the Student being bullied during the 2017/18 school year, the only year she worked with him, and that

(Tr. 66, 72).

IV. POSITIONS OF THE PARTIES

A. The DOE

The DOE representative stated that the 2014/15 school year fell outside of the two-year statute of limitation and therefore should be time-barred (Tr. 29). With regard to the 2015/16, 2016/17, and 2017/18, the DOE representative stated in her opining statement that an ICT program with SETSS services was appropriate for the Student, and that the once weekly at-risk counseling provided at the school in lieu of counseling services on the IEP requires a finding that there was no harm that resulted from the failure to provide the needed counseling on his JEP (Tr. 32-33, 34). Lastly, the DOE representative stated that bullying allegations were unfounded as the bullying complaints were responded to appropriately (Tr. 33-34).

However, the DOE did not present any witnesses to defend the program provided to the Student for the 2014/15, 2015/16, 2016/17, and/or 2017/18 school years.* The DOE further failed to provide any evidence to demonstrate that the Student had made any academic, social, emotional, behavioral, or speech/language progress over the years in question. Ms. , DOE’s sole witness, only testified to bullying that occurred during the 2017/18 school year (Tr. 65-87). She testified that the Student was bullied during the 2017/18 school year, that (Tr. 67, 72, 73-74). The DOE did not state any position or put forward any testimony or evidence to support the program provided during the 2018/19 school year.

B. The Parent

The CSE failed to develop an appropriate IEP for the student for the 2014/15, 2015/16, 2016/17, 2017/18, and 2018/19 school years (Exs. P-A, P-AA, P-OO, P-PP). The Student failed to progress academic, social, emotional, behavioral, or speech/language progress. Jd. The DOE failed to properly evaluate the Student, and failed to consider the independent evaluation provided by the Parent. /d. The Student was also bullied by peers during the same school years. Ex. Jd. The CSE should also be ordered to defer the student’s case to the DOE’s Central Based Support Team (“CBST’’) for a residential placement, and provide the Student with compensatory educational services to rectify the harm caused by the procedural and substantive violations of FAPE over the years raised in the DPC. /d.

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Applicable Legal Standards

* The testimony of Ms. , District witness, was stricken from the record. Tr. 98- 99.

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist.

v. Rowley, 458 U.S. 176, 206-07 (1982).^[5] A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

"(A |dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)Gi); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5G)(4)Gi); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M_H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), affd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)G). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement." See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192.

The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)G), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(), (2)G)(A); 8 NYCRR § 200.4(d)(2)(ii1), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

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

B. Compensatory Additional Services

Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).

State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Child with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).

Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Reg’! Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem”). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. /d. at 526.

Compensatory services can take many forms, as the point is to provide services that will make the student whole, with regard to the educational deprivation that the student has experienced. In Draper v. Atlanta, 518 F.3d 1275 (11th Cir. 2008), at 1284, the court concluded that “the provision of a public school option does not preclude an award of placement in a private school by a court,” as compensatory services. The decision also explains that a “disabled student is not required to demonstrate that he cannot be educated in a public setting.” /bid., at 1285. The court further explained that whereas an educational program must be” reasonably calculated to enable the child to receive educational benefits, “quoting Rowley, 458 U.S. at 206-07, when it comes to compensatory services, more than that is required; i.e., in the words of the Draper decision, compensatory awards must do more, - they must compensate. ... (4

Compensatory awards should place children in the position they would have been in but for the violation of the Act. [IDEA]” Jbid., at 1289.

Furthermore, the Draper court explained that IDEA does not “foreclose a compensatory award of placement in a private school.” And when such an award is considered, the parent is “not required to prove that the School System was incapable of providing ... an appropriate education.” /bid., at 1286.

Applying these standards to the facts of this case, I find that the DOE has failed to meet its burdens or proof and persuasion that the Student was provided a FAPE procedurally and substantively over the 2014/15, 2015/16, 2016/17, 2017/18, 2018/19 school years. And, as enumerated in the fact section above, the evidence and testimony in the record demonstrates that: the Student’s program was inappropriate over the 2014/15, 2015/16, 2016/17, 2017/18, 2018/19 school years; that the program failed to ensure academic, social, emotional, behavioral, or speech/language progress; that the evaluations provided by the Parent were not considered in the development of the student’s program; that program was predetermined; and that the Student was bullied over the years in question.

A major issue in this hearing is that the parent is asking that I order placement in a nonpublic school. Here, we have a situation where the evidence is clear that the DOE has not provided an appropriate program to the Student over many years. In addition, he has suffered significant harms for the continual bullying he suffered at the hands of his peers over many years. Consistent with Draper, cited above, I am ordering a state approved nonpublic residential school to compensate, to make the student whole, following years of an inappropriate education. In addition, academic and related service compensatory services are necessary to rectify the harms caused by the gross failures in this case.

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,

IT IS

HEREBY ORDERED THAT:

* The DOE shall reconvene the CSE within thirty (30) days of this Order, and provide the Student with a small, therapeutic language enriched classroom setting within a small non public school (“NPS”). In addition, as part of developing the program, the CSE will review the recommendations in the evaluations conducted by Dr. and 2018 speech language evaluation when it develops the program for the Student. * Within thirty (30) days of the date of this Order, the DOE shall authorize the Student’s receipt of 360 hours of compensatory tutoring services at the rate of $110 per hour;

* Within thirty (30) days of the date of this Order, the DOE shall authorize the Student’s receipt of 144 45-minutes of speech language therapy sessions through a related service agreement (“RSA”); and

* Within thirty (30) days of the date of this Order, the DOE shall authorize the Student’s receipt of 144 30-minutes of occupational therapy sessions through an RSA.

Dated: April 2, 2019

/s/ Jeffrey J. Schiro, Esq.

Jeffrey J. Schiro, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review 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. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

> Due Process Complaint Notice/Impartial Hearing Request ( ), 7/11/17, 13 pgs. [Reserved]

ATPCONEKaVFmHOZXSEYoMAaT

[Reserved] [Reserved] [Reserved]

Individualized Education Program (IEP), 3/14/13, 12 pgs.

Email Correspondence, 6/23/17, 4 pgs.

Letter from , Ph.D., 5/25/17, 1 pg.

Assessment Planning, 1/21/17, 1 pg.

Letter from parent requesting evaluation, 11/18/13, 1 pg.

DOE Psychological Evaluation Report, 10/2/17, 5 pgs.

DOE Speech/Language Evaluation, 9/19/17, 4 pgs.

Social History Update, 8/15/17, 2 pgs.

Educational Evaluation Report, 8/15/17, 4 pgs. [Reserved] [Reserved]

Team Conference Summary Report, 11/16/16, 3 pgs.

Psychological Evaluation, 11/15/16, 5 pgs.

Psychoeducational Evaluation, 11/10/16, 4 pgs.

Speech/Language Report, 7/25/16, 6 pgs.

DOE Speech/Language Evaluation, 1/8/14, 6 pgs.

DOE Physical Therapy Evaluation, 1/8/14, 5 pgs.

DOE Occupational Therapy Evaluation, 12/20/13, 9 pgs.

DOE Psychoeducational Evaluation Report, 1/31/13, 3 pgs.

Student Work Samples, 3/16/17, 3 pgs.

Letter to (Principal, ) from parent, 1/25/18, 1 pg.

Amended Due Process Complaint Notice/Impartial Hearing Request (Case No.

167530), 1/19/18, 15 pgs.

Student Report Card, 2017/18, 2 pgs.

Measurable Annual Goals, undated, 8 pgs.

Partial Resolution Agreement, 8/8/17, 2 pgs.

Addendum to Speech/Language Evaluation, 5/8/18, 2 pgs.

Speech/Language Evaluation, 2/22/18, 13 pgs.

Comprehensive Psychoeducational Report, 7/17/18, 10 pgs. [Reserved] [Reserved] [Reserved] [Reserved] [Reserved] [Reserved] NN. [Reserved] OO. Due Process Complaint Notice/Impartial Hearing Request (Case No. 175519), 8/6/16, 15 pgs. PP. Amended Due Process Complaint Notice/Impartial Hearing Request (Case No.

175519), 12/18/18, 15 pgs. QQ. Individualized Education Program (IEP), 11/5/18, 16 pgs. RR. Prior Written Notice (Notice of Recommendation), 11/14/18, 3 pgs. SS. Student Report Card, 2018/19, 2 pgs.

DEPARTMENT OF EDUCATION

1. [Reserved]

2. Due Process Response, 11/22/17, 4 pgs.

3. Social History Update, 1/31/17, 2 pgs.

4. Prior Written Notice (Notice of Recommendation), 3/17/15, 3 pgs.

5. Individualized Education Program (IEP), 1/23/15, 18 pgs.

6. Prior Written Notice (Notice of Recommendation), 1/28/16, 3 pgs.

7. Individualized Education Program (IEP), 1/14/16, 16 pgs.

8. Assistive Technology Evaluation Referral, 1/30/17, 6 pgs.

9. Assistive Technology Evaluation Follow-Up Report, 5/8/17, 5 pgs.

10. Suggested Procurement Order, 5/8/17, 4 pgs.

11. Assistive Technology Evaluation, 3/16/17, 7 pgs.

12. Student Progress Report (Speech/Language), 12/15/16, 3 pgs.

13. [Reserved]

14. [Reserved]

15. [Reserved]

16. Individualized Education Program (IEP), 5/31/17, 20 pgs.

17. Prior Written Notice (Notice of Recommendation), 6/4/17, 4 pgs.

18. Individualized Education Program (IEP), 12/16/16, 20 pgs.

19. Prior Written Notice (Notice of Recommendation), 12/19/16, 3 pgs.

20. Student Progress Report (Speech/Language), 11/14/17, 3 pgs.

21. DOE Psychological Evaluation, 10/6/17, 4 pgs.

22. DOE Occupational Therapy Evaluation, 10/20/17, 8 pgs.

23. DOE Speech/Language Evaluation, 9/29/17, 4 pgs.

24. Social History Update, 8/15/17, 2 pgs.

25. DOE Educational Evaluation, 8/15/17, 4 pgs.

26. Individualized Education Program (IEP), 11/15/17, 21 pgs.

27. Prior Written Notice (Notice of Recommendation), 11/20/17, 3 pgs.

IMPARTIAL HEARING OFFICER

I. Order

on Consolidation (Case Nos. 75519 & 167530), 1/24/19, 6 pgs.

II. Confirmation of Extension, 9/25/17, 1 pg.

Il. Confirmation of Extension, 10/25/17, 1 pg.

IV. Confirmation of Extension, 11/14/17, 1 pg.

V. Confirmation of Extension, 12/22/17, 1 pg.

VI. Confirmation of Extension, 3/28/18, 1 pg.

VI. Confirmation of Extension, 4/23/18, 1 pg.

VII. Confirmation of Extension, 6/1/18, 1 pg.

IX. Confirmation of Extension, 6/21/18, 1 pg.

X. Confirmation of Extension, 7/26/18, 1 pg.

XI. Confirmation of Extension, 8/27/18, 1 pg. XH. Confirmation of Extension, 9/28/18, 1 pg. XU. Confirmation of Extension, 10/28/18, 1 pg.

XIV. Confirmation of Extension, 11/27/18, 1 pg.

XV. Confirmation of Extension, 12/27/18, 1 pg.

XVI. Confirmation of Extension, 1/22/19, 1 pg.

XVII. Confirmation of Extension, 2/18/19, 1 pg.

---

Footnotes

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

[2] "Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 88-90; Exs. IHO-II - IHO-XVIII). See 34

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