New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 167918

Student's Name:

Date of Birth:·

District:

Hearing Requested By:

•Parent

Date of Hearing: September 18, 2017

May 23, 2018

Actual Record Closed Date: September 21, 2018

Hearing Officer: Gary D. Peters, Esq.

Attorney Parent

DOE Designee DOE

Family Friend Parent

Mother Parent

Attorney Parent

Mother Parent

DOE Designee DOE

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (t)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing . The hearings were conducted at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. At the hearing, the Department of Education, hereinafter referred to as the "DOE" was represented by its d e s i g n e ~ d the parent was represented by their counsel Esq.

BACKGROUND

On August 10, 2017, the Parent filed a due process complaint pursuant to 20 U.S.C. Section 1415 of the Individuals with Disabilities Education Act of 2004 ("IDEA") on behalf of her daughter, -hereinafter "Student o . ) . The Parent's due process complaint alleges that the Department of Education ("DOE") failed to provide the Student with a free appropriate public education ("FAPE") during the 20172018 school year. On behalf of her daughter, the Parent seeks the following: a finding that the above-noted failings and violations deprived-fa FAPE under the IDEA; a finding that the above-noted violations significantly impeded the Parent's procedural and substantive rights under the IDEA; a fmding that the above-noted violations significantly impeded the Parent's opportunity to participate in the decision-making process regarding the provision of a FAPE and caused a deprivation of educational benefit:

PROCEDURAL IDSTORY

The Parent initially brought this hearing challenging the appropriateness of the DOE's recommendations for her daughter during the 2017-2018 school year, seeking placement at the ( - or an appropriate 12-month program, and any other relief warranted based on the evidence at hearing. - i s a State Supported School that provides an education program for students who are ~ p a i r e d . This request was based on the alleged failure of the DOE to provide a "FAPE" based upon both procedural and substantive violations.

Parent's counsel asserts that he DOE failed to provide with an appropriate IEP containing sufficient intensive supports, failed to address his needs, and failed to provide an appropriate placement recommendation.

A pendency hearing was held on September 18, 2017; on October 3, 2017, I issued an Interim Order of Pendency, placing and finding tha was substantially similar to her last agreed-upon preschool placement, Day School, a New York State Education Department ("NYSED")-approved specialized preschool. However, due to DOE delays in providing busing issues, lllllllwas unable to begin attending~til November 13, 2017.

On May 23, 2018, the instant hearing was continued with regard to the remaining issue of compensatory education for -from her last day of , August 16, 2017, through her first day of November 13, 2017.

PARENTS POITION

As a result of the denial of a FAPE and lack of any DOE education and supplemental services for approximately nine weeks (while-remained at home),_ regressed academically and physically and is entitled to compensatory services.

PARENTS CASE

As per the testimony of the parent and close family friend,_s a happy, friendly, and social .year-old girl diagnosed with Cerebral Palsy ("CP") (Ex. B, pp. 1-3; Tr. 13, 49). She· was born in - a t birth underwent heart surgery to repair a congenital heart defect. Thereafter, - d multiple heart surgeries to repair the defect; during one of the surgeries, she had to be resuscitated and suffered prolonged oxygen deprivation, resulting in permanent neurological damage (id.). Ill At five months old, was diagnosed with. and paraplegia (Ex. A, B). She

also has minor hearing loss as a result of multiple ear infections (Ex. A, p. 2; Ex. B, p. 3). As per counsel, it is uncontroverted that - s non-ambulatory and non-verbal (Ex. B, p. 1). She uses an AAC device, head gestures and vocalizations, to communicate (id.)-requires assistance for all movement and significant assistance to hold anq. manipulate toys and materials (id.). She requires assistance for all ADL's and needs someone to push her wheelchair and is unable to sit independently, requires adaptive equipment to participate in activities, and uses a harness s~tem and gait trainer to "walk" (Ex. B).

During preschool ttende pursuant to her Committee on Preschool Education ("CPSE") IBP (fr. 13). At ,llllhad translation and a mobility paraprofessional as part of her CPSE program (Ex. A, p. 2; Tr. 28). The paraprofessional was used primarily for mobility, as English quickly became - dominant language (Ex. A, p.2; Ex. B). While attending received significant individual attention from highly trained therapists (fr. 17). Her

program was individually tailored to her significant, specific needs so that she could maximize her potential (id.) also received power wheelchair training so that she could become independently mobile (fr. 18). Through power wheelchair training at learned to successfully hold on to the joystick when her hand was placed on it and was able to move the wheelchair in all directions, albeit without "good control" (Ex. B, p. 3)-lso successfully learned to independently tum the wheelchair on and off (id.). The Parent, and so~ial worker, testified that continued school-based power wheelchair training was essential because the Parent's insurance refused to provide -with a power wheelchair of her own until she becomes fully trained. Without school-based training with school power wheelchairs, ~ d no way to become trained and no hope of'ever becoming independently mobile (Ex. B, pp. 3, 4; Tr. 24, 30). Therefore, a critical requirement o - educational placement has been, from the start, the availability of power wheelchair training.

The CSE convened on March 31, 2017 to plan for - transition from preschool to school age (Ex. B, ~- 14). At the meeting, the Parent expressed her desire for her daughter to attend - T h e DOE adjourned the meeting until the Parent was certain t h a t ~ accepted into the -rogram which occurred on April 12, 2017. The Parent provided the CSE with the acceptance paperwork immediately upon receipt (Ex. A).

When the CSE reconvened in April 2017, an "Orthopedic Impairment" and, despite -

-as ,as classified a student with acceptance into recommended a ~peaking general education ICT classroom with individual occupational therapy ("OT") three times per week for 30 minutes, individual physical therapy ("PT'') three times per week for 30 minutes, individual speech-language therapy ("SLT") three times per week for 30 minutes, and a full time l_iealth and ambulation paraprofessional (Ex. B, pp. 8-10). The CSE rejected a more supportive setting as "too restrictive" and, instead, placed ~ a general education ICT classroom that was much larger than her preschool class at (Tr. 21).

On or about August 10, 2017, the Parent submitted a due process complaint wherein she requested a more specialized, supportive placement for Ill and compensatory special education instruction.

As per the parent, the FM unit remained at home, without special education or supplemental services, for approximately nine weeks. Additionally, -ould not begin attending

~as until November 13, 2017, due to delays by the DOE with implementing busing. My order for the interim placement at September 23, 2017 (Tr. 60).

dated

The Parent testified that it was ''very hard" for her daughter at home without education or services (Tr. 52); she cried every morning for two hours (Tr. 53) used her communication device to tell her babysitter that she wanted to go back to school and that she felt sad and left out because everyone else got to leave in the morning and she had .to .stay behind (Tr. 53-54). Additionally,lllllost a number of skills as a result of remaining home without any education or services. For example, she was toilet trained when she attended However, after her hlp surgery and time without education and supplemental services at home to work on toileting, she completely lost her toilet training skills (Ex. B, p. 1; Tr. 53-54). communication device skills regressed and her communication d~creased as well (id.). When- attended school, she used her communication device to communicate with her classmates, ask for desired hems, food, and activities, answer questions, indicate where she wanted to sit, greet others, and ask to see the nurse (Ex. B, pp. 1, 2).

After nine weeks without education or support,. use of the communication device decreased. She did not used it "a lot" anymore (Tr. 53). Also, without any support. or services for nine weeks, lost her ability to pick up finger foods and feed herself (Ex. B, p. 1; Tr. 53). Moreover, prior to her nine weeks at home,.was in a "stander" in the classroom for 40 minutes each day (Ex. B, p. 3; Tr. 53). By November 13, 2017, lllllhad lost her ability to tolerate being in a "stander" at all (Tr. 53).

DOE'S POSITION

That the Parent's attorney raised the issue of compensatory services based on a denial of a FAPE for the first time at the impartial hearing; claiming that -missed school days due to transportation issues. at the beginning of the 2017-2018 school year The DOE asserts, and maintains· that the evidence provided at hearing supports, that all requests for relief in this case have been resolved as the CSE held an IEP reconvene meeting on April 11, 2018 and, via a 4201 application, and placed-at the n a permanent basis. (DOE Ex. 2 (fr. 41 ).

Additionally, the DOE asserts that Parent should have amended her Due Process Complaint to reflect any issue she had with the delay in her daughter's school attendance due to bussing issues. Ms. stated that the DOE does not object to compensatory relief; however, objects to the Parent using a denial of a FAPE as a basis to obtain that relief, especially given the fact that the DOE was ony prepared to defend the CSE's original Turning-5 program recommendation. Finally, it is the DOE's position that for there to be a denial of a F APE as a basis for compensatory relief based on missed school days and that the Parent should have amended the Due Process Complaint and requested compensatory relief.

FINDINGS OF FACT AND CONCLUSIONS

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ·(20 U.S.C. section 1400-1482) ensure that students with disabilities have available to them a FAPE; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. Of Education v. Rowley 458 S. CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356 371 92d Cir 2006). A FAPE includes special education and related services designed to meet the student's unique need provided in conformity with a comprehensive written IBP (20 U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 'd'; 34 CFR Section 200-347_; The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a][5][A]; CFR section 300.13 [a][2][i], 200.1.116 [a][2]; 8 NYCRR 200.6 [a][l]; see Walczak v. Fla Union Free School Dist. 142 F. 3d 119, 132 [2d cir. 1998].

This hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §1404 et seq. ("IDEA"). "Congress enacted the IDEA 'to ensure that all children with disabilities have available to them a free appropriate public education...designed to meet their unique needs ... [and] to ensure that the rights of children with disabilities and parents of such children are protected.'" MH · v. N.Y.C. Dep't. of Educ., 685 F.3d 217m 223 (2d Cir. 2012) (quoting 20 U.S.C. §1400(d)(l)(A)-(B)). The IDEA mandates that students with disabilities musbe provided with a FAPE tailored to meet their unique needs and one that is reasonably calculated to "enable a child to make progress appropriate in light of the child's circumstances." Endrew F. v. Douglas Cty. Sch Dist., _U.S._, 137 S.Ct. 988,999 (2017); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982); SRO 17-007, p. 10. A focus on the particular child is at the core of the IDEA. Endrew F., 13 7 S. Ct. at 999. To meet the IDEA's requirements, a school district's program must provide special education and related services that is "'specifically designed' to meet a child's 'unique needs''' and is reasonably calculated to enable the child to receive educational benefits.

Endrew F., 1~7 S.Ct. at 999 (emphasis in original); MH, supra, 685 F.3d at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007)).

A denial of FAPE can be one that is substantive or results from violations of the procedural protections of the IDEA and its implementing regulations. Procedural violations result in the denial ofFAPE "if they 'impeded the child's right to a [FAPE},' 'significantly impeded the parents' opportunity to participate in the decision-making process,' or 'caused a deprivation of educational benefits.'" 20 U.S.C. .§1415(f)(3)(C)(ii); A.C. ex rel. MC. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172. (2d Cir. 2009); see also Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005), ("Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations considered individually do not.'') In sum, Rowley stands for a two-part entitlement: eligible families are entitled to an IEP that both (a) affords. a placement that, substantively, is "reasonably calculated" to afford meaningful educational benefit to the c~ld, and (b) is developed in procedural accordance with the requirements of federal law.

Furthermore, with regard to the sufficiency of the IEP, the Commissioner's regulations require that: The IBP shall report the present levels of academic achievement and functional performance and indicate the individual needs of the student according to each of the four areas listed in section 200. l(ww)(3)(i) of this Part, including:

a. how the student's disability -affects involvement and progress in the general education curriculum ....

§ N.Y.C.R.R. § 200.4(d)(2)(i); see also 34 C.F.R. § 300.20(a). In turn, section

200.l(ww)(3)(i) provides, in relevant part that the areas to be considered shall include:

(a) academic achievement, functional perfonnance and learning characteristics which shall mean the levels of knowledge and development in subject and skill areas, including activities of daily living, level of intellectual functioning, adaptive behavior, expected rate of progress in acquiring skills and information, and learning style;

(b) social development which shall mean the degree and quality of the student's relationships with peers. and adults, feelings about self, and social adjustment to school and community environments;

(c) physical development which shall mean the degree or quality of the student's motor and sensory development, health, vitality, and physical skills or limitations which pertain to the learning process; and

(d) management needs which shall mean the nature of and degree to which environmental modi,fications and human or material resources are required to enable the student to benefit from instruction. Manageinent needs shall be determined in accordance with the factors identified in each of the three areas described in clauses (a)-(c) ofthis subparagraph.

The IEP has been described as the "centerpiece" of the IDEA system. See Murphy v. Arlington Cent. Sch. Dist., 297 F.3d 195, 197 (2d Cir. 2002); Endrew, 137 S.Ct. 1t 994. This key document "sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." D.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d. Cir. 2006) (internal quotations omitted). Under the IDEA, for a child's IBP to be adequate, it must be likely to produce progress, not regression, and must afford the student with an opportunity greater- than mere trivial advancement. The IDEA "requires an ·educational program reasonably calculated to enable a child to make progress in light of the child's circumstances." Endrew F., 137 S. Ct. at 1001; MH, supra, 685 F.3d at 224 (quoting T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247,254 (2d Cir. 2009) (internal quotations and citations omitted). For a student whp is fully integrated in a regular general education classroom, a child's unique needs are typically met when the school provides "a level of instruction reasonably calculated to permit advancement through the general curriculum." Endrew F., 137 S.Ct. at 1000. When a child is not fully integrated into a regular classroom and not able to achieve on grade level, an "IBP need not aim for grade-level advancement. But [the student's] educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in a regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives." Id

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services." SRO .080052; SRO 08-060 (citations omitted). The goals must be "sufficiently specific and measurable" (SRO 07-108, p. 12) and the IBP must contain goals to address identified needs. Id; SRO 08-060; see also SRO 05-049. The goals must be "sufficiently described so as to allow the student's teacher or therapists to understand the CSE's expectations with respect to each goal." SRO 07-108, p. 12.

As stated above, the DOE does not object to compensatory relief; however, objects to the Parent using a denial of a FAPE as a basis to obtain that relief, "especially given the fact that the District was originally prepared to defend the CSE's original Turnings program recommendation". It is the DOE's position that for there to be a denial of a FAPE as a basis for compensatory relief based on missed school days, Parent should have amended the Due Process Complaint and requested compensatory relief. Furthermore. That the DOE did not have notice of this issue and could not have reasonably anticipated such a claim because those conditions did not exist at the time of the filing of the Due Process Complaint.

Ms. aintained that she "believes that equities are strongly in its favor as the District has worked with the parent since pendency a t - a n d was never put on notice by a complaint or otherwise about the delay in school attendance''. As such, the DOE requests that if compensatory services are ordered that it not be based on a denial of a F APE. Furthermore, the DOE requests that if it is found that there has been a FAPE denial in this case, then the DOE requests that compensatory relief be denied as the request is not within _the 4 comers of the Complaint.

Parent's counsel argued that the DOE did not present a case in chief. Additionally, that the Parent maintained that her daughter required a smaller, more specialized placement with extra, trained support, as well as automated wheelchair training, which the DOE placement did not provide (Ex. B, p. 4; Tr. 18-21, 29-30, ).The Parent offered documentary and testimonial evidence supporting this claim. Furthermore, I agree that the Parent's claims and evidence were unrebutted by the DOE subsequent to the placement a t -

As per Parent's counsel, the only issue to be addressed is whether compensatory services are warranted. As stated above, the DOE agrees to the student's entitlement to compensatory special education services, but prefers that the provision of the services be considered "equitable relief' rather than the result of a denial of a FAPE (id.).

Accordingly, I fmd that the DOE has effectively conceded· that it denied a F APE to . . Once it has been determined that a student has been denied a F APE, hearing officers have broad equitable powers to fashion a remedy that is appropriate to address the student's needs, based upon the unique facts of the case. SRO 08-052, at pp. 17-18. It is well settled that "compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case." SRO 11-065, at p.2 (citing Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997)); Mr. and Mrs. A. ex rel. D.A. v. N.Y.C. Dep't of Educ., 769 F.Supp.2d 403 .(S.D.~.Y. 2011) (holding that such equitable powers extend to prospective payments for educational instruction where parents cannot afford the financial outlay required by reimbursement cases). Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA. See 20 U.S.C. §§ 1401(3), 1412(a)(l)(B); N.Y. Educ. Law §§ 3202(1), 4401(1), 4402(5)).

When calculating a compensatory services award, some 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., MC. v. Central Reg. Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding generally that, subject to equitable adjustment, the "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."). Some other courts 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." 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 a FAPE and "specific compensatory measures" designed to "correct those deficits." Id. at 526. The goal of a hearing officer in awarding compensatory education is to make the child educationally whole. G.L. v. Ligonier Valley Sch. Dist. Auth., ~02 F.3d -601, 624 (3d Cir. 2015) ("compensatory education must cover the entire period and must belatedly provide all education and related services previously denied and needed to make the child whole.") (quoting 150 Cong. Rec. S11851 (daily ed. Nov. 24, 2004) (statement of Sen. Tom Harkin)).

The compensatory remedy should be based upon evidence presented in the . hearing record. It was uncontested that remained at home, without special education or supplemental services, for approximately nine weeks. It was also uncontested that-could not begin attending~til November 13, 2017, due to delays by the DOE with implementing busing after the IHO ordered placement at -(fr.60). .

At the hearing, the Parent testified that it was "very hard" for-uring her time at home without education or services (fr. 52). -cried every morning for two hours (fr. 53). - used her communication device to tell her babysitter .that she wanted to go back to school and that she felt sad and left out because everyone else got to leave in the morning and she had to stay behind (fr. 53-54). It was also uncontested that .lost a number of skills as a result of remaining home without any education or services. For example, _ , a s toilet trained when she attended However, after her hip surgery and time without education and supplemental services at home to work on toileting, she completely lost her toilet training skills (Ex. B, p. 1; Tr. 53-54). . . communication device skills regressed and her communication decreased as well (id.). When-attended school, she used her communication device to communicate with her classmates, ask for desired items, food, and activities, answer questions, indicate where she wanted to sit, greet others, and ask to see the nurse (Ex. B, pp. 1, 2).

However, after rune weeks without education or support, her use of the communication device decreased. She did not used it "a lot" anymore (Tr. 53). Also, without any support or services for nine week lost her ability to pick up finger foods and feed herself (Ex. B, p. 1; Tr. 53). Moreover, prior to her nine weeks at home, -had .was in a "stander'' µi the classroom for 40 minutes each day (Ex. B, p. 3; Ti;. 53). By November 13, 2017, 53).

lost her ability to tolerate being in a "stander" at all (Tr.

lllllwas deprived of a FAPE for a portion of the 2017-18 school year. The record and testimony demonstrated that • regressed in many skills during the nine­ week period she languished at home, without educational support or services. As a result,. . .hould be awarded intensive, focused compensatory services to compensate for the DOE's failure in its obligations to her. • last mutually agreed upon IBP in the record, dated June 28, 2016, recommends the provision of physical therapy, speech therapy and occupational therapy three times a week (Exh. B 1).

In fashioning a compensatory award, "the inquiry must be fact-specific" and the award must be '1°easonably 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." Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Parents of Student W. v. Puyallup Sch Dist., 31 F.3d 1489, 1497 (9th Cir.

1994) (holding that 11 [a]ppropriate relief is relief designed to ensute that V.D.is appropriately educated within the meaning of the IDEA"). That is, a compensatory 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." Application of a Student with a Disability, Appeal No. 13-208; see also Newington, 546 F.3d at 123 (holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP");-Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]); Bd. of Educ; 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) educational problems successfully"]; Reid, 401 F.3d at 518, 525 (holding that compensatory education is a "replacement of educatipnal services the child should have received in the first place").

The Parents did not need to establish that a "gross" violation of the IDEA occurred in order for the IHO to award compensatory education. See, e.g. Newington, 546 F.3d 111 (2d Cir. 2008) (finding that the "gross violation" standard only applies to compensatory education awarded to students over the age of21). Even when Courts have applied a "gross" standard, the term has not been clearly defined; at a minimum, "it appears that eJfclusion of the student from school for a substantial period of time would suffice" to meet the standard. Application ofa Student with a Disability, Appeal No. 13208 (citing Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d. Cir. 1990]; V.M v. Colonie Sch Dist., 2013 WL 3187069, at *19).

I apply the statutory standard in 20 U.S.C § 1415(f)(E) (which was recently reiterated in Newington) and find that - entitled to compensatory services.

The equities, they clearly favor the Parents. A parent must act with a high level of "unreasonableness or misconduct'' in order for such conduct to raise an equitable bar to relief. N.R. ex rel. T.R. v. Department of Educ. of City School Dist. of City, 2009 WL 874061 (S.D.N.Y.). In the absence of evidence demonstrating that the Parent failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support an equitable remedy sought by the Parents. Id Furth.er, the notion of equities requires a balancing of both parties' conduct and interest. Wolfe v. Taconic Hills Central School District, 167 F.Supp.2d 530 (N.D.N.Y. 2001); SRO No. 04-045 (balancing the cooperation of the parents and the significant extent to which district failed to offer a FAPE, reimbursement was awarded).

The DOE bore the burden of proof regarding equities. Application ofa Student with a Disability, Appeal No. 13-200; N.Y. Educ. Law § 4404(1)(c). In this case, the DOE provided no evidence demonstrating lack of cooperation on the part of the Parent

In light of the foregoing, the Parents request that the IHO find in their favor as to each and every allegation in the DPC and discussed herein. I find and order as follows:

Given -delay in placement during the 2017-2018 school year as detailed above and the regression she suffered, I agree that it is reasonable to order 27 sessions each of physical therapy, speech therapy and occupational therapy. Moreover, given ignificant disabilities and regression, 90 hours of special education ins~ction (2 hours per day x 45 days (9 weeks x 5 school days per week) is reasonable and equitable.

In light of the DOE's deprivation ofFAPE to - and for all of the foregoing reasons, I award the following relief:

1. a finding that the above-noted failings and violations deprived - of a FAPE under the IDEA;

2 a finding that the above-noted violations significantly impeded the Parent's procedural and substantive rights under the IDEA;

3. a fmding that the above-noted violations significantly impeded the Parent's opportunity to participate in the decision-making process regarding the provision of a FAPE and caused a deprivation of ed~ational benefits;

4. an order directing the DOE to fund compensatory services by independent providers at market rate as follows:

A. 90 hours of special education instruction,

B. 27 sessions (length to be determined by the provider) of PT,

C. 27 sessions (length to be determined by the provider) of SLT,

D. 27 sessions (length to be determined by the provider) of OT, Case No. 1679 i 8

Dated: September 27, 2018

~~n~.4-~

GARY D. PETERS, ESQ.

Impartial Hearing Officer

GDP:gc

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.S(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. Th.e Department of Education has desig~ated the New York City Law Department to accept service of papers on its behaH, including · appeals of -decisions of Impartial Hearing Officers. Such ~ervice is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT'S EVIDENCE

A. Impartial Hearing Request 8/10/17 6

B. CPSEIEP 10/19/16 17

C. Correspondence_-, DOE 4/12/17 1

D. ebsite Description of School undated 3

PAY ORDER

167918

The New York City Department of Education (DOE) is directed to PAY

[Fl THE COST OF PLACEMENT

IT IS FURTHER DIRECTED THAT

The DOE to fund compensatory services by independent providers at market rate as follows:

A. 90 hours of special education instruction,

B. 27 sessions (length to be determined by the provider) of PT,

C. 27 sessions (length to be determined by the provider) of SLT,

D. 27 sessions (length to be determined by the provider) of OT,

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PAY ORDER

E Daily transportation log identifying.destination

X 6therservlce document ·. )' .'·1 .'_' ··: •.,•" _:,;" o·•·i . .--.:::· ......:. ... . . . . :"·,: .. :· •." .:. . . · .· ·:· •..· :·'.:, •"· :· · ·.": : · .::::1:.:·,·. ... ··\·-, ·-::.:: .- '·,·" ,...,. _.:···. :i :<-::•-~·-:, '-.j;,};·'·. ·:_ ... ,', . ,..,.··: 'NO DOE 'A'ill reimburse parent upon submission" 6f.aocurnents supporting the provision of service;

Dated.~ 21-Sep-18

.GARV PlalERS

PLEASElAKE_NOTICE

WI.t hin 35 days of tba- date flf'tliis decision., the pa~t audio, tbtt Nm., Vork Ci{y Qepanm•_

nt vl 1

'Education has a1r1gl:lt tt> appeal the u•eJsl·oa, ta the Stat11 Re.view Cffie·e·r- of' the New YcjFlt State E,;du~Qn bep,utme,nt: uoda-r $a~ ·Q1J 4:404 of the Ed ucaflafl L~ and ·the l~·d i¥iduals. w ith Jliis;ibintles EducatiPn Act.

J 1Jli.e floti(:e. of intention ,t n seel( reVleW.sllarl be satved iii;,on the ·s chool. district ttot less lhan 10 da~s before service of Ji cop,y t1f th a petmo11 'f0 r rtVi&w ,upa,n such .sJ:.t:1001 d istni;t, and within 25

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Footnotes

[1] D:ir-eidions and s:a~ple f~rm.s for 11.m,.g can ~ppeal are Incl Uded with thla dec111on. Directions I hd ·torm11 can also, tie focihd 111 ·ttt• Office,o,f stat:a RsvtieYf website: www.sro.nys1!ld.gov/aippruJil§-hb:n,.