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FINDINGS OF FACT & DECISION
Case Numbers: 170595 & Student Name: Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearings: April 9, 2018
October 30, 2018
Actual Record Close Date: June 14, 2019
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 9, 2018
For the Student:
Advocate
parent
Student
For the Department of Education:
District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 30, 2018
For the Student:
Advocate
Parent (via telephone)
For the Department of Education:
District Representative, CSE (via telephone)
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 advocate for the student and the parent in a due process complaint notice dated October 27, 2017. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) denied the student a free appropriate public education (“FAPE”’) during the 2015/16, 2016/17 and 2017/18 school years (Exs. P-A, P-C, IHO-V, IHO-VI).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(1).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such
‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.” student.” See 8 NYCRR § 200.5(1)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“THO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C.
§§ 1415(f)(2)(a), (h)(1)-(3); 34 C-F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(Vv), (vil), (xii). 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 § 200.5G)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(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 [HO 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
In a due process response dated November 8, 2017, see 8 NYCRR §§ 200.5(4)(4)-(5), the DOE denied each and every allegation contained in the complaint (Ex. P-D). On November 11, 2017, the parties entered into a resolution agreement, see 8 NYCRR § 200.5(j)(2)(iv), in which the DOE agreed to conduct neuropsychological and psychiatric evaluations of the student and to provide the student with daily special education teacher support services (“SETSS”) (Ex. IHOII). The DOE appointed the undersigned to hear this matter ( ) on February 9, 2018 following the recusal of another hearing officer. See 8 NYCRR § 200.5(G)(3)(i). A pre-hearing conference with the parties was held on February 16, 2018 to clarify the hearing issues and set a date for the hearing. See 8 NYCRR § 200.5()(3)(x1).. Having been informed that agreed upon evaluations had been completed, the undersigned directed the CSE to convene within thirty (30) days to review the results of the neuropsychological and psychiatric evaluations in an Interim Order on Pendency dated March 5, 2018 (Exs. P-E, P-F, IHO-I at 5).
See 20 U.S.C. § 1415G); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). In addition, having been informed that the DOE was unable to secure a SETSS provider for the student, the undersigned ordered the DOE to authorize the student’s receipt of daily SETSS at an enhanced rate (Ex. [HO-I at 5).
A due process complaint involving the same parties and student with a disability (Case No. ) was filed on May 7, 2018 (Ex. IHO-VII). In an Interim Order dated October 30, 2018, I directed that be consolidated with in the interests of the student and judicial economy (Ex. IHO-V at 5). See 8 NYCRR 8§ 200.5()(3)(4i)(a)(2), (4).
Hearing on the merits of the consolidated matters were held on April 9, 2018 and October 30, 2018.2 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).
Hit. FACTUAL BACKGROUND
At the time of the October 26, 2017 due process complaint, the student was ( ) years old and has been diagnosed with an adjustment disorder with depressive mood, a social anxiety disorder, an unspecified schizophrenia spectrum and other psychotic disorder, a specific learning disorder (math), an attention deficit hyperactivity disorder, a generalized anxiety disorder, a major depressive disorder and an autism spectrum disorder (Exs. P-A, P-E at 4, P-F at 11, P-I). In October 2017, the student was discharged from a placement following multiple hospitalizations and his refusal to attend school (Ex. P-B at 5). The student currently attends in , which is a New York State-approved residential placement (R. 13; Ex. IHO-III at 10). The student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing. See 8 NYCRR § 200.1(zz).[3]
The CSE convened on December 20, 2015 to develop an IEP for the student through December 2016. The CSE recommended that the student receive the majority of his instruction in an 8:1+1 special class in a specialized ( ) school on a twelve (12) month basis. The CSE also recommended that the student receive related services of: specialized transportation; individual counseling, one time per week for thirty (30) minutes per session; group (3:1) counseling, one time per week for thirty (30) minute per session; and group (5:1) speech/language therapy, two (2) times per week for forty (40) minutes per session (Ex. P-K at 8, 11-12).
The CSE reconvened on December 6, 2016 to develop an IEP for the student through December 2017. The CSE again recommended that the student receive the majority of his instruction in an 8:1+1 special class in a specialized ( ) school on a twelve (12) month basis. The CSE also recommended that the student receive related services of: individual counseling, one time per week for thirty (30) minutes per session; group (3:1) counseling, one time per week for thirty (30) minute per session; and group (5:1) speech/language therapy, two (2) times per week for forty (40) minutes per session (Ex. P-J at 7-8, 10-11).
The student was discharged from his high school placement in October 2017 following 20 days of nonattendance (R. 37; Ex. P-B at 5).
On March 29, 2018, the CSE reconvened to develop and IEP for the student through March 2019. The CSE recommended that the student receive the majority of his instruction in an 8:1+1 special class ina New York State-approved residential school on a twelve (12) month basis. The CSE also recommended that the student receive related services of: individual counseling, two times per week for forty (40) minutes per session; group (5:1) counseling, two times per week for forty (40) minute per session; group parent counseling and training, three (3) times per year for sixty (60) minutes per session; and group (5:1) speech/language therapy, two (2) times per week for forty (40) minutes per session (Ex. [HO-III at 7-8, 10-11). The DOE was unable to secure a residential placement for the student until July 1, 2018 (R. 13).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE asserts that the parent’s claims concerning the 2015/16, 2016/17 and 2017/18
NYCRR§ 200.1(zz). school years have been resolved through the November 2017 Resolution Agreement and the recommendations made by the CSE at its March 2018 meeting (Exs. P-D, IHO-II, THO-IID.
B. The Parent
The DOE denied the student a FAPE for the 2015/16, 2016/17 and 2017/18 school years.
The DOE improperly discharged the student from instruction in October 2017 for nonattendance at school caused by his educational disabilities. The student remained out-of-school until July 1, 2018, when he was enrolled in a New York State approved residential placement. The DOE failed to implement agreed-upon SETSS services pending the student’s evaluation until ordered to do so in March 2018. The student missed a considerable amount of recommended related services during the disputed school years which also denied him a FAPE. The student is entitled to compensatory education through June 2020 and is entitled to compensatory additional services (Exs. P-B, P-C, THO-II, THO-III, IHO-IV, IHO-VI, IHO-VII).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ.
of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[4]
“The term “free appropriate public education” means special education and related services that — 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); RE. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); MH. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). "[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]Jultiple 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, 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) (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) 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 § 200.5(j)(4)G1); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; MH, 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); ELH. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. §
1415((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 ofthis title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. 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)(), 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)(i), (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 Education & 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., MC. 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. Jd. at 526.
Based on the evidence contained in the hearing record, I find that the student is entitled to compensatory education. The student’s birthday is and the student will at the conclusion of the current school year (i.e., June 30, 2019).
The DOE improperly discharged the student from instruction in October 2017 for nonattendance at school caused by his educational disabilities. The student remained out-of-school until July 1, 2018, when he was enrolled in a New York State-approved residential placement. The DOE also failed to implement agreed-upon SETSS services pending the student’s evaluation (as reflected in the November 2017 Resolution Agreement) until ordered to do so by the undersigned in a March 2018 Pendency Order (Exs. P-B, P-C, IHO-II, IHO-III, THO-I'V, THO-VI, IHO-VID).
These circumstances represent a gross violation of the IDEA which resulted in the denial of, or exclusion from, educational services for a substantial period of time. See Somoza, 538 F.3d at
109. Given that the student was excluded by the DOE from instruction for nearly a school year, I find that he is entitled to compensatory education through June 30, 2020.
Based on the evidence contained in the hearing record, I also find that the student is entitled to compensatory additional services. The parent has submitted detailed records of related services the student missed because of nonattendance at school due to his educational disabilities and his exclusion from instruction by the DOE. Those records reflect that the student missed recommended speech therapy and counseling during the 2015/16, 2016/17 and 2017/18 school years. Using a quantitative approach to fashion an equitable remedy for missed services, the DOE will be directed to authorize the student’s receipt of 146.5 hours of counseling from a private provider of the parent’s choosing. The DOE will also be directed to authorize the student’s receipt of 136 hours of speech therapy from a private provider of the parent’s choosing.
Said services shall be authorized at an enhanced rate not to exceed $125 per hour with an expiration of thirty-six (36) months (Exs. P-J, P-K, IHO-IV IHO-VI at 1, IHO-VII at 5).[5]
°2015-2016 School Year
88 Speech Sessions Missed x 40 minutes=3,520 minutes=58.6 hours
70 Counseling Sessions Missed x 30 minutes= 2100 minutes=35 hours
2016-2017 School Year
24 Speech Sessions Missed x 40 minutes - 960=16 hours
71 Counseling Sessions Missed x 30 minutes=2,130 minutes= 35.5 hours
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
1. The parent’s claim that the student was denied a free appropriate public education for the 2015/16, 2016/17 and 2017/18 school years is SUSTAINED;
2. The student is entitled to compensatory education at either his current New York State-approved residential school, or such other placement at the DOE and parent may agree to, through June 30, 2020;
3. Within thirty (30) days of its receipt of this Order, the DOE shall provide the parent with an authorization for 146.5 hours of counseling from a private provider of the parent’s choosing;
4. Within thirty (30) days of its receipt of this Order, the DOE shall provide the parent with an authorization for 136 hours of speech therapy from a private provider of the parent’s choosing; and
5. Said compensatory additional services shall be authorized at an enhanced rate not to exceed $125 per hour with an expiration of thirty-six (36) months.
All other requests for relief are denied.
Dated: June 28, 2019
2017-2018 School Year
92 Speech Sessions Missed X 40 minutes = 3,680=61.3 Hours
92 Counseling Sessions Missed X 30 minutes=2,760 minutes=46 hour
Total Number of Counseling Sessions Missed (All Years) = 293 sessions x 30 minutes = 8, 790 minutes =146.5 hours
Total Number of Speech Session Missed (All Years) = 204 sessions x 40 minutes = 8,160 minutes = 136 hours
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 40 days of the date of this decision, the parent and/or the public school district has a right to appeal the decision to the State Review Officer ("SRO") of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENTS
A. Letter to CSE from parent, 10/19/17, 2 pgs.
B. Due Process Complaint Notice/Impartial Hearing Request ( ), 10/27/17, 7 pgs.
C. Amended Due Process Complaint Notice/Impartial Hearing Request ( ), 1/3/18, 6 pgs.
D. Due Process Response ( ), 11/8/17, 3 pgs.
E. Independent Psychiatric Evaluation, 12/8/17, 6 pgs.
F. Independent Neuropsychological Evaluation, 12/20/17, 13 pgs.
G. Attendance Notice, 1/11/16, 1 pg.
H. [Reserved]
I. Letter of Diagnosis, 12/9/15, 1 pg.
J. Individualized Education Program (IEP), 12/6/16, 13 pgs.
K. Individualized Education Program (IEP), 12/20/15, 15 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Interim Order on Pendency ( ), IHO Jeffrey J. Schiro, 3/5/18, 6 pgs.
Il. Resolution Agreement, 11/11/17, 2 pgs.
Il. Individualized Education Program (IEP), 3/29/18, 12 pgs.
IV. Related Service Records, 9/30/15 — 6/27/17, 7 pgs.
V. Order
on Consolidation (Case Nos. 170595 & ), [HO Jeffrey J. Schiro, pgs.
VI. Calculation of Related Services Owed Student, 6/11/19, 9 pgs.
VI. Due Process Complaint Notice/Impartial Hearing Request (Case No. ), 5/7/18, XXI. Confirmation of Extension, 4/4/19, 1 pg.
XXII. Confirmation of Extension, 5/4/19, 1 pg. XXIII. Confirmation of Extension, 6/3/19, 1 pg.
pgs. VIII. Confirmation of Extension, 3/1/18, 1 pg. IX. Confirmation of Extension, 4/9/18, 1 pg. X. Confirmation of Extension, 5/7/18, 1 pg. XI. Confirmation of Extension, 6/15/18, 1 pg. XII. Confirmation of Extension, 7/5/18, 1 pg. XIIl. Confirmation of Extension, 8/8/18, 1 pg. XIV. Confirmation of Extension, 9/7/18, 1 pg. XV. Confirmation of Extension, 10/7/18, 1 pg. XVI. Confirmation of Extension, 11/6/18, 1 pg. XVII. Confirmation of Extension, 12/3/18, 1 pg. XVIII. Confirmation of Extension, 1/4/19, 1 pg. XIX. Confirmation of Extension, 2/3/19, 1 pg. XX. Confirmation of Extension, 3/5/19, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the 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 (Exs. THO-VUI - IHO-XXIHI). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] Student with a disability means a student with a disability as defined in section 4401(1) of the Education Law, who has not attained the age of 21 prior to September 1“ and who is entitled to attend public schools pursuant to section 3202 of the Education Law and who, because of mental, physical or emotional reasons, has been identified as having a disability and who requires special services and programs approved by the department. 8
[4] The term “free appropriate public education” means special education and related services that —
[5] 2015-2016 School Year 88 Speech Sessions Missed x 40 minutes=3,520 minutes=58.6 hours 70 Counseling Sessions Missed x 30 minutes= 2100 minutes=35 hours 2016-2017 School Year Said compensatory additional services shall be authorized at an enhanced rate not to exceed $125 per hour with an expiration of thirty-six (36) months. All other requests for relief are denied. Dated: June 28, 2019 2017-2018 School Year 92 Speech Sessions Missed X 40 minutes = 3,680=61.3 Hours 92 Counseling Sessions Missed X 30 minutes=2,760 minutes=46 hour Total Number of Counseling Sessions Missed (All Years) = 293 sessions x 30 minutes = 8, 790 minutes =146.5 hours Total Number of Speech Session Missed (All Years) = 204 sessions x 40 minutes = 8,160 minutes = 136 hours