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FINDINGS OF FACT AND DECISION
Case Number: 172646
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: May 2, 2018
May 9, 2018
June 5, 2018
June 13, 2018
June 20, 2018
July 24, 2018
July 25, 2018
August 1, 2018
August 22, 2018
September 6, 2018
October 23, 2018
October 24, 2018
November 15, 2018
December 18, 2018
January 8, 2019
Actual Record Closed Date: April 18, 2019
Hearing Officer: Martin J. Kehoe III, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 2, 2018
For the Student:
Attorney
Attorney
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 9, 2018
For the Student:
Attorney (Via Telephone)
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 5, 2018
For the Student:
Attorney (Via Telephone)
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 13, 2018
For the Student:
Attorney
Law Clerk
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 20, 2018
For the Student:
Attorney
Attorney
parent
For the Department of Education:
District Representative
school Psychologist (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 24, 2018
For the Student:
Attorney
Attorney
parent
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 25, 2018
For the Student:
Attorney
parent
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 1, 2018
For the Student:
Attorney
Neuropsychologist (Via Telephone)
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 22, 2018
For the Student:
Attorney
Attorney
parent
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 6, 2018
For the Student:
Attorney
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 23, 2018
For the Student:
Attorney
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 24, 2018
For the Student:
Attorney
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 15, 2018
For the Student:
Attorney
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 18, 2018
For the Student:
Attorney
parent
Neuropsychologist (Via Telephone)
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 8, 2019
For the Student:
Attorney
AT Evaluator (Via Telephone)
Evaluator (Via Telephone)
OT Evaluator (Via Telephone)
For the Department of Education:
District Representative
Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (THO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student. The Parent filed a complaint notice on February 22, 2018 (Ex. A) and an amended complaint notice on September 5, 2018 (Ex. UUU). The two complaint notices were consolidated on October 23, 2018. A pendency hearing was held on May 2, 2018 and May 9, 2018. I issued a pendency order on May 22, 2018. A hearing was held on June 5, 2018; June 13, 2018; June 20, 2018; July 24, 2018; July 25, 2018; August 1, 2018; August 22, 2018; September 6, 2018; October 23, 2018; October 24, 2018; November 15, 2018; December 18, 2018; and January 8, 2019. During the hearing, I issued eight interim orders for: a neuropsychological evaluation; a speech language evaluation; an assistive technology evaluation; an occupational therapy evaluation; six sessions of counseling; transportation; and an inquiry into the Student’s transportation difficulties.
Parent’s Position In the first complaint notice, the Parent alleged that the District failed to provide the Student a free appropriate public education (FAPE) for the 2015-2016; 2016-2017; and 2017-2018 school years. (Ex. A). In the amended complaint notice, the Parent alleged that the District failed to provide the Student a FAPE for the 2018-2019 school year as well. The parties have agreed upon a placement at the Nonpublic school since October 1, 2018 (Ex. 29). The Parent is seeking compensatory tutoring; compensatory services in speech language therapy, occupational therapy, and assistive technology training; and transportation to and from the Student’s current placement and the compensatory Services.
District’s Position The District did not present a case to defend the 2015-2016 and 2016-2017 school years.
(T. 92). Their position is that the Student is entitled to a reasonable amount of compensatory education for the second half of the 2016-2017 school year and from September-October 2017 but not for the remainder of the 2017-2018 school year because that they allege that beginning in November 2017, the District offered placements to the Student that were rejected by the Parent. The District also argued that the issues regarding transportation were not raised in the complaint notice and should not be considered at this time.
Student History
At the time the complaint notice was filed, the Student was . He has , and uses a wheelchair. (Ex. 17)'. The Student has attended the Nonpublic School since November 8, 2018 (Ex. RRR).
Overview ' In a neuropsychological evaluation, conducted in June 2018, the Student was diagnosed with Other Specified Attention Deficit/Hyperactivity Disorder with insufficient inattention symptoms and Adjustment Disorder with mixed anxiety and depressed mood. (Ex. EEE) In the affidavit from the Special Education Teacher from the Tutoring Agency she said that the Student is functioning two years below grade level in reading, writing, and math based on the results of the Kaufman Test of Educational Achievement - III from the educational evaluation conducted on April 28, 2018 (Ex. QQQ). On the WISC — 5th edition, the Student scored in the very low range for the full scale IQ; in the average range for the verbal comprehension index; the very low — low average range in verbal fluid reasoning and visual memory; in the low average range in receptive vocabulary and oral comprehension; and the low average range in visual spatial skills; and in the very low range in fluid reasoning skills. On the WIAT — UI, the Student was within the average range in reading and verbal skills; in the very low range in writing, and math. The Neuropsychologist reported that the Student had not made progress in his WIAT -— III testing and was near regression in applied math, sight word reading, and spelling. In the speech language evaluation conducted in September and October 2018, the evaluator found that the Student has moderate-severe language deficits and receptive language abilities; mild oral language delays; severe written language delays in expressive language abilities; and moderate deficits in pragmatic language. In the Assistive Technology evaluation, the Student was found to have the necessary cognitive skills, home support and motivation required to access proposed assistive technology. In the Occupational Therapy evaluation from November 2018, the evaluator found that the Student’s gross motor skills are well below age-expected levels, that he has challenges in fine motor development, executive functioning, and visual perceptual abilities in three dimensional spaces, and that the Student’s sensory registration, processing, and modulation are significantly affected. (Ex. HHH). The District presented one witness: The Bilingual School Psychologist who testified briefly but did not have time to continue her testimony. The Parent asked that the School Psychologist’s testimony be stricken from the record (T. 161, 165). The Parent called the Neuropsychologist, the Occupational Therapist, the Teacher from the Tutoring Agency, and the Assistive Technology Consultant as witnesses and the Parent also testified.
Background of the Case
Since the beginning of the 2015-2016 school year the District conceded a denial of FAPE. According to the District, that changed in November 2017 when multiple placement options became available’. In the meantime, while at his community school, in January 2017, the Student fell and received a head injury (which was not reported to the Parent) which damaged the Student’s shunt, which had to be replaced. Shortly afterwards, the Student was hospitalized for an acute kidney injury (Ex. RRR). The Parent did not send the Student back to school and the District provided home instruction to the Student from March-June 2017? (Ex. RRR).’.
* Finally, the Parties agreed upon a placement option and the District approved the Student for screening at the Nonpublic School on July 17, 2018. The Student was screened at the school on August 6 and August 7, 2018 (Ex. FFF). > According to the Parent, in May 2017, the District sent the Parent a letter discontinuing the Student’s home instruction (Ex. RRR). The Parent applied for home instruction in a letter dated May 11, 2017 (Ex. HH) * The Parent sent a letter to the District, dated May 11, 2017, requesting a reevaluation of the Student and stating that the Student’s current school was not able to provide for his medical needs (Ex. 9). The Parent signed consent to reevaluate the Student on May 17, 2017 (Ex. 10). A CSE meeting was held for the Student on June 19, 2017 for the 2017-2018 school year. The Parent attended the meeting and requested that the Student have the assistance of a nurse. The placement recommendation was for a community school (Ex. 14). On or about June 28, 2017, the Parent sent a letter to the District requesting a District Special School and a skilled nurse for the Student (Ex. 16). The Student was given a psychoeducational evaluation by the District, on or about July 18, 2017 (Ex. 18). A new CSE meeting was held for the student on August 7, 2017 and recommended placement in a District Special School. (Ex. 20). The Parent testified that at the meeting, she asked about how the Student could make up missed special education instruction and related services from his time away from school and the District’s failure to provide home instruction, and they did not address this (Ex. RRR). The Parent said she also spoke of her concerns that the Student had regressed and that he was afraid to go to school (Ex. RRR). The Parent said that the District never sent her a school location letter and she did not learn the Student was recommended for a District Special School until she went to the Student’s previous school the day before school started in the 2017-2018 school year to get a copy of the Student’s IEP (Ex. RRR) The Parent said she applied for home instruction again in September 2017 (Ex. RRR). The Parent testified that she requested that work be sent home for the Student starting in September 2017, but it was discontinued in November 2017. (Ex. RRR). The Parent said that she called the School Psychologist several times during September, October, 2017 — 2018 school year The Student was accepted by the Nonpublic school on September 4, 2018 pending CSE approval (Ex. RRR). A CSE meeting was held for the Student on September 14, 2018.
An IEP with an implementation date of October 1, 2018 (Ex. 29) was recommended’.
Recommendations
The Student’s doctor wrote a letter dated June 15, 2017 regarding his medical and personal care needs, supporting a program (that to all accounts is similar to the current placement at the Non-public school), in a school that has staff that can help the Student*, November to learn where the Student would go to school (Ex. RRR). The District Office of School Health sent a letter to the Parent, dated October 24, 2017 denying home instruction as not medically indicated (Ex. 22). On November 27, 2017, the Parent visited a District Special School (Ex. RRR). The Parent filed a due process complaint notice pro se, and then withdrew her request and filed a new complaint notice through her attorney in 2018 (Ex. RRR, Ex. A). The Parent stated that she visited five community schools during the hearing for pendency placement. None were fully accessible by wheelchair (Ex. RRR) The Parent received a placement letter, dated November 30, 2017 (Ex. JJ) for a District Special School. The District sent the Parent a letter denying home instruction again on or about March 6, 2018 (Ex. 24). The Parent faxed a letter to the CSE on or about January 19, 2018, stating that she disagreed with the District’s evaluations and requesting independent educational evaluations (Ex. V). The Parent sent the Nonpublic School the Student’s evaluations and report cards by email on June 6, 2018 (Ex. BBB, Ex. RRR). The District conducted a speech language evaluation for the Student on or about June 8, 2018; the evaluator did not recommend speech and language therapy (Ex. 25). ° The Student’s disability classification was changed from Other Health Impairment to Orthopedic Impairment (Ex. 29). The Parent stated that she called the CSE on September 27, 2018 and was told they needed documentation from the Nonpublic school, which sent the documentation to the CSE on September 4, 2018; September 27, 2018; and October 2, 2018. The Parent signed a document for the CSE to approve the Student’s placement on October 5, 2018 (Ex. FFF). The Parent testified that the District did not send the Student a bus until November 8, 2018 because the District school did not release him from its roster until then. (Ex. RRR). The Parent testified about the Student’s current difficulties with the bus (Ex. RRR). She would like either a private car transportation or a different arrangement on the bus such as a booster seat and safety belt (Ex. RRR).
® The Neuropsychologist recommended a placement consistent with the Nonpublic school that the Student currently attends.
* in a small, structured, supportive classroom within a small, nurturing and full-time special education school environment, in a school accessible to students with physical disabilities, and with appropriate supports and staff to address the Student’s specific health-related needs; a 1:1 nurse to address the Student’s needs throughout the day; speech language therapy in a small group to work on language pragmatics and clear expression of ideas; * counseling on the Student’s IEP, in a small group and 1:1; weekly psychotherapy using cognitive behavioral approach outside the school environment; and citing lack of care as the reason for the Student’s frequent urinary tract infections and upper respiratory infections. (Ex. 11).
There is also significant support for compensatory educational services. The Teacher who evaluated the Student for the Tutoring Agency recommended that the Student receive 300 hours of reading; 360 hours of writing; and 300 hours in math; for a total of 960 hours of 1:1 tutoring. (Ex. Q). The Speech and Language Pathologist who evaluated the Student in September and October 2018, recommended individual speech language therapy three times per week for 60 minutes, group social skills therapy one time per week for 60 minutes, and 322 hours of compensatory speech and language therapy (Ex. NNN). The evaluator also recommended testing for central auditory processing disorder by a trained audiologist. (Ex. II).
The Assistive Technology Consultant recommended 25 hours of AT training for the Student; his family, and the school staff who work with him at the beginning of the school year and throughout the school year as needed; a yearly reevaluation to determine if new applications and tools are necessary. (Ex. GGG). The AT Consultant also recommended an Apple iPad and a Logitech-Slim Keyboard Folio Case, specific iOS apps, and electronic versions of the Student’s textbooks. (Ex. SSS). The Occupational Therapist who conducted the OT evaluation for the Student in September 2018 recommended 1:1 OT three times per week for 45 minutes; two times outside the classroom and one time per week in the classroom (Ex. HHH). To make up for time that the Student was without OT services, she recommended a bank of 240 hours of compensatory individual OT to be provided by a private agency outside of school (Ex. TTT).
Legal Background
* door-to-door transportation on an air-conditioned and wheelchair accessible vehicle with limited travel time and one to one adult supervision; * a 12 month school year; and classroom modifications and testing accommodations (Ex. EEE). The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (““FAPE’’). 20 U.S.C. § 612(a)(D. “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as 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, or secondary school education in the state involved, and
- (D) are provided in conformity with the individualized education program required under § 614(d) ofthis title. 20 U.S.C. § 601(9).[7]
A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute ... is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).
The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(1)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).
In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing ...” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.
Analysis
The District conceded FAPE for the 2015-2016 and 2016-2017 school years. Although they submitted evidence and called one witness, they did not disprove the allegations in the Parent’s complaint notice for the time period preceding the implementation of services at the Nonpublic school: (October 2018). Although the District argues that they offered the Student educational placements starting in November 2017%, the Student did
* The Parent was willing to consider the District’s placement and visited the District Special School on or about November 27, 2017 (Ex. RRR), but found that the school did not meet the Student’s needs (T. 320not have a suitable placement and remained at home without instruction until he began attending the Nonpublic School in November 2018, after delays in the District processing the documentation for the placement and arranging for transportation (Ex. RRR). In her testimony and in her report, the Neuropsychologist emphasized that the Student had not made appropriate progress and some of his skills were near regression (Ex. EEE, T. 350-351). She theorized that the only reason the Student did not “regress completely” was because his Parent was working with him at home (T. 350-351). I credit the testimony of the Parent, who described her efforts to obtain a suitable placement and program for the Student. I find that she fully cooperated with the District. I also credit the testimony and evaluations by the Neuropsychologist, the Speech Language Pathologist, the Occupational Therapist, the AT Consultant, and the Teacher from the Tutoring Agency that the Student has serious needs, failed to make progress as a result of not having an educational placement, and requires remediation to improve his skills.
Compensatory Education
Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and. . . mould each decree to the necessities of the particular case”’) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].
Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation 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 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 322). During the hearing, the Parent testified that she visited five District schools as possible pendency placements. However, they were not fully handicapped-accessible (Ex. RRR). 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001].
Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008).
Likewise, SROs 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 (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO 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 the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]). In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"}).
Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address the problems with the IEP"]; see also 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 student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"];_ Parents of Student W. v. Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014. I have placed a time limit on the requested award for compensatory education for a couple of reasons. One, I am persuaded that, by the parties’ agreement to the Student’s placement in the proper learning environment, the Student will be given the opportunity to make significant progress. Two, I recognize there are a finite number of hours per week, and the demands of the Student’s school year along with significant hours of tutoring, may be daunting. Inherent limits of stamina, pace, concentration and the like could easily place an unintended burden on the Student and the family. I attempt to mitigate these unintended consequences with my order.
From another perspective, I am reducing the number of hours of compensatory services by 20% percent because although the Student did suffer extended deprivations of educational benefit, ultimately, through the advocacy of the parties, the District did respond and put appropriate services in place. Accordingly, I direct a slightly reduced compliment of available hours for tutoring services, and I limit their use to 36 months from this order.
In conclusion, I issue the following orders’:
1. The District fund a bank of hours at the Tutoring Agency as follows: 240 hours of reading; 298 hours of writing; and 240 hours in math; for a total of 778 hours of 1:1 tutoring (to be utilized within 36 months of the date of this order);
2. The District fund a bank of 255 hours of compensatory speech and language therapy (to be utilized within 36 months of the date of this order);
3. The District fund a bank of 75 hours of AT training for the Student; his family, and the school staff who work with him at the beginning of the school year and throughout the school year as needed for three consecutive school years;
4. The District fund a bank of 192 hours of compensatory individual OT to be provided by a private agency outside of school (to be utilized within 36 months of the date of this order);
? Regarding the rate to be paid for the services ordered herein, I direct the implementation unit of the District to pay the market rate to the agency/provider involved in accordance with past practices.
5. I also remand this matter to the CSE to consider the recommendations for a central auditory processing evaluation by a trained audiologist, a yearly assistive technology reevaluation to determine if new applications and tools can benefit the Student; consideration of the assistive technology Consultant’s recommendations for an Apple iPad and a Logitech-Slim Keyboard Folio Case, specific iOS apps, and electronic versions of the Student’s textbooks. Finally, reconsideration of the Student’s transportation needs.
Dated: April 30, 2019
So Ordered,
MARTIN J. KEHOE III, ESQ.
Impartial Hearing Officer
MJK:
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
A Parent’s Hearing Request, 2/22/18, 15 pages
B Individualized Education Plan, 1/16/15, 14 pages
C Amended Individualized Education Plan, 1/16/15, 14 pages
D Individualized Education Plan, 1//1/16, 12 pages
E Individualized Education Plan, 5/17/16, 13 pages
F Individualized Education Plan, 6/19/17, 13 pages
G Individualized Education Plan, 8/7/17, 10 pages
H Occupational Therapy Evaluation, 1/9/12, 3 pages
I Physical Therapy Evaluation, 1/9/12, 4 pages
J Speech-Language Evaluation, 1/25/14, 4 pages
K Physical Therapy Annual Review Plan, 1/15/15, 4 pages
L Occupational Therapy Annual Review Plan, 1/16/15, 2 pages
M Occupational and Physical Therapy Annual Review plan, 5/6/16, 2 pages
N Occupational and Physical Therapy Clinical Guide, 6/9/16, 2 pages
O Social History Update, 7/18/17, 2 pages
P Psychoeducational Evaluation, 7/20/17, 12 pages
Q Educational Evaluation, 4/28/18, 6 pages
R Parent’s Letter to DOE Requesting IEP Meeting, 2/29/16, 1 page
S Parent’s Letter to DOE Requesting New Program, 5/18/17, 2 pages
T Pediatrician’s Letter to DOE, 6/15/17, 1 page
U Parent’s Letter to DOE Requesting Reevaluation, 6/29/17, 2 pages
V Parent’s Letter to DOE Requesting IEE, 1/19/18, 3 pages
W Parent’s Correspondence re Issues with Placement, 5/9/18, 2 pages
xX Parent’s Correspondence re: Issues with Placement, 5/10/18, 2 pages
Y Paren’t Correspondence re: IIJues with Placement, 5/10-5/14/18, 3 pages
Z Paren’s Correspondence re: Issues with Placement, 5/10-5/15/18, 4 pages
AA Parent’s Correspondence re: Issues with Placement, 5/24/18, 4 pages BB _ Parent’s Correspondence re: Issues with Placement, 6/4/18, 1 pages
CC Parent’s Consent to Reasess, 1/29/14, 1 page
DD DOE Referral for Reevaluation, 3/9/16, 2 pages
EE Hospital Discharge Papers, 2/10/17, 4 pages
FF Hospital Discharge Papers, 2/10/17, 4 pages
GG DOE Incident Report, 2/16/17, 4 pages
HH Home Instruction Application, 5/11/17, 3 pages
II Hoe Instruction Application, 9/11/17, 3 pages
JJ Recommended Placement, 11/30/17, 11 pages
KK Home Instruction Application, 1/25/18, 5 pages
LL DOE Request for Reasses, 1/26/18, 2 pages
MM Promotion in Doubt Notice, undated, 1 page
Home Instruction Denial, undated, a page OO Assessment Authorization Form, 3/15/18, 11 pages
PP Parent’s Request for Provision of Medically Prescribed Treatment (Non-Medication), 5/25/18, 1 page
QQ Provider Treatment Order Form, 5/29/18, 1 page
OSEP Letter to, 2/23/15, 2 pages
SS DOE Standard Operating Procedure Manual, undated, 2 pages
TT OSEP Letter to, 10/9/02, 2 pages
UU OSEP Letter to, W/10/1, 8 pages
VV OSEP Letter, 10/22/16, 2 pages
WW OSEP Letter to, 9/4/89, 3 pages
XX OSEP Letter to, 10/5/88, 2 page
YY Memorandum to, 3/28/12, 1 page
ZZ Memorandum for, 11/1999, 5 pages AAA Parent’s Motion for Interim IEEs, 4/5/18, 11 pages BBB Parent’s Email to, 6/6/18, 36 pages
CCC Recommendation, 5/24/18, 1 page
DDD Resume of, undated, 9 pages EEE Neuropsychological Evaluation, 6/18/18, 22 pages FFF NYSED Application for Commissioner’s, October 2018, 5 pages GGG_ Independent Assistive Technology Evaluation, 9/21/18, 9 pages HHH_ Independent Occupational Therapy Evaluation, 9/30/18, 14 pages
I Independent Speech-Language Evaluation, 9/18/18, 12 pages JJJ Resume of, undated, 2 pages KKK _ Resume of, undated, 2 pages
LLL Affidavit of, 11/13/18, 1 page
MMM Affidavit of, 11/13/18, 10 pages NNN Affidavit of, Regarding Speech-Language, 11/26/18, 3 pages OOO Affidavit of, undated, 1 page PPP Resume of, undated, 1 page QQQ Affidavit of, 11/27/18, 2 pages RRR Affidavit of, 12/11/18, 9 pages SSS Affidavit and Resume of, undated, 12 pages TTT Affidavit of, 1/5/19, 6 pages UUU_ Complaint Notice, 9/5/18
DEPARTMENT OF EDUCATION
1 Due Process Complaint, 2/22/18, 15 pages
Individualized Education Program (IEP), 5/15/16, 15 pages
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Prior Written Notice of Recommendation, 1/15/16, 4 pages
Request for Reconvene, 2/29/16, 1 page
Notice of IEP Meeting, 3/1/16, 3 pages
Physical Therapy Clinical Guide, 5/6/16, 2 pages
Occupational Therapy Clinical Guide, 6 pages
Prior Written Notice of Recommendation, 6/30/16
Request for Reevaluation, 5/11/17, 1 pages
Consent for Evaluation, 5/11/17, 1 page —>—a) Consent for Evaluation, 5/17/17, 1 page
12 Notice of IEP Meeting, 5/30/17, 3 pages
13 Notice of IEP Meeting, 6/12/17, 3 pages
14 Individualized Education Program (IEP), 6/19/17, 15 pages
15 Prior Written Notice of Recommendation, 6/28/17, 4 pages
16 Parent Letter, 6/28/17, 1 page
17 Social History Update, 7/18/17, 11 pages
18 Psychoeducational Evaluation, 7/18/17, 11 pages
19 Vineland Report, 7/18/17, 4 pages
20 Individualized Education Program (IEP), 8/7/17, 11 pages
21 Medical Request, 9/10/17, 1 page
22 Request for Home Instruction, 10/24/17, 1 page
23 Prior Written Notice of Recommendation, 10/25/17, 7 pages
24 Request for Home instruction, 3/6/18, 2 pages
25 Speech Evaluation, 6/8/18, 14 pages
26 AA2 Form for Occupational Therapy Evaluation, 6/8/18, 7 pages
27 Assistive Technology Interview w/Attendance, 6/12/18, 5 pages
28 Nickerson Letter, 6/14/18, 6 pages
29 Individualized Education Program (IEP), 9/14/18, 13 pages
IMPARTIAL HEARING OFFICER
[HO #1 District’s Closing Brief, 4 pages THO #2 Parent’s Closing Brief, 17 pages
Footnotes
[7] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).