New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 160264

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: September 28, 2016

December 9, 2016

February 2, 2017

February 10, 2017

February 27, 2017

March 24, 2017

March 31, 2017

April 28, 2017

Actual Record Closed Date: May 22, 2017

Hearing Officer: Bruce Olinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 28, 2016

Advocate — Student

Parents

District Representative — DOE

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 9, 2016

Advocate — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 2, 2017

Advocate — Student

Parents

(Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10, 2017

Advocate — Student

District Representative (VIA TELEPHONE) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 27, 2017

Advocate — Student

(Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 24, 2017

Advocate (Via Telephone) — Student

District Representative (Via Telephone) — DOE

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 31, 2017

Advocate — Student

Parents

Student

(Via Telephone) — Student

District Representative — DOE

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 28, 2017

Advocate — Student

Parents

District Representative — DOE

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education laws. The New York City Department of Education will be referred to as District or the DOE, the parents as Parents or , the child will be referred to as Student or , and the Impartial Hearing Officer will be referred to as IHO.

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. 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)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in 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)(v), (vii), (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 § 200.5(j)(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 IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal 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).

PROCEDURAL HISTORY

This hearing was requested by a Due Process Complaint on April 8, 2016 by , the parent of student (Parent Ex. A). The nature of the complaint to be addressed in this decision is the Parent’s claim that the DOE failed to provide with a FAPE for the 2015/16 school year. Parent subsequently unilaterally enrolled at the

(hereafter, “ ”) school and, by this hearing request, seeks tuition reimbursement and/or payment for funds expended by Parents and remaining due for the 2015/16 school year at .

The undersigned was appointed as Impartial Hearing Officer on November 29, 2016, following the recusal of the IHO originally appointed to this case. An initial hearing was held on September 28, 2016 before the originally appointed IHO.

Representing the DOE at that hearing was and representing the Parent was , Parent Advocate, . Additional hearings were held before the undersigned on December 9, 2016, February 2, 2017, February 10, 2017, February 27, 2017, March 24, 2017, March 31, 2017 and April 28, 2017. Representing the DOE at all such hearings was , with the exception of March 31, 2017, during which time the DOE was represented by both and .

Representing the Parent at all such hearings was , Parent Advocate, , with the exception of February 10, 2017, during which time the Parent was represented by , Parent Advocate, .

Additionally, a second Due Process Hearing request was made by Parent on January 30, 2017, concerning the alleged denial of a FAPE for the same student for the 2016/17 school year. By such second hearing request, the undersigned IHO was asked to determine whether such hearing request of January 30, 2017 for the 2016/17 school year should be consolidated with the instant hearing request. After consideration of all relevant factors, it was determined that the interests of all parties would be best served if such second hearing request was not consolidated with the instant hearing. On February 6, 2017, an Order was issued by the undersigned directing that the Parent’s January 30, 2017 request for an impartial hearing concerning the 2016/17 school year be not consolidated with the instant impartial hearing (IHO Ex. I). The Order directing non-consolidation was not appealed within the required time period.

During the course of the proceedings, the parties moved to extend the case compliance date in this matter before the undersigned on December 9, 2016, January 23, 2017, February 2, 2017, March 31, 2017, April 28, 2017 and May 30, 2017, all in order to allow for an examination of all relevant witnesses and documents, and to complete the hearing (The undersigned is not in possession of records indicating any requests to extend the case compliance date made prior to being assigned this case following the recusal of the originally appointed IHO). In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for the presentation of all relevant evidence, and the testimony of all relevant witnesses, as well as time for the parties to submit closing statements/briefs and the review of same, together with the review of transcripts from all hearing dates, the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (IHO Exhibit II). See 34 C.F.R.

§ 300.515(c); 8 NYCRR § 200.5(j)(5).

Note: The evidentiary record contains three (3) extensions of the compliance period dated December 9, 2016, including one such extension extending the case to a date prior to such December 9, 2016 date. That is because, as of the date that the undersigned IHO was assigned this case (November 29, 2016), the Impartial Hearing Office records failed to establish that the originally assigned IHO had processed extensions of the case in a timely manner, thereby requiring the undersigned, as per the instruction of the Impartial Hearing Office, to submit for processing the aforesaid 3 case extensions dated December 9, 2016, all following requests by the parties, in order to bring the case in compliance with required time periods.

The hearing record was closed effective May 22, 2017, upon receipt of closing statements/briefs of each party.

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).

FACTUAL BACKGROUND

Student is a who is diagnosed with

. He presents with

. He requires

. He displays

and has

. He also displays

, and requires .

.

.

. His IEP at issue for this hearing, dated April 16, 2015, recommended a setting with appropriate related services to address his

.

PARENT’S POSITION

The Parents allege that Student has been denied a FAPE for the 2015/16 school year, due to the failure of the DOE to properly and adequately evaluate to determine an appropriate educational plan to meet his unique needs. Parent further alleges that the IEP at issue fails to provide a recommended program to adequately address ’s needs, particularly that the recommended program is inappropriate for his needs and, alternatively, that such program cannot implement the mandates of the IEP at issue.

Parent further alleges that the program is the necessary and appropriate placement for , and by this impartial hearing request seeks reimbursement of tuition for ’s placement at for the 2015/16 school year.

DISTRICTS POSITION

The District contends that was properly evaluated for the 2015/16 school year and that the subsequent education plan, as contained in the IEP, was appropriate for in adequately addressing his educational needs.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

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); B oard of Educ. of the Hendrick Hudson Cent. Sch. Dist.

v. Rowley, 458 U.S. 176, 206-07 (1982) 1.

1. The term “free appropriate public education” means special education and related services that –

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 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" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).

Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at

132).

However, in the recent decision of the United States Supreme Court, Endrew F.,

Et A l v. Douglas County School District RE–1, by Certiorari to The United States Court

Of Appeals for the Tenth Circuit, No. 15–827, argued January 11, 2017, and decided March 22, 2017, the Court held that, while Rowley declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act”, 458 U. S., at 202, it nevertheless still held that “a substantive standard was “implicit in the Act”. Rowley , 458 U. S., at 193, n. 15. It similarly held that “the statement that the Act did not “guarantee any particular level of education” simply reflects the unobjectionable proposition that the IDEA cannot and does not promise “any particular [educational] outcome.” Id.at 192. Rather, the Court in Endrew held that, “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circum stances (emphasis added), as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth ”. §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all”. The Court in Endrew further stated that “The IDEA demands more.

It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”. And although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created”. Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982).

The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see 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, 486 Fed. App'x 954 [2d Cir. 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. 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 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), 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 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320). The school district must provide special education and related services to a student with a disability in accordance with the student's IEP and must make a good faith effort to assist the student to achieve the annual goals and, if appropriate, short-term instructional objectives or benchmarks listed in the student's IEP. See 8 NYCRR 200.4(e)(7). With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way (T.L. v. New

York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S., 2011 WL 3919040, at *13; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; see A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]). In order to show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimis failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP (see Houston Indep. Sch. Dist., 200 F.3d at 349; see also Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524–25 [3d Cir. 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]). Accordingly, in reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" (A.P., 370 Fed. App'x at 205; see Van Duyn, 502 F.3d at 822 [holding that a "material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled [student] and the services required by the [student's] IEP"]; see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D. D.C. 2007] [holding that where a student missed a 'handful' of speech-language therapy sessions as a result of the therapist's absence or due to the student's fatigue, nevertheless, the student received consistent speech-language therapy in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a)

impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 394 Fed. App'x 718, 720, 2010 WL 3242234 [2d Cir. Aug. 16, 2010]; E.H. v.

Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 361 Fed. App'x 156, 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, 293 Fed. App'x 20, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir.

2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v.

Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

The burden of proof to establish that a FAPE has been offered to the Student 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 (Educ. Law § 4404[1][c]; see 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]).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if :

1. the services offered by the board of education were inadequate or inappropriate;

2. the services selected by the parents were appropriate; and

3. equitable considerations support the parents' claim.

(Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington

v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).

"Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR

300.148).

Generally, in applying the three-prong standard in a tuition-reimbursement case enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in consideration of the issues presented, to first determine whether or not the School District offered the Student a free, appropriate public education (FAPE). The burden of establishing that it did so rests upon the District (N.Y.S.

Education Law§4404). Under the guidelines established by Burlington and Carter, if a determination is made that District did in fact offer the Student a FAPE for the relevant school year, the inquiry into the Parent’s request for tuition reimbursement for the unilateral placement would cease; once a District has offered FAPE, a parent’s right to the requested relief of tuition reimbursement must be denied. Similarly, if it is determined that the District failed to establish that it provided a FAPE to the Student, then a further determination must be made as to the appropriateness of the Parent’s unilaterally-selected school. The burden of establishing such appropriateness falls upon Parent (N.Y.S.

Education Law §4404). Should the Parent fail to establish the appropriateness of the unilaterally-selected facility, Parent’s request for relief must be denied. If, however, the Parent meets such burden, and the unilaterally-selected educational facility is determined to be appropriate, a review of the equities must be undertaken to determine whether equitable considerations favor an award of relief to the parent, a necessary prerequisite for the awarding of such equitable relief.

LEAST RESTRICTIVE ENVIRONMENT

Generally, when determining an appropriate placement on the educational continuum, a CSE should first determine the extent to which the student can be educated with nondisabled peers in a public school setting before considering a more restrictive nonpublic school option (see E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *15 [E.D.N.Y. Aug. 19, 2013]; [explaining that "under the law, once [the district]

determined that [the public school setting] was the least restrictive environment in which [the student] could be educated, it was not obligated to consider a more restrictive environment, such as [the nonpublic school]"]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *8 [S.D.N.Y. Mar. 19, 2013] [finding that "[o]nce the CSE determined that [public school setting] would be appropriate for the [s]tudent, it had identified the least restrictive environment that could meet the [s]tudent's needs and did not need to inquire into more restrictive options such as nonpublic programs"]).

The IDEA requires that a student's recommended program must be provided in the

LRE (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR

200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 111; Gagliardo, 489 F.3d at 105; Walczak, 142 F.3d at 132; Patskin, 583 F. Supp. 2d at 428). In determining an appropriate placement in the LRE, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling or other removal of students with disabilities from the general educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][5][A]; see 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; Newington, 546 F.3d at 112, 120-21; Oberti v. Bd. of Educ., 995 F.2d 1204, 1215 [3d Cir. 1993]; J.S. v. N. Colonie

Cent. Sch.

Dist., 586 F. Supp. 2d 74, 82 [N.D.N.Y. 2008]; Patskin, 583 F. Supp. 2d at 430; Watson

v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 144 [N.D.N.Y. 2004]; Mavis v. Sobol, 839 F. Supp. 968, 982 [N.D.N.Y. 1993]). The placement of an individual student in the LRE shall "(1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home" (8 NYCRR 200.1[cc]; 8 NYCRR 200.4[d][4][ii][b]; see 34 CFR 300.116). Consideration is also given to any potential harmful effect on students or on the quality of services that they need (34 CFR

300.116[d]; 8 NYCRR 200.4[d][4][ii][c]). Federal and State regulations also require that school districts ensure that a continuum of alternative placements be available to meet the needs of students with disabilities for special education and related services (34 CFR

300.115; 8 NYCRR 200.6). The continuum of alternative placements includes instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions; and the continuum makes provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement (34 CFR 300.115[b]). To apply the principles described above, the Second Circuit adopted a two-pronged test for determining whether an IEP places a student in the LRE, considering (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate (Newington, 546 F.3d at 119-20; see J.S., 586 F. Supp. 2d at 82; Patskin, 583 F. Supp. 2d at 430; see also M.W., 725 F.3d at 144; Oberti, 995 F.2d at 1217- 18; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048-50 [5th Cir. 1989]). A determination regarding the first prong, (whether a student with a disability can be educated satisfactorily in a general education class with supplemental aids and services), is made through an examination of a non-exhaustive list of factors, including, but not limited to "(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class" (Newington, 546 F.3d at 120; see J.S., 586 F. Supp. 2d at 82; Patskin, 583 F. Supp. 2d at 430; see also M.W., 725 F.3d at 144; Oberti, 995 F.2d at 1217-

18; Daniel R.R., 874 F.2d at 1048-50). If, after examining the factors under the first prong, it is determined that the district was justified in removing the student from the general education classroom and placing the student in a special class, the second prong requires consideration of whether the district has included the student in school programs with nondisabled students to the maximum extent appropriate (Newington, 546 F.3d at

120).

In fashioning a test to assess a student's placement in the LRE, the Court acknowledged that the IDEA's "'strong preference'" for educating students with disabilities alongside their nondisabled peers "'must be weighed against the importance of providing an appropriate education'" to students with disabilities (Newington, 546 F.3d at 119, see Walczak, 142 F.3d at 122; Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir.

1989]; see also Lachman v. Ill. State Bd. of Educ., 852 F.2d 290, 295 [7th Cir. 1988]). In recognizing the tension created between the IDEA's goal of "providing an education suited to a student's particular needs and its goal of educating that student with his non-disabled peers as much as circumstances allow," the Court explained that the inquiry must be fact specific, individualized, and on a case-by-case analysis regarding whether both goals have been "optimally accommodated under particular circumstances" (Newington, 546 F.3d at 119-20, citing Daniel R.R., 874 F.2d at 1044).

COMPENSATORY SERVICES

The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New

York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]. 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., 31F.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"]; Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10- 052). 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"]; S.A. v. New York City Dep't of Educ., 2014 WL 1311761, at *7 [E.D.N.Y. Mar. 30, 2014] [noting that compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]; 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 [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"]; Puyallup, 31 F.3d at 1497 [finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]; Application of a Student with a Disability, Appeal No. 13-168; Application of the Dep't of Educ., Appeal No.12-135; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v.

Central Regional School District, 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.”).

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.” 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. Reid, supra at 526.

THE TESTIMONY

The following is a summary of the testimony of all witnesses who testified at the hearing. All pages numbers to follow in parentheses shall refer to Transcript page numbers.

TESTIFYING FOR THE PARENT

1.

BA Degree,

MA and Doctorate,

Dr. is a , employed by the DOE since 2014. She is a New York State Certified and a New York State licensed

.

Dr. , initially testified before the originally appointed Impartial Hearing Officer, not the undersigned. During such testimony, she stated that she was in charge of

. She

conducted the IEP meeting of April 16, 2015, serving as both District Representative and

(p. 16-17), which meeting resulted in the creation of the IEP dated April 16, 2015 (DOE Ex. 1 and Parent Ex. D). Also present at the IEP meeting were the , the , the and the Parent was recommended for a placement based on classroom observation, a teacher interview, and reports from the classroom teacher and (p.

19), plus conversations with Parent

Dr. stated that ’s previous, class consisted of a placement, together with an , and that he was doing well in such setting, despite acknowledged delays in

(p. 20). She further stated that, based on her own observation of in his class, he was able to and doing well otherwise, and that all parties at the IEP meeting agreed that a similar class size was appropriate for , and that a or a more restricted setting such as a placement would be inappropriate (p. 20-21). She testified that was recommended for a classroom setting of , together with the continuation of

(p. 21-23). was recommended because, despite significant improvement since the beginning of , still exhibited both delays (p. 23), and the recommendation was for (p. 24).

was recommended because continued to exhibit difficulties with

(p. 23).

was recommended because exhibited , including (p.

24). Dr. stated that, as far as she could recall, Parent agreed with both the related services recommendations as well as the classroom recommendation and believed that the IEP team would have made changes had the Parent disagreed (p. 24-27). She also stated that the classroom teacher agreed with all such recommendations as contained in the IEP

(p. 25-27), and that she, as a , felt that the evaluations and reports supported the recommendation as contained in the IEP (p. 27), that she agreed with such recommendation, and that is capable of functioning in such a setting (p.28).

On cross examination, Dr. was asked about

, as contained in the Classroom Observation, dated February 12, 2015 (DOE Ex. 4).

Dr. stated that although the IEP did not specifically address such occurrences, she indicated that the IEP did in fact address same by indicating

(p. 30-32).

When asked why his IEP did not recommend , such as “ ”, to accommodate such , Dr. replied that

(p. 32-33), although she conceded that, while the assumption was that would be assigned to the school in her district, the actual acceptance letters had not gone out yet (p. 34). Dr. further testified that the IEP contained a recommendation for a to address , although it was her understanding that

(p. 37). With respect to her observation that displayed

, Dr. stated that it was based on the teacher’s report (p. 38). She also stated, in response to a question from the originally appointed IHO, that although the Progress Report (DOE Ex. 11) recommended , and the IEP recommended such as , the would have provided such if she felt it was necessary (p.

42).

Dr. was asked to testify again after the appointment of the undersigned, following the recusal of the originally appointed IHO. Upon direct questioning from the undersigned, Dr. testified that, with respect to the recommendations contained in the IEP dated April 16, 2015, and as is generally the case with recommendations set forth in a student’s IEP, the recommendations for as particularly contained in his IEP were the result of, and on the basis of, teacher reports, related services providers, classroom observations and interviews (p. 208-209). She further testified that the Classroom Observation Report (DOE Ex. 4), of which she was the author, was the result of her own classroom observation and an interview with the classroom teacher (p. 209-210), but that other than this one classroom observation, which lasted approximately 60-90 minutes, she had no other interaction with (p. 210). Dr. further testified that she was in receipt of both the Report (DOE Ex. 11) and Report (DOE Ex.9) prior to the IEP meeting of April 16, 2015, and reviewed both reports prior to the IEP meeting and prior to the final recommendations as set forth in the IEP (p. 211-214), and that there were general conversations at the IEP meeting concerning pertaining to his need for

(p. 212). Dr. further stated that the contents of each report were discussed with the and , respectively, at her own school prior to the IEP meeting (p. 213-214) and prior to the final recommendations found in the IEP. Dr. further testified that, other than the reports identified as DOE Ex. 9 and 11, as noted above, and other than the conversations that she had with the individual in her own school prior to the IEP meeting, she had no information, either written or verbal, nor any documentation or assessments concerning and his needs and disabilities requiring (p. 214-215).

Finally, Dr. was asked how a recommendation was made for on his IEP, for both and , that was at variance with those recommendations as contained in the two reports (DOE Ex. 9 and 11). Specifically, Dr.

was asked to explain how, in the absence of any other written or verbal assessments of with respect to his need for and , the recommendations on the IEP were for (instead of the recommended ) and for

(instead of the recommended ).

Dr. stated that, with respect to , was recommended for , to assist him with

(p. 215-216), and that the recommendation on the IEP was really for , so that

(p. 216-217). Dr. stated that, with respect to , was recommended for and that, as was the case with , only had it been apparent that he required it (p. 217-218).

The Parent presented several witnesses.

TESTIFYING FOR THE PARENT

1. ,

Undergraduate Degree,

Graduate Degree, ,

Master’s Degree, testified that he has been for the past 15 years, having previously taught both general education and special education. He stated that

(p. 75). He further stated that the employs as well as various related service providers (p. 76), all of whom received professional development training during the school year (p.77). further stated that, prior to accepting at , a formal application process occurred, which was comprised of interviews with the parents, review of all applicable evaluations and testing previously conducted, observation of at his current placement, and a personal evaluation with in the areas of , and (78-85). The witness further testified that in the beginning of the 2015/16 school year at , was observed to require and with . He was further observed .

(p. 85). He did state, however, that

(p. 90). He testified that was in a class of

(p. 96), and that he believed a setting would be and that a would impact his ability to receive

(p. 98). also testified that ’s class schedule ran from to , through , and to (p.

101). In addition to , received

(p. 103-105). There was also

, during which

(p. 105-106). stated that he believes the program provided with an appropriate special education because it addressed his areas of deficits and, as a result, demonstrated progress in

(p. 107), and that he believes the progress attained by was the result of individualized instruction tailored to his particular needs rather than just the maturation of a young child throughout the year (p. 109).

On cross examination, testified that was able to

(p. 111). He

also stated that, with respect to the description of as contained in the April 16, 2015 IEP, that such description reflects

(p. 124). He did state that did not implement the provision of the for because when he began in September, 2015 (p. 128).

2. ,

Master’s Degree,

NYS ,

Certified in ( ) and

Next to testify was , who testified that she is currently employed at , the school that attends, as an , and has been so employed for the past 10 years, and worked with during the 2015/16 school year.

Due to ’s , she was unable to assess by means of formal standardized testing, but instead performed an informal assessment with clinical observations, which included interviews with his teachers and parents (p. 160-

161). Ms. stated that, upon her initial contact with in September, 2015, he presented with , including

(p. 162). He also demonstrated

(p.162). (p.

162-163). He also demonstrated

(p. 162-164), and that is a tool to address such issues by (p.

165). She also stated that presented with

(p. 166). (p. 166).

Ms. was asked her opinion of ’s IEP, which included some goals and recommended and .

Ms. indicated that she believed the goals as contained in the IEP were, for the most part, appropriate (if not overly ambitious), and that made progress in varying degrees during the 2015/16 school year (p. 169-174). She also described some of the techniques she used in addressing the goals set out for , including

(p. 172-176).

However, with respect to the recommended and for as recommended on the IEP, Ms. stated that she determined that

(p.176-177). She instead structured

that included, among other things,

(p. 177-179). Ms. further stated that she worked with ’s classroom teacher on a regular basis, with such teacher often observing during his sessions, and sharing with the classroom teacher techniques and strategies that proved successful during , (p. 179) and that the classroom teacher advised her of ’s success at areas being worked on during sessions, such as (p. 179-180). Ms. stated that, due to , he requires , and that although he has far still to go, made significant progress during the 2015/16 school year, particularly in the areas of

(p. 180-183).

On cross examination, Ms. stated that it was her opinion, based on her having worked with during the 2015/16 school year, as well as her continuous observations with him during that time, that he would not have progressed had he been placed in a classroom with , even with , because required only available in a setting with a correspondingly

. She further stated that, due to

, he

achieved the progress that he did due to the and that existed at (p. 182-186).

Ms. further reiterated on cross examination that she found the recommendation of and , as contained in the IEP, to be inappropriate and ineffective for , stating again that she determined, after approximately 1 month of attempting to treat according to the IEP recommendation, that required (p. 196-

197) and that she herself, not the administration, made that determination (p. 197-

198).

3. , ,

Master’s Degree,

New York State Licensed ,

New York State Licensed ,

Next to testify for the Parent was , for for the past 10 years. She testified that, in the course of her regular routine at , she observed in his classroom each day of his attendance there during the 2014/15 school year, and spoke with his teacher and related service providers on a regular basis (p. 231-232). Ms. was then asked to state her observations, in her professional capacity, as to ’s challenges. With respect to his challenges, Ms. testified that due to , ,

(p. 232-233). He was also observed to appear to have issues, requiring

(p. 234).

– describing him as “ ”, “ ” and

“ ” in terms of (p. 235-236).

(p.238-240).

On cross examination, Ms. testified that, specifically with respect to would impact upon his learning as

(p.241).

On direct testimony from the undersigned, Ms. was asked to consider ’s abilities and needs at the end of the 2014/15 school year (the end of the year), as . Specifically, she was asked her professional opinion, based on her observations of during the entire year, as to what would be an appropriate placement for in . She stated that an would definitely not be appropriate for , and that based on what the Department of Education had to offer, a class size of would be appropriate (p.

248). When asked to consider what she believed to be the most appropriate placement for , irrespective of what the Department of Education had available, but rather based solely on ’s educational needs, Ms. stated that a would be better, but not too as to , as

(p. 248-249). She further stated that, in her opinion, her ideal placement for would be between students with similar academic levels of proficiency and social skills to ensure , together with appropriate related services. (p. 249).

Ms. then forwarded to the parties at the hearing a copy of the Educational Progress Report dated December 8, 2014 and authored by , ’s classroom teacher during his year, which document was marked for evidence as IHO Ex. III. Ms. stated that it was the policy of to forward this document to the CSE in preparation for ’s IEP. She further stated that, as per the report, with which she concurred,

(p. 259). He also exhibited ; i.e., (p. 260). Finally, Ms.

testified that, in looking back at the entire 2014/15 year, ’s greatest strength was , as . He made progress for the most part in other areas as well, including in and, as a result, . He did have occasions of , and although he did not achieve a great leap of progress that some other classmates did, he nevertheless achieved slow and steady progress (p.268-271), but that he was, at the end of the year, , including

, , , and

(p. 270-273).

4. Parent

The final witness to testify was Parent testified that started receiving special education services starting when he was approximately , and had attended for a period of beginning when he was . She further testified that during the meeting, she disagreed with his placement in a class due to her belief that (p. 290). She further stated that, during this meeting, she discussed with the IEP team ’s (p.290). She stated that she visited the recommended school and determined that it was inappropriate for because , and

(p. 291). She further testified that she believed required more than the for , recommended to address , as she believed he required (p. 292). Parent also testified that she believed the goals as articulated on the IEP could not have been implemented in a class with a placement, as she believed that required the

(p. 293). She stated that she chose the due to its , ,

, and . She stated that the was a beneficial program for , as he made significant progress and received when he needed it but had

(p. 293-294). She further testified that made progress during his year in the , specifically with regards to , but that he still has far to go (p. 297). Finally, with respect to whether the proposed IEP was appropriate for ’s needs, Parent stated that she believed it was not, as the recommended placement of a would be too for

(p. 299-300).

On cross examination, Parent stated that she advised the CSE, at the time of the IEP meeting, that she disagreed with the recommendation of a placement (p.

300). She also testified that she did not understand the provision of only , as and would require

(p. 302). Finally, she stated that although she attended on several occasions for parties, she never actually observed in any of his classrooms (p.

303).

On examination by the undersigned IHO, Parent testified that she agreed with the testimony of Ms. that ’s greatest strength was (p. 304-

305). She further testified that she agreed with Ms. ’s assessment that ,

(p. 305), but added

that she still believed (p. 306), and agreed that needs (p. 307), together with (p.

307). When asked if she believed that ’s placement at , in a class consisting of , was too restrictive, especially in how such class would negatively affect his ability to engage in his greatest strength, , Parent stated that she did not believe it to be so, because , but at the same time receive the individualized instruction he needed (p. 308-309). She also stated that

, but that her

main concern was (p. 311). To obtain a clarification of exactly what her objections were to the proposed IEP, especially in light of the fact that the issue of the became moot, as upon entering the 2015/16 school year, Parent stated that she had no objection to the provision of related services as articulated on the IEP; rather, her objection to the proposed IEP was solely to the placement recommendation of a class (p. 311-312). Parent was then reminded of the testimony of Ms. ,, who had testified that she believed that the ideal placement for would be in a classroom of between students, together with the related services. Parent was asked whether she agreed with the opinion of Ms.

. She stated that she did not agree, adding that she believed a better placement for would be a class size of between students to more fully address ’s needs (p. 314-316).

ANALYSIS

The issue presented here is whether the DOE offered a FAPE for the 2015/16 school year by its recommended placement, pursuant to the April 16, 2015 IEP, of a classroom, together with related services of . If such recommended placement is determined to have been appropriate, and thus a FAPE offered to for the 2015/16 school year, then Parent is not entitled to reimbursement of tuition at the , where was unilaterally placed by Parent. If such placement is determined to have not constituted a FAPE for such school year, then a further examination is required to determine the appropriateness of the , together with an examination of the equities.

During the course of the hearing, Parent testified that her objection to the DOE’s recommended placement for , as contained in the IEP, was specifically the placement, as she believed such placement to be too for her child (see testimony above). Parent did not object to the articulated recommendations for the various related services, stating that she was fine with such recommendations. In reviewing, therefore, the appropriateness of the DOE’s recommended placement, the testimony of Ms. , at ’s ,

, is most instructive.

Ms. testified that she had daily interaction with , including daily classroom observations, reviews with his teacher and related service providers, and direct interaction with him. Her testimony, more fully set forth above, fully documented his areas of weakness and deficits, while also noting his greatest area of strength,

. Her conclusion, based on her observations of throughout the school year, was that despite , and despite other areas of weaknesses, nevertheless achieved slow and steady progress throughout the school year. Her specific recommendation for for the 2015/16 school year, what she believed to be the most appropriate placement for without regard to DOE limitations, was a classroom of between students, with similar academic levels of proficiency and social skills, together with the related services of . Specifically, it was Ms.

’s judgment, whose familiarity with was uncontested by any party at the hearing, that to accommodate ’s academic needs as well as to take advantage of his greatest strength, , the ideal setting for would be a , but not too , setting, .

Ms. ’s conclusion regarding ’s progress throughout the school year was consistent with that of the classroom teacher at , Ms.

, whose Educational Progress Report was furnished by Ms. during her testimony (noted above), and who agreed that , in his classroom, demonstrated progress since the beginning of the 2014/15 school year, particularly in the area of . (While mention has been made during the course of this hearing regarding , it is noted that was determined, without objection from any party, by the beginning of the 2015/16 school year, and thus any issue pertaining to ’s needs for addressing has been rendered moot).

Included as part of the meeting was the Educational Progress Report noted above authored by the classroom teacher, who also attended the meeting. The subsequent IEP that was produced as a result of the meeting was based, in part, on the above-noted Educational Progress Report.

Pursuant to the recent ruling in Endrew , cited above, an IEP must be reasonably calculated to enable a child to make progress appropriate in light of the child ’s circumstances. In the instant case, the testimony of Dr. , the progress report of Ms.

, and the testimony of Ms. , all establish that a recommended placement in a classroom, together with related services of , was a program reasonably calculated to meet the needs of , based on his particular circumstances. It is important to note that Endrew is not to be construed to guarantee a particular educational outcome; it is even conceivable that a placement chosen by a parent might produce a better outcome for their child than an otherwise appropriate DOE recommendation. That, however, is not the basis for determining whether a FAPE was offered. Rather, the focus of the examination is whether the recommended program by the DOE for was reasonably calculated to enable him to make progress appropriate in light of his circumstances. As the program recommended for is essentially the very program recommended by Ms. , the of , the witness who is deemed to be the most knowledgeable as to the disabilities and, therefore, the needs of , having had more direct interaction with him than any other individual on a daily basis in an educational environment for the entire year prior to the creation of the IEP, and therefore determined to be the most credible and non-interested witness, the finding is that the DOE has offered a FAPE for the 2015/16 school year.

Additionally, as noted above, and pursuant to applicable statutory and case law authority, and of particular importance in determining an appropriate placement for a student with a disability, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled. In accordance with such requirement, the Second Circuit, as noted above, has adopted a two-pronged test for determining whether an IEP places a student in the Least Restrictive Environment (LRE), considering (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2)

whether the school has mainstreamed the student to the maximum extent appropriate (Newington, 546 F.3d at 119-20; see J.S., 586 F. Supp. 2d at 82). If, after examining the factors under the first prong, it is determined that the district was justified in removing the student from the general education classroom and placing the student in a special class, the second prong requires consideration of whether the district has included the student in school programs with nondisabled students to the maximum extent appropriate (Newington, 546 F.3d at 120).

In this case, all parties agree that was not ready for a class. The issue was the extent to which his placement would be “restricted”. The DOE determined, based on teacher input and ’s educational progress, that the most appropriate placement for was a similar sized classroom of students. Parent’s own witness, Ms. , whose testimony has already been discussed, believed a class size of students, was ideal for , as did Dr. , the DOE in charge of students. In fact, Ms. testified that there were times, during ’s placement, where he did really well and benefitted from . In contrast, ’s subsequent unilateral placement in the was in a classroom of only students. , the , testified that . The mandates of LRE require not simply that students be mainstreamed, to the extent possible, in the least restrictive environment, but that they be educated in such least restrictive environment. Instead, at , was in a classroom of only students, similarly disabled, thereby eliminating any possibility of being educated in a less-restrictive environment with non-disabled peers. And while there might conceivably be situations where a particular student, because of the extent of his or her disability, simply cannot be educated with non-disabled students, the record of the hearing fails to establish that such is the case here. has delays and deficits in a number of areas, all of which have been documented. However, it cannot be concluded that his disabilities are such that he is unable to make meaningful progress in a less-restrictive environment. No evidence was presented to establish a disability of such extent to justify the degree of restriction that a classroom of represents. Indeed, even Parent acknowledges that would have been appropriately placed in a class size of students, a significant reduction in restrictiveness that prevails in a class size of only students. While Parent maintained that , LRE requires such mainstreaming, where possible, in a learning environment. Such is not possible in the class structure at that existed during the 2015/16 school year. Thus, even if a finding was made that the DOE has failed to meet its burden to establish that a FAPE was provided for the 2015/16 school year, the record fails to establish that the was an appropriate placement for , as such school, in its placement of in a classroom consisting of only , without opportunity to educate with non-disabled students, is determined, due to its overly restrictiveness, to not be an appropriate placement.

Parent raises several points of contention in her Closing Statement that warrants response. First, Parent challenges the IEP’s failure to recommend a barrier-free school placement for to address his deficits. However, the testimony of Dr. was that , and any objection by Parent at the time of the IEP meeting as to the would have been speculative. Additionally, the testimony of Parent’s own witness, , was that during the entire 2015/16 school year,

.

Second, Parent raises the issue that a class, as recommended for , was different from ’s class, which placement included . This may very well be accurate. However, even allowing for such differences, Ms. , the at ’s , and the witness determined to be the most credible and knowledgeable witness as to the needs of at the end of the 2014/15 school year, when the IEP was created and contemplated for , nevertheless testified that she believed a placement of a class of students, with the appropriate related services, was the correct and appropriate placement to address ’s particular needs and circumstances, even as such placement was, by nature of a class, different, as acknowledged, than a similar sized placement.

Finally, Parent states that the progress reports by the provider, provider and provider all recommend for for the 2015/16 school year. Parent further correctly points out that the IEP at issue did not provide for of such services, recommending instead . However, the provision of for the aforementioned related services, in and of itself, is insufficient to establish a denial of FAPE. Indeed, Parent’s Exhibit M, the Attendance Record for the 2015/16 school year, establishes that the program for for such year, which included the provision of such related services, began in September, 2015, which is itself only a program, a program in which Parent has claimed significant progress for for the 2015/16 school year.

Thus, a program for the recommended related services does not constitute the basis for determining a denial of FAPE. However, given that the service providers at the did recommend of services for , and , and no evidence was presented into the record to challenge such recommendations, will be awarded, as indicated below, compensatory services in the areas of , and to conform with such recommendations.

For all of the reasons cited above, Parent’s request for tuition and related services payment and/or reimbursement for the 2015/16 school year for such expenses incurred at the is denied.

is awarded, however, compensatory services in the areas of , and , as more fully set forth below.

ORDER

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

IT IS HEREBY ORDERED:

1. The Parent’s request for payment and/or reimbursement of tuition and related services expenses incurred for the 2015/16 school year at the is denied.

2. Student shall be awarded compensatory services, as follows, all such hours awarded to be placed in a compensatory service “bank” to be utilized during the remainder of the current school year, during the summer, or during the 2017/18 school year, to be administered when and as each respective service provider sees fit, in his/her best professional judgment, to best serve the educational needs of and to maximize the benefit of such service to :

a.

;

b. ;

c.

;

d.

.

3. All such services, as noted above, shall be for a period of .

4. For all such services, as noted above, that cannot be provided at the standard DOE rate, an enhanced rate authorization shall be provided not to exceed per hour.

5. The DOE shall comply in all respects with this Decision and Order. Dated: May 31, 2017

BRUCE S. OLINGER, ESQ.

Impartial Hearing Officer BO:

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.

Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A. Impartial Hearing Request, 4/18/16 (4 pages)

B. Program Description, undated, (2 pages)

C. Letter to DOE, 7/24/15 (1 page)

D. IEP, 4/16/15 (14 pages)

E. Ten Day Notice, 8/18/15 (2 pages)

F. Class Schedule, 2015/16 (1 page)

G. Annual Student Report, 2015/16 (5 pages)

H. Student Report, 2015/16 (3 pages)

I. Student Report, 2015/16 (2 pages)

J. Report, 2015/16 (2 pages)

K. Affidavit of Payments, 8/17/16 (1 page)

L. Enrollment Contract, 9/16/15 (2 pages)

M. Attendance Record, 2015/16 (1 page)

N. Parent’s Proof of Payments, 2015/16 (1 page)

O. Parent’s 1040 US Individual Tax Return, 2015 (2 pages)

P. , undated (2 pages)

Q. Closing Statement, 5/22/16 (16 pages)

DOE

1. IEP, 4/16/15 (14 pages)

2. Notice of IEP Meeting, 3/19/15 (3 pages)

3. Prior Written Notice (Notice of Recommendation), 4/20/15 (3 pages)

4. , 2/12/15 (3 pages)

5. , 2/5/15 (1 page)

6. Annual Student Report- , 2015//16 (4 pages)

7. Progress Report, 1/2/15 (3 pages)

8. Annual Student Report- , 2015/16 (2 pages)

9. Progress Note, 1/13/15 (3 pages)

10. Annual Student Report – , various dates (2 pages)

11. Progress Report, 1/5/15 (4 pages)

12. Annual Student Report – , 2015/16 (2 pages)

13. Child Outcomes Summary Form, 4/16/15 (1 page)

14. 10 Day Notice Letter, 8/18/15 (2 pages)

15. Closing Brief and Memorandum of Law, 5/22/17 (7 pages)

IHO

I. Order of Consolidation, 2/6/17 (6 pages)

II. Extensions of Compliance Dates, 12/9/16, 12/9/16, 12/9/16, 1/23/17, 2/2/17,

3/31/17, 4/28/17, 5/30/17 (8 pages)

III. Educational Progress Report, , 12/8/14 (7 pages)