New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 162314

Student’s Name:

Date of Birth:

District: I I

Hearing Requested By: Parent

Date of Hearing: September 14, 2016

October 14, 2016

March 10, 2017

June 21, 2017

July 19, 2017

August 21, 2017

September 25, 2017

October 20, 2017

December 7, 2017

January 18, 2018

January 29, 2018

Actual Record Closed Date: February 13, 2018

Hearing Officer: Bruce Olinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 14, 2016

Attorney — Student

Parents

Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 14, 2016

Attorney (Via Telephone) — Student

District Representative — DOE

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

Attorney, Father, Mother

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 21, 2017

Attorney, Father, Mother

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 19, 2017

Parent (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 21, 2017

Parent (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 25, 2017

Parent, Pro Se (Via Telephone) — Student

Parent, Pro Se (Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 20, 2017

Attorney, Parent (Via Telephone) — Student

Parent (Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 7, 2017

Parents

Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 18, 2018

Parents

Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 29, 2018

Mother Pro Se — Student

Parent Pro Se — Student

District Representative — DOE

INTROD CTION

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 and the parents as Parents or and the child will be referred to as Student or .

J RISDICTION -OVERVIEW OF ADMINISTRATIVE PROCED RES

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 als 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 als 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).

PROCED RAL HISTORY

This hearing was requested by a Due Process Complaint on September 6, 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 properly and adequately evaluate Student for the 2016/17 school year and, as a result, failed to provide with a FAPE for the 2016/17 school year, including failing to provide adequate and appropriate types of services to the Student for the entire school year. In addition, Parent seeks reimbursement for certain evaluations paid for by Parent after the failure of the DOE to conduct such evaluations prior to the convening of the IEP meeting for the 2016/17 school year and the subsequent creation of the IEP for the 2016/17 school year, as well as reimbursements for out-of-pocket expenses for the provision of and beyond that which was authorized by the IEP at issue for the 2016/17 school year .

Parent was initially represented by private counsel who ceased representation of Parent on or about May 1, 2017, at which point Parent, who is an attorney, represented himself and Student. In addition, there were a number of other issues raised by the Due Process Hearing compliant which have been rendered moot by the issuance of a Pendency Order, dated September 15, 2016, by the undersigned (IHO Ex. I), such that the services covered under the Pendency Order have already been provided for the duration of the 2016/17 school year. This Decision will address those remaining issues for the 2016/17 school year as more fully set forth below.

The undersigned was appointed as Impartial Hearing Officer on September 8, 2016. As noted above, a Pendency Hearing was held on September 14, 2016, with a Decision and Order on Pendency having been issued by the undersigned on September 15, 2016. Thereafter, hearings were held on October 14, 2016, March 10, 2017, June 21, 2017, July 19, 2017, August 21, 2017, September 25, 2017, October 20, 2017, December 7, 2017, January 18, 2018 and January 29, 2018. During all such hearings, the DOE was represented by , and . The Parent was initially represented, as noted earlier, by counsel but, beginning with the hearing dated June 21, 2017, and continuing throughout the remainder of the hearings, appeared pro-se.

The undersigned presided at all hearings. During the course of the proceedings, the parties moved to extend the case compliance date in this matter on the dates set forth in IHO Ex. III, all in order to allow for an examination of all relevant witnesses and documents, to allow for the additional preparation required following the termination of Parent’s attorney, and time to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and 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 III). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

The hearing record was closed effective February 13, 2018.

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).

FACT AL BACKGRO ND

Student , a disabled child who was years of age at the beginning of the 2016/17 school year, is a student with a disability classification of ( ). He is further diagnosed with , all of which negatively impact

. He presents with and

. He also presents with , as well

as . The most recent IEP at issue, for the

2016/17 school year (DOE Ex. 1), recommended

. Also recommended on this IEP were the following related services:

. However, during the entire 2016/17 school year, Student received the following services pursuant to the aforementioned Pendency Order of September 15, 2016, based on Student’s preschool IEP dated September 16, 2015:

.

PARENT’S POSITION

The Parents allege that Student has been denied a FAPE for the 2016/17 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 for the 2016/17 school year. In addition, Parent maintains that while were provided under Pendency,

Student actually required , and seeks reimbursement for the costs expended to provide the additional . Additionally, Parent further maintains that while Student received under pendency, Student actually required additional enhanced to specifically address Student’s , including the provision of , and seeks reimbursement for the costs expended by Parent to provide additional

(Parent was unable to secure the services of an provider for the remaining for which reimbursement is being sought), including . Parent further seeks compensatory that Student did not receive during the summer portion of the 2016/17 school year, on the basis that Student should be classified as a student, as well as during the last month of the 2015/16 school year, when such services stopped. Parent seeks the compensatory provision of . Finally, Parent seeks reimbursement for the costs expended for a and Assessment to address Student’s . Parent further alleges that, due to the denial of a FAPE for the 2016/17 school year, has been harmed educationally and seeks, pursuant to the hearing request, the relief articulated above.

DISTRICTS POSITION

The District contends that was properly evaluated for the 2016/17 school year and that the subsequent education plan, as contained in the June 15, 2016 IEP was appropriate for

FINDINGS OF FACTS AND CONCL SIONS 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 F rest Gr ve v.

T.A., 557 U.S. 230, 239 (2009); B ard f Educ. f the Hendrick Huds n Cent. Sch. Dist.

v. R wley, 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.

The IDEA requires a school district to have an Individualized Educational Plan (IEP) in effect for each child with a disability at the beginning of each school year. See 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a); see 71 Fed. Reg. 46682 [stating that the IDEA "is clear that at the beginning of each school year, each [district] must have an IEP in effect for each child with a disability in the agency's jurisdiction. Further, An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii).

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]).

An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii).

See also 34 C.F.R. §§300.303-300.311, 300.315; 8 N.Y.C.R.R. § 200.4(f). All reevaluations shall be conducted by a multidisciplinary team, including a specialist in the area of the student’s disability. 8 N.Y.C.R.R. § 200.4(b)(4). Children must be assessed “in all ar as of susp ct d disability” using “a vari ty of ass ssm nt tools and strat gi s to gath r r l vant functional, d v lopm ntal, and acad mic information.” 20 U.S.C. §1414(d); 34 C.F.R. § 10.

Additionally, 8 N.Y.C.R.R. § 200.4(b)(6) provides that every reevaluation must identify “all of the special education and related services needs, whether or not commonly linked to the child’s classification.” 34 C.F.R. § 303(c)(6).

Parents should be central members of IEP teams. See 20 U.S.C. §§ 1414(a)(1)(A), 1414(c), 1414(d)(1)(B)(i); 34 C.F.R. §§300.15; 300.303. Further, regulations provide that the parent must have an adequate opportunity to participate in the development of the child’s IEP Cerra v. Pawling Cent. Sch l District, 427 F.3d 186, 192 (2d Cir. 2005, requiring that the Parent be properly notified of the IEP meeting and that such meeting be scheduled at a “mutually agreed upon time and place.” 34 C.F.R. § 300.322.

An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 C.F.R. § 300.320[a][3])

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. v.

D uglas C unty Sch l District, 580 U.S. __, 14 (2017), 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 appr priate in light f the child’s circumstances (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”. . In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. 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 R wley, 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).

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]).

Section 504 provides that “[n]o otherwise qualified individual with a disability . .

. shall, solely by reason of his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.” 29 U.S.C. §794(a). Section 504 and the IDEA are often seen as “complementary” statutes that, to a degree, mandate parallel requirements on schools to provide special education and related services. See R.B. ex rel. L.B. v. Bd. f Educ. f

City f New Y rk, 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000) (citati ns mitted). The

Section 504 regulations clarify the nature of the prohibited discrimination. 34 C.F.R. § 104.4(b)(ii)-(iii). In addition, the Section 504 regulations place similar and even parallel requirements on schools to provide a FAPE. See 34 C.F.R. §§ 104.33-104.37.

RELATED SERVICES

As provided in 8 NYCRR 200.6(e):

Related services shall be recommended by the committee on special education to meet specific needs of a student with a disability as set forth in the individualized education program (IEP).

(1) The frequency, duration and location of each such service shall be in the IEP, based on the individual student's need for the service.

(2) For students with disabilities determined to need speech and language services, the total caseload of such students for teachers providing such services shall not exceed 65. 103 200.6

(3) When a related service is provided to a number of students at the same time, the number of students in the group shall not exceed five students per teacher or specialist except that, in the city school district of the city of New York, the commissioner shall allow a variance of up to 50 percent rounded up to the nearest whole number from the maximum of five students per teacher orspecialist.

(4) A student with a disability may be provided with more than one such service in accordance with the need of the student.

(5) Related services may be provided in conjunction with a regular education program or with other special education programs and services.

A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).

CHILD FIND

The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446.

F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F.Supp.2d 221, 225 [D.

Conn. 2008], aff'd, 370 Fed. App'x 202, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 C.F.R. § 300.111; 8 NYCRR 200.2[a][7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St.

Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004])). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.111[c][1]; see 8 NYCRR 200.2[a][7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. 2011]). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][7]).

A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting

Dep't of

Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To determine that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate the student (A.P., 572 F.Supp.2d at 225, citing Bd. of Educ. v. L.M., 478 F.3d

307, 313

[6th Cir. 2007]). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548

F.Supp.2d

815, 819 [C.D.Cal. 2008], citing 20 U.S.C. § 1400[c][5]). Additionally, the school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's RtI program (8 NYCRR 200.4[a]; see also 8 NYCRR 100.2[ii]).

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [ finding that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz, 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To support a finding that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate (A.P., 572 F. Supp. 2d at 225, quoting Bd. of Educ. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D.Cal. 2008], citing 20 U.S.C. § 1400[c][5]). Additionally, the school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program (8 NYCRR 200.4[a]).

NY STATE CHILD FIND:

State regulations specify procedures for identifying students with learning disabilities, providing, among other things, that:

A student may be determined to have a learning disability if, when provided with learning experiences and instruction appropriate for the student's age or State-approved grade-level standards, the student does not achieve adequately for the student's age or to meet State-approved grade-level standards in one or more of the following areas: oral expression, listening comprehension, written expression, basic reading skills, reading fluency skills, reading comprehension, mathematics calculation, mathematics problem solving; and . . . the student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development that is determined by the CSE to be relevant to the identification of a learning disability. . . .(8 NYCRR 200.4[j] [3], [3] [i] [b]).

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).

An evaluation means procedures used in accordance with 34 C.F.R. §§ 300.304 through 300.311 to determine whether achild has a disability and the nature and extent of the special education and related services that the child needs. 34 C.F.R. § 300.15; see also 8 NYCRR § 200.1(aa). In conducting the evaluation, the district must use a variety of tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, to determine whether the child is eligible and, if so, the content of the child’s IEP. 34 C.F.R. §

300.304(b)(1); 8 NYCRR § 200.4(b)(1).

The evaluation must be sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category. 34 C.F.R. § 300.304©(6); 8 NYCRR § 200.4(b)(6)(ix).

A reevaluation of a child with a disability must occur when conditions warrant or if the parent or teacher requests a reevaluation. 34 C.F.R. §300.303(a); 8 NYCRR § 200.4(b)(4). The cost of the evaluation must be at public expense. 182 34 CFR §

300.502(d).

The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student. 1 independent educational evaluation at public expense.

Pursuant to 8 NYCRR Section 200.5(g) (Independent Educational Evaluations):

(1) Requests by parents. If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. A parent is entitled to only one independent educational evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees.

(iii) If a parent requests an independent educational evaluation at public expense, the school district may ask for the parent’s reason why he or she objects to the public evaluation.

(a) The explanation by the parent in subparagraph (iii) of this paragraph may not be required and the school district may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint notice to request a hearing to defend the public evaluation. See also 34 CFR

§300.502(b)(4).

(iv) If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.

(v) If the school district files a due process complaint notice to request an impartial hearing and the final decision is that the school district’s evaluation is appropriate, or that the evaluation obtained by the parent did not meet school district criteria, the parent has the right to an independent educational evaluation, but not at public expense.

(2) Requests for evaluations by hearing officers. If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.

Pursuant to 34 CFR §300.304(b), in conducting the evaluation, the public agency must: (1) Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, that may assist in determining (i) Whether the child is a child with a disability under § 300.8; and (ii) The content of the child’s IEP, including information related to enabling the child to be involved in and progress in the general education curriculum (or for apreschool child, to participate in appropriate activities);

(2) Not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child; and (3) Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

Pursuant to 34 CFR §300.304 (c)(4), for such assessments, the public agency must ensure that the child is assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.

Section 34 CFR §300.304 (c)(6) provides: In evaluating each child with a disability under §§ 300.304 through 300.306, the evaluation is sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.

8 NYCRR Section 200.5(j)(3)(viii) provides:

Initiation of Due Process Hearings. In the event the impartial hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.

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 Case No. 162314

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 Regi nal Sch l 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 f C lumbia, 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.

ANALYSIS

The first area of examination is whether the DOE provided a FAPE to Student for the 2016/17 school year. As noted earlier, a number of the issues raised by Parent in the Due Process Hearing request have been rendered moot by the provision of services, pursuant to the Pendency Order, which addressed such requests. The remaining issues for this hearing are as follows: 1) Parent’s request for reimbursement of the additional provided at Parent’s expense beyond that which was provided under Pendency; 2) Parent’s request for reimbursement of the additional to specifically address Student’s , including the provision of ; 3) Parent’s request for reimbursement for the costs expended for a and Assessment to address Student’s ; 4) Parent’s request for compensatory that Parent alleges that Student did not receive during the summer portion of the 2016/17 school year, on the basis that Student should be classified as a student, and 5) Parent’s request for the compensatory provision of

.

During the course of the hearing, the DOE presented no witness testimony to meet its burden to establish that a FAPE was provided for for the 2016/17 school year. In addition, although the DOE submitted some documentary evidence into the record of this hearing, such documentary evidence submitted by the DOE similarly failed to establish the provision of a FAPE for the 2016/17 school year. It is first noted that, while the DOE presented copies of a , , Evaluation, Evaluation, Evaluation, Evaluation and Evaluation, no witness testimony was provided to explain or defend such reports, or to testify as to how the CSE team utilized such reports in making its final recommendations on the IEP at issue. Secondly, it is noted that, with the exception of the Evaluation, all other such documents presented were prepared based on evaluations that occurred between November and December, 2013, when was only years of age. At the time of the CSE meeting to create an IEP for the 2016/17 school year, June 15, 2016, was already known to the DOE as a student diagnosed with . Any assessment relied upon for a year old child that was created when such child was only years of age, with the potential enormous changes that can occur in any child’s social, emotional and cognitive development between the ages of and , can hardly be considered appropriate or relevant. This is particularly true with a child diagnosed (and acknowledged by the DOE) with . The DOE’s

January 22, 2016 request for further evaluations of , and Parent’s subsequent consent for such evaluations (Parent Ex. E), further illustrates the DOE’s acknowledgment of the need to make new, timely assessments in preparation of a new IEP to meet the needs of for the 2016/17 school year. Indeed, the DOE as much as conceded that evaluations from 2013 were not relevant to ’s needs at the time of the June 15, 2016 IEP meeting, as evidenced by a letter from , , dated June 1, 2016 (Parent’s Ex. D) indicating the need for new, timely evaluations in the areas of and , as well as the need for a new and evaluation. Instead, as noted above, no such evaluations were made in any of these areas, areas in which was known to have deficits, nor was a new evaluation conducted, especially relevant for a student with .

Rather, only the aforesaid classroom evaluation was conducted in preparation for the 2016/17 school year IEP. Additionally, no testimony was provided by any of the DOE participants of the CSE team to establish what criteria was utilized in its placement recommendation, or to establish in any other manner that the recommendations contained in the June 15, 2016 IEP were reasonably calculated to allow to make progress appropriate in light of his particular circumstances. It is finally noted that, contrary to the provisions of 8 NYCRR §200.3(a)(1)(ii) and §200.3(a)(1)(iii), which requires the presence of both the general education teacher as well as the special education teacher at the meeting to create an IEP, no individual identified as a general education teacher signed as “present” at the June 15, 2016 IEP meeting. Thus, in light of the above, as well as the testimony of Parent’s witnesses, summarized below, it is determined that the DOE has failed to meet its burden to establish that a FAPE was provided for for the 2016/17 school year. It is therefore determined that the DOE has failed to provide a FAPE for for the 2016/17 school year.

Parent presented three witnesses, whose testimony will be summarized below.

All references to page numbers in parentheses shall be transcript page numbers.

The first witness to testify for Parent was . Dr.

holds a Master's degree from in

, and a Ph.D. from , in

. Additionally, she holds certifications in New York State as a general education teacher, special education teacher, school administrator, and is a New York State licensed (Tr. p. 234). Dr. testified that she has been conducting educational assessments, and independent educational evaluations, all to determine the necessity for , for the past 23 years, and conducts at least

50 such evaluations per year (Tr. p. 235). With respect to , for whom Dr.

created an Independent Education and (Parent Ex. P), Dr.

stated that she first encountered him on August 29th, 2016, and attempted to conduct the to determine , followed by a in September, 2016.

. For example, (Tr. 235-239). In referencing her evaluation report, Dr.

state that based on ’s IEP’s, a report, related service evaluations, and her own , was found to have

.

.

. All of the above constituted

that was holding back, but one who would benefit from being educated alongside nondisabled peers (Tr. p. 241-243). With respect to her specific recommendations to address ’s needs, Dr. testified that she recommends

. She also recommended

, to address ’s (Tr. p. 243-247).

In describing a “ ”, Dr. gave the example that . A would provide (Tr. p. 247-248). She further stated that her findings pertaining to ’s needs at the time of her observation, August, 2016, were no different than his needs in June, 2016, at the time of the IEP meeting for the 2016/17 school year, with the same (Tr. p. 249). With respect to whether she believed that the IEP created for for the 2016/17 school year adequately and appropriately addressed his educational needs, Dr. testified that the recommendation failed to include , which required. Additionally, although references were made in the IEP that , no was recommended. Also, the IEP failed to indicate that would be educated with nondisabled peers in the classroom, which she believed he would benefit from, same being the least-restrictive environment. Nor did the IEP recommend

, which Dr. stated would impact ’s

, as with in particular,

. Without the benefit of a that would extend from a school to the home setting, and without the benefit of parent training that would assist the parents in being better able to , and without the inclusion of , both of which were more fully described by Dr. (Parent Ex. N), it is unlikely that will be able to be achieve educational success (Tr. p. 250-252). Dr. also testified that she did not see any goals on the June 15, 2016 IEP regarding , nor any goals pertaining to , which were observed not only by herself but were noted as well in the DOE’s own documentation (Tr. p. 253). Dr. testified that, based on her 500-plus classroom observations, including classrooms, she did not believe that such a recommendation was appropriate for She stated that

, and that he

would not benefit from being in a secluded environment nondisabled peers.

Additionally, he required a , , and other recommended therapeutic services that were recommended by Dr. , and that a setting was too restrictive for Rather, he was better served with placement in a general classroom with the support of a , where he would be able to learn how to , and learn to (Tr. p. 254-256). Dr. further testified that the evaluation reports relied on by the DOE from 2013, and applied to the IEP meeting in June, 2016, were outdated, as between the age of under , in 2013, and , in 2016, was at a significant transition point (Tr. p. 256).

On cross examination, Dr. testified that her occurred in the course of one day, but that she also observed him outside the class and, in addition, reviewed evaluations of the and classroom teacher (Tr. p. 257-258). She further stated that, rather than utilize

, she used other means of assessment for , such as very detailed observations and reconstruction (Tr. p.258). With respect to observed, Dr. stated that she observed as well as

, such as

. Dr.

further stated that she hypothetized that

. In such cases, would not necessarily

provide relevant information, as there is no clear antecedent that you can observe. (T. p.

259-261). Dr. further reiterated her recommendation for a as appropriate

When asked by the undersigned as to the role and function of the , Dr. testified that she observed her to

.

.

. Dr. also observed

.

. Dr. stated that the is essential to help , and as he experiences greater success in that environment, the anticipated outcome would be, with the support of the , that would be more readily able to accomplish . It was the belief of Dr. that the classroom teacher would not be able to accomplish without the presence of the (Tr. p. 266-267).

Next to testify for Parent was , licensed , with a Master's degree from New York University in and licensed to practice in New York for over 22 years (Tr. p. 277-278). Ms. stated that she conducted an informal assessment of , and relied on the more comprehensive assessment of Dr. (Parent Ex. N), which she considered to be very thorough (Tr.

p. 279). Ms. stated that presented with

, and that would be required, particularly in the area of and , including a recommendation for (Tr. p. 280-

281). By , Ms. described

. In the case of , .

. .

.

. is designed to (Tr. p. 282-283). Ms.

described a “ ” as

. In the case of , Ms. recommended

. She explained that,

.

Because of the , he needs

. In particular, the recommended

for includes (Tr. p. 283-285). Ms. further stated that

.

As a result, . As a result, would require (Tr. p. 286-286). , in particular, presents with

. For example,

.

(Tr. p. 286-287). Ms. stated that she agreed

with the statement that needs

, adding that the would be effective in (Tr. p. 288). Additionally, Ms. stated that her treatment recommendation consisted of , all appropriate to address ’s needs. She further stated that , were necessary components of such recommended treatment plan (Tr.

p. 288-289).

With respect to the proposals contained in ’s IEP for the 2016/17 school year, Ms. stated her opinion that the plan as articulated in such IEP was not sufficient to meet the needs of In particular, she stated that although there was mention of working on , there was nothing to address the many other areas of deficits that severely impact and be successful in an academic environment. For example, nothing contained in the IEP addresses or . Nor does the IEP mention or address , which impact learning significantly.

Additionally, the section of the IEP pertaining to goals fails to contain goals that address (Tr. p. 290-291).

Parent then clarified the record to state that all received by , whether through the pendency order of through payment by Parent, has been in the home, as all requires

.

The final witness was Student’s mother, Parent testified to the Parent’s consent for evaluations for , by written consent dated January 22, 2016, as contained in Parent Ex. E, the fact that she never received the classroom evaluation, dated March 15, 2016, until the IEP meeting of June 15, 2016, her request of June 23, 2016 that be privately evaluated in preparation of a finalized IEP for the 2016/17 school year, and the response of the DOE that such report would be considered, upon receipt, for services beginning Summer, 2016 (Parent Ex. K), her expense incurred in having evaluated for needs (Parent Ex. R), the Independent Evaluation (Parent Ex. P) and the expenses incurred for such evaluation (Parent Ex. U), as well as expenses incurred for the provision of , including , plus the cost expended for the evaluation (Parent Ex. Q), the expenses incurred for for , including (Parent Ex. R), and as to the legal fees incurred by Parent during the time that Parent was represented by counsel in this matter (Tr. p. 320-338). With respect to , Parent described it as

.

.

(Tr. p. 334-336). Finally, Parent testified that she expended the out-of-pocket sum of for costs incurred in providing with the additional that was believed to have required during the 2016/17 school year (Tr.

p. 349-350).

RELIEF

With respect to other specific relief sought, Parent contends that should have received, in addition to the that was provided through the Pendency Order, an additional , pursuant to the testimony and recommendation of Dr. , running from May 31, 2016 through the entire remainder of the 2016/17 school year (based on the claim that was a student whose last agreed-upon IEP was the IEP dated September 16, 2015 and Parent’s request for this hearing which included the period beginning May 31, 2016 of the 2015/16 school year), and further that Parent incurred the expense of providing the additionally recommended at the rate of per hour (Tr. p. 339-350). Parent additionally testified that, for the period of May 31, 2016 through September 2, 2017, did not receive any of the related services of , all pursuant to the last agreed-upon IEP of September 16, 2015 that Parent claims was owed to based on his being properly classified as a student (Tr. p. 350-

351). Parent also testified that, for the period of October 6, 2016 through the end of the 2016/17 school year, received the recommended

(although the recommendation was for , no provider could be found to provide ), said , in addition to the , noted above, paid for by Parent at the rate of per hour (Tr. p. 351-356). Parent also testified that, with respect to that part of the regimen, there was the additional recommendation of a , which required the purchase of , paid for by Parent (Tr. p. 356-357). With respect to that portion of the hearing request pertaining to , Parent stated that the recommendation of Dr.

was and (Tr. p. 356-357).

As Parent raises numerous issues in this Due Process Hearing request, each will be addressed separately. However, in fashioning equitable relief to the extent that is entitled to same, it is first necessary to determine whether Student should have been properly classified, for the 2016/17 school year, as a student or a student, as part of Parent’s request for compensatory services concern the summer months portion of the 2016/17 school year, as well as the final month of the 2015/16

school year.

In that regard, it is noted that, during the 2015/16 school year, Student was classified as a student. The 2016/17 IEP proposed to classify Student as a student. Parent, in challenging the IEP for the 2016/17 school year, acknowledged the 2015/16 IEP as the last agreed-upon IEP. Indeed, the Pendency Order issued in this case by the undersigned, on September 15, 2016 (IHO Ex. I), was based on the services and program contained in the 2015/16 IEP and, by such Order, established the 2015/16 school year IEP as the operative placement for Student. Additionally, in not presenting any witness testimony in general, and no documentary evidence in particular as to how Student’s classification was changed from a student to a student, the hearing record fails to establish that the DOE correctly sought to change Student’s classification to a student. Thus, as the DOE has failed in its burden to establish the correctness of classifying as a student, and as the operative placement has already been determined, pursuant to the Pendency Order, to require a program for Student, it is determined that Student is properly classified as a student for the 2016/17 school year.

1. PARENTS’ REQUEST FOR COMPENSATORY

The first examination in this area is whether the DOE’s recommendation of was adequate and appropriate to meet the particular needs of As noted above, no evidence was presented by the DOE to support its recommendation of for the 2016/17 school year, either by witness testimony or documentation, other than an evaluation dated December 3, 2013 (DOE Ex. 7), when was of age, and which contained no specific recommendations to address the needs of , but did note ’s deficits in the numerous areas tested. Evidence provided by Parent, however, including the testimony of Dr. , Ms. (licensed ), and the evaluations by Dr. (Parent Ex. N) and Dr. (Parent Ex. P), both all of which were unrefuted by the DOE, establishes the need of an additional “ ”, which includes to address ’s , set out more fully above. Thus, it is determined that, for the period of June 1, 2016 through October 8, 2016, the period of time in which did not receive any of the whatsoever, Student is entitled to compensatory for in the amount of .

Additionally, for the remainder of the 2016/17 school year, during which time received (paid for by Parent and the subject of Parent’s separate request for reimbursement, discussed below), Student is determined eligible for an additional , totaling .

Thus, for the period of June 1, 2016 through the end of the 2016/17 school year, Student is determined eligible for a total of

.

2. PARENTS’S REQUEST FOR REIMBURSEMENT OF EXPENSES FOR THE

PROVISION OF SERVICES

Parent testified that, beginning in September, 2016, she paid out of pocket directly to several qualified providers for the provision of the , including the provision of , that has already been determined to be the appropriate service for , in addition to the authorized by the DOE, to address ’s needs for the 2016/17 school year. In support of such testimony, Parent presented copies of numerous checks covering the 2016/17 school year, front and back, and endorsed by the payee and indicated as having been processed by the payee’s bank

(Parent Ex. Q). However, relief for reimbursement of these expenses is limited to the 2016/17 school year; there is no jurisdiction for the undersigned to award reimbursement for expenses incurred after the end of the 2016/17 school year. Thus, all copies of payments covering services after June 30, 2017 are not subject to a reimbursement award. Based on the evidence of direct payments made by Parent’s for for the 2016/17 school year only, and based on Parent’s own notations upon many (but not all) such checks indicating the dates of service covered by each payment, establishing that payment by Parent was made either up-to-date of such service or, at the latest, a few weeks after such service, it is determined that Parent is eligible for reimbursement in the amount of covering all paid for by Parent for services through June, 2017.

Thus, for the 2016/17 school year, Parent shall be entitled to payment in the amount of as reimbursement of expenses incurred for the provision of to which Student is determined eligible.

3. PARENTS’ REQUEST FOR REIMBURSEMENT OF

Student has, as noted above, been determined eligible for the provision of for the provision of Case No. 162314

. The testimony of Dr. , as noted above, has already established the need of certain specific equipment necessary for the provision of such . Parent testified that she purchased such equipment in order for to receive the that he required. In support of such testimony, Parent presented copies of paid receipts for ), dated September 16, 2016 and ), dated September 27, 2016 (Parent Ex. R). No challenge to such expenses was made by the DOE.

Thus, Parent shall be entitled to payment in the amount of as reimbursement for for the provision of to which Student is determined eligible.

4. PARENTS’ REQUEST FOR REIMBURSEMENT OF EXPENSES INCURRED

FOR EDUCATIONAL EVALUATION AND

EVALUATIONS

Parent seeks reimbursement for expenses incurred for evaluations of

Specifically, Parent alleges entitlement to reimbursement for an Evaluation Report, dated June 30, 2016 (Parent Ex. N), an , dated September 30, 2016 (Parent Ex. Q), and an Independent Assessment, dated September 20, 2016 (Parent

Ex. P).

Applicable law, cited above, sets forth the requirements of any evaluation undertaken by the DOE. Specifically, both Federal and State regulations require that evaluations be sufficiently comprehensive, utilizing a variety of tools and strategies, and not rely on only a single assessment to determine the extent, if any, of a child’s disability.

Further, applicable regulations require that the child be assessed in all areas of suspected disability, and that such assessments be sufficiently comprehensive to identify all areas of disability and needs.

In the instant case, Parents’ Due Process Hearing request, dated September 6, 2016, alleged, among other things, that was inadequately evaluated for the 2016/17 school year and that the IEP created for the 2016/17 school year was therefore inadequate to address his needs, particularly in the areas of addressing ’s . It is noted in particular that, as more fully discussed above, the DOE acknowledged the need for updated evaluations of (Parent Ex. D) and the Parent consented to such evaluations on January 22, 2016 (Parent Ex. E). No such evaluations ever occurred. As a result, Parent undertook two (2) separate evaluations and seeks reimbursement for both, as indicated in Parent’s Ex. N and Q. It is noted, however, that the evaluation contained in Parent Ex Q, and the testimony provided by the author of that report, Ms. , establishes that such report is in agreement with the first evaluation of Dr. (Parent Ex. N), and that Ms.

, in her evaluation report, testified that she in fact relied on the more comprehensive assessment of Dr. , which she considered to be very thorough, in evaluating

Pursuant to the provisions of 8 NYCRR Section 200.5(g), cited above, a parent has a right to obtain an independent educational evaluation in a particular area at public expense, but is entitled to only one such independent educational evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees. Here, the evaluation of Ms. not only incorporates the findings of the evaluation of Dr. , but Ms. additionally testified that the evaluation of Dr. was more comprehensive than her own, and relied on by her as the foundation of her own assessment. The assessment of Dr. was conducted following the recommendations in the June 15, 2016 IEP with which Parents disagreed.

Proof of payment to Dr. was established by Parent Ex. R. As noted above, Parent may not receive reimbursement for two separate evaluations for the same school year at issue, following a disagreement with the recommendations contained in an IEP. The evaluation of Dr. is considered, based on the testimony of Ms. , to be the more comprehensive evaluation, and therefore more useful in ultimately forming the foundation for the recommended for for the 2016/17 school year. As such, it is the evaluation for which Parent is awarded reimbursement. Accordingly, Parent is determined eligible for reimbursement in the amount of for the evaluation of by Dr.

of for the 2016/17 school year.

With regard to Parent’s request for reimbursement of expenses incurred for the Assessment conducted by Dr. (Parent Ex. P), it is once again noted that, despite Parent’s consent for appropriate evaluations to take place, the DOE failed to conduct any such evaluations in preparation of the June 15, 2016 IEP meeting. Pursuant to the DOE’s ultimate recommendation contained in the June 15, 2016 IEP, Parent, in its Due Process Hearing request dated September 6, 2016, alleged inadequate evaluation of Student and the failure of the DOE to properly evaluate in the areas of and to determine what

, if any, was necessary to address such issues. In the instant case, the child had been previously identified to the DOE as a disabled child with , with particular note made of . Thus, all such areas of disability were not merely “suspected” by the DOE, they were, in fact, already known, as evidenced by the DOE’s acknowledgment that updated evaluations were required. Despite that, the only evaluations relied on by the DOE were evaluations that were done before was years of age and, to the extent that the DOE nevertheless relied on such outdated evaluations, no witness testimony was provided by the DOE to explain how such evaluations were used to create an IEP for the 2016/17 school year. As a result, such evaluations as relied upon by the DOE are determined to be inadequate for the recommendations contained within the 2016/17 IEP, thereby establishing grounds to warrant the more comprehensive and timely Independent Educational evaluation of Dr. . In that regard, Parent’s testimony as to the fee paid to Dr. was supported by the testimony of Dr. , who acknowledged payment of such fee, as well as copies of payments made to Dr. , as contained in Parent Ex.

U. Parent is therefore determined eligible for reimbursement of expenses incurred for the independent educational evaluation conducted by Dr. in the amount of .

Thus, Parent shall be entitled to payment in the amount of as reimbursement for an evaluation and as reimbursement for an Independent Educational Assessment.

5. PARENTS’ REQUEST FOR COMPENSATORY ,

AND

Parent seeks compensatory services, as noted above, for the period of June 1, 2016 through September 5, 2016, after which such services were provided pursuant to the aforesaid Pendency Order (IHO Ex. I).

Under such Pendency Order, Student was authorized to receive

, based on the

authorization for same as contained in the 2015/16 IEP, Student’s determined operative placement for purposes of pendency. As Student has been previously determined to be properly classified as a student, with the operative placement being that which is contained in the IEP dated September 16, 2015, Student is determined eligible, as and for compensatory services, and beginning with for 2016/17. The hearing record establishes that Student did not receive any or , pursuant to the September 16, 2015 IEP, after May 31, 2016.

Thus, for the period of June 1, 2016 through September 5, 2016, when and were provided pursuant to the Pendency Order, and based on compensatory services due Student of , is determined entitled to . With respect to , the authorized service, pursuant to the same September 16, 2015 IEP, was . The record establishes that Student did not receive after May 31, 2016. Thus, for the period of June 1, 2016 through September 5, 2016, and based on the same award of compensatory service, Student is determined entitled to

.

Thus, Student shall be entitled to compensatory and in the amount of , and in the amount of .

6. PARENTS’ REQUEST FOR COMPENSATORY AND

As noted by the testimony of Dr. , the appropriate educational plan for , as , is to include the provision of ,

, with

, as well as

. The testimony of Dr. , neither contested nor refuted by the DOE, was that had numerous areas of need, including requiring

, a need for , and a need for

, all of which included the required

, as well as

. No such has been provided during the administration of nor has been provided for the 2016/17 school year.

Thus, Student shall be entitled to compensatory services of in the amount of (based on the school year comprised of ) and Parent shall be entitled to compensatory services of of (based on the school year comprised of ).

7. PARENTS’ REQUEST FOR REIMBURSEMENT OF COSTS INCURRED FOR

THE PROVISION OF , 2016/17 SCHOOL YEAR

As noted above, Dr. ’s testimony, uncontested and unrefuted, was that , after extensive testing and a review of appropriate records, was determined to have significant deficits in , while still noting that he was, nevertheless,

.

. He was determined to require the support of in order to address the that was holding him back. Dr. recommended

. Dr. also

referenced issues, such as

, some of which is related to , and all of which is appropriately addressed through the provision of the recommended . As noted earlier, the DOE failed to conduct any evaluation or evaluation in preparation of the IEP meeting of June 15, 2016 for the 2016/17 school year, despite acknowledging that required new evaluations to address his needs. Thus, the evaluation of Dr. is determined to be both relevant and persuasive and, as a result, is determined to have been appropriately recommended for and entitled to for the 2016/17 school year.

As noted earlier, has been provided by the DOE to Student under the Pendency Order for the 2016/17 school year. As noted above, is determined entitled to an additional for the 2016/17 school year, to conform to the unrefuted and uncontested recommendation of Dr. for . The claim here is not for compensatory services, as Parent claims to have paid for the additional for the entire 2016/17 school year at issue.

Rather, Parent seeks reimbursement of the expense incurred in paying the additional for the 2016/17 school year.

Parent testified that she spent, in total, for the during the 2016/17 school year, based on a charged fee of per hour,

, over aperiod of . However, insufficient corroborating evidence was presented at the hearing in support of Parent’s claim of such payment. It is noted that Parent did present an affidavit from , dated March 22, 2017, stating that Parent has paid her per hour for . However, it is first noted that such affidavit does not apply to any period after March 22, 2017, and thereby cannot include that portion of the 2016/17 school year beyond such date. Additionally, while Parent presented copies of endorsed and processed checks to establish payment to the provider, noted above, in support of the claim for reimbursement for such out of pocket expenses for the provision of , no such similar documentation, such as copies of checks, endorsed and cashed by the payee, to indicate such payment to the , were presented during the course of the hearing. Thus, while Parent is determined eligible for reimbursement for expenses incurred for the payment of out of pocket expenses for during the 2016/17 school year, and is therefore not precluded from reimbursement, such reimbursement shall be conditioned upon verification of such payment to the provider.***

*** On February 6, 2018, the undersigned wrote to the parties to state that proof of payment for the additional , for which Parent seeks reimbursement, could not be located within the exhibits submitted by Parent. The purpose of the writing was not to obtain such documentation at the time of the writing, as both parties had rested their cases, but to ascertain whether the documentation was contained in an exhibit that was not clearly identified or was simply overlooked by the undersigned. The Parent responded with the explanation that “certain payment information was inadvertently missing from the exhibits” and, by subsequent email, requestd that supplemental exhibits be added to the hearing, identified as Exhibits Q-62 (check payable to and not related to reimbursement claim for ) and S-3 and-S-4

(two separate checks payable to provider in the amounts of and ). The undersigned advised, in response to Parent’s request for inclusion of the supplemental exhibits, that the original writing to the parties was for the purpose of determining where, if at all, such documentation was contained within the already submitted exhibits, and not to invite the submission of exhibits at the present time, as the hearing had already concluded. Parent was further advised that, unless the DOE waived its rights under 8 NYCRR

200.5(j)(3)(xii) regarding disclosure, the submission of Parents’ Ex. Q-62 and S-3 and S-4 would be barred as having failed to have been disclosed at least 5 days prior to the beginning of the hearing. The parties were advised that the hearing record was now closed. Parent then wrote back and requested that the undersigned allow the hearing record to remain open to allow for the opportunity of the DOE to waive its rights to exclude Parents’ Ex. Q-62 and S-3 and S-4 under the 5 day disclosure rule. Thereafter, upon reconsideration, the undersigned asked the DOE to consider the request of Parent to waive its objection to the 5 day disclosure rule and to advise the undersigned of its position. The DOE thereafter notified the Parent and the undersigned that it would not waive its objection under the 5 day disclosure rule. As a result, Parents’ Ex. Q-62 and S-3 and S-4 are excluded and not made part of the hearing record by virtue of the DOE’s asserting its rights under 8 NYCRR 200.5(j)(3)(xii) and may not be considered in this Decision. A full transcript of the communications summarized in this paragraph is entered into the record as IHO Exhibit IV.

NOTE ON COMPENSATORY SERVICES AWARD

All compensatory services, as Ordered below, are based on a period of (the “school year”). Further, given the fact that the 2016/17 school year has already ended, all such hours to which or Parents are determined eligible under a compensatory award shall be placed in a compensatory service “bank” to be utilized during the remainder of the current school year, as well as throughout the duration of the 2018/19 school year, administered 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

ORDER

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

IT IS HEREBY ORDERED:

1. The DOE shall provide, as Compensatory Services, the following:

a)

in the amount of ;

b) in the amount of ;

c) in the amount of ;

c)

, ;

d)

.

e) For all such services and instruction/supervision Ordered above that are provided outside of the school and cannot be provided at the standard DOE rate, or for any such service provided in the school that cannot be provided at the standard DOE rate, an enhanced rate authorization shall be provided.

2. The DOE shall reimburse to the Parents as follows:

a) as reimbursement of expenses incurred for the provision of

;

b) as reimbursement for for the provision of ;

c) as reimbursement for evaluation;

d) as reimbursement for an ;

e) pon verification of payment made to provider , for expenses incurred in the provision of over a period during the 2016/17 school year, reimbursement to Parent up to a maximum of .

3. The DOE shall comply in all respects with this Decision and Order. Dated: February 26, 2018

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 areview 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. Due Process Hearing Complaint 08/31/16 10 pages

B. IEP (Last Agreed Upon) 09/16/15 17 pages

C. Agreement and IHO Order 05/31/16 6 pages

D. Email Correspondence District/IHO 06/01-06/02/16 2 pages

E. Consent for Evaluations 01/22/16 2 pages

F. Meeting Notice CSE 03/11/16 2 pages

G. 03/15/16 1 page

H. IESP 04/11/16 9 pages

I. Notice of Recommendation 04/11/16 3 pages

J. Draft IEP 06/16/16 13 pages

K. Letter to CSE re: Private Evaluations 06/23/16 2 pages

L. Notice of Recommendation 06/24/16 6 pages

M. Correspondence w/CSE re: IESP/ Summer, 2016 7 pages

N. Report 06/30/16 14 pages

O. Letter from 08/24/16 1 page

P. 09/20/16 21 pages

Q. Provider Affidavits, Reports,

Parent Pmnts. Various dates 60 pages

R. Related Expenses Various dates 5 pages

S. Affidavit and Progress Report 3/22/17; 11/2017 2 pages

T. Quarterly Progress Report ( ) 06/16/17 6 pages

U.

Expense 09/20/16 3 pages

V. Temporarily Redacted

DOE

1. IEP 06/30/17 7 pages

2. 03/15/16 1 page

3. 11/07/13 3 pages

4. 11/21/13 5 pages

5. 11/21/13 5 pages

6. 12/09/13 4 pages

7. 11/27/13 3 pages

8. 11/27/13 3 pages

9. Prior Written Notice (Notice of

Recommendation) 06/24/16 3 pages

10. Prior Written Notice (Notice of

Recommendation) 07/08/16 5 pages

IHO

I. Pendency Order 09/15/16 10 pages

II. Attorney’s and DOE Representative

Statement on Requested Extensions 01/30/18 1 page

III. Extensions of Compliance Dates Various dates 16 pages

IV. Post-hearing communication between

IHO and Parties re: Parent Exhibits Various dates 4 pages

---

Footnotes

[1] M.M. v. District of Columbia, 607 F. Supp. 2d 168, 174 (D.D.C. 2009).