New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 156693

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: September 28, 2015

October 2, 2015

Actual Record Closed Date: November 30, 2015

Hearing Officer: Michael Lambert, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 28,

2015

Attorney — Student

Parents

Student

Representative — DOE

Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 2, 2015

Attorney — Student

Parents

Student

(Via Telephone) — Student

(Via Telephone) — Student

Representative — DOE

Representative — DOE

INTRODUCTION AND PROCEDURAL HISTORY

By complaint letter dated July 29, 2015 (PE-A), the parent of brought a challenge to the appropriateness of the 2013-2014, 2014-2015 and 2015-2016 educational programs offered and/or delivered to and a request for various forms of relief as described in the complaint letter (see PE-A, pp. A-15 – A-16), including an Independent

, Related Service Authorizations (RSA’s) at the enhanced rate and compensatory education services. Counsel for the parents clarified that the only relief being sought for the 2013-2014 school year was an Order directing that any RSA’s that had been previously ordered by an IHO in a prior case that had not been used be re-issued at the enhanced rate (T: 40-41). For the 2014-2015 school year, the parent seeks that any RSA’s that had been previously ordered by the IHO in a prior case for the period July 1, 2014 through October 17, 2014 be re-issued at the enhanced rate, that RSA’s at the enhanced rate be issued for missed related services during the period

October 18, 2014 through June 30, 2015, and that be provided with compensatory education services in the form of per week of services, and that had been recommended for based upon the denial of FAPE during the 2014-2015 school year. Finally, for the 2015-2016 school year, parent seeks that RSA’s at the enhanced rate be issued for any missed related services, compensatory education services as described above and an Order that be placed at an approved non-public school that can appropriately meet his educational needs. For the reasons set forth herein, the relief sought by the parent is granted in part and denied in part.

A prehearing conference was conducted on August 21, 2015. At that time, the Department of Education (“DOE”) took the position that any claims set forth in the complaint letter that arose prior to July 29, 2013 were barred by the applicable 2 year statute of limitations (T: 8-9). The DOE was advised that, if they were going to assert a statute of limitations defense, they would be required to submit a writing setting forth the basis or bases for such position (T: 9-10). Also at the August 21, 2015 prehearing conference, the Parent made an application for an interim order granting the Parent’s request for an Independent (T: 15-16). The DOE opposed such application on the basis that such IEE was first requested as part of the July 29, 2015 complaint letter and they were still in the process of determining whether they were going to initiate a due process hearing to defend any existing evaluation (T: 16-17).

The DOE was directed to advise the IHO by August 31, 2015 as to whether they intended to initiate such due process hearing and, if not, that I would entertain an application for an Interim Order directing the DOE to fund such IEE (T: 17-18). The DOE did not subsequently initiate a due process hearing (T: 24) and, on September 1, 2015, the Parent renewed her application for the Independent (IHO-I).

The first hearing date took place on September 28, 2015. At that time, the Parent’s application for an Interim Order granting the Independent at public expense was granted on the record (T: 25-28). In addition, the DOE was directed to provide the Parent with the Student’s educational records that were initially identified in the complaint letter (T: 30-31). The DOE advised that they would not be asserting any statute of limitations claims with respect to the any of the 2013-2014 claims asserted in the complaint letter (T: 33-34).

Finally, the parties introduced a prior impartial hearing officer’s October 17, 2014

Decision in IHRS Case Number 151513, in which the IHO granted relief in the form of independent , , , and evaluations, an independent assessment and payment for missed related services in the 2013- 2014 and 2014-2015 school years through the issuance of RSA’s for such missed related services (T: 38-39; IHO-II).^[1] Counsel for the Parent attempted to clarify the relationship between the instant hearing (IHRS ) and the prior hearing (IHRS

151513). In this regard, although the prior IHO had directed that RSA’s be issued for missed related services in the 2013-2014 school year and a portion of the 2014-2015 school year, the Parent was now seeking an Order directing that the previously-issued

RSA’s for any related services that had not yet been made up be re-issued at the enhanced rate so that the Parent would be better able to locate a qualified provider to deliver the related service (T: 40-41). Counsel for the Parent confirmed that this was the only claim relating to related services that was being asserted with respect to the 2013-2014 school year (T: 41). The DOE’s position was that, to the extent that it was deemed appropriate to direct that RSA’s be issued at the enhanced rate, such should be done only for the period from the date of the prior IHO’s Decision (October 17, 2014) through the date of the pending due process complaint (T: 41-44). The DOE further asserted that this relief (i.e., that the previously-issued but un-used RSA’s be re-issued at the enhanced rate) had not been properly raised in the due process complaint (PE-A) (T: 49; T: 55). An interim ruling was issued permitting the Parent to continue to advance the issue as to whether additional relief in the form of re-issuing any unused RSA’s for the period July 1, 2013 – October 17, 2015 (T: 46-49).

At the conclusion of the above preliminary matters, the DOE advised the hearing officer that they were not prepared to begin the presentation of evidence in their case-in-chief notwithstanding the fact that the matter had been scheduled for that purpose (T: 49-

53; T: 61). The DOE claimed that they had not been placed on adequate notice of the RSA issue. After hearing argument on the issue, the DOE was directed to present any evidence that they had with respect to any issue other than the RSA issue described above

(T: 62). They were granted until the following hearing date (October 2, 2015) to present any evidence with respect to the RSA issue (T: 62-64). The DOE thereafter represented that they had no evidence to present at the September 28, 2015 hearing (T: 64-67).

The second hearing date took place on October 2, 2015. On that date, both the DOE and the Parent presented documentary evidence. In addition, the Parent called two witnesses in addition to providing testimony herself. The parties then rested. The Parent thereafter submitted a post-hearing brief, which was considered in preparing this Decision. The DOE chose not to submit a post-hearing brief.

THE HEARING EVIDENCE

was, at the time of the underlying due process hearing, a student attending a at (PE-G). His classification does not appear to be in dispute. What does appear to have been in dispute is the extent to which the services provided to during the 2014-2015 and 2015-2016 school year appropriately addressed his educational needs.

At the October 2, 2016 hearing date, the DOE offered documentary evidence as to the related services provided to during the period October, 2014 through June, 2015

(T: 137-38; DOE Exhibits 1 – 4). No testimony was provided to explain these documents. They were considered, but were provided with little weight in rendering the instant Decision. The DOE indicated that they had no further evidence to present (T: 137;

T: 139).

The Parent called as their first witness. Ms. testified that she was the , a private business that offered things such as , services, and different types of assessments, such as , and assessments, to students (T: 84-85). She had been a for 2 years (T: 130). She testified that she conducted such a assessment of (PE-L). This assessment, which took place at , took approximately (T: 104), including between

(T: 132). It included

(T: 105-06). This gave her qualitative

information as to ’s , as opposed to standardized, normed data, that she thereafter considered based upon her training and experience (T: 132). Prior to administering her assessment, Ms. reviewed ’s 2013-2014 IEP as well as a evaluation, which led her to conclude that he was a child whose

, and were (T: 88). She did not ask for or receive any information from ’s teacher (T: 105). Her report concluded that was “ ” (PE-L-3). She further found that he “

” and that,

”, he “ ”

“ ” (PE-L-3). Moreover, “

” (PE-L-3-4), Ms.

recommended that be provided an additional per week of

(T: 98).

The parents also presented an Affidavit of , a licensed a registered

(PE-CC). Ms. had not met (T: 169), but rather had reviewed certain evaluations, including an evaluation conducted by (PE-P) and interviewed his parents (PE-CC-2) and, based upon the information obtained therefrom, opined that and his mother (T: 171) would need to that had been recommended by Ms. (PE-CC-

2), for which she would charge an hourly rate of (T: 158). She identified “

” as

(T: 167). “ ” was described as

(T: 168-69). Ms. testified that she had used

(T: 166). Ms. indicated that, although not referenced in her Affidavit, , consisting of to a and if was receiving services from a , would also be necessary (T: 171-72; T: 177).

’s mother was he final witness called in the parent’s case-in-chief. She testified that was a student who had been diagnosed with

,

(T: 220-22). He requires a

(T: 221) and, in addition, until January 2015 (T: 223). Ms.

testified that attended a at starting at

, at which he did well in (T: 227 – 233).

Ms. testified as to a number of concerns that she had with respect to the recommendations made regarding the 2013-2014 school year, as well as with respect to the manner in which such recommendations were implemented. As the only relief sought by the parent with respect to the 2013-2014 school year relates to the RSA’s, and I as find that such issue was addressed by the prior IHO and that I will not modify the relief that he awarded in connection with the hearing that was conducted before him, I see no reason to recount in this Decision the parent’s testimony as it relates to issues involving the 2013

2014 school year.

Ms. testified as to ’s program during the 2014-2015 and 2015-2016 school years. Such testimony, while limited in its detail, suggested that Ms. was unhappy with the (T: 281-283), and the (T: 283 – 284), including the (T: 290). She further testified that there was certain information that was discussed at CSE meetings that had not been fully explained to her (see, e.g., T: 293-94) and that the IEP did not always accurately reflect those things that could do (T: 295). She further testified that the CSE did not agree to recommendations that were contained in those evaluations that had been conducted as a result of the prior IHO’s Order (T: 297-302). Finally, Ms. testified as to the extensive efforts that she had undertaken in an effort to locate providers who were prepared to delivered those missed related services for which RSA’s had been issued, including contacting approximately 30 and 30 . Her lack of success in securing appropriately-qualified providers to deliver make-up services primarily related to the dollar-amount of the RSA and the location of the provider (T: 314-

318). In terms of relief that she was requesting during this hearing, Ms. testified that she was seeking to have him placed in an appropriate where he could , , and (T: 320-321).

THE LEGAL STANDARDS

Pursuant to the IDEA, all children with disabilities are entitled to a “free appropriate public education” (“FAPE”) which must include “special education and related services” tailored to meet the unique needs of the child and be “reasonably calculated to enable the child to receive educational benefits.” B oard of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 207 (1982); (20 U.S.C. § 1400[d][1][A]; Schaffer v. W east, 126 S. Ct. 528, 531 [2005]; Frank G. v. B oard of Education, 459 F.3d 356, 371 [2nd Cir. 2006]). A FAPE is offered to a student when

(a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Paw ling Central School District, 427 F.3d 186, 192 [2nd Cir.

2005]). The Second Circuit Court of Appeals in W alczak v. Florida Union Free School District, 142 F.3d 119 (2nd Cir. 1998) held that the IDEA does not articulate any specific level of educational benefits that must be provided through an IEP. The Court citing to the Supreme Court ruling in Rowley reiterated that the IDEA does not require the states to maximize the potential of disabled children, but was meant “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside” (at pg. 192). The Second Circuit in W alczak also cites to a D.C. Circuit Court decision by now Supreme Court Justice Ruth Bader Ginsburg which held that because “public resources are not infinite,” federal law “does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child” (Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1583 [D.C. Cir. 1984]). The Third Circuit has held that an appropriate education under the IDEA is one that is “likely to produce progress, not regression” (Cypress-Fairbanks Indep. Sch. Dist. V . Michael F., 118 F.3d 245, 248 [3rd Cir. 1997]; cert denied 522 U.S. 1047 [1998]; Cerra, 427 F.3d at 195, quoting W alczak, 142 F.3d at 130 [citations omitted]; see Perricelli v. Carmel Central School District, 2007 WL 465211, at *15). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (W alczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 [2nd Cir. 1989][citations omitted]; see Grim, 346 F.3d at 379). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford B oard of Education, 103 F.3d 1114, 1120 [2nd Cir. 1997]; see Rowley, 458 U.S. at 192). Objective factors such as the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress and one important factor in determining educational benefit (Rowley, 458 U.S. at 207, n.28, 203-04; W alczak, 142 F.3d at 130; V iola v. A rlington Central School District, 414 F. Supp. 2d 366, 382 [S.D.N.Y. 2006]).

The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; see W alczak, 142 F.3d at 132). The LRE is defined as “one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled” (Carlisle A rea Sch. V . Scott P., 62 F.3d 520, 535 [3rd Cir. 1995]). The IDEA mandates that all students with disabilities may only be removed to a more restrictive environment when the nature and 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]; 34 CFR

300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3rd Cir. 1993]; Briggs v. Bd.

of Educ., 882 F.2d 688, 691 [2nd Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]).

“The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Borough of Clementon Sch. Dist., 995 F.2d 1204 [3rd Cir. 1993]). The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes such as language and role modeling with nondisabled peers” (Greer v. Rome City Sch.

Dist., 950 F.2d 688 [11th Cir. 1991]).

The Second Circuit Court of Appeals adopted the Oberti LRE test in P. v.

Newington B oard of Educ., 546 F.3d 111 (2nd Cir. 2008) requiring the consideration of whether the school has made reasonable efforts to accommodate the child in a regular classroom, the educational benefits to the child with appropriate supplementary aids and services versus a special class and the possible negative effects of the inclusion of the child on the education of the other students in the class.

Federal district courts have upheld the appropriateness of an IEP “given what the CSE knew about [the child] at the time it was developing the … IEP” E.S. v. K atonah-

Lewisboro School District, 742 F.Supp.2d 417 (S.D.N.Y. 2010). In J.R. v. B oard of Education of the City of Rye School D istrict, 345 F.Supp.2d 386 (S.D.N.Y. 2004), the Court held that in reviewing the appropriateness of an IEP that:

“This determination is necessarily prospective in nature; we therefore must not engage in Monday-morning quarterbacking guided by our knowledge of

S.R.’s subsequent progress at Eagle Hill, but rather consider the propriety of the IEP with respect to the likelihood that it would benefit S.R. at the time it was devised. See A ntonaccio, 281 F.Supp.2d at 724 (noting that this issue has not yet been addressed by the Second Circuit and holding that ‘the …IEP…must be evaluated at the time the CSE devised the IEP, on June 15, 1999, and the IHO and SRO erred by regarding any information about [the student’s] education after that date’).”

The SRO has consistently considered the IEP “at the time it was formulated” to determine if it was reasonably calculated to enable the student to receive educational benefit

(A pplication of a Student with a Disability , SRO Appeal Nos. 11-154, 09-034, 09-013).

In terms of the available remedies in cases where a district has failed to meet its obligation to offer an educationally disabled child FAPE, IHO’s have substantial discretion. Since P. ex rel. M r. and M rs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008), the courts of the Second Circuit have ceased to limit eligibility for “compensatory education” to those over 21. In P, the Second Circuit ruled that “compensatory education” can be awarded to an elementary school student. Further, even the “gross violation” requirement, which is applicable to a claim for compensatory education by someone over 21 is not clearly established in this Circuit to be applicable to a student under 21. That standard was not relied upon in P.

In S.A . ex rel. M.A .K. v. New Y ork City D ep't of Educ., 12-CV-435 (RMM)

(MDG), 2014 WL 1311761 (E.D.N.Y. Mar. 30, 2014), the Court held:

The IDEA allows a hearing officer to fashion an “appropriate remedy, and ...

compensatory education is an available option ... to make up for denial of a [FAPE].” P. ex rel. M r. and M rs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008) (affirming compensatory education award for elementary school student); see also Student X v . New Y ork City D ep't of Educ., No. 07

CV 2316, 2008 WL 4890440, at *24 (E.D.N.Y. Oct. 30, 2008) (awarding compensatory education to student younger than twenty-one). Such an award serves “to compensate a student who was actually educated under an inadequate IEP” and “to catch-up the student to where he should have been absent the denial of a FAPE.” B rennan v. Regional Sch. Dist. No. 1 Bd. of Educ., 531 F.Supp.2d 245, 265 (D.Conn.2008). Before awarding compensatory education for a student older than twenty-one, a court must find a gross violation of the student's right to a FAPE; however, whether the same prerequisite exists to awarding compensatory education for a younger student is an open question. See Student X , 2008 WL 4980440, at *24. P. v.

Newington, 512 F.Supp.2d 89, 112 n. 3 (D.Conn.2007) (“The Court disagrees with the defendant's argument that compensatory education is warranted only if there is a ‘gross' violation of the IDEA. The requirement of a gross violation

... has been applied only to cases involving claimants over the age of 21.”), aff'd, 546 F.3d 111 (2d Cir.2008); but see J.A . v. E. Ramapo Cent. Sch. Dist., 603 F.Supp.2d 684, 690 (S.D.N.Y.2009) (finding that five-year-old student was not entitled to compensatory speech therapy, reasoning that parents failed to show gross violation because child “was not excluded from school for any period of time.”).

Also, Reid ex rel. Reid v. D.C., 401 F.3d 516, 522-26 (D.C. Cir. 2005) seems to stand for the proposition that “compensatory education” can be prospective educational services to compensate for a past deficient program and that a hearing officer, as well as a court, can fashion flexible “compensatory education” relief through the application of “equitable considerations.” Reid is cited by, for example, the Second Circuit in P., 546 F.3d at 123, for the proposition that “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.”

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In his Decision relating to IHRS Case No. 151513, the IHO directed, inter alia, the issuance of RSA’s for all missed related services during the period July 1, 2013 through October 17, 2014. There is no question that this was done. Rather, the claim in the instant case, as it relates to that period, was that this Order did not provide an effective remedy for the missed services, as the parent was unable to secure make-up services for Case No. 156693 the value of the RSA. I view this as an implementation issue and will not modify the relief granted by the IHO in the prior hearing. Since this is the only relief sought by the parent with respect to the 2013-2014 school year, I will dismiss any claims relating to the 2013-2014 school year as well as any claims relating to the RSA’s that were issued for the period through and including October 17, 2014.

The uncontroverted hearing record establishes than was denied FAPE during the 2014-2015 and 2015-2016 school years. In making this finding, it is unnecessary to address the specific allegations set forth in the July 29, 2015 due process complaint relating to such years. Rather, the analysis needs to extend no further than the evidence presented by the DOE to support the appropriateness of the educational program and services offered during such period. Indeed, with the exception of DOE-Exhibits 1 – 4, which were presented for the limited purpose of addressing the parent’s claim for relief relating to RSA’s, and DOE-5, consisting of an incomplete 2014-2015 report card, the DOE presented absolutely no evidence to controvert the challenges to the 2014-2015 and 2015-2016 IEPs. Thus, the DOE failed to meet its burden of proof as to any of the issues raised in the due process complaint as to which they had the burden of proof.

Accordingly, the only remaining question relates to the relief that is appropriate for the denial of FAPE during such periods.

Some aspects of the relief that is appropriate in this case are easy. I have already determined that an was appropriate, and it was and is ordered. The parent’s testimony clearly establishes the appropriateness of RSA’s for any missed related services being issued at the enhanced rate. The parent attempted in good faith to obtain service providers at the normal RSA rate and was unable to do so, in part, because of the low rate offered by the RSA. I see no reason for the parent to go through that process once again.

Next, it is clear that the student’s are a significant impediment to his success and that may assist him in . The hearing evidence supports the conclusion that more on the part of may lead to other benefits, . I am satisfied that the sought by the parent will reasonably lead to such improvements in Case No. 156693

. It is equally clear to me that, in order to facilitate

. Finally, while the evidence

concerning the appropriateness of the for is thin, what is overwhelming is the need for to . I am not convinced that is the necessary , particularly in light of the fact that has not previously received services (T: 319) and may or may not be an element of the program that is now in or may be in during the period through June 30, 2017. I find that the hearing record simply does not support the need for this particular methodology, to the exclusion of all others. Accordingly, w hile I will Order compensatory services to be delivered , I will not direct that such services involve .

The parent has indicated that she would like to see placed in a in which he could

(T: 320-321).

I have considered whether the hearing evidence supports an order that the DOE defer

’s case to the Central-Based Support Team for identification of a non-public school equipped to meet his individual needs in a placement. However, I find that the hearing evidence does not necessitate an IHO Order to this effect. In fact, the hearing record suggested that, during the pendency of the hearing, the CSE met and recommended that be placed in a (T: 329-331). I indicated that I would need a copy of the IEP that was generated as a result of that September 25, 2015 meeting in order to (T: 330-336). While a copy of the IEP was not thereafter offered into evidence, the parent did testify that the CSE had, on September 25, 2015, recommended that be placed in a non-public school that she was happy with (T: 337-338). In fact, the mother testified that the CSE had, at the September 25, 2015 meeting, recommended the very program that she has requested (T: 338). In light of this information, I find that it is unnecessary for me to issue an Order relating to ’s possible placement in a non-public school on a prospective basis. My Decision in no way relates to the appropriateness of the educational program recommended at the September 25, 2015 meeting, the appropriateness of which may be challenged by the parent in a subsequent due process complaint. This Order will, therefore, deal with other types of compensatory relief.

ORDER

1. The parent’s claims with respect to the 2013-2014 school year is hereby dismissed.

2. The parent’s claim with respect to the RSA’s that were issued for the period July 1, 2014 through and including October 17, 2014 is hereby dismissed.

3. The parent’s request for an independent

at public expense is, as indicated at the September 28, 2015 hearing, granted. Such , and the resulting , shall be conducted by at a rate not to exceed . The DOE is directed to schedule a CSE meeting within 10 school days after receipt of the to consider what, if any, changes should be made to ’s IEP.

4. The parent’s request for an Order directing the issuance of RSA’s at the enhanced rate for any missed related services that have not been made up during the period October 18, 2016 through the date of this Order is granted.

5. The DOE is hereby directed to add “ ” and “ ”, or such other as may be mutually agreed upon by the parties, to ’s IEP. In the event that there is no mutual agreement on the addition of , the DOE shall fund up to of to be delivered to at and up to of to be delivered at “ ” and “ ”. In the event that there is mutual agreement on

, the DOE

shall fund up to of Case No. 156693

as may be agreed upon by the parties or, if no agreement is reached, up to of as recommended by the provider. Such shall be at an hourly rate not to exceed .

6. The DOE is directed to deliver up to of compensatory services to Such services may or may not include elements of , based upon the agreement of the parties or, if no such agreement is reached, upon the determination of the DOE, except as set forth herein.

Such services shall commence within 30 calendar days of the date of this Order. In the event that such services have not commenced within 30 calendar days of the date of this Order, the parent shall determine the extent to which the shall be utilized and identify to the DOE in writing an appropriately qualified provider to deliver such services. The DOE shall, upon receipt of satisfactory documentation relating to the qualifications of the provider and the delivery of the services, reimburse the parents or directly pay the provider, as appropriate.

The of compensatory services shall be exhausted not later than June 30, 2017.

7. The DOE shall meet within 30 calendar days of the effective date of this Order, review any evaluations that have not already been reviewed by the CSE as well as any updated information as to ’s , and make such revisions to ’s IEP as the CSE may deem appropriate. I further direct that copies of any evaluations, reports, data or writings of any kind that will foreseeably be discussed at such CSE meeting be provided to the parent at least 5 business days prior to such meeting.

Dated: March 21, 2016

MICHAEL K. LAMBERT, ESQ.

Impartial Hearing Officer ML:

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

Parent Exhibits:

A. 7/29/17 Due Process Complaint (18 pages)

B. 8/3/15 Answer to Due Process Complaint (3 pages)

C. 3/6/13 IEP (18 pages)

D. 5/22/13 IEP (18 pages)

E. 10/16/13 IEP (15 pages)

F. 2/12/15 IEP (16 pages)

G. 3/4/15 IEP (21 page)

H. 1/14/13 Progress Report (3 pages)

I. 2/8/13 (3 pages)

J. 8/11/14 Report to Families (4 pages)

K. 11/11/14 Evaluation (3 pages)

L. 11/19/14 Assessment (4 pages)

M. 11/20/14 Evaluation (5 pages)

N. 11/25/14 Evaluation (4 pages)

O. 12/9/14 Evaluation (3 pages)

P. 12/14/14 Evaluation (5 pages)

Q. 21/11/15 Reports for 2013-2014 School Year (9 pages)

R. 2/11/15 Reports for 2014-2015 School Year (7 pages)

S. 3/5/13 Letter from (1 page)

T. 9/16/13 Letter from Parent to (1 page)

U. 11/18/14 E0mail from to (1 page)

X. 7/20/12 IEP (18 pages)

Y. Affidavit and Resume (5 pages)

Z. 3/26/15 Related Service Missed Sessions List (2 pages)

AA. Resume and License (2 pages)

BB. Parent Records of Contacted Service Providers (9 pages)

CC. Affidavit (2 pages)

DD. E-mails (4 pages)

DOE Exhibits: None

1 E-mails (20 pages)

2 (9 pages)

3 (9 pages)

4 (9 pages)

5 2014-2015 Report Card, Term 1 (2 pages)

IHO Exhibits:

I. 9/1/15 Motion Requesting Interim Order (14 pages)

II. 10/17/14 Findings of Fact and Decision in Case No. 151513 (7 pages)

III. 8/25/14 Amended Request for Impartial Hearing in Case No. 151513 (14 pages)

IV. Parent’s Closing Brief (32 pages)

Footnotes

[1] The due process complaint in IHRS Case Number 151513 was offered and admitted at the subsequent hearing date as IHO-III.