New York City Department of Education, Impartial Hearing Decision

AMENDED FINDINGS OF FACT AND DECISION

Case Number: 155843

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: October 9, 2015

November 10, 2015

Actual Record Closed Date: January 5, 2016

Hearing Officer: Audrey Daniel, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 9, 2015

Student

Attorney for Parent — Student

Impartial Hearing Representative — DOE

Impartial Hearing Representative — DOE

(By Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 10, 2015

Student

Attorney for Parent — Student

(by telephone) — Student

Impartial Hearing Representative — DOE

Impartial Hearing Representative — DOE

(By Telephone) — DOE

(By Telephone) — DOE

— DOE

INTRODUCTION

On July 20, 2015, I was appointed by the New York City Department of Education (DOE) to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act [20 U.S.C. §1415(f)(3).] (“ ”) by the parents (“Parent” or “Parents”) of (“ ” or “Student”). The Parents requested the hearing by filing an impartial hearing request with the DOE on June 25,

2015.

BACKGROUND

Student was born on [Redacted text] and she presently attends the at . (Exhibit A). Her classification is and she (Exh. A and Tr. page 76). It is undisputed that she is and .

It is also undisputed that the and that, despite this

,

. However, the parties disagree as to whether she made progress during the last years. Further, the parties differ as to the appropriate measure to determine whether FAPE has been provided.

At the hearing, Parent’s attorney raised a child find issue, as well as failure to evaluate, in addition to procedural and substantive FAPE violations. As a remedy, Parent requests the CSE reconvene to add services based on the recommendations of the independent evaluation conducted over the summer of 2015, as well as extensive compensatory services to be provided until and .

DOE CASE

The DOE presented three witnesses in support of its case. The first witness for the DOE was , Student’s teacher during the 2014-2015 school year when she was in . Interestingly, no special education teacher provided testimony.

The second witness was Dr. , . Dr.

attended the initial IEP meeting. She did not complete the report but gathered information, including teacher reports, and attended the meeting. Her contact with Student was limited after the initial meeting. The third witness was , . She initially observed Student, and made recommendations to teacher. When they were not producing results, she evaluated Student and recommended and provided services.

The DOE’s first witness was , who has a Master’s Degree in education; she is employed at , the where she teaches in an . (Tr. pages 68-70). In an (Tr. page 71-2). To determine academic progress, both informal and formal assessments are used, including classroom observations and to determine . (Tr. page 73-4). The witness met Student in September of 2014 as she was in Ms. ’s class. There were approximately children in a class with

. Student

. (Tr. page 74-76). She assessed Student’s

at the beginning of the school year and found that her , where she , was “ ”, which is the . (Tr.

page 80-1). Her were and she

. Both her and were at the . (Tr. page 81-

2). She had , her was , and she

. She also

and was . (Tr. page 82-3). Based on these assessment, they provided her with . (Tr. page 85). They used as well as the . (Tr. page 86-7). , they followed . (Tr. page 88). Student was . Witness testified that Student and her ; she was .

(Tr. page 93-4). She testified that Student’s went from a “ ” to an “ ” around January. (Id.). She was assessed again in about April, and she believed that she was “ ”.

. (Tr. page 95-6).

Her was . At the end of the year, they used the , but Student was tested by other teachers. Student, based on this test, “ ”. (Tr. page 99-100).

In terms of the improvement in her , the witness testified that she used methods such as and (Tr. page

100-3). Student went from to and, even though , she was . She testified that, by the end of the year, she was .

“ ” There were , when

initially tested that she was . (Tr. page 104-6). In , she was initially performing at , but they worked with her , , and . They had a , and . (Tr. page 106-8). Although she . (Tr. page 111-2).

Other services provided to Student included , which is . Ms. attended Student’s IEP meetings as she is required to as her teacher. She went to her annual review meeting, which was scheduled around May. Ms.

, the attended the meeting as well, and the two of them were in constant communication. (Tr. page 112-4). As a result of her working with Ms. , Student’s . At the meeting, the program recommendation was an , with the addition of , the . (Tr. page 117). was added because Student . Additionally, since was the “ ”, they wanted to make sure she and . (Tr. page 119). She did not recall any other programs being offered, and Parent thanked them. The witness testified that she asked Parent if she understood everything, and Parent told her that she had seen a big difference in Student. (Tr. page

119-21). Witness testified that a or class would not be appropriate for Student because . Since

Student was and , she did not feel that this setting was appropriate. (Tr. page 122). Although she made a lot of improvement; but she had made improvement. (Tr. page 125). However, on cross examination, she was unable to recall whether during the 2014-15 school year. (Tr. page 128, Exh. J). She further testified that she . (Tr. page 132, Exh. 11). She was aware that Student’s , and she stated that she knew that “because she had an

IEP”. (Tr. page 134). When they filled out the progress report, she but had made improvements. (Tr. page 136).

The DOE’s second witness was Dr. , PhD. Dr. has a Master’s Degree from and in from . She also has a PhD in and is licensed by New York City. She has been working as a in the school system for approximately twenty-five years, and for for nineteen or twenty years. She presently works at , where student attends as well as two other schools as the . (Tr. page 162-3).

When there are concerns, they are discussed prior to a referral, and the child is evaluated after six weeks if classroom interventions do not help and the parent’s consent.

(Tr. page 163). Dr. testified that once a child is referred, she would work with the teachers prior to evaluation. If evaluation occurs, she uses the to test and the to determine

. (Tr. page 167). She also looks over reports completed by others. She did not evaluate Student; the evaluation was sent out for procession because she did not have time to complete it. In these instances, another DOE evaluates the student after school between 4 and 7 pm. (Tr. page 165-6).

Student was evaluated by another school . The other ,

, used tests to evaluate

. This evaluation found that Student’s was in the , her , that is, , was in the . (Tr. page 168-171). Her , her was in the , which is the . Her was in the , was in the , and was in the . (Tr. page 171-173). She

was also tested for . She was tested in , ,

, and . Student’s scores all fell within the

, estimated at a . (Tr. page 173). Her were also tested including , , and , and she tested in the , testing at a . (Tr. page 174).

In terms of her , she , and

, but as she was . She was and

. (Tr. page 176-7).

The witness testified that her conclusions were based not only on the evaluation, because she did not draw conclusions from one piece of information. The IEP also looks at a classroom observation completed by a and teacher reports. (Tr. page

177). (See, Exhibit 8). The teacher report indicated at a , , and that Student was . (Tr. page 178). Student was offered . (Tr. page 178). A meeting was held on April 24, 2014 to determine if a classification and services were needed. According to the witness, the IEP team reviewed the evaluation, teacher report and social history. At the meeting, Parent expressed concerns with Student’s , and . The IEP team determined to provide services as well as . (Tr. page 179-181).

Witness testified that the evaluation supported the recommendation. NO\ other special education programs were recommended at this time. Dr. testified that Parent expressed extreme gratitude. (Tr. page 183). She did not speak with Parent at any point afterwards and did not attend annual review. (Tr. page 184). On cross exam, she testified that she did not perform the evaluations and was aware that . She was not aware of the 2013-2014 , but later found out about it when she was notified of the present hearing. She admitted that there was no mention of in the evaluations (See, Exhibit 7).

The DOE’s final witness was , a who

evaluated Student and later provided services.^[1] Ms. has a master’s degree in from and a master’s degree in . (Tr. page 205). She is a who is in her third year of employment at . She first observed Student in when requested by the teacher and in 2013 and noticed . (Tr.

page 208). As was the customary protocol, she provided teacher with various strategies for the first six weeks, but many teachers do not follow protocol and are resistant to provided strategies. (Tr. page 209-11). She did not know if that was the case with Student, but after six weeks, when there was no significant progress, Ms. evaluated

Student. Unfortunately the evaluation was never input unto SESIS, but was conducted on January 21, 2014. (Tr. page 210-11)

The witness attended the first IEP meeting where she discussed her concerns with Student’s , and and and , which was Parent’s concern. (Tr. page 212-214). She worked on as well as working to with Student’s .

She generally to work with her, but occasionally

. (Tr. page 214-5). Referring to Exhibit 16, the , she assessed student’s progress with the use of the and . (Tr. page 217). She, as well, as the other members of the IEP team requested Parent have testing as well as at the annual review, and never received any results of these tests from Parent. (Tr. page 219). On cross, Ms. admitted she had just seen received report. (Tr. page

220).

PARENTS’ CASE

Ms. testified on her own and her daughter’s behalf. She testified that her daughter .

(Tr. page 222-3). During the 2012-2013 school year she attended , where she attended , and . She testified that there was an issue with the principal who confused Student with another student who was also having difficulties, but claims that she was not aware of her child’s difficulties until September of 2013 (Tr. page 224-5). During the 2013-2014, she was placed in a class in and . She had meetings with her teacher and she wrote a letter in February of 2014 to the Committee on Special Education. (Tr. page 226-7). As part of the evaluation process, Parent participated in a social history where she expressed specific concerns, such as her suspicion of because . . (Tr.

page 228). Parent attended that the April 2014 CSE meeting, where the classification of was discussed, although not explained. (Tr. page 229).

During the 2014-2015 school year, Student was in the . Services started at the beginning of this year. Parent was told that they would not start until September because it was too late in the school year. (Tr. page 230). Student also did not do well during the 2014-2015 school year, and Parent testified that no progress was made. She spoke with the teacher and expressed her concerns.

, and she was notified by letter. (Tr. page 231). There was an evaluation done by which indicated that Student , and that she needed . During this school year, Student is in the at ; parent testified that at a recent parent teacher conference, on November 5, 2015, the teacher informed her that Student’s (Tr. page 232). Although the IEP provides for services, Parent testified that she was told by the classroom teacher that she was unaware that she was to be receiving services. (Tr. page 233-4). Parent further testified that she did not believe that Student was or that she was receiving appropriately services. (Tr. page 234).

Parent’s second witness was ,

. (Tr. page 254). She was been employed

there for fourteen years and prior to that taught in China and in Los Angeles; she has a in . (Tr. page 255). As

, she is responsible for

. (Tr. page 256).

is accredited by the and provides

. (Tr. page 256-7). If they determine that a testing session is necessary, it is scheduled and information is gathered and reviewed with the parent, and a schedule for is put into place. (Tr. page 257-8).

Student was brought in for testing during June of this year, at the end of , and the general impression was that she was . She was tested to determine her and to . (Tr. page 258-9). She was administered a variety of tests including the , which is designed to . These tests indicated , but indicated that and that . (Tr. page 260-3).

The demonstrates . Student

, and . The witness

testified that she believed, based on this test, that Student . (Tr. page 264-5). The was administered next, and Student ,

,

Ms. testified and indicated that her

. (Tr. page 266-67). The which tested the Student’s . The results of this test indicate that she . (Tr. page 269-270). She was given the to determine whether . Student indicated

a need for ,

. (Tr. page 270-1). The indicated that Student . (Tr. page 272). The assesses

and ; Student

, and is . (Tr. page

274-5). The is a assessment

that . She

, . (Tr. page 276-7). The evaluation was a and ,

, . (Tr. page 278-9). The final test was the

. Although she had , such as

, , and , she

. She also , and

,

. (Tr. page 279-281).

The witnesses overall impression of Student’s was that she was , and her experience is that . She testified that her was and that her would be . Her were at . The ultimate goal of services at would be for . (Tr. page 282-3). A was developed (Exh. P) which was derived from the test results and indicated . This approximation was based on her years of experience working with other children and indicated a total of that and

.

During the resolution period, the DOE agreed to provide authorization for an independent examination. (Exhibit 3). This evaluation was conducted on July 11, July 25 and August 8, 2015. (Exh. D). Student ’s was found to be in the , but notably, her

,“ ” (Exh. D-4). Her

and were . (Exh. D-4).

Additionally, these scores, according to the tester, indicated . The tester stating the Student “ ” Her were also found to be at , and her also .

(Exh. D-5).

Parent was sent a letter on June 13, 2013 from indicating that . (Ex N). Parent moved Student to and . After

speaking with her teacher, Parent requested an evaluation on February 6, 2014 (Ex. M).

An IEP meeting was held in April of 2014, but the projected date of implementation was not until September 8, 2014. (Exh. C). In her initial IEP, there were goals to address

, , , and

(Exh. C). Although the IEP provided for , neither party submitted evidence of .

FINDINGS OF FACT AND DECISION

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C.

sec. 1400(d)(1)(A),(B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the handicapped child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to

(a) whether the school district complied with the procedures set forth in IDEA; and (b)

whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982). This case held that the Education for All Handicapped Children Act’s (“EHA”) requirement of a “free appropriate public education” (“FAPE”) is satisfied only when the state provides personalized instruction with sufficient support services to adequately confer “some educational benefit” upon a child with disabilities. 458 U.S. 176, 200 (1982) (emphasis added). The Supreme Court found that “[i]t would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from that education.” Id. After noting EHA’s standard, the Court recognized the difficulty in determining whether a child is receiving sufficient educational benefits. Id. at 202. The Court noted that grading and advancement systems constitute important factors in determining educational benefit, but it also specifically recognized that mere advancement from grade to grade is not dispositive that a child with disabilities is receiving sufficient educational benefits to satisfy the requirements of FAPE. Id. at 202. The United States Supreme Court made an attempt to define the term “appropriate” in this case. Finding that Congress intended the IDEA to provide “equal educational opportunity,” the Court rejected arguments that appropriate under the IDEA meant some maximization of potential or commensurate opportunity. Rather, the IDEA requirements of a FAPE is satisfied when the State provides personalized instruction with sufficient support services to permit the student with a disability to benefit educationally from the instruction. Noting it was not attempting to establish any one test for determining the adequacy of educational benefits the IDEA required, it stated that an IEP: 1) had to be formulated in accordance with the procedural requirements of the IDEA; and 2) must be “reasonably calculated” to enable the child to obtain educational benefit. Subsequent court decisions interpreted Rowley to mean that the IDEA does not require schools to provide students with the best or optimal education, nor to ensure that students receive services to enable them to maximize their potential. Lenn v. Portland Sch. Comm., 998

F.2d 1083 (1st Cir. 1993). Instead, schools are obligated only to offer services that provide students with "some educational benefit."

The DOE argues that FAPE was provided, as the IEP was reasonably calculated to enable Student to receive educational benefits, that services were provided in the least restrictive environment, and that Student made academic progress. (DOE brief page 2).

However, the overall and independent evidence showed otherwise. Most notably, the independent evaluation conducted by after the completion of , indicated that Student’s were at a , her at and were at the . (Exhibit D-4 and D-5). Her was at the . (Exh. D-5). Interestingly, when tested by the DOE using the , a test completed in April of 2014, her were estimated at a . (Exh. E-4). Her , on the DOE test, indicated (Exh. E). Testing completed by the during June of 2015 indicated similar results, showing

. (Exh.

Q). Testimony indicates that throughout testing, “ ” (Tr. page 276). Even with the , her indicated that during the 2014-2015 school year. (Exh. 12).Her teacher testified, that , her . (Tr. page 128) Further, according to her teacher. (Tr.

page 132-3). See, Exh. J).

Additionally, is specifically described in

Commissioner’s Regulations and clearly can be placed on an IEP. See 8 N.Y.C.R.R.

200.6 (b) , and should be done so in this case. The test results show that the IEP’s have failed to adequately address Student’s as she has made no progress in , , and . The record indicates that Student requires . See, 8 N.Y.C.R.R. §

200.6(b)(6 ). In re: Student with a Disability, 109 LRP 64955 (2003)

Clearly, as her scores have, after the implementation of the IEP’s, I find that that Student was denied FAPE.

Child Find

Either a parent or a public agency may initiate a request for an initial evaluation to determine if a student is a student with a disability. 34 CFR 300.301(b). Additionally, the IDEA's "child find" mandate requires that districts seek out students who are potentially

IDEA-eligible and refer those students for an evaluation. 34 CFR 300.11. A district may not take a passive approach and wait for others to refer the student for special education services; the district must seek out IDEA-eligible students. Compton Unified Sch. Dist. v.

A ddison, 54 IDELR 71 (9th Cir. 2010), cert. denied, 112 LRP 1321, 132 S. Ct. 996

(2012). The "child find" duty requires referral for an evaluation when the district "has reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (Dept. of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190

[D. Haw. 2001]; see 8 NYCRR 200.2, 200.4). The provision applies to children who are suspected of being a student with a disability and in need of special education, even though they are advancing from grade to grade (34 C.F.R. § 300.125[a][2][ii]; see 8 NYCRR 200.4). A school district must provide a FAPE to students who have met the criteria for identification as students with disabilities under the IDEA and Article 89 of the New York State Education Law (34 C.F.R. § 300.307; 8 NYCRR 200.1[zz]). This includes all children who are suspected of having a disability, including children who receive passing grades and are "advancing from grade to grade." (34 CFR 300.111(c))

The law does not require children to be "labeled" or classified by their disability. (20 U.S.C. 1412(a)(3)(B); 34 CFR 300.111(d)). Here, Parent requested an evaluation in February of 2014. (Exh. M). However, Student , and there is no testimony or evidence regarding any exchanges between the Parent and DOE about the concerns about additional needs or requests for consent for evaluations. Student had , before she was evaluated. Further, once she was evaluated, the resulting IEP was not implemented until September of 2014. The DOE bears the burden of proof on all matters at this hearing (see N.Y. Education Law §4404(1)(c); M.H.

v.N.Y.C. Dept. of Educ., 685 F3d 217, 224-25 (2d Cir 2012)). The DOE has put forth no proof that they met their obligations under child find. Therefore, I find the DOE violated

“child find” obligations for the 2013-2014 school year.

Failure to Evaluate

Regulations define " " as a "

" and includes the following conditions:

"

" (8 NYCRR 200.1[zz] [emphasis added]; see34 C.F.R. §

300.8 ). The IDEA provides that school districts must “ensure that .... [t]he child is assessed in all areas related to the suspected disability, including ... general intelligence [and] academic performance," 34 CFR § 300.304(c)(4). These assessments must be comprehensive enough to address every area related to the child’s suspected disabilities.

Courts have held that the absence of one single measure-when the CSE has considered a host of measures in drafting the IEP-should not itself render an IEP invalid so long as the CSE team otherwise has sufficient information about the student to determine the student’s educational needs. R.B. v. New York City Dep’t of Educ., 15 F.Supp.3d 421

(S.D.N.Y. 2014). Here, Dr. testified that not only was Student tested using standardized testing, there was an observation of Student in the classroom, social history of information provided by Parent and teacher report. (Tr. page 177). Student was tested using the and . (Tr.

page 167). During her , she tested at a

, , , and (Tr. page 174). There are goals in the initial IEP reflecting and , including , and . (Exhibit 5). Perhaps

more testing could have been done, but there is no requirement that every conceivable test be administered. Parent’s concern was with her and tests were administered to determine whether a disability existed. On the other hand, Parent was asked at the annual review meeting to take Student for and , and there is no evidence presented that she has done so. Based on her initial scores, Student demonstrated and was provided services, based on a number of factors, to . I, therefore, find that the DOE did not fail to evaluate Student.

COMPENSATORY SERVICES

Compensatory education is an equitable remedy that provides in-kind special education and other related services for denials of a free and appropriate public education (FAPE). Compensatory education is generally defined as educational services above and beyond that normally due a student under his state's education law. Wenger

v. Canastota, 979 F. Supp 147, 151 (NDNY 1997); C.G. v. Five Towns Community School District, 513 F.3rd 279 (290) (1st Cir. 2008). Such services are compensation for the education a student would have received “during the periods when his IEP was so inappropriate that he was effectually denied a FAPE” Reid v. District of Columbia, 401 F.3d 516, 525 (DC Cir. 2005).

The purpose of compensatory education is not to punish districts for denying the student FAPE. However, the goal is to place the student in the position that the student would be in had the district provided the appropriate services in the first place. Id. The

Second Circuit has endorsed compensatory education as a remedy for substantive FAPE claims. See, P. ex rel Mr. & Mrs. P v. Newington Bd. of Ed, 546 F.3d 111, 123 (2d

Cir.2008). And it leaves “the mechanics of structuring the compensatory education award to the district court's sound equitable discretion ... Streck v. Bd. of Educ. of the E. Greenbush Cent. Sch. Dist., 408Fed. App'x 411, 415 (2d Cir.2010) (summary order); see also, E. Lyme Bd. of Educ., 790 F.3d at 457(leaving to district court's discretion whether “compensatory education should be limited to the kinds of services specified in the amended 2008–2009 IEP, or encompass analogous educational services appropriate to the Student's current needs”). Recently, the Second Circuit cited the following standard with approval: “[T]he ultimate award [of compensatory education] 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.” Reid ex rel. Reid v. D.C., 401 F.3d516, 524 (D.C.Cir.2005), cited in E. Lyme Bd. of Educ., 790 F.3d at 457. And the Second Circuit concluded, “Whatever its precise form, the remedy must be ‘appropriate in light of the purpose of the Act.’ E. Lyme Bd. of Educ., 790 F.3d at 457 (quoting Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass.,471 U.S. 359, 369 (1985)); see also, Burr by Burr v. Ambach,863 F.2d 1071, 1078(2d Cir.1988)(“If, in this case, we do not allow an award of compensatory education, then [the student's] right to an education between the ages of three and twenty-one is illusory.”)

Student is , was denied FAPE and is entitled to compensatory services. She has . Although the record is unclear as to whether or not Parent was notified of concerns, clearly Student was

,

. (Exh. L). According to her mother’s testimony, she reportedly and has not been provided services mandated in her IEP, namely services in the . (Tr. page 233). Perhaps not every child who ends up needing special education services, but here, this was the case. Even after evaluation, the initial IEP was not implemented until the beginning of the next school year. (Exh. C). Although

(Exh. B-12).

However, I disagree that Student is entitled to an open check book to be used at a center of her choice. Parent is requesting payment for Student to receive at for approximately hours at per hour. According to testimony from , these numbers may change based on

(Tr. page 331). The testing done by

was completed in one day in June of 2015 (Tr. page 306), roughly the same time as the independent evaluation. (Exh. D). The independent evaluation, however, does not recommend hours of , but rather , , and times per week. (Exh. D-8). Further, until these services can be implemented, the report recommends

. (Exh. D-8).

Similarly, the IEP team also recommended services times per week in the 2015-2016 IEP. (Exh. 17). The DOE argues, in its closing brief, citing Reid, supra, that compensatory education should be awarded in relation to the time period that Student was denied a FAPE and that a provider would be a more appropriate provider as they are certified,

.. (See, DOE closing brief, pages

11-13). I agree with the DOE’s argument, both legally and factually. Student was denied FAPE for the 2013-2014 and 2014-2015 school years as a result of a failure of child find obligations and an IEP that provided no meaningful academic benefit. There are approximately one hundred and eighty school days in a school year. Based on this analysis, student is entitled to compensatory services in the amount of daily services for the past two years.

I order that Student received compensatory services in the amount of hours of services, to be provided by the DOE at a time and location mutually agreeable to both provider and Parent.

ORDER

I hereby order that:

1. The IEP dated April 24, 2014 violates Student’s right to a Free and Appropriate Public Education.

2. The IEP dated April 17, 2015 violates Student’s right to a Free and Appropriate Pubic Education.

3. The DOE did not meet its obligations under Child Find.

4. The CSE will reconvene and will consider the recommendations from the report conducted July 11, July 25, and August 8, 2015, as well as the independent evaluation. This meeting will take place within two calendar weeks of the receipt of the evaluation by the DOE. The CSE will increase and/or modify services based on the findings and recommendations addressed in these reports. The CSE will incorporate in the recommendations of this report including, but not limited to: (1)

and (2)

times per week in

.

5. Student is entitled to compensatory services. Services will be provided by a or s who will utilize proven methodology in a . Based on the recommendations from the report, Student will be awarded a total of hours of compensatory services. These services will be provided by a provider provided by the DOE in a in a mutually agreed upon time and location. If a provider cannot be located within thirty days of receipt of this order, Parent, after showing reasonable efforts to engage in a mutually agreed upon time and location with a provider, may arrange for a provider. However, any provider must be a or and must demonstrate ability and utilization of proven methodology in a . Prior to engaging the services of a provider, Parent must show, in a signed affidavit the following information:

1. The name of the provider that is called, including the specific person with whom the person communicates.

2. The date the provider is contacted.

3. The reason the provider is unable to provide service.

6. If a provider is used, pursuant to (5) above, the DOE will reimburse Parent for hourly expenses up to and including per hour for services within thirty days of receipt of either payment or bill for services. If Parent and

Student must

.

7. Parent’s request for reimbursement for and at is denied. Dated: January 19, 2016 Original Decision Rendered: January 6, 2016

AUDREY DANIEL, ESQ.

Impartial Hearing Officer

AD:

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

A Request for Due Process Hearing, 6/25/1/15, 8 pages

B IEP, 4/17/15, 14 pages

C IEP, 4/24/14, 13 pages

D Evaluation, 8/15/15, o pages

E DOE Report, 4/5/14, 6 pages

F DOE Teacher Report, 4/28/14, 3 pages

G DOE Classroom Observation, 4/24/14, 1 page

H DOE Assessment Planning, 4/5/14, 1 page

I 2014-2015 Report Card, undated, 2 pages

J Progress Reports various dates, 3 pages

K 2013-2014 Report Card, undated, 1 page

L 2012-2013 Report Card, undated, 2 pages

M CSE Referral Letter from Parent, 2/6/14, 1 page

N , 6/13/13, 1 page

O , 6/18/15, 3 pages

P , undated, 1 page

Q , undated, 54 pages

Footnotes

[1] The DOE offered into evidence an Evaluation dated January of 2014, prior to Parent’s request for evaluation. Parent’s attorney objected to the admission of this evidence as it violated the Day Rule. I sustained the objection, as there was ample time to produce this evaluation. More importantly, it was never entered in the system, and it is not referred to in the IEP.