New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: January 9, 2012

February 8, 2012 Actual Record Close Date: March 13, 2012 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 9, 2012

Parents

DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 8, 2012

Parents

Parents

Student

DOE Representative — DOE

Teacher — DOE

Teacher — DOE

INTRODUCTION

This hearing was requested on September 14, 2011 by the parent, (PARENT), of , the student (STUDENT). The hearing was requested, pursuant to the Individuals with Disabilities Education Act (IDEA),20 U.S.C §1415(f) and 1412(a)(10)(c), §504 of the Rehabilitation Act (504) and the United States Supreme Court decisions Burlington School Committee v. Department of Education, et. al., 736 F.2d 773 (1st Cir. 1984, aff'd at 471 U.S. 359, 105 S. Ct. 1996, 556 IDELR 389 (1985) (BURLINGTON) and Florence County School District v. Shannon Carter, et. al., 510 U.S. 7, 114 S. Ct. 361 (1993) (CARTER), to have the DEPARTMENT OF EDUCATION (DOE) “eliminate the flawed testing scores and recalculate new grades to compensate for denying educational benefit.” I was appointed to hear the matter by the Department of Education of the City of New York (DOE) and a hearing was scheduled for January 9, 2012. The PARENT appeared without counsel, pro se.

On January 9, 2012, a hearing took place pursuant to IDEA at 20 U.S.C. §1415(f) and pursuant to §504. Unfortunately, , representing the DOE, had inadvertently left her package of evidence on the railroad train commuting in that morning and was not able to proceed with the DOE case. After a discussion of various issues, the hearing was continued to February 8, 2012. An additional hearing took place on February 8, 2012. At the February 8 hearing Ms. made a motion to dismiss the due process complaint on the basis that the Impartial Hearing Officer’s authority under the relevant laws does not extend to ordering the DOE to change a student’s grades. The parties were requested to submit memorandums of law to support their positions. The initial brief was due by February 16, 2012. The rebuttal brief was due at the close of business on February 28, 2012. On February 9, 2012, , Esq., counsel for the DOE, requested additional time to present the DOE position, which he was preparing. The new dates proposed, which were accepted, by PARENT, were February 23 for the initial memorandum and March 6, 2012 for the rebuttal. On March 6, PARENT requested an extension of the rebuttal memorandum to March 13, 2012, as he had to go out of town on business. The DOE agreed to the extension. All memoranda were submitted by March 13, 2012. Appended to the record are lists of the persons in attendance and the documents received in evidence.

BACKGROUND

STUDENT is currently a student who in his 2010-2011 IEP has been classified with and who has attended a public school for the 2010-2011and 2011-2012 school years. He is currently in the . Under other alerts it was noted that STUDENT has weather related PARENT’S due process complaint asserts that the STUDENT’S 2010-2011 IEP failed to offer STUDENT a FAPE, particularly in regard to academic management needs and testing accommodations.

Relevant sections of the May 18, 2010 IEP for the due process claim of PARENT include: Recommended services: general education with related services only, 8:1; academic management needs: STUDENT” benefits for there to be no more than four questions with an enlarged font on a page for test and quizzes”; Related services provided on the IEP were , English, group size 5 of 1 x week, 40 minutes, separate location.

POSITION OF THE PARTIES

DOE

The DOE’s motion to dismiss contends that the IHO lacks jurisdiction and authority under IDEA and its related laws and cases to order the DOE to change the STUDENT’S grades as the remedy sought by PARENT in the event it is determined that the DOE did not offer the STUDENT a FAPE.

PARENT

The DOE failed to provide FAPE for 2010-2011 to STUDENT by failing to “implement the ‘academic managements needs’ and testing accommodations, denying him consistency in extended time and separate location on tests and quizzes.”

Despite ongoing objections to (STUDENT’S) testing format, the school continuously refused to make reasonable accommodations for him to participate successfully in assessments causing a deprivation of educational benefits.

The School denied (STUDENT) a FAPE, to (STUDENT’S ) , which impacts the . (See PARENT’S Due Process Complaint).

ISSUES ADDRESSED FOR THE MOTION FOR SUMMARY JUDGMENT

Does the Impartial Hearing Officer have the authority to grant the remedy requested by PARENT to order the DOE to ?

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Legal Framework and Standard The I.D.E.A.

The I.D.E.A. mandates that participating States provide students with disabilities FAPE. FAPE requires special education and related services tailored to meet the unique needs of a particular student and reasonably calculated to enable a student to receive educational benefits. Board of Education v. Rowley, 102 S. Ct. 3034, 3037-38 (1982). The law expresses a strong preference for students to be educated to the maximum extent appropriate with non-disabled peers and requires that students be segregated only when the nature or severity of the disability is such that education in regular classes cannot be achieved satisfactorily. Walczak v. Florida Union Free School Dist4rict, 142 F.3rd 119 (2nd Cir. 1998).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth annually in a written IEP which states present levels of performance, annual goals, specific services to meet those goals, the extent to which the student will participate in regular education, transition services needed for when a student leaves a school setting, the initiation date and duration of services, and objective criteria for determining whether goals and objectives are being achieved. Walzcak, supra at 122.

Parents play a significant role in the IEP process. They must be informed about and consent to evaluations and have the right to an independent educational evaluation of their child. They are members of the IEP team. (Schaffer v. Weast, 126 S. Ct. 528532 (2005). Moreover, parents' participation at IEP meetings must be meaningful. Deal v. Hamilton County Board of Education, 392 F. 3d, 840, 853 ( 6th Cir. 2005). Parents must also be given prior written notice of any changes to the IEP and notice of procedural safeguards, including the right to an impartial due process hearing. Schaffer, supra 126

S. Ct. at 532.

Adequate compliance with the procedures prescribed by the IDEA will in most cases satisfy what is required substantively in an IEP. Schaffer, supra 126 S. Ct. at 532 citing Rowley at 206; M.S. v. Board of Education of the City School Districts of Yonkers, 231 F. 3rd 96, 102 (2d Cir, 2000). Following Schaffer, the New York State legislature enacted Chapter 583 of the Laws of 2007 (Chapter 583) which provides that the school district bears the burden of proof with respect to the appropriateness of its recommendation.

When determining the appropriateness of a school district IEP recommendation, Congress now requires that hearing officer render a decision on substantive grounds based on a determination of whether the child received FAPE. Where a procedural violation is alleged, the hearing officer may find that a child did not receive FAPE only if the procedural inadequacies impeded the child's right to FAPE, significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits. 20 U.S.C. section 1415 (f)(2)(E).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her part, if the services offered by the board of education were inadequate or inappropriate, the services selected the parent were appropriate, and equitable considerations support the parent's claim. (CARTER). In CARTER, the Court found that Congress intended retroactive reimbursement to parents by school officials, as an available remedy in a proper case under IDEA. "Reimbursement merely requires (a district) to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP." CARTER at 370-71. 504 Legal Standard

504 of the Rehabilitation Act (29 U.S.C. 794[a]) states: "No otherwise qualified individual with a disability…shall, solely by reason of her or 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 financial assistance."

As a threshold matter, a person is protected under 504 if he or she is qualified person with a disability. A qualified person with a disability is one who has a physical or mental impairment which substantially limits one or more of such person's major life activities. 29 U.S.C. 705(20)(B); 42 U.S.C. 1202(2).

To demonstrate disability, it must be shown that the person suffers from a physical or mental impairment, has identified an activity claimed to be impaired and establish that it is a "major life activity", and show that person's impairment substantially limits the major life activity identified. Colwell v. Suffolk County Police Dept. 158 F 3rd 635, 641 (2d Cir. 1998).

With respect to the provision of educational services, 504 requires recipients of federal funds to provide disabled students with a FAPE (34 C.F.R. 104.33(a). FAPE is defined similar to FAPE defined in I.D.E.A. regulations (34 C.F.R. 300.17) as the provision of regular or special education and related services that are designed to meet individual needs of handicapped persons as adequately as the needs of non-handicapped persons are met, 34 C.F.R. 104.33(b); Scruggs v. Meriden Bd. of Educ.,2007 WL 2318851 at pg. 9 (D. Conn. August 10, 2007). However, the requirement for an IEP under the I.D.E.A. in order to provide FAPE is not required for FAPE under 504.

A party asserting claim of disability discrimination under 504 must demonstrate the student is disabled, the student is otherwise qualified to participate in school activities, the school receives federal financial assistance, and the student was excluded from participation. 504 requires a demonstration that the School District acted with bad faith or gross misjudgment. Intentional discrimination may be inferred when a school district acts with gross negligence or reckless indifference in depriving a child of access to FAPE. See Gabel ex rel L.G. v. Bd. Of Edcu. 368 F. Supp. 2d 313, 334-336 (S.D.N.Y. 2005); see also, Scaggs v. New York State Department of Education, 2007 WL 1456221 at p. 16-17 (E.D.N.Y. May 16, 2007). Parents of a child alleging disability discrimination by a school district pursuant to 504 bear the burden of proof. Rothschild v. Grottenthaler, 907 F. 2d. 286 (2d Cir. 1990).

Findings of Fact

As the DOE’s motion to dismiss is based upon a legal issue only there are no findings of fact presented. The only issue being whether the IHO has the authority under IDEA and related provisions of law to order the DOE to change the STUDENT’s grades.

CONCLUSIONS

The DOE is charged with providing a FAPE to all students with disabilities between the ages of 3 and 21 who reside in the City of New York, and to develop the IEP for these students by convening local Committees on Special Education (CSE). N.Y. Educ. Law §4402 The IEP must provide special education and related services tailored to meet the unique needs of a particular child and be reasonably calculated to enable the child to receive educational benefits. A school district fulfills its substantive obligation under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement. T.P. ex rel S.P. v Mamaroneck Union Free School Dist., 554 F3rd. 247, 254 (2d Cir. 2009).

Where a procedural violation is alleged, the hearing officer may find that a child did not receive FAPE only if the procedural inadequacies impeded the child's right to FAPE, significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits. 20 U.S.C. section 1415 (f)(2)(E).

While courts and hearing officers may, and often do, grant awards of compensatory education, or reimbursement for educational expenses born by a parent that should have been born by a school district, it is well settled that monetary damages, including compensatory damages, are not available to remedy violations of the IDEA. See Application of a Child with a Disability, Appeal No. 08-089 at 8; Taylor v. Vt. Dep't. of Educ., 313 F.3d 768, 786 n.14 (2d Cir. 2002); Polera v. Bd. of Educ., 288 F.3d 478, 486 (2d Cir. 2002); Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 152-53 (N.D.N.Y.1997). Under the IDEA, due process hearings before an IHO may not be used as a general mechanism to assert claims under other federal or state laws. Application of a Child with a Disability, Appeal No. 11-121 at 8-9 (“Given the limited scope of an impartial hearing under the IDEA, the parents' claims will be reviewed to the extent that they assert violations of the IDEA and state regulations.”), citing e.g., 8 NYCRR 200.5[l]; see 34 C.F.R. §§ 300.151-300.153, Application of a Student with a Disability, Appeal No. 10-031; Application of a Student with a Disability, Appeal No. 09-044; Application of a Student with a Disability, Appeal No. 09-042; Application of a Child with a Disability. The SRO has noted that non-IDEA educational disputes can be pursued through the State complaint procedures, rather than through the impartial hearing system. Id., citing NYCRR 200.5[l]; see 34 C.F.R. §§ 300.151-300.153.

PARENT relies upon an inapplicable legal standard to support his claim that the IHO can change the STUDENT’S grades. Petitioner cites to a string of decisions by the Commissioner of the State Education Department (“SED”), which were brought as challenges to school district’s’grading decisions. See e.g., Appeal of Shaver, Decision No. 14,096; Appeal of John W., Decision No. 13,965; Appeal of Edith M. Hickley., Decision No. 12,741.1. These are not decisions of the SRO, not appeals from impartial hearings, and not based on the IDEA and its implementing regulations. Rather, these decisions relate to grading challenges in general. The DOE has the authority to issue grades under Education Law §§ 1709(3) and 2590-h. PARENT has challenged such grade decisions through direct petitions to the Commissioner pursuant to 8 NYCRR Part 275, 1 New York State Education Department (“NYSED”).Commissioner’s decisions can be found by searching the case number in the search function on the NYSED website: http://www.nysed.gov/ 4 Simply stated, such cases have nothing to do with FAPE, were not decided pursuant to the IDEA or its implementing regulations, and the IHO has no jurisdiction to preside over such grade change challenges.

In sum, while the STUDENT might not have been offered a FAPE (an issue which was not decided), the remedy requested by PARENT to order the DOE to change the STUDENT’s grades is not available under the IDEA and implementing regulations, and therefore even if the FAPE had not been offered, the remedy requested could not be provided.

NOW therefore, it is hereby

ORDERED that the Due Process request brought by the Parent is denied. Dated: March 26, 2012

_________________________________

Impartial Hearing Officer

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 Due Process Complaint, Undated, 2 pp. B Letter to Ms. , Undated, 3 pp. C Student Transcript, 9/12/11, 1 p. D Grading Percentiles for , 2011, 1 p. E Computer School Report Card, 2007-2008, 1 p. F First Quarter Report Card, 11/7/11, 1 p. G Third Quarter Report Card, 4/1/11, 1 p. H Fourth Quarter Report Card, 6/25/11, 1 p. I Transition Services, 5/18/10, 3 pp. J Regents Exam, 2/5/11, 1 p. K-YYY Tests, Various Dates, 68 pp. AAAA Management Needs, Undated, 1 p. BBBB Concerns, 11/19/10, 1 p. CCCC Test Layouts, 2/2/10, 1 p. DDDD Global History, 1/27/12, 1 p. EEEE IEP, 5/18/10, 12 pp. FFFF Motion to Dismiss (Answer), Undated, 18 pp. GGGG Motion to Dismiss (Reply), Undated, 12 pp.

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request Letter, 9/7/11, 5 pp. 2 Resolution Agreement, 10/14/11, 2 pp. 3 Email regarding Resolution Agreement, 10/19/11, 1 p. 4 IEP, 5/12/11, 9 pp. 5 IEP, 5/18/10, 13 pp. 6 IEP, 3/25/08, 10 pp. 7 IEP, 3/28/07, 11 pp. 8 Progress Report, 3/25/08, 3 pp. 9 Evaluation, 3/16/07, 4 pp. 10 Re-Evaluation Letter from , 1/23/07, 3 pp. 11 Transcript, 9/26/11, 1 p. 12 Final Report Card, 6/28/11, 1 p. 13 s Mid-Quarter Reports, 10/5/10, 12/15/10, 3/16/11 and 5/11/11, 2 pp. 14 Mid-Quarter Report, 12/13/11, 1 p. 15 Sample Test for , With his Academic Management Needs,

Undated, 6 pp. 16 Emails Trying to Schedule 's IEP Meeting, 5/10/11-5/13/11, 2 pp. 17 Email Correspondence with , 5/27/11, 6/2/11 and 6/8/11, 3 pp. 18 Emails Informing Teachers of Test Accommodations and Academic Management Needs, 5/25/11, 1 p. 19 Emails Informing Teachers of Test Accommodations and Academic Management Needs, 6/6/11, 2 pp. 20 Emails Discussed Draft IEP, 6/8/11, 2 pp. 21 Email Regarding 's Regents Scores and Grades Remaining as

Assessed, 6/27/11, 2 pp. 22 Emails Regarding ACT Request for Extended Time, 3/2/11, 5 pp. 23 Email Correspondence Discussed in Practice Test Performed, 3/10/10, 2 pp. 24 Email from Previous IEP Teacher, 10/6/11, 1 p. 25 Motion to Dismiss, 26/26/12, 43 pp. 26 Motion to Dismiss, 3612, 4 pp.