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: April 18, 2012

May 17, 2012

May 23, 2012

June 20, 2012

Actual Record Closed Date: July 16, 2012

Hearing Officer: Leah Almeleh, Esq.

CORRECTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 18, 2012

Attorney (Via Telephone) — Student

None — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 17, 2012

Attorney — Student

Parents

Attorney — DOE

DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 23, 2012

Attorney — Student

Parents

Observer — Student

Principal (Via Telephone) — Student

Assistant Principal (Via Telephone) — Student

Director, (Via Telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 20, 2012

Attorney — Student

Parents

Observer — Student

Observer — Student

Attorney — DOE

PROCEDURAL CONTEXT

On March 20, 2012, I was appointed to hear the matter of . versus the New York City Department of Education (hereinafter “the Department”) pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Section 1415 (f)(1). On April 18, 2012 a prehearing conference was held on the record and a litigation calendar developed. On May 17, 2012 the matter was heard. At this time, notwithstanding previous representations to the contrary during the pre-hearing conference, the Department of Education moved to dismiss any Parental claims arising from the Rehabilitation Act Section 504 (hereinafter “Section 504”). Thereafter, the parties were invited to submit Memoranda of Law on the Section 504 issues although hearing on the Individuals with Disabilities Education Improvement Act (IDEIA) claims continued on May 23, 2012. On June 8, 2012 an Interim Order was issued, granting the Parent leave to pursue their Section 504 claim. Thereafter, the proceedings were concluded on June 20, 2012. The parties were again offered an opportunity to submit closing statements in the form of Memorandum of Law and, as a result thereof, the compliance date for issuing a decision in the above-referenced matter was duly extended.

It should be noted that, prior to the onset of testimony, on May 17, 2012 the Department conceded prong one of Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985] with respect to the Parent’s IDEIA claim. As a result thereof, the Parents shouldered the burden of proof in the matter, sub judice, relying upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993) and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. In furtherance thereof, the Parent seeks, at a minimum, an award of compensatory education, issuance of a Nickerson letter for the 2011-2012 and 2012-2013 school years, reimbursement of an Emergency Medical Service bill (hereinafter “EMS”) and hospital bill assessed to ., and payment of private remediation services. Exh. A. As a corollary, the Parent contends that there are no equitable factors which militate against her right to relief. A list of persons in attendance and of evidence is appended hereto.

The Parent’s Case

testified as lead witness on behalf of the Parent. Ms. is the founder and Director of (hereinafter “ ”), an organization which provides tutorial services to students with academic and learning challenges. Tr. at 52. She holds a doctoral degree in general education and has been trained in various approaches to teaching, including methodology. Ms. is not, however, certified to teach in New York although the instructors employed by are.

In May 2012, Ms. assessed . extensively using several standardized measures, include the Wide Range Achievement Test, the Test of Written Language and the Qualitative Reading Inventory. Based upon the child’s performance, Ms. determined that the child’s abilities fell at or about a level in math and written language skills. Similarly, tested at a level in reading comprehension although, at the time of EBL’s evaluation, . was a old who had been and was now placed . Tr. at 56; Exhs. N.P. In particular, the witness noted that certain foundation skills were very weak and were having an impact upon the student’s ability to process and understand the demands of language based word problems.

Based upon her own assessments, the child’s November 9, 2011 IEP and a psycho-educational evaluation dated July 18, 2011, Ms. concluded that could provide an appropriate remediation plan for ., indicating that she would utilize a structured, concrete, multi-sensory approach which included methodology. Tr. at 57-58. She testified, “I would ideally recommend that she receives (sic) an average of ten hours per week of instruction over a two-year school time period, which translates to approximately 720 hours of instruction.” Ibid. Although she could not identify a specific tutor for C.T., she testified that the individual selected would be certified to teach special education and would have training. ’s hourly fee for these services is $110.00, inclusive of planning lessons, materials, and communicating with instructors and non-EBL professionals involved with the student. Ms. noted additionally that there is no charge for the initial assessment.

testified on behalf of the Department. Ms. is the Assistant Principal at Academy, alternatively known as . As such, she is responsible for ensuring compliance with special education mandates which include child find and reporting duties. Tr. at 78. She briefly described the child find protocol at her school for identifying at risk students and the progressive levels of intervention offered. In this manner, a child would be provided with supplemental small group instruction, beginning with extended day services, advancing to Saturday academy and ending with various programs which are closely monitored through quarterly progress reports. Given this paradigm, a child suspected of a disability would receive at least six to twelve weeks of supportive instruction before a formal referral to special education was initiated. The witness testified that she is familiar with . who enrolled at in September 2009. Tr. at 82.

Ms. noted that students are placed heterogeneously within classes, and that . was assigned to classes based exclusively upon space. Tr. at 83-84. Unless the school is provided with documentation indicating a need for special placement, students are randomly assigned. In furtherance thereof, Ms. testified that the Parent had not shared any information regarding .’s special needs until a week before the instant hearing date, at which time she received a report card from indicating that . had received Section 504 accommodations. Tr. at 82-83. Nevertheless, she did not know if Ms. had supplied with any educational documentation at the time of her daughter’s enrollment nor did she know if the school had requested any. Tr. at 87-88. At the inception of the 2010-2011 school year, a formalized system for identifying special needs children did not exist at . Similarly, there was no documentation which would indicate school requests for educational records and enrollment was performed by the school secretary. Tr. at 149. She indicated that it was not unusual for District to levels, and, therefore, .’s status did not alert personnel to any unusual needs. Having said this, the witness noted that a review of .’s report card grades would not have given her any reason to believe was a struggling student who required special education intervention. Tr. at 138; Exh. M.

Nevertheless, Ms. indicated that she became concerned about the student by February or March of the 2010-2011 school year and was advised at this time by . that she had received Section 504 accommodations at her prior school. Tr. at 90. Similarly, the student’s teachers began to express apprehensions about the child’s limited success with at-risk interventions. At this time, . was referred to Saturday and holiday school and the Parent began attending school leadership team meetings. Mrs. . was additionally provided with ”), a small group skills-based academic afterschool program. Tr. at 138-

139. The witness acknowledged that the child generally availed herself of the tutorial services and the Parent was an active participant in the school leadership meetings. She testified, however, that the child did not attend all of the Saturday school programs, nor did the Parent enroll .

Ms. testified that she did not know if . had been discussed earlier during a quarterly review noting, “I can’t remember. We were so new to the school and I think we were more – to be perfectly honest—we were very shocked by how many students were so needy. . . . It was overwhelming at that point in November [2010].” Tr. at 94.

By letter dated April 4, 2011 and signed by the Parent approximately one week later, the Parent initiated a referral for special education services. Exh. Q. Thereafter, a Social History and Classroom Observation were completed, May 18, 20111 and June 22, 2011 respectively. Exhs. D, E. Nevertheless, Ms. indicated that the school had not received a medical report until August 2011 and, as the case was already out of compliance, the case was dropped and re-opened over the summer. Tr. at 103-105. On July 18, 2011, a evaluation was performed. The process, however, could not be completed as the Parent had yet to submit a medical evaluation. Ms. Rodriguez testified that she was aware Mrs. did not have health insurance, and as a result, the school’s guidance had provided her with a list of free clinics in May 2011. Tr. at 142.

By letter dated September 15, 2011, the Parent again requested an evaluation, expressing concerns that . was now being held over a third time. Exh. P.^[2] In October 2011, Ms. learned that CSE documents related to had been misplaced over the summer and that, according to SESIS3, an IEP for the child remained in draft form. Thereafter, the CSE did not convene until November 9, 2011 at which time Special Education Teacher Support Services (SETSS) and were initiated. Tr. at 104-105. Although the witness opined that . had made significant progress in reading, her skills , lagging far beyond promotional standards.

The witness described . as a who appeared very . In furtherance thereof, as early as November 2010, Ms. indicated that she was aware the child was and this had impacted upon ’s ability to access an education. Tr. at 110. At this time, . was referred

1 The Department of Education’s online Special Education Student Information System for mandated , while Ms. and other personnel intervened with students who had been targeting the child. Nevertheless, the child continued to seek out the guidance teacher on a near daily basis. Tr. at 141.

On October 18, 2011 three students approached their teacher to advise her that C.T. had made inquiries about suicide and the best methods to takes one’s life. Tr. at

119. As school had ended and . was no longer in the building, personnel were unable to intervene further. On October 19, 2011 the child’s guidance counselor was absent and no further action was taken on this matter until October 20, 2011 when Ms. first learned of the events.

On October 20, 2011 the crisis intervention team convened and, having confirmed that the student’s suicidal ideation reflected a real and present danger, the witness prepared a letter for the Parent, confirming the school’s recommendation for an immediate psychiatric evaluation. The witness noted that . had not merely spoken about suicide in general terms; she had written a note describing a concrete plan. Tr. at 146. Nevertheless, after showing another student the note, . had destroyed it. Tr. at 164-165. The Parent was further advised that . could not return to school without medical clearance. Exh. R-4.

Ms. testified that the Parent was asked to remove her child from school and seek immediate . The Parent arrived shortly after at which time Mrs. . and . Tr. at 119-

124. Concerned that Mrs. . had no for her daughter, the Assistant Principal contacted at approximately 2:00 pm. and an ambulance transported . to .

additionally testified on behalf of the Parent as an adverse witness. In July 2010, she became the Principal of and, in this capacity, she has known both . and her mother. Ms. testified that during the 2010-2011 school year, she quickly became concerned about .’s lack of academic progress. As a result, the student was offered a number of after-school educational tutorials. Although the witness indicated that . participated in these programs willingly, the child’s progress was slow. Moreover, she testified that the child was additionally receiving tutorial services through “ ,” a program similar to both .

At some point during prior to January 2011, Ms. testified that the Parent Coordinator, Ms. , suggested an evaluation be conducted. Ms. indicated that it was premature to initiate a referral for an evaluation as additional assessments remained outstanding. Notwithstanding this, Ms. did speak with some of ’s teachers who indicated that a small group setting might be beneficial for the child, as the student was beginning to demonstrate some academic progress within the small tutorials in which she was already participating.

Lastly, Mrs. . additionally testified. She is .’s mother. She provided a brief history of .’s educational experiences, noting that she first noted her child’s academic difficulties in third grade. At that time, . was evaluated, but due to her cognitive level, not classified into special education. Tr. at 195-196.^[4] By middle school, . was referred to the Section 504 Committee at which time a plan including testing accommodations was provided. Tr. at 197; Exh. M at 2. Although, she indicated that had been evaluated twice by different school districts, C.T. has never been formally certified into special education. Tr. at 246-247; Exh. D. In 2010, Mrs. . enrolled , bringing the documentation she had been asked to provide. This included a record of ’s immunizations, her birth certificate and report card. As the child was registered, Mrs. testified that she inquired about the possibility of continuing .’s Section 504 plan, but was advised an out-of-state plan could not be honored. Based exclusively upon the child’s report card, . was enrolled in mainstream , notwithstanding Mrs. ’s expressed concern that her daughter had already been held over twice. Tr. at 199- 201.

The Parent testified that she saw immediately that was as .’s homework was frequently incomplete and . In or about November 2010, the first parent-teacher conference, it was agreed that the student would be referred for at-risk services which included extended day and private tutorials through . Beyond this, Mrs. . reported that her daughter was and, in response, was advised that personnel were aware of the situation and were addressing it. Tr. at 205.

Despite some academic progress with these interventions, Mrs. . remained concerned and, in December 2010, with the assistance of , the parent advocate wrote a letter to requesting an evaluation. When the witness did not have a response from the school, a second letter was sent, again with the assistance of Ms. . The Parent testified that she was then asked by Ms. to re-draft a third letter which finally triggered the Parent’s request for evaluations. Tr. at 254-255; Exh. Q.

In May 2010, Mrs. provided her consent for evaluation and assessments were initiated. Although a assessment was performed in July, Mrs. . testified that she did not hear from the CSE office. Thereafter, failed her summer school subjects, and as a result, was denied promotion to eighth grade. The Parent testified that she heard nothing further from the CSE until she called in August. Tr. at 215-216. At this time, Mrs. . was advised that the Committee could not convene until a physical examination was performed. Although the witness indicated that this was problematic as it would require locating a physician who accepted military insurance, an examination conducted on August 24, 2010. Exh. U.

On October 18, 2012 Mrs. . was contacted by the child’s counselor in connection with C.T.’s suicidal thoughts. The Parent described this contact as “ ,” noting that her daughter is a “very happy child.” Tr. at 265-266. There was no further contact between Mrs. . and until two days later when Mrs. . received a second telephone call from the school asking her to come to school. Tr. at 287-288. At this time, the Parent was again apprised of the Department’s concerns regarding ’s suicidal thoughts. Notwithstanding the Parent’s ongoing concerns about ’s , the witness now believed was being unfairly stigmatized for actions in which the child, herself, had been Tr. at 237-239. The witness was further angered when school personnel refused access to her daughter.

At this time, the Parent acknowledged that she became toward the Assistant Principal, necessitating the appearance of both Department of Education safety officers and New York City police officers. Tr. at 236; Exhs. H, L. Although the target of ongoing , Mrs. . did not believe her and did not wish to contact emergency services. Tr. at 267-269, 275-276, 283; Exh. R. at 7. The Parent was additionally that personnel had foreclosed her opportunity to discuss the matter first with . so that she might exercise her parental rights as she saw fit. Rather, Mrs. . opined that the school had acted precipitously by contacting EMS and assuming the credibility of .’s claims. Although . has been the subject of charges, compounded by poor academic performance and frequent residential moves, Mrs. . opined that has never exhibited nor has she spoken . Against her wishes, the child was transported to where was evaluated and released that day. Exh. K. Thereafter, the Parent received bills from Hospital which remain unpaid. Exhs. I, J.

On November 9, 2012 the CSE convened and generated an IEP for the 2011-2012 school year. The Department of Education’s Case

No witnesses appeared. The Parent's Position

The Parent asserts claims pursuant to the IDEIA and the Rehabilitation Act. Specifically, the Parent, relying upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993) and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985] asserts that the Department of Education stands in abrogation of its duty to provide . with a free and appropriate public education. In furtherance thereof, counsel maintains that . is entitled to a Nickerson letter for both the 2011-2012 and 2012-2013 school years in the form of tutorial services. In addition, the Parent seeks direct payment by the Department of Education of an EMS bill, reflecting services requested by its personnel.

With regard to the 2010-2011 school year, the Parent further seeks an award of compensatory education and/or an award of of the student’s rights pursuant to the Rehabilitation Act. As a corollary, the Parent maintains that is an appropriate educational provider and that there are no equitable factors which militate against an award of reimbursement, rendering her eligible for relief pursuant to School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]. The Department of Education’s Position

The Department of Education acknowledges that it is in violation of its mandate pursuant to the IDEIA, but maintains that its liability does not extend to the relief requested by the Parent. It further asserts that any claims brought under the purview of the Rehabilitation Act must be dismissed as both substantively unfounded and jurisdictionally improper.

Discussion

It is clear that the legislative intent of 20 US Code Section l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible. ( 20 U.C.T.Sx.1400 [d][1][A]; see , Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987)]. A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability.(20 U.C.T. 1401(11); 34 C.F.R. 300.340[a]; 8 NYCRR 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction (20 U.C.T. 1414(d)(2)(A); 34 C.F.R. 300.342[a]).

In furtherance of this, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-207 [1982]). The recommended program must also be provided in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

While both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 US at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 US at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93). FAPE claims brought within the purview of the IDEIA: 2010-2012

Clearly, the parties agree that the Department stands in violation of its IDEIA mandate with regard to the 2010-2011 school year and at least part of the 2011-2012 school year. As such, the only issue which must be addressed is the appropriateness of the Parent’s proposed program at EBL Coaching. In furtherance thereof, the Parent bears the burden of proof with regard to the appropriateness of the educational program for which she seeks prospective payment (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-111). Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02111).

Although it is clear that the District’s placement must comport with its LRE requirement, this is not the Parent’s burden. While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; compare Application of a Child with a Disability, Appeal No. 99-44.

I find that the academic program offered by correlates well with the student’s academic needs, as identified in the IEP. Moreover, ’s use of individualized instruction, a multi-sensory approach and the methodology is entirely appropriate for the student. "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G. at 364, supra; see also Gagliardo, supra, at 112). In the matter at bar, the child was enrolled by the Department from September 2010 through November 11, 2011 without benefit of special education services or Section 509 accommodations. Although at-risk services were provided, these services were generic in nature and did not provide the expertise, individualization, or amount of instruction required by . At the very least, . would be entitled to approximately 15 months of services as she was already participating in an extended year program, albeit non-mandated pursuant to the IDEIA. Compensatory Educational Services brought within the purview of the IDEIA: 2010-2012

The State Review Officer has largely summarized the legal status of compensatory services within New York State in Application of a Child with a Disability, App. No. 11-027 and the following is excerpted from his decision. “Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [stating that "[t]he [Individuals with Disabilities Education Act] IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at *23 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v. Bd. of Educ., 2008 LEXIS 113149, at *38-40 [S.D.N.Y. March 6, 2008]). Likewise, State Review Officers have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of a Student with a Disability, Appeal No. 09-111 [adding summer reading instruction to an additional services award]; Application of the Bd. of Educ., Appeal No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; Application of a Student with a Disability, Appeal No. 09044 [awarding "make-up" counseling services to remedy the deprivation of such services]; Application of a Student with a Disability, Appeal No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; Application of a Student with a Disability, Appeal No. 08-072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE]; Application of the Bd. of Educ., Appeal No. 08-060 [upholding additional services awards of physical therapy and speech/language therapy]; Application of a Student with a Disability, Appeal No. 08-035 [awarding ten months of home instruction services as compensatory services]; Application of the Bd. of Educ., Appeal No. 06-074; Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-054). If the student has become ineligible for special education by reason of age or graduation, compensatory education has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp.

2d 375, 387 [N.D.N.Y. 2001]).”

I find that the circumstances surrounding .’s enrollment at along with the Department’s failure to conduct expeditious evaluations warrant an award of compensatory services.

Having said this, it is clear that compensatory education remains an equitable remedy in which the singular circumstances of each case may be considered in fashioning an appropriate remedy (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997], J.G. v. Kiryas Joel Union Free Sch. Dist., 2011 WL 1346845, at *25 [S.D.N.Y. Mar. 31, 2011] [noting that '[a]s with any entitlement that arises in equity . . . if the evidence demonstrates that the parents caused or contributed to the delay [in services], a court could find that they are wholly or partly disentitled to pendency reimbursement'" (J.G., 2011 WL 1346845, at *25 [citing Arlington Cent. Sch. Dist. v. L.P., 421 F. Supp. 2d 692, 701 [S.D.N.Y. 2006]). Claims brought within the purview of the Rehabilitation Act

Clearly, New York Education Law § 4404 empowers impartial hearing officers to hear a “complaint with respect to any matter relating to the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student or a manifestation determination or other matter relating to placement upon discipline of a student with a disability that may be the subject of an impartial hearing . . .” Given the overlapping regulations of the Rehabilitation Act and, in particular, Section 504’s reiteration of its FAPE mandate (29 CFR 104.33), one would reasonably assume concurrent jurisdiction of Section 504 claims.

However, it should be noted that in cases dealing with Section 504 violations, it is the parent who bears the burden of production to establish that the DOE violated Section 504. “In order to prove a violation of Section 504 in the context of educating a child with disabilities, a plaintiff must prove (1) that the school district failed to provide a free and appropriate public education, and (2) that the district acted in bad faith or showed gross misjudgment (emphasis added).” M.P.G. ex rel. J.P. v. New York City Dept. of Educ., 2010 WL 3398256 (S.D.N.Y. 2010); BD v. DeBuono, 130 F.Supp.2d 401, 439 (S.D.N.Y. 2000). While I find that the Parent has established the Department’s failure to provide FAPE, I do not believe the Parent has met her burden of establishing that the DOE violated the student’s rights under Section 504. Thus, the Section 504 claims must be dismissed.

To recover under Section 504, the Parent must establish that: (1) the student is disabled; (2) the student is otherwise qualified to participate in school activities; (3) the school or the board receives federal financial assistance; and (4) the student was excluded from participation in programs at, denied the benefits of, or subject to discrimination at, the school on the basis of her disability (See Gabel ex rel. L.G. v. Bd. of Educ. of the Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313, at 334 (S.D.N.Y. 2005); see also Pinn ex rel. Steven P. v. Harrison Cent. Sch. Dist., 473 F. Supp. 2d 477, at 483 (S.D.N.Y.

2007) (noting that a plaintiff bringing a § 504 claim must demonstrate that she is disabled and that she has been excluded from federal benefits "because of his or her disability" (citing Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990))). A student is ‘otherwise qualified’ if he meets all of a program’s other essential requirements; that is, he is functionally able to participate in school activities (See Sch. Bd. Of Nassau County v. Arline, 480 U.S. 273, 288 n. 17 (1987); 7 C.F.R. § 15b.3(n)(4); 34 C.F.R. § 104.3(l)(4) (describing ‘otherwise qualified’ in the employment context)). If a plaintiff does not meet the essential requirements of a program, however, the court can determine whether the plaintiff would meet those requirements if a reasonable accommodation were made (Arline, 480 U.S. at 288 n. 17). Closing Brief and Memorandum of Law for the Department of Education at 5.

The Rehabilitation Act presumes, as predicate facts, an awareness of the existence of a disability and acts of discrimination relating to that disability. Without knowing that the student had an educational or emotional disability, Department of Education personnel could not have discriminated against the student on the basis of her disability. Clearly, the recognition that a child may be sad does not translate into a clinical diagnosis susceptible to the protections of the Rehabilitation Act. Neither nor indicated in their records a diagnosis or even a need for . Exhs. K, U. In fact, the Parent hotly denied that her child had any emotional difficulties. Moreover, the child’s educational disability was not recognized by the Department of Education until November 2011. In the absence of a classification or even a mere diagnosis, there is no evidence that school officials were aware of any significant educational or emotional disability during the period of time in which the Parent’s Section 504 violations are claimed.

Clearly, a litigant must put forth evidence that she was "denied a federal benefit because of h[er] disability." Pinn, 473 F. Supp. 2d at 484. Under the circumstances, sub judice, I find no evidence of discrimination, intentional or otherwise, which would suggest that the Department had perpetrated any discriminatory practices upon the child consistent with Gabel, supra at 334. See also Gavrity v. New Lebanon Cent. Sch. Dist., Nos. 05-CV-1024, 06-CV-317, 2009 U.S. Dist. LEXIS 90190, 2009 WL 3164435, (N.D.N.Y. Sept. 29, 2009), at *37 (noting that a Section 504 claim requires a plaintiff to show that "he has been denied the benefit by reason of his disability").

Finally, the discrimination alleged must be the product of deliberate or reckless indifference to the student's federally protected rights, i.e. the school district must act with "bad faith or gross misjudgment” (See Bartlett v. N.Y. State Bd. of Law Examiners, 156 F.3d 321, 331 (2d Cir. 1998) (noting that intentional discrimination under the Rehabilitation Act may be inferred from "at least deliberate indifference to the strong likelihood that a violation of federally protected rights will" occur), vacated on other grounds, 527 U.S. 1031, 119 S. Ct. 2388, 144 L. Ed. 2d 790 (1999); Pinn, 473 F. Supp. 2d at 483. In fact, the escalating menu of at risk services offered . militates against this conclusion. Entitlement to relief based upon equitable circumstances

In the matter at bar, the record reflects the fact that participated willingly in after-school programming, regular Saturday and holiday tutorials as well as summer school. Mrs. . has, moreover, been an active participant in the school leadership team and, until October 20, 2011, maintained a warm relationship with the Department’s personnel. The Parent credibly testified, moreover, that she worked collaboratively with the parent advocate at to initiate several requests for an evaluation. It should be noted that the Parent expeditiously signed a consent as early as May 2011 and, but for the inadequate level of communication between herself and the CSE, a physical examination would have been completed in a more timely manner. Tr. at 213-217; Esh. O.

Given the overwhelming circumstances at , the absence of a formal enrollment protocol and Ms. s discrepant testimony regarding presentment of .’s report card, I believe Mrs. . did, in fact, provide the Department with .’s report card in September 2010. Tr. at 87-88, 149. Consistent with Ms. ’s testimony, . would nevertheless have been assigned to heterogeneous classes, unsupported by Section 504 accommodations, a situation reflective of the Department’s non-acceptance of out-of-state Section 504 plans and the high volume of over-age students in District , a circumstance which shockingly did not alert personnel to any “unusual” educational needs.

While the Parent has demonstrated a long history of positive involvement and cooperation with the Department, her behavior on October 20, 2011, which required both Department of Education and New York City Police Department intervention, is inexcusable and must be considered in context with her equitable right to relief. When weighted against the more significant length of time in which cordial relations were maintained, the Parent’s actions may be excused as aberrational and unique. They cannot, however, be dismissed casually and must be part of any calculus in which a remedy is considered. Reimbursement of EMS services I find that the Department of Education must be held responsible for the invoice relating to the occurrence on October 20, 2011. Exh. I.^[5] In fact, it was clear that the Parent did not seek these services and the emergent basis upon which they were requested is questionable. was initially brought to the attention of the Department two days earlier. Although the Department learned of these events on October 18, 2011, no action was taken until October 20, 2011, reflecting an inadequate Department protocol for coverage and notice. On this day, a letter was sent to the Parent advising her to arrange for an immediate psychiatric evaluation. Exh. R. at 4. Having already notified the Parent by letter, it appears that Ms. contacted only when she determined that Mrs. . would not bring her daughter for a psychiatric assessment. Tr. at 129-130. In fact, it is more likely that was contacted in an effort to protect the Department’s own interests, given the indolent manner in which the Department addressed this “emergency,” within a period spanning nearly three days. Under these circumstances, I do not believe the Parent is responsible for the invoice relating to the occurrence of October 20, 2011.

IDEIA and Rehabilitation Act Claims for 2012-2013

Although the Parent seeks relief for the 2012-2013 school year, the record does not include a governing IEP for most of this time frame. Assuming, arguendo, that the November 9, 2011 IEP were the last IEP developed, the record is silent regarding its appropriateness. In the absence of any testimony or supporting documentation from instructors, evaluators or related service providers, I can draw no opinion regarding the appropriateness of services after November 9, 2011. Claims for Punitive Damages The Parent’s claim for is dismissed. Conclusion

The Parent’s request is granted in part and denied in part. I find specifically that the Department of Education did not provide . with FAPE for a period of time commencing in September 2010 until November 9, 2011. In furtherance thereof and given the egregious nature of its failures, the Department shall provide the Parent with a Nickerson letter entitling the child to compensatory education services for a period of 18 months, a time frame reflective of the equities in this matter. Similarly, the Parent shall not be held financially responsible for and hospital services incurred on October 11, 2011. Finally, I draw no conclusions regarding the appropriateness of services for the 2012-2013 school year and must dismiss any claims for punitive damages asserted by the Parent.

Wherefore, it is hereby ordered that:

The Parent shall be provided with a Nickerson letter authorizing prospective payment of tutorial services at for a total of 425 hours, at a rate of no more than $115.00 per hour. This shall reflect the Department’s entire liability vis-à-vis its failure to provide FAPE and the provision of compensatory education services for the 2010-2011 and 2011-2012 school years. These services must be provided within a two year time frame in order to minimize any regression associated with the absence of ongoing instruction. Any outstanding services not utilized within a two year time frame shall be deemed forfeited by the Parent. In the event of any appeal of all or part of this Order, the number of hours authorized shall be divided evenly for both the FAPE and compensatory education claims.

The Department shall furnish the Parent with a Metro Card which shall cover the costs associated with transportation to .

The Department of Education shall be responsible for the bill and all hospital costs incurred on October 20, 2011.

The Parent’s claim for punitive damages is dismissed.

The DOE will develop a new IEP prior to November 11, 2012. Original Decision Rendered: July 19, 2012 Decision Corrected Dated: July 20, 2012 (Correction on page 19 – Date: 10/20/11)

______

LEAH BOTWINIK ALMELEH, ESQ.

Impartial Hearing Officer

LBA:dl

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

Exhibit No. Title Date No. pages

A Impartial Hearing Request 3/16/12 3

B Signed Subpoena 4/25/12 2

C IEP 11/9/11 9

D Confidential Social History Report 5/18/11 3 E Classroom Observation 6/22/11 2 F Evaluation 7/18/11 4 G Progress Report January 2012 2 H Occurrence Report 10/20/11 1 I FDNYEMS Bill 1/5/12 1 J Statement 12/26/11 1 K Letter from 10/20/11 1 L Letter from Principal 10/21/11 1 M Report Cards 2/15/12 1 N Letter from 5/15/12 1 O Assessment Planning undated 1 P Parent Letter 9/15/11 1 Q Parent Letter 4/4/11 1 R Incident File for 10/18/11 various 9 S FPT Minutes 11/3/11 1 T Copy of School Calendar 2011 2 U Child/Adolescent Health Evaluation 8/24/11 3

Department of Education

1. Notice of Evaluation 5/9/11 1

2. Home Language Identification

Survey 5/18/11 2

3. Release Authorization 3 Impartial Hearing Officer i NYC DOE Motion to Dismiss 5/23/12 13 ii. Reply to NYC DOE’s Motion to Dismiss 5/31/12 14 iii. IHO’s Interim Order 6/8/12 2 iv. DOE Closing Argument and 7/12/12 13

Memorandum of Law

v. Parent and Student’s Closing Statement 7/12/12 10

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Footnotes

[2] Ms. indicated that she could not recall if the child’s promotional status was in doubt for the 2011-2012 school year, although she believed the IEP mandated modified promotional standards.

[4] The child was born in , spent several years there and but eventually moved to and . In 2010, . began attending school in New York .

[5] An invoice dated November 26, 2011 appears to relate to a different individual and the testimony is silent regarding any events occurring on this date.