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: June 19, 2013

July 15, 2013

July 16, 2013

August 1, 2013

August 15, 2013

Actual Record Closed Date: August 22, 2013

Hearing Officer: Michael Lazan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 19, 2013

SANDRA ROBINSON, Attorney (Via Telephone) — Student

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 15, 2013

SANDRA ROBINSON, Attorney (Via Telephone) — Student

LARA KASTEN, Intern (Via Telephone) — Student

Representative — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 16, 2013

SANDRA ROBINSON, Attorney — Student

Mother — Student

LARE KASTEN, Law Intern — Student

DOE Representative — DOE

Assistant Principal — DOE

Teacher — DOE

Principal — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ONAUGUST 1, 2013

SANDRA ROBINSON, Attorney — Student

LARA KASTEN, Law Intern — Student

Parents

WENDY DRIESMAN, DOE Representative — DOE

(Via Telephone) — DOE

Parent Coordinator (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 15, 2013

SANDRA ROBINSON, Attorney — Student

Parents

Coaching (Via Telephone) — Student

District Representative — DOE

By Due Process Complaint dated May 13, 2013, the matter of came before me as impartial hearing officer pursuant to the Individuals (IDEA), 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. This Impartial Hearing Officer (IHO) was appointed on May 15, 2013, after the recusal(s) of other IHOs.

The Complaint alleges the following free and appropriate public education (FAPE) denials: 1) the September 6, 2012 Individualized Education Program (IEP) denied the Student a FAPE by terminating the reducing the Student’s ; 3) the placement associated with the October, 17, 2012 IEP was inappropriate (see, Transcript, at 100); 4) the for 2012-2013 did not provide the Student with as recommended by the Student’s ; 5) the placement did not provide the ; 6) the March 22, 2013 committee ) review was not conducted by a complete team; 7) the March 22, 2013 IEP does not contain specific measurable goals that can address the Student’s and needs, and does not contain goals or services to address

The matter did not settle during the resolution period. A prehearing conference was held on June 19, 2013. (IHO Exh. 1) There was no appearance by the District. A second prehearing conference was held on July 15, 2013. (IHO Exh. 2)

The matter proceeded to hearing on July 16, 2013, August 1, 2013 and August 15, 2013.

Upon the application of the District on the 29th of July, 2013, the decision date in this matter was ordered to be reset to August 28, 2013. The reason was witness availability. The parties were notified by email and written notice. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this is an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s was no showing of any prejudice to the District. (IHO Exh. 3)

Upon the application of the parent on the 15th of August, 2013, the decision date in this matter was ordered to be reset to September 27, 2013. The reasons were to allow the parties to submit briefs and to allow the IHO to render a decision. The parties were notified by email and by written notice. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this is an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s . There was no showing of any prejudice to the District. (IHO Exh. 4)

The parties presented briefs on August 21, 2013. (IHO Exhs. 5, 6)

FINDINGS OF FACT

The Student is a year old boy who is eligible for services as a Student with a . (182-185)

CONCLUSIONS OF LAW

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

Parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents. R.E. v. New York City Dept. of Educ., 4 F.3d 167, 186 (2d Cir. 2012)

The District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or © caused a deprivation of educational benefits.

20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).

A. FAPE Violations.

1. September 6, 2012 IEP.

Petitioners contends that the September 6, 2012 IEP denied the Student a FAPE by terminating the services, reducing the Student’s

There was no IEP meeting on September 6, 2012. In their brief, the parent alleges that an earlier IEP, dated March 23, 2012, denied the Student a FAPE because it reduced the Student’s related services. However, this claim is not alleged in the Complaint, and this IHO does not have jurisdiction over such claim. A party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. Sect. 1415(f)(3)(B); 34 C.F.R. Sects. 300.507(d)(3)(I), 300.511(d); 8 NYCRR 200.5[j][1][ii]) or the original due process complaint is amended prior to the impartial hearing per permission given by the impartial hearing officer at least five days prior to the impartial hearing (20 U.S.C. Sect. 1415 (c)(2)(E)(i)(II); 34 C.F.R. Sect. 300.507(d)(3)(ii); 8 NYCRR 200.5[i][7][b]); Snyder v. Montgomery County. Pub. Sch., 2009 WL 3246579

(D. Md. Sept. 29, 2009); Saki v. Hawaii, 2008 WL 1912442 (D. Hawaii Apr. 30, 2008).

2. The October 1, 2013.

Petitioner contends that the October 1, 2013 did not contain appropriate , that the goals in the September 6, 2013 IEP were discontinued. However, there was no October 1, 2013 IEP for this Student. Moreover, Petitioner does not address this claim in her brief. Petitioner’s brief does mention the September 25, 2012 IEP, but there is no mention of the goals in the IEP in connection to this claim, which has no merit.

3. Placement

Petitioner contends that the placement at was inappropriate for her child. Petitioner bases this contention on a visit that she made to the school, during which she saw children the school. She was also told that there was told that there was a rewards system at the school, and there was a time out room.

Claims relating to the specific school placement were addressed in the recent Second Circuit decision of where the court rejected a claim even though a district apparently failed to put on testimony or evidence to rebut a parent’s claim that the school would not provide . R.E. v. New York City Dept. of Educ., 4 F.3d 167, 195 (2d Cir. 2012).

Since R.E., courts have formulated different approaches to placement claims in this evolving area of law. Judge Preska, in E.A.M. v. New York City Dep’t of Educ., 59 IDELR 274 (S.D.N.Y. 2012), has indicated that defects in the placement are only actionable where they are “reasonably apparent” to the parent or the District at the time of the placement decision. Judge Preska then considered the parent’s claims in connection to classroom grouping – and found no FAPE violation because the preponderance of the evidence did not show that the Student would be denied a FAPE.

Other federal judges in the Circuit focus on the parental visit to the school in determining a placement claim. Judge Koeltl, in D.C. ex rel E.B. v. New York City Dep’t of Educ., 113 LRP 12931 (S.D.N.Y. 2013), held that a placement offer denied the Student a FAPE because an employee of the school during the parent visit indicated to the parent that the school could not address as per IEP requirements. Judge Koeltl indicated that the parent can bring placement claims based on information available to the parent at the time of the placement decision. Similarly, Judge Rakoff, in B.R. v. New York City Dep’t of Educ, 60 IDELR 102 (S.D.N.Y. 2012), found that the placement offer denied the Student a FAPE because the parent was told during the school visit that the school could not accommodate the Student’s

Judge Forrest, in J.F. and L.V. on behalf of N.F. v. New York City Dep’t of Ed., 113 LRP 19268 (S.D.N.Y. 2013), held that the parent should be precluded from presenting placement evidence that was not available to the parent by the time of the filing of the Due Process Complaint. Judge Forrest then found that an IHO or SRO could have found there was a FAPE violation relating to classroom grouping given the record, and remanded to the IHO and SRO to determine whether there were “serious, non-speculative problems with the placement” that would deny the Student the right to FAPE.

Here, the parent’s claims are largely premised on the notion that the particular placement was However, unlike in the above cases, the parent is not relying on a particular representation from the school district. Rather, the parent is relying on her own judgment as a parent. I have conducted legal research on this issue, and there is little case law supporting the notion that a parent’s opinion that a school placement is too child is a sufficient basis for a finding of FAPE denial. Gellert v. District of Columbia, 435 F. Supp.2d 18 (D.D.C. 2006)(student needed calm environment, but parent presented evidence of same at IEP meeting). While I certainly can understand the position of the parent in this connection, I do not believe that this position supports a finding of FAPE denial in connection to the placement at

4. Implementation Claims at

The parent contends that the Student did not receive his paraprofessional at P and that the Student did not receive sufficient behavioral supports at

FAPE denial can be premised on a failure to materially implement substantial or significant provisions of the IEP. Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000)(cited in A.P. v. Woodstock Bd. of Educ., 370 Fed. Appx. 202, 204 (2d Cir. 2010)). Here, however, the parent has not identified which behavioral supports that the District has failed to implement here. The record indicates that the District rewrote the

The parent contends that the March 22, 2013 CSE review was not conducted by a complete team, does not contain specific measurable goals that can address the Student’s academic and social and emotional needs, and does not contain goals or services to address the Student’s social and emotional development.

The March 22, 2013 review recommends a program for the Student. It is clear from the record that a program is inappropriate for this Student, who requires much closer supervision and a much smaller teacher to student ratio to have any chance at being educated properly. The District’s position is that it had to conform the Student’s IEP to the Student’s operative program. However, the District’s responsibility is to recommend an appropriate program for the Student through the IEP process. Moreover, the testimony of the parent was that she was interested in an program at the time, but that she had objections to the school setting that was recommended. Finally, the parent presented to the District at the CSE meeting. Dr. n, who came across as highly credible to this IHO, recommended that the Student be in a smaller

Accordingly, I need not go through the remainder of the parent’s claims in regard to the March 22, 2013 IEP. The District denied the Student a FAPE through its March 22, 2013 IEP.

B. Relief.

The parents seek two forms of relief: 1) placement at a non-public school through the District’s CBST for the 2013-2014 school year to present; 2) compensatory education.

1. Placement at Non-Public School.

Where Districts have failed to offer students a FAPE, courts have wide discretion to insure that students receive a FAPE going forward. As the Supreme Court stated in Burlington:

The statute directs the court to “grant such relief as [it]

determines is appropriate.” The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be “appropriate.” Absent other reference, the only possible interpretation is that the relief is to be “appropriate” in light of the purpose of the Act. As already noted, this is principally to provide children with “a free appropriate public education which emphasizes special education and related services designed to meet their . School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359, 371 (1985). This point was underscored by Judge Paul Gardephe in a case which involved a parent with an autistic child who was seeking funding to attend Rebecca School. Mr. and Mrs. A v. New York City Dep’t of Educ., 7 F.Supp.2d 403 (S.D.N.Y. 2011). Judge Gardephe explained that parents of modest means must have the same options under the IDEA as more wealthy parents. Judge Gardephe indicated that a contrary ruling would be “entirely inconsistent with IDEA’s statutory purpose, including the goal of ensuring a FAPE to the least privileged of disabled children in our nation.” Id. at 428. Judge Gardephe stated: “Sect. 1415(i)(2)(C)(iii) is sufficiently broad” to encompass the direct payment relief the plaintiffs sought. See also Branham ex rel Branham v. District of Columbia, 427 F.3d 7 (D.C. Cir. 2005); Application of a Student with a Appeal No. 08-103 n.9.

Here, it is incumbent on this IHO to fashion a remedy so that this Student can derive educational benefit from school in 2013-2014. The parent suggests deferring this case to the but there is nothing in the record to establish what the CBST is, how it might be able to somehow produce an appropriate placement for the Student, or why the Student cannot be maintained in a public school if one is available.

2. Compensatory Education.

Regarding March through June of the 2012-2013 year, the 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 free and appropriate public education. P. v. Newington Bd. of Educ., 546 F.3d 111 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d , 75-76 (2d Cir. 1990); see also Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005)(cited in Newington).

In Reid, the D.C. Circuit explained that compensatory education should be fashioned without a “cookie cutter approach” and that compensatory education must be reasonably calculated to provide the educational benefits that likely would have accrued from services the school district should have supplied in the first place. Id., 401 F. 3d at 524; see also Friendship Edison Public Charter School v. Nesbitt, 532 F. Supp. 2d 121, 125 (D.D.C. 2008) (compensatory award must be based on a "'qualitative, fact-intensive' inquiry used to craft an award 'tailored to the unique needs of the disabled student"). A Petitioner need not "have a perfect case” to be entitled to a compensatory education award." Stanton v. District of Columbia, 680 F. Supp. 201 (D.D.C. 2011)

The record indicates that the proposed compensatory services are to designed to allow the Student to make up for the FAPE denial for the entirety of 2012-2013. The proposed compensatory education plan aims to address these needs through 360 hours of compensatory education. Since I have limited the time period of FAPE denial from the parent’s contention, I will reduce the Student’s compensatory education award to 160 hours of tutoring. The parent may opt to use these services through EBL. Services must be completed by the end of the 2013-2014 school year. Dated: September 6, 2013

______________________

MICHAEL LAZAN, ESQ. ML:mv 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

B resume, 7 pages C dated 7/29/10, 2 pages D dated 7/29/10, 3 pages E dated 7/31/10, 5 pages F Dated 8/2/10, 3 pages G 4 pages H dated 8/5/10, 5 pages I IEP dated 9/23/10, 21 pages J CPSE review document dated 8/5/10, 4 pages K Related service student progress Report dated 6/8/11, 1 page L IEP dated 6/30/11, 17 pages M review dated 1/15/12, 1 page O dated 3/6/12, 2 pages P dated 3/9/12, 3 pages Q IEP dated 7/18/12, 15 pages R FNR/modification of IEP dated 7/18/12, 1 page S Authorization of IEP dated 9/18/12, 1 page T Photograph of student dated '12/'13, 1 page U Photograph of student's class, 1 page V FBA dated 9/21/12, 3 pages X Dated 9/25/12, 1 page Y Office of Dated 11/14/12, 1 page Z Office of Dated 12/5/12, 1 page AA report dated 1/14/13, 2 pages BB report dated 1/16/13, 2 pages CC Office document Dted1/23/12, 1 page DD report Dated 2/15/13, 2 pages EE Office document Dated 2/21/13, 1 page FF Parent letter dated 2/21/13, 1 page GG Relate service progress report Dated 3/3/13, 7 pages HH DOE letter dated 3/22/13, 2 pages II Office document Dated 4/8/13, 1 page JJ Office document Dated 4/30/13, 1 page KK Summary report dated 5/21/13, 12 pages LL DOE decision letter dated 6/14/13, 1 page MM letter dated 6/19/13, 1 page NN Letter from , dated 8/6/13 DEPARTMENT OF EDUCATION. 1 Complaint dated 5/13/13, 8 pages 2 Notice of meeting dated 1/11/12, 4 pages 3 dated 2/14/12, 1 page

IHO

1 C Transcript, 6/19/13, 6pp 2 Transcript, 7/15/13, 15pp 3 Timelines Order, 1pp 4 Timelines Order, 1 pp 5 Brief of parent, 8/21/13, 26 pp 6Brief of District, 8/21/13, 11 pp