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: November 26, 2012

December 6, 2012

Record Close Date: December 19, 2012

Hearing Officer: Timothy M. Mahoney, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 26, 2012

For the Student:

, Parent

For the Department of Education:

, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 6, 2012

For the Student:

, Parent

For the Department of Education:

, District Representative

, Center Director at (via telephone)

On October 4, 2012, I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, concerning a dispute of a . student (“student” or “ .”) seeking an appropriate educational placement from the New York City Department of Education (“DOE”) for the 2012-2013 school year.

I. BACKGROUND

This case was initiated as a result of a demand for due process (“Demand,” see IHO-I) filed by the student’s Parent and received by the Department of Education’s Impartial Hearing Office (DOE-IHO) on or about October 4, 2012, and identified as NYC Case No. .

. is a attending the , New York, a public Charter School in New York City, and presently receives instruction in an integrated co-teaching class (“ICT”). Tr. 4-5, 30. There are approximately twenty-four students in his class along with two teachers. Tr. 31. He began attending the . Tr. 25. K.R. has been receiving special education services in some form or other since at least the . Tr. 25-26.

In her demand for due process, .’s mother alleged her son requires additional tutoring after the end of the regular school day in order to receive a free appropriate public education (“FAPE”). See IHO-I.

The DOE conceded FAPE was not offered to the student on the first day of hearing. See Tr. 6. Thereafter, a second day was scheduled to consider the student’s remedy.

A list of hearing dates precedes the body of the decision. A list of the exhibits accepted and included in the record as evidence follows. In addition to .’s mother, Ms. , , testified on behalf of the student (starting at Transcript page 50). No witnesses were called by the DOE. A prehearing conference was scheduled to be held on November 1, 2012, but was administratively adjourned due to the effects of Hurricane Sandy. Tr. 3-4

At the outset, I found both Ms. . to be reliable, truthful witnesses. I accept their testimony and rely upon for the findings herein.

II. STANDARD

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c); see M.P.G. v. New York City Dep't of Educ., No. 08 Civ. 8051 (TPG), 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

The IDEA directs that my decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 415(f)(3)(i). The "IDEA does not itself articulate any specific level of educational benefits that must be provided through an Individualized Education Program (“IEP”)." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Id., 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). A school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" Walczak, 142 F.3d at 130. The IEP must be "reasonably calculated to provide some 'meaningful' benefit." Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997). The student's recommended program must also be provided in the least restrictive environment (“LRE”). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132.

III THE DISTRICT’S BURDEN

The DOE conceded FAPE was not offered to the student for the current school year. See Tr. 6. Therefore, there is no dispute between the parties on this issue and no findings need be made on the issue of FAPE. Instead, this decision will limit itself to considering what remedy, if any, the student is entitled.

In light of the above, the DOE is clearly aware of the duties and responsibilities it owes to children classified with a disability. Therefore, the DOE should reconvene its Committee on Special Education to make appropriate recommendations and issue an individualized education plan that offers FAPE and comports with the IDEIA, state law, and various implementing regulations.

IV REMEDY

In this matter the parent is seeking remedial tutoring services for her son in light of the DOE’s failure to offer a free appropriate public education. See IHO-I. The term “remedial” and “compensatory” are something of imprecise terms in this circuit. Within the Second Circuit, compensatory education has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation of the Individuals with Disabilities Education Act (“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., 2008 WL 3474735, at *1 (2d Cir. Aug. 14, 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]; but see Mr. P. v. Newington Bd. of Educ., 2008 WL 4509089, at * 10 (2d. Cir. Oct. 9, 2008)(upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).

State Review Officers also 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 Child 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; Application of the Bd. of Educ., Appeal No. 06-074.

In that . has not yet aged-out of IDEIA services, no showing of gross harm is required. Instead, remedial services sought must be reasonably tailored to meet the deprivation, or “appropriate to remedy the district’s failure to offer FAPE.” See Application of a Child with a Disability, Appeal No. 10-008, pg. 16.

.’s mother testified that her son presently attends “office hours” at , or generalized after-school instruction following the general curriculum in a small-group setting. Tr. 36-37. Office hours run one hour daily. Tr. 38. .’s mother testified she is dissatisfied by the after-school offerings because no individualized instruction is available to Tr. 37-38.

. previously received tutoring services from during his fourth and fifth grade^[1] years. Tr. 29. At the time, he received supplemental, individualized instruction in reading comprehension, vocabulary development, writing, study skills, and math. P-A at 1. (“ ”) describes itself as a “full service learning center, offering individualized tutoring in reading, writing and math, exam preparation … and subject tutoring.” Id. at 1. It is the only accredited learning center, receiving its accreditation through the Middle States Association of Colleges and Schools, Commission on Elementary and Secondary Schools. Id. HLC works with regular and special education students from “kindergarten through high school” and maintains a staff of twenty-five certified teachers. Id. at 1.

. was evaluated^[2] by to offer an assessment of .’s needs. See P-A. . achieved a score of 152 on the Slossen Oral Reading Test, reflecting a grade equivalency of 6.7. P-D at 1. In an assessment of the student’s reading comprehension using the California Achievement Test (“CAT”), he demonstrated abilities consistent with a grade equivalency of 4.6. P-D at 2. His performance on ’s in-house math assessment out of 3^[3] and only one of the remainder achieved a to indicate mastery—basic division word problems. Id. at pgs. 2-3. Ms described . as possessing ” in his math skills. Tr. 54.

. recommended a program of supplemental instruction totaling 591 hours to address . See P-C. This proposal includes 185 hours of math – advanced addition, thirty hours of study skills, and sixty hours of writing, including focus on capitalization, punctuation, usage, sentence and paragraph construction, and writing in response to open-ended questions. Ms. testified that . required writing assistance to address his “difficulties in various kinds of compositional from in terms of language and mechanics” which were present in his recent writing sample. Tr. 58. Ms. testified that the goal for the student would be to begin him with “advanced addition which was the first tested skill in which he did not demonstrate mastery and move him through all of the whole number operations through fractions and decimals and percents [sic] and ready to begin an integrated algebra course which he will certainly be exposed to next year in the eighth grade.” Tr. 58.

. is recommended to receive 120 hours of “splinter skills” instruction, or “targeted drill and practice in each of those areas of reading comprehension,... taking [the student] from filling in the gaps beginning at fourth grade level 1 vocabulary and taking him all the way up to the seventh grade vocab [sic] that he would need to end with.” Tr. 57-58.

Forty-eight hours is recommended for attention in ’s core reading abilities, or reading comprehension. The core reader is “a global piece of curriculum that teaches [ how to answer questions in all of the categories that reading comprehension questions typically are presented in [a school or test setting].” Tr. 57.

Ms. testified that . would receive a minimum of four hours of individual instruction weekly, in sessions lasting two hours, with greater amounts of instruction being provided over school vacations. Tr. 56-57. Ms. further testified that progress is measured at in a variety of ways, including monthly progress reports to the parent as well as re-assessment administered after each 100 hours of instruction. Tr. 71-72.

I find that the assessment conducted by is sufficient to provide a framework to identify the as well as to construct a plan to remedy such. I further find that student had previously succeeded at , and would likely achieve some of success there in the future were he to receive instruction from . Additionally I find that would benefit from individualized instruction of a type offered, by way of example, by Finally, I find that the proposed program laid out by is appropriate to remedy the district’s failure to offer FAPE.

My sole concern is the great number of hours recommends that . requires to remediate. I imagine it would be highly optimistic for the student to complete the prescribed course before the commencement of the 2013-2014 school—his eighth grade year. However, the contemplated remedy addresses a FAPE violation for one school year, and the remedy itself contemplates preparing the student for the upcoming school year. My fear is that this large number of hours of instruction as requested may very well linger for much longer than is useful. For that reason, and to instill a sense of urgency in the parties, I will limit the period in which the award will be useful and active. Inasmuch as the purpose of the remedial services is to bring the student up to a level to function at his current grade level, then there must necessarily be some tie to that time period. The student will have access to this bank of hours for one calendar year, running roughly from the date this decision is issued. It is incumbent on the parties to cooperatively fashion an IEP that offers the student FAPE, with which the student may meaningfully benefit, in order to avoid a repetition of the circumstances the parties have found themselves and which led to the instant hearing.

Now, therefore, it is hereby

ORDERED that the student’s case is remanded to the Committee on Special Education to make appropriate educational program and/or placement recommendations for the remainder of the 2012-2013 school year; and it is further

ORDERED that the DOE shall, unless the parties otherwise agree, provide the student with 591 hours remedial instruction in the form of individual supplemental tutorial services in reading, writing, vocabulary, study skills, and math; and it is further

ORDERED that that the DOE shall, unless the parties otherwise agree, initiate the individual supplemental services tutorial services within thirty (30) days from the date of this decision, provided however, that if the district fails to initiate the individual multisensory tutorial services within thirty (30) days, the district shall be required to obtain the individual multisensory tutorial services for the student at the Huntington Learning Center; and it is further

ORDERED that such remedial instruction must be completed no later than January 31, 2014, and that any uncompleted hours of instruction shall be lost or otherwise expire.

Dated: January 2, 2013

___________________________________

TIMOTHY M. MAHONEY, ESQ.

Impartial Hearing Officer

TM: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 ON NOVEMBER 26, 2012

PARENT

None

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I Due Process Demand, 10/4/12, 2 page

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 6, 2012

PARENT

A Letter from , 12/3/12, 3 pages

B Follow-Up Letter from , Supplement, 12/4/12, 1 page

C Student Program Map, 12/3/12, 1 page

D Summary Academic Evaluation Result, 12/1/12, 58 pages

DEPARTMENT OF EDUCATION

None

Footnotes

[1] describes . as having received supplemental instruction services from December 2009 through December 2010 for a total of 210 hours, followed by a period of March 2011 to September 2011 for a total of 100 hours. See P-A, pg. 1.

[2] Initial scaling of standardized test results was erroneously done using matrix; this was subsequently corrected and is properly reflected in the test results accepted onto the record. See P-B and .’s test results at P-D.

[3] Denoted with the indicator “UTS,” or areas in which the student did not attempt to complete. See P-D pgs 2-3; Tr. 55.