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: February 25, 2013

April 11, 2013

Actual Record Closed Date: June 3, 2013

Hearing Officer: Lynn Botwinik Almeleh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 25,

2013

Attorney (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 11, 2013

Esq., Attorney for the — Parents

Parents

Board Certified Assistant Behavioral Analysist, (via telephone) — Parents

Director, Student Services — DOE

On January 16, 2013 I was appointed to hear the Matter of . versus the New York City Department of Education pursuant to the (Individuals with Disabilities Education Act) IDEIA, 20 US Code Section 1415(f)(l). On February 25, 2013 a prehearing conference was held on the record. Thereafter, on April 11, 2013 hearing on the substantive merits was held. At this time, the Department appeared but did not offer any witnesses. In fact, the parties do not dispute the appropriateness of ’s referral to the Department of Education’s Central Based Support Team. Rather, it is the sequellae to the Department’s failure to identify a placement for which is the subject of the within matter. As a result, the Parent seeks prospective funding for educational programming consistent with the recommendation generated in the child’s June 6, 2012 Individualized Education Program (IEP). Exh. D. In the alternative and until such a placement is secured, the Parent seeks direct payment for 40 hours of Applied Behavior Analysis (ABA) programming and 2 hours of ABA supervision per week in addition to related services and compensatory education. Relying upon the rules and principles set forth in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985], the Parent maintains that the Department of Education did not provide . with an appropriate or suitable education. A list of persons in attendance and of evidence is appended hereto.

THE DEPARTMENT OF EDUCATION’S CASE

No one testified on behalf of the Department of Education.

THE PARENT’S CASE

Ms. .’s mother. Although she testified that her family has lived in both Argentina and the United States, was born in the United States and remained here until

2007. During this time, he received in New York and was known to the Department of Education’s Committee on Special Education (hereinafter “CSE”) as a pre-school child with a disability. In 2005 . Tr. at 80-84. At this time, her son began receiving a fulltime program of therapy. In 2007 the family returned to Argentina but returned to New York in December 2011. Thereafter, the Parent initiated a series of evaluations through the and when these were completed, Ms. contacted the Department to arrange an educational placement .

The Parent testified that the Department referred her to her home-zoned school at and, in furtherance thereof, the witness scheduled a meeting at this site. Exh. J. On March 23, 2012, the CSE convened at Among the participants were the school’s principal, social worker, psychologist, Special Education Itinerant Teacher (SEIT) and teacher. At the outset, the Parent testified that everyone agreed that was an inappropriate setting for . Tr. at 84. Nevertheless, school personnel attempted to develop a partial program for . Evaluations were considered and, based largely upon their report and .’s prior Departmental IEPs, a recommendation was generated. Tr. at 85.

Following an exhaustive, day-long meeting, the Department developed a part-time program for M.E. in which he would attend class for approximately 2 hours per day four days per week. The Parent testified that, given the child’s , the Department did not even offer a full-day program as personnel . would not be able to manage this. Tr. at 93. The IEP of March 23, 2012 recommends a “specialized school co-located in an NYC DOE community school.” Exh.B at12. this was never furnished.

Instead, . was assigned to a general education classroom in which “more than 30 kids” were enrolled. Tr. at 88. Ms. . quickly deduced that this arrangement was unsuitable as M.E. could not tolerate the sensory stimulation of 30 children in one room, a situation replicated in music, art and physical education. Similarly, the Special Education Teacher Support Services (SETSS) teacher was not offered appropriate educational materials for ., nor was she trained to work . Tr. at 92. Ultimately, the SETSS teacher was simply unable to manage for more than 10 or 15 minutes at a time. Tr. at 88; Exh. 0. Other than occupational therapy, . received few educational services during this time. He received no educational services while the rest of the school participated in standardized testing. Although had been recommended in the child’s IEP, it was not provided. Exh. 3.

In furtherance thereof, Ms. . testified she was informed by the school psychologist that the, “Board of Ed had run out of related Service Authorization (RSA)’s, so there was nothing they can do.” Tr. at 93-95. Although Ms. remained at the school during the entire . was present, within a few days, the Parent testified that, “it became very clear that there was no way that they [ ] would be able to - have him.” Tr. at 92. On April 24, 2012, the CSE reconvened. Again, the recommendation for a “specialized school co-located in an NYC DOE Community School was generated.” Exh. C. at 9.

On June 6, 2012, another CSE meeting was conducted. At this time, the matter was deferred to the CBST at this time for a NPS-day school. Exh. D at 9. Although the child’s IEP now recommended a state-approved non-public school setting, the Department did not secure a placement for for the remainder of the school year. In furtherance thereof, the Parent commenced her own search for a nonj-public school placement, ultimately identifying the Hawthorne School as a potential site. Although . was provisionally accepted, by the time the Department reconvened the CSE over a period of months, the spot was assigned to another child. Tr. at 98-99; Exhs. P, 7 at 2. is now on s waiting list again. Although aware of inappropriateness for ., Ms. testified that her central based support team (CBST) representative, subsequently advised her to re-enroll for the 2012-2013 school year. Tr. at 106. Nevertheless, the Parent continued to search for an educational placement, going down the CBST’s list of recommended placements. As such, she visited , neither of which was appropriate for her son.^[1] The Parent additionally testified that she was willing to notwithstanding its inability to provide related services and the extended bus ride it would entail. Nevertheless, she was unable to attend their open house due to the short notice she received and the limitations of her new employment.^[2] Tr. at 109-112.

Referencing entries made on behalf of the CBST, the witness pointed out several inaccuracies, beginning with the fact that Portuguese is not spoken in her home. She then recounted an episode in which an attendance official had visited her home, erroneously suggesting that she had willfully kept her child from attending classes at . Exh. 7 passim. In fact, she opined that was unable to provide an appropriate education for M.E. and both she and school personnel had recognized the futility of this situation. Ms. . was later counseled to seek home instruction for her child, an idea she rejected as there was no medical, social or emotional reason . could not attend classes in school. In fact, Department personnel even suggested that the Parent obtain medical documentation substantiating what she believed was a disingenuous claim. Tr. at 112-116.

Ultimately, Ms. . testified that CBST administrators indicated they would initiate a “District 75 placement pending NPS placement,” as an Interim Service Plan. Ibid. In furtherance thereof, the Department offered RSAs for services as well as a part-time home instruction program. The Parent rejected this offer as there was no reasonable justification to educate . at home. Ultimately, the Parent testified that a District school was recommended. When a site visit was scheduled, it quickly became apparent to Ms. . that the school’s emphasis on academic skills 3 was misguided and possesses few functional skills. Tr. at 118. In the services of , a community based related service provider. She noted that, due to financial circumstances, she could not provide the program M.E. required, but felt that some intervention was better than none. In October 2012, a consistent program of ABA and related services began through

The Parent testified that the structure and consistency of program has had a positive impact upon her . is both responsive to praise and proud of his achievements. In furtherance thereof, the witness noted that her son is more independent at home and has begun to verbalize his wants and needs. Tr. at 122. He is additionally evidencing an emergent interest in other children. Notwithstanding this, requires a full-time schoolbased program which can address his deficits in an appropriate manner.

THE SCHOOL DISTRICT’S POSITION

The School District maintains that the Department offered a free and appropriate public education (FAPE). Its position is unemcumbered by any facts or reasoning. The Parent’s Position

The Parent asserts that the School District stands in abrogation of its duty to provide . with a free and appropriate public education for the 2011-2012 and 2012-2013 school years in violation of the IDEIA and Section 504 of the Rehabilitation Act. See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). Although clearly recommended for M.E., the Department failed to secure a placement in a non-public school setting and, alternatively, failed to develop an appropriate interim plan pending such placement. In furtherance thereof, counsel maintains that the Department broadly neglected the student’s academic, emotional and social needs such that the Parent was compelled to unilaterally secure educational services through non-public school agencies and therapists (Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, by her Parents’, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998).

Consistent with their argument, the Parents contend that the services retained by the Parent constituted, in part, an appropriate placement for their son during the 2011- 2012 and 2012-2013 school years. Furthermore, any failure on their part to provide the extensive educational services required by M.E. reflected their financial inability to underwrite the costs of a full-time educational program up front. Finally, the Parents maintain that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. School District, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement. A claim for compensatory education is additionally interposed.

DISCUSSION

1. Did the Department provide . with an appropriate education during the 2011- 2012 and 2012-2013 school years?

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.S.C.Sx.1400 [d][1][A]; see , Ms. 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 Parent was shown a third grade class in which the students were learning about the Presidents.

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.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 N.Y.C.R.R. 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.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].

In furtherance thereof, 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 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]).

In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated standards upon which the “reasonably calculated” standard of FAPE must be determined. See B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing "the requirement that each child be afforded a FAPE does not guarantee that the district provide . . . everything that might be thought desirable by loving parents.” (D.B. ex rel. K.B. v. New York City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, 458 U.S. at 199).

Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003]; see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34). Indeed, a school district "fulfills its substantive obligations 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" (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]).

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively (D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 [2d Cir. 2005][declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held]; J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 [S.D.N.Y. 2011][discussing lack of Second Circuit precedent requiring only prospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"]; J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 [S.D.N.Y. 2004][courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"]). Additionally, the IDEA provides that a school district must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 (2d Cir. 2009).

Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. 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 U.S. 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, supra, at 93).

Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).

The instant matter additionally presents the question of whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate (emphasis ours) education under the IDEA and enroll the child in a private school of their choice. The Supreme Court has established a three-pronged test under School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent. Under these guidelines, a unilateral placement may be reimbursed where 1) the CSE's IEP is inappropriate; 2) the parent's placement is educationally appropriate and 3) equitable factors compel a finding of fairness. There is, moreover, no requirement that the placement be state approved or even that it generate IEPs as part of its educational strategy. Florence County School District Four v. Carter by Carter, S.Ct. 361 (1993).

The facts in this matter are simple. The Department recommended a non-public school setting but failed to secure a seat. Exhs. 1 at 13, D. It did not provide an appropriate interim placement, a fact underscored by the Department’s conclusion in March 2012 that ., a profoundly was mandated to receive general education services in his home-zoned school of P.S. 59. Exhs. I, J. Despite on-going efforts on behalf of the Parent to locate a site, the Department proceeded in an indolent manner. It offered the Parent a list of approved schools which included clearly inappropriate placements. Exh.

7. When an appropriate placement was identified by the Parent, was lost when Department personnel failed to act expeditiously. Ibid. Ultimately, the Department’s recommendation of a District 75 placement is unsubstantiated by any Final Notice of Recommendation and the Parent’s testimony suggests she may simply have been sent to another general education placement. Exh. B. The record indicates that the Department did not conduct its own psycho-educational evaluations. Rather, it relied upon a private assessment conducted by the and provided by the Parent. Although a was developed, it appears that no one took data or accepted any responsibility for its implementation. The Department’s request that the Parent misrepresent ’s ability to attend a school based program in favor of a home school was inappropriate as was the Department’s unannounced visit to the Parent’s home by attendance officials. In sum, it is clear that the Department stands in abrogation of its duty to provide M.E. with FAPE.

2. Pursuant to School Committee of the Town of Burlington v. Liverpool, Massachusetts, 471 U.S. 359 [1985], was the Parent’s Home Program an Appropriate Educational Intervention R.D. during the 2011-2012 and 2012-2013 school years? In furtherance thereof, I will turn my attention to the Parent’s right to reimbursement. 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]).

Upon a review of the testimony and documentation submitted by , the child’s ABA provider, I believe the Parent’s home program as of October 22, 2012 was appropriate. Meaningful and functional goals were identified. Data was maintained as a means of establishing accountability and progress. Ms. ’s use of ABA reflects a protocol with which the child has been successful and it is clear that the child is demonstrating progress. Exhs. S,T. The child’s ABA provider is credentialed as a BCABA and is licensed as a special education teacher in Texas.

I have additionally reviewed the extensive related service reports of and, based upon their content, I believe these individuals provided appropriate speech and occupational therapy services. Although the Parent testified that . was, in fact, receiving occupational therapy at , the report indicates that therapy at was provided within the context of a sensory gym, a supplemental service . presumably did not receive at mainstream site. Moreover, given the absence of any meaningful full-day programming, there is no question that . was deprived of the natural environment provided by a school setting in which he could reinforce and generalize the occupational therapy goals initially acquired by push-out instruction.

Similarly, a review of the speech report indicates that . exhibits language delays. The child’s therapist, a licensed speech and language pathologist in New York State, indicated that the child is making slow, but steady progress and was even beginning to utilize the Proloquo-2-Go as a form of augmentative communication. demonstrates poor oral-motor tone and additional therapy was directed towards developing articulation abilities on a physical basis in order to render the child’s verbal communications more intelligible. In the absence of any controverting testimony, I must conclude that participation in the related services described above was an appropriate supplement to the virtually non-existent program offered at

3. Is the Parent entitled to compensatory education?

Addressing the issue of compensatory education, Application of a Child with a Disability No. 05-022 furnishes an excellent overview of compensatory education and its discussion is recited herein. The IDEIA applies to children aged 3 through 21 inclusive (20 U.S.C. § 1412[a][1][A]), subject to the limitation that it does not apply to children aged 18 through 21 where it is inconsistent with state law or practice on the provision of a public education (20 U.S.C. § 1412[a][1][B][i]; see St. Johnsbury Academy v. D.H., 240 F.3d 163, 169 [2d Cir. 2001]). New York Education Law specifically provides IDEIA eligibility to children through the end of the school year in which they turn 21 (N.Y. Educ. Law § 4402[5][b]; see 8 NYCRR 100.9[e]; see also Application of a Child with a Disability, Appeal No. 02-016; Application of a Child with a Disability, Appeal No. 00024). Generally, under the IDEIA, "a [child with a disability] does not have a right to demand a public education beyond the age of twenty-one" (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990] [internal citation omitted]). Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA]" (Honig v. Doe, 484 U.S. 305, 318 [1988]; see Cosgrove v. Bd. of Educ., 175 F. Supp.2d 375 [N.D.N.Y. 2001]).

The Second Circuit, however, allows for the provision of compensatory education services for a student over 21 years old where there has been a gross violation of the IDEA during the time of the child's eligibility (Garro v. Connecticut, 23 F.3d 734, 737 [1994]; Mrs. C., 916 F.2d at 75; Burr v. Ambach, 863 F.2d 1071, 1075 [2d Cir. 1988]), such as the type that results in the denial of or exclusion from educational services for a substantial period of time (see, e.g., Mrs. C., 916 F.2d at 75; Burr, 863 F.2d at 1078, Mrs.

C. v. Wheaton , 916 F.2d 69 [2d Cir. 1990]; Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Lester H. v. Gilhool, 916 F.2d 865 [3d Cir. 1990]; Miener v. State of Missouri, 800). In such cases, "the scope of the remedy can extend beyond the scope of the original right" (Burr, 863 F.2d at 1078, citing Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 [1971]), and compensatory education services may be awarded to students over 21 as a remedy for past deprivations of a right that the IDEA clearly provided a FAPE between the ages of 3 and 21 (see Burr, 863 F.2d at 1078; Cosgrove, 175 F.Supp.2d at 387). It is, however, an equitable remedy that must be tailored to meet the circumstances of the case (Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 151 [N.D.N.Y. 1997], aff'd 208 F.3d 204 [2000], cert. denied 531 U.S. 1019 [2000]; Application of the Bd. of Educ., Appeal No. 02-033; Application of a Child with a Disability, Appeal No. 02-019).

In fact, the purpose of a compensatory education award is not to provide “extra” educational services to a student, but rather to redress “a school district’s failure to provide that which it was obligated to provide earlier.” Application of the Board of Education of the Millbrook Cent. Sch. Dist., App. No. 02-033, citing Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 158 [3d Cir. 1994]. Thus while “ordinary IEPs need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 4401 F.3d 516, 525 (D.C. Cir. 2005).

In part, the rationale for deferring an award of compensatory education is additionally based upon the notion that a School District must be given the opportunity to remedy its failings during the traditional course of the child’s education. Thus, federal courts within the Second Circuit have held that compensatory education is a remedy that is available to students who are no longer eligible for instruction. In contrast, SRO decisions have, in the past, awarded equitable relief in the form of additional educational services to students who remain eligible to attend school. (Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030.

I believe the Department’s actions support a finding of egregious negligence. Not only did it not secure a program for the child, it prevented the Parent from accepting a seat for her child when a placement did become available. Tr. at 97-104. Although the Department was free to offer any testimony it desired, no witnesses appeared on its behalf. Given these facts, I believe the Parent is entitled to an award of “extra services” in order to compensate for the lack of educational and related service sessions provided from March 2012 until the end of the 2012-2013 school year.

4. Are the Parents entitled to equitable relief pursuant to Burlington, supra? I find that there are no equitable factors which militate against the Parent’s right to recovery. The evidence indicates that Ms. participated willingly in her son’s CSE convenes, permitted evaluations of her child and shared private assessments she had obtained herself. Ms. . has worked collaboratively with the Department of Education and has been proactive in advocating for her child. She has visited and observed the Department’s site recommendations, placing . in settings which were so patently inappropriate that the Parent needed to remain at the school. The Parent has been subjected to an inappropriate CBST request to misrepresent ’s ability to attend a school based program. The unannounced visit to her home by an attendance official is, frankly, unprofessional and odd. In sum, it is clear that the Department stands in abrogation of its duty to provide M.E. with FAPE. In the absence of any testimony to the contrary, there is no basis to reduce any award of tuition.

CONCLUSION

Based upon the foregoing, the Parent’s request is granted. Wherefore, it is hereby ordered that:

Within thirty (30) days of the date of this Order, upon due submission of proof of payment along with affidavits from all related service providers, the Parent, shall be reimbursed directly by the Department of Education for all ABA, occupational therapy and speech and language therapy received as of October 1, 2012 to the present at a rate not to exceed $140.00 per hour.

The Department of Education shall continue to make direct payment to of 40 hours of ABA services per week at the rate of no more than $140.00 per hour and an additional 2 hours per week of supervisory services, additionally at the rate of no more than $140.00 per hour until such time as a non-public school placement is secured for the child. Such payment shall be made on an on-going basis until a non-public school placement is secured by the Department.

The Department of Education shall additionally continue to make direct payment for five hours per week of a rate of $35.00 per “therapy unit” as indicated on its invoices. Similarly, the Department of Education shall continue to make direct payment of $35.00 per “therapy unit” to for five hours of therapy per week. Direct payment shall be made by the Department of Education until such time as a non-public school setting is secured for the child.

The child shall be entitled to additional compensatory or “make-up” services based upon the Department’s failure to provide FAPE during the 2011-2012 and 2012013 school years. This shall constitute direct payment to or a provider of the Parent’s selection of up to 1780 hours of ABA services, at an amount not to exceed $140.00 per hour services. All ABA service hours are to be exhausted by June 30, 2014. If not provided by that date, a claim for remaining services shall be forfeited. The Department shall immediately issue related service authorizations for Therapy in the amount of 192.5 hours for the period beginning June 1, 2013 through June 30, 2014.

The Department shall immediately issue related service authorizations for for 98 hours for the period beginning June 1, 2013 through June 30, 2014. Dated: June 3, 2013

_______________________________

LEAH BOTWINIK ALMELEH, ESQ.

Impartial Hearing Officer LA;mv:gc

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 Withdrawn - duplicative B IEP dated 3/23/12, 15 pages C Dated 4/24/12, IEP, 11 pages D Dated 6/6/12, IEP, 11 pages E Dated 4/2/12, NYC DOE Social History Evaluation, two pages F Evaluation, dated March 1st, 2012 and March 12th, 2012, seven pages G NYC DOE Functional Behavioral Assessment, dated variously March 27, '12, March 30th, '12, and April 4th, 2012, two pages H NYC DOE Behavior Intervention Plan, one page, dated 4/17/12 I Dated March 22, '12, NYC DOE Zone Notification Letter, one page J Dated March 22nd, '12, NYC DOE Student Enrollment, CSE Intake Form, one page K Dated March 22nd, 2012, NYC DOE Detail Placement Inquiry Screen three pages L Consent for Evaluation, dated March 23rd, '12, two pages M Dated 3/23/12, Immunization Update, one page N Dated March 23, '12, Letter from Parent, one page O Undated, Mateo's schedule at P.S. 59, one page P Letter from Parent to CSE, dated 5/15/12, one page Q report, 2/28/13, two pages R Dated 2/28/13, Report, 2 pages S Undated, ABA Progress Report, one page T Multiple dates, , ABA Graphs, 60 pages U Multiple dates, Invoices, 16 pages V Dated 12/26/12, Parents' Ten Day Notice, three pages W Withdrawn - duplicative

DEPARTMENT OF EDUCATION

1 Impartial Hearing Request, dated January 15th, 2013, three pages 2 Resolution Agreement, partial settlement, dated February 1st, 2013 three pages 3 The IEP dated 12/6/2012 to 11/24/2013, 14 pages 4 RSA , Individual, Dated February 15, 2013, two pages 5 RSA, , Individual, dated 2/15/2013, two pages 6 RSA , Group, 2/15/2013, two pages 7 Log of Contacts from CBST, dated 6/21/12 to the present, eight pages 8 Neural Developmental Evaluation , dated March 1st, to December 2012, ten pages

Footnotes

[1] indicated it could not provide related services; rejected as their student profile reflects a much higher functioning child. Tr. at 109.

[2] By this time, the Parent had begun a new job and was reluctant to visit a school site which had, at the outset, indicated it could not serve her child.