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: July 8, 2014

Actual Record Closed Date: August 24, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 8, 2014

Attorney — Parents

Mother Director — Parents

Parents

DOE Designee — DOE

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA), 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing . The hearings were conducted at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. The student’s parent, hereinafter referred to ” submitted a request for an impartial hearing on April10, 2014. At the initial hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its advocate, and the parent was represented by .

THE PARENT’S POSITION

Parents are requesting declaratory and compensatory relief relating to the alleged failure of the “DOE” to provide a free and appropriate public education (FAPE) for the child hereinafter referred ”. Parent’s counsel maintained that the failure was for multiple school years and was both procedural and substantive. More particularly, the DOE failed to with an appropriate Individualized Education Program (“IEP”) with appropriate supports to address his special education needs.

The Parent’s allege failed to progress during the school years at issue in academics. It is claimed was provided with minimal Special Education Teacher and Integrated ”) which was ineffective. The DOE failed to provide until the second half of the 2013-2014 school year.

THE DEPARTMENT’S POSITION

The DOE agrees requires additional services; DOE’s position however is that he will be best served through additional special education services, not through tutoring at ). The DOE designee maintained that is not where services should be provided, (b) that the calculations of hours necessary and inappropriate as a measure of compensatory education, and (c) that the student will be more appropriately served through special education services in the form of an ”.

THE PARENT’S CASE

As per Parent’s counsel, the DOE conceded was not provided with a FAPE “The DOE is conceding that the Student did not receive a FAPE”. Additionally, counsel maintained that the DOE has not “contested the need for compensatory services”(Tr.14).

and is classified as “ .” (Ex. B). The most recent IEP, dated December18, 2013, recommends ICT services, management.” presents with and Parent asserts that there is no a need ” (Tr. 28). has and is . As per his last IEP, his “expected rate of progress should remain in ” when compared .” The evidence across and (Tr. at 25).

According to this IEP, level at the . The DOE just prior to the development of this IEP indicated that instructional levels ”, as they measured his grade equivalency and in math problem solving skills at 3.4 (Ex. K and Tr. 44-122) . In September 2011, . An IEP dated November 17, 2011 mandated and ELA (See Ex. G). the 2011-2012 school year. (Tr. at 26); were below target range during the 20112012 school year (Ex. T); he expectancy on the 2011 ELA test in all areas assessed (Ex. G-1).

In September of 2012, entered The November 17, 2011 IEP was implemented for the 2011-2012 school year and the first part of the 2012-2013 school year (Ex. G). The CSE reconvened on November 20, 2012; had not increased level noted in the November 17, 2011 IEP. Despite during the 2011-2012 school year and his , the November 20, 2012 CSE failed to recommend any additional support or to increase his service mandate for the 2012-2013 school year. The November 20, 2012 IEP at the same service level of five times per week (two times per week in Math, and three times per week in ELA) in a group setting (Ex. F). The evidence confirmed that were not consistently provided during the 2012-2013 school year; was unavailable as she had to “assist in other areas of the school”, and was ” (Tr. 28).

On January 20, 2013, the CSE met and again recommend the same SETSS services and a full-time “crisis management” paraprofessional (See Ex. E). Parent maintained did not present management” (Tr. at 28).

Parent’s counsel argued that the addition of a management” was solely because DOE staff realized more support and a smaller class environment, however such environment was not available The Parent testified as follows:

I implored to them can you give me some suggestions as to what I can do to help And the special education person said well we have a class and it might be appropriate and said there's absolutely no way should be placed in that class. And there was some discussion between the special education person and the administration of the school, and I was listening to the conversation. And they said that that class is full of disciplinary , and it's hard to keep under control not have any behavioral or discipline issues. He would not succeed in that environment. And so they recommended that in exception of putting him in that the other option was to provide him with a paraprofessional” (Tr. 28-30).

failed to progress during the 2012-2013 school year. His mother expressed her concerns regarding his poor academic performance to school staff on many occasions over the course of the school year (Tr. at 31). The staff conceded was not doing well during the 2012-2013 school year, and indicated that there was nothing more they could do to help him (Tr. at 31).

In August 2013, the Parent arranged evaluation (Ex. M). The report concluded a“ in vocabulary knowledge and word relationships, ” (Id.). was recommended (Id.). The Parent provided this evaluation to the DOE (Tr. at 35); however, speech services were not provided during the first part of the 2013-2014 school year.

In September 2013, where he attended (Tr. at 31). The Parent wrote to the school in September 2013 and requested updated testing as she was not “satisfied with the education and support” (Ex. S; see also Tr. at 32). The CSE met on October 8, 2013 and, again, (5 sessions per week) along with ICT services 28 times per week in various subject areas (Ex. D). However, during the 2013-2014 school year, in direct violation of both the January 28, 2013 IEP (Ex. E) and the October 8, 2013 IEP (Ex. D) (See Tr. at 33).

The CSE met again on December 18, 2013, SETSS was eliminated without any justification (Ex. B). Mr. stated that in the DOE evaluation of December 9, 2013 indicated that he needed more support and services, not less (Ex. K). The December 18, 2013 CSE recommended 28 periods of ICT; this remains in his present and operative IEP (Ex. B).

At the outset of the 2013-2014 school year, due to continued concerns substandard education, began seeking private school options (Tr. at 35-36). She discovered ”) (Tr. at 36; Ex. Y), which is a New York State approved private secondary school with a special education program for “students who demonstrate the cognitive capacity to but whose academic performance is significantly hampered by a documented disability that interferes with the capacity to store, process or produce information” (Ex. Y). As per the Parent, ,” providing “a small learning environment [and] multimodal sensory ways of teaching and learning.”(Tr. at 36). in a full day “buddy program” where he through a typical school day (Tr. at 38). and he was accepted about January 23, 2014 (Ex. Q and Tr. 36), however, further action by the CSE is required to effectuate this placement.

In February of 2013, the Parent was notified that her son’s promotion “was in doubt” (Ex. R). This was of , wherein he only need achieve 50 percent of grade level ELA and Math standards in order to move (See B-13). during the 2013-2014 school year (Tr. at 34); the Parent again expressed her concerns to school staff and the teachers stated they had similar concerns (Tr. at 34).

In March 2014, an evaluation was performed (See Ex. V, W, X; and testimony of generally Tr. 44-122). Consistent with the DOE’s December 2013 evaluation, such as reading, writing and math ( Tr. 49-69). Based on this testing, a remedial academic program, which is encompassed in a “program map.” (Ex. W). The program map describes curriculum in phonics, reading comprehension, vocabulary, writing and math to address his academic deficits in these areas, and further provides an estimate of tutoring hours needed to complete each piece of curriculum (Tr. 70-83; See also Ex. W).

Ms that “you can't just ignore the fact that the gap exists and continue to instruct him at expect him to benefit from that instruction. He needs to be instructed at a place where he can actually understand what's going on and build his skills up to the point where eighth grade material is something that will actually be intelligible to him” (Tr. at 68-69).

Ms. serious proposed program for addressing those needs. (See program map testimony, beginning on Tr. 70). The program were based on the student’s test results, his level of achievement, and the deficiencies revealed by the testing (Id.). The Program Map also contains an estimate of how long it will to accomplish each part of the program based upon Ms. s 13 years of experience with working with other similarly situated (Tr. 44, 70-71). In total, would to achieve target level reading, writing and math skills (Tr. 69). A complete breakdown of the hours required and the curriculum is noted in the program map and was explained by Ms. (See Ex. W; See also testimony the program map Tr. 70-84).

Beginning with the basic skills and advancing sequentially with more difficult skills being taught later in the program (Tr. at 71-72). Each skill will take about 5 hours to some difficult skills may take longer to master than others (Id). With respect to reading and selected curriculum based ; she developed a program that would work for EW (Tr. at 72-75). , which consists on drilling isolated skills of reading comprehension (main idea, facts, context, conclusions etc) (Tr. at 75-76 ; Ex. W). These skills clearly need to be addressed based on the deficits EW demonstrated during testing (Id.).

Vocabulary will also be an integral part of described how to improve their vocabulary:

I try to identify the words they don't know. They look those words up in the dictionary, make flashcards, not copying the definition out of the dictionary but actually having a conversation with their teacher and coming up with a definition in their own words, those flashcards get reviewed at every subsequent session until the student has mastery of those definitions and can use the sentence--the word confidently in a sentence so that we have now a word that he's not going to trip over anymore if he encounters it in his reading and ideally a word that he can begin to use in conversation and in his writing. And even after a word has been mastered, after a certain period of time elapses, we go back to review and make sure that there's retention of those words. And a student spends about a quarter of his total time in the center working on vocabulary including writing sentences using the target words so that we can make sure that they're using them appropriately” (Tr. at 77-79).

Study skills will also be a part of “because it won't be enough for him to just simply be able to do his homework each night. I mean that certainly is the first thing we need to accomplish is to get him to a point where he can actually do his homework successfully and independently. But then after that, you know, being able to participate in class and get credit for having done your homework is just step one. He's also going to have to be able to perform well on tests and write papers, you know, based on what he's learned and that can't happen if he isn't able to retain the information over a longer period of time. And so the study skills work is what will allow him to be able to do that” (Tr. at 80).

Writing instruction focused on remediating rules, punctuation usage, grammar etc. was included as part of the program map (Ex. W). Ms. testified:

when we [ get the reading comprehension up to grade level, then we'll increase the amount of writing that we're asking him to do. Initially the only writing he'll do will be attached to the vocabulary study. But when we reach the end of the program and we're ready to work on writing separately, then we'll turn our attention to an assessment of his language mechanics, we will give him an assessment of those [language mechanics]

rules specifically prior to beginning that instruction and then we will work on only those rules of punctuation, capitalization, and usage that he doesn't already understand and use consistently. And then once we complete that, we'll go into a more targeted approach to his grammar, sentence structure, etcetera, and then finally into more global work on his rhetorical skills constructing a longer response, a multi-paragraph essay, for example, to a prompt that he would get based on a reading assignment (Tr. at 82).

and IEP’s, and has experience with students like (Tr. 120-121). When students enroll there is contact between to discuss progress, the child’s educational levels, and specific areas of concern (Tr. at 118-119).

In June 2014, the Parent received further proof that the 2013-2014 school year had been a complete failure. The DOE and staff at furnished a report to the Parent in which and a change in placement was urged (Ex. J). The DOE report stated:

]

Upon receiving this report, been engaged with the administration in each of his schools and the multiple conversations and the imploring them is there anything that I can do to help? What can we do to help? And to get this letter at the end of the school year was extremely, extremely defeating and disappointing.” (Tr. at 34-35).

. Specifically, the Parent is seeking an order for , a school to which he has already been accepted (See Ex. A, Tr. 36-39; Ex. Q). an begin if his matter is deferred to or the Parent receives a Nickerson letter (Ex. Q; Tr. at 38). The Parent is also seeking an appropriate IEP, as well as compensatory services to address the DOE’s long-term. admitted failure to provide a FAPE (Ex. A).

THE DEPARTMENT’S CASE

On March 15, 2014, was ” (TR. 97); he at the time of the . (TR. 112.)

The DOE designee will not provide appropriate tutoring to address s needs for a multitude of reasons:

1). not specialize in tutoring students with disabilities and Ms. is not a New York State certified special education teacher (Tr 45 and 84.) Additionally, “only some” of and evaluators have a special education license (TR. 95), and testified that she is not able to guarantee would be working with special education certified teachers. (TR. 117.) does not guarantee that the Student will consistently have the same tutor; instead, students generally work with TR. 117.)

2) the evaluations conducted ineffective as Ms. testified that there is no psychologist on staff to determine the appropriateness and effectiveness of the assessments . (TR. 94.) Ms. stated that the same battery of tests have been used to evaluate students for (Tr. 88); thus, they may not be the most appropriate or valid evaluations. Furthermore, the Student answered several test questions correctly, but the evaluator marked his answers as incorrect. (Tr. 105-110). For example, testified that , but his answers were marked “poor or fair”. (Tr. 111). The DOE designee opined that the test questions and some of the scores are vague and incorrect. They do not give an accurate picture of the Student’s grade level. testified that the evaluators are not specifically trained to administer the evaluations to students with special needs. (Tr. 95.)

3) The number of hours recommended would require a huge time investment by testified that she to attend tutoring sessions for at least 4 hours per week. (Tr. 116). Ms opined that it is unrealistic, to be able to for this many hours during the school year after a full day of school, especially when factoring travel time from his home in Brooklyn to .

4) does not have an established procedure for communicating with the Student’s school. (Tr. 99.)

5) does not typically change the curriculum to incorporate teachers’ input from the school. (Tr. 99.) Ms. testified that tutors would never align their work with what the school was working on unless she directed them to do so. (Id.)

As per Ms. does not work in conjunction with the school, it cannot collaborate with the school to in improving school performance and to ensure academic continuity and success. Thus, if compensatory education is ordered for this Student is an inappropriate place to provide the services.

Furthermore, the DOE asserts that the hour’s calculation is not appropriate as there is no evidence that supports the Student's need for additional services in the form of 688 hours of Ms. maintained that the Parent is seeking compensatory services in order to bring the Student up to grade level; however, in the assessment , the recommended hours of tutoring are assigned with the explicit outcome expectation of bringing the Student up to the academic levels associated with his current grade level. (TR. 69 and 84.)

Furthermore, the DOE asserts that the calculation for the number of recommended hours has no specific reference to the two-year period of the FAPE deprivation; nor does it relate to the level of achievement could obtain. maintained that the hours recommended are only a guess based on conjecture about what tutoring will bring the student up to Ms. has modified promotion criteria. (DOE Ex. 8-13.); the “grade level” to which Ms. s hours calculation refers is not to those modified criteria, however, but instead to different standards. testified that she does not factor that into her calculations.

(TR. 115). The DOE claims do not align with DOE standards and that the number of tutoring hours calculated do not account

Additionally, the DOE maintained that it is likely is overestimating the number of hours that would need 172 hours of vocabulary study, but that those hours were calculated based on areas, such as math and study skills, that do not include vocabulary (Tr. 114). Therefore, it is argued that the calculation was not made based on actual vocabulary knowledge. Furthermore, Ms may need fewer hours has allotted to master the skill (Tr. 112-113); therefore opined that this is not an accurate estimate of the number of hours needed.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This hearing was requested pursuant to the Individuals with Disabilities Education Act (IDEA) (see 20 USC § 1400 et seq.). “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education…designed to meet their unique needs…[and] to ensure that the rights of children with disabilities and parents of such children are protected” (M.H. v. N. Y. C. Dept. of Educ., supra, at 223 (citing 20 USC § 1400(d)(1)(A)-(B))). Further, “a school district’s program must provide ‘special education and related services[,]’ tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.” ( M.H. v. N.Y.C. Dept. of Educ., supra, at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105,107 (2d Cir. 2007) (internal citations omitted)).

School districts are required to formulate an IEP for each student with a disability in order to deliver appropriate services to that child. It is “[t]he centerpiece of the IDEA’s educational delivery system” (M.H., supra, at 224 (quoting D.D. ex rel. V.D., 465 F3d at 507)). Moreover, “for a child’s IEP to be adequate, it must be “[‘]likely to produce progress…and afford the student with an opportunity greater than mere trivial advancement’” (M.H., supra, at 224 (quoting T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F3d 247, 254 (2d Cir. 2009))).

Federal regulations require that once an IEP is adopted for a disabled child, “[e]ach public agency shall ensure that (1)[a]n IEP ... [i]s implemented as soon as possible following the [IEP] meeting (D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 508 (2d Cir. 2006) opinion amended on denial of 480 F.3d 138 (2d Cir. 2007)). New York State regulations mandate that “there may be no delay in implementing a student's IEP” (8 NYCRR 200.4(e) (1)(i)), that “the school district shall ensure that each student with a disability has an IEP in effect at the beginning of each school year” (8 NYCRR 200.4(e) (1)(ii)), that the “the school district shall ensure that the recommendations on a student’s IEP… are implemented” (8 NYCRR 200.4(e) (3), and that “the school district must provide special education and related services to a student with a disability in accordance with the student's IEP” (8 NYCRR 200.4(e) (7))

I agree with Parent’s counsel has been denied a FAPE for the past several years, leaving him substantially behind where he should be academically. The DOE conceded the denial of FAPE at hearing (Tr. at 14). The school years at issue include 2011-2012, 2012-2013 and 2013-2014 (See Ex. A).

The December 18, 2013 IEP is the most recently developed IEP (Ex. B) with a projected review date of December 18, 2014; accordingly, the December 18, 2013 IEP will be in place for the 2014-2015 school year. Parent’s counsel maintains that to prevent from falling further behind that the CSE should be ordered to convene a CSE meeting in order to develop an appropriate IEP and effectuate his

The Parent provided evidence supporting , a New York State approved nonpublic school for children who , (Ex. Q).

As per Mr. the DOE failed to provide any evidence to challenge the appropriateness The DOE proposed that it be permitted to obtain “re-evaluations,” and “reconvene the IEP team to determine what an appropriate program recommendation is.” (Tr. at 15, 22). The DOE further suggested that “an IEP reconvene and deferral to CBST do not need to be ordered by the hearing officer.” (Tr. 15, 22). I agree with the Parent’s position that this would in the exact same place he is today- in an inappropriate placement with no guarantee that there will be any change in his circumstances. Additionally, the DOE provided no evidence or a plan receives an appropriate education. The DOE requests that the CSE be provided with the opportunity to establish a plan. As per “such a proposal is essentially nothing more than an belated offer in settlement made at the hearing stage, seeking to use the impartial hearing process to force the parent to accept an utterly incomplete and inadequate resolution for her child, and potentially face repeated litigation with no end in sight”. See Application of a Student with a Disability, Appeal No. 14-014, p. 11, (March 31, 2014, noting that the DOE had an opportunity to cure its failures at the resolution session; once the matter has proceeding to hearing “the time has come to put the solution in place.”)

If the DOE is ordered to reconvene the CSE after collecting additional “data,” will lose additional time and the DOE’s “offer” or proposal is no resolution at all, and I agree with Parent’s counsel that the harm that could well be irreparable.

As the SRO has stated: “the time has come to put the solution in place” and action must be taken now to is placed in an appropriate setting. The Parent independently researched approved non-public school settings and located one that is the right fit for is additionally . The family participated in the intake process has (Ex. Q; Ex. Y Tr. at 37-39).

The DOE is ordered to place , through either a or through the issuance of a Nickerson letter.

Regarding compensatory services, the parent seeks compensatory education due to the DOE’s denial of a FAPE to the student for two school years. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See Wenger v. Canastota, 979 F. Supp. 147, 151 (N.D.N.Y. 1997). Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA. 20 U.S.C. §§ 1401[3]; 1412[a][1][B]; Educ. Law §§ 3202[1]; 4401[1]; 4402[5]. In New York State, a student who is otherwise eligible as a student with a disability may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma or until the conclusion of the ten-month school year in which he or she turns age 21. 34 C.F.R. § 300.102[a][3][i], [a][3][ii]; 8 NYCRR 100.5[b][7][iii]; Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 12 8 NYCRR 100.9[e], 200.1[zz]; See also, Application of the Bd. of Educ., Appeal Nos. 05-084, 05-037, 04-100. Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation 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 French, 2011 WL 5222856, at *2; Somoza v. New York City Dept. of Educ., 538 F.3d 106 n.2, 113 n.6 (2d Circ. 2008); Mrs. C. v. Wheaton, 916 F.2d 69, 75 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071, 1075 (2d Cir. 1988); Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 (N.D.N.Y. 2001); Wenger, 979 F. Supp. at 150-51; Application of a Child with a Disability, Appeal No. 03-078 (awarding two years of instruction after expiration of IDEA eligibility as compensatory education). Thus, for an eligible student, such as in the instant case, there is no gross violation requirement.

The purpose of a compensatory education award is to remedy a denial of a FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (holding that compensatory education is a remedy designed to “make up for” a denial of a FAPE, and awards should be designed to "appropriately address the problems with the IEP"); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994) (holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"); Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10052.

In fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and … the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (emphasis added); see also Newington Bd. of Educ., 546 F.3d at 123; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) ("[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"). Courts have found that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address (the student's) educational problems successfully." Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007). Further, compensatory education is a "replacement of educational services the child should have received in the first place" and compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA." Reid, 401 F.3d at 518, 525 (emphasis added); Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1497 (9th Cir. 1994) ("There is no obligation to provide a day-for-day compensation for time missed").

The DOE bears the burden of proof on all matters at this hearing (see N.Y. Education Law §4404[1][c]; M.H. v.N.Y.C. Dept. of Educ., 685 F3d 217, 224-25[2d Cir 2012]). It has both the burden of production and the burden of persuasion on each of the claims put forth by the parent (see Schaffer v. West, 546 US 49 [2005]; M.P.G. v. N.Y.C. Dept. of Educ., 2010 WL 3398256 at *7 [SDNY Aug. 27, 2010]). The DOE bears “the burden of demonstrating the appropriateness of its proposed IEP” (Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 377, 379 [2d Cir. 2003]).

In this case, the DOE did not meet its burden of proof; as stated above, the DOE conceded that they failed to (Tr. at 14). Although the DOE stated that they would not concede that “all the allegations contained within the Parent’s due process complaint are true,” the DOE failed to put on any witnesses or offer any evidence to address or rebut the Parent’s allegations or contest the Parent’s requested relief that a private placement be ordered. Absent any such rebuttal evidence, the Parent’s allegations should be deemed to be accurate and true.

Additionally, the DOE “did not contest the need for compensatory education services” (Tr. at 14). Instead, at the hearing, the DOE without providing any evidence, maintained be provided with an unspecified amount to remedy their admitted FAPE deprivation (Tr. at 14

Clearly, the Parent presented evidence and testimony as to the extent of , and an appropriate plan to remedy his skill deficits (See Ex. V, W, X and generally Tr. 44122). I find that the hours and services proposed by appropriate.

Once it has been determined that a student has been denied a FAPE, hearing officers have broad equitable powers to fashion a remedy that is appropriate to address the student’s needs, based upon the unique facts of the case. Application of a Student with a Disability, Appeal No. 08-052 at p. 17-18 (July 16, 2008). “Compensatory education awards are based upon finding of the denial of FAPE, and they require additional services, beyond the prospective entitlement to an appropriate educational program, to offer educational services to an eligible child Remedial Authority of Hearing and Review Officers under the Individuals with Disabilities Education Act: An Update, 1 (2011).

“[I]t is well settled that compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F.

Supp. 147 (N.D.N.Y. 1997); Application of a Student with a Disability, Appeal No. 10-

052 at page 15. See also Mr. and Mrs. A o/b/o D.A. v. N.Y.C. Dep’t of Educ., 769 F.Supp.2d 403 (S.D.N.Y. 2011) (holding that such equitable powers extend to prospective payments for educational instruction where parents cannot afford to the financial outlay required by reimbursement cases). Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA. (See 20 U.S.C. §§ 1401(3), 1412(a)(1)(B); Educ. Law §§ 3202(1), 4401(1), 4402(5)). 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 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]"); See also 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) and 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 privation of instruction could be remedied through the provision of additional services before they become 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 remedial education services to a student upon the school district's failure to provide those educational services to L during home instruction). See also 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, Application of a Student with a Disability, Appeal No. 09-035

(awarding 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 a Student with a Disability, Appeal No. 08-035 (awarding ten months of home instruction services as compensatory services). Notably, a parent’s request for a specified number of tutoring hours at has been granted at the hearing level and upheld by the SRO. See, e.g., Appeal No. 09-044 at 17-18 (affirming hearing officer’s award of additional compensatory services in the form of 400 hours of or a different agency of the parent’s choosing).

Compensatory education awards can be generally crafted pursuant to two schools of thought: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996) (holding generally that subject to equitable adjustment, the “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem.”).

As per Parent’s counsel by applying the quantitative approach to the circumstances of this case illustrates why 688 hours of tutoring is reasonable: There are

180 days in a school year in New York, and approximately two full school years plus nearly an additional three school months at issue in this proceeding (from two years preceding the filing date ((April 10, 2014)) to date of decision). With that in mind, 688 hours of tutoring corresponds to about 1.6 hours (or about two school periods) per school day during the time of FAPE denial, to compensate for the lost instruction time, and, examined from that perspective, is mathematically reasonable, and even light.

Examined from a qualitative perspective, the proposed remedy is even more compelling. Under this approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]theirs may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v.

District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Id. at 526.

The evidence demonstrates utilized this approach as well. The Parent offered the testimony in support of their claim for 688 hours of tutoring (See Ex. V, W, X).

Ms. described the testing in March 2014, which identified deficits, and the program designed to address those skill deficiencies and allow his academic gaps (Id.)

It should be noted (Ex. O); by the CSE’s own assessment; that had his deficits been addressed by the DOE in an appropriate and timely manner, he should have been able to meet standard promotional criteria and be academically successful at his grade level and that this is the result that the proposed remedial to achieve.

The evidence established that a student is given a skills assessment to determine the student’s baseline levels and identify the skills which need remediation; and a plan is then developed for remediating the deficits in order to bring a student to target level. (Tr.

at 48-49). The plan is encompassed in a “program map” (Ex. W). Additionally, Ms.

described, in detail, the series of tests and math skills (tr. 49-69), including the Test

(Tr. at 51-52 and Ex. X-9), the Burns and Roe Informal Reading Inventory (Tr. at 54 and Ex. X-10, X-11, X-12), the California Achievement Test (reading comprehension)

(“CAT”) (Tr. at 61), a writing sample and the Huntington Math Placement Exam (Tr. at

65-68).

Overall, based on the totality of the testing, levels “in terms of both reading and math skills as being no higher than fourth grade in terms of what he's mastered and is able independently to complete and be consistent in getting it correct” (Tr. at 68.). Her findings were consistent with the academic achievement results of evaluation performed by the DOE in December 2013. (See Ex. K).

I agree that the “program map” is an estimate; it is based upon experience working with . There is nothing in the special education laws that require services to be provided within a scientific degree of certainty, so long as services are reasonably calculated to address the identified deficits. The program proposed criteria and is justified whether the remedy is examined from a quantitative or qualitative perspective.

In conclusion, I find that the program proposed , highly individualized, and tailored to meet . See Application of a Student With a Disability, No. 09-044 at 17-18

(discussing testimony of managing director at her predictions, and upholding hearing officer’s award of 400 hours of services services). The program proposed was designed specifically to address his unique revealed with the individualized attention and instruction he requires to remedy the failure by the DOE to have provided an appropriate placement and program for the last two and a half school years.

To enable cards—one for the student and one for the parent to accompany the student safely . (Ex. A; See also Tr. at 39 ). that she would require metro cards so that she and the award of these services without transportation would be tantamount to an empty victory. (Tr. 39).

Parent states that more particularly, in August of 2013, a evaluation was performed by the SUNY Downstate (Ex. M) and had a “ disorder characterized by deficits in vocabulary knowledge and word relationships, grammaticality judgment, and pragmatic skills” (Id.). was recommended (Id.). The Parent provided this evaluation to the DOE (Tr. at 35). However, were not provided during the first part of the 2013-2014 school year. The DOE did not contest the Parent’s allegations in this regard, and suggested relief to which the Parent does not object (Tr. at 15, DOE representative: “the district concedes that were not provided for the first half of the 2013-2014 school year.

The district suggests that 32 services of 30 minutes each per his IEP are appropriate compensation for the missed sessions during the first half of the 13-14 school year).

These 32 group speech language services of 30 minutes per session should now be ordered.

After due deliberation, order as follows:

I. A a FAPE, both in substance and due to procedural violations which also impeded the Parent’s opportunity to participate in the decision-making process; the DOE failed to provide appropriate services and support, and is entitled to compensatory relief in the form of remedial additional services.

II. That the CSE convene immediately in order to develop an appropriate IEP for , that includes placement at , or another comparable state should a no longer be available for whatever reason. This can be effectuated through either a Deferral or through the issuance of a Nickerson letter.

III. I direct the DOE to pay for 688 , at a rate of at least $100.00 per hour, at as compensatory and remedial additional services to compensate for the denial of a FAPE, payable directly to upon submission of invoices monthly to the DOE and that these hours will not expire and will be scheduled at the Parent’s discretion so that the Student can be assured of being able to use and access the services.

IV. I direct that the DOE to pay the $100 registration fee and the $295 testing fee directly to upon submission of an invoice for the same to the DOE.

V. I direct that the DOE to provide Metro cards to to to attend the tutoring sessions at HLC.

VI. I direct that the DOE provide 32 sessions of compensatory therapy (30 minutes per session, in a group of no more than 3 students)

Esq. 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’S EVIDENCE

Exhibit Name of Document Date Pages A Impartial Hearing Request 4/10/14 7

B IEP ( ) 12/18/13 14

C IEP ( ) 12/18/13 14

D IEP 10/8/13 13

E IEP 1/28/13 15

F IEP 11/20/12 11

G IEP 11/17/11 14

H IEP 11/30/10 13

I IEP 12/8/09 10

J DOE Progress Report 6/18/14 1 K DOE . Report 12/9/13 6 L DOE Classroom Observation 10/28/13 1 M SUNY Eval. 8/21/13 5 N DOE Classroom Observation 11/16/12 1 O DOE . Eval. 11/17/09 7 P ICLC Report 8/19/13 4 Q Letter 1/23/14 1 R Letter 2/4/14 1 S Letter from Parent (re eval.) 9/3/13 1 T Detail undated 6 U Test scores/summary undated 1 V Academic summary 3/18/14 3 W Program Map undated 1 X Testing Materials 3/15/14 52 Y Website info undated 1

DEPARTMENT’S EVIDENCE

1 Due Process Complaint 4/11/14 7 2 Due Process Response 4/14/14 3

3 IEP 2011-12 13

4 IEP 2012-13 10

5 IEP 2012-13 14

6 IEP 2013-14 12

7 IEP 2013-14 13

8 IEP 2013-14 14

9 Eval. Undated 6