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: August 15, 2013

September 27, 2013

November 7, 2013

April 8, 2014

May 1, 2014

July 1, 2014

July 8, 2014

July 30, 2014

September 8, 2014

Actual Record Closed Date: October 31, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON

Name Title For Date Attorney PARENT 08/15/13

DOE Rep. DISTRICT 08/15/13

Attorney PARENT 09/27/13

DOE Rep. DISTRICT 09/27/13

Attorney PARENT 11/07/13

Parent PARENT 11/07/13

Attorney DISTRICT 11/07/13

Attorney PARENT 04/08/14

Parent PARENT 04/08/14

Program Director PARENT 04/08/14

Attorney DISTRICT 04/08/14

Attorney PARENT 05/01/14

Parent PARENT 05/01/14

Program Director PARENT 05/01/14

Attorney DISTRICT 05/01/14

Attorney PARENT 07/01/14 Dr. Behavior Analyst PARENT 07/01/14

Attorney DISTRICT 07/01/14

Paula Rogowsky Cohen Attorney PARENT 07/08/14 Margarita Mile Parent PARENT 07/08/14 Anila Noti ABA Teacher PARENT 07/08/14 Adam Krass AT Evaluator PARENT 07/08/14

Attorney DISTRICT 07/08/14

Attorney PARENT 07/30/14

Parent PARENT 07/30/14

Attorney DISTRICT 07/30/14

Attorney PARENT 09/08/14

Attorney DISTRICT 09/08/14

On December 2, 2013, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), Part 200 of the Regulations of the Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a (8) year old student and the New York City Department of Education (“DOE”) - District: 30, regarding the student’s special education program. I was appointed after the recusal of at least one other IHO.

After adjournments were granted on consent of the parties or for cause, the impartial hearing was held on August 15, 2013, September 27, 2013, November 7, 2013, April 8, 2013, May 1, 2014, July 1, 2014, July 8, 2014, July 30, 2014 and September 8, 2014. The parties opted to submit closing statements in writing. (T-874-5) The Parent requested an additional extension of time to submit her written closing statement which was granted over the DOE’s objection. The parties written closing statements were ultimately received on October 10, 2014. The Parent’s request to submit a “reply” to the DOE’s closing statement was denied. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

The student in this case attended a public school for the 2013-2014 school year. (See Parent’s Due Process Complaint - “DPC”) The Parent alleges that the student, who is diagnosed , was last evaluated in January of 2010. (Id.) The Parent further alleges that the Committee on Special Education (“CSE”) met on May 18, 2012 and produced an Individualized Education Program (“IEP”) for the student that is procedurally and substantively flawed. (Id.) The CSE met again on June 12, 2013 and also produced a procedurally and substantively flawed IEP on that date. (Id.) That IEP was “revised” on July 10, 2013 and remained procedurally and substantively flawed. (Id.) Accordingly, the Parent alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2013-2014 school year and seeks the following relief at the impartial hearing:

(a) On an emergency basis, the student is entitled to pendency and direct funding for the (10) hours services to be used between home and school, as per the August 2012 hearing order and as per the related services of speech (4x30, ), ), PT (1x30, ) and a 1 paraprofessional and special education small bus transportation with limited time travel and a 12-month school year as per her June 2013 lEP.

(b) A final order directing the DOE to provide: direct funding tor at least the current mandate of (10) hours he used between home and school, the related services of the licensed teaching assistant, supervised by a BCBA or similarly experienced ABA provider, ABA consulting teacher services to provide training to the teachers and staff at the students school in year. The Parent ,is also seeking an increase in ABA hours at home, to address toileting, communication,

(c) The one-to-one services, school placement and related services should be funded or provided directly by the DOE.

(d) Compensatory services, make up services and equitable additional services to make up for the lack of FAPE in the 2013-2014 school year and any delay in the provision of pendency services. These services should be sufficient to make the child whole and place her in the position she would be in if she had not been denied FAPE and/or her pendency·rights had not been violated.

(e) An appropriate and legally adequate IEP and placement in the LRE.

(f) A finding that the DOE has violated the student’s rights under the applicable laws as alleged herein.

(g) A finding that the DOE failed to provide the student with a FAPE for the year in question.

(h) The parent seeks funding for an Independent Educational Evaluation, including, but not limited to evaluations.

(i) Reimbursement and payment for all related transportation and other costs affiliated with the services requested above and for the services previously obtained for which reimbursement is sought.

(j) A declaration that the blanket policies referred to above are illegal under the IDEA, Section 504 and New York State Education Law and should not be applied to the student.

(k) Attorney fees.

(l) All other relief that the hearing officer deems necessary.

THE DOE’S CASE

In this case, the DOE conceded Prong 1 of the Burlington/Carter test for tuition reimbursement. (T-36, 79-80 and 136-7) The agency is not defending the student’ Individualized Education Program (IEP”) dated June 12, 2013. (T-136) At issue is the student’s 2013-2014 school year. (T-86) The “pendency” request that the Parent made was issued in this case. (T-88) The agency argues that the Parent is unable to show that what she is seeking is appropriate for the student and the equities do not favor her case. (Id.) The DOE did not present a direct case. (T-137)

The DOE did not call any witness and submitted (10) documents in evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE

In relevant part, the Parent request that the DOE provide “direct funding” for at least eh current mandate of (10) hours between home and school.” (T-38-9) After the student’s ABA teachers were “observed” it appears that . (T-39) The student also needs . (T-39-40) In total, the student should receive (35) of ABA services between home and school, as well as related services of speech (4x30, (3x30, (1x30, 1) and (1x30, with small bus transportation, limited travel time in a 12-month school year. (T-

41) The Parent is also seeking funding for “Independent Educational Evaluations” (“IEE”). (T-46-7) The Parent further argues that the relief she request is in the student’s “least restrictive environment” (“LRE”). (T-137)

The Parent called (5) witness and submitted (25) documents in evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 (2005)) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2nd Cir. 2005))

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 (2nd Cir. 2000)) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 (1982)) 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. § 300.550(b), 8 NYCRR §200.6(a)(1))

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the private school employ certified special education teachers, or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-

102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-

049).

As stated above, the DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents were appropriate, and equitable considerations support the Parents' claim. (Carter and Burlington, supra)

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA. (Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

A threshold question in this case is whether it has been rendered moot by the passage of time and the Parent’s receipt of the services requested under “pendency.” The Parent argues that even if her claims are now moot, they fall under the exception to the “mootness” doctrine because the conduct complained of is “capable of repetition, yet evading review.” (P-Y) The Parent also argues that she has made claims about the DOE’s policies and procedures, and as such she “retains a personal stake in the outcome.” (Id.)

The Parent concedes having received the relief they sought at the impartial hearing under pendency. (T-88) The 12-month school year for 2013-2014 ended approximately four months ago, in June of 2014. Accordingly, the 2013-2014 school year at issue has expired. Upon careful consideration of the evidence in the hearing record I find that regardless of the merits of a decision, no further meaningful relief may be granted to the Parents because they have received all of the relief sought pursuant to “pendency”, and thus, the Parents' case has now been rendered moot. The District Court’s decision rendered in V.S., 2011 WL 3273922, as discussed further below, does not compel a different result.

The dispute between the parties must at all stages be “real and live,” and not “academic,” or it risks becoming moot. (See Lillbask v. State of Conn. Dep’t of Educ., 397 F.3d 77, 84-85 (2nd Cir. 2005), Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008), J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 (W.D.N.Y. Sept. 30, 2008), see also, Chenier v. Richard W., 82 N.Y.2d 830, 832 (1993), Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 (1980) and SRO No. 07-139)

In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted. (See, e.g., SRO Nos. 06-044, 05-058, 04027, 00-037, 00-016 & 96-37) Administrative decisions rendered in cases concerning such issues arising out of school years that have since expired may no longer appropriately address the current needs of the student. (See Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 (5th Cir. 1989) and SRO Nos. 07-139, 07-028, 06-070 & 04-007)

An exception provides that a claim may not be moot despite the end of a school year for which the student’s IEP was written, if the conduct complained of is “capable of repetition, yet evading review.” (See Honig v. Doe, 484 U.S. 305, 318-23 (1988), Lillbask, 397 F.3d at 84-85, Daniel R.R., 874 F.2d at 1040 and SRO No. 04-038) The exception applies only in limited situations (see City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) and is severely circumscribed. (See Knaust v. City of Kingston, 157 F.3d 86, 88 (2nd Cir. 1998) First, it must be apparent that “the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration.” (See Murphy v. Hunt, 455 U.S. 478, 482 (1982) see Knaust, 157 F.3d at 88 and SRO No. 07-

139) Second, controversies are “capable of repetition” when there is a reasonable expectation that the same complaining party would be subjected to the same action again. (See Weinstein v. Bradford, 423 U.S. 147, 149 (1975), Hearst Corp., 50 N.Y.2d at 714-15 and SRO No. 07-139) To create a reasonable expectation of recurrence, repetition must be more than theoretically possible. (See Murphy, 455 U.S. at 482, Russman v. Bd. Of Educ., 260 F.3d 114, 120 (2nd Cir. 2001) and SRO No. 07-139) Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence. (See Russman, 260 F.3d at 120 and SRO No. 07-139) “Mootness” may be raised at any stage of litigation. (In re Kurtzman, 194 F.3d 54, 58 (2nd Cir. 1999) and SRO No. 07-139)

In this case, there is no longer any live controversy relating to the parties’ dispute over the agency’s failure to offer the student a FAPE. Here, a decision on the merits would have no actual effect on the parties because the 2013-2014 school year expired on June 30, 2014, and the student remains entitled to her pendency placement funded by the DOE through the conclusion of the administrative due process with this decision. Accordingly, the Parents’ claims for the 2013-2014 school year need not be further addressed here. An IHO is not required to make a determination that is academic or will have no actual impact upon the parties. (See SRO Nos. 11-085, 09-077, 09-065, 08-104, 08-044, 07-077, 06-044, 04-006, 02-086, 02-011 & 97-64)

Concerning the District Court’s decision in V.S. (2011 WL 3273922), the court in that case held that in SRO No. 10-041, the SRO correctly determined that the Parents’ request for funding for the school year that was the subject of that appeal was no longer at issue where the student was educated at public expense at a private school chosen by the Parents for the duration of the school year pursuant to a pendency order. (See V.S., 2011 WL 3273922, at *9) Noting, that a decision in favor of the district in that matter would not affect its obligation to pay the costs of the student’s private school tuition, the Court nevertheless determined that the district sought redress regarding the collateral issue of the student’s ongoing pendency placement for future proceedings and that had a decision been rendered by a SRO on the merits, it would have affected the student's placement. (Id.) The Parent in this case also argues that the “…resolution of this dispute will determine [student’s initials] stay-put placement.” (P-Y) Extending the argument, the Parent states “If the IHO awards no relief to [student’s initials] for the denial of FAPE, her hours under this stipulation will have expired, and she will be left with no ABA hours.” (Id.) After careful consideration and for several reasons discussed below, I respectfully decline to adopt the reasoning as set forth in V.S..

First, the sole reason that the District Court in V.S. held that SRO No. 10-041, was not moot was because the parties required resolution of the merits of their dispute to establish the student’s pendency placement in future proceedings. (See V.S., 2011 WL 3273922, at *10) However, this rationale regarding future pendency may be read so broadly as to apply to virtually any and all IDEA proceedings involving the educational placement or services to be provided to a student, and other courts in New York have not adopted this broad approach. (See Bd. of Educ. v. O'Shea, 353 F.Supp.2d 449, 457 (S.D.N.Y. 2005)(determining the matter was moot and declining to resolve the merits of the parties’ dispute when the pendency provision provided an independent basis for doing so) see also Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195 (2nd Cir. 2002)(ruling that the pendency provision formed a basis for awarding relief without addressing the merits of the parties’ dispute), Bd. of Educ. v. Schutz, 290 F.3d 476, 484 (2nd Cir. 2002)(rejecting the district's argument that a dispute must be resolved on the merits rather than on the basis of the pendency provision), Patskin, 583 F. Supp. 2d at 428-29 (holding that the matter was moot where the school year at issue had passed, and stating that the relevant controversy was whether the IEP that the student was provided with was an appropriate placement and that there was no reasonable expectation that the student would be subjected to that particular IEP again), M.S. v. New York City Dep’t of Educ., 734 F. Supp. 2d 271, 273, 278-80 (E.D.N.Y. Aug. 25, 2010)(dismissing the case as moot and noting that the parents were receiving full compensation for their private school expenditures and that the proceeding was brought to obtain legal fees), J.N., 2008 WL 4501940, at *3-*4 (upholding a SRO’s determination that the case was moot), Bd. of Educ. v. Steven L., 89 F.3d 464, 468-69 (7th Cir 1996)(holding that it was not necessary to determine which party would prevail on the merits when the stay put provision controlled for the duration of the dispute and the proposed public school IEP was no longer applicable to the student), see also New York City Dep't of Educ. v. S.S., 2010 WL 983719 (S.D.N.Y. Mar. 17, 2010))

The 9th Circuit has explicitly rejected this rationale, holding that the stay put provision cannot be relied upon as the basis for a live controversy when the issue of liability on the substantive issues has been rendered moot. (See Marcus I. v. Dep’t of Educ., 2011 WL 1979502, at *1 (9th Cir. May 23, 2011)(explaining that stay put provision 20 U.S.C. § 1415(j) is designed to allow a student to remain in an educational institution pending litigation, but does not guarantee a student the right to remain in any particular institution because the right to a stay put placement that stems from a given adjudicatory proceeding lapses once the proceeding has concluded).

Second, we must be concerned with adjudicating rights unnecessarily, particularly when it will not affect the claims that a party alleged at the outset of the due process proceeding and especially under a statutory scheme like the IDEA, which envisions that Parents and Districts will continue to convene on at least an annual basis to review a student's current IEP or educational placement, share their concerns with one another, and cooperatively and affirmatively engage in efforts to develop a new appropriate plan designed to offer the student a FAPE in the public schools. (See 20 U.S.C. § 1414[d][4][A], 34 C.F.R. § 300.324[b][1][i], see also Educ. Law § 4402[2] and 8 NYCRR 200.4[f]) This process usually works best when it is as free as possible from acrimonious relationships that often develop after continued litigation.

Third, the automatic nature of the pendency provision set forth in the IDEA (see Zvi D. v. Ambach, 694 F.2d 904, 906 (2nd Cir. 1982), Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4th Cir. 2003), Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3rd Cir. 1996), and if necessary, the speed with which parties may obtain State-level pendency placement reviews on an interlocutory basis under New York's regulatory scheme (see 8 NYCRR 279.10[d]) strongly diminishes the need to establish future pendency placements for future school years. Such determinations are better left until the proceedings under which the right arises are commenced and the issue of the student's pendency placement is actually in dispute.

Lastly, the Court's comment that a decision on the merits in V.S. would be useful (2011 WL 3273922, at *10), raises a concern that the decision has the effect of removing the much needed discretion of administrative hearing officers to focus on both fairly and efficiently resolving disputes while retaining the discretion of how best to allocate their adjudicative resources to address ever growing dockets.

For the forgoing reasons, I decline to find that the Parents’ claims for the 20132014 school year continue to be a live controversy. I find that the matter has been rendered moot by the passage of time. The exception to the mootness doctrine does not apply in this case because the matter is not capable of repetition and would not evade review. While the Parents may elect to challenge the IEP developed for the 2014-2015 school year, the issues presented in such a claim could be different as the placement recommended for the 2013-2014 school year. What’s more, each year the elements of a parent’s claims must be analyzed separately. (See Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 67 (2nd Cir. 2000)(examining the prongs of the Burlington/Carter test separately for each school year at issue), Snyder v. Montgomery County Pub. Schs., 2009 WL 3246579, *9-*10 (D.Md. Sept. 29, 2009), Omidian v. Bd. of Educ., 2009 WL 904077, at *21-*26 (N.D.N.Y. Mar. 31 2009)(analyzing each year of a multi-year tuition reimbursement claim separately), Student X v. New York City Dep’t of Educ., 2008 WL 4890440, at *16 (E.D.N.Y. Oct. 30, 2008) and SRO Nos. 09-071 & 09-055) Accordingly, the exception to the mootness doctrine does not apply here as I do not find this matter to be capable of repetition yet evading review under the current protocol for addressing and adjudicating disputes under the IDEA. (See Honig, 484 U.S. at 318-23, Lillbask, 397 F.3d at 84-85, Daniel R.R., 874 F.2d at 1040 and SRO 04-038)

Additionally, the Mayor’s new policy announced on June 24, 2014, was implemented September 1, 2014 and includes the following changes in IDEA cases in New York City: • Expedite Decisions: Where settlement is appropriate, DOE will seek settlement within (15) days of receiving notice of parent intent to unilaterally place their child in a school. • Reduce Extended Legal Battles: The DOE will refrain from re-litigating settled or decided cases, unless there is a change in the IEP placement recommendation.

The DOE will avoid unnecessary litigation in cases where the agency is unable to offer a placement, or when a child is about to enter the final grade of a school. • Reduce Paperwork: Instead of requiring parents to submit full documentation every year, the DOE will only require that paperwork every three years, allowing for income eligibility updates to be made each year, as needed. • Expedite Payments: DOE will make tuition payments on a monthly basis when required by a program, and it will provide a payment schedule to parents following any settlement. Once parents win a claim for tuition reimbursement, the DOE will pay the tuition while the DOE appeals that decision to a higher level of review.

These changes make it even more less than likely that this matter is capable of repetition that my evade review. (Supra) It is also important to note that there is case law that prohibits the DOE from recouping payments made pursuant to pendency. (See New York City Dep’t of Educ. v. S.S., 2010 WL 983719, at *11 [S.D.N.Y. Mar. 17, 2010])

However, the Parent in this case has requested “compensatory services” for the student’s denial of FAPE for the 2013-2014 school year. (DPC) Compensatory education can be provided to a student even after he or she is no longer eligible because of age or graduation to receive instruction. (See 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]) It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. (See Mrs. C. v. Wheaton, 916 F.2d 69 (2nd Cir. 1990) and Burr v. Ambach, 863 F.2d 1071 (2nd Cir. 1988)) I find that a ruling on the merits must be made regarding the Parent’s request for compensatory education.

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 (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. (See 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 (see 34 C.F.R. § 300.102[a][3][i], 8 NYCRR 100.5[b][7][iii] and SRO Nos.: 05-084 & 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21. (See Educ. Law §§ 3202[1], 4401[1], 4402[5][b], 8 NYCRR 100.9[e], 200.1[zz], see also 34 C.F.R. § 300.102[a][1], [a][3][ii] and SRO No. 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 Somoza v. New York City Dep’t of Educ., 538 F.3d 106, 109 n.2, 113 n.6 (2nd Cir. 2008), Mrs. C., 916 at 69; Burr, 863 at 1071, Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 (N.D.N.Y. 2001) and SRO No. 03-078 (awarding two years of instruction after expiration of IDEA eligibility as compensatory education))

Compensatory education is an equitable remedy within the broad forms of relief on the merits that are permissible under the IDEA. (See Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100 (S.D.N.Y. Apr. 7, 2011), see also Forest Grove v. T.A., 129 S. Ct. 2484, 2490-91, 2494 n.11 (2009)) Compensatory education may be provided in the form of payment for educational services. (See Streck v. Bd. of Educ., 2010 WL 4847481 (2nd Cir.

2010) (permitting compensatory education relief in the form of reimbursement for certain services at Landmark College to the extent they were tailored to remediate the district's failure to provide services which constituted the gross denial of a FAPE), Mrs. C., 916 F.2d at 75, Burr, 863 F.2d at 1078, reaff'd 888 F.2d 258 (2nd Cir. 1989) (upholding a remedy in the form of continued secondary education services after the student's entitlement under the statute expired), see also SRO Nos. 10-109 & 03-010)

New York has used a “quantitative”, “qualitative” and hybrid approach to award compensatory education. I choose to apply a “qualitative” approach requiring an individualized fact-specific determination of amount “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.” (See Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (“what services, if any, were required] to place [the child] in the same position [he] would have occupied but for the district’s violations of IDEA.” (Id. at 518)) Here, the following questions may be asked: (1) What are the child’s “specific educational deficits?” (2) Which and how much of these specific deficits resulted from the child’s “loss of FAPE?” (3) What are “the specific compensatory measures needed to best correct the deficits?” (4) Should there be a deduction for reasonable rectification or unreasonable parental conduct?

In this case, the student received an inordinate amount of services during the 20132014 school year. The student was in a self-contained class with a ratio of “12:1:1”, supported by a full time 1:1 paraprofessional, while receiving occupational therapy (1x3x30), individual and group physical therapy (1x1x30 and 2x1x30), (10) hours a week of ABA services in the classroom and (15) hours of home based support from a settlement concerning a prior school year. (T-10-2, 156, 159, 160, P-B & P-D)

The record is replete with testimony concerning the progress that the student has made under her intensive program: “…in catch, chase, those kinds of gym activities we’re seeing some progress…”, “…decreasing the inappropriate behaviors, we have more appropriate behaviors…”, “…in those five years, has the student progressed? Yes.”, “…in the past she couldn’t answer a question…now, she’s at a point where if you read a sentence, she can answer a question about it…”, “What, if any progress has [student name] made as a result of her school-based ABA services in her attitude toward learning? That has definitely improved, just her ability to attend to task. She is not crying at school anymore.”, “And what, if any, progress has [student name] made as a result of her in terms of her behavior during transitions at school? That has improved.”, “…the attention to task is very much a targeted skill. And so yes, she’s making progress.”, “…[Student name] has made progress in ELA. Is that right? Yes.” “She has demonstrated improvement in her ability to be available for instruction and attend during work time.”, “do you have an opinion as to why she had made that progress? Yes. In speaking ], I understood that she was providing support hours at school…”, “I do believe she benefited “…the related services contribute to progress that she’s making in the respective disciplines.”, “…for this current school year, the ’13-’14 school year, [student name] was receiving (10) hours of ABA at school…(15) hours at home…Yes.”, “did her writing skills improve during the ’13-’14 school year? Yes. She did improve.”, “Would you say [student name] made progress with her self-care skills during ’13’14 school year? Yes. She did.”, “We saw big change in [student’s name] reading ability when she start to read by her own without helping, without our help .”, “I haven’t seen her stimming…Last year I would say yes, she had days that - -she was more calm and more understanding.”, “…she mastered matching the picture and the question in the right picture.” (T-279, 293, 309, 361, 387-90, 393, 555, 562, 563, 565-6, 628, 630 & 816, 818-9)

The student’s gave telling testimony regarding the student’s stated services:

Q: You indicate in your affidavit that you believe [student name] requires at least 15 hours of home based ?

A: Yes.

Q: Is it fair to say that she would make more progress if she had more than 15 hours, for example, if she had 20 hours of home based ?

A: Yes, 'cause we could use those hours on weekends and take her to community places and work more on her social skills and self-helping skills.

Q: What if she had 25 hours. Would that be even better?

A: Well, I think the more the better it is 'cause - - for [student name]

and so many other kids in the spectrum from my experience.

The record indicates that the student received the services requested under pendency for the 2013-2014 school year, that she progressed with those services, and that the request for continuation or expansion of those services is premised on the belief that no amount of services is too much, rather than the student’s needs resulting from any deprivation of FAPE. The student in this case has not regressed, but instead has progressed in many areas, including, but not limited to from kindergarten to first grade in both reading and math, based upon the outcome of her psycho-educational evaluation. (T-545-6)

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5[j][5][v]) Based on the record before me and for all of the reasons stated above, I must decline the Parent’s request for compensatory services.

The Parent also request funding for an Independent Educational Evaluation (“IEE”), including, but not limited to evaluations. (DPC) If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent evaluation at public expense. (See Regulations of the Commissioner of Education § 200.5(g) - “NYCRR § 200.5”) If the parent request an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent evaluation is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. (See 8 NYCRR § 200.5(g)(iv)) Additionally, 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) provide that if a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.

Here, the agency did not initiate an impartial hearing to rebut the Parent’s request for an IEE. Indeed, the agency concedes that the Parent is entitled to reimbursement for the only IEE she seeks reimbursement for, the student’s neurodevelopmental/psychological evaluation. (T-851 & P-Y) Accordingly, the Parent’s request for an IEE is granted.

NOW therefore, it is hereby

ORDERED that the Parents’ request for relief for the student’s 2013-2014 school year is deemed moot where applicable; and it is further

ORDERED that the Parent’s request for “compensatory education” services is denied on the merits; and it is further

ORDERED that the Parent’s request for reimbursement for the cost of the student’s is granted upon the agency’s receipt of reasonably satisfactory proof of the evaluation having been conducted the DOE shall reimburse the Parent or pay the cost of the student’s directly to the provider; and it is further

ORDERED that the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related services that she should receive for the remainder of the student’s 2014-2015 school year. Dated: November 21, 2014

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 RECORD

Number/Letter Title Dated For # of Pages

1 Due Process Response 07/22/13 DOE 03

2 Social Update 05/20/14 DOE 02

3 School 05/13/14 DOE 05

Function Evaluation

4 Classroom Observation 06/11/14 DOE 02

5 FBA 05/10/14 DOE 02

6 Vineland 05/20/14 DOE 08

7 05/06/14 DOE 02

Evaluation

8 05/07/14 DOE 05

Evaluation

9 Withdrawn N/A DOE

10 Closing Statement 10/14/14 DOE 09 A Impartial Hearing Request 07/11/13 PARENT 12 B Interim Order on Pendency 09/27/13 PARENT 06 C Withdrawn N/A PARENT

D IEP 06/12/13 PARENT 19

E Withdrawn N/A PARENT F Withdrawn N/A PARENT G Withdrawn N/A PARENT H Withdrawn N/A PARENT I Withdrawn N/A PARENT J Quarterly Progress Report 11/13 PARENT 05

K 05/13/13 PARENT 11

Evaluation L Withdrawn N/A PARENT

M 06/06/13 PARENT 06

Evaluation N Withdrawn N/A PARENT O Program Review and 07/12/13 PARENT 09

Recommendation P Classroom Communication N/A PARENT

Log Book Q ’13-’14 1st Quarter Report 2013/2014 PARENT 07

Card R ’13-’14 2nd Quarter Report 2013/2014 PARENT 06

Card S ’13-’14 3rd Quarter Report 2013/2014 PARENT 07

Card T Progress 05/21/14 PARENT 06

Report

U Text N/A PARENT ^[01]

V Affidavit of 07/07/14 PARENT 08 W Progress 05/15/13 PARENT 04

Report X Progress 07/25/13 PARENT 04

Report Y Closing Statement 10/14/14 PARENT 31

Footnotes

[01] Subpoena 04/14/14 IHO 01