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: April 8, 2014

Actual Record Closed Date: September 8, 2014

Hearing Officer: , Esq.

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

Attorney — Student

Parents

Director, (Via Telephone) — Student

District Representative — DOE

Teacher, (Via Telephone) — DOE

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student.

OVERVIEW

At the time the Due Process Complaint Notice was filed, the Student was an eight year-old boy with an asthma condition (Ex. 4.2). The Disability is not in issue. The Student during the 2011-2012 school year. The Student was not promoted to the during the 2012-2013 school year, but remained in the . He was then promoted to the second grade for the 2013-2014 school year. The Student had authorization to receive from December 17, 2012 until the end of the 2014 school year.

In October, 2012, the Parent formally requested an evaluation of the Student. (Ex. 2.1) The Student on or about October 14, 2012. (Ex. 4) In December 2012, the CSE created an initial Individualized Education Plan (“IEP”), authorizing the Student to (Ex. 5.1) The Student’s next (current) IEP, dated December 9, 2013, to five (5) times per week. (Ex. B) Parents’ Position

The Parent’s position, as stated in the Complaint Notice, dated August 9, 2013, is that the Student was first denied a Free Appropriate Public Education (“F.A.P.E.”) when the District failed to evaluate the Student within sixty (60) days of the Parent’s original request for evaluation. The Parent maintains that the goals detailed in the initial IEP did not adequately address the Student’s needs, and the Student’s current IEP is similarly deficient. The Parent alleges authorized by the Student’s IEPs were not properly rendered during the 2011-2012 and 2012-2013 school years. As a result, compensatory education would be an appropriate remedy. District’s Position

The District’s position, as derived from testimony on April 8, 2014 is that the Student made progress during the 2012-2013 school year. Testimony also revealed the District’s belief rendered in accordance with the Student’s IEP during the 2012-2013 and 2013-2014 school years. (Tr. pp. 102) Student History At the time the Complaint Notice was filed, the Student was an eight year old boy, classified as having a .” (Ex. 5) The Student ”). (Ex. 4) The Student was assessed on given on November 14, 2013. The Student , which is in the borderline range of functioning and at the fifth percentile. His , range. The Student’s mathematics composite score on was . The was in the The ( during the 2011-2012 school year and during the 2012-2013 academic year. The Student attended second (2nd) grade during the 2013-2014 school year. The Student’s initial IEP was drafted in December, 2012; it recommended that the Student remain in a general education . (Ex. 5) The Student’s December, 2013 IEP made the same recommendation, but reduced the . (Ex. B) Legal Background

The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (FAPE). 20 U.S.C. § 612(a) (I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a) (1) (A). The IDEA defines a FAPE as special education and related services that:

(A) have been provided at public expense, under public supervision and direction, and without charge,

(B) meet the standards of the state educational agency,

(C) include an appropriate

(D) Are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).^[1]

A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an IEP (20 U.S.C. § 614(d)). The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005) The IEP is, in brief, a comprehensive statement of the and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14) In New York State, the IEP is produced by a committee on special education (CSE), whose members are appointed by the board of education or trustees of the school district. (N. Y. Educ. Law § 4402(1) (b) (1) (McKinney Supp. 2005))

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. (See generally 20 U.S.C. § 615) These procedures include the opportunity for parents to obtain an independent educational evaluation of the child, (20 U.S.C. § 615(b) (I)) and file a complaint with the state or local educational agency. (20 U.S.C. § 615(b) (6)) Any such complaint is resolved through an "impartial due process hearing" in which parents of disabled children have "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child." (20 U.S.C. § 615(b) (6)) Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002)

In New York State, “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing . . .” (NY Educ. Law § 4404 (1)(c)) modifying the rule enunciated in Schaffer where “The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537

With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. (20 U.S.C. § 615(g)) New York has elected to employ the two-tier approach. (N.Y. Educ. Law § 4404 (McKinney Supp. 2005)); accord, Heldman v. Sobol, 962 F.2d 148, 152 (2nd Cir., 1992) Under the New York scheme a parent who wishes to challenge his or her child's IEP is entitled to a due process hearing conducted by a hearing officer appointed by the local board of education. (N.Y. Educ. Law § 4404(1) (McKinney Supp. 2005)) A party dissatisfied with the decision of the hearing officer has the right to appeal the hearing officer's decision to a State Review Officer. (SRO) (N.Y. Educ. Law § 4404(2) (McKinney Supp. 2005)) After these administrative remedies have been exhausted, a party may bring a proceeding pursuant to Civil Practice Law and Rules Article 4 in state court or a federal action under Section 615(i) (2) of the IDEA. (20 U.S.C. § 615(i) (2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp. 2004) Standard to Evaluate Procedural Violations

Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir.

1989) In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. Sec. 615 (a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987)

The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998) Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id. the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not." R.E. v. New York City Dep't. of Educ., 694 F.3d 167@ 190-191

For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982) that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held “…the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f) (3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. Jan. 9, 2007]), Application of a Child with a Disability, Appeal No. 07-007 Substantive Standard The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child with a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley)

DISCUSSION

Violations during 2011-2012

The Parent alleges a “child find” violation. The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446. F.3d 335, 347-48 (2d Cir. 2006); see also 20 U.S.C. § 1412[a][3][A]; 34 C.F.R. § 300.111; 8 NYCRR 200.2[a][7]).

In this case, I find that the District did not meet its burden of proof to show that it did not violate its child find obligation. The hearing record reveals no effort on the part of the District to address the allegation. Indeed no witness testified regarding the critical 2011-2012 school year. In this case, the Parent specifically alleges he made repeated requests for evaluation prior during the 2011-2012 school year.

The Complaint Notice alleges the Student’s mother submitted a written request for evaluation on or about October 17, 2011 and again on or about May 15, 2011. Although she did not testify and the Parent submitted no documentary evidence, the Father did testify that requests for assistance began early in first grade. (pp.100 & 107)

Despite the modest showing by the Parent, the IDEA does not require parents to request that the district evaluate their child (Application of a Child Suspected of Having a Disability, Appeal No. 05-127; Application of a Child Suspected of Having a Disability, Appeal No. 05-040; A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (Dep't of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 (D. Haw. 2001).

I note the IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.111[a][1][i]; To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children (Application of a Student Suspected of Having a Disability, Appeal No. 10-009; Application of a Student Suspected of Having a Disability, Appeal No. 09-132.

To determine that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate (Bd. of Educ. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]). In this case the District simply failed to put on a case regarding child find.

With regard to the Parent’s allegation that the District failed to provide SETSS authorized by the Student’s IEP during the 2011-2012 school year, (the Complaint Notice alleges the Student was authorized to receive sixty-four (64) hours of SETSS) the record is devoid of a source in support of this claim. This appears to be a scrivener’s error. Violations during 2012-2013

The Parent claims that the Student did not by the December 17, 2012 IEP. I find the Parent’s position is supported, and this violation led to an educational detriment. The record is not developed regarding the during this school year. Said services are noted on the IEP (Ex. 5), and it is the burden of the District to defend the allegation in the Complaint Notice. As with the issue of child find, above, the District failed in its proof on the issue for 2012-2013.

Moreover, I find the Parent’s testimony related to the District’s failure to properly provide during the 2013-2014 school year sufficient to cast doubt on the possibility . I fortify this point by review of the Parent’s testimony and the District’s silence in response to the Parent’s account. As set forth below, the District abrogated its credibility in the issue of were properly provided in 2013-14. This bears on my estimation of the were previously provided by the District; that is to say, during the 2012-2013 school year while the Student was repeating first (1st) grade. Put simply, I am unconvinced the District provided adequate SETSS at any time . Violations during 2013-2014

The Parent alleges the Student authorized by the December 9, 2013 IEP. I find the Parent’s position is supported, and this violation led to the denial of a FAPE for the Student during both the 2013-2014 (and 2012-2013 school years).

The District offered evidence that the Student during the 2012-2013 school year by pointing to the . (Ex. 6) On its face, the indicates that the Student authorized by the IEP. (Id.) In response, the Parent testified that the service record did not reflect reality. Specifically, the Parent testified were not provided properly because the Student was not removed from the classroom during . When asked how he knew the Student was not being removed from the classroom, the Parent testified that he personally observed the Parent explained that he was at the school regularly due to his involvement with the . pp.

109) When the Parent was asked if he was currently able to observe the Student, the Parent testified that he no longer had the same access. The Parent Student. (Tr. pp. 110-

11) I credit the Parent’s testimony and find it telling that the to this aspect of the Parent’s account.

Having Student’s need for individual instructional assistance. Direct, out-of-theclassroom with certainty that the Student was progressing. The teacher testified that the student was ”. (Tr. pp. 43-44) I discredit her superlative comments in light of the more conservative evidence of progress that overwhelms the record. For example, the December 2013 IEP (Ex. B) shows the Student made only some progress and continued to have difficulty in the area of reading decoding and fluency. The IEP explicitly states that the Student’s reading fluency and comprehension need improvement. (Ex. B) By way of another example, the Student Academic Evaluation provided by the Huntington Learning Center (HLC) reflects poor performance in the areas of oral reading, reading comprehension, and writing. (Ex. A) I consider the documentary record with the understanding that it lacks evidence for the time period Evaluation. Nevertheless, the testimony that the Student exhibited “beautiful progress” upon his transition out of the first (1st) grade cannot be affirmed. Accordingly, I find the foregoing violation had an impact on the receipt of a FAPE by the Student. Compensatory Education

Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and … mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]

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 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387

[N.D.N.Y. 2001]

Compensatory education relief may also 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 at 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 generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]). Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13- 226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student and therapy in compensatory additional services]).

In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have school district should have supplied in the first place"]; 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"]). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that 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"]; Parents of Student W. v. Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014.

I turn now to the instant case and make the following findings:

I find the District failed in its obligation to identify and properly evaluate the Student and arrange for special education services during the 2011-2012 school year.

I find the District failed to carry its burden with respect to adequate provision of authorized the 2012-2013 and 2013-2014 school years.

I credit the Parent’s testimony relating to the District’s failure to provide direct SETSS during the 2013-2014 school year and impart this finding to the 2012-2013 school year as well. The relevant testimony by the Parent controverted the District’s Service Record for the Student during the 2012-2013 school year. The Service Record is silent with respect to from the time of the initial IEP until the time period discussed in the Parent’s testimony. For additional guidance during this time period, I rely on the deficit reported by the testimony indicates 361 hours , which has not been developed by the District’s special education services. Since the Parent that such venue has value to the Parent. However, I also recognize the difficulty schedule following a full day of school. The difficulty involves the concerns, I have directed that half of the bank of additional services be provided in the to be delivered at the home.

Accordingly,

I hereby ORDER

1. The District to provide a bank of rendered. The Parent has discretion to arrange and order the hours to be provided case should this award be extended beyond

June 30, 2016. A should be designated to working with the CSE when it convenes collaborate for the benefit of the Student.

2. The District is hereby ordered to

3. The District shall provide transportation to and from the HLC in the form of metro cards for the Parent and the Student through June 30 2016.

4. The District to provide instruction to be provided by a related service authorized

(RSA) by the District to the Student’s home. The Parent has discretion to select a provider from “the approved list” and arrange and order the hours to be provided by the related service provider. However, in no case should this award be extended beyond June 30, 2016. Dated: September 15, 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 THE RECORD

PARENT

A Evaluation, 49 pages B IEP, December 2013, 13 pages

DEPARTMENT OF EDUCATION

1-1 – 1.5 Impartial Hearing Request, 8/9/13, 5 pages 2.1 Parent Request for Evaluation, 10/10/12, 1 page 3.1 – 3.2 Classroom Observation, 10/26/12, 2 pages 4,1 – 4.8 , 10/14, 12 and 11/15/12 5.1 – 5.16 IEP dated 12/17/12, 16 pages 6.1 – 6.7 Service Records – , 8/26/13, 7 pages

Footnotes

[1] "Special education" is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term "related services" is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).