New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: February 6, 2014

Actual Record Closed Date: March 3, 2014

Hearing Officer: James Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 6, 2014

Father of Student — Parents

Mother of Student — Parents

Esq. Attorney for Parents — Parents

Psychologist with Center (by phone) — Parents

Director of the Huntington Learning Center (by phone) — Parents

Representative for District and the New — DOE

York City — DOE

The Matter ., (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York, on February 6, 2014. The proceeding was commenced by Student’s Parent, by correspondence sent on Parent’s behalf , Esq. attorney for Parent to the New York City Department of Education’s Impartial Hearing Office, dated August 23, 2013 and received by said Office on the same date. The undersigned was appointed by the Impartial Hearing Office, after the recusal of one or more Impartial Hearing Officers previously assigned to preside over this matter, by notification dated October 2, 2013. Upon the receipt of the Transcript of Proceedings held on March 3, 2014, the Record was closed.. The Actual Record Close Date was March 3, 2013.

Parent alleges in her Due Process Complaint (Exhibit A) that the New York City Department of Education failed to offer Student a free, appropriate public education (FAPE) to Student for the 2011-2012, 2012-2013 and 2013-2014 school years. Parent specifically alleges that the special education programs enacted by District’s Committee on Special Education for each of the cited school years failed to meet Student’s needs or offer a program that could advance his academic progress.

Student began the 2011-2012 school year with his special education program established by the provisions of an Individualized Education Program (I.E.P.) that had been prepared by District’s Committee on Special Education (C.S.E.) on January 26, 2011 (Exhibit F). Parent’s Complaint asserts the program prepared by District’s Committee on Special Education (C.S.E.) for the 2011-2012 school year was not implemented in that Student was never placed in his recommended placement nor provided with all of his mandated Related Services.

Parent further asserts that the Individualized Education Program (I.E.P.) created by District’s C.S.E. on January 20, 2012 (Exhibit D) was not only procedurally and substantively deficient, but was never actually implemented. Specifically, asserts Parent, District‘s C.S.E. which had prepared Student’s I.E.P. was improperly constituted, and that the I.E.P. prepared by that Committee was prepared with insufficient and inaccurate information regarding Student’s functioning levels; failed to offer Student an appropriate academic program; inappropriately removed Related Services which had previously been provided to Student; and failed to prepare any transition plan for Student. Further, Parent asserts that District failed to provide Student with a free, appropriate public education in that Student was bullied in his actual placement and District, although aware of such bullying, failed to assure Student a safe and appropriate place to learn.

Parent also alleges that the I.E.P. prepared by District’s C.S.E. on January 18, 2013 (Exhibit C) was again both procedurally and substantively deficient. Parent had obtained an Independent Educational Evaluation prepared , Ph.D. (Exhibit A) and had requested the Committee to reconvene to consider the contents of that evaluation. Parent contends that the Committee failed to consider or include any of the information provided by the , failed to have a School Psychologist present at the meeting, returned that Related Service that had been previously removed from Student’s I.E.P. without any participation or report by that service provider, and otherwise simply continued the contents of Student’s previous I.E.P.

Parent further alleges that, while District’s Committee on Special Education reconvened again in April of 2013, its actions were procedurally and substantively inappropriate. The Committee, Parent alleges, was again without the attendance by a School Psychologist at the meeting, which, according to Parent’s Complaint (Exhibit L), was convened for the purpose of considering Student’s movement to a more restrictive setting. Further, according to Parent’s Complaint, the Committee failed to review the Independent Evaluation Parent had obtained (Exhibit A) and, was discussed, took no action to address such.

Parent alleges that the District’s Committee met yet again on June 21, 2013. A School Psychologist was in attendance so that, according to Parent’s Complaint, the Independent Evaluation that Parent had obtained from Dr. could – and was – reviewed and Student’s placement could – and was – changed to a more restrictive setting. However, while the Committee made provision for Student to receive a twelve-month program (Exhibit C), it delayed the implementation of that recommendation until September of the 2013-2014 school year.

Parent seeks an Order directing that Student be immediately placed in an appropriate District Program with vocational training, together with compensatory services in the form of eight hundred twenty-four hours of intensive one-on-one tutoring from the to address the lack of appropriate educational services during the period under review, together with certain related incidental costs incurred or to be incurred by Parent. Student is presently sixteen years six months of age, having been born on September 9,

1997. Student presently carries the classification of having an Intellectual Disability (the nomenclature changed after the creation of Student’s I.E.P. on January 26, 2011, which classified Student as ). According to the contents of the Evaluation Report prepared by Dr. n on July 27, 2012, Student had been evaluated by Department of Education School Psychologist H. Klopchin on December 12, 2009, who had found Student’s Full Scale IQ , utilizing the Wechsler Intelligence Scale for Children- Fourth Edition (WISC-IV), as Further information contained in Dr ’s Report (Exhibit A) noted that Student had also been evaluated in November of 2010 by SUNY Downstate, which, utilizing the same WISC-IV testing instrument, found Student’s Full Scale IQ to Dr did not repeat testing with the WISC-IV, but assessed Student using the Woodcock-Johnson Tests of Achievement – Third Edition (WJ-III). Student’s scores in the areas of Reading, Mathematics and Writing were all found to be severely impaired (Exhibit A). Dr. diagnosed Student as having Recommendations included a recommendation that Student would benefit from placement in a District program and, in addition, required specialized and intensive tutoring and instruction to improve his basic skills (Exhibit A).

Student was placed, pursuant to his I.E.P. of January 26, 2011 (Exhibit F) in a Specialized Class having a staffing ratio of together with Related Services. Student’s Academic Levels, as had been reported from the utilization of the Woodcock-Johnson Tests of Achievement – Third Edition (WJ-III) – were Letter Identification at the Instructional Level of his Passage Comprehension his Reading Fluency ; his Broad Reading at 2.0; and his Broad Math at 2.0. Student’s I.E.P. of January 20, 2012 (Exhibit

E) placed Student in a Special Class in a Community School, with a class staffing ratio of together with Related Services. Student’s I.E.P. of January 18, 2013 (Exhibit D) continued Student’s placement in a Special Class having a staffing ratio of with Related Services. However, Student’s I.E.P. of June 21, 2013 placed Student in a Special Class in a Specialized School having a staffing ratio of 12:1+1 – a District school. Student’s Academic Levels were apparently taken from Dr, s Report (Exhibit A) , which utilized the same testing instrument – the WJ-IV - albeit a later edition, and which showed Student’s Letter-Word Identification at a Grade Equivalence of 2.3; his Reading Comprehension at a Grade Equivalence of his Reading Fluency at a Grade Equivalence of 2.0; his Broad Reading at a Grade Equivalence and his Broad Math at a Grade Equivalence

At the hearing held on February 6, 2014, District’s Representative Ewing advised that the District and the New York City Department of Education had no exhibits to offer into evidence, had no intent of calling any witnesses on its behalf and was “conceding Prong One” – a concession that I have interpreted as meaning that it conceded that it had failed to offer Student a free, appropriate public education in each of the school years under consideration. Parent thereupon offered the testimony of three witnesses; Student’s Mother; Dr who had evaluated Student on July 27, 2012, who had prepared her Report that had been received into evidence (Exhibit A); and Ms. the Director of the

As previously noted, Parent’s Due Process Complaint Notice (Exhibit L) seeks Student’s immediate placement in a setting with vocational training, as well as compensatory services at the and the payment of incidental costs incurred by Parent to the . As to the first, I note that District’s C.S.E., at its meeting of June 21, 2013, prepared an I.E.P. for Student (Exhibit C) which recommended that Student be offered his special education program in a Special Class in a Specialized School having staffing ratio of 12:1+1. Such is a . Thus, as Student’s current placement recommendation is for placement in a school, I find it unnecessary to rule on such application or order such requested relief. Consideration of Parent’s other requested relief requires further examination.

It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and; (3) equitable considerations support the Parent’s claim. Such prerequisites were established by the United States Supreme Court when considering claims for reimbursement brought by parents who had unilaterally placed their disabled child in a private facility (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 01-052). Further, it was later held that the fact that the facility selected by a parent to provide special education services to a child had not been approved as a school for children with disabilities by the State Education Department of the State of New York would not be dispositive of a parent’s claim for tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). In this proceeding, Parent has neither placed Student at the Huntington Learning Center and is requesting reimbursement for monies paid for such (excerpt for incidentals), nor has Parent obtained services for Student from the Huntington Learning Center and is seeking direct retrospective payment to it for services already provided (Mr. and Mrs. A. v. New York City Department of Education, Civ. 09-5097 (S.D.N.Y. 2011). Parent’s application is more akin to the dicta offered by the Court in Connors v. Mills, 34

F. Supp 2d 795 (N.D.N.Y. 1998), wherein it was opined that, where a parent did not have the wherewithal to front the cost of a unilateral placement and thereafter seek reimbursement, a court might prospectively order such placement at a district’s expense. In such opinion, the Court noted that, in such circumstances, the Burlington Prerequisites still had to be met.

Generally, in applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in my consideration of the issues presented, that I first determine whether or not the School District offered to the Student a free, appropriate public education. The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404). Under the guidelines established by Burlington and Carter, should I determine that District offered Student an appropriate educational program, my inquiry into Parent’s request would cease at that point, for if a district has offered an appropriate program, a parent’s right to any requested relief must be denied. Under the same guidelines, if it is determined that District failed to establish the appropriateness of its program, I must then determine the appropriateness of the Parent’s unilaterally-selected educational facility or program. The burden of establishing such appropriateness rests upon Parent (N.Y.S. Education Law §4404). Should Parent fail to establish the appropriateness of the unilaterally-selected facility or program, Parent’s request for relief must be denied. If the unilaterally-selected educational facility is determined to be appropriate, I must, because the awarding of any relief is possible only by an invocation of the equitable powers inherent in this proceeding, then review the equities in order to determine whether equitable considerations favor an award of any relief to the parent. It is my determination that the burden of establishing that such equities do not favor an award of tuition reimbursement rests upon District

As has been noted, District had the obligation in this, as in any Due Process hearing in New York State, to bear the burden of proving that it offered Student a free, appropriate public education (FAPE) (N.Y.S. Education Law §4404(1)(c)). Such imposes upon District the both the burden of production and the burden of persuasion. In this proceeding, as noted, District called no witnesses to testify regarding the programs it offered to Student in the years under review. In fact, it conceded that it had failed to offer a free, appropriate public education for each of the years under review.

It is, therefore, my finding and determination that District has failed in its burden to establish the appropriateness of the I.E.P.’s prepared for Student for either the 20112012 or the 2012-2013 school years or to establish, as it had the obligation to do, that it offered Student a free, appropriate public education in each of those school years.

As previously noted, Parent, in this proceeding, seeks an order requiring the District and the New York City Department of Education to provide “eight hundred twenty-four hours of individual tutoring by the Huntington Learning Center to address the lack of appropriate educational services provided to him during the 2011-2012, 20122013 and 2013-2014 school year.” (Exhibit L). However, , the Director of the , after reviewing the testing done at the Center on July 19, 2013 and the deficiencies found in Student’s academic performances, stated that: (T.R.102)

“It’s my understanding, based on the Diagnostic Statistical Manual, that students who have the diagnosis that [Student] has have the capacity generally to reach sixth grade level in both reading and math. And so, dealing with --- basing our expectations on that, we hope to be able to achieve that level with him and have estimated how long we think it’s likely to take to do that.”

In other words, the program proposed by the Director of the is to afford a program that will enable Student to reach his highest potential, given his intellectual deficiencies.

I perceive a disconnect between the failure of District to offer Student an appropriate program during the years in question and the proposed remedy of providing Student with significant hours of one-on-one instruction to enable Student to reach his highest potential academically. As noted by the State Review Officer in determining Application of a Student with a Disability, Appeal No. 12-209:

“The purpose of an award of additional services is to provide an appropriate remedy for a denial The purpose of an award of additional services is to provide an appropriate remedy for a 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 [DC 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 accrued from special education services the 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"]; Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10-052). 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"]; Puyallup, 31 F.3d at 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 12-

135; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). “

When Student was evaluated by Dr on July 27, 2012, Student was found to be at a Second Grade and Third Grade level in Broad Reading, Broad Math and Broad Written Language (Exhibit A). At the time of her evaluation the 2011-2012 school year had just concluded. Such inferior scores as were determined by Dr. were not, I find, solely the result of District’s failure to provide Student with a free, appropriate public education during the 2011-2012 school year. It is clear that Student’s academic deficiencies were present during the many years that preceded his at the beginning of the 2011-2012 school year. A Psychological Evaluation performed in February of 2008, when Student was in Fifth Grade, noted that Student’s academic skills were negligible, with Basic Reading Skills assessed at a Grade Equivalence of and Broad Math at Exhibit B). As

Student entered , Student was functioning at or in all areas. It must therefore follow that Student’s low academic functioning, as confirmed by evaluation in July of 2012 (Exhibit A), was a result of many years during which academically, and cannot be attributed solely to District’s failure to provide appropriate programs during the years under review. When tested at in July of 2013 – one year later - Student’s scores showed, according to , that Student was “operating far the that he should be for his age and current grade in school.” (T.R.87). I find that the Report by Dr. a baseline of Student’s abilities as of the date of that evaluation. As noted in Reid v. Dist. of Columbia, 401 F.3d 516, 524 [DC Cir. 2005], 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 accrued from special education services the school district should have supplied in the first place" (Emphasis is mine). It is impossible to believe that Student would have reached even if Student had been provided with an appropriate program during the years under review. Thus, it is my finding that the educational benefits that likely would have accrued to Student from the educational services the school district should have provided are in no way compatible with the requested relief of providing Student eight hundred twenty-four hours of one-to-one instruction. As previously noted, the decision of the Court in Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] held that:

"(c)ompensatory awards should place children in the position they would have been in but for the violation of the Act"

While it is speculative to attempt to assess where Student would have been academically had District not failed to provide Student with a free, appropriate public education, it is hardly speculative to state that Student would not have reached his full potential of functioning academically at a Sixth Grade level, or to have reached any level even close to that level.

Clearly, while Student’s present difficulties are not simply the result of District’s failure to provide Student with appropriate programs during the years under review, Parent is limited, in this proceeding, to claims against District that have arisen with the two years preceding Parent’s filing of her Due Process Complaint. That date is August 23, 2013. Commissioner’s Regulations mandate that the request for an impartial due process hearing must be submitted within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis for the complaint (8 NYCRR 200.5(j)(1)(i)).

While I can presume that, had Student been offered an appropriate educational program during the 2011-2012, 2012-2013 or 2013-2014 school years, Student would have made some limited educational progress. I do not find that Student is entitled to receive the amount of services as recommended by as requested by Parent. Certainly, the amount of individual instruction that might have been afforded Student in his recommended settings during the 2011-2012, 2012-2013 or 2013-2014 school years – had appropriate programs been afforded to him - would not have been as intense as oneto-one tutoring nor capable of achieving the progress that such alternate setting at . Yet both programs would necessarily have begun at the levels that Student evidenced at the commencement of those school years.

Thus, while it has been established that District failed to provide Student with appropriate educational services for a period of two and one half school years, the appropriate remedy to address such failures has not been established. It is my finding and determination that Student is entitled to some relief in this proceeding and that individual tutorial sessions might well prove to be of some academic benefit. Accordingly, I shall award Student a total of one hundred ten hours of individual tutorial instruction to be provided by a duly certified Special Education Teacher employed by the Department of Education and at Department expense. Such hours of instruction shall not exceed one hour per day and may be provided to Student either during school hours or after the conclusion of the school day, with the determination of such option to be made solely by Parent. However, should Student fail to attend any three consecutive sessions of such instruction for any reason other than medical, all remaining hours shall likewise be forfeited.

ORDER

Based on the above, it is HEREBY ORDERED that District and the New York City Department of Education shall Student a total of one hundred ten hours of individual tutorial instruction to be provided by a duly certified Special Education Teacher employed by the Department of Education and at Department expense. Such hours of instruction shall not exceed one hour per day and may be provided to Student either during school hours or after the conclusion of the school day, with the determination of such option to be made solely by Parent. However, should Student fail to attend any three consecutive sessions of such instruction for any reason other than medical, all remaining hours shall be forfeited. Dated: March 12, 2014

________________________

JAMES WALSH, ESQ.

Impartial Hearing Officer JW;mv

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 ON FEBRUARY 6, 2014

A. Evaluation Report, Ph.D. and, Ed.M. of The Infant and, dated 9-9-12 (4); Appendix (1) (5 pages; Parents)

B. Evaluation Report by, MS Ed., dated 2-27-08 (3); Appendix (1) (4 pages; Parents)

C. Student’s I.E.P. as prepared by District’s C.S.E. on 6-21-13 (16 pages; Parents)

D. Student’s I.E.P. as prepared by District’s C.S.E. on 1-18-13 (15 pages; Parents)

E. Student’s I.E.P. as prepared by District’s C.S.E. on 1-20-12 (13 pages; Parents)

F. Student’s I.E.P. as prepared by District’s C.S.E. on 1-26-11 (11 pages; Parents)

G. Listing of Service Records for Student. For Period 1-18-11 through 6-7-13 (5 pages; Parents)

H. Letter from, dated 10-12-12 (2 pages; Parents)

I. Copy of Email to, dated 4-24-12; Copy of Email to Attorney dated 4-25-13 (3 pages; Parents)

J. Letter from Parent to date 5-29-13 (1 page; Parents)

K. Report (3): Student Program Map (1); Test Material (67) (70 pages; Parents)

L. Parents’ Due Process Complaint Notice, dated 8-23-13 (7 pages; Parents)

DOCUMENTATION ENTERED INTO RECORD ON MARCH 3, 2014

I. Copy of Email from to IHO IHO Walsh, dated 3-3-14 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" (1 page; Parents)