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: October 8, 2013

January 29, 2014

Actual Record Closed Date: March 21, 2014

Hearing Officer: Timothy Mahoney, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 8, 2013

ESQ. Attorney (telephone) — Student

SPECIAL EDUCATION Administrator, (telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 29, 2014

ESQ. Attorney — Student

parent (telephone) — Student

Director – (telephone) — Student

SPECIAL EDUCATION Administrator, — DOE

On October 2, 2013 and following the recusal of the previously appointed hearing officer, I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, concerning a dispute of a student (“student” or “ seeking remedial, or alternately compensatory, services for a failure to provide a free appropriate public education (“FAPE”) from the New York City Department of Education (“DOE”) for the 2011-2012, 2012-2013, and 2013-2014 school years.

BACKGROUND

This case was initiated as a result of a demand for due process (“Demand,” see P-

A) filed by on behalf of the student’s Parent (herein “ .” or “parent”), , Esq., appearing, and received by the Department of Education’s Impartial Hearing Office (DOE-IHO) on or about August 26, 2013, and identified as NYC Case No. note that the parent’s Demand was faxed to the impartial hearing office on August 22, 2013. See PA at 7.

Previously, ’s mother wrote to the DOE requesting that . be evaluated to determine whether she had a disability on or about April 11, 2013. See P-H. In that letter, noted that she had previously requested the DOE to evaluate but nothing had been done to start that process following a meeting between the DOE and ’s husband. Id.

most succinctly described on the May 2013 Evaluation, obtained privately by mother. See P-I. The evaluator administered the Wechsler Intelligence Scale for Children – Fourth Edition (WISC-IV) as well as the Woodcock-Johnson Test of Achievement (WJ-III). S.B. showed relative strengths in verbal comprehension with low average scores in perceptual reasoning and working memory, and borderline results on the processing speed composite. However, . presented most clearly with

Thereafter, the Committee on Special Education (“CSE”) held a meeting to develop the student an individualized education plan (“IEP”) on or about May 24, 2013. See P-J. The CSE classified . Likewise, the team noted . had accumulated credits, received a 68 on her Global History Regent’s Exam in Algebra, in Living Environment. See P-J at 1. Similarly, the team incorporated from the private . Id. was described by her teacher as often distracted when in class, does well when focuses, and is able to grads concepts when instructed in small groups. See. P-J at 1-2. The team noted her ability to complete grade-level work. Socially, she was described in the IEP as pleasant and respectful and as having formed appropriate relationships with peers. P-J at 2. ’s mother expressed concern of possible . Management needs were described as including preferential seating, guided notes, on-task prompts, information presented with a visual aide, concrete and discrete directions. See P-J at 3. No interfering behaviors were indicated. Four goals were developed, including analyzing multiple interpretations of a story to evaluate the differences between versions, organizing complex ideas, solving for variables when breaking down math problems, and successfully identifying feelings about . See P-J at 4-5.

The CSE recommended S.B. be educated in an integrated co-teaching class (“ICT”) for math and English language arts (“ELA”), as well as the related service of group counseling once weekly for forty minutes a session. See P-J at 5-6.

A telephonic pre-hearing conference was held on October 8, 2013. At the conference the DOE conceded FAPE had not been offered for the 2012-2013 school year. Furthermore, the DOE argued the claims for the 2011-2012 were time-barred as outside of the statute of limitations, and that the DOE intended to defend to offer of FAPE for the current school year. See Tr. 4.

Testimony was taken January 29, 2014. The DOE presented no witnesses or evidence for consideration. The parent testified as well as presented one witness: Dawn Helene, the Director

STANDARD

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c); see M.P.G. v. New York City Dep't of Educ., No. 08 Civ. 8051 (TPG), 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010). Here, the DOE has the burden of proof and production.

THE DOE’S BURDEN

The IDEIA directs that my decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 415(f)(3)(i). The "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Id., 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). A school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" Walczak, 142 F.3d at 130. The IEP must be "reasonably calculated to provide some 'meaningful' benefit." Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997). 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. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132.

Not all procedural errors invalidate an IEP under the IDEA. See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(i); 34 C.F.R. § 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

The statue requires this basic floor. The IDEA, among other things, ensures that students with disabilities have available to them a Free Appropriate Public Education, or

FAPE. 20 U.S.C. § 1400(d)(1)(A); see also Schaffer v. Weast, 126 S. Ct. 528, 531 (2005). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d); see also 20 U.S.C. § 1414(d); 34 C.F.R. § 300.320. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. Board of Educ. v. Rowley, 458 U.S. 176, at 206-07 (1982). The initial inquiry as to whether the DOE offered a student FAPE begins with an IEP that accurately reflects a student’s present levels of performance and his or her needs. 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i). Based on this information, the IEP must include annual goals related to those needs. 34 C.F.R. § 300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii). Finally, the IEP must provide for the use of appropriate special education services to address the student’s needs and implement the recommended goals. 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v). Thereafter, the IEP must be implemented. 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.

For the following reasons, I find that the DOE has failed to meet its burden that it offered J.R. a FAPE for the 2011-2012 and 2012-2013 school years.

A. 2011-2012 School Year

The DOE argues that the parents claim for the 2011-2012 school year is timebarred. The IDEA provides that Claims raised within an impartial hearing request must be submitted within two (2) years of the date the parent or the DOE knew or should have known about the alleged action or actions which form the basis for the claim. See 20 U.S.C. §§ 1415(b)(6)(B), (f)(3)(C); N.Y. Educ. Law § 4404(1); 8 NYCRR § 200.5(j)(1)(i). This limitations period, however, “shall not apply to a parent if the parent was prevented from requesting the hearing due to: (i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or (ii) the local educational agency’s withholding of information from the parent that is required to be provided to the parent.” 20 U.S.C. § 1415(f)(3)(D); see also 8 NYCRR § 200.5(j)(1)(i).

The parent’s Demand was filed with the DOE August 22, 2013. See P-A at 7. A straight look-back sets the period of live controversy to include any allegations to have occurred on or after August 22, 2011. This includes the entirety of the 2011-2012 school year. I find that the parent’s claims that the DOE failed to identify . during this school year are properly before me.

In addition, the DOE declined to present any evidence or testimony to demonstrate FAPE was offered to the student during this period, or that the DOE had not observed any issues or actions which would have triggered its duty to conduct an initial evaluation of the student. Therefore, I must find that the DOE has failed to meet its burden for this school year.

B. 2012-2013 School Year

Here, the DOE conceded it failed to offer the student FAPE for the 2012-2013 school year. See Tr. 4.

C. 2013-2014 School Year

The DOE declined to present any evidence or testimony to demonstrate FAPE was offered to the student during this period. Therefore, I must find that the DOE has failed to meet its burden for this school year as a matter of law. To require the parent to present evidence or testimony showing the DOE’s failure to offer FAPE in its 2013-2014 IEP would be an impermissible shifting of burden from the local school district to the parent.

The parent described ’s progress and movement through the DOE system. Mrs. testified that started showing difficulties in school in elementary school and middle school. However, . began having a very difficult time stating in (or the 2011-2012 school year). See Tr. 71-75.

is currently . The student is still described as having academic trouble. For example, Mrs. testified that she has been told teachers that her daughter continues to have , nor was prepared to take the grade Regents Exams. Tr. 71, 75-77, 79-80.

Mrs. testified she observes , especially when . Tr. 81-82. Overall, I found to be a credible witness, and I accept her testimony.

The parent has argued that the DOE failed to conduct a social history . I can find none in evidence; neither party offered one for review. I am constrained to find that the DOE failed to prepare a social history.

REMEDY

A. Compensatory/Remedial Education

Within the Second Circuit, compensatory education has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation of the Individuals with Disabilities Education Act (IDEA) resulting in the denial of, or exclusion from, educational services for a substantial period of time. See Somoza v. New York C9ity Dep't of Educ., 2008 WL 3474735, at *1 (2d Cir. Aug. 14, 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]; but see Mr.

P. v. Newington Bd. of Educ., 2008 WL 4509089, at * 10 (2d. Cir. Oct. 9, 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).

State Review Officers also 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 a State Review Officer 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 a Child with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE); Application of the Bd. of Educ., Appeal No. 08-060; Application of the Bd. of Educ., Appeal No. 06-074.

Compensatory education is a form of equitable relief and not an example of legal damages, instead carefully tailored to extent and nature of the deprivation suffered by the student by want of his or her failure to receive an appropriate education from the public school district. See Reid v. District of Columbia, 401 F.3d 516, 43 IDELR 32 (D.C. Cir. 2005).

By way of relief, the parent seeks eight hundred fifty-five hours of individual academic remediation from testified on behalf of the student and to describe HLC. She stated she is the duties including oversight, instruction, testing and assessment, parent contact, and serving as a liaison to the public schools. She has for the past twelve years in a variety of positions, the last three of which as director. She testified that there are no ‘typical’ students its population including everything from gifted and talented to special needs students, from both public and private schools. Tr. 25-27. Overall, I find Ms. o be a credible witness.

All teachers certified in one area or another. Students and teachers are paired based on the teacher’s skillset and expertise in conjunction with the students’ needs. Tr. 28-29.

conducted a series of diagnostic tests to -current level of functional. See P-K, Tr. 30. S.B. was administered the Slosson Oral Reading Test wherein she scored at what amounts roughly to a third grade equivalency. See P-K at 1, 13; Tr. 33-38. For reading comprehension was administered an informal reading inventory requiring reading a passage aloud, then answering oral questions. On the , she only question correct, and grade passage, then twenty percent correct ; Tr. 38-42.

The California Achievement Test was similarly administered which assesses silent reading. Her results indicate a seventh grade reading level. She was able to correctly pick-out answers from multiple-choice than when she is expected to answer open-ended questions. , mixed many varieties of word problems. Id; Tr. 42- 45.

Math functioning was similarly was successfully able to complete sections at the fourth grade level, including fractions-concepts, with the remainder of her abilities equivalent to third grade functioning. See P-K at 2-3; tr. 50-54.

a writing active skills. See P-K at 19-20 . expectations, instead performing something possibly consistent with essay, , and verb agreement. Tr. 45-49.

Following the diagnostic testing develops a program map. See P-K at 4; Tr. 55. Ms. testified that the program map is an estimate of how many sessions it may take to remediate a student’s deficits. After every seventy-five hours of instruction, performs interim testing in order to document the student’s progress through the program. The hours recommended in the program map can be implemented at a rate of approximately ten hours per week while school is in session, with more being offered during vacations and over the summer. This can add up to 500-600 hours in a single year with diligent use. Tr. 55-59.

Here, the DOE failed to identify a student with a disability for the entire period of the statute of limitations, the maximum length of time I am permitted to consider under the facts presented in this case. Furthermore and inasmuch as the DOE failed to present evidence or testimony defending the present school year, I am constrained to find a failure to offer FAPE for the entire two years contemplated by the parent’s demand, as well as ongoing during the pendency of this action.

The period of harm properly harm being properly identified, I struggle to identify the student’s deficits requiring remedy. With no materials or arguments submitted by the DOE, I must rely on the only item offered in evidence: here the diagnostic materials and program map . In reviewing the diagnostic materials created the student’s results therein, I find that the recommendations tailored to the student’s unique needs and deficits. I further find that the program map proposed for the student offers an appropriate remedy tailored to meet the FAPE deprivations endured by the student.

The parent seeks no expiration time academic tutoring hours. The student is in the during the present school year. No testimony offered at the hearing suggested is in likely to require special education services past graduation or up until age twenty-one. My concern is making an equitable award that continues for many years past her anticipated graduation and past her turning eighteen. While the DOE’s failure to identify was certainly long-standing, I do not find support in the record for the prospect this student will require remediation to rectify the DOE’s failure for years and years.

materials describe that the student plan it develops is to bring the student’ functioning up to grade level. See P-K at 4. While laudable, this goal is not tied expressly to the DOE’s failure to provide program map answers a larger question as to what instruction may bring a child’s abilities to grade level. I find that, in light of the student’s functioning as described in the Evaluation as well as the student’s performance on her report cards, that any access to academic remediation must be limited to two years following the issuance of this decision or upon receipt of a Regents Diploma by the student, whichever shall occur first. I further note that at an expected annual rate of completion of 500-66 hours of instruction, the student should be able to complete the sought-after hours in the time period allotted.

The parent has also sought the DOE to provide a metro card for transportation to and . I find no support in the record requiring this relief.

Now, therefore, it is hereby

ORDERED that a district-level CSE shall convene no later than thirty (30) days from the issuance of this decision to develop an appropriate IEP for the student, addressing both the remainder of the 2013-2014 school year as well as the upcoming school year, if it has not already done so, and shall expressly consider the assessment and report prepared ; and it is further

ORDERED that the DOE will conduct within twenty-five (25) days of the issuance of this decision a social history for the Student; and it is further

ORDERED that the student shall be entitled to receive remedial or compensatory services from the DOE of the type and nature of not more than eight hundred fifty-five

(855) hours direct instruction and/or academic tutoring of the type offered Corp d/b/a , access to which shall expire two years following the issuance of this decision or upon receipt of a Regents Diploma by the student, whichever shall occur first; and it is further

ORDERED that the DOE shall directly fund a tutoring at Corp d/b/a a rate not to exceed ninety-five ($95) an hour, b) .’s registration fee at Corp d/b/a in an amount not to exceed $295.00, and c) testing fee in an amount not to exceed $100.00; and it is further

ORDERED that the remainder of the parent’s claim is dismissed with prejudice.

Dated: April 8, 2014

Timothy Mahoney mv

TIMOTHY M. MAHONEY, ESQ.

Impartial Hearing Officer TM;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 THE RECORD

PARENT

A Impartial Hearing Demand 8/21/2013 7 pgs. B Report Card 6/22/2011 1 pg. C Report Card 3/28/2012 3 pgs. D Report Card 3/28/2012 1 pg. E School Transcript 4/11/2013 1 pg. F Report Card 5/14/2013 1 pg. G Report Card 1/29/2013 1 pg. H Parent Letter 4/11/2013 1 pg. I Initial 5/10/2013 3 pgs. J Initial IEP 5/24/2013 12 pgs. K 6/19/2013 57 pgs.