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: Parents

Dates of Hearing: October 2, 2013

January 21, 2014

May 12, 2014

Actual Record Closed Date: May 28, 2014

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 2, 2013

Advocate — Parents

CSE DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 21, 2014

Advocate — Parents

Mother — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 12, 2014

Advocate — Parents

Mother — Parents

Father — Parents

District Representative — DOE

On October 2, 2013, January 21, 2014, and Mary 12, 2013, I conducted an Impartial Hearing at the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

Procedural History

The proceeding was initiated at the request of the parents by correspondence dated September 13, 2013. (Ex. A) I was appointed Impartial Hearing Officer on September 24, 2013, after the recusal of one or more impartial hearing officers. I was available to conduct a hearing within 14 days of appointment. The resolution phase of this matter ended on September 30, 2013. A hearing with regard to the student’s pendency entitlements was held on October 2, 2013 and a hearing was scheduled for October 25, 2013 (T. 3-5)

An Interim Order on Pendency was issued on October 3, 2013, and, based upon the student’s October 16, 2012 IEP, provided the following during the pendency of this matter:

1) Placement at EDEN II, a non public school approved by the State Education Department as a school with which a district may contract for the provision of special education services, in an full time day program, five days per week;

2) SETSS (1:1) five times per week for 60 minutes, at the enhanced rate of $95 per hour, through issuance of a letter of authorization (P-4);

3) Therapy- 6 30 minute sessions per week (individual) in a separate location with 2 sessions to be provided by the school and 4 sessions to be provided outside school by issuance of an RSA at the approved rate;

4) Therapy- 1 30 minute session per week (group of 2) in a separate location to be provided by the school;

5) Therapy- 1x60 minute session per week (individual) in a separate location to be provided by the school;

6) Therapy- 1 60 minute session per week (individual) to be provided outside the school by issuance of an RSA at the approved rate;

7) Therapy- 5 30 minute sessions per week (individual) to be provided outside the school by issuance of an RSA at the approved rate;

8) - 5 30 minute sessions per week in a separate location to be provided by the school;

9) Transportation in an air conditioned vehicle with Limited Time Travel of not more than 60 minutes. (Exs. B, III)

The October 25, 2013 hearing was adjourned at the request of the DOE with no objection by the parent. (Ex. IV) A telephone conference with the parties for the purpose of further scheduling was rescheduled to November 1, 2013, in expectation of the filing an amended hearing based upon the DOE’s initial claim that an IEP, previously in draft, had been finalized. (T. 6-8, Ex. I) That claim was made in error. (T. 23 Ex. I) On November 1, 2013, a hearing was scheduled for January 21, 2014, the first mutually available date for the parties, their witnesses and the hearing officer. ( Ex. I)

The parents appeared at the January 21, 2014 hearing but the district did not. After various unsuccessful efforts to obtain the appearance of the district, the DOE was declared in default. Although ready to go forward, the parents requested adjournment to obtain further information regarding the district’s claim, made during efforts to obtain its appearance, that it submitted the matter for settlement. (T. 20-22, 29-30) A hearing was scheduled for March 17, 2014. (T. 24) That hearing was adjourned at the request of the parents due to a medical emergency. (Ex. IV) The hearing was rescheduled to May 12, 2014. (T. 30) The last business day prior to the hearing the district requested an adjournment due to a settlement proposal. (T. 31) That adjournment was denied. (T. 31-

33) At the hearing, the parents’ advocate stated that had attempted to verify the possibility of settlement with the relevant DOE office but had been unsuccessful. (T. 3233)

Subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and the submission of evidence and closing arguments. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and written decisions were provided to the parties. (T. 23-25, 66, Ex. II)

The current compliance date is June 12, 2014. The record closed on May 28, 2014, upon my receipt of the final transcript.

Positions of the Parties

The parents assert the following: The last IEP for this student was developed on October 16, 2012 and that although a subsequent meeting to develop an IEP for the 20132014 school year was held, an IEP resulting from that meeting was not finalized and issued. The student had been receiving certain afterschool services in addition to a placement at Eden II, an NPS, pursuant to the October 16, 2012 IEP and that since July 1, 2013, the DOE has provided after school services only as required pursuant to the pendency order in this matter. The parents assert that no evaluations subsequent October 16, 2012 have been conducted, that no rationale for the denial of services has been provided to the parents and that the student continues to at the same level as previously. The parents claim that the DOE has failed to implement the 2012-2013 IEP as required and has not provided a FAPE for the 2013-2014 school year. They seek continuation of the services through the 2013-2014 school year as well as compensatory educational services in the form of a “bank” of services constituting the services the student was entitled to prior to the issuance of pendency order but which were not provided which could be used over a two year period. (T. 34-35, 36-38, 39)

The DOE does not dispute the parents’ claims that no IEP was issued subsequent to the October 16, 2012 IEP and does not dispute that services were not provided as claimed. Further, it does not object to the continuation of services through the 2013-2014 school year as previously provided, which includes an enhanced rate for SETTS services. Further, it does not object to a “bank” for services but does object to a two year effective period for that. (T. 36-42, 50, 51, 54)

Findings of Fact and Conclusions of Law

The student’s father testified that the student attended Eden II, a non-public school approved by the New York State Educations Department as a school with which the district may contract for the delivery of special education services. (T. 46-47) The student received various services afterschool pursuant to the October 16, 2012 and he continued to need those services through the 2013-2014 school year. (T. 46-47) The parents were informed of no evaluations since the October 12, 2012 school year. (T. 47) The student did not receive services from July 1, 2013 until services were provided pursuant to the pendency order. (T. 47-49) In that period, he regressed significantly in a variety of areas. (T. 48-49)

The student’s mother testified that although RSAs for the related services at issue were provided for the Summer 2013, the parents could not utilize them because she was thereafter informed by designated CSE staff that the RSAs were “cancelled.” (T. 64, Exs. D, F. H)

I find the foregoing credible and note that it has not been contested by the DOE which is not disputing the student’s entitlement to the afterschool services claimed and to provision of compensatory services equivalent to those missed. The sole DOE objection is to the period of time provided for the utilization of those services.

It is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir. 2008) Further, “[i]f the student has become ineligible for special education by reason of age or graduation, compensatory education has been 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 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 [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]).” Appeal No. 11-027 “…[C]ompensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).” Appeal No. 11-027.

I find that the parents request for a period of two years to access the services the student missed is not unreasonable. It will provide necessary flexibility for the parents, take into account the difficulty in obtaining providers at various times and ensure the ability to utilize the services in a manner consistent with the needs of the student. The DOE has asserted no hardship to it nor has it asserted a basis for a denial of the parents’ request. Further, I note in this matter that the DOE has provided no explanation for its knowing and willful refusal to comply with the mandates of the CSE which refusal, the evidence shows, deprived the student of a FAPE and resulted in regression. Equitable considerations strongly favor the parents in this matter.

Order

The student was entitled to receive the following after school services during the period from July 1, 2013 through June 30, 2014:

1) SETSS (1:1) five times per week for 60 minutes, at the enhanced rate of

$95 per hour, through issuance of a letter of authorization (P-4);

2) Therapy- 4 30 minute sessions per week (individual) in a to be provided outside school by issuance of an RSA at the approved rate;

3) - 1 60 minute session per week (individual) to be provided outside the school by issuance of an RSA at the approved rate;

4) - 5 30 minute sessions per week (individual) to be provided outside the school by issuance of an RSA at the approved rate.

The DOE shall immediately issue authorizations to provide the above services for balance of the 2013-2014 school year.

The DOE shall immediately issue authorizations for the above services to which the student was entitled for the period from July 1, 2013 through October 2, 2013 (12 month school year). The authorizations shall enable the services to be utilized though June 30, 2016 and at the sole discretion of the parents. Dated: June 9, 2014

Judith Schneider mv

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENTS ENTERED INTO THE RECORD

A Impartial Hearing Request, 9/13/13, 8 pgs. Parents

B IEP, 10/16/12, 12 pgs. Parents

C FNR, 11/27/12, 1 pg. Parents

D RSAs proposed for 2013-2014 Summer SL, 2 pgs. Parents

E OMITTED

F RSAs proposed for 2013-2014 Summer OT, 2 pgs. Parents

G OMITTED

H SETSS Authorization (P-4), 7/1/13, 1 pg. Parents

I RSAs 2012-2013, issued 3/4/13, SL, 4 pgs. Parents

J OMITTED

K RSAs 2012-2013, issued 4/23/13, 4 pgs. Parents

L OMITTED

M RSA 2012-2013, issued 10/22/12, 2 pgs. Parents

N RSA 2012-2013, PT, 2 pgs. Parents

I Prehearing Conference Memo Impartial Hearing Officer

II Compliance Date Extension Decisions Impartial Hearing Officer

III Interim Pendency Order, 10/13/13 Impartial Hearing Officer

IV Emails re adjournments Impartial Hearing Officer