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: December 03, 2013

January 02, 2014

Actual Record Closed Date: January 16, 2014

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 03, 2013

Attorney — Parents

Grandmother — Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 02, 2014

Attorney — Parents

Mother — Parents

Evaluator — Parents

District Representative — DOE

On October 2, 2013, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law and Part 200 of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parent of old student attending a public school and the New York City Department of Education (“DOE”) - Home District: , Service District: , regarding the student’s special education program.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) made by the student’s Parent through her attorney(s), the , P.C. and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about September 30, 2013. The DPC is carried under New York City (“NYC”) Case No. . A hearing was held on the same on December 3, 2013 and January 2, 2014. A list of the witnesses appearing at the hearing and the documents received in evidence is attached.

On December 8, 2013, the following Interim Order was issued in this case:

ORDERED that pursuant to 8 NYCRR § 200.5(g)(iv), the parent may obtain an independent neuro-psychological evaluation by Dr. the costs of which are to be paid by the DOE upon the agency’s receipt of reasonably satisfactory proof of said services having been rendered; and it is further

ORDERED on CONSENT that the DOE shall conduct a Functional Behavior Assessment (“FBA”) of the student; and it is further

ORDERED on CONSENT that the Parent shall be provided with access to the student’s education records ass provided for under law; and it is further

ORDERED on CONSENT that the Committee on Special Education (“CSE”) shall forthwith reconvene upon its receipt of the student’s completed independent neuro-psychological evaluation, and consider the same and any other existing and relevant evaluations and reports for the student and immediately develop a new Individualized Educational Program (“IEP”) for the student.

THE DOE’S CASE

The DOE argues that it is awaiting the independent evaluation to reconvene and Individualized education Program (“IEP”) meeting. (T-20) The agency did not call any witnesses to testify on its behalf. (T-34)

THE PARENT’S CASE

The Parent argues that the student’s report card notes that he was getting below grade standards for class and school rules. (T-21) In September of 2012, the school psychologist wrote a report and a social history evaluation was conducted on October 12, 2012. (T-21-2) On October 24, 2013, the IEP team met without the student’s mother and denied classification to the student. (T-22) On February 12, 2013, the student’s mother received a Promotion in Doubt Letter. (T-23) On September 3, 2013, the student’s mother wrote a letter to the school requesting an independent educational evaluation. (T-24) The Parent alleges that by denying the student an IEP for the 2012-2013 school year, the student was denied a “free and appropriate public education” (“FAPE”). (T-26) At the hearing, the Parent requests the following relief:

(a) Reconvening of the Committee on Special Education (“CSE”) and creation of an IEP for the student.

(b) An order requiring the DOE to pay for, or reimburse the Parent for, the cost of an “independent educational evaluation” (“IEE”) conducted by Dr. Ph.D. a psychologist licensed by the State of New York, at the normal and customary rate charged by Dr. for such evaluations.

(c) The provision of additional “compensatory” or “make-up” services to remedy the failure to offer an appropriate program of special education and related services from school years 2012-2013, through the present, including instructional support.

(d) An order requiring the CSE, with the full participation of the Parent, the school psychologist and the Student's teachers and service providers, conduct a “Functional Behavioral Assessment” (“FBA”) and develop an appropriate “Behavior Intervention Plan” (“BIP”).

(e) An order requiring the CSE to consider the student's need for testing accommodations.

(f) An order requiring the DOE to provide to the Parent a complete set of the student's educational records.

(g) An order requiring the DOE to pay the Parent's attorney fees and costs in connection with representation in this matter.

(h) An order granting the Parent any further relief that the IHO may deem just and proper to ensure the provision of a FAPE to the Student.

The Parent called on witness to testify on her behalf who had evaluated the student. (T-36-7) She is a licensed psychologist who conducted a assessment of the student. (T-39-40) The cost of the evaluation is $3,500.00. (T-40-1)

The witness testified that the student’s is in the . (T-41) The student has very serious deficit in placing verbal information into long term storage. (Id.) His academic achievement functioning is in the low average to average. (T-42) The student’s reading fluency is about a year behind, his math fluency is about (8) months behind and his linguistic deficit is two years behind. (Id.) The student’s oral language skills were two years delayed and he had a significant articulation problem and oral motor problems that certainly warrant a . (T-44) She diagnosed with ”) and .” (Id.) The student needs an environment that is because of his (T-45) She does not recommend any specific methodology for the student. (Id.) However, the student needs a evaluation. (T-45-6) The witness testified that the student needs intensive individualized instruction in . (T46)

On cross examination, the witness testified that focuses on “ and then “achievement” and the adds various kinds of test that are related to learning memory. (T-47) She agreed that the give a better picture of the areas of weakness that a psychologist just doing a evaluation would be privy to. (Id.) “Intensive individual support” for the student would be one-to-one sessions and repetition of work. (T-48)

On re-direct examination, the witness testified that in reading, the student would need (2) to (3) hours per week in the first year and then would have to be re-evaluated. (T-52 & 56) For math he would need “one time a week” (i.e., one hour) for at least a year. (T-52-3 & 56) A “typical” recommendation would be (30) minute sessions twice a week. (T-53)

On re-cross examination, the witness testified that she is not a speech pathologist which is why the student needs a speech evaluation. (T-54 & 56)

During voir dire the witness testified that she did not use any formula to make her recommendations and neither are they based on the her experience with similarly situated students, because the student has a very unusual problem. (T-57)

FINDINGS OF FACT & DECISION

School authorities may be ordered to reimburse Parents for their expenditures on private special education for a child if it is ultimately determined that such placement, rather than a proposed IEP, is proper under the Education of the Handicapped Act. (“EHA” - later adopted by IDEA) Burlington School Comm. v. Mass. Dept. of Ed., 471 U.S. 359 (1985)

The legal standard applicable to a request of reimbursement for educational services, such as in this case, is well established. Reimbursement is granted if: (1) the services offered by the DOE are inadequate or inappropriate; (2) the services selected by the parent are appropriate; and (3) equitable considerations support the parent's claim. (See Florence County School District Four v. Carter, 510 U.S. 7 (1993) (“Carter”)) The DOE first bears, the burden of demonstrating the appropriateness of the program recommended by its CSE. (See Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; New York State Review Officer's Decision, Nos. 97-44; 92-7; 93-9) The DOE must establish that it appropriately ascertained the child's educational needs and prepared an IEP in accordance with the procedural and substantive requirements of Federal and State Regulations. (34 CFR 300.343-346; 8 NYCRR § 200.4 and 200.5)

In this case, the DOE did not submit an answer to the Parent’s DPC or a Prior Written Notice (“PWN”) pursuant to 22 NYCRR § 200.5. The submission of a PWN is required by

IDEA. In the absence of PWN, the Parent is denied the right to review the CSE’s rationale behind its recommendation and its case in chief is prejudiced. A PWN would have essentially constituted an “answer”, i.e., a defendant’s first pleading or response to a pleading that addresses the merits of the case and usually sets forth the defendant’s defenses and counterclaims. (See Black’s Law Dictionary, 7th Edition)

A prima facie showing is one which is sufficient to authorize a finding on the matter in issue unless contradicted or explained. (See Am. Jur. 2d Evidence § 166) In the instant case, the DOE did not answer the Parent’s DPC, nor provide a PWN when a change in educational placement was requested. If there is no evidence to contradict a prima facie case, it becomes conclusive and justifies a verdict. (Id.) Thus the Parent’s claims contained in his DPC, although “unsubstantiated”, may be ruled not only the showing of a prima facie case, but conclusive because the DOE has not answered or challenged the same.

Who has the burden of proof is determined by ascertaining which party, without evidence, would be compelled to submit to an adverse judgment on the pleadings before the introduction of any evidence. (See Pacific Portland Cement Co. v. Food Mach. & Chem. Corp., 178 F.2d 541 (9th Cir. 1949)) In the absence of any pleadings having been filed and served by the DOE and without further evidence, this Hearing Officer would have to render judgment against the DOE. It is noted that no challenge to the sufficiency of the Parent’s DPC/pleading has ever been raised by the DOE pursuant to 22 NYCRR § 200.5(i). Accordingly, the burden of production, i.e., going forward at this hearing was placed on the DOE.

The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement." (See Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 195) The IEP must be likely to provide some "meaningful" benefit. (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]). Thus, an appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. (SRO Nos.: 07-008, 06-076, 06-059, 06-029, 04-046, 02-014, 01-095 & 93-09).

The Parent’s DPC also request an award of compensatory services. It is well settled that compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. (See Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]) Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA. (See 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5])

In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 C.F.R. § 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; SRO No. 05-084 & 05-037), or until the conclusion of the school year in which he or she turns age 21. (See Educ. Law §§ 3202[1], 4401[1], 4402[5]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 C.F.R. § 300.102[a][1], [a][3][ii] & SRO No. 04-100)

Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. (See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [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] & SRO No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education])

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 Newington, 546 F.3d at 123 [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]"]; Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at *23 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see also R.C. v. Bd. of Educ., 2008 LEXIS 113149, at *38-40 [S.D.N.Y. March 6, 2008])

Likewise, State Review Officers 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. (See 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]; SRO No. 09-111 [adding summer reading instruction to an additional services award]; SRO No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; SRO No. 09-044 [awarding "make-up" counseling services to remedy the deprivation of such services]; SRO No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; SRO No. 08-072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE]; SRO No. 08-060 [upholding additional services awards of physical therapy and speech-language therapy]; SRO No. 08-035 [awarding ten months of home instruction services as compensatory services] and SRO Nos. 06-074, 05-041 & 04-054)

A gross violation of the IDEA may result from the denial of, or exclusion from, educational services for a substantial period of time. (See SRO Decision 04-074, citing Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990), Burr v. Ambach, 863 F.2d 1071 (2d Cir.

1988) and SRO Decision 02-047). In Burr, exclusion from educational services for a substantial period of time was defined as “almost two years.” (See SRO Decision 02-033 citing Burr) “…after a severely disabled student's school was closed, prolonged delays in the administrative proceedings in obtaining a new placement resulted in a complete exclusion from any educational placement for the student for almost two years.”

In SRO Decision 05-062, the State Review Officer did not find a gross violation of FAPE and held as follows:

….Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir.

1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988])….Here any deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction (Application of the Bd. of Educ., Appeal No. 04-016; Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 01-094). State Review Officers have awarded equitable relief in the form of additional educational 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 (Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No.

02-030). In general, the award of additional educational services, for a student who is still eligible for instruction, requires a finding that the student has been denied a FAPE (Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 02-047)….I will direct the CSE to reconvene and consider what additional services are necessary to compensate for respondent’s failure to provide petitioner’s son a FAPE.

Here, the uncontroverted record shows that the student’s is in the range and has a very . (T-41) His academic and his is about a year behind, with is about (8) months behind and two years behind. (T-42) The are also and he has a significant The student is diagnosed ” and needs an environment that is . (T-44-5) The student is said to need evaluation. (T-45-6)

The uncontroverted record also recommends , the student needs (2) to (3) hours per week for a year and then a re-evaluation. (T-52 & 56) For “one time a week” (i.e., one hour) for at least a year. (T-52-3 & 56)

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination. The decision shall reference the hearing record to support the findings of fact." (See 8 NYCRR 200.5[j][5][v]). Here, the DOE made no showing that it offered the student a FAPE which would negate consideration of the Parent’s proposed remedial services. Neither is the appropriateness of the Parent’s proposal controverted by the record before me. Finally, there is nothing in the record that sustains a finding that the Parent has not cooperated with the DOE. Indeed, the Parent shared the independent evaluation she obtained with the agency. (T-64) There is simply nothing on the record that indicates that the Parents did not cooperate with the DOE, or that they prevented the DOE from producing an IEP and making a recommendation that it believed was appropriate. Therefore, I find that equitable considerations do not bar an award on behalf of the Parent.

After the Interim Order above was issued, the only issues to be decided at the impartial hearing were what if any “testing accommodations” the student should receive and whether the student should receive “compensatory” services because he was denied a FAPE for the 2011-2012 and 2012-2013 school years. (T-14 & 35)

NOW therefore, it is hereby

ORDERED that the DOE shall pay the cost of the student’s receipt of (3) hours of reading tutoring per week for one year and (1) hour per week of math tutoring for a year; and it is further

ORDERED that the DOE shall immediately conduct a evaluation of the student; and it is further

ORDERED that the DOE will conduct whatever other evaluations it deems necessary for the student and immediately thereafter convene a CSE meeting to determine what if any services s the student requires in the 2014-2015 school year; and it is further

ORDERED that in the absence of a sufficient record before me indicating that the student requires “testing accommodations”, the Parent’s request for the same is denied at this time and is deferred for consideration by the CSE when it convenes after the student has been evaluated; and it is further

ORDERED that the Interim Order issued December 8, 2013 and referenced above is incorporated herein and made a part of this Final Decision; and it is further

ORDERED that the Parent shall be provided with access to all of the student’s educational records as permitted by law; and it id further

ORDERED that the Parent’s request for attorney’s fees is beyond the scoop of the IHO’s authority to award. Accordingly, the parent’s request for the same is denied at this time. Dated: January 31, 2014

_____________________________

EDGAR DE LEON , ESQ.

Impartial Hearing Officer EDL: gkw

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

DOE:

Number/Letter Title Dated For # of Pages

01 Evaluation 09/28/12 03

02 Classroom Observation 10/22/12 01

03 Teacher Reports 10/05/12 07

04 Present Levels of Performance 10/23/12 02

05 IEP Meeting Attendance Page 10/22/12 01

06 Ineligible for SE Services Letter 10/23/12 01

Parent:

A Impartial Hearing Request 09/30/13 06

B Requests for I.E.E. 09/03/13 02

C Promotion in Doubt Letter 02/12/13 01

D “Withdrawn” N/A N/A

E Ineligible for S.E. Services Letter 10/23/12 02

F Referral Letter 06/14/12 04

G Referral Letter 06/12/12 04

I Update 06/11/13 01

J “Withdrawn” N/A N/A

K Social History Evaluation 10/12/12 03

L “Withdrawn” N/A N/A

M Evaluation 07/24/12 02

N Classroom Observation 06/18/12 01

O Report to Families 1st Grade 02

P “Withdrawn” N/A N/A

Q Report Card for PARENT 02

R Progress Report 11/11 01

S Communication Book Pages 2012-2013 06

T Inside School Web Page 06/27/12 01

U Report Card 11/04/13 03

V Letter from Parent 10/14/13 01