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 5, 2013

December 16, 2013

January 28, 2014

Actual Record Closed Date: March 3, 2014

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 12/05/13 12/16/13 01/28/14 Attorney PARENT 12/05/13 12/16/13 01/28/14 Advocate PARENT 12/16/13 01/28/14

Father PARENT 12/16/13 01/28/14

Dr. (T) EBL Coaching PARENT 01/28/14

On October 8, 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, regarding a dispute between the Parent of an ( Department of Education (“DOE”) - District concerning that student’s special education program. The impartial hearing was held on December 5, 2013, December 16, 2013 and January 28, 2014. Adjournments were granted on consent of the parties or for good cause. A list of the witnesses testifying and documents received into evidence are attached to this decision.

BACKGROUND

The Parent’s Due Process Complaint (“DPC”) alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2011-2012 school years. The student has not progressed under his Individualized Education Program (“IEP”) dated December 19, 2011 or January 11, 2013. Accordingly, the Parent seeks the following at the impartial hearing:

(a) receive compensatory services in the form of 360 hours of one-to-one multisensory tutoring at a rate of $110 per hour by upon submission of monthly invoices to the DOE to redress the DOE's failure to provide the student with a FAPE during the 2011-2012 and 2012-2013 school years and pursuant to the student’s private evaluation recommending 360 hours of tutoring services in order to address his educational needs; and

(b) an order that the DOE to provide additional one-to-one tutoring at EBL Coaching as warranted by the evidence for the failure to provide the student with a FAPE during the litigation of this matter; and

(c) any other relief the IHO deems appropriate under the law.

THE DOE’S CASE

The DOE did not make an opening statement and did not call any witnesses to testify on its behalf. (T-28) The DOE submitted (3) documents in evidence. The DOE also did not make a closing statement. (100)

THE PARENT’S CASE

The Parent argues that the student is diagnosed and various (T-29) For the past two school years, the student has level at the . (T-30) The student has remained in a class with the same related services . (Id.) Accordingly, the student has been denied a FAPE for the 2011-2012 and 2012-2013 school year. (Id.) Accordingly compensatory or make-up services are proper in this case.

The Parent called two witnesses to testify and submitted (10) documents in evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the Parent is included in the decision below.

FINDINGS OF FACT & CONCLUSIONS OF LAW

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) A parent who changes the current educational placement of their child during the pendency of proceedings to review a challenged proposed IEP does not constitute a waiver of then parents’ right to reimbursement for expenses of the private placement. But if the courts ultimately determine that the proposed IEP was appropriate, the parents are barred from obtaining reimbursement for any interim placement period. (Id.)

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 Board of Education are inadequate or inappropriate; (2) the services selected by the parent are appropriate; and (3) equitable considerations support the parent's claim. 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. 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)

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." (Id. citing, Cerra v. Pawling Cent. Sch,. Dist., 427 F.3d 186 at 195) The IEP must be likely to provide some "meaningful" benefit. (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).

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. (See 8 NYCRR 200.5[j][5][v]) Additionally, under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016)

The DOE submitted only three documents in evidence which in their sum total do not even come close to establishing that the agency offered the student a FAPE for the 2011-2012 and 20122013 school years. (D-1, D-2 & D-4) There was no testimony offered by the agency to support or expand upon these documents. The agency did not even cross examine the Parent’s witnesses. (T72 & 98) Accordingly, the DOE has not met its burden in this case and I find that the agency denied the student a FAPE for those years.

As a remedy, the Parent requests 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 the instant case, the outside services the student was mandated to receive in September of 2005 as the result of her June, 2005 IEP, remained unfulfilled until January of 2006. (T83)

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.

In the case at bar, there is no substantial evidence that the student has been “denied” or “excluded” from any educational services. However, the father did testify that the student was not receiving . (T-43) The gravamen of the student’s father’s complaint is that the . (T-45, 51 & 66) The student’s father did testify that the student does better with one-on-one instruction. (T-35 & 46-7) According to the father, even the DOE acknowledged that the student needs to be taught on a basis. (T-60) The student also . (T-61) However, the father also said that no evaluator has ever recommended the student for one-on-one services. (T-73)

The proposed private tutor assessed the student in September of 2013. (T-82) Her organization specializes in providing . (T-85) They also provide instruction. (T-

87) The witness reviewed the student’s IEPs from 2010, 2011 and 2013 and found that the student had a of and also a disorder. (T-88) She gave the student the “Wide Range Achievement Test”, the “Test of Written Language” and the Qualitative Reading Inventory” test and found the student his expected levels for his grade. (T-89) The student’s Evaluation showed that the student tested at grade level. (T-91)

The witness recommended that the student receive a combination of the to develop his fundamental reading and spelling, multisensory strategies to develop his math and writing skills and receive an average of five hours per week of tutoring over a two year time period totaling approximately (360) hours of instruction. (T-92) All of their instruction is done on a one-on-one basis. (T-95) The recommendation in this case is not the typical recommendation at her organization. (Id.) Their rate of $110.00 per hour is strictly just for one-on-one instruction time. (T-96) They do not charge to assess students. (T-97)

Generally, a Parent need only demonstrate that the proposed placement (here services) provides educational instruction specially designed to meet the unique needs of the student necessary to permit him to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65). In this case, absent any rebuttal or evidence to the contrary from the DOE, I find that it does. There are no equitable considerations that would bar an award on behalf of the Parent.

NOW therefore, it is hereby

ORDERED that the DOE shall reimburse the Parents for the costs of the student’s receipt of one-on-one tutoring at the ”, for (360) hours to be compensated at the rate of $110.00 per hour, upon receipt of reasonably satisfactory proof of the student’s receipt of those services; and it is further

ORDERED that DOE shall immediately comprehensively re-evaluate the student in all areas of his suspected disability reasonably believed to affect his education; and it is further

ORDERED that the CSE shall immediately reconvene upon completion of the student’s revaluations and produce a new IEP for the student. Dated: March 18, 2014

_____________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer EDL:gc

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

Number/Letter Title Dated For # of Pages

01 Classroom Observation 10/07/13 DOE 01

02 Occupational Therapy Report 10/15/13 DOE 03

03 (withdrawn)

04 Student Progress Report 08/17/11 DOE 02

A Impartial Hearing Request 10/08/13 PARENT 03

B Resolution Agreement 10/31/13 PARENT 02

C IEP 12/19/11 PARENT 18

D IEP 01/11/13 PARENT 14

E Report 05/24/13 PARENT 01

F Letter from Dr. 09/27/13 PARENT 01

G Report 06/30/13 PARENT 14

H IEP 12/23/10 PARENT 13

I First Progress Report 10/31/13 PARENT 01

J Report to Families 2011-2012 PARENT 02

01 Stipulation of Law & Facts 12/13/13 IHO 02