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: January 13, 2014

February 3, 2014

Actual Record Closed Date: March 1, 2014

Hearing Officer: Timothy Mahoney, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 13, 2014

Administrator of — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 3, 2014

Administrator of Special Education — DOE

On December 18, 2013 and following the 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 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 2012-2013 school years.

BACKGROUND

This case was initiated as a result of a demand for due process (“Demand,” see IHO-I) filed by the student’s Parent and received by the Department of Education’s Impartial Hearing Office (DOE-IHO) on or about October 10, 2013, and identified as

Testimony was taken January 13 and February 3, 2014. The DOE presented the testimony of and the parent testified on behalf of the student.

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 " 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 that is 'likely to produce progress, not ,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" Walczak, 142 F.3d at 130. The 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 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 decision-making 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 . 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 developed by its Committee on 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 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 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 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 must be implemented. 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.

In this instance, the parent argued that the should have recommended summer services for for the 2013-2014 school year. A "shall include" 12-month services in a student’s recommendations who meet the eligibility requirements.^[8] NYCRR 200.4(d)(2)(x); see also 34 C.F.R. § 300.106(a)(1) and (2)(requiring districts to "ensure that extended school year services are available as necessary to provide FAPE," and further requiring that extended school year services "must be provided" to a student if the determines "that the services are necessary for the provision of a FAPE"]. To determine eligibility, State regulations require that students "shall be considered for 12-month and/or programs in accordance with their need to prevent substantial , if they are:" students who are not in programs as described in subparagraphs (i)

through (iv) of this paragraph during the period of September through June and who, because of their exhibit the need for a 12-month special service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial as determined by the committee on. there was no discussion by the committee of during the school year during winter breaks, or whether there was there any discussion as to whether required

Mrs. Soriente testified that she advised mother to discuss She further testified that it was opinion that I find here that the failed to consider whether was entitled I further find that the was on sufficient notice of the student’s demonstrated during school breaks over the regular school year, and was required to consider such services as directed by the IDEIA and the Commissioner’s Regulations. I find that the failed to consider the proper standard as to whether the student was entitled to summer services, and must reconvene and discuss the appropriateness of such a recommendation.

REMEDY

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 City 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 reimbursement for sessions attended from September 3, 2013 through at least the final day of the hearing. See IHO-I; P-B.

described the student as attending. attends two sessions, four days a week, focusing on There is no communication between ’s tutor and the public school placement. Tr. 65-66.

At the outset, I find mother to be a credible witness. I find no reason to discount her testimony, which appears wholly consistent with the documentary evidence. Furthermore, I find that the description of services appear to address ’s issues regarding ,

At the outset, I take judicial notice that consist of eight weeks of instructions. The purpose of is to address a student’s expect of skills during times when school is not in session. While it is a net-positive that is making such marked progress in his I do not find an ongoing justification for the services of the nature described at hearing beyond that which was required to alleviate the DOE’s failure to offer summer programming. Therefore, I am unable to make an unlimited and ongoing award of reimbursement for the parent’s expenditures for services.

I find no testimony or evidence to suggest what correspondence there may be between individual and any potential services the DOE should have offered to the student over the summer. Nor am I convinced that such a correspondence or equation exists. My concern is that the ’s propensity to regress was already known, and any that summer services should have alleviated had likely already occurred. For the purpose of this remedy and absent evidence to the contrary, I find that four sessions of , or six hours of instruction, is equivalent to one day of school instruction. Therefore I find that the parent is entitled to be reimbursed for of services.

The record reflects that the parent incurred a cost of, excepting December and January which, due to school vacations, incurred costs of. See P-B. Therefore, I find that the parent is entitled to be reimbursed for the first four months of services,

Now, therefore, it is hereby

ORDERED that the DOE shall reimburse the parent her costs expended securing services for the student from, from September 2013 through and including December 2013, in a form acceptable to the DOE; and it is further

ORDERED that the Committee on is directed to convene within fifteen (15) days from the issuance of this decision to expressly consider whether the student continues to exhibit the likelihood of substantial and to determine whether the student is entitled to summer services; and it is further

ORDERED that the remainder of the parent’s claim is dismissed with prejudice. Dated: May 5, 2014

Timothy Mahoney mv

TIMOTHY M. MAHONEY, ESQ.

Impartial Hearing Officer

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 11/21/2013 15 pgs. B 1/16/2014 1 pg.

DEPARTMENT OF EDUCATION

1 and Attendance Page 5/12/2012 15 pgs.

2 March 2013 14 pgs.

IMPARTIAL HEARING OFFICER

I Demand for Due Process 10/10/2013 1 pg. II Demand for Due Process 9/11/2013 1 pg. III Resolution Session Agreement 11/1/2013 2 pgs.

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Footnotes

[8] NYCRR 200.6(k)(1), (k)(1)(v). Substantial is defined as "a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain goals and objectives mastered at the end of the previous school year." 8 NYCRR 200.1(aaa); see 34 CFR 300.106; see also Application of a Child with a Disability, Appeal No. 12-209. Angela Soriente testified on behalf of the DOE. Mrs. Soriente is employed as both a special education and general education teacher. Tr. 11-12. For the year in question, she served as special education teacher in Mrs. Soreiente also testified that she served as the District Representative during the meeting of the May 12, 2012 for the 2012-2013 school year. See D-1. She testified