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: February 7, 2014

Actual Record Closed Date: March 10, 2014

Hearing Officer: Elise B. Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 7, 2014

Esq. Attorney — Student

Director, Huntington Learning Center (via telephone) — Student

Parents

Parents

Impartial Hearing Representative — DOE

Impartial Hearing Representative — DOE

Teacher — DOE

Teacher — DOE

INTRODUCTION: — DOE

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by the Parent (“Parent”) on behalf of the student (“Student”), through their attorney, from the Law Offices of was represented at the hearing by . from the Law Offices of The Parent is alleging that his son, was denied a free and appropriate public education (“FAPE”) as a result of failing to reconvene a CSE meeting from November 13, 2011 to the conclusion of the 2011-12 school year, and failure to provide FAPE for the 2012-13 and 2013-14 school years and is seeking compensatory educational services as well as an appropriate IEP for the remainder of the 2013-14 school year.

There was one (1) day of hearing in this matter. The hearing was conducted on February 7, 2014.Briefs were due on March 4, 2014. Extensions were granted in this case making the final compliance date March 26, 2014.A list of Exhibits is attached as Exhibit

A. The Parents, the District, and the IHO submitted exhibits.

BACKGROUND

This case involved a old student. During the 2011-12, 2012-13, and the 2013-14 school years, J – .

For the 2011-12 school year, and was enrolled in The Parent filed an Impartial Hearing Request on November 13, 2013. D-1. I was appointed as an Impartial Hearing Officer on the same date.

POSITION OF THE PARTIES

Parents’ Case

The Parent called three (3) , the father and ) documents in evidence. P-A – P-V.

At the March 20, 2013 IEP meeting, the mother indicated that she was in attendance. At the meeting, the teacher stated that he needed a lot of District’s Case The District called two (2) witnesses, K documents into evidence. D-1 – D-9. It should be noted that the District stated in their opening statement that “the [District] is conceding FAPE and is not contesting the allegations contained within the Parent’s due process complaint.” However, the Parent’s attorney stated that “in the course of the hearing their will be evidence and testimony disputing the appropriateness of the relief requested by the [P]arent…”

FINDINGS

Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. 1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). 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][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516 , 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. Of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, 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]; see, Rowley, 458 U.S. at 189). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, 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’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). 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]; see, Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. Of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Childwith a , Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a , Appeal No. 04-046; Application of a Child with a , Appeal No. 02-014; Application of a Child with a , Appeal No. 01-095; Application of a Child Suspected of Having a , Appeal No.93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

The District is not contesting the Parent’s allegations that the District did not provide FAPE in accordance with the allegations in the due process complaint. D-1. In fact, the District has taken the position that compensatory education is an appropriate remedy for however, the Parties disagree on the nature of the compensatory education that should be provided and the number of hours necessary. IHO-I; IHO-II.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. (Wenger v. Canestota, 979 F. Supp. 147 [N.D.N.Y. 1997]). Compensatory education relief may be awarded to a student with a 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 FAPE (see P. v. Newington Bd. Of Educ., 546 F. 3d 111, 123 [2d Cir. 2008] [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 generally 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 (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 Student with a , Appeal No. 09-111 [adding summer reading instruction to an additional services award]; Application of the Bd. Of Educ., Appeal No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; Application of a Student with a , Appeal No. 09-044 [awarding “make-up” counseling services to remedy the deprivation of such services]; Application of a Student with a , Appeal No. 09-035 [ as compensation for a deprivation of a FAPE]; Application of a Student with a , 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 [upholding additional services awards of physical therapy and speech-language therapy]; Application of a Student with a , Appeal No. 08035 [awarding ten month of home instruction services as compensatory services];7Application of the Bd. of Educ., Appeal No. 06-074; Application of a Child with a , Appeal No. 05-041; Application of a Child with a , Appeal No. 04-054).

Based on the failure to . with FAPE for the school years alleged, . is entitled to compensatory educational services. The Parent has provided evidence regarding the . In November 2013, assessed . Ms.

The District did not provide any testimony at the hearing with respect to what compensatory services should be awarded to the Student, although they did state that compensatory services were required. Tr. 58.Specifically, in the District’s closing brief the District stated that “compensatory education is an appropriate remedy for [J however they didn’t agree with the type of services that were being offered, and/or, they argued that the request for compensatory services should be mitigated.

The District has taken the position that even though the District did not provide FAPE has made progress in during the 2012-13 and 2013-14 school years. The Parent, on the other hand, provided testimony indicating that the Student did not make progress and is in doubt of being promoted to the despite his modified promotional goals. IHOII, P-V. His report card for the first quarter of the 2013-14 school year indicates that all of his grades in his core

The District specifically stated that in accordance with Reid v. District of Columbia, 401F 3d 516, 524 (D.C. Cir. 2005), “The ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” IHO-I. The Parent stated in their brief that based upon the Reid v. District of Columbia case, the examination should focus on the child’s needs; “some students may require only short intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps over exceeding replacement of the time spent with FAPE.” Id. at 526. According to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct these deficits”. Id. at 526. Based on the evidence presented by at the hearing, they achievement levels in his identified his areas of need and developed program designed to correct these areas of need. IHO-II. No evidence was presented by the District to justify their calculation of compensatory services including their decision to disregard compensatory services

Since compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case, I

In this regard, upon submission of proof of payment, the Parents shall also be reimbursed $100 for the cost of the d and the registration fee of $295. The Student was not recommended to on his March 20, 2013 IEP (D-3) or May 31, 2012 IEP (D-4) IEPs. Accordingly, the child is not entitled to transportation costs to and from . Appeal No. 11-132.

In connection with the remainder of the 2013-14 school year, I hereby direct the District to convene the CSE to develop a new IEP . In this regard the Parent has stated in the Parent’s Closing Brief : “The Parents expect to have their privately –obtained completed by early May 2014 , and request that the reconvened CSE meeting take place after the report becomes available. In the interim, the [District] has agreed to add an program per week.” IHO-II. Accordingly, the CSE meeting shall be convened within by the Parents

ORDER

Based upon the foregoing, it is hereby

ORDERED,

(1) Dated: March 24, 2014

_______________________________

ELISE B. KESTENBAUM, ESQ.

Impartial Hearing Officer

EBK: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 THE RECORD

Parent Exhibits

No. Date Document Pages

A. 12/10/2009 3

B. 1/21/2010 1

C. 1/29/2010 4

D. 1/19/2010 1

E. 2/4/2010 IEP 5

F. 4/7/2010 5

G. VOID

H. 4/27/2010 Letter from Parents 1

I. 6/11//2010 IEP 12

J. 6/8/2011 IEP 13

K. 1/2/2013 1

L. 1/2/2013 Teacher Report 2

M. 2/27/2013 3

N. VOID

O. undated 2

P. undated 1

Q. undated 2013-14 2

R. 1/27/2014 - Summary 3

S. 1/9/2014 3

T. 1/18/2014 Letter from 1

U. undated for school

Year 2011-12 8

V. 2/6/2014 Promotion in Doubt Letter 1 District Exhibits No. Date Document Pages

1. 11/13/2013 Due Process Complaint 7

2. 11/18/2013 Due Process Response 3

3. 3/20/2013 IEP 15

4. 5/31/2012 IEP 17

5. 3/7/2013 Report 2

6. misc. dates 5

7. misc. dates 1

8. 1/15/2014 21

9. 11/9/2013 43

IHO Exhibits

I. 3/4/2014

II. 3/4/2014