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: December 11, 2013

February 28, 2014

Actual Record Closed Date: March 25, 2014

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 11, 2013

Advocate — Parents

(via telephone)

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 28, 2014

Advocate — Parents

Intern — Parents

Mother — Parents

CSE 7- Representative — DOE

On December 11, 2013 and February 28, 2014, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) 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 of XXX (“the student”).

The parents assert that the DOE failed to implement the student’s April 11, 2013 IEP because it refused to issue necessary to enable the student to receive services mandated by that IEP although she is enrolled in the placement recommended by the CSE and various mandated services are not available there. The parent seeks issuance of to implement the IEP as well as a bank of make-up services as compensation for services not delivered as required. (Ex. A)

Procedural History

The proceeding was initiated at the request of the parent by correspondence dated December 4, 2013. (Ex. A). I was appointed Impartial Hearing Officer on December 4, 2013. I was available to conduct a hearing within 14 days of appointment.

An order regarding the student’s pendency entitlements was requested by the parents and a hearing with regard to that was held on December 11, 2013. On December 12, 2013, an interim order on pendency was issued and provided during the pendency of the hearing and based upon the IEP dated April 11, 2013, the following:

At a telephone conference with the parties conducted on December 14, 2013, after the conclusion of the resolution period, the initial hearing was scheduled for February 28, 2014, the first mutually available date for the parties, their witnesses and the hearing officer. (Ex. I)

At the February 28, 2014 hearing, the parents amended the complaint, with the consent of the DOE, to increase the time period for the

The parties moved to extend the compliance date various occasions in light of anticipated testimony, the scheduling of witnesses and 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 my written decisions were provided to the parties. (T. 63-64, Exs. I, II)

The current compliance date is April 23, 2014. The record closed on March 25, 2014, upon my receipt of the final transcript.

Background and Positions of the Parties 1

This matter concerns services related services mandated for the student. The student, . The April 2013 IEP notes

Cases Presented

Lists of documents in evidence are appended. The DOE presented no witnesses. The parents presented the testimony of the student’s mother (“the parent”).

The parent testified that:

Findings of Fact and Conclusions of Law

I find the parent’s testimony credible and note that it has not been contested. The evidence shows that the DOE without notice to the parents and without any change of IEP or updated refused to issue or otherwise arrange for the financing of services mandated by the CSE as necessary to address this student’s substantial needs. There has been no claim that this was due to inadvertence or lack of knowledge and in view of the parent’s testimony that this was repeatedly brought to the district’s attention and ignored that claim would not be credible, Accordingly, I conclude that the denial was deliberate and that the DOE knowingly, wilfully and without justification withheld mandated services from this student. I also note the parent’s credible testimony that she was informed by other parents that the refusal to issue was pursuant a broader district policy. I note that that claim has not been uncontested.

Compounding the actual denial of access to mandated services was DOE’s failure to inform the parents promptly, despite repeated inquiries, of the situation. I conclude that failure was deliberate. As a consequence, I find that the parents were delayed in their implementation of the impartial hearing process to obtain the student’s entitlements and a timely continuation of services in the interim by way of a pendency order. The evidence shows that by the time the parents obtained the pendency order, the previous providers were no longer available and that it was not possible to fully implement the pendency order by the time of the hearing.

In addition to an order requiring implementation of the IEP, the parents seek compensatory 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

In the instant matter, the evidence establishes a denial of a FAPE. I conclude, in the circumstances here, that there was a gross violation of the IDEA and that the period of violation was substantial in view of this student’s needs. However, I note that it is not required that the denial be gross when occurring as here during the age range of student eligibility. See, e.g., Appeal No. 13-048, Appeal No. 12-235, Appeal No. 12-209.

Factual specifications herein are Findings of Fact

The evidence shows that the parents acted at all times cooperatively with the CSE and were appropriately prompt in seeking relief. In contrast, as discussed above, the DOE deliberately failed to implement the IEP and knowingly delayed informing the parents to the student’s detriment. Consideration of the equities with regard to conduct supports the parents. Indeed, in the instant matter the DOE does not dispute entitlement to a bank of compensatory services but disputes only the amount claimed.

The parents seek a bank of compensatory services equivalent to the number mandated by the CSE but not delivered as a consequence of the failure to implement the student’s IEP to be utilized over a period of three years at the parents’ option.

The DOE suggests that the amount requested is not necessary to address regression that may have resulted from its actions. Further, it asserts that the resulting student program would be excessive for the student in view of an already rigorous program which provides some related services. (T. 21)

However, the parent credibly testified as to demonstrated and substantial regression, no new have been conducted by the DOE and there has been no evidence presented contesting that testimony. Further, I note that there is no evidence indicating that the regression claimed is unlikely in view of this student’s needs as reported by the CSE. I note that she received whatever from July 1, 2013 until the second week of January 2014 and that she had received only 50% of the mandated through the last hearing date.

Accordingly, the parents have demonstrated entitlement to the equitable relief sought.

ORDER

1. The DOE shall immediately issue , for the period from the issuance of this order until a superseding IEP has been issued Dated: March 31, 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

1 IEP with signed attend. pg. & FBA, 6/12/12, 19 pgs. Department of Education

2 IEP with signed attendance page, 4/11/13, 20 pgs. Department of Education

A Impartial Hearing Request, 12/4/13, 12 pgs. Parents

B IEP, 4/11/13, 14 pgs. Parents

C IEP, 6/12/12/11 pgs. Parents

I Prehearing Conference Memo Impartial Hearing Officer

II Compliance Date Extension Decisions Impartial Hearing Officer

III Interim Order on Pendency, 12/12/13 Impartial Hearing Officer