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 3, 2014

Actual Record Closed Date: December 23, 2014

Hearing Officer: , Esq.

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

Attorney — Student

Mother — Student

Father — Student

(Via Telephone) — Student

IHRO Representative — DOE

PROCEDURAL BACKGROUND

This hearing was held pursuant to New York Education Law § 4404(1), 20 U.S.C. §1415(f), the Individuals With Disabilities Act (“IDEA”). In accordance with the Parents’ Request for the Hearing dated October 1, 2014, I was appointed to hear this matter. Timely extensions were given. The hearing took place on December 3, 2014.

The Parent was represented by counsel, the Department of Education, (“DOE”) presented its case through a District representative. The parent asserts that the student was denied appropriate services for the following school years: 2011-2012, 2012-2013 and 2013-2014. The parent submitted 21 exhibits, “A-U” and called 3 witnesses in support of her position. The following witnesses testified on behalf of the parent: the mother, the father and the Director of the . The DOE submitted 7 exhibits, (“2, 4, 6, 10, 11, 13, 14, 15”) to support its position that the student’s lack of progress is a result of the parent’s refusal to consent to a more restrictive setting for the student. (List of Exhibits annexed hereto as “Attachment A”). The DOE also asserts that the parent’s requested remedy of hours of is inappropriate.

FINDINGS OF FACT

The student is old and in the grade; he was in the grade for 20112012, 2012-2013 and 2013-2014 school years. He is currently classified as a student with a and is attending a class with a student to staff ratio of in ,a school. His current classification is not in dispute. Since the 2012-2013 school year, the Committee on Special Education, (“CSE”) has recommended that the student attend an in a class with a student to staff ratio of in a school with the related services of sessions of and sessions of . However, the parents disagreed with the recommendation for a school and the student remained in the class in

.

Review of the student’s evaluation dated 6/10/14 reveals the student has deficits. The evaluator recommended that a evaluation and a bilingual evaluation be performed. Additionally, the evaluator recommended classroom, continued setting of as well as or , or program. (Ex O)

The sole issue for consideration is whether the parent's requested remedy of "additional services" in the form of hours of individualized instruction from the is appropriate to remedy the district's denial of a FAPE for the 2011-2012, 2012-2013 and 2013-2014 school years.

The student attended a public school placement for the 2011-2012, 2012-2013 and 2013-2014 school years. The parent testified that she disagreed with the public school placement and requested additional services to address the student’s delays. (TR 24) For the 2012-2013 and 2013-2014 school years, the CSE recommended that the student attend an in a school in a class. No other modifications were made to the student’s IEP. (Ex 14, Ex G) The parent visited the recommended school, but did not find it appropriate and thus, did not consent to the change of placement. (TR 82) Apparently, the DOE acquiesced to the parents’ refusal to consent to the change of placement and the student remained in .

The evidence overwhelmingly establishes that the services were inadequate and denied the student his right to a free and appropriate public education, (“FAPE”). The denial of appropriate services over an extended period of time has resulted in the student’s lack of progress. It is unrefuted that the student made marginal or no progress during the 2011-2012, 2012-2013 and the 2013-2014 school years. Accordingly, he is entitled to compensatory services.

The representative from the testified that the student was evaluated at the and that he performed on a level, . (TR 94, 95) The witness testified that based on her experience the student required hours of services to attain academic levels on level. Further, she testified that the rate charged by the is per hour. (TR 124, 125)

CONCLUSION OF LAW

Compensatory 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]). Compensatory education relief may 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 E.M. v. New York City Dep't of Educ., 2014 WL 3377162 [2d Cir. Jul. 11, 2014] [noting that "when parents believe the local public school district has denied their child a FAPE, one option available to them is to keep the child enrolled in public school and seek administrative (and, later) judicial review of the child's IEP for the purpose of obtaining compensatory education"]; 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]"]; S.A. v. New York City Dep't of Educ., 2014 WL 1311761 [E.D.N.Y. Mar. 30, 2014]; B.M. v. New York City Dep't of Educ., 2013 WL 1972144 [S.D.N.Y. May 14, 2013], aff'd, 2014 WL 2748756 [2d Cir. June 18, 2014] [finding "no basis for an award of compensatory education" where "the alleged procedural violations ... [we]re not sufficient to support a finding that [the student] was denied a FAPE"]; Student X. v. New York City Dep't of Educ., 2008 WL 4890440 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]). The award of compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, is appropriate 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 an SRO 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 Disability, 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 Disability, Appeal No. 09-044 [awarding "make-up" counseling services to remedy the deprivation of such services].

The purpose of an award of additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M., 2014 WL 3377162; Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, 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"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "(a)ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]; Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10052). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[ ] the problems with the IEP"]; S.A., 2014 WL 1311761 [compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "(c)ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puyallup, 31 F.3d at 1497 ["[t]here is no obligation to provide a day-for-day compensation for time missed"]; Application of a Student with a Disability, Appeal No. 13-168; Application of the Dep't of Educ., Appeal No. 12-135; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

The evidence supports the parents’ claim that the failure of the DOE to provide appropriate services resulted in a lack of educational progress. However, I am not persuaded that the provision of 643 (or 541 as indicated in the parent’s due process complaint) hours of services from the will place the student in the position he would have been had he been given FAPE. Although the parent’s request for compensatory services in the form of individualized academic instruction is upheld, I find that he requires compensatory services in the form of services and services. He is entitled to receive hours of services and hours of as compensatory services for the denial of FAPE. The student may utilize these compensatory hours during the period beginning 1/15/15 through to and including 8/30/16.

With reference to the evaluation and registration fee conducted by the , I find that the DOE is not financially responsible for these costs. Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]). A parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an evaluation with which the parent disagrees" (34 C.F.R. § 300.502[b][5]; 8 NYCRR 200.5[g][1]; see R.L., 363 F. Supp. 2d at 234-35). In this case, the parent submitted no evidence that she disagreed with the evaluations conducted by the DOE. Moreover, there is no evidence that the parent requested an independent educational evaluation and most importantly, that the evaluations were submitted to the DOE in furtherance of the student’s 2014-2015 Individualized Educational Plan, (“IEP”).

ORDER:

The student shall receive hours of individualized special educational instruction which shall be used at the , so long as the provider in the is a certified special education instructor; otherwise, the DOE is to provide an authorization to allow the parent to secure a certified special education instructor, these hours may be used by the student during the period effective 1/5/15 through to and including 8/30/2016.

The DOE shall fund these hours at the rate of per hour.

At the discretion of the Parent and in consultation with the special education instructor, the student may receive services on any day of the week, including

.

The DOE shall immediately issue to the parent a related service authorization for hours of services.

In the event the student requires transportation to receive the the DOE shall provide for transportation for the student and his parent to receive the .

At the discretion of the Parent and in consultation with the , the student may receive services on any day of the week, including

.

The request for reimbursement for the evaluation and registration fee conducted by the is denied. Dated: January 6, 2015

, 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.

ATTACHMENT A

DOCUMENTATION ENTERED INTO THE RECORD

A Due process complaint dated 10/1/14 4 pages

B IEP dated 2/7/12 16 pages

C Report card dated 6/26/12 1 page

D IEP amendment dated 6/26/12 12 pages

E IEP dated 6/26/12 11 pages

F IEP dated 2/11/11 17 pages

G IEP dated 6/15/13 15 pages

H FNR dated 10/29/13 1 page

I Psycho-educational dated 1/27, 1/29/14 9 pages

J IEP dated 2/5/14 16 pages

K FNR dated 2/5/14 1 page

L Report card dated 3/7/14 1 page

M IEP dated 3/10/14 17 pages

N FNR, dated 3/10/14 1 page

O dated 6/10/14 6 pages

P IEP dated 6/20/14 21 pages

Q Educational evaluation dated 2/13/12 2 pages

R annual plan dated 2/8/12 3 pages

S annual review dated 6/10/13 2 pages

T annual review plan dated 2/3/14 2 pages

U evaluation dated 3/29/14 47 pages

DEPARTMENT OF EDUCATION

2 IEP dated 6/20/14 18 pages

4 IEP dated 3/10/14 14 pages

6 IEP dated 2/5/14 13 pages

10 Nickerson letter pack dated 12/26/13 5 pages

13 Order for dated 2/26/13 1 page

14 IEP revision dated 6/26/12 8 pages

15 IEP dated 6/20/12 9 pages