New York City Department of Education, Impartial Hearing Decision

AMENDED FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: January 21, 2015

Actual Record Closed Date: March 9, 2015

Hearing Officer: , Esq,

NAMES AND TITLES OF PERSONS WHO APPEARED ONJANUARY 21, 2015

Attorney — Student

Parent (via telephone) — Student

Interpreter — Student

Representative (via telephone) — Student

IHRO Representative — DOE

School Psychologist (via telephone) — DOE

Teacher (via telephone) — DOE

Teacher (via telephone) — DOE

Teacher (via telephone) — DOE

Social Worker — DOE

— DOE

The parent made a request on December 16, 2014 and I was appointed on December 16, 2014. I scheduled a hearing on December 17, 2014 for January 21, 2015.

The parent is represented by Esq. of

, LLP. The district is represented by .

On or about April 15, 2015, the NYC Impartial Hearing Office contacted me regarding the case number and the number on the cover sheet of the exhibits. The case was previously filed with the case number . That case was withdrawn

The case that I heard on January 21, 2015 and decided on February 9, 2015 had the new case number . I submitted my decision to the NYC Impartial Hearing Office on February 9, 2015. However both parties submitted evidence with a cover sheet including the prior case number . Both parties corrected the cover sheet to reflect the proper case number.

The student’s date of birth is . He is classified as and is currently attending a class at .

The parent in their complaint request the following:

hours of individual compensatory education services, in the form of at ( )

All hours be awarded without an expiration date be reimbursed $ for the cost of the student’s diagnostic testing be reimburse $ for the student’s registration so that the parent and student can travel to and from

(Exh. 1)

The IEP challenged is dated January 16, 2014. The IEP recommends for the following subjects: times a week, times per week, and times per week and per week for minutes. (Exh. 5)

Report dated January 6, 9, 2014 The student’s . His academic achievement in was as follows:

. The evaluation indicates that the student is

. (Exh. 8)

Classroom Observation dated December 11, 2013

The student’s teacher reported that the student appears to be struggling with and he is .

The student is . (Exh. 9)

Teacher Progress Report dated November 22, 2013

The student in level.

In he was on level; level.

(Exh. 10)

Report Card 2013 – 2014

The number on a report card indicates “ .”

The number on a report card indicates “ .” The student received the following grades in the final marking period , , ,

, . (Exh. 24)

Report Card 2014 – 2015

The number on a report card indicates “ ”

“ ” The student received in the first marking period the following grades . In the teacher’s comments, the following is stated “ . Has difficulty . Has . In all subject areas, [the student] needs .

.” (Exh. 30) , school psychologist testified through her affidavit that at the IEP meeting the parent was “happy” with the student’s class and agreed that he should stay in a class with teachers. The parent was relieved that the student and all the team members agreed it was the right setting for him. The student was concerned he was and stressed he needed and preferred to keep him in his current class. The student did not qualify for

. (Exh. 32)

It is part of the Department of Education procedure that if there is a concern with , the student is first screen by a prior to a full evaluation. (T. 6)

The student was recommended for because it was necessary for him to work on his . is usually recommended for that, and we didn't know the student that well, so we recommend and leave it up to the discretion of the . The counselor can determine the and has more flexibility when . When is recommended, the can see the student ,

, up to but no more. If the student is e, then it would be

. (T. 8)

During the 2013/2014 school year Ms. observed the student him during testing times and sees the student around school all the time. (T. 14 – 15) Ms.

testified that she observed the student in the class informally. (T. 16)

Ms. was aware that the teacher’s progress report stated that the student was performing on a level than level for . Ms. testified that this was not unusual for performance in the classroom as compared to testing. (T. 26)

Ms. found the student’s which equates to

. (T. 52) The student’s performance scores were . His

. He may

. (T. 52)

from his teachers in general In the testing Ms. administered she worked , so he was , . It's not unusual for them to with us in this setting as opposed

to

. (T. 53 – 54)

- the student’s teacher during the 2013 – 2014 testified through her affidavit that the student received instruction for and the student’s classwork was differentiated based on his IEP. The student worked with Ms. . The student made progress in and during the school year. The student . Ms. states that the parent and team agreed with the class. (Exh. 33)

, the student’s teacher for 2014 – 2015 testified through her affidavit that the student has been assessed through curriculum assessments and the running records for the class. The student began on a level and has advanced to level . In the student is in a students that . The student has

” He has . In

, the student is

. The student’s work is differentiated according to his IEP. He receives supports such as .

He has made progress in subjects including and . The student . He is . Ms. states that she spoke with the parent and the parent insisted that the student is never . The causes the student to in , and . (Exh. 35)

Ms. testified that the IEP meeting took place in January 2014, and March 7, 2014 was the projected date for implementation of . The student’s at times may impact his performance, but I think overall he's able to . I mean he will occasionally support besides the weekly session. Overall he seems to be able to . (T. 122)

, the Director of the testified by her affidavit that the parent brought the student in for testing in December 2014. In the affidavit Ms. describes the results of the student’s testing in December 2014.

However the Evaluation submitted into evidence is dated June 10, 2014.

(Exh. B) Ms. stated the testing took approximately hours. The results found the student is “ level in ( ) and .”

He has . Ms. believes the hours

estimated on the are necessary to enable the student to progress based on her thirteen years of experience students with . Ms.

has a teaching certificate. grade level scores are aligned to expectations and to the standard. (T. 60) Ms. stated that Exhibits B-1 and B-2. correlate to the things that the student has to be able to do in order to meet the strands of the benchmarks. It also is correlated to the grade level that which instruction in these areas typically takes place. (T. 61) Exhibits B1 and B2 were created before those existed. (T. 62) Prior to the testing Ms.

stated that “We spoke to his parent, she provided us with a copy of the IEP, and we reviewed that before we tested him.” The student’s current school was not contacted. (T.

62) Ms. did not conduct the student’s evaluations. Certified teachers with training conduct the evaluations. (T. 64 – 65) Ms. testified that there are no strategies per se on how to work with students with special needs when administering the tests, “ ” (T. 66-67) The student was assessed in December 2014. (T. 68) The tests are authorized to use as a franchise of

. (T. 76) does not contact the school until after the student is receiving services from .

The parent in her affidavit states that the student upon entering had not received any evaluations or assessments for special education services. The parent states that at the IEP meeting a translator was not present at the meeting. The school’s social worker participated by phone and was only able to translate a portion of the meeting because she left mid-way. The parent did not understand the school’s proposed IEP program and the school failed to explain the different types of classrooms. As the year progressed, the student was still not progressing. To date, the student remains

. The parent am unable to because of constraints.

The parent testified that she believed the class would be helpful to the student, “but it's not working like that. It doesn't function as they explained it to me.

, and I cannot help him because

.

. (T. 137) has estimated the student would need hours to make up for his failure to receive special education services throughout his 2012 – 2013 school year. (Exh. R) The parent testified that she lives in the , the student’s school is in . The parent does not want a school in the .

Traveling to from the can be difficult and takes a long time and this is the reason the student is . (T. 140 – 142)

DISCUSSION

FAILURE TO EVALUATE

On November 12, 2013, the parent requested an evaluation. (Exh. 15) On

January 6, 9, 2014 there is a psychoeducational evaluation of the student. (Exh. 8) On

November 20, 2013 there is a Social History evaluation. (Exh. 12) On December 11, 2013 there was a classroom observation. (Exh. 9) On January 14, 2014 there was a screening. (Exh. 6) On January 16, 2014 an IEP meeting was held with the necessary parties and the parent. (Exh. 5)

NYCRR 200.4 b (7) specifies “The initial individual evaluation shall be completed within 60 days of receipt of consent unless extended by mutual agreement of the student’s parents and the CSE pursuant to subparagraph (7)(i) and paragraph (j)(1) of this subdivision.”

In light of several holidays during the months of November and December, I find that the school complied with the timeline in conducting the evaluations.

PARENT’S PARTICIPATION AT THE IEP MEETING

The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415[b][1]). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5[d]).

Parent testified that a social worker translated via a telephone and left the meeting half way through the meeting. (Exh. R) At the January 16, 2014 IEP meeting the parent stated “They didn't give me any interpreter. So, the psychologist spoke , and she was translating it. So, they were all speaking in , and I was there just listening. I understand, but I don't understand -I perfectly don't understand everything.” (T. 136)

This testimony was contradicted by , the school psychologist. She states in her affidavit the parent was an active participant in the IEP meeting and agreed with the recommendation. (Exh. 32) She testified that she is and also provided translation at the IEP meeting along with the social worker. (T. 20 - 22) Ms.

testified that the parent asked lots of questions and “had a lot to add to the meeting.” (T. 54)

Exhibit 5-14 is the Attendance Page of the IEP and listed is the “School Psychologist ( ).” The IEP dated January 16, 2014 also has several notes on the concerns of the parent. (Exh. 5-2, 5-3) Ms. testified that when she speaks to the parent, they communicate in . (T. 123, 127 - 130)

Therefore I find the parent was able to have meaningful participation at the IEP meeting.

COMPENSATORY EDUCATION

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y.

1997]).

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, 75 [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]; Application of a Child with a Disability, Appeal 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 P. v.

Newington Bd. of Educ., 546 F.3d at 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 *24 [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 WL 9731053, at *12-*13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]). Likewise, SROs 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 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 the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13- 226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]).

In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see 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"]). 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"]; 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, 525 [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 ["There is no obligation to provide a day-for –day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

Evaluation

Ms. testified she calculated that the student needs hours of based on her observation of other students and their pace of progress as she reports to their parents in monthly progress conferences. Ms. also calculated the number of hours on the test results, selected specific pieces of curriculum to address the student’s deficits in testing. Additionally her calculations are based on her observations and experience, estimated how many hours of instruction are likely to be required for him to complete each piece, and that's the total number of hours. Finally, Ms. ’s calculation is based on her conferences with 120 families per month based on their student's progress and updating the parent on how they've moved through the program.

Ms. is “very well aware of how long it takes our students to complete each piece of curriculum” The number of hours are based on other students who are and their pace of progress. (T. 84) The was developed with specific intent to get him through levels. The fact that he's now in is not addressed on the , which is one reason why he was re-tested in December and a new was created, which requires additional hours in order to get him up to level. Parent's exhibit B-3, the has a little bit of , but most of the material ends at the level. (T. 94)

Ms. believes that if the student receives hours of at he will be at level. (T. 80 – 82, 88)

Ms. testified that the is aligned to the and a set of that teachers of any grade level are looking for within their student's work. The document was printed in January 2011. (T. 77)

“ ” are not a requirement for to have mastered but if they haven't mastered , they will struggle on the expectations. (T. 84)

Ms. stated that currently the student struggles with because his skills are not at the level that . will not help him with because it will delay . Instead gives him the skills he needs to (T. 93)

Ms. testified that there were some differences in the results of the school district and , but either way the student would start at level. He did not have mastery of even on the later testing, and still requires work in . The other difference, of course, is that he's now in , and so we conducted that testing with an eye toward what would be required to get him to that level. (T. 94 The student received all new assessments in December 2014. (T. 104)

’s June 2014 testing, which was admitted into evidence, according to Ms.

is irrelevant in that it focuses on not that the student is attending. December 2014 testing were offered on the hearing date and district’s object was sustained in that all evidence must be disclosed days prior to the hearing. (200.5

(j)(3)(xii)

I find the testing and information to be incomplete and not a valid representation of the student’s abilities. The basis for my finding is the following: the student was tested at for hours. had no communication with the student’s teacher or the district’s evaluations. (T. 70) In the student’s Report Card for

2014 – 2015, the teacher’s comments, are that the student has “ ” (Exh. 30) Ms. testified that the student struggles with . (T. 93) Ms. testified that ’s testing is aligned to . (T. 77) Yet the testing material are dated prior to . (T. 77)

Ms. testified that the student must start at a level. (T.94) In contrast, the student’s current teacher, Ms. , testified that the student has made progress in . He began on a level and has advanced to level .

In the student is students that required some remediation and have mastered most but not all standards. The student has though his is “ ” (Exh. 35) I find the testing of to be self-serving and not accurate.

Finally, I find ’s calculation of hours to be arbitrary. Ms. ’s calculation of hours is based on based on her observation of other students and their pace of progress; on the test results, selected specific pieces of curriculum to address the student’s deficits in testing; on her observations and experience, estimated how many hours of instruction are likely to be required for him to complete each piece and based on her conferences with 120 families per month based on their student's progress and updating the parent on how they've moved through the program. The number of hours are based on other students who are and their pace of progress. (T. 84)

Based on the foregoing, the parent’s request for compensatory education is denied.

Dated: April 22, 2015

Original Decision Rendered: March 19, 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 25or 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

B Records, 6/10/14, 51 pages

H Report Card , dated 1/8/14, 5 pages.

I Promotion-in-Doubt Letter, dated 2/11/14, 1 page

J Fax by School for , 9/24/14, 3 pages

Q Affidavit of , January 15, 2015, 10 pages.

R Affidavit, dated 1/15, 4 pages.

S Parent's Opening Statement, 4 pages

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 8/25/14, 6 pages

2 Due Process Responses, 9/4/14, 4 pages

5 January 2014 IEP, 1/16/14, 14 pages

6 Screening Results, 1/14/14, 1 page

8 Psychoeducational Report, 1/6/14, 6 pages

9 Classroom Observation, 12/11/13, 1 page

10 Teacher Progress Report, 11/22/13, 2 pages

11 Social History Package, 11/20/13, 1 page

12 Social History Evaluation, 11/20/13, 3 pages

14 Request for Examination, 11/14/13, 6 pages

15 Request for Evaluation, 11/12/13, 3 pages

17 Running Records for Sheet, 11/15/13, 10 pages

18 Running Records for Sheet, 1/23/14, 6 pages

19 Running Records for Sheet, 1/31/14, 6 pages

20 Running Records for Sheet, 6/2/14, 3 pages

21 by , 6/24/14, 7 pages

22 by , various dates, 15 pages

24 2013-2014 Report Card for , School Year 2013-2014, 2 pages

25 Informal Running Record, 12/22/14 and 11/25/14, 4 pages

26 Chart, various dates in School Year 2014-15, 3 pages

27 Student Work in , various dates in School Year 2014-15, 41 pages

28 Student Work in , various dates in School Year 2014-15, 4 pages

29 Log, various dates in School Year 2014-15, 17 pages

30 Report Card 2014-15, no date, 2 pages

31 Attendance Record, 2014-15, 1/12/15, 1 page

32 Affidavit: , 1/14/15, 3 pages

33 Affidavit: , 1/14/15, 3 pages

35 Affidavit: , 1/14/15, 4 pages

37 DOE Opening, no date, 2 pages