Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 5, 2015

Actual Record Closed Date: April 21, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 5, 2015

Esq. Attorney Parent

Representative Department of Education

Mother Director, (via telephone) Parent

INTRODUCTION

On March 5, 2015 I held an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, (“ ”). The hearing commenced at and was held at the Impartial Hearing Office, . A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

BACKGROUND

is old and is classified as having . She is currently in the and attends a class at in .

On or about December 17, 2014 the parent, by her attorney , Esq., filed a request for an Impartial Hearing (“Complaint”) (Parents’ Ex. A). In the Complaint the parent alleged that that for various reasons the Department of Education failed to provide with a Free and Appropriate Education (“FAPE”) for the 2012-2013, 2013-2014 and 2014-2015 school years. The parent specifically alleged that ’s June 13, 2014 Individualized Education Program (IEP) was procedurally and substantively deficient and failed to provide her with “sufficiently intensive services and supports.” In addition, the parent stated that while the IEP designated an (“ ”) class for for the 2014-2015 school year, she was nevertheless placed in a class without any supports. The parent also alleged that the Department of Education failed to meet its “Child Find” obligations by not identifying as a child who might require special education services during her time at . As a remedy, the Complaint asked that the Department of Education be ordered to implement the July 2014 IEP and provide with the services specified on that IEP. The parent also asked that the Department of Education develop an appropriate IEP for that addresses her deficiencies and includes increased individualized support at school. In addition, the parent asked for an Order directing the Department of Education to pay for hours of for at the (“ ”) to compensate for the failure of the Department of Education to provide a FAPE for 2012-2013, 2013-2014 and 2014-2015 school years and for its failure to provide with an appropriate program from December 17, 2012 through the impartial hearing process, and for for and a parent to travel to and from .

Finally the parent asked that the Department of Education be directed to pay for the cost of diagnostic testing at and for ’s registration fee (Parents’ Ex. A).

I was assigned as impartial hearing officer in the case on December 18, 2014 and the original compliance date was March 2, 2015. On January 26, 2015 at the request of both parties for the availability of witnesses the compliance date was extended to April 1, 2015 and a hearing date was scheduled for March 5, 2015. At the conclusion of the hearing that date the compliance date was extended to May 1, 2015 at the request of both parties in order for them to review the transcripts and file written closing statements, and for the issuance of a Decision and Order.

The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for the two extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations. Specifically, (a) the child was attending school; (b) in accordance with due process the parties were entitled to submit written closing statements and have this hearing officer review the transcript, the evidence and the closing statements prior to the issuance of a Decision and Order; (c) there were no financial or detrimental consequences likely to be suffered by either party by the delay; and (d) there were no prior delays in this case.

ISSUE TO BE RESOLVED

The Department of Education conceded that it did not provide with a FAPE for the 2012-2013, 2013-2014 and 2014-2015 school years. The only issue remaining in the case is whether the parent is entitled to an Order for compensatory education and if so, the amount of hours of compensatory services to be provided and whether those services should be provided by .

FINDINGS OF FACT

is ’s mother. She described as a child. has attended since ( : 11-12). did not do well during the 2012-2013 school year when she was in a class. asked for more help for and ’s teachers told her to get an Individualized Education Program (“IEP”).

However, the Department of Education did not develop an IEP and did not make any progress during that year ( : 12-13). ’s first period report card for the 2012-2013 school year indicated that was “ ” “ ” in every other subject except for (Parent’s Ex. H).

For the 2013-2014 school year attended a program and also did not do well. She made no progress and expressed her concerns to ’s teachers ( : 13-14). The school issued a Promotion in Doubt letter dated February 13, 2014 advising that was “ ” “ ” “ ” for the next school year (Parent’s Ex. G). In a letter dated March 24, 2014 referred to the Committee on Special Education (“CSE”) ( : 14; Parent’s Ex. P).

The Department of Education conducted a psychoeducational evaluation of on May 3, 2014 (Parent’s Ex. D). Her test scores showed that although her abilities were in range, she was in the percentile in “ ” with subscores of the percentile in , the percentile in , the percentile in and the percentile in (Parent’s Ex. D a 3-4). She was also found to be “ ” “ ” results in , and (Parent’s Ex. D at 3-4). ’s final report card for the 2013-2014 school year indicated that she was “ ” “ ” in (Parent’s Ex. I).

On June 13, 2014, at the end of ’s year, the CSE developed an IEP for classifying her as a student with and recommending an class for the 2014-2015 school year. An IEP dated July 17, 2014 made the same recommendations. At the time the IEPs were developed ’s and levels were ( : 14; Parent’s Ex. B at 1, 8, 12; Parents’ Ex. C at 1, 8, 12). was promoted to the grade but her final grade report card in June 2014 indicated that she was “ ” “ ” in (Parent’s Ex. I).

When began the at in September 2014 there was no class and has been attending a class for the current school year (Hearing: 10; : 14-15). is not doing well in school and expressed her concerns to ’s teachers ( : 15). did not receive (“ ”) this year ( : 16). The school told that it did not have a teacher or classroom and that they “ ” “ ”( : 16-17). ’s first period report card for the 2014-2015 school year indicated that she was “ ” ” “ ” in (Parent’s Ex. H).

On November 25, 2014 took to for testing. If were to attend would need for to travel to and from ( : 15-16; Parent’s Exs. Q, R, S). is director of on the . She is certified in and education in ( : 18-19, 58-59). provides supplemental instruction , , , , , and for students in grades . Approximately of the students who attend have including , , and . The facility has who are certified and teachers and it is accredited by the ( : 19-20, 68). If was directed to provide with by special education teachers it would do so ( : 68). Ms. meets with the parents periodically to give an oral report on the child’s progress ( : 66-67). went to for testing in November 2014 when she was in the . administered a standard battery of diagnostic testing to determine ( : 21-22). Prior to administering the assessments reviewed ’s IEP and the assessments were administered in compliance with the testing accommodations on that IEP ( : 59).

Ms. described each of those assessments and ’s performance on them. was level. Ms. reviewed the results of each assessment. The assessments indicated that ’s level was on a level and that in she was able to achieve mastery only in on a level. Her greatest needs were in and , and ( : 22-43, 60). Ms. determined that has mastery of skills in and and needs “ ” beginning at a level ( : 44). The goal of at would be to bring up to level in , , , and ( : 44). The procedure would be to start her at a level , for example level in , and then increase the level of difficulty as she is able to perform at higher levels ( : 61). would administer a to determine her skill level at that point in time which will determine whether she can skip any of the levels in the program developed when she was assessed in November 2014 ( : 57, 63).

The curriculum at reflects the New York State standards for and . Ms. determined that requires hours of to bring her to a level and she developed a for ’s program that outlined the skills to be addressed and the number of hours required to bring up to level in each skill, considering the curriculum and state testing. Ms. based the number of hours of instruction required for each skill based on her “experience over the last 13 years ( : 45-54, 65, 68, 69; Parents’ Ex. R). Each session is hours ( : 58). Ms. has seen other children with issues similar to those of make “ ” progress and she opined that would do so as well ( : 56).

The initial assessment fee for was , the registration fee is and the sessions are per hour; the sessions are billed monthly only for the sessions that the students attends. is open days a week ( : 55).

CONLUSIONS OF LAW AND DISCUSSION

The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). The Department of Education has the burden of demonstrating that it provided such students with that standard. 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet a child’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D) 34 C.F.R. § 300.13; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.347; Rowley at 181-182. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit a child to benefit educationally from that instruction.” Rowley, 458 U. S. at 203. An IEP must accurately reflect the results of evaluations to identify the child's needs, provide for the use of appropriate special education services to address the child's special education needs, and establish annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E. v. New York City Dept. of Educ., 694 F.3d 167, 175 (2nd Cir. 2012); Application of a Child With a Disability, Appeal No. 13-.

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 1 1 0 , 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. Rather, 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 v. Rhinebeck Cent. Sch. Dist, 346 F.3d 377, 379 (2d. Cir. 2003). Additionally, school districts are not required to "maximize" the potential of students with disabilities or provide an education guaranteeing any particular outcome. Rowley, 458 U.S. at 189-192, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Rather, a school district must recommend a program that is reasonably calculated to allow the child to receive 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, and develop an IEP that is “likely to produce progress, not regression”' and “ affords the student with an opportunity greater than mere 'trivial advancement'." Cerra v. Pawling Cent. School District, 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009); Mr. and Ms. P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Application of a Student With a Disability, Appeal No. 13-169.

I begin by noting that unless otherwise indicated below I credit the testimony of all of the witnesses who appeared at the hearing. The Decision and Order is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record. Whether the Department of Education provided with a FAPE for the years in issue at the impartial hearing.

Compensatory Services

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. And, the IDEA allows a hearing officer to fashion an appropriate remedy, such as compensatory education, for the denial of FAPE. Newington, 546 F.3d 111 at 123; Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008); Application of XXXXXXXXX, Appeal No. 13-048; Application of the Dept. of Educ., Appeal No. 12-135; Application of the Dept. of Educ., Appeal No. 11-13. The ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from the special education services that the school district should have supplied in the first place. Application of XXXXXXXXX, Appeal No. 13-048. 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.

Compensatory education awards can be generally crafted pursuant to two schools of thought: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996) (holding generally that subject to equitable adjustment, the “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem.”). Another approach that can be taken is the qualitative approach. Under this approach, 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 even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant 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 those deficits. Id. at 526. Courts have found that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully." Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007).

The parents contend that is entitled to hours of at to compensate for the Department of Education’s failure to provide her with a FAPE for the past three years (IHO Ex. II at 14-19). At the impartial hearing the Department of Education representative, , did not present any evidence about how the Department of Education could remedy the FAPE violation. However, in her Closing Brief she asserted for the first time that any compensatory services should be provided by (IHO Ex. I at 5-6). In response, the parent’s attorney, , Esq., submitted an email statement arguing that since the Department of Education did not present any evidence or testimony regarding as compensatory relief at the impartial hearing, that “suggestion” in its Closing Brief should be disregarded in its entirety (IHO Ex. III).

As noted above, under the IDEA the Department of Education is required to provide a program that is reasonably calculated to allow the child to receive some “meaningful' benefit," develop an IEP that is “likely to produce progress, not regression,” and o n e th a t 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 T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). There is no requirement that a school district maximize a child’s potential or ensure that a child be brought up to grade level. See Rowley, 458 U.S. at 189-192, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.

Ms. , the director of , testified that at the time assessed in November 2014 would have required 548 hours to be brought up to grade level.

While I find that is entitled to compensatory services since the Department of Education conceded that it did not provide with a FAPE for the 2012-2013, 2013-2014 and 2014-2015 school years, I am not mandating that hours be provided by at this point in time. In making this determination I recognize the directive of the IDEA and I consider the fact that in addition to not identifying as a special needs student for two school years, the Department of Education failed to abide by the mandate of ’s current IEP by placing her in a program with no supports instead of an program. While the Department of Education posits after the fact that it can offer services to , there was no evidence presented at the hearing regarding the availability of or how such services would meet ’s unique special education needs at this point in time. I also find that the qualitative approach is appropriate here in that ’s progress must be reassessed after a specified period of time in order to determine whether her specific educational deficits have been rectified and if not, the number of compensatory hours that would still be required.

Thus, I am granting the parent’s request that attend at Department of Education expense so that she can begin to receive remediation services immediately.

The sessions are to continue through December 2015 for as many hours as is able to attend but not to exceed hours. I am also ordering that assign a certified special education teacher to provide those services.

In December 2015, before the Christmas break, the CSE is to reconvene to determine the progress has made at and in her then-current placement and assess the number of hours, if any, that continues to require to compensate for the failure to provide her with a FAPE in the grade. If additional compensatory hours are appropriate, the Department of Education is to provide with a P3 letter for a provider to work with at a location that is amenable to the parent for the amount of hours per week that the CSE determines to be appropriate at that time, taking into consideration ’s then-current and levels, a written report by regarding ’s progress in the program and all of the information available regarding ’s education and progress, including any documents or testimony of witnesses that the parent wishes to present. If at that time a provider is available to work with at a location amenable to the parent for the designated number of hours, that provider must contact to discuss ’s progress up to that point and she must coordinate her work with ’s then-current teachers. Until such provider begins to work with or if no such provider is available at that time, is to continue at until a provider becomes available for the amount of hours that the CSE deems appropriate based on the conditions specified above. These compensatory services shall be in addition to any that the CSE may recommend for the 2015-2016 school year.

The Department of Education is to pay for the assessment done at . That assessment is to be considered, along with other relevant assessments and reports, at the CSE meeting in December 2015. In addition, the Department of Education is to provide ’s parent with to take to and from .

PROGRAM AND PLACEMENT

The parent also requests an Order directing that the Department of Education place in in an class as per her June and July 2014 IEPs and that the CSE convene “within 20 days” to consider ’s needs and to recommend appropriate, specially designed instruction to address her educational needs going forward (IHO Ex. II at 21).

I find it egregious that the Department of Education has failed to place in an program as per her IEP simply because her particular home zoned school does not have a class. It is similarly egregious that the Department of Education, having impermissibly placed in a class in direct contravention of her IEP, has also failed to provide her with or any other related services to help ameliorate that FAPE violation.

Within ten days of the receipt of this Decision and Order the Department of Education must place in a class at the school closest to her home that has such a program and provide round trip transportation to that school if required. In addition, within 20 days of the receipt of this Decision and Order the CSE is to reconvene with all of the required members in attendance to develop an appropriate IEP for based on all of the information available, including any information the parent provides to the IEP team in the form of documents or participation by persons who have relevant information about

ORDER

It is hereby Ordered that:

1. Within ten days of the receipt of this Decision and Order the Department of Education must place in a class at the school closest to her home that has such a program;

2. Within 20 days of the receipt of this Decision and Order the CSE is to reconvene with all of the required members present to develop an appropriate IEP with an appropriate program and related services for based on all of the information available regarding ’s education, including the most recent evaluations and any information the parent provides to the IEP team in the form of documents or participation by persons who have relevant information about ;

3. is to attend at Department of Education expense so that she can begin to receive remediation services immediately. The sessions are to continue through December 2015 for as many hours as is able to attend, not to exceed hours. must assign a certified special education teacher to provide those services. is to submit monthly invoices based on ’s attendance and proof that a special education teacher provided those services. The Department of Education is to pay those invoices within 30 days at a rate not to exceed per hour;

4. Within 30 days of the receipt of this Decision and Order the Department of Education is to pay for the testing fee and the registration fee;

5. The Department of Education is to provide parent with to take to and from for each session attends;

6. In December 2015, before the Christmas break, the CSE is to convene to determine the progress has made at and in her then-current placement and assess the number of hours, if any, that continues to require to compensate for the failure to provide her with a FAPE in the grade. If additional compensatory hours are appropriate, the Department of Education is to provide with a P3 letter for a provider to work with at a location that is amenable to the parent for the amount of hours per week that the CSE determines to be appropriate at that time, taking into consideration ’s then-current and levels, a written report by regarding ’s progress in the program and all of the information available regarding ’s education and progress, including any documents or testimony of witnesses that the parent wishes to present. If at that time a provider is available to work with at a location amenable to the parent for the designated number of hours, that provider must contact to discuss ’s progress up to that point and must coordinate his or her work with ’s then-current teachers. Until such provider begins to work with or if no such provider is available at that time, is to continue at until a provider becomes available for the amount of hours that the CSE deems appropriate based on the conditions specified above. These compensatory services shall be in addition to any that the CSE may recommend for the 2015-2016 school year.

Dated: May 1, 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.

DOCUMENTATION ENTERED INTO THE RECORD

DEPARTMENT OF EDUCATION:

The Department of Education did not present any evidence at the impartial hearing.

PARENTS:

Exhibit A Impartial Hearing Request dated December 17, 2014, 6pages

Exhibit B Individualized Education Program dated July 17, 2014, 15 pages

Exhibit C Individualized Education Program dated June 13, 2014, 15 pages

Exhibit D Psycho-educational Report dated June 4, 2014, 4 pages

Exhibit E Department of Education Classroom Observation dated May 27, 2014,1 page

Exhibit F Classroom Teacher Reports dated April 23, 2014, 6 pages

Exhibit G Promotion in Doubt Letter dated February 13, 2014, 1 page

Exhibit H 2014-2015 Report Card undated, 1 page

Exhibit I 2013-2014 Report Card undated, 1 page

Exhibit J 2012-2013 Report Card undated, 2 pages

Exhibit K Progress Reports dated November 13, 2014, 6 pages

Exhibit L Progress Report dated December 2014, 1 page

Exhibit M Progress Report dated April 7, 2014, 1 page

Exhibit N Progress Report dated October 13, 2013, 1 page

Exhibit O Assessment Detail undated, 3 pages

Exhibit P Letter from Parent/CSE Referral dated March 24, 2014, 1 page

Exhibit Academic Summary dated November 25, 2014, 3 pages

Exhibit R undated, 1 page

Exhibit S Testing Materials dated November 25, 2014, 55 pages

IMPARTIAL HEARING OFFICER:

Exhibit I Department of Education’s Closing Brief dated April 1, 2015, 6 pages

Exhibit II Parent’s Closing Brief dated April 1, 2015, 22 pages

Exhibit III Email from Mr. in Response to Department of Education’s Closing Brief dated April 3, 2015, 1 page

Exhibit IV Case Follow-Up Sheets dated January 27, 2015 and March 5, 2015, 2 pages