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: June 8, 2015

Actual Record Closed Date: July 6, 2015

Hearing Officer: Elise Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 8, 2015

Esq. Attorney — Student

Parents

IHRO Representative — DOE

— 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”),by filing a Due Process Complaint dated January 7, 2015 and an Amended Due Process complaint dated April 8, 2015 which was filed through her attorney, , Esq. from the

The Parent is alleging that her daughter, , was denied a free and appropriate public education (“FAPE”) for the 2014 – 15 school year and is seeking certain evaluations compensatory instruction, and compensatory , and services, all at the prevailing market rate.

There was one (1) day of hearing in this matter. The hearing was conducted on

June 8, 2015.

Extensions were granted in this case making the final compliance date July 21, 2015. A list of Exhibits is attached as Exhibit A. The Parent and the District submitted exhibits.

BACKGROUND:

This case involved a year old student. She is classified under the category “ ”. She has a diagnosis of and . For the 2011-12, 2012-13 and 2013-14 school years, has been provided with instruction from the District. She also was issued

RSAs for , , and .

The Parent testified that a purported IEP dated February 24, 2014 (P-J) was sent to the Parent in February

According to the Parent, her last IEP was dated June 9, 2010.1 P-F. During the 2010-11 school year, she was still able to attend school at , but in the spring of 2011, suffered a setback and required instruction.

The Parent filed a Due Process Complaint on January 7, 2015 (D-2) and an Amended Due Process Complaint on March 5, 2015. D-1. I was appointed as an Impartial Hearing Officer on January 21, 2015.

Although a partial resolution agreement was never signed, there has been a partial resolution of the issues in this case. The District has agreed to pay for an evaluation, evaluation, a evaluation, evaluation, evaluation, and a psychoeducational evaluation for by independent non-District evaluators at the prevailing market rates.

Tr. 33; D-9; D-10; D-11; D-12; D-13; D-14. The evaluation was already completed by Dr. from the District and the Parent is satisfied with his report. Tr.

34. In addition, the issue with respect to compensatory services for ,

, and has been resolved and RSAs were issued in this regard.

Tr. 34; D-4; D-5; D-6.

POSITION OF THE PARTIES

Parent’s Case

The only witness for the Parent was the mother. She stated that is .

In 2008, she was diagnosed with which is a that . Tr. 47. She has

. Tr. 47. She

. Tr. 48. At this point, she can

, ,

. Tr. 49.

2014, however, she was not aware of the CSE meeting, though listed as a participant. She also testified that it contained information that did not relate to the child and information that was clearly false. I credit the Parent’s testimony with respect to the February 14th IEP. Tr. 65. The mother works .

Tr. 50. When she is , , and when she is

, she is . Tr. 50.

Before the onset of symptoms began in 2011,

. Tr. 51. She has challenges with as a result of her condition. . Tr. 51. In terms of ,

. Tr. 51.

The IEP that was created for her was from 2010 when she was able to attend school. The Parent testified that no subsequent IEP was developed for Tr. 52. She started to receive instruction in April of 2011 when . After entering , she was also diagnosed with . Tr. 52. did the initial paperwork for the instruction. P-D. For , the instructor came and taught her each of her subjects. Tr. 54. In order to do this, the Parent submitted an application in the Fall and in the Spring each year. Tr. 54. In the Fall of 2014, no one contacted her after she sent in her paperwork. She subsequently reached out to the assistant principal and principal. The Parent was told that there was a hold up because her documentation was signed by not . Tr. 55.

instruction didn’t start for her for the 2014 -15 school year until November 19. Tr. 56.

The instruction teacher was told that there were no . The Parent called the assistant principal and on December 14, .

Tr. 56; P-K. Her instruction teacher is . Tr. 57. There was a different instructor for the 2013-14 school year. Tr. 57. The teacher is covering subjects – and Tr. 57. She is not sure if is getting full credit for the classes due to the issue with not having instruction until after November

19th. Tr. 58. The Parent spoke to Ms. , the instruction teacher, about ’s other courses and she advised her that assistant principal, Ms. specified that and are the only classes she was authorized to teach. Tr. 59. The

Parent indicated that she has not seen anything on the instruction website that would suggest that her daughter is not required to get the same minimum credit requirements that are expected of the students in the District. The Parent did, however, indicate that there was a new mandate issued on it specifying that students on instruction are now mandated to get . Tr. 59. On her original IEP, received adaptive . Tr. 59; D-F.

Last year, the instructor came for approximately four and a hours a day ( for periods). Tr. 61. For , she has credits and needs ; however, if she receives credit for this year, she will only need credits. Tr. 61. For

, she still needs credits. Tr. 62. For , she has credits and needs more. For , she needs and for , she needs credits as well. Tr. 63. She also has not met the remainder of the graduation requirements with respect to , . The

Parent testified that there is no documentation indicating that she doesn’t need these because she is on instruction. Tr. 63. The school has indicated that she can graduate with a diploma if she finishes all of her requirements. Tr. 64.

In January, the Parent re-applied for instruction for the second half of the year. Tr. 64. In a conversation with Ms. , the Parent told the assistant principal was not given extended time when she took the exams. Tr. 65. Ms.

told her that did not have an IEP at that time and that the IEP was initiated for her in February 2014. Tr. 65. The Parent told the assistant principal that the Student had an IEP since 2010 and asked for a copy of the February 2014 IEP since she was not aware of it and had never seen the document. Tr. 65. The February 2014 IEP that was sent to the Parent indicated that she and attended the meeting, which was not true. Tr. 66. The

IEP also indicated that and and

. Tr. 66. It also states that “

”. Tr. 66. The Parent testified that the Student had not been in school since April 2011 and that this IEP is a complete fabrication. Tr. 66.

The Parent testified that needs during instruction and the Parent does not know if . Tr. 68.

She is receiving and at as a result

of RSAs and is trying to find close to but has been receiving from clergy. Tr. 69. She received the RSAs in February not in September. Tr. 69. They are receiving compensatory hours for as a result of the partial resolution of this matter and are not seeking additional hours at this point. Tr. 69.

Dr. , hired by the District, came to the Student’s on February 14 and did a evaluation. Tr. 70; D-8. He told the Parent that he felt

’s condition was not in nature and that she has and suggested some exams for a more definitive diagnosis which she will have this summer.

Tr. 71.

The Parent indicated that she would like instruction to specify that instruction should allow for . Tr. 72.

This year the instructor comes since she is a teacher during the day. Tr.

72. In previous years the teacher had a status ( ), so was able to . Tr. 72. The hours for instruction came from instruction not the . Tr. 74.

The Student would like to make up the credits she missed this summer so that . Tr. 76. The Student has not been provided with any services, , if possible. Tr. 77.

The Parent does not want to use the P3/P4 form for the Student since she is a student and they need a teacher. Tr. 77. She has done research and the closest place to send to is since it offers what needs. Tr. 77. Her understanding is a in her or at the would charge approximately per hour. Tr. 78. The

District has offered her the form indicating that she is entitled to hours

. D-7. She was not aware that it was . The Parent testified that the Student needs at or at a specified location. Tr.

79. The hours provided were for the hours missed from the beginning of the school year when no instruction was provided. Tr. 80. It was calculated based on hours a day. Tr. 80. It did not include the other periods of instruction she was missing.

The District indicated on the record that instruction is “ hours, however, let’s say the teacher instructor approves more hours then they get whatever hours are approved, but basically by default every student gets hours”. Tr. 82. The Parent received the form and the and RSAs in February after the resolution meeting. Tr. 84. The

Parent testified that although during the resolution meeting she didn’t agree to anything, she stated that Mr. indicated that he felt that so much damage had been done already that he wanted her to have the documents in hand even though the Parent had not resolved to agree to anything in writing at that time. The Parent stated that she needed to hire people at the market rate to be able to have the flexibility of being able to access different companies that are reputable. Tr. 85. She also indicated that travel time was an issue and also . Tr. 85.

District’s Case

The District did not put on any witnesses and placed fourteen (14) documents in evidence. D-1 – D-14. The District conceded Prong 1 of the Burlington-Carter analysis in this matter thereby admitting that they did not provide with FAPE for the 2014-15

school year.

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 decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme court in School Committee of the Town of Burlington

v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005]).

Prong 1 – Appropriateness of District Program

In this case, the District conceded Prong 1.

Prong 2 – Appropriateness of Parent Placement

Under the second prong of Burlington, the Parent bears the burden of proving the appropriateness of the Parent’s request for instruction for In order to meet that burden, the Parent must show that the services that they request are appropriate for and offer an education program designed to meet ’s special education needs.

Burlington, 471 U.S. at 370; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F.3d at 112. “To qualify for reimbursement under the IDEA, Parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo, 489 R.3d at 112, See, Frank G., 459 F.3d at 364-65). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010).

It should be noted, however, that while evidence of progress is relevant, it does not in and of itself establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6th Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”].

In the instant matter, the Parent has testified that for the past three school years,

2011-12, 2012-13 and 2013-14, the Student has been receiving ( )

hours of instruction per day to cover her course work for all subjects ( for periods). Tr. 61; P-V. She also testified that this year the Student is only receiving instruction in subjects, and Based upon the requirements for graduation, it appears that the Student should be required to obtain the same minimum requirements as the other students in the District. Tr. 59. The Parent has testified that the District stated that the Student will be entitled to receive a diploma if all credits are completed and the testimony indicated that she has not received all of her credits. Tr. 64. Due to the fact that the Student has as a result of her diagnoses of , and

,

. Tr. 72. Even the District indicated that instruction is “ ” hours, however, if the IEP team or instructor approves more hours, then the student gets whatever hours are approved. Tr. 87. The Parent has proven that the Student still suffers from these conditions and is still in need of instruction. Based upon the foregoing, it is appropriate for the Student to receive periods of instruction per day for her subjects, as she had in the past, from a teacher, as well as , which is a new mandate for instruction. She should be able to receive her requisite credits towards graduation as a result of her instruction so that she will be able to meet the credit graduation requirements. Due to her diagnoses, she should receive additional time during her class periods in the event she or . She should also be entitled to receive testing accommodations as a result of her diagnoses. In the past, she has received . P-F.

Based upon the foregoing, the Parent has met her burden in demonstrating the appropriateness of the classes per day of instruction at per class for the 2014-15 school year, including additional time to account for any loss of time due to , as well as for testing.

Prong 3 – Equitable Considerations

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

Based upon her actions, in terms of equitable considerations, I find that the Parent cooperated with the District and analysis of equitable considerations offers no basis to rule against them.

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]).

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 Newington, 546 F.3d at 123 [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]).

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 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]; Application of a Student with a Disability, Appeal No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; Application of a Student with a Disability, 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 Disability, Appeal No. 08-035 [awarding ten months of home instruction services as compensatory services]; Application of the Bd. of Educ., Appeal No. 06-074; Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-

054).

In this regard, the District stated in their closing statement that the District “does not deny that the Student is entitled to compensatory instruction for the 2014-15 academic school year” and that “the instruction should be provided by a licensed New York State certified teacher”. Tr. 87.

Based on the Parent’s calculation, would be entitled to hours of compensatory instruction by a certified teacher at the market rate. Tr. 36. This would include the hours for the subjects she did not receive at all during the 2014-15 school year as well as the time she lost since she wasn’t provided with services from September 8, 2014 through November 29, 2014. She should be entitled to receive these services by a NYS certified teacher or teachers of her choosing, as long as she will be able to obtain credit for the completion of the courses by the District. In this regard, the District must work with the Parent and the teachers to ensure that the curriculum that is provided is appropriate so that can receive credit towards a diploma for each course. The instruction shall include whatever additional time is necessary as a result of loss of time due to issues as a result of her diagnoses. Any additional time must be appropriately documented.

As a result of the foregoing, I find that the District did not provide FAPE to for the 2014-2015 school year (Prong 1); instruction for periods a day on a basis is appropriate (Prong 2); and the Parent cooperated with the District and analysis of equitable considerations offers no basis for ruling against her (Prong 3).

ORDER

Based upon the foregoing, it is hereby ordered as follows:

1. Based on the partial resolution of this matter prior to the hearing and the parties agreement at this hearing, the District agreed to allow the Parent to obtain the following independent evaluations for including: a evaluation, a psychoeducational evaluation, an evaluation, and a evaluation. These evaluations were to be conducted by appropriately qualified providers to be chosen by the Parent and paid for by the District. In this regard, assessment authorization forms have been issued. With respect to the evaluation and the evaluations, the District and the Parent agreed at the hearing that the Parent can obtain these evaluations and that these evaluations will be conducted by appropriately qualified providers to be chosen by the Parent and paid for by the District at prevailing market rates. Accordingly, the and evaluations do not have to be conducted by providers from the District’s list at the established District’s rates. In addition to this, with respect to compensatory services for , , and , the District has agreed to provide for this, and RSAs have been issued in this regard.

2. Upon completion of all evaluations, the CSE shall convene to develop an appropriate IEP which is consistent with the results of the above referenced independent evaluations for the 2015-16 school year, and all other documentation available at the time of the CSE meeting, and which may provide for appropriate instruction in order for to work towards completing her requirements for a diploma, , , and services, to be provided by qualified instructors and providers of the Parent’s choice, at prevailing market rates, and other accommodations. This CSE meeting must occur prior to the start of the 2015-16 school year.

3. The District shall provide and fund compensatory instruction consisting of

592.5 hours, on a basis, for the Student. instruction shall be performed by qualified NYS certified teachers of the Parent’s choice, at prevailing market rates. In this regard, the District must work with the Parent and the instruction teachers to ensure that the curriculum that is provided is appropriate so that can receive credit for each course towards the completion of a diploma. The instruction shall include as needed in order to accommodate for ’s and/or issues as a result of her diagnoses. If is required, it must be appropriately documented. The Student should continue to receive testing accommodations of for State and local assessments.

Dated: June 23, 2015

Original Decision Rendered: July 17, 2015

ELISE B. KESTENBAUM, 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 pe riod.”

(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 RECORD

District’s Exhibits

No. Date Document Pages

1. 4/18/2015 Amended Due Process Complaint 5

2. 1/7/2015 Original Due Process Complaint 3

3. 3/5/2015 Due Process Response 3

4. 11/12/2014 Related Service Authorization:

3

5. 11/21/2014 Related Service Authorization: 3

6. 11/21/2014 Related Service Authorization: 3

7. 2014-15, 2015-16 Approval Letter and P-4 Authorization 2

8. 2/14/2015 Evaluation 5

9. 4/22/2015 Assessment Authorization- 5

10. 4/22/2015 Assessment Authorization- 5

11. 4/22/2015 Assessment Authorization- 5

12. 4/22/2015 Assessment Authorization- 5

13. 4/22/2015 Assessment Authorization- 5

14. 4/22/2015 Assessment Authorization-Psycho-educational 5

Parent’s Exhibits

A. 10/7/2007 Handout Regarding 12

B. 2/1/2010 Summary 2

C. 12/8/2009 Social History 6

D. 12/22/09 & 1/22/10 Psycho-Educational Evaluation 7

E. 12/27/2010 Evaluation 6

F. 2/9/2010 IEP 21

G. undated Student Permanent Record (through

end of 2013-14) 1

H. 9/19/2014 Notice of Mandated Three Year Evaluation 1

I. 11/4/14-12/3/14 E-mails Regarding Instruction 5

J. 2/26/2014 Purported IEP Transmitted to Parent 12

K. 11/19/2014 Instruction Per Session Form 1

L. 1/14/2015 Letter from Instruction re: Documentation

Expired 1

M. 1/26/2015 Faxed Application for Instruction 4

N. 1/7/15-1/21/15 E-mails Regarding Exams 3

O. 1/26/2015 Letter Regarding Exam Schedule 2

P. 4/27/15-5/13/15 E-mails Regarding Partial Resolution 7

Q. 5/7/2015 Compensatory RSA for 3

R. 5/7/2015 Compensatory RSA for 3

S. 5/7/2015 Compensatory RSA for 3

T. undated Information Packet for 8

U. 4/15/2011 Instructions 1

V. 6/5/2015 Student Transcript 1

W. 6/5/2015 Graduation Requirements