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: April 29, 2015

Actual Record Closed Date: May 9, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 29, 2015

Service Coordinator — Student

Service Coordinator — Student

Parent (via telephone) — Student

CSE District Representative — 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 and , the Parents (“Parents”) on behalf of , the student (“Student”), through their advocate and service coordinator, by filing a Due Process Complaint dated January 28, 2015 with the District. also appeared at the hearing as an advocate and service coordinator on behalf of the Parents and Student.

The Parents are alleging that their son, , was denied a free and appropriate public education (“FAPE”) for the 2014-15 school year since he has not received since September 2014 and is requesting his mandated services.

There was one day of hearing in this matter. A hearing was conducted on April 29, 2015. Extensions were granted in this case making the final compliance date May 19, 2015. A list of Exhibits is attached as Exhibit A. The Parents, the District and the Impartial Hearing Officer all submitted exhibits.

BACKGROUND

This case involved a old student. During the 2014-15 school year, the student was to receive special education services pursuant to an IEP that was developed on March 11, 2014. D-2. Pursuant to the March 11th IEP, t he following recommendations were made for the 2014-15 school year:

1. , , hours per week, ;

- , , times per week, each time,

;

2. , , times per week, each time, ;

3. , , times per week, each time,

; and

4. , , times per week, each time,

.

The District issued a Notice of Recommendation dated March 11, 2014, 2011. D-

The Parents filed a Due Process Complaint on January 23, 2015. IHO-I. I was appointed as an Impartial Hearing Officer on February 3, 2015.

POSITION OF THE PARTIES

Parents’ Case

The Parents placed one document in evidence (P-A) and the father testified. The

Parent stated that at the beginning of the 2014-15 school year, was transitioning from to CPSE. He stated that he was trying to get him through the District. The first time they heard from CPSE was in February after the impartial hearing had been brought. Tr. 19. The only communication he had with the District was through his service coordinators. Tr. 19. On cross, the Parent testified that at the beginning of March a service provider was sent to his house but they were then told that the service provider was not allowed to start. Tr. 21. The father indicated that services actually started with a second provider in April. As of the date of the hearing he had received sessions of . Tr. 22.

District’s Case

The District called no witnesses and placed four (4) documents in evidence. D-1-

D-4.

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 purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent.

Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516 , 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; . v. Bd. Of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F.

Supp.2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, 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 119, 130 [2d Cir. 1998]; see, Rowley, 458 U.S.

at 189). 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, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and …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, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). The IEP must be “reasonably calculated to provide 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). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. Of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Childwith a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 200

Based upon the testimony and the documents submitted into evidence, the March 11, 2014 IEP provided the should receive , , times per week for each time for the 2014-15 school year. D-2. I credit the testimony of the Parent that the Student did not receive until the first week in April, 2015. In fact, Mr. stated in his opening statement that “the proposed solution in the due process complaint was met on March 23rd, 2015.” Tr. 11. As a result of the foregoing, the District failed to provide . with FAPE for the 2014-15 school year since he was not getting the mandated on his IEP. D-2.

In this regard, 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).

Here, the District indicated that it had not secured for the Student until March 23, 2015. Tr. 11. Accordingly, during the time period commencing September 1, 2014 when the District should have begun implementing the student's

March 11th 2014 IEP (D-2) until the beginning of April 2015 when the student began receiving , the student did not receive the services mandated in his

IEP.

Therefore, in addition to the other mandated services on his March11th, 2014 IEP, the Student is entitled to , , times per week for each time, , for the remainder of the school year, and the District shall provide . with makeup services for all of the sessions he did not receive between September 2014 and the beginning of April 2015.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that

The District shall provide the Student with , , times per week for each time, , for the remainder of the school year and shall provide . with makeup services for all of the sessions he did not receive between September 2014 and the beginning of April 2015, when the mandated services were first provided to the Student.

Dated: May 18, 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 RECORD

Parents Exhibits

No. Date Document Pages

A 4/28/15 Parent Letter 1

District Exhibits

1 2/7/14 Evaluation 4

2 3/11/14 IEP 16

3 3/11/14 FNR 1

4 misc. dates Emails 7

Impartial Hearing Officer Exhibits

I 1/28/15 Impartial Hearing Request 3