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: May 1, 2015

Actual Record Closed Date: May 12, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 1, 2015

Attorney — Student

Parents

- — Parents

Hearing Representative — DOE

Parent requested a hearing on February 4, 2015. I was appointed on February 4, 2015. On or about March 10, 2015, the complaint was amended. A hearing date was set for April 10, 2015. I was informed by the Impartial Hearing Office that the parent did not receive notice of the hearing. A new hearing date was set for May 1, 2015. The parent was represented by Esq. The district was represented by .

The student is years old (dob is ). The student is classified as . He is currently attending . The date of the challenged IEP is March 2, 2015.

The parent’s complaint challenges the years 2012 – 2013, 2013 – 2014, 2014 – 2015. The parents request the following:

Compensatory Education:

“A bank of private instruction and remediation, particularly in and to be provided at an enhanced rate by a provider of the Parents’ choosing: A finding that the district did not provide the student with a free appropriate public education (FAPE) and violation of §504

“A bank of private to be provided at an enhanced rate by a provider of the Parents’ choosing”

“A bank of private to be provided at an enhanced rate by a provider of the Parents’ choosing:

An interim order for immediate funding by the Department of Education (DOE) of comprehensive independent evaluations, , , , and evaluations

An interim order for enhanced rate RSA for of after school

An interim order for after school at an enhanced rate

An interim order for a recommendation to be made for and for to be implemented immediately during the school day as a related service

An immediate IEP and Section 504 plan

Reimbursement for Parents expenses for for 2012 – 2013, 2013 – 2014

school years

or the teacher during June 2013 – September 2014

Reimbursement for transportation between and and any other location where student receives relates services (Exh. A)

The IEP dated February 12, 2015 (Exh. L) recommends the following:

( ) times per week for period; a week for period; a week of for minutes; / a week for minutes; a week of four for minutes.

The district stated that the student was not provided with a FAPE.

EVIDENCE

The Evaluation dated February 8, 2013 (Exh. E) states the following:

. The recommendation is for weekly for minutes.

The Bilingual Psycho-Educational Report dated May 13, 2013 (Exh. I) results were as follows:

. As to and , ;

: .

The Evaluation dated November 13, 2014 (Exh. P) states the student has difficulties with , skills, , skills and . The recommendation is that the student receive a week for in a setting.

The Evaluation dated November 13, 2014 (Exh. Q) states the following: the student presents with skills that demonstrate some and delay. The student appears to have difficulties. He has difficulty , .

The student has difficulty , . The student

should receive .

The Psychoeducational Evaluation dated December 1, 2014 states the student’s is ; is ; is ; was as follows: : ,

: ; : , : ;

: ; : ; : . There

was no problems noted at the time.

DISCUSSION

SECTION 504

Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified handicapped individual in the United States ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....” 29 U.S.C. § 794; see also Robinson v. District of Columbia, 535 F.Supp.2d 38, 42

(D.D.C.2008) (“Section 504 prohibits programs and entities that receive federal funding from denying benefits to, or otherwise discriminating against, a person ‘solely by reason’ of that individual's handicap.”). In the context of cases involving children who receive benefits pursuant to the IDEA, courts have consistently recognized that in order to establish a violation of § 504, “ ‘something more than a mere failure to provide the free appropriate education required by [the IDEA] must be shown.’ ” Lunceford v. District of Colum bia, 745 F.2d 1577, 1580 (D.C.Cir.1984) (quoting M onahan v. N ebrask a, 687 F.2d

1164, 1170 (8th Cir.1982)); see also Robinson, 535 F.Supp.2d at 42 (citing cases).

“Specifically, plaintiffs must show either bad faith or gross misjudgment on the part of the governmental defendants.” Robinson, 535 F.Supp.2d at 42.Lucas v. D.C., 683 F.

Supp. 2d 16, 18-19 (D.D.C. 2010)

The parent has failed to present any evidence on a §504 claim and failed to meet their burden. The claim for services is denied.

ASSISTIVE TECHNOLOGY

One of the special factors that a CSE must consider in developing a student's IEP is whether the student "requires assistive technology devices and services, including whether the use of school-purchased assistive technology devices is required to be used in the student's home or in other settings in order for the student to receive a [FAPE]"

(8 NYCRR 200.4[d][3][v]; see 20 U.S.C. § 1414[d][3][B][v]; 34 CFR 300.324[a][2][v]).

Accordingly, the failure to recommend specific assistive technology devices and services rises to the level of a denial of a FAPE only if such devices and services are necessary for the student to access his educational program (see, e.g., Application of the Bd. of Educ., Appeal No. 13-214; Application of a Student with a Disability, Appeal No.

11-121).

Upon review of the evidence in the hearing record, the CSE had no information available to it identifying any need to assess the student for — nor does the parent now allege that she requested an evaluation of the student or otherwise specify what the student required. The parents have failed to meet their burden. The request for is denied.

COMPENSATORY SERVICES

The IDEA allows a hearing officer to fashion an appropriate remedy of compensatory education to make up for denial of a free and appropriate public education.

P. ex rel. M r. & M rs. P. v. Newington Bd. of Ed., 546 F.3d 111, 123 (2d Cir. 2008) citing

M rs. C. v. Wheaton, 916 F.2d 69, 75–76 (2d Cir.1990); see also Reid v. District of Columbia, 401 F.3d 516, 518 (D.C.Cir.2005). 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 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].

2012 – 2013 School Year

Parent’s counsel in her closing statement suggests the student receive hours.

On February 27, 2013 the parents and the , requested evaluations. The letter states that attached to the request was a Evaluation and Evaluation. Additionally the student had taken a which resulted in “ . (Exh. F) The and evaluations were not submitted into evidence.

The parent consented for the student to be evaluated on May 15, 2013. (Exh. G)

On February 8, 2013 the conducted an evaluation. (Exh. E) The results w ere as follows: : ,

: ; : ; :

; : ; : ;

The recommendation was for weekly for .

A Psycho-educational evaluation was conducted on May 13, 2013. (Exh. I)

According to the Psycho-educational evaluation a Social History was conducted on May 13, 2013. At the time of the Psycho-educational evaluation the student was old. The student’s is “ ” The scores were as follows: which measures was at “ ” (which may be due to and a ); which measures score was

A “ ”

“ ” The student has and .

The parent through her affidavit stated that the student had an evaluation with at the end of the 2012 – 2013 school year. (Exh. B) The parent testified that she did not provide the school district with a copy of that evaluation. (T. 23, 24)

Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320). Within 60 school days of the receipt of consent to evaluate for a student not previously identified as having a disability, or within 60 school days of the referral for review of the student with a disability, the board of education shall arrange for appropriate special programs and services, 8 NYCRR §200.4(d).

School Year 2013 - 2014

The parent signed the consent on May 15, 2013. Sixty days later, the school district was required to conduct an IEP meeting, July 12, 2013 (Exh. G). The documents the IEP team would have had before them were the Psycho-educational Report (Exh. I), a Social History dated May 13, 2013, an Report dated February 8, 2013 (Exh. E) and possibly a E valuation conducted by the student’s School. No IEP meeting occurred in July 2013. The parents chose not to submit into evidence the Social History and the Evaluation. Based on the documentation submitted into evidence, the Psycho-educational results of an score “ ” (Exh. I) and recommendation for a week for (Exh. E); it is unclear whether the IEP team would have found that the student needed special education services.

School Year 2014 – 2015

In the Psycho-educational evaluation dated December 1, 2014 the student’s scores were as follows: – ; in scores were ; scores were .

(Exh. S) A Evaluation dated November 13, 2014 indicates the following: “Testing Materials are not available in standardized form for this child’s background. Use of a standard score in the domain would be inaccurate and misleading due to lack of validity and reliability of the testing materials

(CLEF 5).” The student presents with skills that demonstrate some and delay. The student has difficulties. The student has difficulties , . The student has difficulty and . The student qualifies for services.

He should receive services. (Exh. Q)

In an Evaluation dated November 13, 2014, the following were the results of the evaluation: the student has difficulty with ; skills, ; skills and . There

is a recommendation for a week for , . (Exh. P)

In the Classroom Observation dated December 4, 2014, the student’s teacher reported that the student is level in and the student’s , . is a difficult area. The student is on a level. (Exh. R) No progress reports (report cards) or documents of assessment were submitted into evidence.

Parent’s request compensatory education for at an enhanced rate.

“

” (8 NYCRR 200.1

Parents do not challenge the student’s classification. The information submitted regarding the student’s is as follows:

1. On December 4, 2014, while the student was in the , he was at a level. (Exh. R)

2. On December 1, 2014 the student’s scores were .

(Exh. S)

3. May 13, 2013 the student’s score was . (Exh. L)

Within the Second Circuit, compensatory 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)

There is inadequate documentation and conflicting information to support that the student is in need of services. The parent has failed to meet their burden as to

.

Parents request compensatory education for a private to be provided at an enhanced rate by a provider of the Parents’ choosing. The information submitted regarding the student’s is as follows:

1. The Evaluation dated November 13, 2014 (Exh. P)

recommendation is that the student receive a week for in a setting.

2. The Evaluation dated February 8, 2013 (Exh. E)

recommendation is for weekly for minutes.

3. The IEP dated February 12, 2015 (Exh. L) recommends a week of for minutes. No report was submitted as to the student’s progress with the .

Based on the evaluations, I find the student should receive hours of compensatory for minutes each. The hours are calculated from September 2014 to February 2015. The district should provide the immediately to deliver these services. The services should be delivered before November 1, 2015 in addition to the current services provided.

Parent requests to be provided at an enhanced rate by a provider of the Parents’ choosing. The documentation provided was as follows:

1. The Evaluation dated November 13, 2014 (Exh. Q)

recommends .

2. The IEP dated February 12, 2015 (Exh. L) recommends / a week for minutes; a week

for minutes.

A prior evaluation was conducted on February 2013 by the student’s school but was not submitted into evidence. (Exh. F) There was no testimony or documentation if and when this evaluation was provided to the school district. The district’s evaluation was conducted in November. The IEP was created in February. In between November and February there were several holidays and a vacation period. I do not find that there was a delay in services. The parents have failed to meet their burden.

The request for compensatory services is denied.

REIMBURSEMENT

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, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington

v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d a t 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii];34 CFR

300.148).

The parent in her affidavit provides little information regarding services.

There is no name of the , no qualifications, no amount of hours or cost of the services. The parent has failed to meet their burden. The request is denied.

INDEPENDENT EVALUATIONS

The parent has a right to obtain an independent educational evaluation [(IEE)] at public expense" (8 NYCRR 200.5[g][1]; see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502[b]; see also K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan.

13, 2012] [noting that "a prerequisite for an IEE [at public expense] is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of Educ., 363

F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated the parent's claim for an IEE at public expense]).

No testimony or evidence was submitted indicating that the parent had disagreed with any evaluations conducted. Parents have failed to meet their burden. Parents’ request for an independent evaluation is denied.

Parent requests a evaluation. A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]). The parents submitted no testimony or evidence to support their request. Parents have failed to meet their burden. Parents’ request for additional evaluations is denied.

New Individual Education Plan

Parent requests an immediate IEP. The IEP dated February 12, 2015 (Exh. L)

recommends the following: times per week for period; a week for period; a week of for minutes; / a week for minutes; a week for minutes. No testimony or evidence was submitted to support different or additional services than provided on the IEP. Based on the evaluations the IEP team had the recommendations are appropriate to address the student’s deficits. The parents have failed to meet their burden. The parents’ request is denied.

IT IS HEREBY ORDERED that the student is to received hours compensatory , to before November 2015.

Dated: May 15, 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

PARENT

A Amended Impartial Hearing Request, dated 3/10/15, 7 pages

B Affidavit of - dated 4/27/15, 5 pages

C Affidavit of , 44 N/A dated - -, - - pages

D Affidavit of , dated 4/9/15, 2 pages

E Evaluation, dated 2/8/13, 3 pages

F Letter from Parents and , dated 2/27/13, 1 page

G Assessment Planning, dated 5/13/13, 3 pages

H Classroom Observation, dated 5/14/13, 1 page

I Psycho-Educational Evaluation, dated 6/12/13, 5 pages

J Student Information, dated 2/26/15, 2 pages

K Prior Written Notice, dated 2/26/15, 4 pages

L IEP dated 2/12/15, - - pages

M CSE Meeting Notice, dated 2/11/15, 3 pages

N Meeting Minutes, dated 2/12/15, 4 pages

O Assessment Planning and Consent, dated 5/13/13, 5 pages

P Evaluation, dated 11/13/14, 11 pages

Q Evaluation, dated 11/13/14, 5 pages

R Classroom Observation, dated 12/4/14, 2 pages

S Psycho-educational Evaluation, dated 12/1/14, 4 pages

T Letter, dated 2/10/15, 1 page