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 17, 2015

May 7, 2015

Actual Record Closed Date: June 3, 2015

Hearing Officer: Colleen E. Parker, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 17, 2015

Parents

Impartial Hearing Representative — DOE

Impartial Hearing Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 7, 2015

Parents

Child — Student

Impartial Hearing Representative — DOE

INTRODUCTION

On February 19, 2015, the New York City Department of Education (“DOE”)

appointed me to act as the impartial hearing officer (“IHO”) in a case brought under the federal Individuals with Disabilities Education Act [20 USC § 1415(f)(3)] (“IDEA”) by the parent (“Parent”) of (“ ” or “Student”). The Parent requested the hearing by filing a due process complaint with the DOE on February 12, 2015. The resolution period expired on March 20, 2015. The Parent appeared pro se and participated in the hearings that were held before me on April 17, 2015 and May 7, 2015.

The DOE was represented by and .

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered, pursuant to IDEA, 20 USC § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq. and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

The Student is an old male currently in at

. He is classified as learning disabled and receives academic instruction in an classroom. Parent submitted a letter to Student’s school requesting an amendment to Student’s IEP in December and sent a second letter in January requesting an IEP meeting. Parent did not receive written responses to her requests, therefore; she filed for an impartial hearing.

ISSUES

Parent seeks an IEP to reflect the Student’s education needs and additional services for . (Exhibit, hereinafter Ex., 1). The DOE states that the request from the Parent was for more services to support the Student at school. In response to that request, a reevaluation was completed and the IEP meeting was scheduled for April 30, 2015. The DOE hoped that the IEP meeting would address the request in the complaint and would resolve the case. (April 17th Transcript, hereinafter T1, p 4). On April 17, 2015, the parties agreed to adjourn the hearing until after the April 30th IEP meeting. On

May 7, 2015, the parties appeared before me for another hearing. The Parent testified that she was still pursing additional services for for the Student. (May 7th Transcript, hereinafter T2). The following issues will be determined in this decision:

1. Whether the DOE denied the Student a free, appropriate, public education (“FAPE”) by failing to respond to Parent’s requests for an amendment to the

IEP; and

2. Whether, the Student should be awarded compensatory education.

FINDINGS OF FACT

After considering all the evidence, as well as arguments from both parties, this Hearing Officer’s Findings of Fact are as follows:

Parent has repeatedly requested that the Student receive additional support services to help address Student’s needs. The Student’s June 23, 2014 IEP states that the Parent had an interest for Student to receive “

(“ ”), in addition to his present program, to help address his and needs.” (Ex. 3-2). The Parent spoke with the Student’s teacher about her concerns relating to Student’s in November. (T2 p 26). Parent sent a letter to Student’s school in December of 2014 seeking an amendment to Student’s IEP to address his needs. (T2 p 23). After the first letter was sent, Parent spoke to a Ms.

who told her that she could not do anything and that the request had to go through the psychologist. (T2 p 23-24). Parent sent a second letter to the Student’s school requesting the Student’s IEP meeting be moved closer so that support could be added to the IEP. (T2 p27). Parent spoke with someone from the district who told her that they could not amend the IEP. Id. Parent then filed the due process complaint. (Ex. 1.) DOE’s documentation on the social history update, dated March 26, 2015, indicates that “parent wrote two letters to staff indicating that she wanted the IEP amended to address this concern [Student’s ability] but no specific action was taken.” (Ex. 9).

At the April 17th hearing, the District representative, Ms. , stated that an IEP meeting for this Student was scheduled for April 30, 2015. The District hoped that the result of the IEP meeting would be to address the request in the complaint and resolve the case. (T1 p 4). The parties agreed to another hearing date if the matter was not resolved as a result of the IEP meeting. (T1 p 7-8).

The DOE held an IEP meeting on April 30, 2015 for the Student. (T2 p 14).

According to the documentation in evidence, a social history update, education evaluation report and a classroom observation were conducted prior to the April 30th IEP meeting.

(Ex. 9-11). At the IEP meeting, the addition of services was discussed but the committee decided that it was not appropriate. (T2 p 35). The Parent agreed that the service would be too disruptive to Student and the DOE provided notice that a push-in would not be beneficial because Student already had the service and they would be working on his goals. Id. The committee agreed with the Parent to modify the goals to include more goals for and stated that they would have the teacher focus on “ ” (T2 p 13-14). Accordingly, the IEP, dated April 30, 2015, includes new goals to address Student’s needs.^[1] (Ex. 7).

At the May 7th hearing, the Parent testified that she was seeking services for the Student over the summer. (T2 p 22). Specifically, Parent is seeking a program that deals with . (T2 p32).

CONCLUSIONS OF LAW AND DISCUSSION

Based upon the above Findings of Fact, the arguments of both parties, as well as this Hearing Officer’s own legal research, the Conclusions of Law of this Hearing Officer are as follows:

Purpose of the IDEA

The purpose of the Individuals with Disabilities Education Act (“IDEA”) (20 U.S.C. §§ 1400-1482) is to ensure (1) that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[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]). 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. Paw ling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

Procedural Violation

The DOE failed to comply with procedural requirements set forth in the IDEA when it did not respond to the Parent’s requests for a meeting to amend the Student’s IEP.

Federal and State regulations require the DOE to review the IEP of a student with a disability periodically, but not less than annually to determine if the annual goals for the child are being achieved. 34 CFR 300.324[b][1][1]; 8 NYCRR 200.4[f]. The CSE must also revise a student's IEP as necessary to address "[i]nformation about the child provided to, or by, the parents" during the course of a reevaluation of the student (34 CFR

300.324[b][1][ii][C]; 8 NYCRR 200.4[f][2][ii]), and State regulations provide that if parents believe that their child's placement is no longer appropriate, they "may refer the student to the [CSE] for review" (8 NYCRR 200.4[e][4]). In a guidance letter, the United States Department of Education indicated that parents may request a CSE meeting at any time and that if the district determines not to grant the request, it must provide the parents with written notice of its refusal, "including an explanation of why the [district] has determined that conducting the meeting is not necessary to ensure the provision of FAPE to the student" (Letter to Anonymous, 112 LRP 52263 [OSEP Mar. 7, 2012]; see 34 CFR

300.503; 8 NYCRR 200.5[a]).

Here, the Parent requested a meeting to amend the Student’s IEP on occasions, in December of 2014 and January of 2015, and the DOE did not respond to her requests. Although the Parent did not have copies of the letters she sent to the DOE, she testified as to sending and discussing them with DOE staff in December and again in January. I find the Parent’s testimony to be credible. Her testimony is corroborated by the DOE’s own documentation. The DOE’s social history update, dated March 26, 2015, indicates that the Parent requested an amendment to her son’s IEP in two letters to the school but no specific action was taken. (Ex. 9-1). Additionally at the May 7th hearing, the DOE’s representative summarized the April 30th meeting and stated that the IEP team confirmed “that the parent had made previous requests for IEP meetings, but they did not have an IEP meeting prior to this one.” (T2 p 14).

By failing to respond to the Parent’s requests for an IEP meeting, the DOE violated state and federal regulations requiring the district to convene an IEP meeting [8 NYCRR 200.4[e][4]] or put into why the district determined that a meeting was not necessary. CFR 300.503; 8 NYCRR 200.5[a]). Accordingly, I find there was a procedural violation of the IDEA by the DOE.

Denial of FAPE

Although 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 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carm el Cent. Sch. Dist., 2007 WL 465211 [S.D.N.Y. Feb. 9, 2007]). A hearing 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 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H.

v. Bd. of Educ., 2008 WL 3930028 [N.D.N.Y. Aug. 21, 2008]; M atrejek v. Brew ster Cent.

Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir.

Aug. 19, 2008]).

The DOE’s failure to convene a CSE, until Parent filed a due process complaint, impeded the student’s right to FAPE, significantly impeded the Parent’s opportunity to participate in the process and caused the Student deprivation of educational benefits. If the CSE had convened prior to the April 30th meeting, the Student would have been re-evaluated earlier and the IEP would have reflected the new goals addressing his needs at an earlier date. Assuming that the timing for re-evaluation, meeting, and implementation would have been the same if the DOE responded to the Parent’s initial request for amendment in December, the Student could have been received an appropriate IEP and instruction to address his needs in February.^[2]

The DOE’s procedural violation impeded the Student’s right to FAPE and deprived the Student of educational benefits for months (from February to May).

Additionally, the DOE’s failure to convene a CSE meeting impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student. The parent did not have an opportunity to participate in the process since the DOE did not convene a CSE meeting.

Student Entitled to Compensatory Education

Parent’s request for additional special education services to support the Student’s needs constitutes a request for compensatory education services. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (W enger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). Although the parties agreed at the April 30, 2015 IEP meeting that the revised IEP that would address Student’s needs in the future, as discussed above, the DOE failed to provide a FAPE for the Student for months by not responding to Parent’s request for an IEP meeting. Accordingly, this denial of

FA PE triggered a right to compensatory education.

The Second Circuit has awarded compensatory education to students in the form of supplemental special education or related services 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 Y ork City D ep't of Educ., 2008 WL 4890440 [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 LEXIS 113149 [S.D.N.Y. March 6, 2008]). State Review Officers have also 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]; A pplication of a Student with a Disability Appeal No. 09-111 [adding summer instruction to an additional services award]; A pplication of the Bd. of Educ., Appeal No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction];

A pplication of a Student with a Disability, Appeal No. 09-044 [awarding "make-up" services to remedy the deprivation of such services]; A pplication of a Student with a Disability, Appeal No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; A pplication 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]; A pplication of the Bd. of Educ., Appeal No. 08-060 [upholding additional services awards of physical therapy and speech-language therapy];

A pplication of a Student with a Disability , Appeal No. 08-035 [awarding ten months of home instruction services as compensatory services]; A pplication of the Bd. of Educ., Appeal No. 06-074; A pplication of a Child with a Disability, Appeal No. 05-041;

A pplication of a Child with a Disability, Appeal No. 04-054).

In this case, additional educational services in the form of to address Student’s needs constitutes a viable, equitable remedy for the DOE’s failure to offer the student a FAPE from February to May.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered that the DOE provide the Student with services, addressing the Student’s needs, for hours a week for weeks during the summer of 2015.

Dated: June 3, 2015

COLLEEN E. PARKER, 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 ON MAY 7, 2015

DEPARTMENT OF EDUCATION:

Item Date Description Pages

1 2/12/15 Due Process Complaint 2

2 2/27/15 Unsigned Resolution Agreement 4

3 6/23/14 IEP 13

4 3/12/15 Request for Re-evaluation 1

5 3/13/15 Consent for new testing and assessments 1 6 4/14/15 Meeting Notice Committee on Special Education 3

7 4/30/15 IEP 13

8 4/30/15 Prior Written Notice 5

9 3/26/15 Social History Update 1

10 4/1/15 Education Evaluation Report 3

11 4/28/15 Classroom Observation 1

12 2014-2015 Report Card (2nd Marking Period) 1

Footnotes

[1] In the June 23, 2014 IEP, there was only one goal for . (Ex. 3). On the IEP dated April 30, 2015, there are four goals that involve and two of those focus on skills required for .

[2] It took about two months from the time the Student was re-evaluated (March) to the time the new IEP was implemented (May).