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: August 13, 2015

Actual Record Closed Date: August 24, 2015

Hearing Officer: Roslyn Roth, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 13, 2015

Attorney — Student

Parents

Center Director, (Via Telephone) — Student

Impartial Hearing Representation Office — DOE

Impartial Hearing Representation Office — DOE

PROCEDURAL BACKGROUND

This hearing was held pursuant to New York Education Law § 4404(1), 20 U.S.C.

§1415(f), the Individuals With Disabilities Act (“IDEA”). In accordance with the Parents’ Request for the Hearing dated March 30, 2015, I was appointed to hear this matter.

Timely extensions were given. The hearing took place on August 13, 2015. The parent submitted 7 exhibits, “A-G” and called 2 witnesses in support of her position. The following witnesses testified on behalf of the parent: the parent and the Center Director of the (“ ”). The Department of Education submitted 7 exhibits in support of its position. (List of Exhibits annexed hereto as “Attachment A”).

The Parent was represented by counsel, the Department of Education (“DOE”)

presented its case through a District representative. The parent’s Due Process Complaint alleges that the student did not receive a free and appropriate public education, (“FAPE”)

for the 2013-2014 and 2014-2015 school years. The parent asserts that the student did not make meaningful progress in his special education program and that as a result of the DOE’s failure to provide appropriate services, the student did not achieve the level of mastery that he would have received. The parent is seeking of to be provided by the ; that . d/b/a be reimbursed for the cost of the student’s and : that the student be : that the student be provided with : that the student be given a evaluation and that the DOE reconvene in light of the diagnostic evaluations performed by and the evaluation.

The District conceded that it denied the student FAPE for the 2013-2014 and 2014- 2015 school years. However, the District asserts that the parent’s requested relief is inappropriate. Additionally, the District argues that a finding that the student was denied FAPE does not, in itself, entitle the parent to the relief. The District asserts that the number of hours requested is inappropriate and that the kind of support that the student requires is of a certified special education teacher (“ ”).

The District requests that the student should be awarded sessions to be provided by duly qualified special education certified DOE staff.

FINDINGS OF FACT

The student is and scheduled to enter the in September 2015. He is classified as a student with a learning disability and for the 2013-2014 and 2014-2015 school years attended a class with , a teacher and a teacher’s assistant. His current classification and placement are not in dispute. Review of the psychoeducational evaluation performed on 5/21/14 reveal that his fall within the .

Additionally, his were and he was able to his ideas. Academically, the student performed on a . Moreover, as the student was requested to (Ex D)

According to his classroom observation dated 5/20/14, the student required constant to . (Ex E)

The student was given a evaluation on 4/22/15 which provided an adequate assessment of the student’s .

(Ex 7)

The issue for consideration is whether the parent's requested remedy of "

" in the form of of individualized instruction from the is appropriate to remedy the district's denial of a FAPE for the 2013- 2014 and 2014-2015 school years.

The student attended a class in for the 2013- 2014 and 2014-2015 school years. The parent testified that she disagreed with the public school placements and requested at the student’s IEP meeting. (TR

119) She also testified that she did not believe her son would benefit from individual services from a District special education teacher, (“ ”). She did believe that the from would benefit the student. Additionally, she testified that her son should be able to go to on his own and on

. (TR 120, 123)

The representative from the testified that the student was evaluated at the and that he displayed significant academic deficits. According to the tests performed at the , the student performed on a in and and on a in . (TR 56, 58, 59, 60) The witness was not familiar with whether the tests used were valid for the assessment of students with disabilities.

Furthermore, notwithstanding the student’s , the witness testified that based on her experience, the student required of . (TR 65, 66) The witness testified that she is not a special education teacher and that she did not conduct the student’s evaluations, but that she spoke with the examiner. (TR 84) She also testified that the does employ certified special education teachers and that it is available for instruction

. (TR 80)

CONCLUSION OF LAW

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]).

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, relief in the form of or has been awarded to such students if there has been a denial of a FAPE (see E.M. v. New Y ork City D ep't of Educ., 2014 WL 3377162 [2d Cir. Jul. 11, 2014] [noting that "when parents believe the local public school district has denied their child a FAPE, one option available to them is to keep the child enrolled in public school and seek administrative (and, later) judicial review of the child's IEP for the purpose of obtaining "] [internal quotations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]

[stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and ...

is an available option under the Act to make up for denial of a [FAPE]"]; S.A . v. New Y ork City D ep't of Educ., 2014 WL 1311761 [E.D.N.Y. Mar. 30,

2014]; B.M. v. New Y ork City D ep't of Educ., 2013 WL 1972144 [S.D.N.Y. May 14,

2013], aff'd, 2014 WL 2748756 [2d Cir. June 18, 2014] [finding "no basis for an award of " where "the alleged procedural violations ... [we]re not sufficient to support a finding that [the student] was denied 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 may be awarded to students under the age of twenty-one]). The award of c " " to students who remain eligible to attend school and have been denied appropriate services, is appropriate if such deprivation of instruction could be remedied through the provision of 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 an SRO 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 reading instruction to an 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 " services to remedy the deprivation of such services].

The purpose of an award of is to provide an appropriate remedy for a denial of a FAPE (see E.M., 2014 WL 3377162; Newington, 546 F.3d at 123 [holding that is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W . v. Puy allup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "(a)ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]; A pplication of the Dep't of Educ., Appeal No. 11-075;

A pplication of a Student with a Disability, Appeal No. 10052). Accordingly, an award of 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 [holding that awards should be designed so as to "appropriately address[ ] the problems with the IEP"]; S.A ., 2014 WL 1311761

[ "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]; see also Draper v. A tlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that

"(c) awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M ., 478 F.3d 307, 316 [6th Cir. 2007]

[holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that is a "replacement of educational services the child should have received in the first place" and that awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puy allup, 31 F.3d at 1497 ["[t]here is no obligation to provide a day-for-day compensation for time missed"]; A pplication of a Student with a Disability, Appeal No. 13-168; A pplication of the Dep't of Educ., Appeal No. 12-135; A pplication of the Dep't of Educ., Appeal No. 11-132; A pplication of a Student with a Disability , Appeal No. 11-091).

The evidence supports the parents’ claim that the failure of the DOE to provide appropriate services resulted in a lack of educational progress. However, I am not persuaded that the provision of is an appropriate remedy. Although the parent’s request for in the form of individualized academic instruction is upheld, I find that he is entitled to for the 2013- 2014 and 2014-2015 school years, which amounts to as for the denial of FAPE. The student may utilize these during the period beginning September 1, 2015 through to and including August 30, 2016.

With reference to the evaluations conducted by the ,I find that the DOE is not financially responsible for the evaluation. Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see 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 a parent's claim for an IEE at public expense]). A parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an evaluation with which the parent disagrees" (34 C.F.R. § 300.502[b][5]; 8 NYCRR 200.5[g][1]; see R.L., 363 F. Supp. 2d at 234-35). In this case, the parent submitted no evidence that she disagreed with the evaluations conducted by the DOE. Moreover, there is no evidence that the parent requested an independent educational evaluation and most importantly, that the evaluations were submitted to the DOE in furtherance of the student’s Individualized Educational Plan, (“IEP”).

ORDER:

The student shall receive of individualized educational instruction at the , to be provided by certified special education teachers; these hours may be used by the student during the period effective September 1, 2015 through to and including 8/30/2016.

The DOE shall fund of the student at the at the rate of .

The DOE shall provide for the student to attend

the .

At the discretion of the Parent and in consultation with the , the student may receive services on The request for reimbursement for the evaluations conducted by the is denied.

The request for an evaluation is denied.

The DOE shall fund an evaluation to determine whether the student requires to address his .

The DOE shall reconvene the student’s 2014-2015 IEP meeting to address the student’s evaluation and the services provided by .

The student’s shall provide any assessments conducted of the student to the student’s classroom teacher and related service providers.

The student’s shall consult with the student’s classroom teacher and related service providers to ensure the consistency in the student’s educational program.

Dated: August 26, 2015

ROSLYN ROTH, 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.

ATTACHMENT A

DOCUMENTATION ENTERED INTO THE RECORD ON BEHALF OF THE

PARENT

A Impartial Hearing Request dated 5/30/15 9 pages

B Huntington Evaluation dated 1/17/15 52 pages

C DOE Student Progress Report dated 6/27/14 1 page

D Report dated 5/21/14 5 pages

E Classroom Observation dated 5/20/14 1 page

F Letter dated 3/10/14 1 page

G Child Mind Institute Letter dated 5/23/14 1 page

DOCUMENTATION ENTERED INTO THE RECORD ON BEHALF OF THE

DEPARTMENT OF EDUCATION

1 Due Process Complaint dated 3/30/15 9 pages

2 IEP dated 6/3/15 15 pages

3 Prior Written Notice dated 6/4/15 4 pages

4 IEP dated 5/27/14 20 pages

5 Prior Written Notice dated 5/27/14 2 pages

6 IEP dated 11/6/13 16 pages

7 Eval dated 4/22/15 6 pages