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: June 19, 2014

August 13, 2014

September 17, 2014

September 24, 2014

October 22, 2014

Actual Record Closed Date: March 19, 2015

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 19, 2014

Attorney — Student

mother — Student

father — Student

interpreter — Student

attorney — DOE

(Via Telephone) — DOE

Teacher — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 13, 2014

Attorney — Student

Attorney — DOE

Teacher (Via Telephone) — DOE

Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 17,

2014

ESQ., Attorney for Parent — Student

ESQ., Attorney for DOE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 24,

2014

Attorney — Student

Parents

Education Evaluator — Student

Interpreter — Student

District Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 22, 2014

Attorney — Student

Educational Evaluator — Student

DOE Attorney — DOE

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent, and the student will be referred to as Student. This is a compensatory education case. The hearing on this matter took place on, June 19, 2014, August 13, 2014, September 17, 2014, September 24, 2014, and October 22, 2014.

PARENT’S POSITION

CHILD FIND 2012-2013

In the complaint notice, dated April 16, 2014, the Parent alleges that the District denied the Student a Free Appropriate Public Education (FAPE) for the 2012-2013 school year by violating the “Child Find” law by failing to identify, evaluate and provide special education programing and services to the Student for the 2012-2013 school year. (Ex. A-4)

PROBLEMS WITH INTIAL EVALUATION 2013-2014

The Parent argues that the District also failed to perform mandated evaluations in conducting its initial evaluation of the Student, and in developing the Student’s August 2, 2013 Individualized Education Program (IEP). (Id.) In particular, the Parent alleges that the District failed to consider the Student’s evaluation; social history; and classroom observation. (Id.)

The Parent alleged that the District failed to perform other necessary evaluations, including but not limited to a - evaluation and a evaluation. (Id. at 5) However, these particular allegations were later withdraw. (Tr. 323; 330; 348)

EDUCATION 2012-2013

The Parent argues that the District failed to evaluate the Student’s with respect to education. (Id.) Likewise, the District failed to evaluate her need for education. (Id.) Accordingly, the Parent alleges that the IEP wrongly excludes to address this issue. (Id.)

TRANSLATION SERVICES 2012-2013

The Parent argues that the District erroneously identified language/spoken mode of communication as when in fact it is . (Id.) Thus, the District failed to provide copies of the Student’s report cards and progress reports in the Parent’s preferred mode of communication. (Id. at 6) The District similarly failed to provide copies of the evaluations considered by the Committee on Special Education (CSE), and this deprived the Parent of the opportunity to participate in a meaningful way. (Id.) Lastly, the Parent argues that the DOE failed to provide a certified translator to the Parent at the August 2, 2013 IEP meeting. (Id.) This failure also deprived the Parent of the opportunity to participate in a meaningful way in the decision making process regarding the Student’s education. (Id.)

RELIEF SOUGHT

The Parent seeks instructional services to compensate for the failure to provide any special education programing and related services through the 2012- 2013 school year. (Id.)

EDUCATION

The Parent seeks an order for an education evaluation to determine the Student’s needs, appropriate student-to-staff ratio, and supports with recommendations for annual goals. (Id. at 7)

TRANSLATION SERVICES

The Parent requests orders to compel the District to provide a translation of the Student’s current IEP and all past and newly completed evaluations at least ten (10)

days prior to any CSE or resolution meetings. The Parent also seeks an order to provide the Parent with a translation of the Student’s IEP within fifteen (15) days of development of the Student’s IEP. (Id.)

RELATED SERVICES

The Parent seeks a related services authorization for additional services outside the regular school day to remedy any failure to provide the related services of - to the Student during the 2012-2013 school year. (Id.)

OTHER RELIEF

The Parent made additional requests for copies of the Student ’s various educational records, and for the services of a interpreter for any resolution meeting or hearing in connection with the Complaint Notice. In addition, the Parent asks for payment of attorney’s fees and expenses in conjunction with representation in this matter, to include any additional relief the impartial hearing officer (“IHO”) deems appropriate.

DISTRICT’S POSITION

In response to the Parent’s child find claim, the District argues that it was not required to identify the Student in 2012-2013 and appropriately identified the child as having a disability by the summer of 2013 before the start of the 2013-2014 school year.

(Tr. 71) The District noted its intent to rebut arguments against the appropriateness of the IEP for the 2013-2014 school year. (Id.)

To the extent that any allegations in connection with the 2010-2011 and 2011- 2012 school years are considered, the District expressed its belief that such violations are barred by the statute of limitations. Nevertheless, the District stated its intent to oppose alleged violations in connection with the 2010-2011 and 2011-2012 school years. (Id. at 72)

STUDENT HISTORY

The Complaint Notice was filed on or about April 16, 2014. (Ex. B-1) At that time, the Student was a ( ) year old girl attending the ) grade. (Id.) The Student has a classification of . (Id.) The Student’s is , but she is also able to speak . (Id.) Both and are spoken in the Student’s . (Ex. 3-2)

Academic Year Grade Attended by Student

2010-2011 Grade

2011-2012 Grade

Claims accrue on April 16, 2012 per

Statute of Limitations

2012-2013 Grade 2013-2014

First year with an IEP

Complaint Notice filed April 16, 2014

2014-2015 (To present) Currently Attending Grade

Upon completing the ) grade, the Student was administered a psychoeducational evaluation on or about July 19, 2013. (Ex. 1) The Student was assessed via the ). (Id. at 3). A summary of the results of that assessment indicated the following:

The Student’s (Ex. 1-6).

The Student’s social history was taken simultaneously with the psychoeducational evaluation. (Ex. 3) The Parent reported that the Student attended at a private school. (Ex. 3-1) There, the Student (Id.) The Student attended at the same private school. (Id.) In , the Student . (Id.) She (Id.) The Student transferred to public school for the ( ) grade. (Id.) The Student (Id.) In (Id.) The Student (Id.) The Student passed the grade during the 2013-2014 school year. During the Parent’s rendition of the Student’s history, the Parent disclosed an in 2012. (Id. at 4)

Student. (Id.) The Parent reported that the Student was (Id.) She (Id.)

A classroom observation was also conducted on July 19, 2013. (Ex. 4) The

Student reportedly (Ex. 4-1)

The Student was administered a - evaluation in the week following the psychoeducational evaluation. (Ex. 2) Noteworthy in this evaluation was the Student’s (Ex. 2-1) The Student had (Id. at 2)

The Student had (Id.) The evaluator recommended that the Student receive (Id.)

Also in the record are the Student’s report cards for the 2011-2012 and 2012-2013 school years. (Ex. 7; 8) In sum, the Report cards reflect the accuracy of the aforementioned evaluations. (Id.) The Student’s overall performance was , despite by the Student. (Id.)

OVERVIEW

At the time of the Impartial Hearing Request, the Student was a ( ) year old girl, attending the ) grade. The Student’s parents were born in , and the Parent speaks both and . (Ex. 3-2) The Student’s is , and she is reportedly still in the process of learning . (Id.) As set forth above, the Student . (Id. at 3) The Parent alleges that she expressed her concerns about the Student as early as the 2011- 2012 school year, when the Student was in ) grade. (Ex. A-4) The District argues that allegations in connection with this school year should be barred from consideration by the statute of limitations. (Tr. 71-72)

The Parent argues that she continued to express her concerns while the Student was attending ) grade during the 2012-2013 school year. (Ex. A-4) The Student

( ) and had to , where she

eventually passed. (Ex. 3-3) The Parent argues that she repeatedly sought evaluative help from the District during this school year. (Ex. A-4) The District allegedly ignored the Parent’s requests, and this is a key tenet of the Parent’s child find claim. (Id.) The District’s alleged failure to respond is also the basis of the Parent’s several allegations that the District failed to evaluate. (Id. at 4-5) Though, I note that some of these allegations were withdrawn. (Tr. 348)

On or about August 2, 2013, the CSE created an IEP to be implemented during the 2013-2014 school year—the Student’s ( ) grade year. (Ex. B) This was the first IEP

created for the Student. (Tr. 354) The Parent argues that this IEP was not informed by proper evaluative material. (Ex. A-3-6) The IEP was never implemented at the public school because the Student switched schools and attended a private school in ( )

grade. (Tr. 352) However, this is not a reimbursement case. The Parent seeks compensatory education services in light of the District’s alleged failure to recognize the Student’s disability and properly evaluate her. (Ex. A-6-7)

FINDINGS OF FACT

The following conclusions based on evidence shall be considered factual findings in this case:

1. The District had knowledge of the Student’s need for evaluation for special education services during the 2011-2012 school year. (Tr. 237)

2. The Teacher first spoke with the Parent in November of 2011 about the Student’s performance. (Id. at 213) (Id.)

3. During the Student’s ) grade year, the Teacher explained to the Parent that she should consider having the Student evaluated to determine eligibility for special education services. (Id. at 214)

4. The Parent knew evaluations for special education services were available to the Student while the Student was in the grade during the 2011-2012 school year. (Tr. 400; Ex. A-4)

5. The Student’s grade Teacher knew that a teacher could make a unilateral referral to the CSE, but nonetheless neglected to do so. (Id.)

6. The District ultimately failed to identify the Student during the 2011-2012 school year as a student in need of evaluation for special education services. (Id.)

7. The Parent was given evaluation forms that were to be completed by the Student’s pediatrician. (Tr. 111)

8. The Parent neglected to return the Student’s evaluation forms to the District. (Id.)

9. The District fulfilled its obligation to conduct a social history and classroom observation of the Student. (Ex. 3; 4)

10. The District considered a evaluation of the Student completed by the school nurse. (Tr. 112)

11. The District fulfilled its obligation to consider all mandatory evaluations in the formation of the August 2, 2013 IEP. (Ex. 1; 3; 4; Tr. 111-12)

12. The District met its obligation to conduct a - evaluation prior to the formulation of the August 2, 2013 IEP. (Ex. 2)

13. The Student’s participation in . (Ex. B-2)

14. The Student participates in a program. (Tr. 113)

15. The evidence was insufficient to suggest that the Student requires an education program. (Ex. B-2; Tr. 113)

16. The District was not required to provide for an education program. (Id.)

17. The Parent was able to understand questions posed to her in . (Tr. 345-439)

18. The Parent offered coherent testimony in . (Id.)

LEGAL BACKGROUND

The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (FAPE). 20 U.S.C. § 612(a) (I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a) (1) (A). The IDEA defines a FAPE as special education and related services that: (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the state educational agency; (C) include an appropriate preschool, elementary, or secondary school education in the state involved; and (D) Are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).^[1]

A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an IEP (20 U.S.C. § 614(d)). The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. W east, 546 U.S. 49, 53 (2005) The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14) In New York State, the IEP is produced by a committee on special education (CSE), whose members are appointed by the board of education or trustees of the school district. (N. Y. Educ. Law § 4402(1) (b) (1) (McKinney Supp. 2005))

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. (See generally 20 U.S.C. § 615) These procedures include the opportunity for parents to obtain an independent educational evaluation of the child, (20 U.S.C. § 615(b) (I)) and file a complaint with the state or local educational agency. (20 U.S.C. § 615(b) (6)) Any such complaint is resolved through an "impartial due process hearing" in which parents of disabled children have "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child." (20 U.S.C. § 615(b) (6)) Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. B oard of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002)

In New York State, “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing . . .” (NY Educ. Law § 4404 (1)(c)) modifying the rule enunciated in Schaffer where “The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537

With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. (20 U.S.C.

§ 615(g)) New York has elected to employ the two-tier approach. (N.Y. Educ. Law § 4404 (McKinney Supp. 2005)); accord, Heldman v. Sobol, 962 F.2d 148, 152 (2nd Cir., 1992) Under the New York scheme a parent who wishes to challenge his or her child's IEP is entitled to a due process hearing conducted by a hearing officer appointed by the local board of education. (N.Y. Educ. Law § 4404(1) (McKinney Supp. 2005)) A party dissatisfied with the decision of the hearing officer has the right to appeal the hearing officer's decision to a State Review Officer. (SRO) (N.Y. Educ. Law § 4404(2)

(McKinney Supp. 2005)) After these administrative remedies have been exhausted, a party may bring a proceeding pursuant to Civil Practice Law and Rules Article 4 in state court or a federal action under Section 615(i) (2) of the IDEA. (20 U.S.C. § 615(i) (2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp. 2004)

CHILD FIND LAW

The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see H andberry v. Thompson, 446.

F.3d 335, 347-48 [2d Cir. 2006]; A .P. v. Woodstock Bd. of Educ., 572 F.Supp.2d 221, 225 [D. Conn. 2008] aff'd 2010 WL 1049297 [2d Cir. March 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 C.F.R. § 300.111; 8 NYCRR 200.2[a][7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.111[a][1][i]; Forest Grove, 129 S. Ct. at 2495; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400, n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.111[c][1]; see 8 NYCRR 200.2[a][7]).

To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children (Application of a Student Suspected of Having a Disability, Appeal No. 10-009). Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (Application of a Child Suspected of Having a Disability, Appeal No. 05-127).

STATUTE OF LIMITATIONS

I turn now to the record in this case. I begin with the statute of limitations issue raised by the District. The District argued that claims in connection with the 2010-2011 and 2011-2012 school years were barred by the statute of limitations. The IDEA requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged action that forms the basis of the complaint. (20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; Educ . Law § 404[1][a]; 34 C.F.R. §

300.511[e]; 8 NYCRR 200.5[j][1][i]; Somoza v. New Y ork City D ep't of Educ., 538 F.3d 106, 114 n.8 [2d Cir. 2008]). Given this, claims made preceding April 16, 2012 should be precluded.

The Parent clarified that the request for compensatory education is specifically for the 2012-2013 school year. (Tr. 73) The 2012-2013 school year is subsequent to the 2

year statute of limitations. Accordingly, evidence in the record that pertains to prior years is offered only for its background relevance. (Tr. 73)

I agree that the events of the preceding academic years are relevant in that they provide a context for the ultimate remedy. On this point, I find that the District knew of the Student’s need for evaluation throughout the 2011-2012 school year. Also, I find that the District ultimately failed to “identify,” and “locate” the Student during this time because the Student was not referred to the CSE. (Tr. 237) A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (New Paltz , 307 F. Supp. 2d at 400, n.13, quoting Dep't of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]; see Application of a Child Suspected of Having a Disability, Appeal No. 06-092)

To determine that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate (A.P., 572 F.Supp.2d at 225, quoting Bd. of Educ. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los A ngeles Unified Sch. Dist. v. D.L ., 548 F.Supp.2d 815, 819 [C.D.Cal. 2008]

referencing 20 U.S.C. § 1400[c][5]). Additionally, the school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention programs (8 NYCRR 200.4[a]).

I credit the testimony of the Student’s teacher. She testified that she was responsible for teaching the Student all subjects during the 2011-2012 school year.

(Tr. 209) The Teacher testified that she knew the Student was struggling in (Id. at 210) The Teacher assessed the Student’s in class on different occasions using the . (Id.) The Student consistently registered level. (Id.) The Teacher first spoke with the Parent in November of 2011 about the Student’s performance. (Id. at 213) This was around the time of the Student’s . (Id.) The Teacher explained to the Parent that she should consider having the Student evaluated for services. (Id. at 214) This explanation was given to the Parent in . (Id. at 215) The Teacher testified that the Parent was hesitant to go forward with making a formal request.

(Id.) The Parent told the Teacher that she planned to get the Student instead. (Id.) During parent-teacher conferences in the second marking period, the Teacher informed the Parent that state exams were approaching and that they would be . (Id. at 216) The Parent was informed that a (“ ”) method was being used in class, where the Student was being instruction. (Id.) The Teacher explained that similar progress might result if the Student were to receive special education services. (Id.) The Teacher again suggested having the Student evaluated. (Id.) The Parent responded by saying that she would consider it; but the Teacher testified that she never received an indication to move forward from the Parent. (Id.)

Despite the Teacher’s urging to have the Student evaluated, I find that the District did not meet its obligation to identify, locate, and evaluate the Student. On cross-examination, the teacher testified that she believed a teacher could make a unilateral referral to the CSE, but that she neglected to do so. (Tr. 237) The Parent’s child find claim turns on this point.

Because the child-find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (Application of a Child Suspected of Having a Disability, Appeal No. 05-127). Furthermore, “school districts may not ignore disabled students’ needs, nor may they await parental demands before providing special instruction.” (Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005)

The Teacher stated that she believed the Parent was not interested in having the Student evaluated, and that she believed the Parent would not consent if the District began the evaluation process. (Tr. 236-38) Despite the Teacher’s assumption, the above-stated rule indicates that the District was required to find and evaluate the Student in the absence of the Parent’s affirmative consent. In light of the foregoing analysis, I agree with the Parent that the District violated the Child Find Law by failing to identify, locate, and evaluate the Student. I move next to the Parent’s allegation that the District failed to perform mandated evaluations for the next school year.

EVALUATIONS

The Parent alleges that the District failed to perform mandated evaluations that were needed to properly develop the Student’s August 2, 2013 IEP. (Ex. A-4) The Parent argues that the District simply failed to complete a evaluation; a social history; and a classroom observation. (Id.) An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (20 U.S.C. § 1414[d]; A pplication of a Child with a Disability , Appeal No. 02-092; A pplication of a Child with a Disability , Appeal No. 01-105).

Individual student evaluations are to include at a minimum (1) a examination, (2) an individual examination (except when appropriately determined to be unnecessary), (3) a social history, (4) an observation of the student in the current educational placement, and (5) other appropriate assessments or evaluations, including a for a student whose

(SRO No. 00-089)

In this instance, a psychoeducational evaluation was conducted on or about July 19, 2013. (Ex. 1) A comprehensive social history was taken on or about the same day.

(Ex. 3) The classroom observation was also conducted on or about July 19, 2013. (Ex. 4)

With respect to a separate evaluation, no such evaluation was offered as evidence in this case. However, the School Psychologist, whose testimony I credit, testified that the DOE’s practice is to provide the Parent with the examination forms, and the Parent is responsible for having the Student’s pediatrician fill out the forms. (Tr. 111) The Psychologist testified that the Parent did not return the evaluation forms to the District. (Id.) The Psychologist explained that a evaluation was faxed to the school, and it was her assumption that the school nurse conducted this evaluation. (Id. at 112) This evaluation was eventually used because it was the latest evaluation that the District had on file. (Id.) In light of the Psychologist’s testimony, I find that all evaluations considered mandatory were used in the formation of the August 2, 2013 IEP. The Parent’s allegation is therefore dismissed.

The Parent also alleged that the District failed to complete necessary evaluations, such as - and psychoeducational evaluations. This allegation appeared to be unfounded because both parties offered the - evaluation conducted on or about July 26, 2013, prior to the formulation of the August 2, 2013 IEP, as evidence.

(Ex. 2; C) The District offered the psychoeducational evaluation, which was conducted about one (1) week earlier. (Ex. 1) The Parent later withdrew this allegation. (Tr. 330)

The Parent claimed to be unaware that the evaluations were conducted; she discovered that they occurred after the hearing process started. (Id. at 323, 329-30)

EDUCATION

I consider next whether the District failed to adequately evaluate the Student’s learning needs with respect to education. The Parent argues that the District failed to evaluate the Student’s needs for a program of education, and to include on the IEP a provision for education services.

Pursuant to 8 NYCRR Section 200.4(d)(2)(vii)(c), when a student with a disability does not participate in a regular physical education program, the CSE must develop recommendations for the IEP that provide “the extent to which the student will participate in specially-designed instruction in physical education, including education.”

Here, the Student is classified as having a . (Ex. B-1) However, this Student participated in a program. (Tr. 113) For this reason, and others to follow, I find that 8 NYCRR Section 200.4(d)(2)(vii)(c) does not require the CSE to develop recommendations for the IEP that provide for specially-designed instruction in . 8 NYCRR Section 200.4(d)(2)(vii)(c) is only applicable where the student “does not participate in a program;” in this case, the Student does. Likewise, the Psychologist testified that there was no evidence of the need for an program. (Tr. 113) The Student did not have , and the Student was not . (Id. at 114) Upon these facts, I cannot find that the District was required to provide for an program.

The IEP does acknowledge that the Student’s participation in may be . (Ex. B-2) This is due to (Id. at 2) I note that these were also documented in the Social History Evaluation. (Ex. F-2) Despite these facts, the IEP states that the Student is able to participate in , and that . (Id.) Nevertheless, the IEP notes that the Parent will follow up with the Student’s . Upon the information before me, I find that the IEP adequately addresses the Student’s undiagnosed condition. The Parent’s allegation is dismissed.

COMPENSATORY EDUCATION

Regarding the remedy of compensatory education, I find guidance in Reid v.

District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and … mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]

Compensatory education relief may also 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, 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 P. v.

Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [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]"]; see generally R.C. v.

Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]).

In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education 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 compensatory education 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"]). Accordingly, an award of additional services 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 compensatory education awards should be designed so as to "appropriately address the problems with the IEP"]; see also Draper v. A tlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008]

[holding that "[c]ompensatory 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, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Parents of Student W . v. Puy allup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; A pplication of the Dep't of Educ., Appeal No. 11-132; A pplication of a Student with a Disability , Appeal No. 11-

091).

In this case, compensatory relief is awarded solely for the deprivation of FAPE during the 2012-2013 school year. Under 20 U.S.C. § 1412[a][3], the District has an affirmative obligation “to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services.” The District did not meet its obligation in this case because the Student’s teacher failed to refer the Student to the CSE. (Tr. 237) Although compensatory relief is awarded, the Parent’s award is limited by paucity of proof regarding the remedy and by equitable considerations.

The Parent testified that the Teacher did in fact discuss the Student’s performance with her. (Tr. 391) However, the Parent’s rendition diverges from the Teacher’s testimony on the issue; the Parent claims she was not specifically informed of the Student’s right to an evaluation. (Id. at 396) The Parent testified that it was not until the summer of 2012, while the Student was that she discovered the Student could be evaluated for special education services. (Id.)

The Parent alleged that she first learned of the right to an evaluation through the Student’s pediatrician . (Id. at 400) To be clear, this point is inconsistent with the Teacher’s testimony; she said that the Parent was advised to have the Student evaluated several times throughout the regular school year. The Parent’s testimony was also inconsistent with her Complaint Notice.

The Complaint states that the Parent repeatedly requested the school to evaluate the Student so that a determination could be made as to whether the Student suffered from a . (Ex. A-4) The Parent allegedly did this every year since 2011. (Id.) The Parent explained that this inconsistency was essentially . (Tr.

401) The Parent claimed that she did not mean to request an evaluation in the formal sense; rather; she intended only to seek any kind of help for the Student she could get.

(Id.) Here, I note the specific of the Complaint. Therein, the Parent stated that requests for evaluation were repeatedly made “so that a determination could be made as to whether the Student suffered from a disability and was in need of a special education program and related services.” (Ex. A-4) I find that the wording of this particular allegation indicates the Parent knew such evaluations were available to the Student. I find also that the Parent was further informed of such availability by the grade

Teacher.

Regardless of the Parent’s refusal to seek evaluative help for the Student, the grade Teacher did not refer the Student to the CSE. Thus, the District did not meet its obligation under 20 U.S.C. § 1412[a][3]. On the other hand, I find that the Parent had knowledge of the evaluative services available to the Student throughout the 2011-2012 and 2012-2013 school years.^[2] For this reason, the relief requested is limited only to an award for additional services that may place the student in the position she would have been in had the District complied with its obligations under the IDEA during the 2012- 2013 school year. Accordingly, the Parent’s request for provision of instructional services to compensate for the failure to provide any special education programing and related services during the 2012-2013 school year is granted. (Ex. A-6)

The record is incomplete so far it does not suggest an appropriate award for service hours needed to compensate for the deprivation of FAPE during the 2012-2013 school year. Therefore, this issue shall be remanded to the CSE for determination of an appropriate award for services. Here, I note the Parent’s testimony that the Student is likely to need hours of per week. (Tr. 435-

36) The Parent’s request for the CSE to reconvene to review all new evaluations for the purpose of developing an appropriate IEP for the remainder of the 2014-2015 school year is also granted. (Id. at 7)

The Parent’s request for an order to have a education evaluation undertaken is denied. (Id.) The Parent’s request for inclusion of a recommendation for an education program on the IEP is unsubstantiated by the record, and outside the scope of relief that may be granted by an IHO. (Id.) Also outside the scope of relief that may be granted are the Parent’s requests for educational records. An IHO’s authority to grant such relief is restricted by The Family Educational Rights and Privacy Act (FERPA), 20 USC 1232.

With respect to the Parent’s requests for the CSE to amend the IEP to reflect the Parent’s spoken mode of communication as , and for provision of a translation of the Student’s IEP within 15 days of development of the Student’s IEP, I find that these claims for relief are unnecessary. The Complaint Notice gives the impression that the Parent’s is , and that she has

Here, I note that the Parent testified in this matter. (Tr. 345-439)

All questions were posed to the Parent in , and the Parent testified in .

Furthermore, the Parent did not offer evidence to show that she is . The Parent’s requests for the IEP amendment and translation of the Student’s IEP are denied.

It is therefore ORDERED:

1. That the CSE consider an appropriate award for the amount of services for as well as for (the CSE shall consider the Parent’s testimony that the Student is not likely to need more than ( ) hours of per week).

2. That the CSE reevaluate the Student and Parent to determine whether translation services are warranted.

3. That the CSE reconvene to review all new evaluations for the purpose of developing an appropriate IEP for the remainder of the 2014-2015 school year.

Dated: March 26, 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 THE RECORD

PARENT

A Due Process Hearing, 4/16/14 9pp

B IEP, 8/2/13, 12pp

C Evaluation, 7/26/13, 2pp

D Observation, 7/19/13, 2pp

E Observation, 7/19/13, 2pp

F Observation, 7/19/13, 6pp

G Report Card Comments, 3/20/13, 3pp

H Report Card, 3/19/14, 1pp

I Report, 3.12.14, 6pp

J Goal Progress Monitoring, 12/2013- 3/2014, 13pp

K Goal Parent Report, 1/18/14, 4pp

L Evaluation, 10pp

M Resume, 1pp

DOE

1 Evaluation, 7/19/13, 7pp

2 Evaluation, 7/26/13, 2pp

3 Evaluation, 7/19/13, 6pp

4 Observation, 7/19/13, 2pp

5 Form For Development of IEP, 6/26/13, 2pp

6 Report Card, 6/25/13, 1pp

7 Report Card, undated, 1pp

8 Exam History Inquiry, undated, 1pp

9 IEP, 8/2/13, 12pp

10 FNR, 8/2/13, 1pp

11 Evaluation, 6/21/13, 1pp

12 Social History Package, 7/19/13, 9pp

13 Evaluations, 7/19/13, 1pp

14 Notice, 7/19/13, 6pp

15 Survey, 5/6/2009, 2pp

16 Certifications of , 6/16/14, 1pp

IHO

I Closing Brief, 31pp II Closing Brief, 9 pp

Footnotes

[1] "Special education" is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term "related services" is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

[2] There was confusion during the hearing about the relevance of the 2010-2011 school year. To begin with, the Parent did not offer documentary evidence to support the position that were ignored during the Student’s grade year. Regardless, I find any allusion to the failure to evaluate the Student during this school year is irrelevant. Allegations pertaining to this time period were rendered moot by the Parent’s decision to forego evaluations throughout the following year (2011-2012).