New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 164039

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 7, 2017

Actual Record Closed Date: March 5, 2017

Hearing Officer: Michael K. Lambert, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 7, 2017

Attorney — Student

(via telephone) — Student

Mother — Student

DOE Representative — DOE

INTRODUCTION AND PROCEDURAL HISTORY

is a is an student who has been classified by the New York City Department of Education (“DOE”) as . His classification is not in dispute. This matter was commenced by due process complaint dated October 25, 2016

(DOE-4). At that time, was attending the while a search for a placement was under way. The issue in this hearing did not involve the search, but rather was limited to the parent’s request for , and reimbursement for any provided by the parents (T: 4-5). The parent’s position in this regard was that the failure on the part of the DOE to offer the student appropriate in the form of resulted in his inability to benefit from school due to resulting from the

(T: 14-15).

THE HEARING EVIDENCE

The parties appeared for hearing on March 17, 2017. At that time, the DOE Representative advised that the DOE did not intend to call any witnesses in its case-in-chief, although it did intend to offer certain documentation (T: 9). DOE Exhibits 1–5 were thereafter offered and admitted without objection (T: 11). However, these documents were not afforded a great deal of weight by the hearing officer in light of the absence of any testimony as to their relevancy to the hearing issue. The Parents offered, without objection, PE-A through PE-H (T: 13).

The Parent’s first witness was , who identified herself as a employed by , which had been contracted by the DOE to provide services to school children (T: 17; T: 56). Ms. was a

(T: 22-24). She testified that she had been assigned as a from December through August, 2016 (T: 18; T:62-63).

(T: 63).

(T: 64-65).

(T: 68-69).

(T: 70-71).

(T: 46-47). She

testified that during this time period “

” (T: 18). She indicated that

(T: 18-19).

(T: 19-21; T: 39). Ms.

was able to recognize a connection between and

(T: 44-46; T: 68). Ms. testified that the only person that she reported this to had been ’s mother (T: 70).

’s mother was the final witness. She testified that started the 2015-2016 school year with , which had resulted in (T: 74-

75). His led to a starting in the Summer of

2016 which included

(T: 76-77). The mother testified that

(T: 76). The mother requested that

, but received a response that the best

that could be done was due to the fact that (T: 78).

The mother testified that,

. (T: 79; T: 91-92). She

further indicated that, at a CSE meeting, the possibility of a was discussed.

However, she was advised that this had to go through the Department of Health. The mother submitted a reasonable accommodation form in or about the middle of October, 2016 seeking , but the DOE did not respond until the resolution meeting following the instant due process request, at which time the mother was advised that she would “need to go to a hearing for that” (T: 80-81; T: 102). The mother identified a letter from describing and recommending that he receive (PE-A; T: 82). This recommendation was not implemented. Instead, the DOE recommended , which the parent rejected and, starting in September, 2016, began

(T: 84-85; T: PE-D). This decision was predicated upon the fact that

.

(T: 98). His mother

testified that (T: 86).

(T: 88-89; T: 95). (T: 95). She testified that she had not received any relating to (T: 86-87).

THE LEGAL STANDARDS

Pursuant to the IDEA, all children with disabilities are entitled to a “free appropriate public education” (“FAPE”) which must include “special education and related services” tailored to meet the unique needs of the child and be “reasonably calculated to enable the child to receive educational benefits.” B oard of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 207 (1982); (20 U.S.C. § 1400[d][1][A]; Schaffer v. W east, 126 S. Ct. 528, 531 [2005]; Frank G. v. B oard of Education, 459 F.3d 356, 371 [2nd Cir. 2006]). 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 Central School District, 427 F.3d 186, 192 [2nd Cir.

2005]). The Second Circuit Court of Appeals in W alczak v. Florida Union Free School District, 142 F.3d 119 (2nd Cir. 1998) held that the IDEA does not articulate any specific level of educational benefits that must be provided through an IEP. The Court citing to the Supreme Court ruling in Rowley reiterated that the IDEA does not require the states to maximize the potential of disabled children, but was meant “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside” (at pg. 192). The Second Circuit in W alczak also cited to a D.C. Circuit Court decision by now Supreme Court Justice Ruth Bader Ginsburg which held that because “public resources are not infinite,” federal law “does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child” (Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1583 [D.C. Cir. 1984]). The Third Circuit has held that an appropriate education under the IDEA is one that is “likely to produce progress, not regression” (Cy press-Fairbank s Indep. Sch. Dist. V . M ichael F., 118 F.3d 245, 248 [3rd Cir. 1997]; cert denied 522 U.S. 1047 [1998]; Cerra, 427 F.3d at 195, quoting W alczak, 142 F.3d at 130 [citations omitted]; see Perricelli v. Carm el Central School District, 2007 WL 465211, at *15). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (W alczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 [2nd Cir. 1989][citations omitted]; see Grim , 346 F.3d at 379). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford B oard of Education, 103 F.3d 1114, 1120 [2nd Cir. 1997]; see Rowley, 458 U.S. at 192). The U.S. Supreme Court recently held that such IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” (Endrew F. v. Douglas County School DistrictRe-1, 137 S. Ct. 998

[2017]). Objective factors such as the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress and one important factor in determining educational benefit (Rowley, 458 U.S. at 207, n.28, 203-04; W alczak, 142 F.3d at 130; V iola v. A rlington Central School District, 414 F. Supp. 2d 366, 382 [S.D.N.Y. 2006]).

The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; see W alczak, 142 F.3d at 132). The LRE is defined as “one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled” (Carlisle A rea Sch. V . Scott P., 62 F.3d 520, 535 [3rd Cir. 1995]). The IDEA mandates that all students with disabilities may only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. 1412[a][5][A]; 34 CFR

300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3rd Cir. 1993]; Briggs v. Bd.

of Educ., 882 F.2d 688, 691 [2nd Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]).

“The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Borough of Clementon Sch. Dist., 995 F.2d 1204

[3rd Cir. 1993]). The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes such as language and role modeling with nondisabled peers” (Greer v. Rome City Sch.

Dist., 950 F.2d 688 [11th Cir. 1991]).

The Second Circuit Court of Appeals adopted the Oberti LRE test in P. v.

Newington B oard of Educ., 546 F.3d 111 (2nd Cir. 2008) requiring the consideration of whether the school has made reasonable efforts to accommodate the child in a regular classroom, the educational benefits to the child with appropriate supplementary aids and services versus a special class and the possible negative effects of the inclusion of the child on the education of the other students in the class.

Federal district courts have upheld the appropriateness of an IEP “given what the CSE knew about [the child] at the time it was developing the … IEP” E.S. v. K atonah-

Lewisboro School District, 742 F.Supp.2d 417 (S.D.N.Y. 2010). In J.R. v. B oard of Education of the City of Rye School D istrict, 345 F.Supp.2d 386 (S.D.N.Y. 2004), the Court held that in reviewing the appropriateness of an IEP that:

“This determination is necessarily prospective in nature; we therefore must not engage in Monday-morning quarterbacking guided by our knowledge of

S.R.’s subsequent progress at Eagle Hill, but rather consider the propriety of the IEP with respect to the likelihood that it would benefit S.R. at the time it was devised. See A ntonaccio, 281 F.Supp.2d at 724 (noting that this issue has not yet been addressed by the Second Circuit and holding that ‘the …IEP…must be evaluated at the time the CSE devised the IEP, on June 15, 1999, and the IHO and SRO erred by regarding any information about [the student’s] education after that date’).”

The SRO has consistently considered the IEP “at the time it was formulated” to determine if it was reasonably calculated to enable the student to receive educational benefit

(A pplication of a Student with a Disability , SRO Appeal Nos. 11-154, 09-034, 09-013).

In terms of the available remedies in cases where a district has failed to meet its obligation to offer an educationally disabled child FAPE, IHO’s have substantial discretion. Since P. ex rel. M r. and M rs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008), the courts of the Second Circuit have ceased to limit eligibility for “compensatory education” to those over 21. In P, the Second Circuit ruled that “compensatory education” can be awarded to an elementary school student. Further, even the “gross violation” requirement, which is applicable to a claim for compensatory education by someone over 21 is not clearly established in this Circuit to be applicable to a student under 21. That standard was not relied upon in P.

In S.A . ex rel. M.A .K. v. New Y ork City D ep't of Educ., 12-CV-435 (RMM)

(MDG), 2014 WL 1311761 (E.D.N.Y. Mar. 30, 2014), the Court held:

The IDEA allows a hearing officer to fashion an “appropriate remedy, and ...

compensatory education is an available option ... to make up for denial of a [FAPE].” P. ex rel. M r. and M rs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008) (affirming compensatory education award for elementary school student); see also Student X v . New Y ork City D ep't of Educ., No. 07

CV 2316, 2008 WL 4890440, at *24 (E.D.N.Y. Oct. 30, 2008) (awarding compensatory education to student younger than twenty-one). Such an award serves “to compensate a student who was actually educated under an inadequate IEP” and “to catch-up the student to where he should have been absent the denial of a FAPE.” B rennan v. Regional Sch. Dist. No. 1 Bd. of Educ., 531 F.Supp.2d 245, 265 (D.Conn.2008). Before awarding compensatory education for a student older than twenty-one, a court must find a gross violation of the student's right to a FAPE; however, whether the same prerequisite exists to awarding compensatory education for a younger student is an open question. See Student X , 2008 WL 4980440, at *24. P. v.

Newington, 512 F.Supp.2d 89, 112 n. 3 (D.Conn.2007) (“The Court disagrees with the defendant's argument that compensatory education is warranted only if there is a ‘gross' violation of the IDEA. The requirement of a gross violation

... has been applied only to cases involving claimants over the age of 21.”), aff'd, 546 F.3d 111 (2d Cir.2008); but see J.A . v. E. Ramapo Cent. Sch. Dist., 603 F.Supp.2d 684, 690 (S.D.N.Y.2009) (finding that five-year-old student was not entitled to compensatory speech therapy, reasoning that parents failed to show gross violation because child “was not excluded from school for any period of time.”).

Also, Reid ex rel. Reid v. D.C., 401 F.3d 516, 522-26 (D.C. Cir. 2005) seems to stand for the proposition that “compensatory education” can be prospective educational services to compensate for a past deficient program and that a hearing officer, as well as a court, can fashion flexible “compensatory education” relief through the application of “equitable considerations.” Reid is cited by, for example, the Second Circuit in P., 546 F.3d at 123, for the proposition that “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.”

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The core issue to be decided in this case is whether the DOE offered appropriate during the 2016-2017 school year, while the search for a program was underway. I find that the DOE failed to offer any meaningful evidence to support a finding that the that they provided was appropriate. I find that offering several documents without any testimony explaining how or why such documentation is relevant to the challenge asserted by the parents failed to meet the DOE’s burden as to such challenge. Clearly was a student who was presenting with There was no evidence that a was conducted or a was developed for

Although there was a , the DOE went to great efforts to demonstrate that the professional qualifications of such were minimal (T: 22-38; T: 53-55). In addition,

(T: 36). Ms. was provided with no specialized training to address (T: 39-40). Her supervisor merely told her to (T: 52). I find that the obligation to offer appropriate services poses a greater burden than attempting, without any specific plan, to avoid injury. Indeed, it was apparent that Ms. received as least as much instruction from ’s his mother with respect to addressing than she did from any other source (T: 43). It was apparent from her testimony that, although she was well-intended, she was ill-equipped to address . For example, she testified that one of the things that she would do when was to “ ” (T: 39) or (T: 40-41). She would

(T: 44) or

(T: 46). These strategies, which did not appear to flow from any identifiable plan intended to address but rather were the result of Ms. trying anything that she could think of to , proved to be ineffective (T: 62). Under the circumstances of this case, I find that the failure of such measures was reasonable foreseeable.

Having found that the DOE failed to offer appropriate during the time-period that the search for an appropriate placement was being conducted, I must now fashion a remedy for such FAPE denial. Having considered this issue, I conclude that it is appropriate to Order that the DOE reimburse the parents, at the applicable IRS rate, for for the period that the parents request through the end of the 2016-2017 school year, or such earlier time that was placed at a school. I find that there are no other or other expenses that should properly be reimbursed.

ORDER

1. It is hereby directed that, upon the parents’ submission of a list of dates during the period October 15, 2016 through June 30, 2017 that the parents provided with , the DOE reimburse the parents for . Such reimbursement shall be provided within 30 calendar days of the parents’ provision of such dates to the DOE.

2. All other claims set forth in the due process complaint are hereby dismissed. Dated: July 11, 2017

MICHAEL K. LAMBERT, ESQ.

Impartial Hearing Officer MKL:

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 7, 2017

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