New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 164172

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 28, 2016

December 15, 2016

January 5, 2017

January 19, 2017

February 7, 2017

February 28, 2017

March 28, 2017

April 4, 2017

Actual Record Closed Date: April 6, 2017

Hearing Officer: Esther Mora, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 28, 2016

Attorney (Via Telephone) — Student

District Representative (Via Telephone — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 15, 2016

Attorney — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 5, 2017

Attorney (Via Telephone) — Student

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 19, 2017

Attorney — Student

District Representative — DOE

(Via Telephone) — DOE

(Via Telephone) — DOE

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

Attorney — Student

Parents

District Representative — DOE

(Via Telephone) — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 28, 2017

Attorney — Student

(Via Telephone) — Student

(Via Telephone) — Student

Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 28, 2017

Attorney — Student

Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 4, 2017

Attorney — Student

Parents

District Representative — DOE

INTRODUCTION

This matter came before me pursuant to the Individuals with Disabilities Education Act. The hearing was concluded on April 4, 2017. I find the school district failed to provide a FAPE during the 2015-16 and 2016-17 school years. The school district's denial of FAPE, both in substance and due to procedural violations, deprived the student of appropriate educational services and impeded his progress. Therefore, the parent is entitled to the relief she seeks.

SCHOOL DISTRICT

The school district contends it provided a FAPE during the 2015-16 and 2016-17 school years, the parent's private agency does not meet the standards of a reimbursable placement and the equities favor the school district.

The school district presented witness testimony from a school district . She testified about the evaluations conducted, the IEP meeting discussions and recommendations, the services provided to the student during those school years and the attempts by the school district to place the student in an appropriate educational setting. (Tr. At 33-102; Exhs. 1-7 )

A from one of the recommended schools, , also testified on behalf of the school district. She described the services that would have been available to the student at the school and opined that the school was appropriate and would have met the student's needs. (Tr. At 103-119)

The of also testified on behalf of the school district. The student attended the school during the 2015-16 school year. However, the school was unable to meet the student's needs. The school referred the student back to the school district for a different placement. The student did not return to for the 2016-17 school year. (Tr. At 127-149)

The from the also

testified on behalf of the school district. The student was referred to the school by the school district. He described the services that would have been available to the student at the school and opined that the school was appropriate and would have met the student's needs. (Tr. At 150-172; Exhs. 3,4)

The school district also submitted documentary evidence. (Exhs. 1-7)

PARENT

A who is the at the testified on behalf of the parent. She

testified regarding the student's educational and behavioral strengths and weakness, his educational program, the evaluations and services provided at , and the student's progress. She conducted a and developed a . The student receives and . The indicates that he is benefiting from the educational program and . (Tr. At 180-220; Exhs. BB, CC, EE)

A who assessed the student at the request of the parent also testified on behalf of the parent. In addition to assessing the student she also reviewed the progress report. She recommends continuation of the program because of the student's current needs. Although the program is restrictive, it is what the student requires at this time. Based on her evaluation and the report of his progress at , she opined that the program is appropriate and the student is benefiting. (Tr. At 221-250; Exh. S, CC, EE)

The parent testified on her own behalf regarding the student's educational history, his , her efforts to obtain an appropriate educational placement for the student, and his progress at .(Tr. At 258-295; Exhs. A-EE)

The parent also submitted documentary evidence. (Exhs. A-EE)

APPLICABLE STANDARDS

As was recently restated in Appeal No. 16-016, two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unIique needs and prepare them for further education, employment, and independent living; and (2) to ensure 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 Sch.

Dist. v. T.A., 557 U.S. 230, 239 [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; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.

2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 8 Because the district does not cross-appeal from the IHO's determinations which were adverse to the district, those determinations have become final and binding on the parties and will not be reviewed on appeal (8 NYCRR 200.5[j][5][v]; M.S. v. New York City Dep't of Educ., 2

F. Supp. 3d 311, 325 [S.D.N.Y. 2013]). 9 State regulations permit service of "a reply . . .

to any procedural defenses . . . or to any additional documentary evidence served with the answer" (8 NYCRR 279.6). While the reply was not served in a timely manner, I exercise my discretion to accept it for the limited purposes permitted by State regulations. 10 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; 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. Carmel Cent. Sch. Dist., 2007 WL 465211, at 10 [S.D.N.Y. Feb.

9, 2007]). Under the IDEA, if procedural violations are alleged, an administrative 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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 394 Fed. App'x 718, 720, 2010 WL 3242234 [2d Cir. Aug. 16, 2010]; E.H. v.

Bd. of Educ., 2008 WL 3930028, at 7 [N.D.N.Y. Aug. 21, 2008], aff'd, 361 Fed. App'x 156, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 293 Fed. App'x 20, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).

Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at 15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE)

(20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent.

Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo

Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 486 Fed.

App'x 954, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F.

Supp. 2d 422, 428 [W.D.N.Y. 2008]). 11 An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at 6 [S.D.N.Y. July 3, 2008]

[noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04- 046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

Appeal No. 16-016 also restates that 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]). Compensatory education 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, compensatory education relief in the 20 form of Case No. 164172 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]"]; Student X., 2008 WL 4890440, at 23 [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. March 6, 2008], adopted, 2008 WL 9731174

[S.D.N.Y. Jul. 7, 2008]) Likewise, SROs have 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 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]). The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE (see E. Lyme Bd. of Educ., 790 F.3d at 456; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; 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 factspecific, 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.

Puyallup 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"]; Application of the Dep't of Educ., Appeal No. 11-075). 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"]; S.A. v. New York City Dep't of Educ., 2014 WL 1311761, at 7 [E.D.N.Y. Mar. 30, 2014] [noting that compensatory education "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. Atlanta 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 [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"]; Puyallup, 31 F.3d at 1497 [finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]).

FINDINGS

Having reviewed the entire record, including all of the testimony and documentary evidence presented by both parties, I find the student was denied a FAPE and is entitled to the relief requested by the parent. I agree with the parent that the student did not receive a FAPE during the 2015-16 and 2016-17 school years, the 2015-16 IEPs were inadequate, the school district failed to offer an appropriate and timely placement for the 2016-17 school year and as a result the student was excluded from school, the school district's failure to develop a violated FAPE, CARD is an appropriate placement, the student's IEP must include , and the student is entitled to compensatory education. (Exh. EE)

The record reveals that the school district made many attempts to find an appropriate placement for the student during the 2015-17 school years. However, the record also establishes that none of the placements were appropriate for the student. As a result, the student did not receive the services he required during the 2015-16 school year and therefore is entitled to compensatory/additional services. For the 2016-17 school year, he missed several months of school until he was unilaterally placed at which is able to meet his needs. I agree with the school district that is a very restrictive program. However, it is the least restrictive program appropriate for the student at this time because he requires to meet his current needs. He is progressing and is . Thus, I find the parent is entitled to the relief she seeks.

I have considered the parties' remaining contentions and did not need to reach them, or find them to be without merit.

ORDER

1. The school district is to directly fund .

2. The school district is to directly fund

. Dated: April 10, 2017

ESTHER MORA, ESQ.

Impartial Hearing Officer EM:

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

PARENT

A Parent’s due process complaint, 10/25/16, 8pp

B IEP, 5/19/16, 16pp.

C IEP, 12/8/15, 10pp

D , 1/3/16, 8pp

E , 1/8/16, 6pp.

F , 11/18/15, 2pp

G Letter, 10/23/15, 1pp

H IEP, 6/6/15, 17pp

I letter from , 10/10/15, 2pp

J from , 1/4/16, 1pp

K , 11/25/15-6/2/16, 20pp

L , undated, 1pp

M Parent’s 10 day notice, 7/15/16, 2pp

N DOE Response to 10 day notice, 7/18/16, 1pp

O School Location letter, 7/29/16, 4pp

P , 3/15/16, 1pp

Q Parent Letter, 12/9/15, 2pp

R , 6/2016, 19pp

S , 10/18/16, 9pp

T , 3/18/16, 4pp

U , 5/5/16, 6pp

V , 4/14/15, 1pp

W NYC DOE School location letter, 3/17/16, 1pp

X NYC Department of Education response to 10-day notice, 8/4/16, 1pp

Y IEP, 12/22/16, 15pp

Z Prior Written Notice, 1/30/17, 4pp

AA School location letter, 1/30/17, 1pp

BB , undated, 1pp

CC progress report, 2/7/17, 31pp

DD , 4/14/15-1/19/17, 4pp

EE Closing Argument, 4/4/17, 17pp

DOE

1 , 11/18/15, 2pp

2 Defer to central package, 12/16/15, 5pp

3 Letter, 1/2/16, 1pp

4 notice of secured placement, 2/16/16, 1pp

5 IEP, 3/17/16, 18pp

6 CSE Review meeting minutes, 3/17/16, 2pp

7 Closing statement, 4/4/17, 9pp