New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 164551

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 28, 2017

April 26, 2017

Actual Record Closed Date: May 24, 2017

Hearing Officer: Judith T. Kramer, Esq.

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

Attorney — Student

Parents

(Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 26, 2017

Attorney — Student

(Via Telephone) — Student

(Via Telephone) — Student

(Via Telephone) — Student

District Representative — DOE

District Representative — DOE

Introduction

On March 28, 2017 an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the impartial hearing request filed by the parent alleging the failure of the DOE to provide a FAPE to (“the child“) for the 2013-2014, 2015-2016 and 2016-2017 school years

(SY). The impartial hearing was held at the NYC Department of Education located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 10:00 a.m. and continued on April 26, 2017.A list of exhibits admitted into evidence is attached hereto.

Background

The student is . She is classified as a student with a .

(Ex.U.1)1 She attends the , the and is in the . At the time the request for an impartial hearing was filed she was attending , the . (T.25) Her recommended program was in a in a community school with related services. The parent alleged several violations over a period of three school years. The DOE filed a due process response stating that FAPE was provided for the three years. (Ex 1). There was a resolution agreement signed by the parent on December 6, 2016 in which the DOE agreed that the child would be evaluated for and that it would do an . (Ex. 2) After both assessments, the DOE found that neither nor a was warranted. (T. 27)

She now seeks compensatory of at least and a reconvene of the CSE to consider ,

.

At the hearing the DOE conceded that FAPE was not provided for the three years but contends that at the resolution meeting the issues of the and assessment were adequately addressed. The DOE also states that when it receives all current evaluations, it will reconvene the CSE to create an appropriate program. The DOE contends that the only remaining issue is the amount of compensatory the DOE must provide to the child.

The Parent’s Position

The parent hasn’t challenged this classification.

The parent contends that the child was denied a FAPE because:1) during the 2014- 2015 SY the teacher failed to provide as promised; 2) failed to provide to the 2015-2016 IEP; 3)failed to provide appropriate evaluations; 4)

failed to provide appropriate related services. and 5)failed to provide LRE.

The parent seeks an independent , ,

, , as part

of the child’s IEP, on the child’s IEP, an IEP reconvene meeting, and at least

.

The DOE’s Position

The DOE agrees that a FAPE was not provided during the last three school years.

It contends that the child should receive compensatory education in the lesser amount of . It contends that pursuant to the resolution agreement, the DOE provided an evaluation for and an . It further agrees that a reconvene is warranted after all current evaluative data is received to determine of any further evaluations are needed.

Findings of Fact

The child is who was recently enrolled in the at . At the time the Due Process Complaint was filed, she attended . He most recent IEP, which has an implementation date of November 23, 2016, had a disability classification of and a program recommendation in a community school with , , and . The child also receives

. (Ex. Q.9-10)

The parties signed a resolution agreement in December 2016 in which the DOE agreed to conduct an evaluation and a . (Ex. 2) The resolution agreement has been satisfied. The parent is not seeking either of these two assessments to be administered again at this time. Nor is she seeking a evaluation. (T. 32-34). The parent still seeks a , and . The DOE concedes that the child is entitled to receive some sort of compensatory educational services. The evidence provided by the parent was intended to set forth the basis for such award.

In 2014-2015, the child attended the at and was placed in an . At the CSE meeting for that year, the parent was told that the child was doing well. She did not receive progress reports (T. 46) but she had concerns because she did not think that the child was at the proper level.

. The parent informed the CSE that

. The CSE recommended that the child continue in the and a . (Ex. U.14-

15) The related services were continued. Id. The parent wanted ; and . (T.43-44) There was and the CSE told her that . There

was no discussion of her academics at the CSE meeting. (T.45-47, 51) The CSE told her that and no one discussed whether it was interfering with her progress. (T.48) The CSE told her that the child was in the appropriate program and that she was receiving services. (T.52, 64) The parent did not receive progress reports that year but the progress reports produced the hearing indicate that while the child was in the , she was and and and . (Ex.U.1)

There was a CSE meeting for the 2015-2016 SY which the parent attended. (T.54)

The child was in a new school that year. (Ex. S.1) The parent told the CSE that the child was not doing as well as she thought she should be doing. The IEP reflected that there was little change in the child’s from the previous year based upon the . (Ex. S.1)The CSE informed the parent that

.. (T.55) The parent had concerns that was not helping the child make sufficient progress but she was a bit confused about when she said the program was introduced. She first said that it was introduced in the and she saw that and then stated that

(T. 57,59). The parent expressed her concern to the teacher who advised her that she has to give the program time. (T.92) The parent also said that which the parent thought was impeding her progress. (T.62)

The CSE created another IEP for the 2016-2017 SY in November 2016. (Ex. Q)

All of her classes were recommended be . was changed to from . (Ex. Q.9) The child’s had not changed. (Ex. Q.1) was discussed. The parent requested

. The parent stated at the hearing that at or about this time the child had seen a who intimated that . This information was not shared with the CSE at the meeting.

The parent presented the testimony of the who is a and a . She never met the child but reviewed her records and spoke to the parent. She never spoke to anyone at the DOE. She found that the child was making progress in but it was “ ”. She stated that the child made some progress in . needed and the child had difficulty . She stated that the child needed . She thought the goals were set too high and that at minimum she needed . She also opined that the child needed further evaluation in and . In her opinion, the child needed an to address the child’s difficulties with .In her opinion should be reinstated. She computed the amount of compensatory hours the child would need to . She opined that hours would do it. She said that for 2014-2015 there should be hours for ( ). She stated that she should be awarded hour for and hours for . She was unable to estimate the number of hours needed for the child to have an opportunity to make meaningful progress.

A and also from who has had experience

with gave the child a from the in April 2017. (Ex. ZZ) She did not review any other documents, or IEPs or contact the child’s school. The results of her testing showed that . Specifically, she scored

. (Ex. ZZZ.2-3)She

opined that . She recommends

to close the gap. She recommends the program hours of compensatory to . She

based her estimate on the which predicts levels of success in typically developing children. She doesn’t know of the child showed any growth over the three years in question. She stated that the child should have been getting this year as well as over the last two years. The identified by the were computed using a scale which measured her performance against typically developing peers.

The child’s testified that he reviewed the child’s records and evaluated her in March 2017 pursuant to an “order” from the parent’s attorney for the purpose of this hearing. (Ex. BBB.1) He administered the , a . Id. He administered .

. .

.

. (Ex. BBB.3) He also

administered the to . She was but . He testified that she did not necessarily have an . He did not think that is sufficient. That recommendation would be good if . He stated that if , would be more appropriate for with which she had some difficulty . (Ex. BBB.5). He said that she should receive . He had no data to asses her progress in over the years. He is not available to . He said that the will help the child with , but not .

In August 2016, a met with the child and reviewed her records and IEPs for the three years in question. She has an understanding of the child’s disabilities which in her opinion include ; ; and . She relied upon parents and teacher comments for her diagnosis of as the child was described as . These were confirmed in the IEPs. She suggested that an be conducted to . She thinks that . She

said that the child has difficulty and, as reflected in the IEP, she has difficulty with .

. She believes that the child should have and be placed in a . The child has a , most likely and should have by a using to help the child with .

(T.227) At minimum, the child should have been getting . (T.

225) She stated that the child is . It is not based upon the number years that she did not get help. (T.226) She is not sure of . (T.229, 231) She interpreted test results on the given by the from and stated that the child had

.(T. 231). She stated that the child is still . (T.235) She assumes that the child had an . (T. 230)

She used the method to compute compensatory education hours. On average she said that . She relied upon the suggestion of another witness to estimate that the child needs . (T.225) She had no recommendation for . At the time of the hearing, her evaluation had not been completed. She said that she expected it to clarify . She thinks that .

C ONCLUSIONS OF LAW.

Under the IDEA, a child with a disability is entitled to a free and appropriate public education (“FAPE”), which includes special education and related services, provided at public expense, and that meets the standards of the state education agency.

20 U.S.C. § 1400(d)(1)(A); 20 U.S.C. § 1401(9). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with an individualized education program (“IEP”). 20 U.S.C. §1401(9)(D); 34 C.F.R. 300.320.

A school district offers a FAPE by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.

However, the IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP The statute ensures an "appropriate" education, not one that provides everything that might be thought desirable by loving parents. Additionally, school districts are not required to "maximize" the potential of students with disabilities. Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), argued January 11, 2017, and decided March 22, 2017 did not change this standard. While the DOE must provide the child with and opportunity that permits the child to receive educational benefit, the Court held that the IDEA did not “guarantee any particular level of education” and simply reflects the unobjectionable proposition that the IDEA cannot and does not promise “any particular [educational] outcome.” Id.at 192. “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.

The parties agree that 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. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). A hearing officer may fashion an appropriate remedy, and award compensatory education to make up for denial of a FAPE. Id. Compensatory education may be awarded to students under the age of twenty-one. The parties disagree as to way in which this remedy should be fashioned.

In general, compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See Wenger v. Canastota, 979 F. Supp. 147, 151

(N.D.N.Y. 1997). The purpose of a compensatory education award is to remedy a denial of a FAPE. See P. v. Newington Bd.of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (holding that compensatory education is a remedy designed to “make up for” a denial of a FAPE, and awards should be designed to "appropriately address the problems with the IEP"); see also 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; Application of a Student with a Disability, Appeal No. 10-

052. For an eligible student, such as in the child instant case, there is no gross violation requirement.

In fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and … 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.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (emphasis added); see also Newington Bd. of Educ., 546 F.3d at 123; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)

("[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"). Courts have found that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address (the student's)

educational problems successfully." Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir.

2007).

Parent requests for a denial of a FAPE during the contested school years. The witnesses presented by the parent regarding the child’s need for compensatory educational services all projected the number of compensatory hours needed in order to bring the child up to grade level. (TR.

149, 326). None of them were able to give an opinion as to the number of hours that should be awarded that was not optimal and geared to bringing the child up to grade level.

Thus, the recommended hours- , and . They did not know how to calculate any other estimate. (T.

220). The DOE asks that the child be awarded . Neither of these suggestions are appropriate here.

As the case law reflects, the purpose of compensatory education is not to guarantee a particular result or level of student achievement, but instead to fashion a remedy that attempts to place a student in the position he or she would have occupied had the public school complied with its obligations under the IDEA. It is not appropriate, and FAPE does not require, that a student be brought up to grade level. A method of calculation with the goal of bringing a student up to grade level, such as the used by the , goes too far. A better measure is gleaned from the ’s statement that the child should have been receiving , during the school year for all three years. (T.225) Had that been placed on her IEP, she would have had the opportunity to make meaningful progress but perhaps not to reach grade level. Given the testimony that and that as a result

, the addition of will have a positive impact upon her .(TR. 220). Accordingly based upon a SY of 180 days, the child should receive hours of compensatory - hours per each of the SYs in question- which should address

.

As for the parent’s request for , that request for is denied at this time. 2 First, there is no claim that she was denied her mandated services at anytime during the three years. Second, the couldn’t opine about whether there was a lack of progress in this area over any of the three school years for which compensatory is warranted. Moreover, in the testing that he conducted, the stated that

. .

.

. (Ex. BBB.3) He also

The parent has a second impartial hearing request pending to address issues.

administered the to . She

was but he concluded that . He testified

that she did not necessarily have an . Nonetheless, without giving compelling reasons, he did not think that recommended on the IEP is sufficient. Remarkably he stated that the DOE recommendation would be good if which is exactly the area identified by the as one that is needed to be addressed. He admittedly had no data to asses her progress in over the years. Accordingly, the request for is denied at this time.

Finally, both parties have requested a reconvene of the CSE. .Several new evaluations have been conducted for including a evaluation, , and evaluation since the last IEP meeting. The stated that the evaluation has not yet been completed. There was a suggestion that . This was never shared with the CSE. The parents request for a evaluation should also be considered in light of all of this new information. Accordingly, the CSE shall reconvene to consider all of the new information that is now available and modify the child’s IEP accordingly, if such modifications are warranted.

ORDERED that:

1) The DOE shall provide the child with which should address

;

2) The CSE shall reconvene with five days of its receipt of the new evaluative materials to consider whether the child requires and any modifications to her IEP based upon the new materials. Dated: June 2, 2017

JUDITH T. KRAMER, ESQ.

Impartial hearing officer

JTK:

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

DOE Exhibits

1 Due Process Response dated 11/28/16, 4pp.

2. Resolution Agreement, 12/6/16, 1 p.

Parent’s Exhibits

A Demand for Due Process Hearing 11/18/2016 pp.15

Exhibits B through P were withdrawn

Q IEP 11/14/2016 16pp

R- Withdrawn

S IEP 11/20/2015 22pp

T Withdrawn

U IEP 11/20/2014 20pp

V IEP 12/09/2013 21pp

W Withdrawn

X Withdrawn

Y Withdrawn

Z 02/16/2017 6pp

AA 08/04/2016 7pp

BB Teacher Assessment 05/23/2016 3pp

CC 05/23/2016 2pp

DD 04/19/2016 7pp

EE 04/19/2016 4pp

FF 11/18/2015 2pp

GG 11/17/2015 5pp

HH 11/16/2015 2pp

II 11/16/2015 4pp

JJ 09/17/2015 1p

KK Portfolio 12/01/2016 1p

LL 2016 Report Card 11/29/2016 2pp

MM 2015 Report Card 11/29/2016 2pp

NN Academic Progress Report 11/29/2016 2pp

OO Progress Report – 2015/2016 2pp

PP Progress Report – 2015/2016 2pp

QQ Annual Review Plan 11/23/2015 3pp

RR Progress Report - 11/17/2015 2pp

SS Withdrawn

TT Withdrawn

UU Withdrawn

VV Withdrawn

WW Withdrawn

XX Review and Recommendation 03/21/2017 9pp

ZZ 04/11/2017 9pp

AAA Withdrawn

BBB 04/17/2017 6pp

CCC Withdrawn

DDD 01/03/2017 3pp