New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 164765

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 29, 2017

June 6, 2017

Actual Record Closed Date: July 19, 2017

Hearing Officer: Leah Botwinik Almeleh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 29, 2017

Attorney (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 6, 2017

Attorney — Student

Parent (Via Telephone) — Student

(Via Telephone) — Student

District Representative — DOE

Procedural Context — DOE

By letter dated December 12, 2016, I was appointed to hear the Matter of pursuant to the IDEA, 20 US Code Section 1415 (f)(l). On March 29, 2017 and June 6, 2017, hearings were held. On this latter date, the proceedings were closed and the decision date duly extended so that a Findings of Fact could be prepared.

Specifically, the Parents assert that the Department of Education’s (hereinafter the

“Department”) educational placement, as memorialized by the IEPs of June 4, 2015, February 29, 2016 and May 13, 2016 stand in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and are neither suitable nor appropriate for her child. Exhs. A,

B. As a result thereof, she is seeking tuition reimbursement in the form of compensatory damages for the 2015-2016 and 2016-2017 school years. The child attends , a charter school for which reimbursement is inapplicable. As a corollary, the Parent has defended the educational program offered by the (hereinafter “ ”) and further relies upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 Ct., 361 (1993); and

Burlington Sch. Comm. v. Dep't of Educ., 471 U. 359, 368 [1985].

The student is presently . I note that is “a child with a disability” as that term is defined under the IDEIA, 20 U. C. § 1400 et seq., and was last classified as impaired as that term is defined by 20 U. C. § 1401(a)(1). Exh. C at 1. He has been previously classified with an

. Exh. D at 1.

There is no dispute regarding classification. It should be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses and preparation of closing memoranda.

I additionally note that neither the Department nor the Parent offered testimony regarding the manner in which the child’s IEPs were prepared. Not one teacher, provider, administrator, psychologist or therapist testified. It is, therefore, unclear whether or how the child’s needs as articulated in the submitted evaluations and reports could or could not have been met through the educational planning offered by the Department.

Finally, a list of persons in attendance and of evidence is appended hereto.

The School District’s Case

A review of the evidence reveals the following.

On June 4, 2015, an IEP was developed for the 2015-2016 school year. Exh. 5.

Although a Meeting Notice was sent to the Parent on May 26, 2015, the Parent’s name is not listed on the attendance records. Exh. 5 at 12. Beyond this, there is no reference to the Parent’s participation within the body of the document. Based upon this record, I cannot conclude that the Parent participated in these proceedings. 1

Several assessments were referenced in this document. These include measures of as per the . In furtherance thereof, this testing yielded scores of in the . Sub-tests of and were respectively in the and . The child’s present levels of performance are described thusly:

“

.” Exh. 5, passim.

The child demonstrated on the , standardized scores which were supported by prior observations. Test results described . Ibid. The IEP notes that the child is and

. He has and

.

The June 4, 2015 IEP concludes that the child should be classified with an . It recommends an program within a

In boiler plate format, the Meeting Notice indicates that the Parent “will attend.” Exh. 4 at 1.

classroom paradigm in a school. In addition, services were mandated along with . The CSE ostensibly considered the viability of a placement in a community school, but rejected this as inadequately restrictive. It is unclear whether the Parent willfully did not participate. It is noted that the Prior Written Recommendations, dated June 23, 2015 include as referral to (formerly

), an agency which provides

. Exh. 6.

On December 1, 2015, the Parent requested “a re-evaluation of the IEP’s findings.” Exh. 7. In furtherance thereof, a evaluation was conducted.

Exh. 8. On February 29, 2016 a new CSE was convened. Exhs. 12, 13. Evaluations discussed at this meeting additionally included a progress report and teacher report. Exhs. 8,9,11. The attendance record indicates that the Parent participated in this convene.

At this time, the record indicates that the child’s scores as per the fell within the . Similarly, measures of achievement as yielded on the were comparable to those attained earlier on the . The noted that, “ ”.

.

A progress report dated January 29, 2016, described . The noted that

. Exh. 9 at 1.

Ibid. Having said this, the noted that

.

As a result of these proceedings, the child’s classification was changed to . Although the child’s program essentially remained the same, additional were incorporated.

On April 8, 2016, a Notice of Recommendation was sent to the Parent, While the IEP of February 29, 2016 recommends a program for , the Notice of Recommendation notes that the child is to be assigned to a for a school year. There was no testimony reconciling this discrepancy. Significantly, the Parent was again referred to . Exh. 14 at 2. The Parent was additionally encouraged to contact the CSE should she have any questions or concerns about the new

IEP.

On May 13, 2016, the CSE again reconvened for its Annual Review. Both the Parent and her son, , were in attendance. Among the tests and evaluations considered were the child’s and scores. Significantly, a progress report dated April 22, 2016 is essentially a word by word reiteration of an earlier report dated January 29, 2016. Exhs. 9, 15, 19.

The IEP reports, “

.” Exh. 17 at 2. The

IEP notes that the School has made weekly contact with the Parent via phone and in person regarding student’s significant absences and tardies.” Ibid.

On February 28, 2017, a new submitted an additional progress report. The report notes that

. “

.” Exh. 20.

The Parent’s Case

Ms. is ’s mother. She provided a brief description of ’s strengths and weaknesses, noting that she did not observe any issues until her son was in .

Tr. at 39. During the 2014-2015 school year, attended the . He was unsuccessful at this placement and, as a result, Ms. enrolled in

(hereinafter “ ”), a charter school for the

2015-2016 school year. Tr. at 40. Tr. at 46. was initially placed in a class of . As the year progressed and personnel from became more familiar with , it was ’s consensus that a program was inappropriate for As there were other children at with special education issues, a class was developed and was assigned to this room.

During the 2015-2016 school year, the Parent testified that . Tr. at 50-51. Moreover, the Parent testified that, although recommended to receive , he did not receive this related service at although he continued to receive . Tr. at 51. In sum, the Parent testified that this placement was not successful for and, ultimately,

.^[2] Tr. at 41. Having thus

testified, Ms. noted that as early as the second semester of the 2015-2016 school year, personnel advised the Parent that their school was not an appropriate placement for Tr. at 55-57. Indeed, the Parent testified that school administrators advised the Parent that a program would be more appropriate for and Ms.

agreed that required more than he was presently receiving at . Tr. at 61-62.

Nevertheless, remained at during the 2016-2017 school year. During this time, Ms. related that she had frequently asked for enhanced services to support the child’s needs. Tr. at 41. She testified that . As a result, she is contacted by the school on a weekly basis.3 Ms. testified that she does not feel has made any progress at , but has kept him in this school because she does not like the option offered by the Department. Exh. 12 at 2. She noted that she had visited these programs in the past and believed

. Tr. at 47. As a result, she preferred to maintain

’s enrollment at as she did not believe the programs were an option. Tr. at 64. Other than the Parent’s testimony, the record does not reflect any attendance records, sign-in visitor sheets or school testimony regarding the placements visited.

As the 2016-2017 school year progressed, the Parent testified that there were no further and enjoyed .4 Tr. at 67. The Parent testified that additionally received , although she could not recall the name of the agency or its specific location. Tr. at 69, 73.

additionally testified on behalf of the Parent. Ms. is the of the (hereinafter “ ”).

is accredited by the to provide

, including

. Tr. at 83. Ms. is not a licensed special educator, nor does she hold a master’s degree in education. She is not a psychologist and did not perform ’s testing on She has never met the child, but did review one of his IEPs in order to administer test accommodations. Several assessments were completed by .

These included the , the

, , ,

. Additional

and assessments were given to the student. Exhs. L, M. N, passim. No was performed.

The witness testified that, based upon the tests conducted, was . She noted that months when his was a non-issue. On other occasions, the would call the Parent to advise her that was “ .” Tr. at 66.

No records were submitted into evidence.

. Referring to ’s performance, she

testified that, “

. . .” As a result, she recommended hours of giving the break-down of services in terms of curriculum hours. Exh. M.

She opined that, notwithstanding the child’s , she believed that was capable of , noting that the has determined that students who are can be taught to

. Tr. at 122.

The School District’s Position

Although the Department did not include the sworn testimony of witnesses, it did submit various forms of documentation without objection. However, in its opening statement, the Department noted that, it does not object to the conduct of a . Rather, it questions the value of preparing a within the context of an inappropriate placement. Similarly, the Department does not object to the student’s entitlement to a evaluation, noting that the Parent has, “ .” Tr. at 16-

17. Finally, the Department agrees that a is indicated, but questioned the value of such a plan where the child is placed in an inappropriate program.

Finally, the failure to employ oral testimony does not translate into a concession of liability. Nevertheless, the Department has acknowledged that the child is entitled to some measure of service. Tr. at 17.

As a result, it is the Department’s tacit opinion that the recommendations incorporated into the child’s June 4, 2015, February 29, 2016 and May 13, 2016 IEPs are appropriate and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and

8N.Y.C.R.R. §200.6 §(a)(1). Inherent within this position, the Department asserts that the IDEIA simply requires the School District to provide a free and appropriate public education (hereinafter referred to as a “FAPE”) and is not compelled to maximize or optimize the child's educational benefits. In view of the foregoing, the Department maintains that compliance with its IDEIA mandate is predicated upon the development of an educational program, which accurately reflects the results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at remediating these educational deficits. Its duty is fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child ” beyond “mere trivial advancement” (Application of the XXX Central School District, Appeal No. 08-005, citing Cerra v. Pauling Cent. Sch. Dist, 427 F.3d 186, 192 [2d Cir.2005]).

Finally, the Department contends that the Parent’s actions militate against her equitable entitlement to relief.

The Parent’s Position

The Parent asserts that the Department stands in abrogation of its duty to provide with a free and appropriate public education for the 2015-2016 and 2016-2017 school years in violation of the IDEIA and Section 504 of the Rehabilitation Act (See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). As such, counsel maintains that the IEPs dated June 4, 2015, February 29, 2016 and May 13, 2016 reflect a number of substantive errors which, in aggregate and alone, compel nullification of the document.

The Parent, therefore, seeks declaratory judgment establishing a violation of FAPE for the 2015-2016 and 2016-2017 school years; an independent evaluation at market rate, hours of at the and reimbursement for the cost of and related fees. In addition, the Parent seeks

. Most importantly, the Parent seeks a and for Exh. A at 7.

Consistent with this argument, the Parent contends that is entitled to compensatory education to be provided at the , maintaining that is an appropriate setting for Finally, the Parent maintains that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v.

School District, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement.

Discussion

It is clear that the legislative intent of 20 US Code § l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible (20 U.S.C.Sx.1400 [d][1][A]; see Ms. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. 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 (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F.R.

300.340[a]; 8 N.Y.C.R.R. 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].

In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-

207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]).

In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New Aaron City Dep't of Educ., No. 10-cv-

6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199.

Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir.

2003); see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34). Indeed, a school district "fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement" (A.H. ex rel.

JH v. New Aaron City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]).

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch.

Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only prospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"); J.R. ex rel. S.R. v.

Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y. 2004)

(courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a school district must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C.

Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]).

Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102).

Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F.

Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v.

State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v.

Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley

City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).

Point 1: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), were the June 4, 2015, February 29, 2016 and May 13, 2016 IEPs reasonably calculated to confer an educational benefit upon during the 2014-2015

school year?

A. W ere the CSE convenes of June 4, 2015; February 29, 2016 and M ay 13, 2016

duly composed?

I find, ab initio, that the CSE was not duly composed. Consistent with 8 NYCRR 200.3

(a)(1):

(a) Each board of education or board of trustees shall appoint:

(1) committees on special education in accordance with the provisions of Education Law section 4402 as necessary to ensure timely evaluation and placement of students.

The membership of each committee shall include, but not be limited to : . . . (ii) not less than one regular education teacher of the student wherever the student is or may be participating in the regular education environment; (iii) not less than one special education teacher of the student or, if appropriate, not less than one special education provider of the student;

In the absence of any testimony, I cannot conclude that any of the CSE participants were familiar with the child. I note that, notwithstanding the fact that the child was classified with a , it is unclear if any provider was present, let alone one that had actual familiarity with the child. Based upon the record before me, I cannot determine whether any personnel from were in attendance. More importantly, other than the Parent, it is unclear whether anyone else at these proceedings had any ongoing knowledge of the child or whether goals and objectives were simply extrapolated from provider reports.

B. W ere the child’s present levels of perf orm ance appropriately reported .

Federal regulations require that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

As a legal matter, the Southern District of New York has held that if reports and assessments produced by or relied upon by the School District are not sufficiently accurate and complete for the purposes of designing a child’s IEP, the responsibility for the deficiency lies with the school district, not the parents. (A. v. New York City Department of Education, 690 F. Supp. 2nd 193 at 208 [SDNY 2010]). Educational law requires that a district (1) ensure that adequate evaluative information has been obtained with regard to the student’s areas of need, (2) consider any other information provided by the parents including private evaluations, and (3) recommend an IEP that was reasonably calculated to enable the student to receive educational benefits in the least restrictive environment. (20 U. C. Sect. 1412[a][5][A], 1414[b][2][A]; 34 C.F.R. Sect.

300.114]a][2][i], 300.116[a][2], 300.304[b][1][ii]; see Rowley, 458 U. at 192; Newington, 546 F.3d at 114; Gagliardo, 489 F.3d at 108; Mrs. B, 103 F.3d at 1120; M.H., 2011 WL 609880, at *10; see also Letter to Clarke, 48 IDELR 77 [OSEP 2007]; 8 NYCRR 200.1[cc], 200.6[a][1]).

Clearly, the progress reports of January 29, 2016; April 22, 2016 and June 8, 2016 are substantively identical. Given this scenario, I do not believe they can provide appropriate insight into the child’s needs as the school years progressed.

Exhs. 9, 15, 19. Under these circumstances, I find that the reports inadequately offer the kind of descriptive information necessary to draw reasonable opinions regarding the student’s educational plans.

C. Did require a ?

The IDEIA requires that, in developing an IEP for "a child whose behavior impedes [his other] learning," the school district must "consider the use of positive behavioral interventions . . . to address that behavior.'" 20 U.S.C. § 1414(d)(3)(B)(i); see also A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]. This mandate is essentially the springboard for the development of an FBA, which provides detailed information about a student's problem behaviors, and a BIP, which provides strategies to reduce those behaviors. See N.Y. Comp. Codes R. & Regs. Tit. 8, § 200.22(a)-(b). Clearly, ’s should have been addressed. Although no one testified on this issue, several of the provider reports refer to dangerous and dysfunctional .

Exh. 17 at 2. Indeed, the IEP of May 13, 2016 notes that “

.”

. Although there are goals

referencing and , I do not believe these adequately describe the child’s problems or define with any clarity, the manner in which criteria will be credibly attained. Given the absence of any , it is not surprising that the child’s have perseverated. See M.N. & H.N., 700 F. Supp. 2d at 366 see also A.C., 553 F.3d at 172-73; M.H. & E.K. v. N.Y. City Dep't of Educ., 712 F. Supp. 2d 125, 159 (S.D.N.Y. 2010), "[F]ailure to conduct an FBA does not render an IEP procedurally inadequate where the IEP provides strategies to address the student's behavior."

Having said this, even if an had been conducted, the Department’s failure to provide a placement witness leaves open the question as to whether the Department would have been able to implement it. Similarly, in the absence of any testimony from , one cannot conclude that this school would have been able to implement such a program appropriately. Although mere procedural errors do not establish a violation of FAPE, given the absence of testimony and the constellation of deficiencies articulated above, I find that the Department failed to offer a FAPE for both the 2015- 2016 and 2016-2017 school years. While an IEP may exist in pristine format, it is not merely a theoretical document. It is only as good as its ability to be implemented. In this matter, the Department simply has not met its evidentiary burden of establishing the viability of its IEPs. Thus, I cannot conclude that the CSE was duly composed. I cannot conclude that the evaluations for this child were appropriate. I can conclude, however, that a should have been conducted.

Point II: Is compensatory education appropriate in the matter, sub judice?

Addressing the issue of compensatory education, Application of a Child with a Disability No. 05-022 furnishes an excellent overview of compensatory education and its discussion is recited herein. The IDEIA applies to children aged 3 through 21 inclusive (20 U.S.C. § 1412[a][1][A]), subject to the limitation that it does not apply to children aged 18 through 21 where it is inconsistent with state law or practice on the provision of a public education (20 U.S.C. § 1412[a][1][B][i]; see St. Johnsbury Academy v. D.H., 240 F.3d

163, 169 [2d Cir. 2001]). New York Education Law specifically provides IDEIA eligibility to children through the end of the school year in which they turn 21 (N.Y. Educ. Law § 4402[5][b]; see 8 NYCRR 100.9[e]; see also Application of a Child with a Disability, Appeal No. 02-016; Application of a Child with a Disability, Appeal No. 00-

024). Generally, under the IDEIA, "a [child with a disability] does not have a right to demand a public education beyond the age of twenty-one" (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990] [internal citation omitted]). Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA]" (Honig v. Doe, 484 U.S. 305, 318 [1988]; see Cosgrove v. Bd. of Educ., 175 F. Supp.2d 375 [N.D.N.Y.

2001]).

The Second Circuit, however, allows for the provision of compensatory education services for a student over 21 years old where there has been a gross violation of the IDEA during the time of the child's eligibility (Garro v. Connecticut, 23 F.3d 734, 737 [1994];

Mrs. C., 916 F.2d at 75; Burr v. Ambach, 863 F.2d 1071, 1075 [2d Cir. 1988]), such as the type that results in the denial of or exclusion from educational services for a substantial period of time (see, e.g., Mrs. C., 916 F.2d at 75; Burr, 863 F.2d at 1078, Mrs. C. v.

Wheaton , 916 F.2d 69 [2d Cir. 1990]; Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir.

1988]; Lester H. v. Gilhool, 916 F.2d 865 [3d Cir. 1990]; Miener v. State of Missouri, 800). In such cases, "the scope of the remedy can extend beyond the scope of the original right" (Burr, 863 F.2d at 1078, citing Swann v. Charlotte-Mecklenburg Bd. of Educ., 402

U.S. 1, 15 [1971]), and compensatory education services may be awarded to students over 21 as a remedy for past deprivations of a right that the IDEA clearly provided a FAPE between the ages of 3 and 21 (see Burr, 863 F.2d at 1078; Cosgrove, 175 F.Supp.2d at 387). It is, however, an equitable remedy that must be tailored to meet the circumstances of the case (Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 151 [N.D.N.Y. 1997], aff'd 208 F.3d 204 [2000], cert. denied 531 U.S. 1019 [2000]; Application of the Bd. of Educ., Appeal No. 02-033; Application of a Child with a Disability, Appeal No. 02-019).

In fact, the purpose of a compensatory education award is not to provide “extra” educational services to a student, but rather to redress “a school district’s failure to provide that which it was obligated to provide earlier.” Application of the Board of Education of the Millbrook Cent. Sch. Dist., App. No. 02-033, citing Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 158 [3d Cir. 1994]. Thus while “ordinary IEPs need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 4401 F.3d 516, 525 (D.C. Cir. 2005).

Finally, while federal courts within the Second Circuit have held that compensatory education is a remedy that is available to students who are no longer eligible for instruction, SRO decisions have, in the past, awarded equitable relief in the form of additional educational services to students who rem ain eligible to attend school.

(Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-

030.

Based upon the Department’s failure to provide with FAPE during the 2015- 2016 and 2016-2017 school years, I believe is entitled to some measure of compensatory education.

Point III: Is the Parent entitled to equitable relief pursuant to Burlington, supra, for the 2014-2015 school year?

Prong three of Burlington, supra, provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v.

Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.

Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New Aaron

City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New Aaron

City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa

Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New Aaron

City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch.

Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch.

Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist.

v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina

City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch.

Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.).

Consistent with 20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1], I find that the Parent’s behavior militates against her equitable right to recovery. She has continued to enroll her child in a patently inappropriate school for at least two years. While Ms. testified that has retained special educators for the to which has been assigned, there was no testimony from and I am not persuaded by the Parent’s testimony, given ’s status as a charter school. Beyond this, the Parent herself testified that her child is not receiving related services at .

Reports offered by the Department seem to conflict with her statement, but remain unreconciled due to the lack of testimony. Although the Parent alleges that the paradigm at is identical to that of the recommended program, I am not persuaded that ’s teachers possess special education credentials or training.

Beyond this, it is evident that is unable to cope with ’s issues, having expelled him for at least three months without any evidence of manifestation hearing or proceedings. Lastly, given ’s status as a school, it is unclear if would have received extended year services. Based upon the testimony and evidence in this matter, any view that the educational programming at and were essentially the same is misguided.

Clearly was an inappropriate placement for for the 2015-2016 and 2016-2017 school years. Incredibly, according to the Parent, even advised her that their school was inappropriate for and that he belonged in a program. Again, even if an and had been developed, there was no testimony that would have been able to implement its provisions appropriately. Indeed, the Parent testified that the student had regressed at .

Similarly, although the Parent was repeatedly referred to for , there is no evidence that Ms. availed herself of their assistance.

She did not testify to this, nor are there any records in evidence. Although the Parent did testify that she had visited all of the suggested schools, her testimony is not persuasive on this issue. There were no attendance records, sign-in sheets or visitor passes admitted into the record. Similarly, there were absolutely no specifics elicited from her testimony regarding her various visits. Significantly, one does not know what kind of class she visited or whether the classes she was shown related to ’s age or educational profile. Thus, I cannot conclude that these visits occurred in any meaningful way. Added to these concerns, I am compelled to point out the various references to the student’s excessive absenteeism.

Although the Parent testified that she had no other choice than to place her child at , this is clearly not so. There is no evidence that was ever enrolled in a school or that he was ever given the opportunity to avail himself of the services offered within this paradigm. Although the Parent testified that she frequently asked for supplemental services, other than the Parent’s testimony, the record does not support her claim.

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch.

Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa.

Oct. 22, 2007]).

Although the case at bar is not a unilateral transfer, I find that the principles apply equally. There is no evidence that any written notice was offered to the Department indicating that the Parent planned on obtaining a private educational evaluation for at Department expense. Similarly, there was no indication that the Parent advised the Department that she would hold it responsible for in the form of compensatory education. Under these circumstances, I cannot find that any notice was offered to the Department enabling it to remedy the Parent’s dispute and to work collaboratively with her. Although the Parent made her objections known at the prior CSE convene, she did not offer any suggestions. Only by way of litigation did the Parent advise the Department of her interest in .

Nevertheless, I find that the student is entitled to compensatory education services, amounting to hours of service to be provided after the school. As consistency, attendance and regular practice and review are critical aspects of the learning process, any services not utilized within two years shall be forfeited.

Finally, I note that the hours of compensatory service takes into consideration the Parent’s contribution to the child’s by virtue of placing him in an inappropriate educational setting for at least two years. It also takes into consideration her failure to avail herself of , Ms. ’s lack of notice to the Department and the student’s .

Conclusion

The Parent’s request for relief is granted in part for the 2015-2016 and 2016- 2017 school years.

Wherefore, it is hereby ordered that:

A of the student shall be conducted within

30 days of the date of this Order. If appropriate, a shall be developed within 45 days of the date of this Order.

The student shall be entitled to an independent ev aluation at a hospital-based facility at a rate of or less.

Upon receipt of the ev aluation, and , the CSE shall reconvene within 20 business days in order to develop a new IEP for A s compensatory education, this IEP shall include to be provided by the Departm ent of Education for a total of . Such services shall be provided after school hours by a prov ider, authorized by the Departm ent. All services not utilized within a two- y ear period shall be forfeited.

.

The Parent shall not be entitled to any fees incurred at the

.

Dated: July 19, 2017

LYNN BOTWINIK ALMELEH, ESQ.

Impartial Hearing Officer LBA:

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 Impartial Due Process Hearing Request, 12/7/16, 7 pages

B IEP, 5/13/16, 20 pages

C IEP. 2/29/16, 19 pages

D IEP, 6/4/15, 15 pages

E IEP, 12/15/14, 20 pages

F IEP, 12/16/13, 20 pages

H Assessments, various dates, 5 pages

I Report Card, 2015-2016, 1 page

K Request for Reevaluation, 5/4/16, 2 pages

L , 11/9/16, 3 pages

M , 3/20/17, 2 pages

N , 11/5/16, 56 pages

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 12/7/16, 8 pages

2 Due Process Response, 3/1/17, 3 pages

3 Findings of Fact and Decision – 154242, 2/3/15, 13 pages

4 Notice of IEP Meeting, 5/26/15, 3 pages

5 Individualized Education Program (IEP), 6/4/15, 12 pages

6 PWN w/School Location Letter, 6/23/15, 5 pages

7 Request for Evaluation, 12/1/15, 1 pages

8 , 1/28/16, 5 pages

9 Progress Report, 1/29/16, 2 pages

10 Notice of IEP Meeting, 2/5/16, 11 pages

11 Teacher Report, 2/29/16, 11 pages

12 IEP Meeting Minutes, 2/29/16, 5 pages

13 Individualized Education Program, 2/19/16, 14 pages

14 PWN w/School Location Letter, 4/8/16, 4 pages

15 Progress Report, 4/22/16, 2 pages

16 Notice of IEP Meeting, 5/13/16, 3 pages

17 Individualized Education Program (IEP), 5/13/16, 15 pages

18 PWN w/School Location Letter, 6/8/16, 2 pages

19 Progress Report, 6/8/16, 2 pages

20 Progress Report, 2/28/17, 1 page

21 Report Card, 2015-2016, 1 page

IMPARTIAL HEARING OFFICER

i NYC Closing Memorandum, 7/14/11, 4 pages

ii Parent’s memoranda of Law, 7/14/17, 5 pages

---

Footnotes

[2] The Parent was uncertain as to , but was certain it was at least . I note that there is no evidence in the record to indicate the nature of this or whether a manifestation hearing was conducted. Tr. at 76. In later testimony, the Parent testified that she was not contacted on a weekly basis as the child would have