New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 164803

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 6, 2017

May 1, 2017

May 24, 2017

Actual Record Closed Date: July 14, 2017

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON

Name Title For Date DOE Representative DOE 04/06/17 (T) 05/01/17 05/24/17 Attorney PARENT 04/06/17 (T) 05/01/17 05/24/17

Mother PARENT 05/01/17 05/24/17

PARENT 05/24/17 (T)

On March 22, 2017, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), Part 200 of the Regulations of the Commissioner of Education and Section 504 of the Rehabilitation Act, concerning a dispute between the Parent of a student attending a public school and the New York City Department of Education (“DOE”) - District: , regarding the student’s special education program. After adjournments were granted on consent of the parties or for cause, the impartial hearing was held on April 6, 2017 (pre-hearing conference), May 1, 2017 and May 24, 2017. The Parent submitted a written closing statement that was received on July 14, 2017. (P-Y) The DOE did not submit a closing statement. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

The student in this case attended a public school for the 2016-2017 school year.

(See Parent’s Due Process Complaint - “DPC”) The Parent alleges that the Committee on Special Education (“CSE”) has denied the student a “free and appropriate public education” (“FAPE”) for the 2014-2015, 2015-2016 and 2016-2017 school years. (Id.)

Accordingly, at the impartial hearing, the Parent seeks an order from the IHO awarding the following relief:

(a) The CSE shall convene a duly-constituted IEP team to develop an appropriate IEP that addresses the needs of the Student. The goals shall be meaningful and measurable. The IEP shall include an appropriate academic program and appropriate accommodations and modifications. The

NYCDOE shall reimburse the Parent for attorney's fees for attendance at the IEP meeting any subsequent IEP meetings.

(b) services to be provided to meet the needs of the Student as mandated by Part 200.1 of the Commissioner's regulations. Specifically, the CSE shall increase the student’s related services to address his significant delays.

(c) The NYCDOE shall conduct a full battery of evaluations to determine the student’s current needs including, but not limited to: (1) a evaluation; (2)

an evaluation; (3) a evaluation; (4) a evaluation; (5) a evaluation; (6) a evaluation; and

(7) an evaluation.

(d) Should the Parent disagree with the district evaluations, the NYC DOE shall fund the following independent evaluations for the student: (1) a evaluation; (2) an evaluation; (3) a evaluation; (4) a evaluation; (5) a evaluation; (6) a ; and (7) an evaluation.

(e) The NYCDOE shall provide at least hours of compensatory services at the enhanced rate, based on the denial of an appropriate placement, services and FAPE, during the entirety of the 2014-2015 and 2015-2016 school years, and for the portion of the 2016-2017 school year up to and including the filing of the Due Process

Complaint.

(f) The NYCDOE shall provide hours of compensatory services at the enhanced rate based on the denial of an appropriate placement, services and FAPE, during the entirety of the 2014-2015 and 2015-2016 school years and for the portion of the 2016-2017 school year up to and including the filing of the Due Process Complaint.

(g) The NYCDOE shall provide hours of compensatory services at the enhanced rate based on the denial of an appropriate placement, services and FAPE, during the entirety of the 2014-2015 and 2015-2016 school years and for the portion of the 2016-2017 school year up to and including the filing of the Due Process

Complaint.

(h) An award of all attorney's fees incurred by the Parent in this case.

(i) Any other relief that the Impartial Hearing Officer deems appropriate.

The Parent had an independent evaluation of the student conducted in April of 2016, for which she does not seek reimbursement. (T-8-9) The Parent did not disagree with any DOE evaluations. (T-9) The Parent agreed to accept evaluations by the DOE conducted at the DOE rate. (T-42)

THE DOE’S CASE

The DOE conceded “Prong 1” of the “Burlington/Carter” test and acknowledged that it did not offer the student a “free and appropriate public education” (“FAPE”) for the 2014-2015, 2015-2016 and 2016-2017 school years. (T-31-2 & 35) The DOE also conceded that there are no equitable considerations that would bar an award on behalf of the Parent. (T-36-7) The DOE argues that the amount of relief the Parent is entitled to for the denial of FAPE must be proven by her, as well as how long the Parent has to use any hours of compensatory education she might receive. (T-48)

The DOE call any witnesses to testify on its behalf and did not submit any documents in evidence. (T-56)

THE PARENT’S CASE

The Parent argues that the student is in the and classified as . (T-51) Because the DOE has denied the student a FAPE for three school years, his is now entitled to the requested evaluations, compensatory ang compensatory related services. (T-51-5)

The Parent called (2) witness and submitted (6) documents in evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness is the student’s mother, who gave her testimony on direct via affidavit. State regulation allows an IHO to "take direct testimony by affidavit in lieu of in-hearing testimony, provided that the witness giving such testimony shall be made available for cross-examination." (P-W - See 8 NYCRR 200.5[j][3][xii][f]) In sum, substance and relevant part, the direct testimony of the student’s mother is as follows:

On cross examination, the witness testified that she did not know the difference between a and program, or an program (“It’s like services that he’ll get.”) and what the “ ” is (The student was when he started at the program). (T-60-2) She also does not know what means. (T-63) has not been the main focus of the student’s education, but instead, she has been focused on . (T-64-5) The student’s current grade level is . (T-66)

. (T-67) However,

. (Id.) and she believes that

. (T-68-9)

The witness testified that the student has made minimal progress over the last years, because he not receiving the correct services, but she left him in the non-public school to give them a chance. (T-70) The student’s current school is showing the student and working on trying to reach his goals, but they are not showing him . (T-71) She does not know what is, or what is.

(T-72) She first heard that the student has “ ” from Doctor last year, but he did not explain to her how children with learn, did not explain anything to her about and did not make any verbal recommendations to her. (T-74-5 & P-G)

However, the , did go over the student’s evaluation with her. (T-76)

The witness testified that the student’s services were reduced and she does not know if he is receiving his services this year. (T-76-7) The student is years old and it’s important for him to , but she does not believe that the (“ ”) can teach him that. (T-78) The was recommended by her attorney. (T-79) The is not going to work on the student’s

or . (Id.)

There was no substantive testimony developed during the witness’ re-direct examination.

(T-80-2) There was no re-cross examination of the witness. (T-82)

The Parent’s second witness is an . (T-93) She testified on direct that she met with the student last week and determined that he needs . (T-

97) The student needs in order for him to learn and progress academically. (T-98) She would teach the student

.

(T-101)

The witness did not conclude her direct examination. (T-130) The witness also did not make herself available for cross examination. (P-Z) It is well settled in the law that the parents, school authorities, and their respective attorneys or representatives, must have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses at the impartial hearing. (See 8 NYCRR

200.5[j][3][xii] - emphasis added) It is also well settled that an IHO’s order to the parent to attend the impartial hearing in order for the parent to be questioned by the impartial hearing officer and the district's attorney is a reasonable directive that obligates the parent to comply. (SRO No. 09-073) Accordingly, the minimal direct testimony received from the at this hearing is stricken, and is not considered in the decision below.

FINDINGS OF FACTS & DECISION

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept.

of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2nd Cir. 2005])

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2nd Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and

(b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V.

Rowley, 458 U.S. 176, 206-7 [1982]) 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. § 300.550(b), 8 NYCRR §200.6(a)[1])

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]). It is also not required that the private school employ certified special education teachers, or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 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"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-

102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-

049).

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA.

(Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir.

2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34

C.F.R. § 300.148)

In this case, the DOE concedes that it did not offer the student a FAPE for the 2014-2015, 2015-2016 and 2016-2017 school years. (T-31-2 & 35) The DOE also conceded that that there are no equitable considerations that would bar an award on behalf of the Parent. (T-36-7) Accordingly, the only issue to be decided in this case is the appropriateness of the Parents’ requested relief.

A gross violation of the IDEA may result from the denial of, or exclusion from, educational services for a substantial period of time. See SRO Decision 04-074, citing Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990), Burr v. Ambach, 863 F.2d 1071 (2d Cir.

1988) and SRO Decision 02-047. In Burr, exclusion from educational services for a substantial period of time was defined as “almost two years.” See SRO Decision 02-033 citing Burr “…after a severely disabled student's school was closed, prolonged delays in the administrative proceedings in obtaining a new placement resulted in a complete exclusion from any educational placement for the student for almost two years.” In the instant case, the DOE concedes a denial of FAPE for the last three school years.

Accordingly, I find that the DOE’s concession that it has failed to afford the student a FAPE constitutes a gross violation of IDEA.

The student’s Evaluation dated May 10, 2016 was received in in evidence. (P-Q) The report found that . (Id.) The student was diagnosed with , i.e., . (Id.) It was recommended that the student continue with all of his current services and receive and services. (Id.)

In April 20I6, the student participated in a . (P-S &

P-W) The student stated to the interviewer that

. (Id.)

. (Id.) The student is said to be

. (P-W) The evidence regarding the student’s needs was uncontroverted. Accordingly, I find that the student’s current services do need to continue, that he needs and , as well as . The Parent in this case has agreed to accept evaluations conducted by the DOE at the DOE rate, with the caveat that as the law permits, she may request independent evaluations if she disagrees with the findings of the DOE evaluations. (T-42)

The Parent in this case seeks a significant amount of compensatory, services. Here, the SRO Decision 05-062, provides guidance in analyzing this Parent’s claim to compensatory services. In SRO No. 05-062, the State Review Officer held as follows:

I agree with respondent’s contention, given the facts of this case, that the Burlington analysis is not the most appropriate analysis for petitioner’s request for remedial tutoring, as the essence of petitioner’s claim is that respondent did not provide a FAPE to the student at OTC and that additional tutoring services at Huntington are an appropriate remedial remedy….Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir.

1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988])….Here any deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction (Application of the Bd. of Educ., Appeal No. 04-016; Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 01-094). State Review Officers have awarded equitable relief in the form of additional educational 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 (Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No.

02-030). In general, the award of additional educational services, for a student who is still eligible for instruction, requires a finding that the student has been denied a FAPE (Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 02-047)….I concur with the impartial hearing officer’s determination that the award of tutoring services requested by petitioner be denied. The record does not contain sufficient information relating to the student’s needs, present levels of academic performance, and his program at OTC to determine what additional services he would need to remedy the deprivation of services caused by the denial of a FAPE. Accordingly, I am unable to determine what additional services may be warranted in this case. However, I will direct the CSE to reconvene and consider what additional services are necessary to compensate for respondent’s failure to provide petitioner’s son a FAPE. Because of the evidence with respect to the student’s speech-language needs…and the significant disparity between the frequency and type of speech-language services provided to him…and that recommended by the most recent speech-language evaluation…pending the CSE’s review of the speech-language evaluation provided for herein, I will order that respondent provide petitioner’s son with 30 minutes of individual speech-language therapy once a week and 30 minutes of speech-language therapy in a group of two, twice a week

It is also well settled that 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 [N.D.N.Y. 1997]) Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA. (See 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1],

4402[5])

In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 C.F.R. § 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; SRO No. 05-084 & 05-037), or until the conclusion of the school year in which he or she turns age 21. (See Educ. Law §§ 3202[1], 4401[1], 4402[5]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 C.F.R. § 300.102[a][1], [a][3][ii] & SRO No. 04-100)

Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. (See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001] & SRO No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education])

Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA. (See 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]) Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE. (See Newington, 546 F.3d at 123 [stating that "[t]he IDEA allow s 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. v. New York City Dep't of Educ., 2008 WL 4890440, at *23 [E.D.N.Y. Oct. 30, 2008] [ finding that compensatory education may be awarded to students under the age of twenty-one]; see also R.C. v. Bd of Educ., 2008 LEXIS 113149, at *38-40 [S.D.N.Y. March 6, 2008])

Likewise, State Review Officers 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. (See Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for a State Review Officer 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]; SRO No. 09-111 [adding summer reading instruction to an additional services aw ard]; SRO No. 09-054 [aw arding additional instructional services to remedy a depriv ation of instruction]; SRO No. 09-044

[aw arding "make-up" counseling services to remedy the depriv ation of such services]; SRO No. 09-035 [aw arding 1:1 reading instruction as compensation for a depriv ation of a FA PE]; SRO No. 08-072 [aw arding after school and summer reading instruction as compensatory services to remedy a denial of a FA PE]; SRO No. 08-060 [upholding additional services aw ards of physical therapy and speech-language therapy ]; SRO No.

08-035 [aw arding ten months of home instruction services as compensatory services] and SRO Nos. 06-074, 05-041 & 04-054)

For all the reasons above, if find the student in this case is entitled to some compensatory, , but that the record does not justify an award of ” The Parent in this case conceded that what is important in this case is that the student , but that she does not believe that the (“ ”) (the proposed prov ider of ) can teach him that. (T-78) The was recommended to her by her attorney. (T-79) The Parent conceded that the is not going to work on or

. (Id.)

NOW therefore, it is hereby

ORDERED that the DOE shall forthwith re-evaluate the student in all relevant areas, including, but not limited to (1) a evaluation; (2) an evaluation; (3) a evaluation; (4) a evaluation; (5)

a evaluation; (6) a evaluation; and (7) an evaluation, all at the prevailing DOE rates. Upon competition of those evaluations the CSE shall forthwith re-convene a duly-constituted IEP team to develop a new IEP for the student’s 2017-2018 school year; and it is further

ORDERED that should the Parent disagree with the DOE’s evaluations, she may seek independent educational evaluations pursuant to 8 NYCRR § 200.5(g)(iv); and it is further

ORDERED that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall pay the cost of the student’s receipt of hours of compensatory services at the (“ ”), at the center’s prevailing hourly rate; and it is further

ORDERED that the DOE shall provide the student with hours of compensatory services at the prevailing DOE rate; and it is further

ORDERED that the DOE shall provide the student with hours of compensatory services at the prevailing DOE rate; and it is further

ORDERED that in addition to the above, the DOE shall continue to provide the student with all of his current services as per his most recent IEP, throughout the 2017- 2018 school year; and it is further

ORDERED that the Parent’s request for an award of all attorney's fees incurred by the Parent in this case is beyond the scope of the IHO’s authority and is accordingly denied.

Dated: July 31, 2017

EDGAR DE LEON, ESQ.

Impartial Hearing Officer EDL:

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

Number/Letter Title Dated For # of Pages

N/A N/A N/A DOE N/A

Q Evaluation 05/2016 PARENT 10

S undated PARENT 03

U 10/07/16 PARENT 11

W Affidavit of Payment 05/01/17 PARENT 27

X Letter of Recommendation 05/23/17 PARENT 01

Y Closing Statement 07/14/17 PARENT 22

Z E-Mail from Parent 06/05/17 PARENT 01

I E-Mail - “Adjournment Denied” 02/13/17 IHO 03