New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 164876

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 3, 2017

May 2, 2017

June 1, 2017

June 29, 2017

Actual Record Closed Date: August 16, 2017

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON

Name Title For Date DOE Representative DOE 04/03/17 (T) 05/02/17 06/01/17 06/29/17

DOE 05/02/17

DOE 06/01/17

Attorney PARENT 04/03/17 (T)

05/02/17

06/01/17

06/29/17

Mother PARENT 05/02/17

06/01/17

06/29/17

PARENT 06/29/17

On February 7, 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) and Part 200 of the Regulations of the Commissioner of Education, concerning a dispute between the Parent of a student , and the New York City Department of Education (“DOE”) - District: , regarding the student’s special education program. I was appointed after the recusal of at least one other IHO. After adjournments were granted on consent of the parties or for cause, the impartial hearing was held on April 3, 2017 (pre-hearing conference), May 2, 2017, June 1, 2017and June 29, 2017 and May 9, 2014. The parties opted to submit closing statements in writing, which were originally due on July 14, 2017, but after requesting additional time, were ultimately submitted on July 24, 2017. (T-

272, D-15 & P-BB) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case an “expedited” Due Process Complaint (“DPC”) was filed on or about December 15, 2016 (Case #9164876), followed by an “amended” DPC on or about February 14, 2017 ( ). (T-4) The original DPC alleged that this is a student, classified as having an , whose reported that . (T-5) The student received a which that Parent alleges she was not notified about. (Id.) An attorney from called the to investigate the student’s and found that there was no , but the student was not attending school.

(Id.)

In March of 2016, an “Individualized Education Program” (“IEP”) meeting was held for the student, which the Parent asserts denied her a “free and appropriate public education” (”FAPE”). The student is currently . (Id.)

At the impartial hearing, the Parent’s attorney confirmed that the matter was no longer

“expedited.” (T-7 & 40) Instead, the Parent asserts that the student was denied a FAPE for the 2014-2015, 2015-2016 and 2016-2017 school years, and requested that she be provided with goals, that the student’s entire educational file be produced and that the case be deferred to the “Central Based Support Team” (“CBST”). (T-8-9) The Parent further asserts that this case falls under the “Child Find” provisions of the law. (T-10-1)

The parties were directed to work out the access to the student’s file, which could be voluminous considering her age and time in the public-school system. (T-11)

Deferral to the CBST is not a relief that can be granted as it is inappropriate to pre-determine what the “Committee on Special Education” (“CSE”) should recommend.

Additionally, “The IDEA mandates that ‘[t]o the maximum extent appropriate, children with disabilities. . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.’” P. v. Newington Bd. of Ed., 546 F3d 111, 119 (2nd Cir. 2008)(emphasis added), 20 U.S.C. § 1412[a][5][A], Walczak, 142 F.3d at

122, M.W. v New York City Dept. of Educ., 2013 WL 3868594, at *9 (2nd Cir. July 29, 2013), E.S. v. Katonah-Lewisboro School Dist., 2012 WL 2615366, at *1 (2nd Cir. July 6,

2012)(explaining that “[t]he ‘special education and related services must be provided in the least restrictiv e setting consistent with a child's needs’”), E.F. v. New York City Dept.

of Educ., 2013 WL 4495676, at *15 (E.D.N.Y. Aug. 19, 2013)(explaining that “under the law , once [the district] determined that [the public school setting] w as the least restrictive environment in which [the student] could be educated, it w as not obligated to consider a more restrictive environment, such as [the nonpublic school]), A.D. v. New

York City Dep’t of Educ., 2013 WL 1155570, at *8 (finding that "[o]nce the CSE determined that [public school setting] would be appropriate for the [s]tudent, it had identified the least restrictive environment that could meet the [s]tudent's needs and did not need to inquire into more restrictive options such as nonpublic program s”), R.C. v

Byram Hills Sch. Dist., 906 F Supp 2d 256, 273 (S.D.N.Y. 2012)(noting that “[w ]hile it is natural to assume that a student would benefit from being in a sm aller classroom environment with more support, the IDEA does not require that the [d]istrict provide an ideal learning environment, but instead only one w here the student can progress)

Instead, an appropriate equitable remedy, if justified by the record, would be an award of additional educational services.

THE DOE’S CASE

The DOE asserts that the , is a unique program in that the portion of the program is run by . (T-13) The student in this case was initially evaluated in 2016. (Id.) The DOE did not contest the “Child Find” issue raised by the Parent. (T-15) The DOE also concedes that the student is entitled to “ ” services. (T-37)

. (T-39) Here, the

, but was still offered educational

services by the DOE. (Id.)

The DOE at first asserted that it was not going to put on a case against the Parent’s assertion that the student was denied a FAPE, and that it would not call any witnesses to testify on its behalf. (T-52-3) Ultimately, the DOE conceded that it denied the student a FAPE for the 2014-2015 and 2015-2016 school years. (T-55, 57 & 199)

The DOE argues that the , where the student was clinically and parentally placed at the time, is a program that provides . (T-58-9) On March 1st, 2016, the CSE held a fully constituted IEP meeting for the student. (T-59) The CSE team made a recommendation of a in a New York City Department of Ed specialized school. (Id.) The team and family agreed with the placement recommendation. (Id.)

. (Id.) The is a separate entity from the DOE.

(T-59-60) The IEP meeting recommended the student’s continued placement in the program and the Parent agreed. (T-62)

The DOE argues that it was the program that transferred the student. (T-62) The program first admits a student and then the DOE provides an educational program. (Id.)

At the time, the student did not have an IEP. (T-63) The DOE agrees that the student should have been classified as special education before March of 2016. (T-63-4) Shortly after being admitted to , on July 5th, 2016, the student was then enrolled in the , which is the DOE program that provides education to students who are also admitted to the program. (T-64)

. (Id.)

. (Id.) . (Id.) It

was the student and the Parent that chose not to return to either the or . (T-65) The Parent was offered several options, including a re-evaluation of the student and a reconvene of the CSE team. (Id.) Instead, the student remained out of school, as the Parent stated she was pursuing other aside from the

DOE. (Id.)

The DOE further argues that there was not a violation of Chancellor's regulations in the handling of the , as it wasn't granted by the DOE, which has no jurisdiction over the actions taken by or the documents maintained by staff. (T-

67) The Parent is this case has been unwilling to engage in discussions to try to reach a resolution. (T-67-8) At the student’s March 2106 IEP meeting, she was classified as having an “ ” and her hospitalization before and after the IEP meeting was “ ” in nature. (T-68) A assessment of the student was done by the in the , in November of 2015.

(T-78) A evaluation of the student was completed on May 19, 2017. (T-155)

The DOE called (2) witness and submitted (11) documents in evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness is an at the , which is a part of “ .” (T-87-8) She testified that “ ” is an and is part of that, which is made up of about . (T-88)

The student was a student at . (Id.) Most of the sites are

. (T-89)

and have a collaboration, and is the program by which the provides to the students, and just provides the educational components while the students are enrolled at the hospital. (T-90) All of the staff members are and operate under , while all the staff are DOE employees, which she supervises and must follow all the

Chancellor's regulations and DOE policies. (Id.)

. (T-91) Parents can refer students

to , and does an intake interview, diagnoses the student, and then enrolls them with , after which they enroll with while they are there. (T-91)

The witness testified that the DOE has nothing to do with the from , after which the student can either be transitioned back to their community school or find a placement. (T-92) The student did the “ ” (Id.) Students must be enrolled in to even be in the .

(T-93) While at , the student did not receive any discipline action from the DOE.

(Id.)

. (T-93-4) While the students are serving their , they remain in their educational program. (T-94) The student was “voluntarily” discharged from the January 11, 2017 at her mother’s request. (T-95) The DOE assisted in finding a placement for the student and called the student’s mother, and followed up multiple times to discuss her options and offer assistance, including to reevaluate the student and reconvene the CSE team to find more appropriate placement for her. (Id.) The student had previously been in a placement. (T-95-6) The student’s mother mentioned a program, but was not sure of what she wanted. (T-

96) The Parent did not accept the placement and instead applied for

“ ” (T-96-7))

During voir dire, the witness testified that if the student is taken out of the , she couldn’t just go to another site because the DOE does not handle any of the intakes, the partner agency does all the intakes. (T-98) If the agency accepts the student, then he or she is automatically enrolled with . (T-100) She believes the student was voluntarily discharged by her mother because the latter was upset about the student’s . (Id.) The was due to

. (T-102)

On cross examination, the witness testified that she does not know if the is an or , or whether it is sanctioned by them? (T-104) She is always aware of , but not if they do not interrupt the educational process. (T-115) Here, the Parent did not want to continue the student in school. (T-119) The student could have remained in the after she received the . (T-122 & 124) Although the student was mandated for a “ ” setting, she was not receiving a . (T-126)

There are kids without disabilities in the program. (T-127) If a student receives a , it depends on the situation whether he or she can go into the classroom, or receives educational support in a different location. (Id.)

During re-direct examination, the witness testified that treats all students that have an and the Parents agree to sign the students up for . (T-135) There was no re-cross examination of the witness.

(T-136)

The second and final witness for the DOE is a . (T-158) She testified that she received a referral in November of 2016 and met with the student’s mother, conducted a social history evaluation and communicated with the . (T-161) She participated in the student’s IEP meeting with a , a special education and teacher , the student’s and the student’s mother who called into the meeting. (T-162) The student was classified as having an “ ” a recommended for a specialized school with a ratio of . (T-163) In lieu of related of , consistent with

, “

” was included as they are always are specifically informed in writing and verbally not to put services on the IEPs. (T-163-4) The student’s mother indicated that she agreed. (T-164 & 167) They considered and related services for the student but believed it lacked sufficient supports for the student. (Id.)

During cross examination, the witness testified that there was one person who signed in as both the and teacher at the meeting. (T-171) They followed the recommendations of the hospital staff at the meeting. (T-180-1)

There are no goals on the IEP that relate to the needs arising from the student's

“ ” disability. (T-182) She does not view the IEP’s related services to be sufficiently specific, but in these circumstances, where it is required under the prevue of the program, she believe they consider this a higher level of services, as they are not mandated to a limited number of times that they can offer it to students with needs throughout the day. (T-185)

The witness testified that the student was at an at the time the IEP was developed and it was anticipated that she was going to be in an day program setting, which was the purpose of the meeting. (T-188) The IEP was not developed for the that the student had previously received. (T-189)

She was aware that and reached the level where she had to receive . (T-191) It was the Parent’s decision to and . (Id.) There are no goals on the IEP to address . (T-200)

On re-direct examination, the witness testified that the CSE team, the Parent and the all agreed that they had made the most appropriate recommendations for the student. (T-202) During re-cross examination, the witness testified that the CSE team was not obligated to accept the ’s related services recommendation. (T-203)

During voir dire, the witness testified that she does not know if the student could attend the if the DOE disagreed with their recommendations. (T-207)

THE PARENT’S CASE

The Parent argues that the student’s “Child Find” rights have been violated going back to at least January of 2015. (T-69) Whether it was the , or the , there were numerous instances of the DOE allowing these programs to violate the rights of students that the DOE had an obligation to protect. (T-70) The Parent alleges that that the DOE's placement of the student in the was itself a violation of both “FAPE and Section

504.” (T-71) The DOE placed the student in a program that they knew or should have known would treat students with disabilities different than their nondisabled peers. (Id.)

When the student was discharged from the , she was assigned another school that did not meet the requirements mandated by her IEP, which was another FAPE violation. (T-72) Because of this, the student’s mother has been since she was discharged from the . (Id.)

The student has an extensive history of , there is not one goal related to . (T-73) Due to a denial of FAPE for the 2014-2015, 2015-2016 and 2016-2017 school years, and there being no appropriate placement offered, the Parent asking the IHO to order a private placement and to approve independent evaluations, as well as any other evaluations deemed necessary. (Id.) The “ ” is a part of the New York City Department of Education. (T-74) Starting November 20th, the Doe conducted a evaluation of the student, and then additional evaluations were performed into 2015. (T-75) The Parent did not give the DOE notice of any disagreement she had with the DOE evaluations. (T-76) The student is receiving services, albeit not through the DOE. (T-84)

The Parent called (2) witness and submitted (21) documents in evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The first witness for the Parent is the at

(hereinafter " "). (T-233 & P-AA) She testified on direct examination 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." (See 8 NYCRR 200.5[j][3][xii][f]) The witness testified as follows:

(P-AA)

On cross examination, the witness testified that the person who tested the student is not a or a . (T-236) The student would be guaranteed a at . (Id.) During the school year they generally see the kids about , but some kids that come a little bit longer than that and they try to capitalize on school breaks, holidays because they are open from . (T-237) There was no substantive testimony developed during the witness’ re-direct examination. (T-237-8) On re-cross examination, the witness testified that she is state certified in special education. (T-238) She is not a certified or evaluator. (T-239)

The Parent’s second and final witness is the student’s mother. (T-240) She testified that the student is and . (T-241) The felt that the student needed because she was having a lot of issues in school, with . (T-242) That was around June of

2015. (T-243)

. (T-243-4)

. (T-244) The student started at on December 9, 2016. (T-245)

The witness testified that she had voluntarily placed the student in on January 16, 2015. (T-247)

. (T-248) at “ ”, the student’s thought

. (T-252-3 & P-O) She believes the student is now getting the and the support she needs and that she . (T-255) A CSE meeting was not held after the student left . (T-256) She rejected the DOE offered placement right away as .

(T-257-8) She would not recommend that school to anyone. (T-257) An IEP meeting was held about a week ago. (T-259) She would disagree with any placement offered by the DOE as is her right to do so. (T-250)

During cross examination, the witness testified that she did not remember discussing other options for the student with the DOE. (T-263) The DOE team reconvened this morning after receiving the student’s report. (Id.)

Most likely the DOE will recommend the same school which she will reject.

(Id.) The DOE team told her that they were going to recommend a deferral to the CBST.

(T-264) There was no re-direct examination of the witness. (T-266)

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)

Here, the DOE conceded that it denied the student a FAPE for the 2014-2015 and 2015-2016 school years. (T-55, 57 & 199) The agency maintains that it did offer the student a FAPE for the 2016-2017 school year, when on March 1st, 2016, the CSE held a fully constituted IEP meeting for the student. (T-59) The student’s IEP meeting with a , a and teacher, the student’s and the student’s mother who called into the meeting. (T-162) The student was classified as having an “ ” a recommended for a specialized school with a ratio of . (T-163) In lieu of related of , consistent with

, “

” was included as they are always are specifically informed in writing and verbally not to put services on the IEPs. (T-163-4) The student’s mother indicated that she agreed. (T-164 & 167) They considered and related services for the student but believed it lacked sufficient support and followed the recommendations of the staff at the meeting. (T-180-1) The CSE team, the Parent and the all agreed that they had made the most appropriate recommendations for the student. (T-202)

While the student’s March 1, 2016 might have indeed offered the student a FAPE, there remains a previous two-year denial of FAPE conceded to by the agency under the “Child Find” provisions of the law. (Supra) The IDEA places an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state. (20 U.S.C. § 1412[a][3], 34 C.F.R. § 300.111[a][1][i], 8 NYCRR 200.2[a][7] and New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400, n.13 [N.D.N.Y. 2004]) The “child find” requirements apply to “children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade.” (34 C.F.R. § 300.111[c][1] & 8 NYCRR 200.2[a][7]) To satisfy the requirements, a Local Education Agency (“LEA”)

must have procedures in place that will enable it to find such children. (SRO Nos.: 05-

090, 04-054, 01-082 and 93-41) Here, the DOE concedes that it did not meet its burden under the law.

The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services." (20 U.S.C. § 1412[a][3], 34 C.F.R.

§ 300.111[a][1][i], Forest Grove, 129 S. Ct. at 2495, see 20 U.S.C. § 1412[a][10][A][ii], see also 8 NYCRR 200.2[a][7] and New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp.

2d 394, 400, n.13 [N.D.N.Y. 2004] - emphasis added) Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child. (SRO Nos.: 11-092, 11-094, 05-127, 05-040, 03-043 & 01-082) A district's child find duty is triggered when there is “reason to suspect a disability and reason to suspect that special education services may be needed to address that disability.” (See New Paltz, 307 F. Supp. 2d at 400, n.13, quoting Dept. of Educ. v. Cari

Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001] and SRO Nos.: 06-092, 06-087, 05-

127, 05-040, 04-087, 04-037, 03-043, 02-092 & 01-082)

To determine that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate. (See A.P., 572 F.Supp.2d at 225, quoting Bd. of Educ. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]) Additionally, the school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program. (8 NYCRR 200.4[a])

The failure of the DOE to identify the student under “Child Find” for two years denied her services that could have prevented

.

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 under the Child Find provisions of the IDEA. (Supra) As such, I find that the DOE concession that is has failed to afford the student a FAPE constitutes a gross violation of IDEA.

In SRO Decision 05-062, the State Review Officer did not find a gross violation of FAPE and 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 Case No. 164876 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

Having already found a gross violation of FAPE in this case, I look at the first criteria to determine what additional services may be warranted here. I find that the record in this matter does contain sufficient information to determine that the student needs additional services. The student’s Evaluation is dated May &

June of 2017 and was received in evidence. (P-Z) The evaluation makes the following summary and recommendations:

(P-Z)

The battery of test conducted by found that the student is . (P-AA) The student’s performance on the , indicates that , which will take approximately , for a total of . To and allow her to progress , determined it would take approximately by a .

The number has been determined by the testing in . Thus, I find that the requested is inclusive of the recommend .

The testimony and documentary evidence regarding the student’s need for additional services were uncontroverted at the hearing.

SRO Decision 05-062 requires of the student’s present level of academic performance for an award of additional services, which the student’s Evaluation and assessments provide. The final criteria to determine what additional services the student may need is evidence of his current program. However, as the student is currently this year, it stands to reason that he can greatly benefit from any whatsoever, and from that which is offered by

. (Supra)

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. See SRO Decision 04-054, citing (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]) Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. Id. citing (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997])

While compensatory education is a remedy that is available to students who are no longer eligible for instruction, State Review Officers have awarded "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 Case No. 164876 additional services before the student becomes ineligible for instruction by reason of age or graduation. Id. citing (Application of the Bd. of Educ., Appeal No. 02-047;

Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030) I hold that evidence sustained a finding of a gross violation of FAPE and that the student is entitled to “additional services” to be provided by .

The Parent is this case attended the student’s IEP meetings and provided the agency with the student’s private evaluations. It cannot be said that she did not cooperate with the agency. Nevertheless, I am deeply concerned by the Parent’s assertion that she would disagree with any placement offered by the DOE as is her right to do so. (T-250)

The Parent is cautioned that her cooperation is required under law and the lack of the same may result in a future denial of any relief she may seek and ultimately harm the child.

With the consent of the DOE, the undersigned ordered the student to be reevaluated as soon as possible, comprehensively in a and evaluation from a list of providers that DOE can provide; and of course, if the Parent disagrees with that evaluation, she can request an independent educational evaluation, after first giving the agency notice of her disagreement and affording the agency time to either redo the evaluation, pay for an independent evaluation obtained by the Parent, or defend its evaluation by filing a

DPC. (T-80-1)

NOW therefore , it is hereby

ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent and/or pay the cost of the student’s receipt of at the rate of per hour; and it is further

ORDERED that the DOE shall pay the cost of the at and the of ; and it is further

ORDERED that the DOE shall pay the cost of any independent evaluations that the Parent procured for the student during the 2014-2015, 2015-2016 and 2016-2017 school years; and it is further

ORDERED that the CSE shall forthwith reconvene to produce a new IEP for the student that considers all the student’s available evaluations and any related services that she should receive for the upcoming 2017-2018 school year.

Dated: September 13, 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

01 Due Process Complaint 12/15/16 DOE 05

02 Prior Written Notice 12/12/16 DOE 05

03 Consent for Services 03/04/16 DOE 02

04 Prior Written Notice 03/01/16 DOE 04

05 IEP & Attendance Page 03/01/16 DOE 20

06 Acceptance 02/18/16 DOE 01

07 Initial CSE Request 01/15/16 DOE 01

08 Initial CSE Request 01/15/16 DOE 01

09 Letter 01/11/17 DOE 01

10 Resolution Meeting Request 01/09/17 DOE ID.

11 Draft Resolution Agreement 02-03/2017 DOE ID.

12 Draft Resolution Agreement 02/17/17 DOE ID.

13 Draft Resolution Agreement 03/03/17 DOE ID.

14 Amended DPC 02/14/17 DOE 09

15 Closing Statement 07/24/17 DOE 07

A Discipline Regulations 03/05/04 PARENT ID.

B Request - 05/04/15 PARENT 01

C Letter 07/06/16 PARENT 01

D Social History Evaluation 11/20/15 PARENT 03

E 01/15/16 PARENT 01

F Prior Written Notice 01/25/16 PARENT 04

G Meeting Notice 02/10/16 PARENT 02

H IEP 03/2016 PARENT 14

I Prior Written Notice 03/01/16 PARENT ID.

J Summary 06/20/16 PARENT 03

K Due Process Request 12/15/16 PARENT 05

L 12/19/16 PARENT 11

M CSE Letter 12/21/16 PARENT 03

N Letter from 01/03/17 PARENT 02

O Letter 01/31/17 PARENT 01

P 07/27/17 PARENT ID.

Q Goals 07/27/17 PARENT ID.

R Letter 04/20/15 PARENT 01

S 01/28/15 PARENT 01

T 02/16/17 PARENT 03

U Undated PARENT ID.

V Amended Hearing Request 02/14/17 PARENT 08

W 01/16/15 PARENT 01

X 04/28/15 PARENT 01

Y Report 06/05/17 PARENT 18

Z Evaluation 06/08/17 PARENT 18

AA Affidavit of 06/08/17 PARENT 11

BB Closing Statement 07/24/17 PARENT 14

N/A N/A N/A IHO N/A