New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 165095

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 10, 2017

Actual Record Closed Date: June 14, 2017

Hearing Officer: Michael K. Lambert, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 10, 2017

Attorney — Student

Mother — Student

Student

DOE Representative — DOE

INTRODUCTION AND PROCEDURAL HISTORY

This matter was commenced by due process complaint dated January 6, 2017 (PE-

A). The parent advanced challenges to the 2016-2017 educational program offered by the Department of Education (DOE) and sought as a remedy an Order directing that the DOE contract with the ( ) for the student’s placement there for the balance of the 2016-2017 school year or, in the alternative, for an Order directing that a P-1 form or Nickerson Letter be issued by the DOE authorizing the student’s parents to place him in any for 1 year.

THE HEARING EVIDENCE

The parties thereafter appeared for hearing on March 10, 2017. At that time, the DOE Representative advised that the DOE did not intend to present any evidence in its case-in-chief (T: 7). The Parents offered, without objection, PE-A through PE-G (T: 8).

In addition, the most current IEP was admitted into evidence, without objection, as PE-H

(T: 14-15).

The Parent’s first witness was , who identified himself as a and a licensed in who had been employed as a at the ( )

since January 2004 (T: 17-18). was located in (T: 23). He held Bachelor’s and Master’s degrees in (T: 17). Mr. identified as a “

” (T: 17-

18). Approximately of the students in attendance at the , with an age range of as well as (T: 50-51), were classified as , while approximately of the students were classified with (T: 21). Of the students, approximately of them were school age (T: 51).

Mr. testified that his duties include attending to a caseload of around 20 students (T: 19-20). He also participated on the Admissions Committee, along with 10-

12 other staff members (T: 20). He participated in such an Admissions

Committee meeting with respect to (T: 21). The information reviewed by the Admissions Committee suggested that presented with “ ” (T: 21). Mr. reviewed a evaluation (PE-C) suggesting that

.

She had not responded to the interventions offered by her prior schools (T: 22; T: 37).

Mr. concluded that, based upon her diagnostic and clinical profiles, she would be extended an offer of admission at the (T: 21-23). Much of the child-specific supports would, however, have to be determined once she started attending the (see, e.g, T: 30; T: 37-38).

had a history of

(T: 23-24; PE-C). Mr. testified that the had measures in place to

, including

(T: 25-26). The employed approximately staff to support its approximately students (T:

26; T: 52). Mr. testified that many of these same supports would be utilized in the event that (T: 28-29). A would be conducted and a developed once started attending the (T: 30-31). would be provided to assist

“ .” (T: 32).

Mr. further described that the was “

” (T: 32).

(T: 33-34). Contact with parents was accommodated (T: 33-36).

In terms of available special education services at the , Mr. testified that they offered an . However, he was not knowledgeable as to her specific academic needs, which would have to be determined after her admission

(T: 40-43). services were also available, if needed (T: 43). He ultimately opined that, given ’s profile and the success that the JRLC has had with students with similar profiles, “ ” if she were admitted to the (T: 45).

’s mother testified that was originally placed at the in 2014 (T: 60). At that time,

.

(T: 60). engaged

in and (T: 60-61). was not at the for very long, (T: 61). She was subsequently placed as a day student for approximately one year in a program at

(T: 62). (T: 63).

’s mother testified that she wanted to find a school that was safe and ultimately determined that was in need of a placement. The mother visited several schools, including the (T: 63-64). did not accompany her (T: 64-65). The mother concluded that the would be helpful for because it would be “safe”.

In this regard, she testified that

. There were also (T: 65).

’S mother testified that, at a May, 2016 CSE meeting, the CSE recommended that a search be conducted for a placement (T: 69; PE-B). A search was thereafter conducted, but an appropriate school was not located (T:

69-70).

’s mother testified that her daughter had been without an educational program since January, 2016, although there had been some offered by the Department of Education (DOE) in the intervening time period. In January, 2017, the DOE recommended that be placed in a school, apparently for the purpose of trying to get some type of educational services, but the mother did not believe it to be appropriate (T: 68-69; PE-H) and such recommendation did not result in receiving and services (T: 71). was not currently receiving any educational services and was asking for an Order that be placed at the as soon as possible because (T: 65-66).

Post-hearing briefs were not submitted by either of the parties.

THE LEGAL STANDARDS

Pursuant to the IDEA, all children with disabilities are entitled to a “free appropriate public education” (“FAPE”) which must include “special education and related services” tailored to meet the unique needs of the child and be “reasonably calculated to enable the child to receive educational benefits.” B oard of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 207 (1982); (20 U.S.C. § 1400[d][1][A]; Schaffer v. W east, 126 S. Ct. 528, 531 [2005]; Frank G. v. B oard of Education, 459 F.3d 356, 371 [2nd Cir. 2006]). A FAPE is offered to a student when

(a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA ’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Paw ling Central School District, 427 F.3d 186, 192 [2nd Cir.

2005]). The Second Circuit Court of Appeals in W alczak v. Florida Union Free School District, 142 F.3d 119 (2nd Cir. 1998) held that the IDEA does not articulate any specific level of educational benefits that must be provided through an IEP. The Court citing to the Supreme Court ruling in Rowley reiterated that the IDEA does not require the states to maximize the potential of disabled children, but was meant “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside” (at pg. 192). The Second Circuit in W alczak also cited to a D.C. Circuit Court decision by now Supreme Court Justice Ruth Bader Ginsburg which held that because “public resources are not infinite,” federal law “does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child” (Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1583 [D.C. Cir. 1984]). The Third Circuit has held that an appropriate education under the IDEA is one that is “likely to produce progress, not regression” (Cy press-Fairbank s Indep. Sch. Dist. V . M ichael F., 118 F.3d 245, 248 [3rd Cir. 1997]; cert denied 522 U.S. 1047 [1998]; Cerra, 427 F.3d at 195, quoting W alczak, 142 F.3d at 130 [citations omitted]; see Perricelli v. Carm el Central School District, 2007 WL 465211, at *15). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (W alczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 [2nd Cir. 1989][citations omitted]; see Grim , 346 F.3d at 379). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford B oard of Education, 103 F.3d 1114, 1120 [2nd Cir. 1997]; see Rowley, 458 U.S. at 192). The U.S. Supreme Court recently held that such IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” (Endrew F. v. Douglas County School DistrictRe-1, 137 S. Ct. 998

[2017]). Objective factors such as the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress and one important factor in determining educational benefit (Rowley, 458 U.S. at 207, n.28, 203-04; W alczak, 142 F.3d at 130; V iola v. A rlington Central School District, 414 F. Supp. 2d 366, 382 [S.D.N.Y. 2006]).

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. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; see W alczak, 142 F.3d at 132). The LRE is defined as “one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled” (Carlisle A rea Sch. V . Scott P., 62 F.3d 520, 535 [3rd Cir. 1995]). The IDEA mandates that all students with disabilities may only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. 1412[a][5][A]; 34 CFR

300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3rd Cir. 1993]; Briggs v. Bd.

of Educ., 882 F.2d 688, 691 [2nd Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]).

“The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Borough of Clementon Sch. Dist., 995 F.2d 1204

[3rd Cir. 1993]). The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes such as language and role modeling with nondisabled peers” (Greer v. Rome City Sch.

Dist., 950 F.2d 688 [11th Cir. 1991]).

The Second Circuit Court of Appeals adopted the Oberti LRE test in P. v.

Newington B oard of Educ., 546 F.3d 111 (2nd Cir. 2008) requiring the consideration of whether the school has made reasonable efforts to accommodate the child in a regular classroom, the educational benefits to the child with appropriate supplementary aids and services versus a special class and the possible negative effects of the inclusion of the child on the education of the other students in the class.

Federal district courts have upheld the appropriateness of an IEP “given what the CSE knew about [the child] at the time it was developing the … IEP” E.S. v. K atonah-

Lewisboro School District, 742 F.Supp.2d 417 (S.D.N.Y. 2010). In J.R. v. B oard of Education of the City of Rye School D istrict, 345 F.Supp.2d 386 (S.D.N.Y. 2004), the Court held that in reviewing the appropriateness of an IEP that:

“This determination is necessarily prospective in nature; we therefore must not engage in Monday-morning quarterbacking guided by our knowledge of

S.R.’s subsequent progress at Eagle Hill, but rather consider the propriety of the IEP with respect to the likelihood that it would benefit S.R. at the time it was devised. See A ntonaccio, 281 F.Supp.2d at 724 (noting that this issue has not yet been addressed by the Second Circuit and holding that ‘the …IEP…must be evaluated at the time the CSE devised the IEP, on June 15, 1999, and the IHO and SRO erred by regarding any information about [the student’s] education after that date’).”

The SRO has consistently considered the IEP “at the time it was formulated” to determine if it was reasonably calculated to enable the student to receive educational benefit

(A pplication of a Student with a Disability, SRO Appeal Nos. 11-154, 09-034, 09-013).

In terms of the available remedies in cases where a district has failed to meet its obligation to offer an educationally disabled child FAPE, IHO’s have substantial discretion. Since P. ex rel. M r. and M rs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008), the courts of the Second Circuit have ceased to limit eligibility for “compensatory education” to those over 21. In P, the Second Circuit ruled that “compensatory education” can be awarded to an elementary school student. Further, even the “gross violation” requirement, which is applicable to a claim for compensatory education by someone over 21 is not clearly established in this Circuit to be applicable to a student under 21. That standard was not relied upon in P.

In S.A . ex rel. M.A .K. v. New Y ork City D ep't of Educ., 12-CV-435 (RMM)

(MDG), 2014 WL 1311761 (E.D.N.Y. Mar. 30, 2014), the Court held:

The IDEA allows a hearing officer to fashion an “appropriate remedy, and ...

compensatory education is an available option ... to make up for denial of a [FAPE].” P. ex rel. M r. and M rs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008) (affirming compensatory education award for elementary school student); see also Student X v . New Y ork City D ep't of Educ., No. 07

CV 2316, 2008 WL 4890440, at *24 (E.D.N.Y. Oct. 30, 2008) (awarding compensatory education to student younger than twenty-one). Such an award serves “to compensate a student who was actually educated under an inadequate IEP” and “to catch-up the student to where he should have been absent the denial of a FAPE.” B rennan v. Regional Sch. Dist. No. 1 Bd. of Educ., 531 F.Supp.2d 245, 265 (D.Conn.2008). Before awarding compensatory education for a student older than twenty-one, a court must find a gross violation of the student's right to a FAPE; however, whether the same prerequisite exists to awarding compensatory education for a younger student is an open question. See Student X , 2008 WL 4980440, at *24. P. v.

Newington, 512 F.Supp.2d 89, 112 n. 3 (D.Conn.2007) (“The Court disagrees with the defendant's argument that compensatory education is warranted only if there is a ‘gross' violation of the IDEA. The requirement of a gross violation

... has been applied only to cases involving claimants over the age of 21.”), aff'd, 546 F.3d 111 (2d Cir.2008); but see J.A . v. E. Ramapo Cent. Sch. Dist., 603 F.Supp.2d 684, 690 (S.D.N.Y.2009) (finding that five-year-old student was not entitled to compensatory speech therapy, reasoning that parents failed to show gross violation because child “was not excluded from school for any period of time.”).

Also, Reid ex rel. Reid v. D.C., 401 F.3d 516, 522-26 (D.C. Cir. 2005) seems to stand for the proposition that “compensatory education” can be prospective educational services to compensate for a past deficient program and that a hearing officer, as well as a court, can fashion flexible “compensatory education” relief through the application of “equitable considerations.” Reid is cited by, for example, the Second Circuit in P., 546 F.3d at 123, for the proposition that “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.”

FINDINGS OF FACT AND CONCLUSIONS OF LAW

By failing present any evidence in its case-in-chief, the DOE failed to meet its burden as to any issues concerning which they bore the burden of proof. I specifically find that the DOE denied FAPE in the 2016-2017 school year. The hearing record is clear that the parties were in agreement that the student required a placement. In this regard, the recommendation for a that was made at the January, 2017 CSE meeting (PE-H) was apparently made only in an effort to get the student some type of instruction. The hearing evidence is likewise clear that the DOE failed to offer an appropriate program - either or . However, the hearing record contains insufficient information regarding and the specific program that it would offer to for me to determine whether it is appropriate for Among other things, the hearing record fails to demonstrate whether is a student who would benefit from an , which was identified as the primary educational methodology used at . Much of the program that would be delivered at the , should attend that school, would have to be developed for her after her arrival thereat. I find it significant that the admissions team never met and, instead, relied upon a relatively narrow set of documents in concluding that met the general profile of a student that they had prior success with.

Having found that the DOE failed to offer FAPE for the 2016-2017 school year, and having found that the hearing record fails to support the appropriateness of the for her, I must now fashion a remedy for such FAPE denial. Having considered this issue, I conclude that it is appropriate to Order that the DOE issue a Nickerson Letter to the parent so that she can locate an appropriate, State-approved for

ORDER

1. It is hereby directed that a P-1 form or Nickerson Letter be issued by the DOE authorizing the student’s parents to place him in any State-approved for 1 year.

2. All other claims set forth in the due process complaint are hereby dismissed.

Dated: June 15, 2017

MICHAEL K. LAMBERT, ESQ.

Impartial Hearing Officer MKL:

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

None

1 The transcript is likely incorrect here. The word used by the witness was “ ”, not “ ” (T: 21).