New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 165264

Student’s Name:

Date of Birth:

District: 11

Hearing Requested By: Parent

Date of Hearing: June 8, 2017

June 21, 2017

October 5, 2017

Actual Record Closed Date: January 25, 2018

Hearing Officer: Gary D. Peter, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 8, 2017

Attorney — Parents

DOE Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 21, 2017

Attorney — Parents

Mother — Parents

DOE Designee — DOE

Teacher — DOE

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 5, 2017

Attorney — Parents

Mother — Parents

DOE Designee — DOE

Director L_J — Parents

INTROD CTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a program, Students with Disability, New York City Impartial Hearing .

The hearings were conducted at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its designees and and the parent was represented by their counsel .

BACKGRO ND

The child hereinafter referred to as _J is a~ student currently enrolled at . was previously classified as on February 14, 2011. She was unclassified in the 2013-2014 school year.

On January 2, 2014, V n February 14, 2011 was found to be ineligible for services. (DOE Ex. 3). A Prior Written Notice was sent to Parent informing her that her daughter was ineligible for services. (DOE Ex. 4).

was enrolled

during the 2016-2017 school year. An IEP meeting was held on March 6, 2017 where the team discussed classification,

(DOE Ex. 9). The outcome of

this meeting was a disability classification of and a recommendation for an program with services . Parent attended the meeting and consented to services.

As relief, the Parent is seeking, inter li , an independent and evaluation , a new Individualized Educational Program (“IEP”), and compensatory services consisting of 11777 at the

THE DOE’S POSITION

It is the DOE’s position that all claims related to the 2012-2013 and 2013-2014 school years be dismissed as they are time-barred by the two-year statute of limitations.

With respect to Parent’s Child Find claims, the DOE maintains that the Parent revoked her consent for services during the 2010-2011 school year. The DOE claimed that it has met its FAPE obligations during the 2016-2017 school year as was provided with an appropriate Individualized Education Program (“IEP”) that was reasonably calculated to enable her to receive educational benefits and to meet her unique needs. Accordingly, the DOE maintained that the Parent’s request for compensatory services should be denied.

THE PARENT’S POSITION

At the time of the hearing was

. When was , she attended an class and received . She was reevaluated in April 2010 to determine if would be appropriate; the CSE convened on April 20, 2010 and recommended and terminated her I I sessions. Parent asserts that due to her daughter’s lack of progress that she elected to discontinue services.

The Parent referred to as D seeks declaratory and compensatory relief relating to the failure of the DOE to provide a free and appropriate public education ( “FAPE”)

for her daughter, on a long-term basis. As relief, the Parent is seeking, inter li , an independent and evaluation, a new IEP and compensatory services consisting of at the located on

THE DOE’S CASE

As per , an IEP meeting was held on 12/13/13 wherein the team reviewed and discussed a , evaluation, and classroom observation. (DOE Ex. 4). Parent participated in the meeting and the team determined to be ineligible for services; it was determined that she could participate in a setting at the time. (DOE Ex. 3). More particularly,

_J performed

. (DOE Ex. 3-1, 3-2).

A Prior Written Notice was sent to Parent informing her and explaining the team’s decision. (DOE Ex. 4).

. (DOE Ex. 5). The IEP created at the March 2017 IEP meeting was reasonably calculated to enable her to obtain meaningful educational benefits; at the IEP meeting, the team discussed the Student’s needs and set annual goals, short term objectives, and discussed the appropriate program recommendations (DOE Ex. 9; Tr. 55-

98). The DOE asserts that IEP team considered sufficient information to make program recommendations and that the Parent was given a full opportunity to participate in the planning of her daughter’s IEP. (Id.).

, Teacher while enrolled at during the

2013-2014 and 2014-2015 school years, testified that

. (Tr.

38). In her professional opinion and based on the student’s performance, all recommendations made for L_ during the 2013-2014 through 2015-2016 school years were appropriate. (Tr. 42).

, , described the IEP meeting held in

March 2017 and explained how the team made program recommendations.

testified that the team reviewed and discussed the results of a evaluation that he conducted and that it was not raised by anyone that the team did not have appropriate assessments. (Tr. 55). Based on the data reviewed, the team classified and recommended an program with services ,-717r--

Parent did not object to the program recommendations. (Tr. 58-59; DOE Ex.

9).

noted that could have made greater progress (Tr. 60). The team discussed the Student’s

The DOE maintained that has demonstrated progress and that her current IEP addresses her very specific deficits. As per - - ~ _ , J final 2014-2015 and 20152016 Report Cards indicated that n met all grade level standards .

(DOE Ex. 6-7; Tr. 42). The witness stated that n received numerous interventions prior to her IEP, which included Services in , and L_

(Tr. 38).

THE PARENT’S CASE

As per Parent’s counsel, was classified as having a prior to 2010. (Exs. B- 1; E-1). When was in the , she attended an class and received 11

. She was reevaluated in

April 2010 to determine if would be appropriate. (Ex. E-1). The

CSE convened on or about April 20, 2010 and recommended session, but terminated her sessions. (Ex. D; Ex. B-2). The

Parent, discouraged by her daughter’s the lack of progress elected to discontinue the services. (Tr. 132-34; Ex. 12). She testified that school personnel did not put up much resistance to this decision, or explain her right to reconsider it in the future. (Tr. 134-35).

_J continued to (Tr. 136). This became progressively worse (the 2013-2014 school year. (Tr. 136-37).

In the fall of , the Parent requested that her daughter be reevaluated. (Tr. 137). The DOE conducted a Evaluation in December 2013, which noted

J _J _J _J 7

(Exs. C-1; 3-1; Tr. 137). As per Parent’s counsel, despite all these concerns, and her past classification, the December 2013 CSE refused to classify her. (Ex. 3). It appears that the CSE did not hold a meeting to consider the results of the evaluation, as there are no signatures on the . (Ex. 3- 3; Tr. 139-40). Nor did the CSE explain their reasons for fining D ineligible for and related services to the Parent. (Tr. 138-39). The Parent believed that she had no other options available to her. (Tr. 140).

As per Parent, as her daughter was nearing the end of , she was very concerned about her beginning ~

~ .

( T r . 1 1 4 2 ) The Parent spoke to the assistant principal, but was informed , she would be promoted. The Parent requested another reevaluation be conducted at that time, however nothing was done.

As per Parent’s counsel, approximately one month after the DPC was filed in this matter, the DOE conducted a Evaluation of (Ex. 13). On

March 6, 2017, the CSE convened and classified

(Exs. 13; 9-9). The IEP which was developed recommended an

(Ex.

9-5). As per Parent’s counsel, the IEP states that the student’s were not impeding her learning or that of others, and that she did not need a

. (Ex. 9-3).

stated that she did not see any improvement after the meeting; in fact, it had worsened with her transition to . (Tr. 150).

-~~_L_L_J_~~-~--L__L_J~~

(Tr. 150). The

Parent testified that she sought help from the school principal and the guidance counselor. (Tr. 148-49. 150).

(Ex. N; Tr. 151-52). The Parent again requested that not be promoted, however, she was promoted to the . (Tr. 152-53).

stated that as of the hearing date, there was no plan in place to help her make up the lost credits. (Tr. 153).

The Parent brought her daughter to in October 2016, when she was in the ; she was tested on October 29, 2016 which confirmed that

. (See Exs

H, I, J). L_J recommends a program consisting of of L instruction in . (Ex. I). began attending and at the time of hearing, had attended at .

testified that she has been employed at for the last 16 years, possesses a teaching certification and taught prior to becoming employed at L_J. (Tr. 158-

59). As at , she is responsible for the “oversight of all of the operations of the Center, including student testing and instruction, the hiring, training and management of the full and part-time staff,” and conducting all progress conferencing with parents and is the liaison to the schools where L_J students attend.

(Tr. 159).

is accredited by the , which accredits private schools and colleges on the east coast. (Tr. 160). serves “a broad of student population,” (Tr. 160-61). The curriculum at is aligned to the . (Tr.160). All of the at are certified teachers, and many of them are certified teachers. (Tr. 159-

60). L_J could guaranty the provision of a certified teacher for any hours awarded if so-ordered. (Tr. 194).

described the assessments given to i at and explained how they correlate to the specific program recommendations made for (Tr. 162-63). The program is highly individualized and is designed to fill in the academic gaps caused by the DOE’s denial of FAPE, which is precisely the approach favored by the body of law applicable to compensatory education.

stated that I I has demonstrated

=======~~~~~-- -------=-----=-----_-=-=-==---=--=-

(Ex. J-9, Tr. 254, 166-67).

I-1 to I-2, Tr. 172-73). As has already begun attending pursuant to this program, was able to determine that her time estimates for each piece of curriculum proposed for were to be accurate. (Tr. 175-76).

stated that was (Tr. 176-79).

The witness noted that

r. (Ex. J-19;

Tr. 179-80). To address these issues, recommended recommended . (Ex. I-1, Tr. 183-86).

As stated above, the total number of hours proposed ; as of the time of hearing, had completed of the proposed program. When the program had been developed, she did not have an IEP,

. (Tr.

194-96). stated that many other accommodations are provided to students being assessed at and opined that extended time would not have materially changed her performance on the because (Tr. 196-98).

FINDINGS OF FACT AND CONCL SIONS OF LAW

Parent alleges that the Student was denied a FAPE for the 2012-2013 and 2013- 2014 school years as the DOE failed in its Child Find obligations during that time by never evaluating The DOE asserts that all allegations regarding the 2012-2013 and 2013-2014 school years should be dismissed as they are time-barred by the two-year statute of limitations under the IDEA.

The DOE asserts that under the 2004 Reauthorization of the IDEA, the IDEA provides an opportunity for any party to present a complaint which sets forth an alleged violation of FAPE that occurred not more than two years before the date the parent or public agency “knew or should have known about the alleged action that forms the basis of the complaint” (Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 106, 114 (2nd Cir.

2008), quoting 20 U.S.C. 1415(b)(6)(B)). The SRO applies the same standard

(Application of a Child with a Disability, Appeal No. 06-086). maintained that the Parent’s claims are time-barred, as the claims arising during the 2012-2013 and 2013-2014 school years accrued well before January 20, 2017, the date the complaint was filed. Every one of the claims that accrued in the school year in which they arose, as Parent knew or should have known about the alleged action, forms the basis of the complaint at that time.

The DOE maintained that the limited exceptions to the statute of limitations do not apply. Pursuant to New York Education Law Section 4404[1][a] there are two statutory exceptions to the two-year statute of limitations. The timeline shall not apply if the complainant was prevented from requesting a hearing due to (1) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or (2) the local educational agency withheld information that was required to be provided to the parent or student.

The DOE’s designee stated that neither of these exceptions applies in this case.

To qualify for the first exception, “plaintiffs must show that the school intentionally misled them or knowingly deceived them regarding their child's progress.” D.K. v.

Abington Sch. Dist., 696 F.3d 233, 246 (3d Cir. 2012). To qualify for the second, parents must show not only that information was withheld from them, but that the withholding resulted “in loss of educational opportunity or seriously deprive[d] parents of their participation rights.” R.B. ex rel. A.B. v. Dep't of Educ. of City of New York, No. 10

CIV. 6684 RJS, 2011 WL 4375694, at *7 (S.D.N.Y. Sept. 16, 2011). The DOE asserts that the evidence fails to establish that any misrepresentations or withholding of information occurred other than Parent’s assertions.

During the pre-hearing conference the DOE asserted that claims pertaining to the 2013- 2014 school year were outside the statute of limitations. I agree with Parent’s counsel that the DOE bears the burden of both production and persuasion to prove that their motion to dismiss should be granted, including affirmatively proving when the Parent knew or should have known of a potential claim against the DOE. Educ. Law §

4404(1)(c).

The IDEA contains two provisions pertaining to the timeliness of filing a due process complaint: 20 U.S.C. §1415(f)(3)(C) which states: “A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows” and 20 U.S.C.

§1415(b)(6)(B) which requires a local education agency to develop procedures which provide parents with “an opportunity for any party to present a complaint” “which sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for presenting such a complaint under this subchapter, in such time as the State law allows, except that the exceptions to the timeline described in subsection (f)(3)(D) shall apply to the timeline described in this paragraph.” New York law tracks the language of 20 U.S.C.

§1415(b)(6)(B) and provides that a due process complaint must set forth “an alleged violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis for the complaint.” N.Y. Educ. Law § 4401(1)(a). See also 8N.Y.C.R.R. §200.5(j) which states:

(1) A parent or a school district must submit a complete due process complaint notice pursuant to subdivision (i) of this section prior to initiation of an impartial due process hearing on matters relating to the identification, evaluation or educational placement of a student with a disability, or the provision of a free appropriate public education to the child.

(i) Timeline for requesting an impartial hearing. The request for an impartial due process hearing must be submitted within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, except that the two-year timeline shall not apply to a parent if the parent was prevented from requesting the impartial hearing due to specific misrepresentations by the school district that it had resolved the problem forming the basis of the complaint or the school district’s withholding of information from the parent that was required to be provided to the parent under this Part or under Part 201 of this Title.

Based on the plain language of the regulations, the two year limitations period does not begin to run until a party knows or should know he or she has a reason to file a complaint. The Eastern District in K.H. v. New York City Dept. of Educ., 2014 WL 3866430, *16-17 (E.D.N.Y. Aug. 6, 2014), held that the parent had two years from the point at which he knew or should have known of his right to assert a claim against the DOE. In K.H., the court expressly found that the two year timeline only began to run when the parents received an evaluation which called into question all of the student’s prior placements and programs, dating back fifteen years. The court declined “to hold that K.H.’s family should have been expected to know ‘something that the trained professionals of the School System did not admit they knew’ or ‘be blamed for not being experts about learning disabilities.’” Id. at *18. The court further found that “since plaintiff’s claim regarding the failure to identify and address his learning disabilities is not time-barred, he can assert the denial of a free appropriate public education under the IDEA for every year that he was eligible for DOE services.” Id. at *21.

The Third Circuit Court of Appeals has adopted a similar approach, and has concluded that both of the limitations periods in the IDEA “reflect the same two-year filing deadline for a due process complaint after the reasonable discovery of an injury, and §1415(b)(6)(B) neither imposes a pleading requirement nor in any respect alters the courts’ broad power under the IDEA to provide a complete remedy for the violation of a child’s right to a free appropriate public education.” G.L. v. Ligonier Valley School Dist. Auth., 802 F.3d 601, 605 (3d Cir. 2015). Thus, the limitations periods under the IDEA function as “a filing deadline that runs from the date of reasonable discovery.” Id. at 610. “In context, however, that means simply that once a violation is reasonably discovered by the parent, any claim for that violation, however far back it dates, must be filed within two years of the ‘knew or should have known’ date. If it is not, all but the most recent two years before the filing of the complaint will be time-barred; but if it is timely filed, then, upon a finding of liability, the entire period of the violation should be remedied.

I agree with Parent’s counsel and find that there is nothing in the record to indicate that the DOE provided the Parent with sufficient information, at any time, to make a reasoned determination regarding her rights or the special education needs of her daughter. Thus, there is no “triggering event” which the DOE can point to which would have started the clock running for the Parent. (See K.H. at *16 and G.L. at 606).

The evidence established that after the DOE conducted the December 13, 2013 evaluation it failed to convene a meeting of the CSE to explain the evaluation results to the parent; the signature page from the December 17, 2013 eligibility meeting document is blank. (Ex. 3-3; nd see Tr. 136-140). The Parent testified she was only told that her daughter was ineligible by , the school . Additionally, there is no evidence that a copy of the evaluation was provided to the Parent. The evaluation results were never explained to the Parent; nor were her rights. (Tr. 140). The DOE witness chose to explain that the document indicated that she had not actually attended the meeting. Again, I agree with Parent’s counsel that if an eligibility the meeting was held among school personnel, it would have taken place just two business days after the evaluation was conducted, which means the Parent would have had insufficient notice of the meeting; in any event, the DOE failed to provide its meeting notice into evidence. Again, I agree that the Prior Written Notice submitted by the DOE as Exhibit 4, was based on a series of procedural defects that go right to the heart of what the Parent knew, and when she knew it.

Accordingly, there was no triggering event that the DOE can point to which would have put the Parent on notice that her and/or her daughter’s special education rights had been violated and that the clock was running on the time in which to file a claim.

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C. section 1400-1482) ensure that students with disabilities have available to them a FAPE; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. Of Education v.

Rowley 458 S. CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356 371 92d Cir 2006). A FAPE includes special education and related services designed to meet the student’s unique need provided in conformity with a comprehensive written IEP (20 U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 ‘d’; 34 CFR Section 200-347_; The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a][5][A]; CFR section 300.13 [a][2][i], 200.1.116 [a][2]; 8 NYCRR 200.6 [a][1]; see Walczak v. Fla Union Free School Dist. 142 F. 3d 119, 132 [2d cir. 1998].

This hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §1404 et seq. (“IDEA”). “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education…designed to meet their unique needs… [and] to ensure that the rights of children with disabilities and parents of such children are protected.’ ”

M.H. v. N.Y.C. Dep’t. of Educ., 685 F.3d 217m 223 (2d Cir. 2012) (quoting 20 U.S.C.

§1400(d)(1)(A)-(B)). The IDEA mandates that students with disabilities musbe provided with a FAPE tailored to meet their unique needs and one that is reasonably calculated to “enable a child to make progress appropriate in light of the child’s circumstances.”

Endrew F. v. Dougl s Cty. Sch. Dist., __ U.S. __, 137 S.Ct. 988,999 (2017); Bd. of Educ.

of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982); SRO 17-007, p. 10.

A focus on the particular child is at the core of the IDEA. Endrew F., 137 S. Ct. at 999.

To meet the IDEA’s requirements, a school district’s program must provide special education and related services that is “specific lly designed’ to meet a child’s ‘unique needs’ ” and is reasonably calculated to enable the child to receive educational benefits.

Endrew F., 137 S.Ct. at 999 (emphasis in original); M.H., supr , 685 F.3d at 224 (quoting G gli rdo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007)).

A denial of FAPE can be one that is substantive or results from violations of the procedural protections of the IDEA and its implementing regulations. Procedural violations result in the denial of FAPE “if they ‘impeded the child’s right to a [FAPE},’ ‘significantly impeded the parents’ opportunity to participate in the decision-making process,’ or ‘caused a deprivation of educational benefits.’ ” 20 U.S.C.

§1415(f)(3)(C)(ii); A.C. ex rel. M.C. v. Bd. of Educ. of Ch pp qu Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); see lso Werner v. Cl rkstown Cent. Sch. Dist., 363 F.

Supp. 2d 656, 659 (S.D.N.Y. 2005) (“Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations considered individually do not.”) In sum, Rowley stands for a two-part entitlement: eligible families are entitled to an IEP that both (a) affords a placement that, substantively, is “reasonably calculated” to afford meaningful educational benefit to the child, and (b) is developed in procedural accordance with the requirements of federal law.

Furthermore, with regard to the sufficiency of the IEP, the Commissioner’s regulations require that: The IEP shall report the present levels of academic achievement and functional performance and indicate the individual needs of the student according to each of the four areas listed in section 200.1(ww)(3)(i) of this Part, including:

a. how the student’s disability affects involvement and progress in the general education curriculum….

§ N.Y.C.R.R. § 200.4(d)(2)(i); see lso 34 C.F.R. § 300.20(a). In turn, section

200.1(ww)(3)(i) provides, in relevant part that the areas to be considered shall include:

(a) academic achievement, functional performance and learning characteristics which shall mean the levels of knowledge and development in subject and skill areas, including activities of daily living, level of intellectual functioning, adaptive behavior, expected rate of progress in acquiring skills and information, and learning style;

(b) social development which shall mean the degree and quality of the student’s relationships with peers and adults, feelings about self, and social adjustment to school and community environments;

(c) physical development which shall mean the degree or quality of the student’s motor and sensory development, health, vitality, and physical skills or limitations which pertain to the learning process; and

(d) management needs which shall mean the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction. Management needs shall be determined in accordance with the factors identified in each of the three areas described in clauses (a)-(c) of this subparagraph.

The IEP has been described as the “centerpiece” of the IDEA system. See

Murphy v. Arlington Cent. Sch. Dist., 297 F.3d 195, 197 (2d Cir. 2002); Endrew, 137 S.Ct. 1t 994. This key document “sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.” D.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d. Cir. 2006)

(internal quotations omitted). Under the IDEA, for a child’s IEP to be adequate, it must be likely to produce progress, not regression, and must afford the student with an opportunity greater than mere trivial advancement. The IDEA “requires an educational program reasonably calculated to enable a child to make progress in light of the child’s circumstances.” Endrew F., 137 S. Ct. at 1001; M.H., supr , 685 F.3d at 224 (quoting T.P. ex rel. S.P. v. M m roneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009)

(internal quotations and citations omitted). For a student who is fully integrated in a regular general education classroom, a child’s unique needs are typically met when the school provides “a level of instruction reasonably calculated to permit advancement through the general curriculum.” Endrew F., 137 S.Ct. at 1000. When a child is not fully integrated into a regular classroom and not able to achieve on grade level, an “IEP need not aim for grade-level advancement. But [the student’s] educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in a regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Id.

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” SRO

080052; SRO 08-060 (citations omitted). The goals must be “sufficiently specific and measurable” (SRO 07-108, p. 12) and the IEP must contain goals to address identified needs. Id.; SRO 08-060; see lso SRO 05-049. The goals must be “sufficiently described so as to allow the student’s teacher or therapists to understand the CSE’s expectations with respect to each goal.” SRO 07-108, p. 12.

The DOE asserts that on December 13, 2013, an IEP meeting was held where the CSE team reviewed and discussed a , evaluation, and classroom observation; the Parent participated in the meeting. The team found to be ineligible for services as it was determined that she could participate in a setting at the time. performed

-, 177 .

Additionally, the DOE maintained that A Prior Written Notice was sent to Parent informing her and explaining the team’s decision. LJ received all passing grades on her final 2013-2014 Report Card.

The DOE asserts that it provided with FAPE during the 2016-2017 school year and fulfilled its obligations under the IDEA and New York State Regulations. The

DOE designee stated that the IEP created at the March 2017 meeting was reasonably calculated to enable her to obtain meaningful educational benefit. Additionally, the CSE team discussed needs and set annual goals, short term objectives, and discussed the appropriate program recommendations. Furthermore, the IEP team considered sufficient information to make program recommendations and Parent was given a full opportunity to participate (Id.).

As per Parent’s counsel, touched upon some of her issues in his evaluation, he acknowledged at hearing that there is likely much more going on with

, and

. (See Ex. 13; Tr. 66-70, 77-80, 84-85,

86-888, 94). Although initially indicated he did not see a reason for a evaluation, upon cross-examination he clearly endorsed the need for further evaluation of these issues. (Tr. 62-63, 69-70).

I agree with the Parent that the evidence fails to establish that the DOE provided the Parent with sufficient information, to make a reasoned determination regarding her rights or the needs of her daughter; there is no “triggering event” which the DOE can point to which would have started the clock running for the Parent. (See

K.H. at *16 and G.L. at 606). On the contrary, the evidence indicates that after the DOE conducted the December 13, 2013 evaluation; it failed to convene a meeting of the CSE to explain the evaluation results to the parent, as a signature on the alleged December 17, 2013 eligibility meeting document is blank. (Ex. 3-3;Tr. 136-140)

Additionally, the Parent testified she was told that was ineligible by . There is no evidence that a copy of the evaluation was provided to the Parent. As per the Parent, the evaluation results were never explained to the Parent; nor were her rights. (Tr. 140). admitted that she had not attended the meeting; therefore, her testimony failed to establish what was told to the parent at the time. (Tr. 32-36)

The DOE relied upon the testimony of ,

(2013-2014) teacher, to support its position that the it provided with a FAPE in

2013-2014, 2014-2015 and 2015-2015 school years. (See Tr.42). Her knowledge of

_J was limited to one school year; as she had no direct knowledge of L_ prior to working with her. She also admitted that she had not reviewed the December 2013 evaluation (Tr. 49-50). I find that her opinion as to the appropriateness of the DOE’s ineligibility determination in December 2013 to be not credible. Despite claim that (Ex. 13-1). Accordingly, opinion regarding the appropriateness of the DOE’s actions during the 2013-2014 school year is not credible.

opinion regarding the appropriateness of the DOE’s actions during the 2014-2015 and 2015-2016 school years are suspect. As stated . (Ex. 6, Tr. 38-39). Although testified that (Tr. 48-49). also had no knowledge of _J during the . Only a mid-term report card was submitted for the 2015-2016 school year, thus final grades during that year are unknown. failed the portions of the State tests in the spring of 2015 and the spring of 2016; for 7 years in a row she failed to meet grade level standards. The DOE’s failure to provide with any or related services during this protracted time period was inappropriate and negligent and deprived her of a FAPE.

In the (2016-2017)

(Ex. 8). The CSE refused to act on the

-,, Parent’s reevaluation request until after the DPC was filed. I find that the program developed by the March 2017 IEP was deficient.

_JL_ _ _~ ~ - _ J - ~ L J L J L _ ~ _

7717 n ,-

(Ex. 13-5, Tr. 94). As per

, the March 2017 CSE barely offered her anything new. testified that she was the teacher for classes in the , and that attended classes, with two teachers, during that school year. (Tr. 30, 45-46). She also appears to have attended classes during the

_J. ~ - - - - - - - - - - - - - - - ~

As per , in this context, the March

2017 CSE’s recommendation of an _L_J for mad little sense; _J testimony at hearing shed little light on that decision,

. (Tr. 57-58). Although testified that the CSE “considered more restrictive programs,” he offered no explanation for their rejection. (Tr. 58-59).

I agree that session offered in the IEP was no different than that which was provided in the past, with little success. Although alluded to wanting to increase the level of services after the meeting, he did not explain why they were not offered in the first place. (Tr. 84). The witness conceded that there were impeding ability to learn, but gave no explanation for having chosen not to provide that in her IEP other than the CSE chose to “start with instructional support and and take it from there.” (Tr. 86-89).

I agree that based upon the evidence, did not establish that the March 2017 IEP is appropriate for i ; rather that she would probably benefit from a different educational setting such as a I setting. (Tr. 84-85). The educational program offered to L_ in March 2017 was inadequate to address her needs which deprived her of a FAPE.

Section 504 provides that “[n]o otherwise qualified individual with a disability . .

. shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.” 29 U.S.C. § 794(a). Section 504 and the IDEA are often seen as “complementary” statutes that, to a degree, mandate parallel requirements on schools to provide special education and related services. See R.B. ex rel. L.B. v. Bd. of Educ. of City of New York, 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000) (citations omitted); see lso 34 C.F.R. § 104.33-§ 104.37. Unlike the IDEA, however, Section 504 protects children with disabilities from discrimination and, as such, applies to “different injuries” and thus “different proof.” G bel ex rel. L.G. v. Bd. of Educ. of Hyde P rk Cent. Sch.

Dist., 368 F. Supp. 2d 313, 333 (S.D.N.Y. 2005). The Section 504 regulations clarify the nature of the prohibited discrimination (34 C.F.R. § 104.4(b)(ii)-(iii)) and affords parents a due process hearing. See 34 C.F.R. § 104.36. Under Section 504, a reevaluation is required prior to any “subsequent significant change in placement.” 34 C.F.R. 104.35.

A parent can also establish disability discrimination pursuant to Section 504 by establishing that a child is “an individual with a disability,” “otherwise qualified for the federally-funded benefits;” and was “excluded from participation in, programs at, denied the benefits of, or subject to discrimination at, education on the basis of his disability.”

Rothschild v. Grottenth ler, 907 F.2d 286, 289–90 (2d Cir. 1990); Schreiber v. E.

R m po Cent. Sch. Dist., 700 F. Supp. 2d 529, 564 (S.D.N.Y. 2010); B.D. v. DeBuono, 130 F. Supp. 2d 401, 438 (S.D.N.Y. 2001).

Courts have held that that a plaintiff must show that a district acted “with bad faith or gross misjudgment” with respect to the administration of disability services to substantiate a Section 504 claim. S.W. by J.W. v. W rren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007). Bad faith or gross misjudgment is established by demonstrating the existence of an improper policy of a school district and/or the failure to adopt an adequate policy. Id. at 291. See lso Butler v. S. Glens F lls Cent. Sch. Dist., 106 F.

Supp. 2d 414, 420 (N.D.N.Y. 2000) As noted above, application of blanket policies and recommendation set by administrative criteria violates Section 504 and constitutes discrimination. De l v. H milton County Bd. of Educ., 392 F.3d 840 (6th Cir. 2004); LMP

v. School Bd. of Brow rd County, 49 IDELR 14 (S.D. FL 2007).

Compensatory education may be awarded to a student who remains eligible for special education services if he or she was denied a FAPE. 20 U.S.C. §§ 1401(3); 1412(a)(1)(B); P. v. Newington, 546 F.3d at 123 (stating that the “IDEA allows a hearing officer to fashion an appropriate remedy” and that “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);

Streck v. Bo rd of Educ. of the E st Greenbush Centr l School Dist., 408 Fed. Appx. 411

(2nd Cir. 2010) (creating an escrow fund for two years of compensatory education for a student who was denied a FAPE). The SRO has awarded compensatory services to students who have been denied a FAPE if such deprivation “can be remedied through the provision of additional services before the student becomes ineligible.” Bd. of Educ. v.

Munoz, 16 A.D.3d 1142 (4th Dep't 2005); Applic tion of the Dep't of Educ., Appeal No.

12-135; Applic tion of the Dep't of Educ., Appeal No. 11-132. Further, students who are not afforded pendency are entitled to make-up services. Student X. v. New York City Dep't of Educ., 2008 WL 4890440 (E.D.N.Y. October 30, 2008).

In fashioning a compensatory award, "the inquiry must be fact-specific” and the award must be “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid v. Dist. of Columbi , 401 F.3d 516, 524 (D.C. Cir.

2005); see lso P rents of Student W. v. Puy llup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir.

1994) (holding that "[a]ppropriate relief is relief designed to ensure that V.D.is appropriately educated within the meaning of the IDEA"). That is, a compensatory should aim to “place the student in the position he or she would have been in had the district complied with its obligations under the IDEA.” Applic tion of Student with

Dis bility, Appeal No. 13-208; see lso Newington, 546 F.3d at 123 (holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"); Dr per v. Atl nt Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]); Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007) (holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address (the) educational problems successfully"]; Reid, 401 F.3d at 518, 525 (holding that compensatory education is a "replacement of educational services the child should have received in the first place").

The Parents did not need to establish that a “gross” violation of the IDEA occurred in order for the IHO to award compensatory education. See, e.g. Newington, 546 F.3d 111 (2d Cir. 2008) (finding that the "gross violation" standard only applies to compensatory education awarded to students over the age of 21). Even when Courts have applied a “gross” standard, the term has not been clearly defined; at a minimum, “it appears that exclusion of the student from school for a substantial period of time would suffice” to meet the standard. Applic tion of Student with Dis bility, Appeal No. 13-

208 (citing Mrs. C. v. Whe ton, 916 F.2d 69, 75 [2d. Cir. 1990]; V.M. v. Colonie Sch.

Dist., 2013 WL 3187069, at *19).

I apply the statutory standard in 20 U.S.C § 1415(f)(E) (which was recently reiterated in Newington) and find that 7 is entitled to compensatory services.

The equities, they clearly favor the Parents. A parent must act with a high level of “unreasonableness or misconduct” in order for such conduct to raise an equitable bar to relief. N.R. ex rel. T.R. v. Dep rtment of Educ. of City School Dist. of City, 2009 WL 874061 (S.D.N.Y.). In the absence of evidence demonstrating that the Parent failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support an equitable remedy sought by the Parents. Id. Further, the notion of equities requires a balancing of both parties’ conduct and interest. Wolfe v. T conic Hills Centr l School District, 167

F.Supp.2d 530 (N.D.N.Y. 2001); SRO No. 04-045 (balancing the cooperation of the parents and the significant extent to which district failed to offer a FAPE, reimbursement was awarded).

The DOE bore the burden of proof regarding equities. Applic tion of Student with Dis bility, Appeal No. 13-200; N.Y. Educ. Law § 4404(1)(c). In this case, the DOE provided no evidence demonstrating lack of cooperation on the part of the Parent

In light of the foregoing, the Parents request that the IHO find in their favor as to each and every allegation in the DPC and discussed herein. I find and order as follows:

1. That the DOE denied a FAPE from the 2013-2014 school years through the date of decision in this matter, and that such violations are both procedural and substantive in nature.

2. That the DOE significantly impeded the Parent’s right to meaningfully participate in development of educational program.

3. The CSE convene immediately to develop an interim IEP which provides

_J with a ,a , and more intensive school .

4. That the DOE fund an independent evaluation from a provider chosen by the parent in an amount not to exceed

5. That the CSE is to reconvene within two weeks of the completion of the independent evaluation to develop an IEP that is reasonably calculated to enable to make meaningful educational progress in light of the recommendations of said evaluations

6. That thee DOE to pay for up to , at a rate of at least within 30 days and proof of service at either (a)

, payable directly to upon submission of invoices monthly to the DOE or (b)

another private provider at the above rate for such services. That the hours will not expire and will be scheduled at the Parent’s discretion so that the Student can be assured of being able to use and access the services.

To the extent that the Parent has already funded these hours, the Parent is to be reimbursed for the same.

7. That the DOE is to reimburse the Parent for the registration fee and the testing fee directly to d/b/a

.

8. That the DOE is to provide

. Dated: February 1, 2018

GARY D. PETERS, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain areview 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’S EVIDENCE

A. Impartial Hearing Request 1/20/17 5

B. IEP 4/25/10 12

C. DOE Assessment 12/13/13 5

D. / Progress Report 4/22/10 4

E. DOE Evaluation 4/1/10 5

F. Report Card 2016-2017 1

G. Report Card 2013-2014 1

H. Academic Summary 10/29/16 4

I.

and Prescribe Curriculum 6/1/17 2

J Testing Materials 10/29/16 66

K Financial Record 6/1/17 4

L Record 9/28/17 5

M Questions to Survey undated 3

N. Student Permanent Record 7/2/17 1

DOE’S EVIDENCE

1. Due Process Complaint 1/20/17 6

2. Due Process Response 2/1/17 3

3. 2013-14 1/2/14 3

4. 2013-2014 Prior Written Notice 1/2/14 3

5. 2013-14 Final Grades ____J_ __ Spring 2014 1

6. 2014-15 Final Report Grade Spring 2015 1

7. 2015-16 Final Report Grade Spring 2016 1

8. 2016-17 Final Report Spring 2017 1

9. 2016-17 IEP 3/6/17 10

10. 2016-17 Page 3/6/17 1

11. 2016-17 Authorization 3/6/17 3

12. 2010-11

Services 2/14/11 2

13. Evaluation 3/3/17 6