New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 165684

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: May 23, 2017

June 20, 2017

July 26, 2017

August 1, 2017

Actual Record Closed Date: October 5, 2017

Hearing Officer: Martin J. Kehoe III, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 23, 2017

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 20, 2017

Attorney — Student

Attorney — Student

Father — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 26, 2017

Attorney — Student

Attorney — Student

(Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 1, 2017

Attorney — Student

Attorney — Student

Legal Intern — Student

(Via Telephone) — Student

District Representative — DOE

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student.

In this case the remedy sought is compensatory education. A hearing was held on May 23, 2017; June 20, 2017; July 26, 2017; and August 1, 2017.

Parent’s Position

In the complaint notice, dated March 8, 2017 (Ex. A), the Parent alleged that the District denied the Student a free appropriate public education (FAPE) for the 2014 – 2015; 2015 – 2016; and 2016 – 2017 school years. The Parent was seeking independent evaluations; a reconvene of the Committee on Special Education (CSE) to review the new evaluations; an amendment to the Individual Educational Program (IEP); a deferral to the Central Based Support Team (CBST); compensatory education services; and related service authorizations (RSA's) at an enhanced rate for .

There was a resolution agreement in which the District agreed to conduct evaluations for the Student (Ex. 2, T. P. 21).

District’s Position

The District conceded FAPE for the 2015 – 2016 and 2016 – 2017 school years and agreed that the Student would benefit from compensatory education and a re-examination of his program, but argued that the CSE should hold an IEP meeting to consider the results of the new evaluations and make recommendations. The District did not present a case or witnesses or evidence for the 2014 – 2015 school year. They requested that because of the statute of limitations March 8, 2015 should be considered the beginning of the litigation (T. P. 19).

Student History

At the time the complaint notice was notice was filed, the Student was and attending in an with

;

; and (Ex. B). The Student was initially classified by the CSE with a (Ex. D). The Student’s classification was changed to (Ex. C, Ex. D). In the Evaluation, the Student was diagnosed with

. (Ex. F).

Legal Background

The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”).

20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

- (A) have been provided at public expense, under public supervision and direction, and without charge,

- (B) meet the standards of the state educational agency,

- (C) include an appropriate , , or secondary school education in the state involved, and

- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).^[1]

A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any , recreation, including therapeutic recreation, social work services, services, including rehabilitation , and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

Analysis

Threshold issue - SOL

In this case, the concession that FAPE was not provided for two academic school years leads directly to the finding of such denial for 2015-2016 and 2016-2017. I note that the District has requested that the remedy be limited by the statute of limitations to those violations occurring after the two year point preceding the filing of the Complaint Notice.

To wit March 8, 2015:

The IDEA requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged action that forms the basis of the complaint (20 U.S.C. § 1415[b][6][B], [f][3][C]; Educ. Law § 4404[1][a]; 34 CFR 300.511[e]; 8 NYCRR 200.5[j][1][i]; Somoza v. New York City Dep't of Educ., 538 F.3d 106, 114 n.8 [2d Cir. 2008] [noting that the Second Circuit applied the same "knows or has reason to know" standard of IDEA claim accrual both prior to and after codification of the standard by Congress]; M.D. v.

Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir.2003]; G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *17 (S.D.N.Y. Mar. 29, 2013); R.B. v. Dept. of Educ., 2011 W.L. 4375694, at * 2, *4 [Sept. 16, 2011 S.D.N.Y.]). An exception to the timeline to request an impartial hearing applies if a parent was prevented from filing a due process complaint notice due to a "specific misrepresentation" by the district that it had resolved the issues forming the basis for the due process complaint notice or the district withheld information from the parent that the district was required to provide (20 U.S.C. § 1415[f][3][D]; 34 CFR 300.511[f]; 8 NYCRR 200.5[j][1][i]; R.B., 2011 W.L. 4375694, at * 6). (See SRO #12-125)

Critical to my resolution of this issue is the date that I find the Parent should have known there was a potential claim. Here the Student was provided and . In preparation for in he was recommended an . The Student was moved among several schools in New York. Then he moved to and attended . He returned to at the end of but at that time he was placed in a class until the following year when for 2011-2012.

At the midpoint of that academic year he was placed in a with related services. He was reportedly performing . However, after moving to the in 2012-2013 his performance was measured and he was reportedly . By March 11, 2014 when a new IEP was created, the Student was attending and was reportedly and was continuing to be a problem. ( ). By September 2014, and for the 2014-2015 school year (See, Exhibit F evaluation). This is the time in issue for purposes of the Statute of Limitations issue. At that point, the Parent had cause to know that the Student needed in his special education programming. Next, I look to the date of the Complaint Notice, which is March 8, 2017. Looking back two years from the Complaint Notice, I find that the actionable period in this case began on March 8, 2015. This starting point is approximately months after the date that the Parent had reason to know of potential issues. Accordingly, all claims made relating to issues before March 8, 2015 are precluded. Still, there remains a significant deprivation of educational benefit that is subject to compensatory education. Thus, I will limit myself to the period starting at March 8, 2015.

I now turn to the needs of the Student. At this point, the Student needs the recommended by the (Ex. F) and the (Ex. M). The Student failed to make progress in the District program and placement and (Ex. F).

. (TP. 96, 98). The

District did not present any evidence or testimony to contradict the recommendations of the or the . The and were well qualified to make recommendations for the Student. I credit their testimony and the reports in ruling for the Parents.

Recommendations

The recommended:

1. A new IEP with quantifiable goals to address the Student’s specific areas of deficit

.

2. A with students with similar academic deficits and taught by professionals with expertise in teaching students with disabilities.

3. A .

4. A by a .

5. An evaluation.

6. including

.

7. services outside of school.

. (Ex. M).

The testified that, after completing the , the Student is

(T.

P. 118). The testified that the program, placement, IEP goals, and all contributed to his . (TP. 119 – 121). The Parent stipulated to a reduction of the ’s recommended compensatory education services to (T.P. 137-138). The recommended (T.P. 125-

126).

The recommended:

with teachers with the expertise to teach students with the Student’s diagnosis; with the resources to address these difficulties in a program; a non-public school as the most appropriate educational setting; a class where the work is on the Student’s level and the students are at his academic level in ; ;

; ;

; ;

; ; and ,

, and evaluations. (Ex. F)

In their response to the request for a evaluation, dated November 13, 2015 the District granted the Parents request at an enhanced rate not to exceed , attached authorization forms and wrote that they included a list of independent evaluators

(which were not included in the exhibit). (Ex. K).

The Parent testified about the Student’s (T. P. 45 – 47, 53). The

Parent testified that he gave a copy of the evaluation report to the school and a CSE meeting was held to review it. (T. P. 50 – 51).

The testified about her evaluation of the Student. She said

, but because he has not been given the appropriate services. (T. P. 83). She testified the Student needs such as a because he needs (T. P. 86). She said the Student needs (T.P. 86), and needs a non-public school placement because such schools “specialize in certain disabilities” and could place him in a class where he could work at his ability level (T. P. 87). She said a program is needed to (T. P. 88). She recommended to and “

." (T. P. 91)

She recommended to

. (T. P. 91). She said he needs

to address

(T. P. 92). She said he needs because of

(T. P. 93). She said a could help the Student to

and

(T. P. 94). The stated that without , the Student will remain at (T. P. 95). She testified that the IEP was inappropriate and did not include any of her recommendations (T.P. 96).

The has not yet been paid for the independent educational evaluation.

(T.P. 99).

Compensatory Education

Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and. . . mould each decree to the necessities of the particular case”)

(quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].

Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387

[N.D.N.Y. 2001].

Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v.

Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see generally R.C. v.

Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]).

Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd.

of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of ]; Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one in and ]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 services and 1:1

- in compensatory additional services]).

In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate 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"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]).

Accordingly, an award of additional services 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 (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta 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 student's] 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" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Parents of Student W. v.

Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014.

With guidance from the above precedent I am persuaded that the Student has incurred a longstanding deprivation of educational benefit that is compensable under the existing caselaw. The equitable nature of the relief offers some latitude in fashioning a qualitative remedy. Here the experts in the Parents’ case were specific, credible and optimistic that the Student will benefit from remediation. I have no reservation accepting their recommendations.

I find the Student requires placement at a state-approved, non-public school and services to return him to the position he would have been in, had he not been denied a FAPE. The target school should offer ,

.

The Parents have also requested

. (T. pp.137-138) After due consideration of the Student’s considerable disabilities and limits in relation to the rigors of his upcoming academic schedule, I find that the demands of his forthcoming nonpublic school will be significant. I therefore award a more modest amount of hours to be used during scheduled school breaks on and at other times that his educators deem appropriate. Using a qualitative approach, I’m going to reduce the number of compensatory education hours. My rationale for this reduction is that with this order for a non-public school, I recognize the inherent remediation that will be part of that appropriate environment for the Student. So, I am discounting the recommendations for an aggressive schedule, which, standing alone, may be valid. Nevertheless, the opinions, which I credit, support significant additional services. To arrive at this number,

I will take the original recommendations proffered and reduce them by because of the prospective placement at the state approved non-public school. This leaves a bank of (derived as follows:

). In reconciling the various equities, I have attempted to engage in a qualitative review of the experts’ opinions while applying a quantitative reduction based upon the likely limits of the Student’s stamina, pace and abilities to complete the ambitious programs laid out at the hearing (Tr. p. 102).

Finally, I direct that the District pay for the evaluation performed by the at her usual and customary rate of (Tr. P. 99)

upon presentation of a bill for same. In this case the Parent sought and obtained the evaluation after engaging the District in a request for same. The District failed to commence an impartial hearing to defend its own position. See, 8 NYCRR section

200.5[g][iv]. Therefore, I find for the Parent on this issue.

It is therefore ORDERED

- This matter be remanded to the Committee on Special Education with a direction to defer the matter to the Central Based Support Team for the express purpose of authorizing and implementing a program consistent with this decision;

- The District shall provide a bank of

, to be delivered by a provider of the Parent’s choosing, at an enhanced rate. The bank of hours shall expire years from the date of this Decision; and

- The District pay for the evaluation performed by the at her usual and customary rate of dollars upon presentation of a bill for same.

So Ordered,

Dated: October 26, 2017

MARTIN J. KEHOE III, ESQ.

Impartial Hearing Officer

MJK:

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Demand for Due Process Hearing, 3/8/17, 17 pages

B IEP, 10/27/16, 13 pages

C IEP, 1/13/15, 12 pages

D IEP, 3/11/14, 9 pages

E Prior Written Notice, 10/31/16, 3 pages

F Evaluation, 2/7/16, 26 pages

G Evaluation Report, 10/11/14, 6 pages

H 2015-2016 Report Card, undated, 1 page

I 2014-2015 Report Card, undated, 2 pages

J 2013-2014 Report Card, undated, 2 pages

K IEE Response, 11/13/15, 8 pages

L Request for Evaluation, 9/3/14, 1 page

M

From , 7/22/17, 12 pages

DEPARTMENT OF EDUCATION

1 Due Process Response, 3/31/17, 4 page

2 Resolution Agreement, 4/4/17, 3 pages

3 Evaluation Letter, 4/19/17, 1 page

4 Report, 5/9/17, 6 page

5 Evaluation, 5/1/17, 6 pages

6 Evaluation Referral, 5/6/17, 6 page

7 Consideration for , undated, 2 pages

Footnotes

[1] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the , in hospitals and institutions, and in other settings; and (B) instruction in education. The term “related services” is defined as , and such developmental, corrective, and other supportive services (including pathology and audiology, services, and