New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 165577

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: June 5, 2017

June 9, 2017

July 13, 2017

July 21, 2017

Actual Record Closed Date: August 17, 2017

Hearing Officer: John Naun, Esq.

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

Attorney — Student

Parents

Interpreter — Student

Student

(Via Telephone) — Student

District Representative — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 9, 2017

Attorney — Student

Parents

Interpreter — Student

(Via Telephone) — Student

(Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 13, 2017

Attorney — Student

Parents

Interpreter — Student

Student

Attorney — DOE

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

Attorney — Student

Parents

Interpreter (Via Telephone) — Student

Interpreter (Via Telephone) — Student

District Representative — DOE

The parent filed a request for a hearing on or about February 23, 2017 challenging the appropriateness of the programs the DOE proposed for the student for the 2015-2016 and the 2016-2017 school years. Within the general allegation of the denial of FAPE the parent made the following allegations/arguments:

1) The DOE failed to demonstrate that it provided the student with a FAPE during the 15/16 and 16/17 school years. (The DOE conceded this point and therefore it is not a substantial issue herein.)

2) The DOE procedurally denied the student a FAPE--violations which significantly impeded the parent’s opportunity to participate in the IEP process. (These issues may be evidence of requests for compensatory services but not for the issue of FAPE which is conceded.)

3) The DOE failed to appropriately address during the 15/16 and 16/17 school years and failed to review and revise the despite the Student’s . (Again, this may be an issue for compensatory services, the need for an IEE and the need for a new but not for FAPE.)

4) The DOE failed to allow the parent to meaningfully participate in the development of the student’s IEP in that it failed to provide her with IEPs, notices, and evaluations in her native language.(This may be addressed for future remedy but not for the establishment of or denial of FAPE which is conceded.)

5) The DOE failed to appropriately evaluate the student in all areas of suspected disability within the mandated triennial period. (This is an issue to be resolved.)

6) The DOE failed to have an appropriate CSE team at the March 31, 2015, December 21, 2015 and December 20, 2016 IEP meetings. (This issue is not relevant to this hearing since FAPE is conceded.)

7) The DOE failed to comply with the federal and state regulations as well as with the DOE’s policy regarding the parent’s requested Independent Educational Evaluations (IEEs). (This is an issue)

8) The DOE failed to develop appropriate IEPs for the 15/16 and 16/17 school years that were uniquely tailored to meet ’s unique needs. (This somewhat redundant and again not relevant to our findings in terms of FAPE per se but has some relevance as to compensatory services.)

As a remedy for these alleged violations, the parent requests that the IHO order

IEEs as requested by the parent which requests specifically designated certain providers at specifically designated remunerations for each. She also requests compensatory education in the form of , , , and . In addition, she requests the CSE be ordered to reconvene and develop an appropriate program and placement recommendation based on the student’s needs. In the parent’s closing brief, she alleges that the student was deprived of the following enumerated related services for which she seeks compensation on basis:

15-16 School Year: ;

; and, .

16-17 School Year; ;

; and,

. (Edh. “JJ” p.21.)

The parent also seeks by the as result of the student’s testing by that organization.

Background

The student is a boy who is scheduled to begin the in September 2017. The mother is a native speaker and apparently has little to no language abilities in English. [T. 343-44] The student began receiving special education services during early intervention, the 2012-2013 (12/13) school year. During the 2014- 2015 (14/15) school year, he attended in the and was enrolled in a class ( ), where he received

( ), and . In January

2015, the DOE conducted a evaluation that determined that he demonstrated and no longer required . (Ex. H.) As the parent notes on March 31, 2015, the DOE convened an individualized education program (IEP) meeting to develop the student’s “ ” placement. (15/16, IEP. Ex. C.) The DOE was represented by a teacher, , , and district representative. (Ex. C-19.) The DOE did not have an official interpreter at the meeting. [T. 350] The DOE’s spoke and interpreted parts of the meeting to the parent. (Tr. 350.) The parent testified she did not understand the ’s interpretation and therefore did not understand many of the discussions at the IEP meeting. [T. 350.] There is no record the mother expressed the problem at the CSE meeting. The DOE classified the student with (“ ”) no longer a classification and recommended an with . (Ex. C-13, 14.) The DOE also recommended an and a ( ) for the student because of . (Ex. C-3, 14.) The DOE presented the parent with a ( ) in English. (Ex. 20.) The parent maintains that the DOE did not explain the or provide her a copy in . [T. 353]. There is no record of criticism of the actual at the time and no specific allegations subsequent thereto.

The 2015-2016 (15/16) School Year

The student began in an . [T. 354-55]. The parent testified that the DOE school staff constantly called her stating that “they couldn’t deal with the child.” [T. 355]. The staff reported that . [Ext. D-1, 11, 14, 18].

In October 2015, the Parent obtained a private evaluation for the student at

[In English]. [T. 359, Ex. J.] The evaluator noted the student was a “ ” child and diagnosed him with an and recommended services. In November 2015, the parent provided the report to the DOE. [T. 359]. On November 12, 2015, the DOE conducted a evaluation on the student. [Edh. K.] The evaluation which was done within the three-year period of the hearing request, reported that the student needed a , “ .” The evaluation also identified the student’s .

There was no issue of being a problem in the evaluation. The parent related that she attended an IEP meeting on December 21, 2015, to review the DOE’s 2015 evaluation, classroom observation, social history update, and independent evaluation. The parent notes that the DOE did not arrange for an official interpreter to attend the meeting and did not invite a to review the independent evaluation recommendations. The parent related that the student’s teacher spoke to the Parent in but had to leave half way through the meeting and leaving the parent without an interpreter. [T. 360.] The DOE changed the student’s classification to and recommended that he be placed in a classroom with services, , and .

Ex. D-7. The DOE also recommended a . [As

noted the DOE is not defending these actions and conceded FAPE and the above matters.

The 2016-2017 School Year

The student remained in the same school for . [ T. 363] He was enrolled in a class. [T. 195]. His teacher reported that he “ ” which included . [T. 197]. 364. . It is reported that and . [T. 198]. On

December 20, 2016, the DOE held an IEP meeting to develop the student’s program for the second half of the 16/17 school year wherein the DOE staff discussed the boy’s but, according to the parent, did not propose a change in the or program. Again, the DOE does not defend FAPE or these facts as they apply to the issue of FAPE.

THE DOE POSITION (Evidence)

The DOE conceded the parent’s position that new evaluations and a new IEP meeting to consider those evaluations is needed. (id.) [T.25] At the same time that it responded in a timely manner to the parent’s request for the Independent Educational Evaluations (“IEE’s”) it also that it provided for an enhanced rate of compensation for the evaluators [T.25]. The DOE argues that any delay in the process of the IEEs was therefore caused by the parent’s refusal to accept the DOE proffered enhanced rates and also due to the parent’s insistence on a specific evaluator for each evaluation to be paid at a specific rate charged by those individual evaluators.

In addition, the DOE stated that contrary to the parent’s contention, it is the DOE’s position that a bilingual evaluator is not required. Although it never denied the parent the right to have a bilingual evaluation at the proffered DOE enhanced rates, the DOE argues the mother in her testimony admitted the child understands English in school. It also points out that the parent secured a evaluation on her own which was conducted in English which she presented to the CSE. [T.383] (Ex. j)

And, in addition the DOE notes that the parent also relies on a evaluation and testing conducted entirely in English as valid proof of the student’s need for compensatory services. This is contrary to the parent’s position that only a bilingual evaluation would serve as a valid measure of the child’s needs.

The DOE Also notes that even if a bilingual evaluator is chosen the enhanced rates are sufficient remuneration for the service. The DOE noted that it was agreeable to provide translations of the evaluation results for the parent since it appeared the major language problem was with the parent’s ability to understand the results.

The DOE did call one witness to testify regarding the parent’s IEE request. [T.

39]. The administrative person who arranged for IEE’s had no specific involvement with the student’s case. [T. 23]. She conceded that the DOE has in fact paid higher rates than what is listed on the DOE’s forms. [T. 60] There was no opposition to the parent securing bilingual evaluators if she chose –but with the enhanced rates approved by the DOE. In the past evaluators both bilingual and monolingual could be employed at the enhanced rates.

Parent’s Position

On June 5, June 9, July 13 and July 21, 2017, the Parent presented six witnesses in her case including at (“ ”), , the student’s 16/17 special education teacher, an expert in , Dr. , an expert in , Dr. P. R., a licensed , and the parent. [T. 73, 196, 270, 292, 344, Ex. HH].

The administrator testified that based on her English assessment of the boy’s she concluded that he is struggling with . [T. 100-01]

[ Ex. L.] She reported that . [T. 90-1]. Asserting that the boy could be tested in English, the witness stated “ .” [T.131] Indeed she added that he appeared fluent in English. She did note that .

[T. 94] The student also had trouble . [T.

99-100] In conclusion she recommended the student receive a total of in order to [ T. 100-01, 103.]

The witness testified that the student required the program because he struggles with . [T 236] She noted that . [T. 84] She added that, “ .” [Id.] She noted in reference to this fact that . In this context,

She stated she could not do a because

. [T.98] She opined that

. On cross examination, she stated that she did not understand the DOE questioner as to whether the boy’s weaknesses in might have impacted her testing. [T. 110] She intimated it was irrelevant to valid testing.

She discounted the boy’s weakness in in testing (?)

and noted the does not have an on staff to consult in such matters. [T 116] She stated that the average number of hours (i.e. ) is generally applied to all students to . [T.119]

Another witness, Ms. testified that the student needs a evaluation because he comes from a speaking home. [T. 272] Such testing is necessary to determine if any differences existed in his performance between and English even though his instruction in school is in English with the exception of . ] [T. 274]. In addition, she testified her rate for a bilingual evaluation was and confirmed she received this payment in the past from the DOE. Dr. also testified that his bilingual and mono- lingual evaluations are and confirmed he has been paid this rate from the DOE since the fall of 2016. Dr. testified that the student needs a bilingual evaluation in order to obtain accurate results from the student because he is bilingual. [Tr. 294] He never met the child. Dr. further testified that the DOE has approved an enhanced rate of for his evaluations in the past not explaining the context of that fee. [T. 296, 304.].

Finally, the parent testified about her concerns with her son’s

. [T. 348, 351, 353-55, 363, 370.] The parent testified that because of the DOE’s constant calls for her to go pick up her son from school she was fired from her job. (T. 365). The parent stated that she became desperate for a change in program, and, in order to obtain better information about her child’s needs, in November 2016, she sent the DOE a request for bilingual independent educational evaluations (IEEs). However, her request asked for specific evaluators and with specific remunerations. She disagreed with the DOE’s evaluations as they failed to “comprehensively” evaluate her son. There are no specific allegations as to why the evaluations were improper or what would make the testing more comprehensive in terms of his needs. The indication is simply that they could not be accurate or comprehensive since they were not conducted by a bilingual provider (and indeed, the specific evaluators she chose). As noted, she requested a bilingual evaluation to be performed by Dr. at a rate of ; a bilingual evaluation to be conducted by at a rate of ; a bilingual evaluation to be conducted by at a rate of ; and bilingual and if deemed necessary a by at a rate of . (Ex. JJ 6-7)

On January 5, 2017, almost two months after her initial request, the DOE sent Parent’s counsel notice that it “agree[d] with the parent’s requests for the following independent evaluations at public expense: evaluation,

( ), evaluation, and evaluation.” [Ex. 12.] The DOE agreed to fund a evaluation at ; at ; evaluation at ; and

at . Ex. X-12- 44. (Ex. JJ 7) The parent complained that these rates were significantly less than those specifically requested. She stated that when asked, the evaluators selected by the parent declined to accept the DOE’s lower rates and explained that in order to do the evaluation, they needed to receive their standard payment. Parent’s counsel informed the DOE that the Parent’s chosen evaluators would not accept the DOE’s rates and the parent continued to seek the evaluations she requested in her IEE letters at the independent evaluators’ rates. The parent waited an additional month for the DOE to respond, but the DOE did not respond to the parent nor did it initiate a due process hearing to defend its evaluations or rates offered since it apparently agreed to the evaluations. On February 23, 2017, the parent filed an impartial hearing request in order to secure funding for the specific IEE evaluators she chose at the specific remuneration designated, as well as allege that the DOE failed to provide the Student a FAPE for the

15/16, 16/17 school years. Apparently, the parent argues that the DOE failed to timely respond to its request for IEE evaluations because it would not pay the rate requested.

There was no apparent disagreement with the chosen evaluators or that the child should receive IEEs if the providers accepted the DOE enhanced rates. The parent offered no evidence of other qualified evaluators who were sought out or interviewed by the parent and who rejected the rates offered by the DOE. The DOE witness maintained there are evaluators who accept the rates for the evaluations requested. This testimony of the DOE administrator was not refuted.

Enhanced rates of IEE

The DOE did respond to the requests for evaluations in a substantially timely manner. It also provided enhanced rates. The DOE does not have to agree to a specific evaluator or specific remuneration determined unilaterally by the evaluator and as agreed to by the parent. The child is entitled to an independent evaluator and the DOE agreed. The DOE provided lists and said to the best of its knowledge evaluators were available at the enhanced rates. There is no basis to claim the DOE failed to timely respond to the parent’s request and no proof submitted that the parent could not retain qualified evaluators at the DOE offered rates.

There is no clear evidence that the child needs a bilingual evaluator except that he gets bilingual and comes from a bilingual home. However, based on the concept that it is best to act on the side of caution in order to get a really unquestioned evaluation of this young child, the IHO agrees a bilingual evaluation should be given.

It is important that the boy receive a bilingual evaluation to be sure that being tested in English is not a hindrance on achieving valid results. The other areas of testing such as , and can be done in English.

Compensatory Education

The DOE conceded it did not provide a FAPE for the two school years in question and there is evidence that . As noted . He needs a certain amount of compensatory service on a level, time sequence and concentration that he can absorb and profit from. Compensatory services must be tailored to meet the unique circumstances of each case. W enger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).

Within the Second Circuit, compensatory relief in the form of supplemental special education or related services is available when the student has been denied a FAPE.

A pplication of a Student with a Disability, Appeal No. 13-168, citing P. v. Newington Bd.

of Educ., 546 F.3d 111, 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]"). The DOE conceded no defense of FAPE in this case. The purpose of an award of compensatory education services is to provide an appropriate remedy for a denial of a FAPE. Id., citing Newington, 546 F.3d at 123 (holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE). The issue of” make up” is nebulous in this case. The boy has problems with

. He has shown

. Even though the parent cites a set number of sessions allegedly missed, and compensatory education is an equitable, “make whole” remedy “there is no obligation to provide a day-for-day compensation for time missed.” Parents of Student W.

v. Puy allup School District, No. 3., 31 F. 3d 1489, 1497 (9th Cir. 1994) To do so in this case could be counterproductive by imposing a heavy load and expectation of the child in terms of his problems. Thus, even where there has been an alleged denial of FAPE, the amount of compensatory education should not be calculated on a mechanical, hour counting, one for one basis which seems to be the parent’s request herein. See Reid ex.

rel. Reid v. District of Colum bia, 401 F.3d 516, 43 IDELR 32 (D.C. Cir. 2005).

Furthermore, when parents are seeking compensatory education services, they must present evidence sufficient to establish (i) the specific educational deficits that resulted from the alleged loss of FAPE, and (ii) the specific compensatory measures that are necessary to correct the alleged deficits. Gill v. District of Columbia, 770 F.Supp.2d 112,

116 (D.D.C. 2011). The parent herein apparently relied on the testimony of the Evaluator as to the current status of the student’s and general statements of other witnesses but does not provide any exact indication as to what level the child was performing at before being denied the services or what specific losses he suffered. All of this must also be measured in terms of what could be expected in terms of progress one year to another in the context of his abilities and behavior.

The parents must identify the specific educational deficits resulting from the alleged denial of FAPE, when seeking a specific number of hours of compensatory education, the parents must provide sufficient support for the specific number of hours sought and the value of those proposed services to their child. Id. at 117 Moreover, unless a parent has been admitted as an expert, her opinion is not admissible to prove anything.

Id.

In the absence of specific evidence to support the specific number of hours of compensatory education requested by the parents, the IHO is usually "compelled to find that [Parents] have failed to support their claim for . . . compensatory education." Id. at

118. However, an IHO must attempt to use Solomon like reasoning and balance the arguments presented by the opposing advocates and assess and weigh the credibility of witnesses and documentary evidence as to the need and justification for compensatory services. It is a remedy in equity focused on a d constructed to meet the child’s individual needs. How much growth was exactly being lost by this student? In order to make a determination more than conjectural there has to be some factual detail more than opinion as to the educational loss. What services will be required to “catch up” is another subjective criterion? What is “catch up” for this child? How much? The answers to questions like these are not simple facts to be found in this record, but are balances best weighed in terms of available evidence presented in the hearing and reasonable equitable considerations.

Accordingly, just as IEPs focus on disabled students' individual needs, so must awards compensating past violations rely on individualized assessments—if they are reliable and credible. The data presented by the seems general based on past experience averages with numerous disabled students with various different needs and limitations. Since the witness is seeking employment as it must be weighed as somewhat self-serving. The evaluator did not contact the boy’s teacher, or service providers for specific input about the boy’s limitations. The individual disabilities and limitations of the child were not given substantial consideration in the evaluation as admitted by the witness and therefore that fact impacts the reliability of her results. (For example, an input on the boy’s or input from a regarding his

.) This fact does not only impact the testing but also the services the child is going to receive. Ms. Suggested a specific number of hours based on a general experience with a broad student population. The scope and numbers of the suggested remedial hours seems questionable in terms of the student’s ability to put in sufficient hours in terms of energy and the noted . This is demonstrated by his evaluation limitations as noted by the examiner. Even his teacher testified and noted that Again, however, the fact which is clear is that the child missed services and the DOE bears substantial responsibility for that deprivation in that it did not provide FAPE.

Reviewing the child’s performance and testing, it seems that it would be difficult for him to go to the on a regular daily basis and carry a heavy load if we were to award these services as compensation. The recommendation of in a given year would imply approximately at the . In either case it is too much for this boy to profit from—especially in travelling back and forth to the . The travelling from to as seen by his experience when being tested can be . He also seems to need and someone who can . He needs someone familiar with his and his disabilities in terms of impact on his . He should receive

.A should be consulted to evaluate and coordinate and issues with the school staff, parent and providers of services. During the 2018 summer months he shall be given . If the school does not provide , the parent shall be given a RSA if necessary with the right to employ someone at the maximum rate of per hour.

The boy has some indicated difficulty in . He should be given new evaluation at the enhanced DOE rates to examine the cause and possible remedy of this issue. He should be given a new bilingual evaluation at the enhanced rates. He should be given an evaluation by a to examine . The same or shall provide . Therefor based on the above it is ordered and found that:

1. The DOE did not provide a FAPE for the school years at issue;

2. The parent should receive an RSA at advanced rates from the DOE list to employ the various evaluators for IEEs. The DOE responded in a timely manner.

With regard to the bilingual evaluation the DOE must proactively seek and get an available evaluator at the enhanced rate within one month of the date of this decision. If the DOE does not secure a qualified bilingual evaluator at the enhanced rate, the parent shall be immediately be given an RSA voucher for to employ the bilingual evaluator she has chosen.

3. The other IEE’s should be given at the DOE enhanced rate. The evaluators may be bilingual at the enhanced rates.

4. A certified shall be employed by the DOE to evaluate the boy’s and to consult with his parent, teachers and service providers on an ongoing basis for a school year or . The DOE shall provide the or give the parent an RSA voucher to pay the person a maximum of per hour and a fee for an evaluation of the boy at the enhanced rates.

5.

. He shall be given during the summer

(2018) of (at the enhanced RSA rate) to

.

6. The CSE shall convene a new IEP meeting to consider the evaluations discussed above and to develop an appropriate IEP

So, Ordered

Dated: September 20, 2017

JOHN NAUN, ESQ.

Impartial Hearing Officer JN:

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 Parent hearing request, 2/23/17, 14 pages

B IEP, 7/8/14, 22 pages

C IEP, 3/31/15, 19 pages

D IEP, 12/21/15, 13 pages

E IEP, 12/20/16, 14 pages

G report by (phonetic), 5/27/14, two pages

H progress report by (phonetic), 1/5/15, three pages

I Social history update by (phonetic), 2/11/15, one page

J evaluation by (phonetic), 10/27/15, eight pages

K evaluation report by (phonetic), 11/12/15, five pages

L raw data, 2/15/17, 56 pages

M Parent request for an independent education evaluations with fax confirmation,

11/8/16, three pages

N Parent request for independent education evaluations with fax confirmation, 11/30/16, three pages

O CSE meeting notice, 12/20/16, one page

P New York City DOE occurrence report, 9/10/15, two pages

Q NYC DOE occurrence report, 9/11/15, two 16 pages

R NYC DOE occurrence report, 9/18/15, three pages

S NYC DOE, regulation of the Chancellor regarding translations, 6/26/9, five pages

T OCR dear colleague letter, 1/7/15, 40 pages

U NYC DOE language access policy, Undated, two pages

V Office of Special Education Programs letter to boss, 2/23/15, two pages

W Resume of , Undated, two pages

X Interim order motion, 6/1, 46 pages

Y Subpoena, 6/5/17, three pages

Z Subpoena for , 6/5/17, one page

AA Encounter attendance records, '15/'16, '16/'17, 398 pages

BB Resume of , Unidentified date, eight pages.

CC Resume of , Unidentified date, three pages

DD Email, 5/26/17, one page

EE Resume of , unidentified date, unspecified number of pages

FF Resume of , unidentified date, seven pages

GG Affidavit of , 7/12/17, one page

HH Affidavit of , 7/10/17, one page

II Parent's Brief, 7/13/17, 18 pages

DEPARTMENT OF EDUCATION

1 progress monitoring review meeting, 2/14/17, ten pages

2 , 1/12/17, seven pages

3 Prior written notice, 1/4/17, two pages

4 Prior written notice, 1/4/17, five pages

5 review meetings, Various dates, six pages

6 Meeting notice, 12/20/16, five pages

7 Teacher report, 11/14/16, three pages

8 Prior written notice, 4/22/16, five pages

9 Meeting notice, 4/12/16, five pages

10 conference report,

1/28/16, one page

11 evaluation request, 2/22/16, one page

12 , Undated, four pages

13 Prior written notice, 12/22/15, three pages

14 Student progress report, 12/22/15, one page

15 Classroom Observation, 11/12/15, 1pp

16 Log of Parent/Teacher Communication regarding , various dates, 1pp

17 Meeting notice, 12/14/15, three pages

18 Request for reevaluation, 10/23/15, one page

19 , 3/31/15, five pages

20 , 3/31/15, 13 pages

21 IEP team meeting agenda and minutes, 3/31/15, five pages

22 Classroom observation, 2/11/15, one page

23 Social history update, 2/11/15, one page

24 , 2/10/15, two pages

25 Emails, unidentified date, 20 pages

26 Standard Operating Procedures Manual Regarding Assessments, February 2009, 11

pages

27 Application for Independent Provider of Assessments, unidentified date, four pages

28 Municipality List of Independent Evaluators, 1/4/17, 64 pages

29 SRO Decision, 11/6/15, 12 pages