Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 166130

NYS Identifier Number: Student’s Name: Date of Birth:

Region:

Hearing Requested By: Parent

Date of Hearing: September 28, 2017

Actual Record Close Date: December 29, 2017

Hearing Officer: Amy Lynne Itzla, Esq.

FINDINGS OF FACT AND DECISION

INTRODUCTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(f)(1), regarding the educational placement of for the 2013-2014, 2014-2015, 2015-2016, and 2016-2017 school years. The hearing was convened at the written request of parent (the “Parent”) by letter dated May 5, 2017. (Exhibit A) A hearing was held on September 28, 2017, at the offices of the New York City Department of Education (the “DOE”) located at 131 Livingston Street, Brooklyn, New York. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision.

In scheduling the hearing, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8

NYCRR § 200.5(j)(5)(ii)]

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BACKGROUND

isa by the DOE.

For the most recent school year at issue, the 2016-2017 school year, a meeting of the DOE’s Committee on Special Education (“CSE”) appears to have been conducted in March 2016 to develop an Individualized Education Program (“IEP”) for for the 2016-2017 school year. The record does not include an IEP; the only reference to one is in the Parent’s impartial hearing request. The Parent asserts that the DOE failed to provide a Free Appropriate Public Education (“FAPE”) to for the 2013-2014, 2014-2015, 2015-2016, and 2016-2017 school years. The remedy requested by the Parent includes, but is not limited to, payment of the tuition for to attend for the 2016-2017 school year, as well as compensatory education in the form of of services, at an enhanced rate, for the DOE’s failure to provide these services to , and for its failure to provide a FAPE throughout the school years in question.

By letter dated September 29, 2016, the Parent notified the DOE that she intended to seek funding for placement at for the 2016-2017 school year. She also notified the DOE the she intended to seek reimbursement for the cost of a evaluation conducted at her expense for (Parent’s Exhibit L) In the Parent’s request for an impartial hearing, dated May 5, 2017, she informed the DOE, through her advocate, that, in addition to seeking tuition payment for the 2016-2017 school year and reimbursement for the evaluation, she was also seeking compensatory education in the form of services, as a remedy for the DOE’s failure to provide a FAPE over the course school years. The letter stated, in part, that, while the DOE failed to offer a FAPE in all of those school years, it also failed to even conduct a CSE meeting and develop an IEP for the 2014-2015 school year, it conducted a late CSE meeting for the 2015-2016 school year, and it failed to conduct a CSE meeting and develop an IEP for the 2016-2017 school year with the Parent’s participation. (Parent’s Exhibit A) The record does not reflect any response from the DOE to the Parent’s letters.

The DOE has challenged the Parent’s request, insofar as it includes claims arising beyond the two-year statute of limitations.

POSITIONS OF THE PARTIES

THE DOE’S CASE

In its opening statement, the DOE maintained that the claims related to the 2013-2014 and 2014-2015 school years were time-barred. The parties agreed to submit post-hearing briefs to include their closing arguments, generally, and legal support for their positions with regard to the DOE’s statute of limitations argument, specifically. The Parent submitted a post-hearing brief in accordance with the parties’ agreement to do so. The DOE did not submit a post-hearing brief despite the parties’ agreement to do so, and in disregard of this IHO’s allowance of time and an opportunity to do so. To confirm that the DOE’s submission was not lost and to inquire as to any unforeseen mitigating or emergency circumstances, this IHO communicated by email to the DOE’s advocate, with a copy to the Parent’s advocate. The DOE’s advocate confirmed that, in fact, “there was no closing brief on the behalf of the DOE.” Therefore, the record is devoid of any support for the DOE’s statute of limitations argument.

The DOE has conceded, by not presenting a case, that, at a minimum, it failed to offer a FAPE to for the 2015-2016 and 2016-2017 school years, since those years were not contested as time-barred. In addition, the DOE has not challenged the Parent’s assertion that placement at for the 2016-2017 school year was appropriate, and has not asserted any equitable considerations that would diminish or bar relief to the Parent. The DOE has not challenged the Parent’s claims for reimbursement of the cost of the evaluation and for compensatory education in the form of services.

THE PARENT’S CASE

isa . She completed a comprehensive evaluation of in September 2016. She conducted the evaluation over the course of 6-7 hours. She reviewed class records, medical records, evaluations and IEPs. She used standardized tests, parent and child questionnaires, and conducted clinical interviews with and his mother.

of was asked about the Parent’s request for of compensatory education in the form of services. She stated that the results of her evaluation .’ She states that her understanding is that has not received Services since and has, therefore, missed thousands of hours of services. In her opinion, is less than what he should have received in those years. (T. 33-34) testified that she is familiar with and has visited and observed students there on multiple occasions. She believed that it was an appropriate program for for the 2016-2017 school year because he requires provides a “very holistic approach to learning and nurtures a student’s academic, social and emotional needs.” She explained that teachers work with students one-on-one and tailor instruction to the student’s needs. stated, from contact with the school and with mother, and from reviewing progress reports, . She was also told, by a provider at , that, is the head . She also teaches . She was teacher for in the 2016-2017 school year. She described the school as a private, accredited school . The school uses a one-on-one model. The student is in the classroom with a teacher and the teacher’s approach is as individualized as possible to the student.

. Approximately 90% of the students have IEP’s and the curriculum follows the New York State Common Core standards. There is daily correspondence between the teachers and the parents. The percentage of students who continue on to college is in the upper 90% range. testified that . She explained the methods by which have been addressed. She also explained the benefits of the close relationship between the teachers and their students. According to , made progress in the 2016-2017 school year. , was not aware of mother. . She testified that received services through early intervention and through the Committee on Special Education. . believes that the last evaluation conducted by the DOE was in 2011. She explained that she participated in a CSE meeting for the 2013-2014 school year, stated that there was no CSE meeting held in preparation for the 2014-2015 school year, . participated in a CSE meeting for the 2015-2016 school year, , by telephone, since she only received two days’ notice of the meeting.

said that she believes she was notified of a CSE meeting for the 2016-2017 school year two days prior to the meeting. She informed the CSE, in , that she could not participate in the meeting and provided other available dates. She did not receive any further information regarding a meeting from the DOE. testified that she was not advised of her right to request a due process hearing during the course of those school years. explained that and she did not know what would happen next. That was when she contacted a lawyer and learned of her rights. (T. 67-73)

In September 2016, obtained a private evaluation for from because

Agreed with the findings and recommendations of , which were contained in her report. notified the DOE that she would be enrolling in the and seeking funding. She explained that stated that it was the right school for him. (T. 74-79; Parent’s Exhibit K)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C.

§§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

A board of education may be required to reimburse parents for their expenditures for private educational services, obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington

v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The DOE has conceded its failure to offer a FAPE to for the 2015-2016 and 2016-2017 school years. For the reasons set forth below, the DOE has failed to support its position that the FAPE claims related to the 2013-2014 and 2014-2015 school years are time-barred and, has also failed, in the alternative, to assert that a FAPE was offered in those years.

Therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parent’s case.

The Parent has the burden of establishing the appropriateness of the program they have provided to (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29, Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363) A parent’s failure to select a program approved by the state, in favor of an unapproved option, is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])

I find that the unilateral placement by the Parent met needs for the 2016-2017 school year. It has been persuasively established by and , as the testimony cited herein documents, that placement at was appropriate. The testimony provided by the witnesses strongly affirms the appropriateness of the program. The program at was reasonably calculated to allow to make meaningful progress and to address his individual needs. In fact, made meaningful progress through his participation in the program. The one-on-one model and small, highly individualized and supportive environment provided opportunities for the tailoring of material and strategies to meet individual needs.

The DOE offered no testimony or other evidence to challenge the appropriateness of the program. I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.

Finally, the DOE has not offered any equitable consideration that would preclude an order in favor of the Parent. The record reflects the Parent’s continuous efforts to cooperate with the DOE. The DOE failed in its obligations to The Parent has asserted claims regarding the 2013-2014, 2014-2015, 2015-2016 school years as well. The DOE challenged those claims related to the 2013-2014 and 2014-2015 school years on the basis that they were time-barred by the statute of limitations. The Parent argued that the facts supported the application of an exception to the two-year statute of limitations. As noted above, the DOE failed to offer any support for its argument, in part, by choosing to forego the agreed upon opportunity to submit a post-hearing brief.

The following is the regulatory language regarding this issue:

8 NYCRR 200.5 (j) Impartial due process hearings.

(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. [Emphasis added]

The Parent “knew or should have known about the alleged action that forms the basis of the complaint.” The Parent was aware of the actions of the DOE, if not the legal requirements or consequences related to them, at the time they occurred. However, one of the exceptions to the two-year requirement has been supported by the record in this case. The Parent testified with regard to the DOE’s failure to provide her with, or, conversely, the DOE’s “withholding of,” information that was required to be provided to her. The following is the regulatory language regarding this issue:

8 NYCRR 200.5 (f) Procedural safeguards notice.

(1) A school district must use the procedural safeguards notice prescribed by the Commissioner of Education.

(2) The school district must ensure that the procedural safeguards notice is provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. If the native language or other mode of communication of the parent is not a written language, the school district shall take steps to ensure that the notice is translated orally or by other means to the parent in his or her native language or other mode of communication; that the parent understands the content of the notice; and that there is written evidence that the requirements of this section have been met.

(3) A copy of such notice must be given to the parents of a student with a disability, at a minimum one time per year and also:

(i) upon initial referral or parental request for evaluation; (ii) upon the first filing of a due process complaint notice to request mediation or an impartial hearing as described in subdivisions (h) and (j) of this section; (iii) upon request by a parent; (iv) upon a decision to impose a removal that constitutes a disciplinary change in placement pursuant to section

201.2(e) of this Title; and (v) upon first receipt of a State complaint pursuant to section

200.5(l) of this Part.

(4) A school district may place a current copy of the procedural safeguards notice on its Internet website if such website exists.

(5) A parent of a student with a disability may elect to receive the procedural safeguards notice by an electronic mail (e-mail) communication if the school district makes such an option available. [Emphasis added]

The Parent provided sworn testimony that she did not receive a copy of the required

Procedural Safeguards Notice. This testimony was not challenged or rebutted in any way. The DOE offered no evidence that it was provided to the Parent at any time. There is no basis on which to diminish, disregard, or otherwise reject the Parent’s contention. It must be concluded that the DOE failed to provide her with this document that was “required to be provided.” This is the basis for the triggering of the exception to the two-year statute of limitations. Once the DOE made the determination to assert such a procedural claim, it would be expected to be prepared with evidence to negate the application of an exception. However, the DOE chose not to support its position. The following is the relevant portion of the Procedural Safeguards Notice that the DOE is required to provide, by order of the New York State Commissioner of Education: New York State Education Department

PROCEDURAL SAFEGUARDS NOTICE

July 2017

Rights for Parents of Children with Disabilities, Ages 3-21

General

You or the school district may file a due process complaint on any matter relating to a proposal or a refusal to initiate or change the identification, evaluation or educational placement of your child, or the provision of FAPE to your child.

The due process complaint must allege a violation that happened not more than two years before you or the school district knew or should have known about the alleged action that forms the basis of the due process complaint. The above timeline does not apply to you if you could not file a due process complaint within the timeline because:

1. the school district specifically misrepresented that it had resolved the issues identified in the complaint; or

2. the school district withheld information from you that it was required to provide you under Part B of IDEA.

Information for parents

The school district must inform you of any free or low-cost legal and other relevant services available in the area if you request the information, or if you or the school district file a due process complaint.

If the DOE had provided the Parent with this required notice, the Parent would have been advised of her right to file a due process complaint, she would have been aware of the two-year period, and could have been held responsible for compliance with it. However, since she was not informed, her claims regarding the 2013-2014 and 2014-2015 school years fall under the exception provided in the regulation.

Although the claims have been found not to be time-barred, and the DOE has offered nothing to establish that a FAPE was offered to during those school years, a remedy is not automatic. It has been requested, in part, that, as a remedy for the DOE’s failure to provide a FAPE to for all school years, that the DOE provide compensatory education in the form of services of at an enhanced rate of There has been no explanation or foundation established for the number of hours requested. In addition, the record does not offer sufficient evidence to support the provision of those services.

testimony that the number of hours would likely have had, had he received those services, would have far exceeded , does not render that number valid. The only evidence presented with regard to need for services throughout the school years, was contained in one of recommendations, that: AS has not been provided appropriate service for his needs in the past, requires should receive . Additionally, needs services needs have not previously been addressed, services should be provided on a year round basis until he graduates

In her evaluation, listed the “Sources of Data” she reviewed. Included in those records were a “ Evaluation,” dated May 20, 2009, although its content was not specifically referred to and it was not provided as evidence. It has not been established what, if any, Services should have received.

evaluation states that had received services under early intervention and during and that, according to the Parent, the services were discontinued . There was no evidence or testimony that the Parent disagreed with the discontinuance or has since requested services or a evaluation. The record does reflect that the Parent requested, and the DOE conducted, a evaluation in May 2009. The Parent was aware of the process by which to make such a request.

evaluation described . There was some variability However, most areas were noted she stated, in part, that: This assessment indicates that may require services. However, it is not a sufficient basis on which to find that should have been receiving a certain amount of services previously, or that he is entitled to of compensatory services. While was not aware of whether has a , and that is not her professional area of expertise, she did not offer any testimony that would lend support to a need for services. She testified that . There was no evidence that his needs require services. In addition, the Parent did not address any need for such services or otherwise confirm that she is, in fact, of the opinion that he requires those services.

The Parent is seeking reimbursement for the privately obtained evaluation conducted by in September 2016. The evaluation report is dated September 23, 2016, six days prior to the Parent’s letter to the DOE, dated September 29, 2016. Among the records reviewed by was a “Evaluation,” dated May 20, 2015. The content of that document was not specifically referred to in her evaluation and it was not provided as evidence. In the Parent’s letter to the DOE, dated September 29, 2016, she stated that, “The CSE has not completed an evaluation of since 2011.”

This was reiterated in the Parent’s due process hearing request. It appears that a evaluation, dated May 20, 2015, was provided to . The record does not reflect that the Parent obtained any independent evaluations prior to going to . One might assume, therefore, that the 2015 evaluation reviewed by would have been conducted by the DOE. While it is recognized that the DOE could have addressed this, yet failed to, reference to the evaluation and the Parent’s position that there had not been an evaluation since 2011, is irreconcilable. This should have been addressed by the Parent. The Parent could not have obtained the evaluation based on her disagreement with a May 2015 evaluation by the DOE, since the Parent maintains that there was no evaluation conducted. An Independent Educational Evaluation (“IEE”) is not only reimbursable if it is sought in response to a CSE-obtained evaluation with which a parent disagrees, but can also be reimbursable under the circumstances of a CSE failing to ever conduct an evaluation, which is, in fact, a worse situation. Under the unique circumstances of this case, the Parent is entitled to reimbursement.

The IDEA and state and federal regulations guarantee parents the right to obtain an IEE (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]). IEE’s are defined by state regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 200.1[z]; see 34 CFR 300.502[a][3][i]).

In addition to having an IEE considered by the CSE, parents have the right to have one IEE conducted at public expense if the parent disagrees with an evaluation conducted by the district (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]). The United States Education Department's Office of Special Education Programs has stated that it would be consistent with federal regulation to allow reimbursement for an IEE when the district failed to provide an evaluation in compliance with the IDEA (see Letter to Anonymous, 55 IDELR 106 [OSEP 2010]). State regulations require school districts to complete the individual evaluation of a student within 60 calendar days from the date of receipt of parental consent to evaluate the student (8 NYCRR 200.4[b][1]; see 20 U.S.C. § 1414[a][1][C][i][I]; 34 C.F.R. § 300.301[c][1][i]). There is no actual evidence that the CSE evaluated within the prescribed time limits, in accordance with the IDEA's procedural requirements (20 U.S.C. § 1414[a][2][B][ii]; 34 CFR 300.303[b][2]; 8 NYCRR

200.4[b][4]). The Parent’s request for reimbursement of the cost of the IEE will not be denied based on a reference to an evaluation in May 2015 in report, without any indication that, in fact, the DOE conducted an evaluation in May 2015. It is possibly a completely typographical error, or an evaluation not conducted by the DOE. Since the DOE has failed to provide a FAPE to , has in no way asserted that it conducted an evaluation, and has not challenged or objected to the Parent’s request for reimbursement of the IEE, no facts, unless clearly established in the record, will be assumed that are prejudicial to the Parent. The totality of the circumstances warrant an order of reimbursement to the Parent.

ORDER

The DOE failed to offer a FAPE to for the 2013-2014, 2014-2015, 2015-2016, and 2016-2017 school years. The Parent’s unilateral placement of at was appropriate for the 2016-2017 school year. There are no equitable considerations which would reduce or bar an award of reimbursement. The DOE shall fund the full cost of tuition and fees for enrollment at for the 2016-2017 school year. The Parent shall be reimbursed for any payments already made immediately upon the Parent’s submission of proof of payment to the DOE. The DOE shall directly pay to any balance due immediately upon the Parent’s submission of an invoice to the DOE. The Parent’s request for reimbursement for the evaluation conducted by is granted. The DOE shall reimburse the Parent for the cost of the evaluation immediately upon the Parent’s submission of proof of payment to the DOE. The DOE is directed to immediately provide the Parent with the Procedural Safeguards Notice and any other required information. The Parent’s request for compensatory education in the form of services is denied. The DOE is directed to conduct a comprehensive evaluation of to determine if he requires services. If such evaluation is not conducted within 45 days of this Order, the DOE shall fund a private evaluation obtained by the Parent. The CSE shall convene to discuss the results of the evaluation and to recommend the services, if any, to be provided.

PLEASE TAKE NOTICE

Within 30 days of the receipt of this decision, the parent and/or Board of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act. Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and forms for filing an appeal are included with this decision. Directions and forms can also be found on the Office of State Review website: www.sro.nysed.gov/ appeals.htm.

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 28, 2017

Attorney Parent

Attorney Parent

Mother Parent

Head (via telephone) Parent

(via telephone) Parent

CSE Representative Department of Education

DOCUMENTS ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Impartial Hearing Request, 5/5/17, 10 pages

B. Assessment, March 2013 2 pages

C. Patient Instructions, 3/11/13 3 pages

D. Student Report Card, 2/16/16, 1 page

E. Court Appearance Ticket, 3/2/16 2 pages

F. Report, 3/2/16, 11 pages

G. Notice, 3/3/16, 8 pages

H. Profile Report, 3/8/16, 3 pages

I. Student Report Card, 3/8/16, 1 page

J. Results of, 3/14/16 1 page

K. Evaluation, 9/23/16 17 pages

L. , 9/29/16 2 pages

M. Program Description, 10/25/16, 2 pages

N. , 8/21/17 2 pages

O. Determination, 9/12/17 1 page

P. Apology Letter, undated, 2 pages

Q. Report to Families, undated, 3 pages