New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 166289

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: June 19, 2017

July 14, 2017

Actual Record Closed Date: August 8, 2017

Hearing Officer: Audrey Daniel, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 19, 2017

District Representative — DOE

For the Guardian: — DOE

Guardian — DOE

Intern — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 14, 2017

DOE Per Session Litigator — DOE

For the Guardian: — DOE

Guardian — DOE

Intern — DOE

Former Intern (Via Telephone) — DOE

DOE

(Via Telephone) — DOE

(Via Telephone) — DOE

(Via Telephone) — DOE

I. Introduction — DOE

On May 24, 2017, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of ("Student").

The due process request was filed on or about May 23, 2017, on behalf of Student by his guardian, (“Guardian”)1. A pre-hearing conference was held on June 14, 2017, and hearings were held on June 19, 2017 and July 14, 2017.

II. Background and Relevant Facts

Student was born on and is . He previously

lived in where he had an Individualized Education Program. When he moved to New York, the New York City Department of Education (“DOE”), the Committee on Special Education (“CSE”), after reviewing the evaluations, declined to classify Student as a child with a disability. Student did not enroll in a school and has not been attending school since November of 2016, despite Parent’s continued assertions that supports were necessary, allegations supported by private evaluations. (Exh. A). Parent requests both placement in a for the 2017-2018 school year, and an additional year of services, as compensatory services, for the DOE’s failure to provide a Free and Appropriate Public Education (“FAPE”) for the 2016-2017 school year, as well as payment for a private evaluation. (Exh. A.)

According to the due process complaint, Student has been diagnosed with , although he was twice denied identification as a student with a disability. (Exh. A).

at the first CSE meeting on November 18, 2016, where his from a previous testified as to his need for services.

After the CSE failed to offer services at the first meeting, Student and Parent obtained a private evaluation from which also indicated a need for services based on the diagnosis of . The evaluation recommended a . A second CSE meeting was held on May 12, 2017. Once again, the CSE found Student ineligible for special education services.

The Department of Education’s Case

The New York City Department of Education (“DOE”) presented no witnesses at trial and submitted no evidence. On the first hearing day, the DOE representative conceded FAPE. (Tr. page 11). However, on the second day of hearing, the DOE initially objected to the concession of FAPE. After discussion, however, the DOE representative could not provide case law or any evidence in support of her argument that the DOE can reverse its determination they did not provide FAPE, and agreed that the FAPE concession should stand. (Tr. page 43). Additionally, no evidence was submitted in support of their position or in opposition to Guardian’s position. Even, assuming the DOE had been able to provide testimony on the second hearing day, it was not prepared to go forward, despite having almost a month between hearings to prepare.

(Exhibits I-III).

Guardian’s Case

Guardian’s first witness was , who was an Intern at , and worked on Student’s case. He applied on his behalf to . All New York State approved private schools, he reached out at to 20-30 schools, he sent out the evaluations. Many of the schools he applied to could not accept Student.

(Tr. pages 51-55).

On cross-examination, the witness testified that he only reached out to the schools on the list. Schools rejected Student on the basis that they no longer had programs, used only and only accepted girls. Most of the school only served students with . (Tr. pages 55-56).

The second witness was Dr. , who is a certified , and is employed by . She supervises fellows in their second year of residency. She supervised , who has since graduated and is working in Boston. He has an , and has . He was , and wrote the evaluation in Exh. C. He discussed the recommendations and diagnoses, and she agrees with them. (Tr. pages 67-77).

The third witness was . He is a at

, , which is a

. He was part of the team that interviewed Student for admission during the Summer of 2013. Student attended until November of 2015. His interactions including being his teacher and advisor. They met weekly, and . He participated in an IEP meeting for Student by telephone, in November of 2016. Student had difficulties with because . He discussed this at the IEP meeting. Student was in a class and the largest classes is . At the meeting, the witness also discussed issues, as .

. He told the IEP team that Student

had more needs than was available at , including the need for . He told the team that Student needed more support than available at as there is no , which he needed and be successful in class. (Tr. pages 77-91).

On cross-examination, the witness testified that , but the witness had concerns about .

.

(Tr. pages 91-98).

The next witness was , at

, which is a ; many of the students are

. They are ages . Academically, they range from to . The school is accredited by New York State as a for students with disabilities. Classifications of Students at the school are

.

. Parent’s and caregivers generally find the school, and when they come up, the school asks for clinical reports, and ask for releases to talk to clinicians and teachers. Then the student would come up for an interview and tour, and do some academic testing and meet the clinical staff. Then the admission committee meets. They meet with the and ; there is a team of people that he will talk to in an effort to make sure they have needed supports in place. They look at transcripts, medications, and progress reports. The whole program is focused on . Students are always with staff. There are on staff.

They meet with students , but they

. is in the moment. This helps them access curriculum as they are receiving the supports in the classroom. They work on . With children have , there is staff there to clarify and support so . is provided by a . They meet every , but they clinical staff talks to in an ongoing process.

There is constant contact between all the staff. The participates in the weekly meeting. In terms of , they provide supports, and there are , and there is .

.

After Student went through the admissions process, they determined that it was an appropriate placement and accepted him. There is room in the programs. They get referrals from school districts. (Tr. pages 91-98).

Cross-examination revealed that they look at the circumstances of the child regarding . He did not review the case. (Tr. pages

114, 118).

The final witness was , who is Student’s . He knows

Student when

.

. .

. He described Student as a who

. . He suffers from , and he

has difficulty with .

. His mother demanded that Student leave

during the break of November 2016, so he never went back. Student returned to New York in March of 2016.

. To enroll him in his school, he

went to to find out how to get Student help in November of 2016, after they sought assistance from . He felt Student needed an IEP, because he always had an IEP, and he knew what Student’s needs were. When they went to the CSE in November, the witness was appointed the surrogate parent, and he brought the evaluations, including the evaluation from 2013. They moved quickly to conduct an IEP meeting. The DOE did some evaluations and Student was brought to the evaluation by Witness. A meeting was held in November of 2016, and was attended by the witness, the attorney, and Student. It was also attended by some DOE personnel. participated by telephone, and discussed Student’s need for more support. ,a who works with also participated. He thought they were not taking the meeting seriously. They recommended absolutely no services, and the witness asked for more evaluations. They said no and would not provide anything. . He took him to for additional evaluations. The witness had to take him, when he had to take himself, he “ ”. The witness paid for the evaluation. When he received the results of the evaluation, when he went for his “feedback” session. The diagnosis was . They discussed the need for a . They shared the report with the CSE, roughly in March. Earlier in the process, the CSE was very responsive, but this time it was much slower. They eventually had another meeting. The second meeting was not attended by Student, because the first one was too upsetting. Before the second meeting, they had recovered the former IEP’s and turned them over to the CSE by email. At the second meeting, they acknowledge the diagnosis, but did not offer an IEP. They mentioned a transfer school, but has offered no special education school or supports. Regarding the transfer school, the said she cannot locate a transfer school.

They began the process of locating appropriate schools. They found that there were two schools. They went to . He went to the school with Student, and provided all the evaluations. They met with a number of people. Student and him discussed the appropriateness of the school, as the population was similar, and there was a and . There was a lot that he felt great about it after he left the school. Student was in agreement regarding the appropriateness and he felt that he would help him. They let him know later that they would accept him. He has had follow up communications with . (Tr. pages

122-159).

On cross-examination, he testified that they offered Student no other services.

(Tr. page 159-168).

FINDINGS OF FACT AND DECISION

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and Guardians of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to

(a) whether the school district complied with the procedures set forth in IDEA; and (b)

whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C.

§ 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"(Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In the recently decided Endrew F. Douglas County School District RE-1, No. 15-827, 2017 WL 1066260, the Supreme Court held that in or order “to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving Guardians" (Walczak, 142 F.3d at 132, quoting Tucker v.

Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379;Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington

Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15).

The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v.

Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192).

The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v.

Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y.2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)), and provides for the use of appropriate special education services (see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).

BURDEN OF PROOF

The burden of proof is on the DOE to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the Guardian must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal

No. 11-091.

On the first day of hearing, June 19, 2017, the DOE conceded FAPE, “the District’s position with this case is that after speaking with the party, the psychologists, the social workers, and the teachers who facilitated the IEP meeting for [Student], we’re going to concede our Prong I on this matter and we will stipulate to Prong III as well.”

(Tr. page 11).

However, a few days prior to the second day of hearing, the DOE attempted first to change their position and FAPE, and asked for an adjournment as they had no witnesses available on the hearing date to provide testimony to support their position that FAPE had indeed been provided2. (Exhibits I-III). However, they provided no reason to overturn their original assertions, although they had the opportunity both at hearing and in their closing brief to provide legal arguments in support of their request to change their position on FAPE.

Further, at hearing, the DOE requested that the “Prong I” be reopened because the original hearing representative represented the DOE’s concession of FAPE in error.

However, when asked to provide legal support for their contention, none was provided.

2

Additionally, the DOE challenged the use of affidavits in lieu of direct testimony as the affidavits were not provided within five days of the hearing date. However, my direction, on the first day of hearing, was to provide five days if possible. Additionally, as no notice of appearance was submitted by Ms. , Guardian sent some, but not all, of the affidavits, to the wrong party. Guardian’s counsel agreed to provide direct testimony from the witnesses.

Further, during the hearing, the second hearing representative stated, after conferring with her supervisor, “we intend to respect whatever your position is” (Tr. page 43). Although the DOE did not have the opportunity to present witnesses, and, even if they had had that opportunity, had requested an adjournment of the July 14, 2017 hearing to prepare for the case, despite the fact that there was almost one month between hearings, they did not attempt to introduce evidence in support of their position. My position remains, that absent legal or evidentiary basis otherwise which was not provided, the concession remains effective.

Despite the concession of FAPE, the DOE attempts, in their brief, to argue that

"[E]ligibility for special education services under IDEA requires proof that a child's condition has adversely affected his or her academic performance." Maus v. Wappingers

Cent. Sch. Dist., 688 F. Supp. 2d 282, 294 (S.D.N.Y. 2010). More specifically they argue:

"[F]ederal and New York State regulations promulgated under IDEA require proof of an adverse impact on 'educational performance.'” Courts in this Circuit applying New York's

IDEA-related regulations have uniformly interpreted this clause to require proof of an adverse impact on academic performance, as opposed to social development or integration…No court applying New York's implementing regulations has held that a student who has excelled academically nonetheless has a right to special education services under IDEA." Based on this standard, does not fit the profile of a student whose disability impedes his ability to make academic progress.” (Exh. V, pages 4 and 5). The DOE sent out Prior Written Notice on or about May 15, 2017. (Exh. B). In this notice of recommendation, it states that “at the IEP meeting held on 11/18/16, to which you were invited, the assessments and materials identified below were reviewed and discussed and it was determined that your child does not meet the eligibility criteria for an educational disability.”, and refers to assessments dated 2017. It’s reason for failure to classify was that , and that

, and

. (Exh. B-1).

While courts generally defer to the expertise of school authorities in determining eligibility for special education services, see, e.g., Doe v. Columbia-Brazoria Independent School District (5th Cir 2017), there is an abundance of evidence in support of classification in this case. An evaluation conducted by in March of 2017 provided diagnoses of . (Exh. C-14). The evaluator recommended, among other things, a citing numerous reports of . (Exh. C-15). Further, Student’s previous school district had provided an IEP, a number of years old. (Exhibits J and K).

Guardian cites 8 NYCRR sec. 200.1 in his argument that Student could be classified as either of a . 8 NYCRR 200.1. Case law supports the availability of special education services in this case. “The fact that a student with an emotional disturbance receives good grades will not in itself disqualify her from receiving IDEA services. The eligibility team also should consider factors such as the student's attendance record, her ability to earn required credits, and any changes in her grades.”. M.M. and I.F. v. New Y ork City D ep't of Educ., 63 IDELR 156 (S.D.N.Y. 2014). Further, while academic progress may indicate a child's need for special education services, academic progress alone is not the determinative factor. Districts should draw upon information from a variety of sources including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the child's physical condition, social or cultural background, and adaptive behavior and ensure that information obtained from all of these sources is documented and carefully considered.in order to make an eligibility determination . 34 CFR 300.306(c)(1) and (2).

The DOE’s argument that Student should not be found eligible for special education services appears to rely solely on the evaluation conducted on November 11, 2016 (Exh. D). (Exh. V). A number of other factors should have been considered including the participation of Student’s former teachers, the earlier IEP and other evaluations, all submitted to the IEP team. (Exh. B). In addition to the evaluation, witness testimony indicated the need for special education services. (See, e.g., Tr. pages 84 and 90). In light of the failure of the CSE to consider this other information and the testimony of Guardian’s witnesses, I find, even if the concession of FAPE was not valid, that the DOE has not met it’s burden of proof and that Student was denied a Free and Appropriate Public Education.

THE APPROPRIATENESS OF THE PRIVATE SCHOOL

Once it is determined that the Student has not been provided a FAPE, under New York law, the burden of proof shifts to the parents to show that their unilateral private placement was appropriate. A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Schaffer, 546 U.S. at 58; N.Y. Educ. L.

§ 4404(1)(c)). Under the IDEA, parents who unilaterally place their child in a private school do so at their financial risk. Individuals with Disabilities Education Act, §§612(a)(1)(A), 614(d).

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 parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington

v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). 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 (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).

"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 offered the student a FAPE. (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR

300.148).

The appropriateness of the parents’ choice turns on whether the chosen school “is reasonably calculated to enable the child to receive educational benefits.” Gagliardo v.

Arlington Central School District, 489 F.3d 105, 112. A private placement meeting this standard is “one that is ‘likely to produce progress, not regression.’” Id. (quoting Walczak, 142 F.3d at 130). The parents’ choice must be “appropriate,” “not . . . perfect.”

Frank G. v. Bd. of Educ. of Hyde Park , 459 F.3d 356, 364 (2d Cir. 2006). An appropriate private placement “need not meet state education standards or requirements.” Id. (citing Carter, 510 U.S. at 14). Ultimately, the standard to be applied is to determine whether “[the] unilateral private placement . . . provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo, 489 F.3d at 115.

The Second Circuit in Frank G, 459 F.3d at 364-5 held: “No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” the private school must provide an educational program which meets the student's special education needs (see Hardison v. Bd. of Educ., 773 F.3d 372, 386 [2d Cir. 2014]; Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp. 2d at

419).

The question of whether the was an appropriate unilateral placement is principally determined by whether the combined program provided "educational instruction specially designed to meet the unique needs of [the student]" (Rowley, 458 U.S. at 188-89; see Gagliardo, 489 F.3d at 115; Frank G., 459. As discussed below, the evidence was sufficient to identify the student's unique individual needs and to satisfy the parent's burden to establish the appropriateness of the student's unilateral placement at . Application of a Student with a Disability, Appeal No. 14-003.

Even assuming the DOE’s concession of FAPE and the stipulation of the balancing of the equities is in Guardian’s favor stands, the hearing representative questions the appropriateness of to address Student’s needs in that the school does not meet the requirement of Least Restrictive Environment under the law. The DOE argues that the is not an appropriate placement by arguing that the restrictiveness of a parent’s unilateral placement is relevant in determining whether the parent is entitled to tuition reimbursement under the IDEA. M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2dCir. 2000), M.S. v. Fairfax

County Sch. Bd., 553 F.3d 315, 327 (4th Cir. 2009). “The courts have noted that “even in cases in which mainstreaming is not a feasible alternative, the statutory preference for a least restrictive placement applies.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998). In this case, is too restrictive. Based on both the DOE completed evaluation and the privately completed evaluations, is a student who is . (Parent Exh. G.) The supports that will effectively address his needs are . (Tr. 88.) A restrictive special education setting for those needs alone is not appropriate.

. A special education setting is too restrictive for this student given his academic needs.” (Exh. V, pages 7-8). Even assuming this argument was correct, the DOE did not provide any placement for Student, including a transfer school.

On the other hand, Guardian argues that is an appropriate placement. The New York State Education Department has approved to provide to students classified with and . (Tr. pages 100-101). Testimony and evidence indicates the need for a . The March 2017 evaluation recommends “ ” (Exh. C-15). The of the testified that, after meeting with Student and Guardian and reviewing evaluations and documents, he believed this was an appropriate setting for Student3. (Tr. page 118). He testified as to the supports at the school that were available to address Student’s needs. He testified that the program is built around , which is an issue diagnosed during the evaluation process, including . (Tr. pages

104-5). They also offer , as well as

. (Tr. page 107).

. (Tr. page 101). The acceptance letter indicates that Student “

. (Exh. M).

Guardian also participated in the admissions process and believed the school to be appropriate. He testified first that a was the only appropriate way he could get an education. (Tr. page 138). They went through an exhaustive list of possible schools with , and found only two schools that would begin the process for admission. (Tr. pages 53 and 154). After going to the school, both Student and Guardian believed it was an appropriate placement because there were students comparable to Student, and they were prepared to provide appropriate and meaningful support. (Tr. pages 156-7).

The DOE contends is too restrictive. Although they argued at hearing that they should have had the opportunity to put on rebuttal witnesses after an opportunity to review the transcript (Tr. page 174), they were well aware that

Guardian was seeking prospective tuition at a (Exh. A), and had ample time to have witnesses testify at the hearing. The DOE also contends that Guardian approached the process with a in mind, and was not amenable to other suggestions. (Exh. V-9). Again, the DOE relies solely on the test scores that indicate and that . (Exh. V-8). However, there is nothing in the record that indicates the DOE made other suggestions. Testimony from a teacher at his previous school, in addition to the testimony from the Mr. , as well as recommendations in the evaluation shows that Student needs a environment. Student needed (Tr. pages 83-5), and needed more support than his previous school, also a , could offer. (Tr. page 89).

The testimony and evidence indicates both that due to his pervasive needs, a is appropriate for Student and that is an appropriate placement to address his needs.

THE BALANCING OF THE EQUITIES

The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]

[identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]). The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to provide adequate notice of the student's removal from the public school system, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see L.K.

v. Dep't of Educ. of the City of New York, 2011 WL 127063, at *12 [E.D.N.Y. Jan. 13,

2011]; S.W. v. New York City Dep't of Educ., 646 F. Supp.2d 346, 362-64 [S.D.N.Y.

2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y.

Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y.

2005], aff'd, 192 Fed. App'x 62 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch.

Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]).

Once again, the DOE initially conceded that there are no issues regarding

Guardian’s conduct regarding “Prong III” and thus conceded that there are no actions on the part of the Guardian in his request for relief. In fact, he stipulated that Guardian “did not thwart the DOE’s effort in creating, or the lack of the creation of the IEP” and the DOE rested on the first day of hear (Tr. page 11). However, as discussed above, the DOE changed its position immediately before the second day of hearing, and argued in their brief that the balancing of the equities is not in Guardian’s favor. The DOE contends that that the Guardian failed to cooperate with the DOE in providing Student a FAPE. It contends that the Guardian never intended to consider a placement not in nature, as shown by the was applying to only on Student’s behalf prior to May of 2017. (Exh. V, pages 7-8). Additionally, they claim that Guardian and his counsel delayed the second initial evaluation, and that Counsel explicitly instructed Guardian to delay the process and that Guardian had been advised more than once to seek assistance from other agencies. (Exh. V, pages 8-9). It refers to Exhibit H, which is a series of emails between the CSE and Guardian’s counsel in support of its argument. However, in the due process complaint, Counsel contends that the CSE claimed it did not have enough information to support a classification of or and refused the request to provide assessment to provide the team with any additional information to determine Student’s educational needs. (Exh A-3).

The record is clear, however, that Guardian was willing to submit to a second social history and provided additional documentation, including an addi tional evaluation and records from Student’s previous school. While, it is true that there were recommendations to consult other agencies (Exh. C), the DOE does not explain why the failure to do so absolves them of responsibility as the DOE failed to provide FAPE. Whether or not Guardian has contacted other agencies is unknown, but it is clear from the results of the first CSE meeting in November that the DOE was willing to provide any special education services to Student. Had the DOE offered other alternatives, the balancing of the equities might be in their favor, however, since no placement, other than a nonexistent transfer school was offered, Guardian had the right to consider schools based on the recommendations of professionals working with Student.

As such, I find that the balancing of the equities is in Guardian’s favor and Student is entitled to funding for the unilateral placement at .

COMPENSATORY SERVICES

The Supreme Court has held that “equitable considerations are relevant in fashioning relief in any IDEA action. See Burlington, 471 U.S. at 374; see also, Doe, 790 F.3d at 454. Further, although “[a]n award of damages in available… a court may award various forms of retroactive and prospective relief, including reimbursement of tuition, compensatory education and other declaratory and injunctive relief. Doe v. E. Lyme Bd.

Of

Educ. 790 F.3d 440, 454 (2d Cir. 2015) (citing Burlington, 471 U.S. at 369; Polera v. Bd.

of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002)).

Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citing Burlington, 471 U

.S. at 369; Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 48

6 (2d Cir. 2002)). Compensatory education is an equitable remedy that provides in-kind special education and other related services for denials of a free and appropriate public education (FAPE). Compensatory education is generally defined as educational services above and beyond that normally due a student under his state's education law. Wenger v.

Canastota, 979 F. Supp 147, 151 (NDNY 1997); C.G. v. Five Towns Community School District, 513 F.3rd 279 (290) (1st Cir. 2008). Such services are compensation for the education a student would have received “during the periods when his IEP was so inappropriate that he was effectually denied a FAPE” Reid v. District of Columbia, 401 F.3d 516, 525 (DC Cir. 2005). “[T]he ultimate award [of compensatory education] 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 ex rel. Reid v. D.C., 401 F.3d516, 524 (D.C.Cir.2005), cited in E.

Lyme Bd. of Educ., 790 F.3d at 457. The Second Circuit concluded, “Whatever its precise form, the remedy must be ‘appropriate in light of the purpose of the Act.’ E.

Lyme Bd. of Educ., 790 F.3d at 457 (quoting Sch. Comm. of Town of Burlington, Mass.

v. Dep't of Educ. of Mass.,471 U.S. 359, 369 (1985)); see also, Burr by Burr v.

Ambach,863 F.2d 1071, 1078(2d Cir.1988) (“if, in this case, we do not allow an award of compensatory education, then [the student's] right to an education between the ages of three and twenty-one is illusory.”) Where a school system fails to provide special education or related services to a disabled student, the student is entitled to compensatory education, "i.e., replacement of educational services the child should have received in the first place." Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005).

, the determination of whether he is entitled to compensatory education services is more difficult. Generally, compensatory services are available to a student over the age of 21 where there has been a “gross violation” of FAPE. P. v. Newington Bd. of Educ., 512 F. Supp. 2d 89 (D. Conn. 2007), aff’d on other grounds, 546 F.3d 111 (2d Cir. 2008). Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction (20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202(1), 4401(1), 4402(5)). It may be awarded 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 (Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr by Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988), Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 (2d Cir. 2008); French v. New York State Dep't of Educ., 476 Fed. App'x 468, 471-

72 [2d Cir. 2011]; see also Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]).

The DOE did not address the issues regarding compensatory services at the hearing or in their brief other than to request that Guardian’s requested relief be denied.

(Exh. V, page 9). It is undisputed that the DOE did not offer Student any placement or services other than a “transfer school”. Guardian understood a transfer school to be a school for children that are under credited, however, no appropriate school could be located. (Tr. pages 152-3). As a result, Student did not attend school for the entirety of the 2016-2017 school year.

Guardian argues that Student is entitled to compensatory education . In support of his argument, he cites Burr by Burr v. Ambach, 863 F.2d 1071 (2d Cir.

1988) as closely similar to the facts in this case. Although, Burr by Burr involved the failure to comply with statutory stay-put requirements, the student in this case was provided compensatory education where, as here, a student was left without any school placement. In fact, from November of 2016 to present, Student has not been attending school at all. The ultimate award of compensatory services must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school should have provided in the first place. Doe, at 457. It is clear that the failure to provide Student with any education whatsoever is a gross violation. The question remains as to whether not providing a year of services qualifies as a substantial amount of time. In Burr, the loss of services was only for a short period of time, but was the result of failure to provide stay put services. Here, the failure to provide services was as a result of the DOE’s failure to provide services for the 2016- 2017 school year. However, this was the only opportunity to provide services, as Student was provided services prior to 2016 through private funding. What is unclear from the record is the amount of time necessary for .

The latest transcript provided at the hearing was the 2013-2015 transcript from where .

(see, e.g., J.B. v. Killingly Bd. of Educ., 990 F. Supp. 57 (D.

Conn. 1997)). Therefore, compensatory services or services provided under the 2017- 2018 IEP will end when . In light of the award of a program for this year, it may be possible for . Student is required, for the 2017-2018 school year to

.

As the analysis above shows, the appropriate placement should have been the supports and services provided at a , thus providing Student with up to school year to compensate for the time he was not provided with any services at all. The DOE’s obligation to provide services under the IEP or compensatory education services will end when or the completion of the 2018-2019 school year, whichever comes first.

PAYMENT FOR EVALUATIONS

Lastly, Guardian requests reimbursement for the cost of Student’s evaluation at the upon his submission of proof of payment. (Exh. IV, page 11). The DOE does not contest this request either in their brief or during the hearing, although it was initially requested in the May 23, 2017 Impartial Hearing Request. (Exh.

A). Guardian’s arguments are twofold. First, he argues that the Child Find regulations mandates children be assess in all areas of suspected disability. 8 NYCRR sec.

200.4(b)(1)(v). (Exh. IV, page 5). Secondly, he argues that where a parent agrees with the district’s evaluations, he has the right to an independent educational evaluation at public expense. 8 NYCRR sec. 200.5(g)(1). (Exh. IV, page 5). The DOE admittedly failed to evaluate Student in all areas of concern. (Exh. D), and additional assessments were requested by Guardian’s counsel. (Tr. page 140). The DOE did not comply with

Guardian’s request, and therefore, Guardian is entitled to reimbursement for the private

evaluation.

ORDER

IT IS THEREFORE ORDERED THAT:

1. The New York City Department of Education failed to provide a Free and Appropriate Public Education to Student for the 2016-2017 school year.

2. The New York City Department of Education Committee on Special Education shall reconvene immediately classifying Student as a student with a disability and develop an Individualized Education Program for Student including funding/reimbursement of tuition and costs at and appropriate services for the 2017-2018 School Year for a program.

3. The New York City Department of Education shall provide compensatory education for and costs at or a similar state approved program. The New York City Department of Education’s obligation to fund this program will end upon or the completion of the 2018-2019 School Year, whichever occurs first.

.

4. The New York City Department of Education shall reimburse Guardian for the cost of the private evaluation from the within thirty days of receipt of a statement and proof of payment from

Guardian. Dated: August 23, 2017

AUDREY DANIEL, ESQ.

Impartial Hearing Officer AD:

PLEASE TAKE NOTICE

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

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

DOCUMENTATION ENTERED INTO THE RECORD

None

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Footnotes

[3] There was discussion on the record about Mr. ’s reluctance to discuss Student’s records without consent. However, he was clear about the appropriateness of the school to address Student’s needs.