New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 166427

Student’s Name:

Date of Birth:

District: I I

Hearing Requested By: Parent

Date of Hearing: February 20, 2018

Actual Record Closed Date: February 20, 2018

Hearing Officer: Michael Lambert, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 20, 2018

Attorney for Parent — Student

No One — DOE

INTRODUCTION AND PROCEDURAL HISTORY

The parent initiated the instant hearing by due process complaint dated June 10, 2017 (PE-A). Such due process complaint alleged that the Department of Education (“DOE”) failed to offer Student a free appropriate public education (FAPE) during the 2016-2017 school year by failing to develop an IEP or an IESP. This due process complaint was assigned IHRS . In terms of relief, the parents were seeking an Order directing the DOE to fund all during the period September 1, 2016 through June 30, 2017.

On September 15, 2017, the parent filed a second due process complaint (PE-B).

Such due process complaint alleged that the DOE failed to offer Student a FAPE during the 2017-2018 school year by, once again, failing to develop an IEP or an IESP. This due process complaint was assigned IHRS Case Number . In terms of relief, the parents were seeking an Order directing the DOE to fund all during the period September 5, 2017 through June 30, 2018.

The above 2 due process hearings were thereafter consolidated as IHRS Case

Number 164427.

This matter was scheduled for hearing on February 20, 2018. On February 16, 2018, the DOE representative, apparently in response to an inquiry by the Case Manager as to whether the February 20, 2018 hearing was going forward, sent an e-mail to the hearing officer requesting to participate in the hearing by telephone. The hearing officer responded by e-mail on that same date confirming the February 20, 2018 hearing and indicating that he expected the representatives for each of the parties to be physically present at the hearing, on time and prepared to present their evidence. Neither of the parties responded to that e-mail from the hearing officer.

The parent’s representative appeared on time on the scheduled date. The DOE’s representative did not. Nor did the DOE’s representative contact the hearing officer to explain the basis for her absence. The parent’s representative called the DOE representative from the hearing room at the number previously provided by the DOE representative, but the call went to voice mail. The parent’s representative was unable to leave a message because the mailbox was full. Based upon these facts, as well as the fact that this was the second time in an approximately two-week period that this particular

DOE representative failed to appear at a hearing notwithstanding this hearing officer’s direction to appear, the hearing proceeded in the absence of the DOE representative at approximately 2:20, which was 20 minutes after the scheduled start time.

THE HEARING EVIDENCE

The parent’s representative offered PE-A through PE-J, all of which were admitted into evidence. These documents established that, although has remained a classified child residing within the geographic boundaries of the DOE at all times relevant to this hearing, the DOE had not prepared an IEP or IESP for him since September 16, 2013 (PE-C).

In the absence of an IEP or IESP, the parent privately arranged for services during the 2016-2017 and 2017-2018 school years (PE-D through PE-I). It appears that the providers have not yet been paid and the parent is seeking funding from the DOE at the agency’s . The record was unclear as to whether related services were privately obtained by the parent during the two years at issue.

THE LEGAL STANDARDS

Pursuant to the IDEA, all children with disabilities are entitled to a “free appropriate public education” (“FAPE”) which must include “special education and related services” tailored to meet the unique needs of the child and be “reasonably calculated to enable the child to receive educational benefits.” Board o Education o the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 207 (1982); (20 U.S.C. § 1400[d][1][A]; Scha er v. Weast, 126 S. Ct. 528, 531 [2005]; Frank G. v. Board o Education, 459 F.3d 356, 371 [2nd Cir. 2006]). 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 Central School District, 427 F.3d 186, 192 [2nd Cir.

2005]). The Second Circuit Court of Appeals in Walczak v. Florida Union Free School District, 142 F.3d 119 (2nd Cir. 1998) held that the IDEA does not articulate any specific level of educational benefits that must be provided through an IEP. The Court citing to the Supreme Court ruling in Rowley reiterated that the IDEA does not require the states to maximize the potential of disabled children, but was meant “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside” (at pg. 192). The Second Circuit in Walczak also cited to a D.C. Circuit Court decision by now Supreme Court Justice Ruth Bader Ginsburg which held that because “public resources are not infinite,” federal law “does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child” (Lunce ord v. District o

Columbia Bd. o Educ., 745 F.2d 1577, 1583 [D.C. Cir. 1984]). The Third Circuit has held that an appropriate education under the IDEA is one that is “likely to produce progress, not regression” (Cypress-Fairbanks Indep. Sch. Dist. V. Michael F., 118 F.3d 245, 248 [3rd Cir. 1997]; cert denied 522 U.S. 1047 [1998]; Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli v. Carmel Central School District, 2007 WL 465211, at *15). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 [2nd Cir. 1989][citations omitted]; see Grim, 346 F.3d at 379). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Mil ord Board o Education, 103 F.3d 1114, 1120 [2nd Cir. 1997]; see Case No. 166427

Rowley, 458 U.S. at 192). The U.S. Supreme Court recently held that an appropriate IEP must be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances (Endrew F. v. Doughas County). Objective factors such as the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress and one important factor in determining educational benefit (Rowley, 458 U.S. at 207, n.28, 203-04; Walczak, 142 F.3d at 130;

Viola v. Arlington Central School District, 414 F. Supp. 2d 366, 382 [S.D.N.Y. 2006]).

The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; see Walczak, 142 F.3d at 132). The LRE is defined as “one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled” (Carlisle Area Sch. V. Scott P., 62 F.3d 520, 535 [3rd Cir. 1995]). The IDEA mandates that all students with disabilities may only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. 1412[a][5][A]; 34 CFR

300.550[a][2]; Oberti v. Bd. o Educ., 995 F.2d 1204, 1213 [3rd Cir. 1993]; Briggs v. Bd.

o Educ., 882 F.2d 688, 691 [2nd Cir. 1989]; Daniel R.R. v. State Bd. o Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]).

“The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Borough of Clementon Sch. Dist., 995 F.2d 1204

[3rd Cir. 1993]). The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes such as language and role modeling with nondisabled peers” (Greer v. Rome City Sch.

Dist., 950 F.2d 688 [11th Cir. 1991]).

The Second Circuit Court of Appeals adopted the Oberti LRE test in P. v.

Newington Board o Educ., 546 F.3d 111 (2nd Cir. 2008) requiring the consideration of whether the school has made reasonable efforts to accommodate the child in a regular classroom, the educational benefits to the child with appropriate supplementary aids and services versus a special class and the possible negative effects of the inclusion of the child on the education of the other students in the class.

Federal district courts have upheld the appropriateness of an IEP “given what the CSE knew about [the child] at the time it was developing the … IEP” E.S. v. Katonah- Lewisboro School District, 742 F.Supp.2d 417 (S.D.N.Y. 2010). In J.R. v. Board o

Education o the City o Rye School District, 345 F.Supp.2d 386 (S.D.N.Y. 2004), the Court held that in reviewing the appropriateness of an IEP that:

“This determination is necessarily prospective in nature; we therefore must not engage in Monday-morning quarterbacking guided by our knowledge of

S.R.’s subsequent progress at Eagle Hill, but rather consider the propriety of the IEP with respect to the likelihood that it would benefit S.R. at the time it was devised. See Antonaccio, 281 F.Supp.2d at 724 (noting that this issue has not yet been addressed by the Second Circuit and holding that ‘the …IEP…must be evaluated at the time the CSE devised the IEP, on June 15, 1999, and the IHO and SRO erred by regarding any information about [the student’s] education after that date’).”

The SRO has consistently considered the IEP “at the time it was formulated” to determine if it was reasonably calculated to enable the student to receive educational benefit (Application o a Student with a Disability, SRO Appeal Nos. 11-154, 09-034, 09-

013).

In terms of the available remedies in cases where a district has failed to meet its obligation to offer an educationally disabled child FAPE, IHO’s have substantial discretion. Since P. ex rel. Mr. and Mrs. P. v. Newington Bd. o Educ., 546 F.3d 111, 122 (2d Cir.2008), the courts of the Second Circuit have ceased to limit eligibility for Case No. 166427

“compensatory education” to those over 21. In P, the Second Circuit ruled that “compensatory education” can be awarded to an elementary school student. Further, even the “gross violation” requirement, which is applicable to a claim for compensatory education by someone over 21 is not clearly established in this Circuit to be applicable to a student under 21. That standard was not relied upon in P.

In S.A. ex rel. M.A.K. v. New York City Dep't o Educ., 12-CV-435 (RMM)

(MDG), 2014 WL 1311761 (E.D.N.Y. Mar. 30, 2014), the Court held:

The IDEA allows a hearing officer to fashion an “appropriate remedy, and ...

compensatory education is an available option ... to make up for denial of a [FAPE].” P. ex rel. Mr. and Mrs. P. v. Newington Bd. o Educ., 546 F.3d 111, 122 (2d Cir.2008) (affirming compensatory education award for elementary school student); see also Student X v. New York City Dep't o Educ., No. 07

CV 2316, 2008 WL 4890440, at *24 (E.D.N.Y. Oct. 30, 2008) (awarding compensatory education to student younger than twenty-one). Such an award serves “to compensate a student who was actually educated under an inadequate IEP” and “to catch-up the student to where he should have been absent the denial of a FAPE.” Brennan v. Regional Sch. Dist. No. 1 Bd. o Educ., 531 F.Supp.2d 245, 265 (D.Conn.2008). Before awarding compensatory education for a student older than twenty-one, a court must find a gross violation of the student's right to a FAPE; however, whether the same prerequisite exists to awarding compensatory education for a younger student is an open question. See Student X, 2008 WL 4980440, at *24. P. v.

Newington, 512 F.Supp.2d 89, 112 n. 3 (D.Conn.2007) (“The Court disagrees with the defendant's argument that compensatory education is warranted only if there is a ‘gross' violation of the IDEA. The requirement of a gross violation

... has been applied only to cases involving claimants over the age of 21.”), a 'd, 546 F.3d 111 (2d Cir.2008); but see J.A. v. E. Ramapo Cent. Sch. Dist., 603 F.Supp.2d 684, 690 (S.D.N.Y.2009) (finding that five-year-old student was not entitled to compensatory speech therapy, reasoning that parents failed to show gross violation because child “was not excluded from school for any period of time.”).

Also, Reid ex rel. Reid v. D.C., 401 F.3d 516, 522-26 (D.C. Cir. 2005) seems to stand for the proposition that “compensatory education” can be prospective educational services to compensate for a past deficient program and that a hearing officer, as well as a court, can fashion flexible “compensatory education” relief through the application of “equitable considerations.” Reid is cited by, for example, the Second Circuit in P., 546 F.3d at 123, for the proposition that “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.”

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The hearing evidence supports the conclusion that the DOE failed to offer n FAPE in each of the two years at issue in this case. The DOE had the burden of proof as to this issue and, by failing to present any evidence in their case-in-chief (or to even show up for the hearing), they clearly failed to meet that burden. I find that the relief sought by the parent for the denial of FAPE in each of these school years is appropriate.

ORDER

1. That, upon the provision of appropriate documentation by the parent indicating that services were delivered during the period September 1, 2016 through June 30, 2017, the DOE fund services at a rate not to exceed .

2. That the DOE issue RSA’s for for services not otherwise provided by the DOE during the period September 1, 2016 through June 30, 2017.

3. That, upon the provision of appropriate documentation by the parent indicating that services were delivered during the period September 5, 2017 through June 30, 2018, the DOE fund services at a rate not to exceed .

4. That the DOE issue RSA’s for for services not otherwise provided by the DOE during the period September 5, 2017 through June 30, 2018.

Dated: February 26, 2018

MICHAEL K. LAMBERT, ESQ.

Impartial Hearing Officer

PLEASE AKE NO ICE

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

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

DOCUMENTATION ENTERED INTO THE RECORD

None