NY IHO #166516: New York City... | Special Education Law

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FINDINGS OF FACT AND DECISION

Case Number: 166516

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: September 11, 2017

September 29, 2017

October 31, 2017

December 12, 2017

February 5, 2018

April 17, 2018

May 2, 2018

Actual Record Closed Date: June 4, 2018

Hearing Officer: Judith Schneider, Esq.

APPEARANCES September 11, 2017 September 29, 2017 October 11, 2017 December 12, 2017

Esq., Attorney (via telephone) — Parents

District Representative — District

Esq., Attorney (via telephone) — Parents

District Representative — District

Esq., Attorney (via telephone) — Parents

District Representative — District

Esq., Attorney (via telephone) — Parents

NONE

February 5, 2018 Parent

., Attorney (via telephone)

District

, District Representative

April 17, 2018 Parent

, Esq., Attorney

, Parent

District

, District Representative

, School Psychologist (via telephone)

May 2 2018 Parent

, Esq., Attorney

, Parent

, Teacher, (via telephone)

District

, District Representative

On September 11, 2017, September 29, 2017, October 31, 2017, December 17, 2017, February 5, 2018, April 17, 2018 and May 2, 2018, I conducted an Impartial Hearing at the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

Procedural History

The proceeding was initiated at the request of the parent by correspondence dated June 19, 2017, received at the impartial hearing office on June 23, 2017. (Ex. A) I was appointed Impartial Hearing Officer on July 10, 2017 after prior recusal/s. I was available to conduct a hearing within 14 days of appointment.

At a telephone conference with the parties conducted on July 10, 2017, I was informed that the matter had been referred for settlement and the parties wanted an opportunity for settlement consideration to continue. The initial hearing was scheduled for September 11, 2017 to accommodate that. (Ex. I) Additional hearings were scheduled, settlement discussions continued and various issues were resolved over several months which included the student’s placement in the now known as the ”), a State approved non-public school. (T. 12) By order dated October 2, 2017, the DOE was required to provide transportation to . (Ex. III)

Among other thing, the DOE did not dispute the student’s entitlement to compensatory academic tutoring services although the parties did not agree upon the number of hours. In order not to further delay the student’s receipt of the services 200 hours were provided during the pendency of this matter by order dated April 26, 2018. (Ex. IV)

The parties moved to extend the compliance date on various occasions in light of settlement negotiations, anticipated testimony, the scheduling of witnesses and submission of evidence and closing arguments. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to resolve such issues as they could and to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (T. 8-9, 11, 15, 19, 21-22, 29, 32-33, 36, 39, 48, Ex. I)

The current compliance date is July 5, 2018. The record closed on June 4, 2017, upon my receipt of all transcripts.

Positions of the Parties

Although the DOE did not concede that it failed to provide a FAPE in the period commencing two years prior to the filing of the impartial request, it stated that was not presenting any evidence or making any specific claims with regard to that issue. (T. 76,

82) Further, the DOE acknowledged that the student was entitled to compensatory tutoring hours for that period not to exceed approximately 780 hours for that period and did not dispute that the student was entitled to some compensatory tutoring for the period going forward from the date of the complaint filing. (T. 83-84, 85) The district asserted the precise number of compensatory hours which would benefit the student could not be “scientifically calculated.” (T. 84, 87) However, the DOE asserted that a time limitation for use be required as necessary ensure that consistent targeted tutoring would occur. (T.85, 88)

At this time the parent seeks as relief for the denial of FAPE claimed:

1) The DOE shall reimburse the parent for tuition cost she incurred in placing the student at for the 2017-2018 SY.

2) The DOE shall directly pay for any tuition due for the 2017-2018 SY not paid by the parent.

3) The DOE shall provide or pay for transportation to and from for the student for the 2017-2018 SY.

4) The DOE shall reimburse the parent for the cost of breakfast and lunch for each day that the student attended between January 2, 2018 and the last school day of the 2017-2018 SY in the amount of $10.79 per day of attendance.

5) The DOE shall reimburse the parent for school costs associated with enrolling the student in and attending in an amount of no more than $250 upon submission of receipts concerning those costs.

6) The DOE shall pay for a total of 800 hours of tutoring services by an appropriately credentialed tutor if the parent’s choosing at a rate of not more than $125 per hour. The tutoring shall follow the routine school schedule (12 month program), barring illness or other emergencies, and is to be utilized within 5 years from the date of the final order in this matter.

7) The DOE shall provide or pay for transportation to and from the tutoring services for the student and an adult to accompany him to be coordinated by the DOE’s Office of Pupil Transportation, if necessary to access the service.

8) The DOE shall pay at the standard RSA rate for a total of 24 30 minute sessions of speech-language therapy by an appropriately credentialed provider of the parent’s choosing. The DOE shall assist the parent in finding a provider who is located a reasonable distance from the student’s home and is available to provide the service to the student.

9) The DOE shall provide or pay for transportation for the student and an adult to accompany him to be coordinated by the DOE’s Office of Pupil Transportation, if necessary to access the service.

10) The DOE shall provide eight sessions per year of parent training and counseling during the period the student receives tutoring pursuant to the final order in this matter. The parent shall be ordered to attend the training and counseling provided and the DOE shall provide or pay for transportation for the parent if necessary to access the services.

(T. 295-299)

The DOE stated that it did not object to the foregoing relief and noted that the matter had been referred for settlement. (T. 299)

Findings of Fact and Conclusions of Law

In New York State the DOE bears the burden of proof with regard to whether a FAPE was provided. Educ. Law 4404[1][c] Further, I note that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006).

Further, it is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir. 2008) Further, “[i]f the student has become ineligible for special education by reason of age or graduation, compensatory education has been 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 (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]).” Appeal No. 11-027. However, it is not required that the denial be gross when occurring as here during the age range of student eligibility. See, e.g., Appeal No. 13-048, Appeal No. 12-235, Appeal No. 12-209. “…[C]ompensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).” Appeal No. 11-027.

With regard to the issue of a denial of a FAPE although the district did not specifically concede that occurred it presented no evidence and made no claims to the contrary. Accordingly, the district has not met its burden to establish that it provided a FAPE.

I turn therefore to the relief requested to which, I note, the district has stated it does not object. With regard to that the evidence presented in this matter supports the claims in hearing request concerning the deficiencies in the student’s IEPs and his lack of progress in the relevant period. The compensatory tutoring services requested are consistent with the proposal of the DOE and, I find reasonable in view of the deprivation of FAPE here. The compensatory speech language sessions are acknowledged by the DOE to be appropriate. With regard to the relief requests related to the parent has presented credible testimony and evidence with regard to the appropriateness of

(a State approved non-public school) for this student and her expenses in connection with his attendance there. The provision of parent training and counseling was specifically requested by the district and adopted by the parent. Further I note that there are no equitable factors that would limit providing the relief requested by the parent. Accordingly, the relief requested by the parent will be ordered.

ORDER

1) The DOE shall reimburse the parent for tuition cost she incurred in placing the student at for the 2017-2018 SY.

2) The DOE shall directly pay for any tuition due for the 2017-2018 SY not paid by the parent.

3) The DOE shall provide or pay for transportation to and from for the student for the 2017-2018 SY.

5) The DOE shall reimburse the parent for school costs associated with enrolling the student in and attending in an amount of no more than $250 upon submission of receipts concerning those costs.

6) The DOE shall pay for a total of 800 hours of tutoring services by an appropriately credentialed tutor of the parent’s choosing at a rate of not more than $125 per hour. The tutoring shall follow the routine school schedule (12 month program), barring illness or other emergencies, and is to be utilized within 5 years from the date of the final order in this matter. However, the number of tutoring hours received pursuant to the Interim Order for Pendency Services (Ex. IV) shall be deducted from the student’s entitlement.

9) The DOE shall provide or pay for transportation for the student and an adult to accompany him to be coordinated by the DOE’s Office of Pupil Transportation, if necessary to access the service.

________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing parties' request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms available at http://www.sro.nysed.gov/part279home.html.

EXHIBITS

District

1 Withdrawn

2 Due Process Response, 6/29/17, 3 pgs.

3 IEP, 5/11/17, 16 pgs.

4 IEP Minutes, 5/23/2017, 1 pg.

5 Student Progress Report (Counseling), 5/11/17, 2 pgs.

6 Student Progress Report ( , 5/11/2017, 3 pgs.

7 Psychoeducational Evaluation Report, 5/17/2017, 5 pgs.

8 Student Progress Report (Speech and Language), 5/25/17, 3 pgs.

9 PWN, 11/3/12016, 4 pgs.

10 PWN, 3/17/2017, 4 pgs.

11 PWN, 5/25/17, 4 pgs.

12 IEP, 11/1/2016, 14 pgs.

13 Consent to amend IEP, 1/13/17, 1 pg..

14 Signature Page IEP, 5/11/17, 3 pgs

15 Speech Language evaluation, 10/20/15, 3 pgs.

16 Attendance, 2016-2017, 11 pgs.

17 CELF V ( DOE), 5/17/2017, 11 pgs.

18 Student Grades 2016-2017, 5 pgs.

Parent

A Impartial Hearing Request, 6/9/17, 11 pgs.

B Speech Eval, 10/20/15, 2 pgs.

C IEP, 11/17/2015, 18 pgs.

D Psychological Evaluation, 1/14/16, 11 pgs.

E Final Report Card 2015-2016, 6/27/16, 2 pgs.

F Records Request, 8/23/16, 3 pgs.

G Withdrawn

H Request for Evaluation, 5/1/17, 1 pg.

I Withdrawn

J DOE Social History, 5/11/17, 16 pgs.

K IEP, 5/11/17, 16 pgs.

L DOE SL Progress Report/Evaluation, 5/17/17, 11 pgs.

M Letter from , 6/8/17, 1 pg.

N Rate Statement, Undated, 1 pg.

O Speech Language Eval, 6/23/17, 2 pgs.

P Psychological Evaluation, 8/3/17, 12 pgs.

Q Receipt for Transportation to and from Intake Appoint, 9/18/17, 1 pg.

R Ten Day Notice, 10/2/17, 2 pgs.

S Confirm. Receipt 10 day notice, 10/2/17, 1 pg.

T Required Admission Policy, 10/3/17, 1 pg.

U Required Admission Policy, 10/30/17, 2 pgs.

V Meals Affidavit and Receipts, 11/10/17, 4 pgs.

W Receipt for Photos, 11/10/17, 1 pg.

X Printout from Website, 12/11/17, 2 pgs.

Y Subpoena to Principal , 2/15/18, 2 pgs.

Z Pragmatic Language Skills Inventory, 3/8/18, 1 pg.

AA Classroom Report, 3/8/18, 6 pgs.

BB Counseling Report, 3/12/18, 1 pg.

CC Website Information, 4/6/18, 3 pgs.

DD Enrollment Contract, 9/28/17, 3 pgs.

Impartial Hearing Officer

I Prehearing Conference memorandum

II Subpoena with objections and responses

III Interim Order re Transportation

IV Interim Order for Pendency Services

New York City Department of Education, Impartial Hearing Decision

Procedural History