New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 166658

Student’s Name:

Date of Birth:

District: I I

Hearing Requested By: Parent

Date of Hearing: July 25, 2017

September 12, 2017

September 26, 2017

November 3, 2017

December 12, 2017

Actual Record Closed Date: February 9, 2018

Hearing Officer: Martin Kehoe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 25, 2017

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 12, 2017

Attorney — Student

Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 26, 2017

Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 3, 2017

Attorney — Student

Mother — Student

Student

(Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 12,2017

Attorney — Student

Parents

(Via Telephone) — Student

(Via Telephone) — Student

District Representative — DOE

Introduction — DOE

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student.

A pendency hearing was held on July 25, 2017 and I issued a pendency decision. A hearing was held on September 12, 2017, September 26, 2017, November 3, 2017, and December 12, 2017. On August 31, 2017, Parent’s counsel requested an interim order for independent educational evaluations; and I issued an interim order September 12,

2017.

Parent’s Position

In the complaint notice, dated June 28, 2017, the Parent alleged that the District denied the Student a Free Appropriate Public Education (FAPE) for the 2015/16; 2016/17; and

2017/18 school years (SY). The Parent is seeking funding for the cost of independent evaluations, a reconvene of the Committee on Special Education (CSE) to review the evaluations and develop an appropriate Individualized Education Program (IEP) and placement that uses throughout its curriculum or deferral of the case to the Central-Based Support Team (CBST). The

Parent is seeking compensatory education services in - - - ~ L _, L _ by a provider of the Parent’s choice, and

.

District’s Position

During the Hearing, the District conceded FAPE for all the school years in question, maintained that the statute of limitations is June 28, 2015 and asked that any relief ordered goes back to that date, and for the CSE Team to order a deferral to the CBST rather than the Hearing Officer.

Overview

After listening to the evidence, I find there was a long-term deprivation of educational benefits. The District has requested the opportunity for the CSE Team to order a deferral to the CBST rather than the Hearing Officer, but I find the time for such an action has passed and that it now lies with me to take action. For the reasons that follow, I am going to remand the matter to the CSE to effectuate a referral to the CBST with a directive to locate a placement consistent with this Decision. I also order to return the Student to the position she would have been in, had she not been denied aFAPE.

Student History

At the time the complaint notice was filed, the Student was . (Ex. F). The

Student’s disability classification is . (Ex. F). The Student has been diagnosed with

(Ex.

CC).

Before-Preschool

The Student’s Parent testified that she noticed

. (T.P. 90 – 91). The Student began receiving early intervention

(EI) services and was diagnosed with at around (T.P. 91,

92, 97).

2015/16:

At age L_J, the Student was referred to the Committee on Preschool Special Education (CPSE) and given an Individualized Education Program (IEP). (T.P. 97, Ex. D). No placements were available for the Student at the beginning of the 2015/16 year, the first year for which we have allegations, and the Parent said the Student had to receive related services and (T.P. 98 –

101). A preschool became available in January 2016, and the Student went there (T.P.

102).

The Parent testified that she wrote “I disagree” on the final notice of recommendation because she requested , but the CPSE administrator did not think it was necessary (Ex. Q; T.P. 103-105). At the time the Student started attending the preschool, (T.P. 106).

__J_L_L_J _ _ (T.P. 108). The Parent said the Student did not receive (T.P. 105-106).

2016/17:

The Parent said the Student made little to no progress (T. P. 107). The Parent said she had the Student evaluated by a who diagnosed her with and recommended (T. P. 109). The Parent testified that she told a District administrator during a meeting that the recommended but the administrator did not think it was needed at that time (T.P. 110 – 111).

September 28, 2016 IEP Meeting

The Parent testified that the Student’s related service providers reported that the Student was making some progress and she told them that she did not see it. The administrator said she couldn’t make any changes to the program unless they could show the Student was not making progress (T. P. 112 – 113). The District recommended the same program as the prior school year (Ex. E, Ex. D).

January 31, 2017 CSE Meeting

The meeting was held to arrange for (T.P. 114). The Parent testified she brought the report to the January 2017 IEP meeting (T. P. 113 – 114), and that she gave the ’s report to the administrator who reviewed it at the CSE meeting (T. P. 120 – 121). The , where the Student was accepted that month, participated at the meeting (T.P. 114-115). The District changed the placement to the current Non—Public School (T. P. 115). The Student began attending the Non—Public School in February 2017 (T. P. 118). The Parent

-, testified that when the Student began attending the Non—Public school, nn _J (T. P. 122 – 124).

2017/18:

March 6, 2017 Turning Five IEP Meeting

The Parent testified that the Administrator of the meeting relied upon a progress report from the Student’s previous school, which the Parent had not seen, that described the Student’s strengths. (T. P. 128 – 131). The Parent said she told the CSE members that I I and she disagreed with the report. (T. P. 131 – 132). The Parent asked the CSE Chair to call someone from the Student’s current school to participate at the meeting. The Non-Public School participated by phone but asked for the meeting to be reconvened in four weeks so she could prepare a report, but the CSE Chair said that she could not do that because she had a deadline (T. P. 132 – 133). The and of the Private School wrote in her affidavit that the Student has demonstrated improvement in , and has made meaningful progress in , and that since she began attending the school in February 2017 (Ex. AA). The CSE Chair told the and the Parent that her recommendation for a placement was not going to change (T.

P. 133). The CSE did not discuss the goals according to the Parent. The Parent testified the Chair said that she would add them later (T.P. 133). The Parent said she reminded the CSE Chair that the recommendation for the approved Non—Public School had been made at the January 2017 CSE meeting, but she told the Parent she was not changing her mind about her current recommendation (T. P. 134 – 135). The Parent visited the proposed placement in June 2017 and said

(T. P. 135).

Recommendations

The and of the Non-Public School stated the Student needs an

-, “

7~-n

.” (Ex. AA). The testified that because the Student’s program is a program, the Student is receiving (T.P. 84), and that the Student is receiving a “sufficient amount” of . (T. P. 86). She added all the teachers and teaching assistants in the Non-Public school are trained in . (T. P. 84). The recommended

- ~

7 ~- ~. i 7

. He also recommended

_L_J_L~~--~ ---~L-~U __

. (Ex. CC). The and expert in (T. P. 157) testified that he recommended . (T.P. 164 – 165). He

recommended compensatory education to compensate for the inconsistent services during the last two years. (T. P. 167 – 168). He said it could be for . (T. P. 172). He recommended that . (T. P. 169). (Ex. EE). He considers the Student’s current placement to be appropriate. (Ex. EE).

The of the Agency recommended

. She

stated that the Student’s current placement is appropriate (Ex. GG). She recommended that the Student remain in her current placement, and be given 7177

7 ~ (Ex. HH). She testified about her recommendations for the Student (T. P. 182, 186 – 189). She recommends (T. P. 184 – 185).

Progress and Potential

The Progress Report from the Non-Public School, dated May 8, 2017, describes the Student’s progress in (Ex. P). The testified in her affidavit that she was called by the District Representative on March 6, 2017 during the Student’s IEP meeting. Before the phone call, she did not know about the meeting. She said that she did not have sufficient information about the Student, as the Private School had not been informed about the meeting and the Student had just started attending school there. She said she requested a reconvene of the CSE but was told there was no time to change the date. (Ex. AA). The

Parent testified about the Student’s progress at the Non-Public School: “…

- - _JL_ _ _ _ _ L_J _ _ ~_L_LLJ_~

” (T. P. 124). . (T. P. 124).

The Parent added the Student has made great progress in

. She said

. (T. P. 125). Both the and the testified that the Student . (T. P. 163 – 164,

183). The Parent also testified that the is beneficial (T. P.

125 – 126, 139 – 141).

Legal Background

The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (FAPE). 20 U.S.C. § 612(a) (I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a) (1) (A).

In New York State, “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing . . .” (NY Educ. Law § 4404 (1)(c)) modifying the rule enunciated in Schaffer where “The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer , 546 U.S. at 537.

Analysis

The District bore the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the complaint notice. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. (“SRO No.”) 16-028; 13-200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016).

In compensatory education cases, the burden of proof as to liability and remedy falls on the district; when, as here, there is a concession of FAPE. SRO No. 14-014. See also,

SRO 16-033.

In this case the District rested without introducing evidence and conceded it failed to offer the Student a FAPE for the SY at issue (2015/16, 2016/17, and 2017/18) (T. P. 53).

Factual allegations in the complaint notice for which the District bears the burden of proof are deemed admitted if the District fails to address them at the hearing. See SRO

No.15-011 (where District conceded and failed to address any allegations, it was deemed to admit deficiencies in IEP); SRO No. 14-179 (same); SRO No. 01-044 (same).

While I recognize that the District has conceded FAPE, I wish to sketch the outline of the allegations for the record before proceeding to discuss the remedy. Firstly, in the 2015/16

SY, the District failed to recommend a placement that had space for the Student and failed to locate and related service providers in a timely manner. In the 2016/17 SY the District failed to include in the Student’s program and failed to provide . Finally, in the 2017/18 SY the District failed to recommend an appropriate program and placement and continued to overlook the Student’s need for .

Remedy: Compensatory Education

Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and. . . mould each decree to the necessities of the particular case”)

(quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].

In this case the Parent has requested a remand to the CSE with direction to refer the matter to the CBST for determining the Student’s placement, a reconvene of the CSE for development of a program that complies with the recommendations given by evaluators, particularly in providing (See Ex. CC p. 18 ) and .

The Parent has also requested compensatory and compensatory ,

, respectively, to remedy the District’s failure to provide same during the 2015/16 and 2016/17 school years.

When asked why she was requesting compensatory education in , the Parent stated that this is a crucial time in the Student’s development and time was lost in trying to get her services (T.P. 138). The Parent would like the Student to remain in her current placement or attend another program with - - - n because of the Student’s great progress with . She added, “and to take it away from her is – it would be detrimental to her development.” (T. P. 139). I am persuaded by the recommendations given and find that the Student requires both going forward and compensatory .

I have adjusted the number of _J hours downward for two reasons. One, I am persuaded by testimony that the Student’s continuation in the proper learning environment, called for in my order, will enable the Student to make progress. Two, I recognize there are a finite number of hours per week, and the demands of the Student’s school year along with significant hours of may be daunting. Inherent limits of stamina, pace, concentration and the like could easily place an unintended burden on the Student and the family. Accordingly, in an attempt to mitigate these unintended consequences, I order the compensatory services to be provided as collections of hours held in different banks to be drawn down at the discretion of the Parent and the providers.

I have also adjusted the number of L _ hours, both for the reasons above and in anticipation of the regular flow of on the new IEP in the new placement.

Although I don’t issue a specific order regarding this, I also wish to note for the record that I urge the District and their CSE to make reasonable accommodations with regard to the Parent’s availability in scheduling future CSE meetings. The Student is , and I expect the Parent, having been vigilant, will continue to be vigilant in her efforts, so cooperation between the parties is critical.

In conclusion, I issue the following orders:

- A remand to the CSE1 with the following directive: This matter shall be deferred to the CBST with a copy of this order, copies of the evaluations ordered through the proceedings of this case, and any other evaluations it deems to be relevant for determining placement at a state-approved non- public school where , consistent with the findings made in this decision. Preference shall be given to the Student’s Pendency Placement School, and placement shall be effectuated within ninety (90) days of this order.

- The District shall provide the Student with . These hours shall be for use

.

- The District shall provide the Parent with

. The District shall also provide .

So Ordered,

Dated: February 27, 2018

1 I respect the CSE as an independent, deliberative body with unique experience in education. In this case, however, I am using this order to effectuate the equitable remedy of a deferral to the CBST.

MARTIN KEHOE, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Hearing Request, 6/28/17, 11pp

B Motion for Pendency Order, 7/6/17, 2pp

C IEP, 1/31/17, 15pp

D IEP, 9/10/15, 15pp

E IEP, 9/28/16, 14pp

F IEP, 3/6/17, 15pp

G , 6/5/15, 4pp

H , 6/8/15, 5pp

I , 6/12/15, 6pp

J Report, 7/8/16, 3pp

K Educational Update, 7/11/16, 3pp

L Educational Update, 1/6/17, 3pp

M , 1/6/17, 1pp

N Report, 1/9/17, 3pp

O , 2/15/17, 1pp

P , 5/8/17, 17pp

Q FNR, 1/22/16, 2pp

R Letter, 1/24/16, 1pp

S FNR, 2/14/17, 2pp

T CSE Meeting Notice, 2/14/17, 1pp

U Letter, 5/17/17, 2pp

V CPSE Parent Referral Form, 7/8/15, 1pp

W Determination of Eligibility for Preschool Special Education Services, 9/10/15, 1pp

X Parent’s Motion Requesting Independent Educational Evaluations, 8/31/17, 19pp

Y Curriculum Vitae, undated, 7pp

Z , 8/14/17,

13pp

AA Affidavit, undated, 4pp

BB Progress Note, 11/21/16, 3pp

CC , 10/28/17, 21pp

DD Resume, undated, 5pp

EE Affidavit, 12/5/17, 4pp

FF Resume, undated, 1pp

GG Report, 11/29/17, 16pp

HH Affidavit