New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 166974

Student’s Name:

Date of Birth:

District: LJ Hearing Requested By: Parent

Date of Hearing: July 26, 2017

November 15, 2017

January 23, 2018

Actual Record Closed Date: March 8, 2018

Hearing Officer: James P. Walsh, Esq.

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

Attorney — Parents

District and New York City Department of Education Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 15, 2017

Attorney — Parents

District and New York City Department of Education Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 23, 2018

Parent of Student — Parents

Attorney — Parents

(by telephone) — Parents

(by telephone) — Parents

(by telephone) — Parents

District and New York City Department of Education Representative — DOE

The Matter of (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1) and Article 89 of the Education Law of the State of New York, initially on July 26, 2017 for a determination of the Pendency Program Student was entitled to receive until the conclusion of these proceedings, and thereafter on November 15, 2017 and January 23, 2018 for hearings on the merits. The undersigned had been appointed by the Impartial Hearing Office of the Department of Education of the City of New York, to preside over this matter by notification dated July 6, 2017. After the close of the testimonial phase of the hearing on January 23, 2017, Parent’s attorney requested the opportunity to submit a Closing Brief. Initially, the District Representative indicated that she would make an oral Closing Statement, but thereafter joined with Parent’s counsel in requesting the opportunity to submit a written

Closing Statement. Those requests were granted with the direction that such be submitted to the Case Manager by February 23, 2018. That date was extended at the request of Parent’s attorney to March 2, 2018. A Closing Statement and Memorandum of Law in Support of the Parent’s Request for Relief (I.H.O. Exhibit I) was received, reviewed and considered. District failed to submit any Post-Hearing document. The Actual Record Close Date was March 8, 2018.

This proceeding was commenced by the filing by

7 on behalf of Parent of a Due Process Complaint Notice, dated June 30, 2017. Such

Due Process Complaint alleged that the New York City Department of Education had failed to provide to Student a free, appropriate public education (FAPE) for the 2015- 2016; 2016-2017; and 2017-2018 school years; to provide timely thorough and appropriate evaluations; to create legally appropriate Individualized Education Programs

(I.E.P.’s); to educate Student in the least restrictive environment; and to follow the procedural requirements of the Individuals with Disabilities Education Act (IDEA)

(Exhibit A). A Hearing to determine the Pendency program to which Student was entitled to receive until this administrative proceeding was concluded was conducted on July 26, 2017, after which an Interim Order on Pendency was issued, based upon Student’s “last agree-upon” I.E.P.” (Exhibit B), requiring District to provide to Student, as his Pendency program, placement in a having a staffing ratio of , with the Related

Services

(I.H.O. Exhibit I). The

Interim Order was made retroactive to June 30, 2017, the date of the filing of Parent’s Due Process Complaint.

The hearing was scheduled to commence on November 15, 2017. On that date, District Representative announced that District would not be putting on a case (T.R.16), i.e., would offer no exhibits nor witness testimony. As Parent’s counsel was unprepared to submit Parent’s case at that time, Parent placed eleven exhibits into evidence (two of which had already been received into evidence at the Pendency Hearing), after which the matter was adjourned to January 23, 2018 for the receipt of

Parent’s case.

On January 23, 2018, Parent presented the testimony of witnesses:

, the owner of ; , an associated with ; and , a / associated with . While Parent was present at the hearing, Parent offered no testimony.

Student is , having been born on .

Student has been found to be in need of special education and related services and is classified as having . The Record is sparse regarding Student’s deficits and needs.

As noted, District offered no exhibits regarding Student’s functional levels or the manner in which Student’s educational program addressed those needs. Parent offered various exhibits namely Student’s I.E.P.’s for the years at issue in this proceeding that provide some insight into Student’s functional; levels (Exhibits B, C, D, E, and F).

Student is described 1 nn .

,

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_J LJ _J LJ

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DCC CD ____

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. There is also in evidence an

Assessment Report (Exhibit H), prepared in May, 2017, which describes areas of deficit, but which provides little specific academic information beyond a description of a deficit and the degree of such. The Report also provides only details of Student’s current status.

Further, as previously noted, while Parent was in attendance at the hearing when Parent’s case was presented, Parent did not testify. Parent’s counsel refers, in Parent’s Closing Statement (IHO Exhibit I) as facts established in this proceeding. However, such “facts” are statements made in Parent’s Due Process Complaint Notice (Exhibit A), in which it is specifically stated that “All of the allegations stated herein are made upon information and belief”. I thus find that, without the testimony of Parent, none of such “facts” has been established as fact.

For the 2015-2016 school year, District’s Committee on Special Education (C.S.E.) prepared an Individualized Education Program that placed Student in a having a staffing ratio of in a with numerous Related Services, as previously described in the Interim Order on Pendency (I.H.O. Exhibit II), including the provision of certain as required by the provisions of a previously-issued Hearing Officer Decision (Exhibits B). The Decision by the previous Hearing Officer was not offered as an exhibit in this proceeding. District’s C.S.E. thereafter conducted another meeting, at which it prepares another I.E.P. (Exhibit C), which essentially recommended the same program that it had recommended in Exhibit B – but deleting the Hearing Officer-directed L_ . For the 2016-2017 school year, District’s C.S.E. created an I.E.P. which recommended that Student receive his special education program in a having a ratio of in a New York

State-Approved Non-Public Day School, together with numerous Related Services

(Exhibit D). The Committee thereafter re-convened on September 22, 2016 and that noted that Student’s placement had been deferred to Central Based Support Team for non-public school placement; that a placement had been offered; and that such seat was no longer available (Exhibit D). Such I.E.P. also noted Parent’s concerns that Student had regressed in his current program. On June 9, 2017, The C.S.E. met and prepared an

I.E.P., again recommending placement in an New York State-Approved Non-Public Day School, together with numerous Related Services (Exhibit E).

Parent has alleged that District has failed to provide Student with an appropriate special education for each of the past years; 2015-2016; 2016-2017; and 2017-2018

(Exhibit A). Parent seeks, as compensatory education services, numerous services at a public school site of Parent’s choosing with providers selected by Parent,

L_J services, and other reliefs.

District bore the burden of establishing that it offered Student FAPE for each of the school years at issue (New York State Education Law §4404). District has offered no witnesses or exhibits into evidence. While District Representative stated that District was unwilling to concede that it has failed to offer Student FAPE for each of the years under review (T.R.19), it is my finding and determination that District has, indeed, failed to sustain its burden imposed by the provisions cited above.

Parent has not made any unilateral placement of Student, so reimbursement is not an issue in this proceeding. Rather, Parent claims entitlement to various compensatory services, including

~L

(Exhibit A).

Student was referred - presumably by Parent – to for evaluation. On April 12, 2017, Student was taken to the offices of .

On that date there were completed an evaluation by , the results of which are contained in an Assessment Report (Exhibit H); an

Evaluation, the results of which are contained in Exhibit J; and a /

11 I

Evaluation, the results of which are contained in Exhibit K. Later, on June 6, 2017, L_ conducted an observation of Student in his classroom and made note of responses she had obtained from Student’s teacher, all of which, together with Recommendations for Student’s program, are contained in her School Observation Report (Exhibit I).

According to that Report, Student’s teacher noted

.

was described by , its owner, as providing service, as well as ,

, parent and training, and parent groups (T.R.44).

Witness testified that she has a in /

and a Master’s Degree in early childhood special education (T.R.42). Witness

also testified that she has completed all certification requirements for the exam, but as of yet holds no certifications from the State of New York (T.R.42-43).

. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger . Canastota, 979 F. Sup. 147 (N.D.N.Y.

1997) (P. . Newington Bd. of Educ., 546 F.3d 111 at 123 (2d Cir 2008). The purpose of an award of compensatory educational; services is to provide an appropriate remedy for a denial of FAPE (Lyme Bd. of Educ.; 790 F3d at 456; E.M. . New York City Department of Education, 758 F 3d. 4542 [2d Cir., 2014]). In fashioning such remedy, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from the special education services the District should have supplied in the first place (Reid . District of Columbia, 401 F. 3d., 516). As noted by the State Review Officer in deciding Application of a Student with a Disability, Appeal No. 17-068);

“Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in but for the violation of the Act”.

Unfortunately, however lofty, precise and significant such definition of compensatory education is, I find that I am unable to meaningfully implement it. Such guideline would require that I know the educational status of Student at the time of the occurrence of the ;violation (Point A); where Student would be if the violation had not occurred (Point B); and what services might be necessary to get Student from Point A to

Point B. Point A is admittedly ascertainable. Student has severe deficits in many areas.

Student was during the 2015-2016 school year. According to the I.E.P

(Exhibit B), Student was to receive a number of hours of L_ . It appears that such services had little effect on Student’s progress – if indeed, he received such.

Similarly, during the whole of the 2017-2018 school year, Student, through his Pendency program, again received of (IHO Exhibit I).

However, I am unable to determine what effect – if any - such programs had upon Student, as I seek to determine the status of Student at any particular time. Further, I find that I am unable to determine where Student would have been had Student been provided with appropriate program and services. It would appear that any such determination would be pure speculation. Moreover, and most importantly, I am at a loss to determine the services to which Student is admittedly entitled by which Student might be brought to the point where Student should have been had not the violation of the Act occurred.

Parent in this proceeding has relied on the evaluations conducted by the personnel at in providing the expertise necessary to establish Parent’s claim for compensatory services. However, I find such to be woefully inadequate on which to base my determination as to the extent of compensatory services necessary to compensate Student. The Program advanced by is based on one day’s evaluation of Student and one classroom visit. While the recommendation resulting from those activities not surprisingly involve massive applications of , they are based upon the expertise on one who does not even possess certification as __J

. Moreover, Witness acknowledge that she

was unable to state what her program might achieve with Student if her recommended program was implemented over a period of one year, as she was unaware of Student’s rate of acquisition and because she had only observed him one time at her center and one time in the classroom (T.R.93). I also was unable to accept recommendation that Student be provided with of the services of an in the classroom, working side by side with Student’s Special Education Teacher and staff. It would appear that such recommendation would have the L_ present not only in every content class, but even during , at lunch, and when Student would be receiving his mandated related services.

I also find recommendation that – after receiving of _J at school,- Student should receive another of L_ at – which would total of . And while , as owner of , denies any monetary motivation in reaching her recommendation (T.R.96), a quick calculation of the cost of implementing only those portions of her recommendation that include and a with a totals

. Were Parent’s Counsel’s contention that Student receive such program for each of the years Student failed to receive a free, appropriate public education (I.H.O Exhibit II at p. 24) accepted, such would result in a cost to

District of

. I find it difficult to consider such an “equitable relief”.

While I clearly reject the Report and opinions of Witness , I remain faced with the necessity of a determination of what - if any -is an appropriate amount of compensatory education to be awarded to Student for the failure of District to provide student with an appropriate education for school years.

I note that Parent posited her request for Pendency upon the Student’s “last-agreed-upon I.E.P.”, identified by Parent’s Counsel as Exhibit B. I note that Exhibit B was prepared for the 2015-2016 school year and differs from Exhibit C, – the basis for Parent’s contention that District failed to offer a FAPE for the 2015-2016 school year - only in that it contained the provision of , appearing in Exhibit B as “per IHO , student is receiving compensatory ”. I therefore determine that the program with which Parent agreed

(Exhibit B) was, in fact, one that offered Student a free, appropriate public education.

Such program is also that as is set out in my Interim Order on Pendency (I.H.O. Exhibit

I). That program, as previously noted, required the provision of of / and of coordination between the provider and the school, as well as of and Training, to be provided by the provider. That Interim Order was dated August 14, 2017 but made retroactive to July 3, 2017, that date of Parent’s filing of her Due Process Complaint. I have given consideration to directing District to provide Student with the services stated in that Interim Order for each of the years that Student did not receive an appropriate program. However, I simply do not know if the provision of those added contributed anything to Student’s progress.

Clearly Parent offered no testimony by any person familiar with such program that any benefit was received by Student because of such provision.

I am, therefore, left without any basis for determining what special education services might be afforded to Student that would bring Student to that point where Student would have been had Student been provided with appropriate programs during the L_J years during which he was not. While it appears incongruous that I can state that District failed in its obligation to Student for consecutive years but that Student is not entitled to some relief, the fact is that I am unable to fashion a relief that comports with the obligation established by the courts in the cited opinions – that I determine an award of compensatory education that would place the student in the position he would have been in but for the violation of the Act.

It is tempting to either provide additional hours of _ J/_ ~, as appears to be the course followed by a previous Hearing Officer, or to simply accept the program detailed by Witness – but I cannot in good faith state that I find that either program is capable of meeting the criterion under which I must consider appropriate compensatory relief.

It is, therefore, my finding and determination that Student has been denied an appropriate public education for the 2015-2016; 2016-2017; and 2017-2018 school years.

It is my further finding and determination that there exists no equitable remedy for such failure, as there is no program that I am capable of fashioning that can place Student in the position he “would have been in but for the violation of the Act”.

Parent’s Due Process Complaint (Exhibit A) also requested an Interim Order be issued for Independent Educational Evaluations for ;

; a and ; a

Evaluation and a Evaluation. It was contended by Parent’s Counsel during the Hearing of November 15, 2017, that such were needed “to inform the record” (T.R. 20). District Representative stated that District conceded that it had failed to fully thoroughly evaluate Student (T.R.20). While I determined that an Interim Order should not issue, as I found such unnecessary to “inform the Record”, I now find and determine that, upon District’s concession, it is unnecessary for Parent to have complied with the provisions of Commissioner’s Regulations (8 NYCRR

200.5(g)(2)), and that Parent is entitled to such Independent Evaluations as requested.

ORDER

Based upon the above review, it is

HEREBY ORDERED that Parent shall be entitled to obtain the following Independent Educational Evaluations of Student at District and Department of Education expense:

A Evaluation

A Evaluation

A / Evaluation

An Evaluation

A Evaluation

A and : and it is

FURTHER ORDERED that the remaining issues raised in Parent’s Complaint be, and the same hereby are, Dismissed.

Dated: March 22, 2018

JAMES P. WALSH, ESQ.

Impartial Hearing Officer

PLEASE AKE NO ICE

he 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 RECORD ON JULY 26, 2017

A. Parent’s Due Process Complaint Notice, Parent dated 6-30-17 (13 pages; Parents)

B. Student’s I.E.P. as prepared by District’s Parent C.S.E. on October 6, 2015 (15 pages; Parents)

DOCUMENTATION ENTERED INTO RECORD ON NOVEMBER 15, 2017

A. Parent’s Due Process Complaint Notice, Parent dated 6-30-17 (13 pages; Parents)

B. Student’s I.E.P. as prepared by District’s Parent C.S.E. on October 6, 2015 (15 pages; Parents)

C. Student’s I.E.P. as prepared by District’s Parent C.S.E. on June 18, 2015 (18 pages; Parents)

D. Student’s I.E.P. as prepared by District’s Parent C.S.E. on September 22, 2016 (19 pages; Parents)

E. Student’s I.E.P. as prepared by District’s Parent C.S.E. on June 9, 2017 (20 pages; Parents)

F. Re-evaluation of Student by Parent., dated 6-5-17 (6 pages; Parents)

G. Classroom Observation by Parent dated 6-1-17 (1 page; Parents)

H. Assessment Report, dated 5-6-17, by Parent and, (11 pages; Parents)

I. School Observation Report, dated 6-30-17, by Parent, (8 pages; Parents)

J. Evaluation, dated 4-12-17, Parent by (9 pages; Parents)

K. Evaluation, dated 4-12-17, Parent by (6 pages; Parents)

DOCUMENTATION ENTERED INTO RECORD ON JANUARY 23, 2018

None

OTHER DOCUMENTATION ENTERED INTO RECORD

I. Closing Statement and Memorandum of Law IHO dated 3-3-18 II 8 Interim Order on Pendency, dated 8-15-17 IHO (25 pages; Parents)