Impartial Hearing Decision

CERTIFICATION OF IMPARTIAL HEARING OFFICER In the Matter of: (Name of Student) Hearing Dates: 11/8/17;2/6/17;3/7/18, 6/5/18; 10/1718,4/17/19;1/23/20; 1 126/20/4/23/20 168204 Case Number: I, idiaadiidch , Impartial Hearing Of DO HEREBY CERTIFY that the attached Evidence and attached Index of & entire record before me in the above entitled matter as of this date. | FURTHER CERTIFY that the materials submitted herewith are either the of the original docyfyen ittéd in this matter. ficer in this matter hibits itemize the original or true copy 05/21/2020 ZO ho71 Vie Uy ee Signature of im partia Hearing Officer Date Signe Comments/Notes: March 2020 Qo.

DECISION ORDER Case Number: 168204 Student’s Name: Redacted Hearing Requested By: Parent Hearing Officer: Martin J. Kehoe III, Esq.

Introduction This document constitutes the Decision and Order of the undersig Impartial Hearing Officer (THO) in an Impartial Hearing brought pursu Disabilities Education Act (IDEA) and the New York State Education will be referred to as District, the parent as Parent and the student wil] The Parent’s filed a complaint notice, dated August 29, 2017 (Ex. A) held on August 30, 2017, and I issued a pendency order that day. A hear 8, 2017 and December 6, 2017. The Parent’s filed an amended complg 8, 2017 (Ex. B). The hearing continued on March 7, 2018; June 5, 201 17, 2019; January 23, 2020; January 26, 2020; April 23, 2020. Parent’s Position The Parents alleged that the District failed to provide a Free and Ap (FAPE) for the 2017-2018 school year, by failing to develop a substant Individualized Educational Program (IEP) for the Student and by fail appropriate placement. The Parent was seeking a final order with assistive technology, a new JEP, and assessment to see if the Student s high-school diploma; an independent evaluation to determine if the § make up services; compensatory education; additional services; | providers to compensate for any failure by the District to enforce per multiday testing accommodations; and accessible educational materia hearing the Parent’s attorney stated the Parent’s position as seeking | | ned, the duly designated ant to the Individuals with Laws. The School District be referred to as Student. . A pendency hearing was ing was held on November ‘int notice dated December 8; October 17, 2018; April propriate Public Education ively and procedurally valid ing to provide a timely and the services and pendency, hould work toward a regular Student is making progress; yayment and/ or tuition to dency and provide a FAPE; is (Ex. A, Ex B). During the nayment for owed pendency services, after calculation, and implementation of assistive technolog withdrew the request for compensatory education related to the school d program (T. 107). District’s Position The District did not submit any evidence or call any witnesses. Legal Background y (f. 96-97). The Parent ay portion of the Student’s The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public educatid n (“FAPE”). 20 U.S.C. § 612(a)(1). “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). The IDEA defines a FAPE as special education and related services that: - (A) have been provided at public expense, under public supery without charge, - (B) meet the standards of the state educational agency, ision and direction, and - (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and - (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).) “Special education” is defined by the IDEA as specially designed instruction, at n o cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for dfagnosttc and evaluation purposes only) as may be required to assist a child with a disability to benefit from special]education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26). 3 A FAPE is crafted through the collaboration of the disabled student’s pa rents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute ... is the cooperative process that [IDEA] establishes between parents and s¢thools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related s meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is on special education (“CSE”), whose members are appointed by the bo of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Sup The IDEA provides numerous procedural safeguards to protect the dus children and their parents. See generally 20 U.S.C. § 615. Thes opportunity for parents to obtain an independent educational evaluatic 615(b)(1)) and file a complaint with the state or local educational agen Any such complaint is resolved through an “impartial due process he disabled children have “an opportunity to present complaints with resp the identification, evaluation, or educational placement of the child, o to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative procs the right to written findings of fact and decisions on any complaint abc Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (nd Cir. ervices to be employed to produced by a committee ard of education or trustees p. 2005). = process rights of disabled e procedures include the n of the child (20 U.S.C. § cy (20 U.S.C. § 615(b)(6)). paring” in which parents of ect to any matter relating to t the provision of a [FAPE] ceding under the [DEA have ut the provision of a FAPE. 2002). In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shal including the burden of persuasion and burden of production, in any 4 I have the burden of proof, such impartial hearing ...”

N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “{i]he 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 did not submit any evidence or call any witnesses and failed to prove that they offered a Student a FAPE for the 2017-2018 school year. I, therefore find that the 201-2018 school year. Compensatory Education Regarding the remedy of compensatory education, I find guidance in & 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education because the courts act in equity when remedying IDEA violations a1 mould each decree to the necessities of the particular case”) (quoting a FAPE was denied during eid v. District of Columbia, is not a “form of damages” nd must “do equity and... » Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 14{7, 150-51 [N.D.N-Y. 1997]. Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross vio! ation 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 Cig. 2008]: Mrs. CL v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d C Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]. r. 1988]; Cosgrove v. Bad. of Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. 8§ 1401[3], 1412fal[11BB} Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "{t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008)). Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district’s failure to provide those educational shrvices to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 fupholding an additional service award of physical therapy|;Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of tutoring or othet direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory, one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1] counseling services and 1:1 speech-language therapy in compensatory additional services|). In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial ofaFAPE]; see also Reid v. Dist. of Columbia, 40] F.3d 416, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA'’s purposes, the ultimate award 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") Parents of Student Wy, Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir, 1994] Iholding that "[alppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA")). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address the problems with the LEP"}; see also Draper v, Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[cJompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. £.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour- by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the schoo] district's violations of IDEA"];_ Parents of Student W. v. Puyallup Sch. Dist. 31 F.3d 1489, 1497 [There is no obligation to provide a day-for-day compensation for time missed"); Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014. It is therefore ORDERED Within thirty days following this decision, the DOE shall calculate the number of related services sessions of speech, counseling and occupational therapy, if any, that were required by the September 2017 Pendency Order but that the Student did not receive from the date that the DPC in this case was filed (August 29, 2017) to the date that this order is issued. To the extent that there are any hours of related services that the Student did not receive, those missing hours would form the basis of a bank of compensatory services for the Student and those services would be paid at the enhanced market rate at the time the services are rendered as determined by the implementation bureau of the District in direct consultation with the provider(s). Within thirty days following this final decision, the DOE shall calculate the number of ABA and Parent Training hours, if any, that were required by the September 2017 Pendency Order but that that Student did not receive from the date that the DPC in this case was filed (August 29, 2017) and required by the September 20176 Pendency Order, to the date that this order is issued; and, to the extent that there are any hours that the Student did not receive, those hours that were not provided should would form the basis of a bank of compensatory services for the Student and those services would be paid at the enhanced market rate at the time the services are rendered as determined by the implementation bureau of the District in direct consultation with the provider(s). Within thirty days following this final decision, the District shall calculate the number of AT training hours, if any, that were required by the September 2017 Pendency Order that the Student did not receive from the date that the DPC in this case was filed (August 29, 2017) to the date that this order is issued; and, to the extent that there are any hours that were not provided, those missing hours would form the basis of a bank of services that the Student can use and those services would be paid at the enhanced market rate at the time the services are rendered as determined by the implementation bureau of the District in direct consultation with the provider(s).. e The Parent has the right to select the providers, which should be funded by the DOE at prevailing market rates charged by the selected provider and paid by the DOE in the past, or comparable market rates for a comparable provider. Dated: May 21, 2020 Martin J.Kéhod IISFsq. 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 StatEducation 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 party's 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 appeals before an 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 are available at http://www.sro.nysed.gov. 10

DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK IMPARTIAL HEARING OFFICE In the Matter of Case No. 168204 LIST OF EXHIBITS Exhibit | Description Date Pages A Impartial Hearing Request 8/29/17 14 B Amended Hearing Request 12/8/17 15 C Statement of Agreement and Order, Case No. 10/5/17 7