New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 172846

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 1, 2018

Actual Record Closed Date: March 18, 2019

Hearing Officer: Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

November 1, 2018

Attorney

For the Parents:

DOE Designee Department of Education

/Owner Parent

Mother Parent

INTRODUCTION

On the above date, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case #172846. The hearings were conducted at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its designee ; the Parent was represented her counsel

BACKGROUND

The Parent filed a due process complaint pursuant to 20 U.S.C. Section 1415 of the Individuals with Disabilities Education Act of 2004 (“IDEA”) on behalf of her son, hereinafter referred to as the “Student or ”. The Parent due process complaint alleges that the Department of Education (“DOE”’) failed to provide the Student with a free appropriate public education (“FAPE”’) during the 2017-2018 school year.

PARENTS POITION

is an student who has been classified by the New York City Department of Education’s (“DOE”) Committee on Special Education (“CSE”) as a student with a Speech or Language Impairment. (Ex. G -1) On January 22, 2018, the CSE convened to create an Individualized Education Service Plan (“IESP”’) for the student; the CSE recommended that be provided with 8 periods, per week, of Special Education Teacher Support Services (“SETSS”), provided in a group; Counseling (once a week, for 30 minutes, in a group, and twice a week, for 30 minutes, individually); Physical Therapy (twice a week, for 30 minutes, individually); Occupational Therapy (4 times a week, for 30 minutes, individually); and Speech-Language Therapy (twice a week, for 30 minutes, individually, and once a week, for 30 minutes, in a group).

The CSE failed to implement the recommended services, as outlined in the January 22, 2018 IESP for the remainder of the 2017-2018 school year; began receiving SETSS in September 2018, when his parents arranged for him to work with —an agency that charges an enhanced rate.

PARENTS CASE

The Parent hereinafter referred to as (Parent or __) testified that the IEP meeting held on January 22, 2018. The CSE team made its recommendations over her objections (T. 46 — 49). She and her son’s teacher, expressed to the CSE that required additional SETSS and a 1:1 paraprofessional. (T. 46-7, 49).

Additionally, the witness stated that the CSE failed to implement the recommended services, as outlined in the January 2018 IESP for the remainder of the 2017-2018 school year (T. 50-1, 53, 57-8) and as of the date of the instant hearing the CSE has failed to implement the recommended services. (T. 50-1, 53). began receiving SETSS in September 2018, when his parents arranged for him to work with —an agency that charges an enhanced rate. (T. 12) , the Educational Supervisor for testified that in her opinion, required significantly more time per week, with a special education teacher, than the CSE recommended. (T. 24). She stated that although has made some progress while working with his SETSS provider for 8 hours, per week; however, it was not sufficient to address his pervasive needs. (See e.g., T. 21)

Ms. testified that is and is functioning on a first-grade academic level. (T. 16, 19, 21). In her opinion, that in order to address ’s significant academic delays, executive functioning struggles and language needs that he requires 15 hours of 1:1 instruction from a trained special education teacher. (T. 24) Additionally, that services should be on a 12 month in order to avoid regression over the summer break. (T. 25)

As per the Parent, CSE refused to recognize or address her son’s need for 1:1 support in the classroom with a paraprofessional. The parents arranged for an ABA trained paraprofessional to work with their son in the classroom, funded through their insurance and out of their own pocket. The parents, however, are not seeking reimbursement for these expenses. (T. 44, 60-1)

The Parent indicated that the classroom teacher, , noted in a letter to the CSE that her son requires a significant amount of 1:1 support and prompting in the classroom setting (such as that provide by a paraprofessional), but with such support “being in the classroom really motivates him and enhances his learning experience.” (Ex. D; see also Ex. E). reiterated these concerns at the CSE meeting, advising the team that without 1:1 support “he ( __) has anxiety, so he doesn’t have any sense of what comes next, where he is supposed to go. He could wander off. He could start tantruming, crying...”, and that he still requires assistance in the 99 bathroom. (T. 49). Parent asserts that the CSE ignored the input of those working with on a day-to-day basis and refused to recommend the 1:1 paraprofessional he needs to receive an educational benefit.

As per Parent’s counsel, even if the DOE had demonstrated that the proposed January 2018 IESP was appropriate, that it failed to implement the recommended services. The Parent stated that she was not contacted by SETSS providers from the DOE in order to implement the IESP (T. 50). Furthermore, attempted to find a provider to work with her son at the DOE’s standard rate; however, none of the agencies or providers she spoke to were able to do so. (T. 50-1. She then wrote to the CSE to inform them that she could not find a SETSS provider for her son (Ex. C; T. 51). She testified that she didn’t receive a response (or assistance) from the DOE. (T. 51). The Parent testified that her son did not receive any SETSS from January 2018 until September 2018, when she arranged for him to begin working with . (T. 51-2, 57-9). Additionally, that her son still has not begun the related services mandated as per the IESP. (T. 53, 58, 59)

Notably, the only evidence presented at hearing demonstrates that the district did not assign a SETSS provider who works at its standard rate to work with .(T.

50) Ms. attempted to find such a provider to no avail; when she alerted the district of the issue, her concerns went unaddressed. (Ex. C; T. 50-1)

DOE’S CASE

The DOE rested without calling witnesses or offering any documents into evidence.

DOE’S POSITION

The DOE opposes the Parents’ request for funding of 15 hours of Special Education Teacher Support Services (“SETSS”), at $150 an hour and to provide 1:1 instruction for a 12-month school year; rather than the Direct Service, Group Service, 8 times per week for a period each as recommended on the student’s Individualized Education Service Program (“IEP”) for the 2017-2018 school year. The IESP is for students whose parents have parentally placed them in a non-public school and the IESP provides “equitable services” for the student.

Ms. testified that is approximately and attends and there are about 25 to 30 students in his class. She also stated that the SETSS provider works with at his school, in eight periods of 1:1 SETSS. Ms. said attempts have been made to coordinate his services with another student but he is on a much lower level than his classmates. Ms. also testified that an informal assessment tool known as “Bader” was utilized to evaluate the student’s reading skills and that his math skills are very basic and at a first grade level (page 31, lines 1-2).

Ms. said that her agency chargers $150 for SETSS and that $80 of the $150 goes to the provider (page 32, lines 6 and 9); she assesses the child for both reading and math skills and organizes the information. Ms. creates goals for the student and then trains the provider on how to implement the goals (page 33, lines 8-11). She also testified that she provides supervision for the provider (page 35, lines 2 and 5-7) and has observed at school (page 35, line 13)..

The Parent stated that the School is a mainstream setting where they accommodate students who need additional services; attended this school in 2017-2018 and he is currently attending this school. Additionally,her son received ABA (Applied Behavioral Analysis) through insurance and they paid privately for someone for some English studies with him (page 44, lines 5-9). The Parent conceded that she did not request services from the DOE for her son until the middle of the school year. The Parent did not agree with the 8 periods of SETSS as her son was “just coming out of a full-time special education school and that he would be transitioned more slowly” and she recognized that the school is not a full-time special education school.

The Parent agrees with Ms. that her son could benefit from 15 hours of SETSS (page 49, lines 1-3) and that he needs a paraprofessional because “he is anxious and could wander off “ (page 49, lines 11-25 and pager 50, line 1). The Parent stated that other than the letters from and Ms. (Exhibits D and E) that no other documentation was provided to the CSE for the request for 1:1 SETSS and additional support (page 55, line 7).

The Parent stated that the *s school is a general education setting with 24 or 25 students and that he does not qualify for a report card but the teacher calls her husband. Additionally, that her that her son is not able to keep up with his classmates; he gets along with his classmates because they are nice and protective of him but not because he is able to have a conversation or play a game with them (page 56, lines 8-11 and 13-15). Her son “does not relate much to his classroom teacher just when the teacher reaches out to him but he will not initiate” (page 56, lines 21-23). Additionally, her son’s school works well with the SETSS provider. The providers that she reached out to did not have the time or the scheduling (page 57, lines 22-25). SETSS services initiated in September 2018 (page 58, line 25).

The DOE asserts that both through documentary evidence and cross-examination of parent’s witnesses that was appropriately recommended for Direct Service, Group Service of SETTS, 8 times a week, for a period each, with the related services of Counseling, Group Service, one time a week, for 30 minutes, Physical Therapy, Individual Service, two times per week, 30 minutes each session, Occupational Therapy, Individual Service, four times per week, 30 minutes each session, Speech and Language Therapy, Individual Service, two times per week, 30 minutes each session, Speech and Language Therapy, Group Service, one time per week, for 30 minutes, and Counseling, Individual Service, two times per week, 30 minutes each session.

Additionally, that for the 2017-2018 school year. The Parent acknowledged that the request for services was not made until the middle of the school year. It is the DOE;s postion that if funding is to be awarded for the period January through June 2018, that the sum of $150.00 per hour being requested for SETSS is excessive. More particularly, that Ms. described using informal assessments to measure ’s reading and math levels. She also described supervision and observation of that appears to be part of the routine for providing SETSS for a student. The 8 periods of SETSS is to support ’s ability to learn in the classroom. SETSS is provided in group-instruction so that students may learn from each other as well as from the instructor. The DOE maintain that the parents’ request to increase SETSS from 8 periods to 15 periods, that the SETSS to be provided in 1:1 instruction, for a 12-month school year, and to be funded at $150.00 per hour be denied.

FINDINGS OF FACT AND CONCLUSIONS

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C. section 1400-1482) ensure that students with disabilities have available to them a FAPE; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. Of Education v. Rowley 458 S. CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356 371 92d Cir 2006). A FAPE includes special education and related services designed to meet the student’s unique need provided in conformity with a comprehensive written IEP (20 U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 ‘d’; 34 CFR Section 200-347

_; The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a][5][A]; CFR section 300.13 [a][2][i], 200.1.116 [a][2]; 8 NYCRR 200.6 [a][1]; see Walczak v. Fla Union Free School Dist. 142 F. 3d 119, 132 [2d cir. 1998].

This hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §1404 et seg. (“IDEA”). “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education...designed to meet their unique needs... [and] to ensure that the rights of children with disabilities and parents of such children are protected.’” MH.

v. N.Y.C. Dep’t. of Educ., 685 F.3d 217m 223 (2d Cir. 2012) (quoting 20 U.S.C. §1400(d)(1)(A)-(B)). The IDEA mandates that students with disabilities must be provided with a FAPE tailored to meet their unique needs and one that is reasonably calculated to “enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist, U.S. __, 137 S.Ct. 988,999 (2017); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982); SRO 17-007, p. 10. A focus on the particular child is at the core of the IDEA. Endrew F., 137 S. Ct. at 999. To meet the IDEA’s requirements, a school district’s program must provide special education and related services that is “‘specifically

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designed’ to meet a child’s ‘wnigue needs’” and is reasonably calculated to enable the child to receive educational benefits. Endrew F., 137 S.Ct. at 999 (emphasis in original); M.H., supra, 685 F.3d at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007)).

A denial of FAPE can be one that is substantive or results from violations of the procedural protections of the IDEA and its implementing regulations. Procedural violations result in the denial of FAPE “if they ‘impeded the child’s right to a [FAPE},’ ‘significantly impeded the parents’ opportunity to participate in the decision-making process,’ or ‘caused a deprivation of educational benefits.’” 20 U.S.C. §1415(H(3)(C)Gi); 4.C. ex rel. MC. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); see also Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005) (“Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations considered individually do not.”) In sum, Rowley stands for a two-part entitlement: eligible families are entitled to an IEP that both (a) affords a placement that, substantively, is “reasonably calculated” to afford meaningful educational benefit to the child, and (b) is developed in procedural accordance with the requirements of federal law.

As a student with a disability, is entitled to receive a free and appropriate public education (“FAPE”’) pursuant to the Individuals with Disabilities Education Improvement Act (“IDEA”). 20 U.S.C. § 1400, et. seg. To provide a FAPE, the district must create “...an educational program that is ‘reasonably calculated to enable [ | to receive educational benefits”, including enabling , a Student in a general education class, “to achieve passing marks and advance from grade to grade.” Endrew F. v. Douglas Cty. Sch. Dist, 137 S.Ct. 988, 995-96 (2017) (citation omitted). Though attends a private school, he is still entitled to appropriate special education services from the district. New York state law requires that the local education agency where a private school is located (“the district of location”) provide services to private school students with disabilities on an “equitable basis,” as memorialized in an IESP, “based on the student’s individual needs in the same manner and with the same contents as an Individualized Education Program”. N.Y. EDUC. LAW § 3602-c(2)(b)(1).

The term “equitable” within § 3602-c requires the district of location to provide a FAPE (i.e.: the same special education and related services students would receive if attending a public school). See Bd. of Educ. of Bay Shore Union Free School District v. Thomas K., 14 N.Y.3d 289, 293 (2010) (classifying the level of services a district of location must provide a student in a private school within its borders as a “free, appropriate public education”); see also Bd. of Educ. of the Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184-85 (N.Y. 1988).

The district has the burden of proving that it offered a FAPE. NY Epbuc. LAW § 4404(1)(C); § 3602-c. As the parents are not seeking funding for the tuition for his unilateral placement, the oft-cited Burlington/Carter analysis is inapplicable. Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369 (1985); Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 12-13 (1993).

Therefore, the only issues to be determined are whether the DOE(1) provided with a procedurally and substantively valid IESP that was implemented in a timely manner and, if not, (2) what the appropriate remedy is to compensate for the denial of FAPE.

The determination of whether or not the Student herin was offered an appropriate educational program must be based on the information contained within the impartial hearing record. 8 NYCRR § 200.5(j)(5)(v). In this case the DOE chose to not present any witnesses or documentary evidence.

It is clear that it was the parents who submitted the IESP into evidence (at the Impartial Hearing Officer’s request). (Ex. G; T. 67-8). I agree with Parent’s counsel that even with this document in evidence, the district is unable to meet its burden of proof. The Second Circuit has specifically rejected a rigid “four corners” rule that would limit evidence to what is written in the IEP. R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 185 (2d. Cir 2012). In doing so, it determined that an IEP (and thus IESP), on its own, does not demonstrate that an appropriate education has been offered; instead, “testimony may be received that explains or justifies the services listed in the IEP.” /d. at 185-86; see also L.O. v. N.Y.C. Dep’t of Educ., 822 F.3d 95, 110-11 (2d Cir. 2016) (holding that the district could not meet its burden of proof to demonstrate sufficient evaluative material was relied upon without testimony to that effect). Thus, the district cannot meet its burden of proof in the present matter, as such would be tantamount to holding the IESP presumptively appropriate.

I find that the evidence presented does not demonstrate that was provided with a sufficient educational program. The DOE’s recommendation that be provided with only 8 periods, per week, of SETSS, in a group setting on a 10 month basis, was insufficient for the student and would not confer an educational benefit. The Parent and teachers alerted the CSE that “needs to be assigned a special educational professional to work with him 1:1...” at the time of the January 2018 CSE review. (Ex. D; see also Ex. E; T. 46-7) The CSE didn’t agree and recommend an insufficient amount of group instruction.

I agree with the Parent’s position that the DOE (a) failed to provide for a sufficient number of SETSS hours in the January 2018 TESP, and (b) failed to implement any of the recommended SETSS and related services, from January 2018 to the present.

I also agree that an appropriate remedy would require the DOE to provide compensatory services equivalent to the number of SETSS sessions the student should have received, had the district recommended the fifteen periods per week that he required, and the missed related services. See Draper v. Atlanta Independent Sch. System, 480 F. Supp.2d 1331, 1352-53 (N.D. Ga.2007), aff'd 518 F.3d 1275, 1290 (11TM Cir.

2008) (“Appropriate relief is designed to ensure that the student is appropriately educated within the meaning of the IDEA and to provide the educational benefits the school district should have supplied in the first place”’)(citations omitted); see also, e.g., Student , 2008 WL 4890440, at *26 (ordering relief identical to what should have been provided to the student in the first instance).

I find that the DOE should provide for the 15 hours, per week, of SETSS that required in January 2018, continuing to date and the related service mandated on the IEP: Counseling (once a week, for 30 minutes, in a group, and twice a week, for 30 minutes, individually); Physical Therapy (twice a week, for 30 minutes, individually); Occupational Therapy (4 times a week, for 30 minutes, individually); and Speech Language Therapy (twice a week, for 30 minutes, individually, and once a week, for 30 minutes, in a group). (Ex. G-8, G-9)

Given the uncontested evidence that the district to date has not provided with any of the services outlined in the IESP, it is further reasonable that the compensatory education services ordered would cover the full amount of services would have, or should have, received during the life of the January 2018 IESP (i.e. for a total of ^[39] weeks, beginning on the proposed implementation date — February 5, 2018 — through the date of review — January 23, 2019). As such, an appropriate compensatory education award would be calculated as follows: 1) SETSS, provided for 15 hour-long periods/week, for 39 weeks, totaling 585 periods; 2) Speech-Language Therapy: twice weekly, for 30 minutes in a 1:1 setting, for 3) Speech-Language Therapy: once weekly, for 30 minutes, in a group setting, for 39 weeks, totaling 39 sessions; 4) Occupational Therapy: 4 times per week, for 30 minutes, in a 1:1 setting, for 39 weeks, totaling 156 sessions; 5) Physical Therapy: twice weekly, for 30 minutes, in a 1:1 setting, for 39 weeks, totaling 78 sessions; 6) Counseling: once weekly, for 30 minutes in a group setting, for 39 weeks, totaling 39 sessions; and 7) Counseling: twice a week, for 30 minutes in a 1:1 setting, for 39 weeks, totaling 78 sessions.

In order for the DOE to remedy its failure to provide the student with FAPE, compensatory education services must be ordered in such a way as to confirm that will be able to receive such services. Notably, the only evidence presented at hearing demonstrates that the DOE did not assign a SETSS provider who works at its standard rate to work with the student (T. 50). The Parent attempted to find such a provider, however was unsuccessful; when she alerted the DOE of the issue, her concerns went unaddressed. (Ex. C; T. 50-1).

As per Parent’s counsel, I again agree that the parent’s DPC, and amended DPC, were both filed during the life of the January 2018 IESP, but prior to the start of the 2018-2019 school year. The parent could not have known, at that time, that the district would continue to skirt its responsibilities to implement the IESP, once the new school year began, at that time. Thus, the parents “cannot be required to have exhausted a claim that did not yet exist.”

I concur with Parent’s counsel that the all evidence demonstrates that, in order to find a SETSS provider to work with , that the DOE must be compelled to pay a higher rate. The only available provider presented at hearing was . (See record progress. (T. 22, 23). Thus, the rate charged by ($150/session) is wholly reasonable, as it is covers the costs necessary to providing with quality services, and the services provided thus far by should be included in any order for compensatory education. (T. 25-6) See e.g., M.H. v. N.Y.C. Dep't of Educ., 712 F. Supp.2d 125, 169 (S.D.N.Y. 2010), affd 685 F.3d 217 (2d Cir. 2012) (“Individual services... would be expected to cost more than [group] instruction because the studentteacher ratio is lower. This is particularly true in a place with a high cost of living, such as New York City.”); Mr. & Mrs. A. v. N.Y.C. Dep't of Educ., 769 F. Supp.2d 403, 429-30 (S.D.N.Y. 2011).

Moreover, the evidence presented is clear that, though ’s parents have attempted to implement the Related Service Authorizations (“RSAs’’) issued by the district, they have yet to find providers who can work with pursuant to these vouchers. (T. 58) Thus, in order to appropriately compensate for the failure to provide the mandated services from the get-go, any order for compensatory education must include a mandate that the district locate a provider to work with going forward, and to fulfill any award for compensatory education.

Therefore, given the foregoing, the parents request that that an order be issued to: (1) declare that the DOE’s January 2018 IESP was inappropriate for and was not implemented in a timely manner, denying a FAPE; (2) order the CSE to modify

’s IESP to include 15 hours, per week, of 1:1 SETSS, a 1:1 paraprofessional, and services provided on a 12 month (extended school year basis); (3) order the CSE to immediately locate related service providers for ; and (4) order the DOE to fund/provide compensatory education services for , including: (1) 585 hour long periods of SETSS, provided by , on a 1:1 basis, at a rate of $150/session (including retroactive funding for services provided, beginning in September 2018, by ); (2) 78 1:1 Speech-Language Therapy sessions; (3) 39 group Speech-Language Therapy sessions; (4) 156 1:1 Occupational Therapy sessions; (5) 78 1:1 Physical Therapy sessions; (6) 39 group Counseling sessions; (7) 78 1:1 Counseling 78 sessions.

Once it has been determined that a student has been denied a FAPE, hearing officers have broad equitable powers to fashion a remedy that is appropriate to address the student’s needs, based upon the unique facts of the case. SRO 08-052, at pp. 17-18. It is well settled that “compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case.” SRO 11-065, at p.2 (citing Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997)); Mr. and Mrs. A. ex rel. D.A. v. N.Y.C. Dep’t of Educ., 769 F.Supp.2d 403 (S.D.N.Y. 2011) (holding that such equitable powers extend to prospective payments for educational instruction where parents cannot afford the financial outlay required by reimbursement cases). Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA. See 20 U.S.C. §§ 1401(3), 1412(a)(1)(B); N.Y. Educ. Law §§ 3202(1), 4401(1), 4402(5)).

When calculating a compensatory services award, some courts examine the amount of time during which a child has been deprived of a FAPE and award compensatory services with an eye towards making up that time. See, e.g., MC. v. Central Reg. Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding generally that, subject to equitable adjustment, the “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem.’’). Some other courts focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to measures” designed to “correct those deficits.” Jd. at 526. The goal of a hearing officer in awarding compensatory education is to make the child educationally whole. G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 624 (3d Cir. 2015) (“compensatory education must cover the entire period and must belatedly provide all education and related services previously denied and needed to make the child whole.”) (quoting 150 Cong. Rec. S11851 (daily ed. Nov. 24, 2004) (statement of Sen. Tom Harkin)).

In fashioning a compensatory award, "the inquiry must be fact-specific” and the 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.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir.

1994) (holding that "[a]ppropriate relief is relief designed to ensure that V.D.is appropriately educated within the meaning of the IDEA"). That is, a compensatory 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.” Application of a Student with a Disability, Appeal No. 13-208; see also Newington, 546 F.3d at 123 (holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"); Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]); Bd. of Educ. v. L.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) 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").

In New York, the school district must carry the burden of proving that its recommended program provides the student with a FAPE. Ed. Law § 4404(1)(c). Here, the Parent raised numerous allegations that the DOE failed to identify the Student with a disability, failed to appropriately evaluate, and failed to address the Student’s speech, emotional, and behavior needs. The Parent alleged and presented evidence showing the Student failed to make any meaningful progress over the last three school years. Yet, the Department failed to present any evidence to disprove the Parent’s allegations or refute the Parent’s evidence. Although the Department initially disputed the Parent’s right to an IEE, the Department failed to show that it exercised one of its statutory obligations under 8 § NYCRR 200.5 (g) by either authorizing the IEE or initiating a hearing as required under the state regulations when a Parent requests an IEE. Overall, the DOE failed to meet its burden that it provided FAPE, therefore, the Student should be entitled to relief.

Under the IDEA federal regulations, 34 CFR § 300.111, “the State must have in effect policies and procedures to ensure that—(i) All children with disabilities residing in the State... regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated; and (11) A practical method is developed and implemented to determine which children are currently receiving needed special education and related services.

The remedial authority of administrative hearing officers in fashioning equitable administrative hearing officer may order a district to place a student in a nonpublic school where either the school has been approved by the Commissioner of Education or where the officer has made a finding that the school constitutes an appropriate placement for the student. SRO 14-077 at 8. Here, the Parent is simply requesting placement in an appropriate, state-approved non-public school. A state-approved nonpublic school is a permissible placement for a school district to make on a student’s IEP. 8 N.Y.C.R.R. § 200.6(j).. The Department has a specific unit of specialists, the Central Based Support Team (“CBST’’) who locate and place students in New York State approved non-public schools (“NPS”) when the Department has failed to provide an appropriate placement or program. In light of these authorities, the IHO should find that he has authority to order direct deferral to the CBST for an appropriate NPS placement as recommended by Dr. eSod De

Thus, the evidence presented demonstrates that the DOE failed to implement the proposed IESP in a timely fashion, further denying a FAPE. 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a); 8 NYCRR § 200.4(e)(1)Gi). The DOE failed to present any evidence to the contrary. (See record generally) Thus, the record is clear: the CSE’s SETSS recommendation could not confer with an educational benefit as, instead, he requires significantly more 1:1 instruction from a special education teacher, on a 12 month basis.

In order for the DOE to effectively remedy its failure to provide with FAPE, compensatory education services must be ordered in such a way as to confirm that the student will be able to receive such services.

All evidence points to the fact that, in order to find a SETSS provider to work with , the district must be compelled to pay a higher rate. The only available provider presented at hearing was . (See record generally). has assessed and developed an individualized curriculum to meet his needs. (T. 16-22) With such services in place, has begun to make progress. (T. 22, 23).

Therefore, I find that the DOE’s January 2018 IESP was inappropriate for and was not implemented in a timely manner, denying a FAPE and order that: (1) the CSE to modify ’s IESP to include 15 hours, per week, of 1:1 SETSS, a 1:1 paraprofessional, and services provided on a 12 month (extended school year basis); (2) the CSE to immediately locate related service providers for ; and (3) the DOE to fund/provide compensatory education services for , including: (a) 585 hour long periods of SETSS, provided by , on a 1:1 basis, ata rate of $150/session (including retroactive funding for services provided, beginning in September 2018); (b)Two times per week for 78 sessions for 30 minutes; 1:1 Speech-Language

Therapy

(c)One times per week for 39 sessions for 30 minutes; Group Speech-Language Therapy (d)Four times per week for 156 sessions for 30 minutes; 1:1 Occupational

Therapy

(ec) Two times per week for 39 sessions for 30 minutes; 1:1 Physical Therapy (f) One times per week for 39 sessions for 30 minutes; Group Counseling (g) Two times per week for 78 sessions for 30 minutes; 1:1 Counseling

Dated: March 29, 2019

Gary O Peters, Eag.

GARY D. PETERS, ESQ.

Impartial Hearing Officer

GDP:

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. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD

P-A. Exhibit Number Number Exhibit Date of Pages Demand for Due Process Hearing 3/15/18 3 pages

P-B. Amended Demand for Due Process Hearing 7/10/18 4 pages

P-C. Letter from Parent to /fax confirmation 3/5/18 2 pages

P-D. Letter from Classroom teacher undated 1 page

P-E. Letter from Tutor undated 1 page

P-F. Statement of Anticipated Costs 8/24/18 1 page

P-G. IEP 1/22/18 13 pages

Footnotes

[39] weeks, totaling 78 sessions; generally) has assessed and developed an individualized curriculum to meet his needs. (T. 16-22) With such services in place, has begun to make this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to = provide a FAPE and “specific compensatory The Parents did not need to establish that a “gross” violation of the IDEA occurred in order for the IHO to award compensatory education. See, e.g. Newington, 546 F.3d 111 (2d Cir. 2008) (finding that the "gross violation" standard only applies to compensatory education awarded to students over the age of 21). Even when Courts have relief is broad. Forest Grove Sch. Dist. v. T.A.. 557 U.S. 230, 237 (2009). An applied a “gross” standard, the term has not been clearly defined; at a minimum, “it appears that exclusion of the student from school for a substantial period of time would suffice” to meet the standard. Application of a Student with a Disability, Appeal No. 13- 208 (citing Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d. Cir. 1990]; V.M. v. Colonie Sch. Dist., 2013 WL 3187069, at *19).