New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 172929

Student’s Name:

Date of Birth:

District Number:

Record Close Date: April 29, 2019

Hearing Requested by: Parent

Dates of Hearing: April 3, 2019

April 3, 2019

Attorney Dept. of Education

Mother Parent

DOE Designee Dep’t of Education

A. Demand for Due Process Hearing T2VAS 10

D, Evaluations i2/28/17 54

E Dr. CV undated 3

PF. Dr, Affidavit L241 S i i Parent Affidavit 3/29/19 4

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 # 172929.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, and the Parent was represented by her Attorney

BACKGROUND

Parent’s counsel maintained the that student hereinafter referred to as was classified as a student with a “Speech/Language Impairment” by the New York City Department of Education (DOE) and maintained that he was not properly assessed.

PARENT’S POSITION

Parent’s counsel asserts that the DOE failed to properly assess who was labeled as a student with a Speech and Language Impairment; the nuances of his disability were never explored. The DOE was required to examine all of the student’s special education needs; however, only chose to provide 1-2 state exams. As a result, ’s prior IEPs from 2015-2016, 2016-2017, and 2017-2018 school year were inadequate.

Parent’s counsel maintained that requires further assessments and is requesting a comprehensive neuropsychological evaluation with Dr. of Integrative Psychological Services at a rate of $4,500.00; a speech and language and occupational therapy evaluation by at a rate of $1,500.00 each.

Parent is also requesting Compensatory Education Services from the ( ) for 643 hours of 1:1 tutoring, metro cards and evaluations. Lastly, Parent’s counsel seeks an order that the CSE team reconvene after the evaluations are completed.

THE DOE’S POSITION

The DOE has only articulated that it is the Parent’s obligation to establish the need for the services and evaluation sought herein.

THE DEPARTMENT?’S CASE

The DOE didn’t provide any evidence, witnesses and rested.

THE PARENT’S CASE

The 2015-2016 IEP for second grade recommended an ICT setting, with speech/language therapy services in a group of five students for 30 minutes, two times per week (Exhibit C). The 2016-2017 IEP (Exhibit B) for the third grade essentially was a “copy” prior IEP recommendations despite a clear lack of progress. For the 2017-2018 school year in fourth grade, there was no IEP meeting. I agree with Parent’s counsel that the records and evidence establish that due to the DOE’s improper management of _ ’s needs including but not limited to the following: inadequate testing, annual goals, classroom placements and insufficient related services; led to a global failure tomeet ’s unique special education needs.

The parent took her son to the in January of 2018 for an evaluation, testing and services to remediate . Ms. ’s affidavit and testing revealed that was several years behind and lacked the foundational concepts that he required to make progress (Parent’s Exhibits D and H). Ms. recommended 643 hours of 1:1 tutoring. As per Parent’s counsel the same deficits are noted by the DOE. (Parent’s Exhibits B, C).

Parent is also seeking an independent comprehensive neurological evaluation in years with Dr. ee 2t a rate of $4,500.00; and a speech and language and occupational therapy evaluation by at a rate of $1,500.00 each.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This hearing was requested pursuant to the Individuals with Disabilities Education Act (the “IDEA”’’) (see 20 USC § 1400 et seq.). “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” (M.H. v. N. Y. C. Dept. of Educ., 685 F3d 217, 223 (2d Cir. 2012) (citing 20 USC § 1400(d)(1)(A)-(B))). Further, “a school district’s program must provide ‘special education and related services,’ tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.” (M.H. v. N.Y.C. Dept. of Educ., supra, at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105,107 (2d Cir.

2007) (internal citations omitted)). A central purpose of the IDEA is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. 1400 [d] [1] [A]; Bd. of Educ. v Rowley, 458 U.S. 176, 179-181,200-01. FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. 1401 [9J][DJ; 34RCNY 300.17.

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate; the services selected by the parent were appropriate and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dept of Education, 471 U.S. 359 [1985]; Florence County Sch. District Four v. Carter, 510 us. 7 [1985]). The first step is to determine whether the district offered to provide a FAPE to the student. FAPE is offered to a student when (a) the board of education complies with the procedural requirements in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley at 206-07). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to FAPE, (b) significantly impede the parents' opportunity to participate’ in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits

{20 U.S. C. 1415 [f][3][E] [ 1]

An appropriate educational program begins with an. IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special educational (Application of a Child with a Disability, Appeal No. 07-008, Application of the Bd of Educ., Appeal No. 06-076).

The IDEA "expresses a strong preference for children with disabilities to be educated "to the maximum extent,"" appropriate with their non-disabled peers." See Walczakyv. Fla. Union Free Sch, Dist.; 142 F,3d 119,122 (2nd Cir. 1998). A FAPE must be provided to a child with disabilities in the "least restrictive setting consistent with the child's needs (see Perricelli v. Carmel Cent Sch. Dist., 2007 WL 465211, at 10*[S:D.N.Y. Feb. 9,2007], citing Walczak, 14'2 F.3d 2t122) In determining: an' appropriate .placement in the LRE, the IDEA requires that a child with disabilities be educated to the maximum extent. appropriate with children who are disabled and that special classes, separate schooling or other removal of children with disabilities from the .regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily 20 USC 1412 [a] [S5][5J [AJ; 8 NYCRR 200.6 [a][1]; see also Bay Shore Union Free Sch, Dist. T. 4O0SF.Supp. 2d 230, 239-40 E.D.N.Y. 2005.) In determining whether a student can be educated in regular classes, it is not necessary to establish that the student will learn at the same rate, or master as much of the regular education curriculum as his or her disabled peers(Daniel R.R. v. State Bd. of Educ .. 874 F.2d 1036. 1044 [5th Cir, I]. The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Bd of Educ .* 995 F. 1204, J213 [3rd Cir. ]993]). The Daniel R.R. Oberti test for" determining whether a school district has complied with the LRE requirement consists of two prongs:

1) whether the student can be educated in .a general education class with the aid of supplemental aids and services; and

2) whether the school district has main streamed the student to the maximum extent appropriate (Danie/ R.R. at 1048). In determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, several factors should be considered including;

1) whether the school district has been reasonable in trying to accommodate the child in a regular classroom;

2) the educational benefits available to the child in a regular class, 'with appropriate supplementary aids and services, and 3)the possible negative effects of the inclusion of the child on the education of the other students in the class (Oberti, at 1217-18). The CSE must also consider the unique benefits, academic and otherwise, which a Student may receive remaining in regular classes e.g. language and role modeling with nondisabled peers (Geer v. Rome City Sch., Dist., 950 F.2d 688 [11th Cir. 1991]).

School districts are required to formulate an Individualized Education Program (IEP) for each student with a disability in order to deliver appropriate services to that child. It is “[t]he centerpiece of the IDEA’s educational delivery system” (M.H., supra, at 224 (quoting D.D. ex rel. V.D., 465 F3d at 507)). Moreover, “for a child’s IEP to be adequate, it must be “[‘]likely to produce progress...and afford the student with an opportunity greater than mere trivial advancement’” (Id. (quoting T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F3d 247, 254 (2d Cir. 2009).

It is fundamental that the CSE’s placement recommendation must be based upon the student’s needs (34 CFR §300.116(b)(2), and that the IEP must be based upon current evaluations (SRO 11-

126 at 20). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” SRO 08-052; SRO 08-060 (citations omitted).

Federal regulations require that, once an IEP is adopted for a disabled child, “[e]ach public agency shall ensure that (1)[a]n IEP ... [1]s implemented as soon as possible following the [TEP] meeting (D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 508 (2d Cir. 2006), 480 F.3d 138 (2d Cir. 2007)). New York State regulations mandate that “there may be no delay in implementing a student's IEP” (8 NYCRR §200.4(e) (1)(1)), that “the school district shall ensure that each student with a disability has an IEP in effect at the beginning of each school year” (8 NYCRR §200.4(e) (1)(1i)), that the “the school district shall ensure that the recommendations on a student’s IEP... are implemented” (8 NYCRR §200.4(e) (3), and that “the school district must provide special education and related services to a student with a disability in accordance with the student's IEP” (8 NYCRR §200.4(e) (7)). The IEP of each student with a disability shall be reviewed and, if appropriate, revised periodically, but not less than annually, to determine if the annual goals for the student are being achieved. (8 NYCRR §200.4 (f))

“In developing the recommendations for the IEP, the committee must consider the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the results of the student’s performance on any general State or district-wide assessment programs; and any special considerations in paragraph (3) of this subdivision.” 8N.Y.C.R.R. § 200.4(d)(2). In R.E. v. NYCDOE, 694 F.3d 167 (2nd Cir. 2012), the Second Circuit “adopt[ed] the majority view that the IEP must be evaluated prospectively as of the time of its drafting [.]” /d., at 186. The Department has the burden of proving its program and placement recommendation to be appropriate. N.Y. Ed. L. § 4404(1) (c).

If the parent obtains an independent educational evaluation at public expense or shares with the school district an evaluation obtained at private expense, the results of the evaluation must be considered by the school district, if it meets the school district’s criteria, in any decisions made with respect to the provision of a free appropriate public education for the student. 8 N.Y.C.R.R. $ 200.5(g)(1)(vi)(a

While compensatory education is a remedy that is available to students who are no longer eligible for instruction, State Review Officers have awarded “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. SRO 06-074; see also Streck v. Board of Educ. of the East Greenbush Central School Dist., 2010 WL 484748, *2 (2nd Cir. 2010) (“To implement the SRO’s award, the value of the prospective compensatory education must be set aside by the school district and placed in ESCROW for use in paying up-front for the compensatory education expenses’’).

In the SRO decision that led to Streck, the SRO stated that “[t]he obligation to implement a sufficient IEP and thus provide a student with a FAPE rests with the school district. Where, as here, the evidence supports a finding that the district denied the student a FAPE for an extended period of time, it is appropriate to provide a remedy that is calculated to place the student in the same position where the student would be if an appropriate program had been implemented during the years when the student was eligible for special education under IDEA.” SRO 03-010.

The Second Circuit observed that “[i]n enacting the IDEA, Congress did not intend to create a right without a remedy.” Streck, supra, at 415. “Therefore, when a court grants prospective compensatory education under the IDEA, the prevailing party’s ability to utilize that award cannot turn on prospective compensatory education must be set aside by the school district and placed in ESCROW for use in paying up-front for the compensatory education expenses.

In Streck, the SRO found a “gross violation” of IDEA, in that “the student was not being instructed by a professional trained in teaching students with dyslexia or dysgraphia, and that IEP evaluations were submitted to the CSE with knowledge that they did not accurately reflect the student’s level of achievement.” SRO 03-010. Recent district court decisions in this circuit indicate a trend toward holding that proving a “gross” violation of IDEA is only necessary to receive compensatory education where the student has aged out of his IDEA eligibility, namely, that he is over the age of twenty-one. See, e.g., Student X v. New York City Dept. of Educ., 2008 WL 4890440 (E.D.N.Y. 2008) (“The district court in that case had explicitly ‘disagreed’ with the argument that compensatory education is warranted only if there is a gross violation, noting that ‘[t]he requirement of a gross violation before any relief can be granted has been applied only to cases involving claimants over the age of 21.’”) quoting P. v. Newington Bd. of Educ., 512 F.Supp.2d 89, 112 n. 13 (D.Conn. 2007) aff'd 546 F.3d 111 (2nd Cir. 2008) (“The hearing officer in this case ordered that receive compensatory education to remedy the deprivation of his statutory rights for the 2004— 2005 school year” and upholding that award). In upholding the award of compensatory education in P. v. Newington, the Second Circuit held that “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” 546 F.3d at 123. In Reid v. D.C., A401 F.3d 516, 524 (D.C. Cir. 2005) a district court held that “awards compensating past violations [must] rely on individualized assessments” rather than “mechanical hour-counting when past rather than current violations of the FAPE standard was at issue.”

As per parent’s counsel, the instant case “is more than one of failed assessments and testing, it is a matter, which reveals the hardships placed on families who are simply trying to figure out what is going on with their son or daughter, lacking the expertise or knowledge to initiate a claim. It showcases the up-hill battle many parents face after recognizing that their child requires special education services”.

The IEP’s, evaluation and test results established that was functioning well below grade level. Furthermore, there was no IEP for the 2017-2018 school year to address longstanding issues of “lack of meaningful progress”

In conclusion, I find that the program proposed by the Parent is appropriate, highly individualized, and tailored to meet her son’s needs in an intensive but focused manner. As per Ms.

’s affidavit from regarding her predictions. The program proposed for appears to have been designed specifically to address his unique individual academic deficits revealed by the testing. Ms. established that can provide the student with the individualized attention and instruction he requires to remedy the failure by the DOE to have provided an appropriate placement and program for the last two to three years.

After due deliberation, order as follows:

1. That the DOE denied a FAPE for the school years in issue;

2. That the DOE pay for a comprehensive neuropsychological evaluation with Dr. Of ee 2 a rate of $4,500.00; a speech and language and occupational therapy evaluation by at a rate of $1,500.00 each. All to be paid within 30 days of receipt of report and invoice.

3. That the DOE pay for compensatory services for up to 643 hours at the rate of $100.00 per hour. Additionally, the DOE shall pay the sums of $100.00 for a registration fee and $295.00 for an evaluation from the ( ) including daily transportation to and from the facility via Metro cards. All to be paid within 30 days of receipt of report and invoice.

4. That the CSE team reconvene within 30 days after the evaluations are completed to review same.

Dated: May 1, 2019

Gary O. Pater, Eng

GARY D. PETERS

IMPARTIAL HEARING OFFICER

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act. “The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.” (SNYCRR279.2 [b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision. Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals. htm.