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FINDINGS OF FACT AND DECISION
Case Id:
District Case Number: 175018
Student’s Name:
Date of Birth:
Hearing Requested By: Parents
Dates of Hearing: September 5, 2018
March 19, 2020
April 2, 2020
April 30, 2020
May 29, 2020
June 22, 2020
June 24, 2020
June 26, 2020
Actual Record Closed Date: July 7, 2020
Hearing Officer: Jeffrey Silverson, Esq. Case Id:
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 5, 2018
FOR THE STUDENT:
, ESQ., ATTORNEY
FOR THE DISTRICT:
, Representative (VIA TELEPHONE)
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 19, 2020
FOR THE STUDENT:
, ESQ., ATTORNEY (VIA TELEPHONE)
FOR THE DISTRICT:
, Representative (VIA TELEPHONE)
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 2, 2020
FOR THE STUDENT:
, ESQ., ATTORNEY (VIA TELEPHONE)
FOR THE DISTRICT:
, Representative (VIA TELEPHONE)
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 30, 2020
FOR THE STUDENT:
, ESQ., ATTORNEY (VIA TELEPHONE)
FOR THE DISTRICT:
, Representative (VIA TELEPHONE)
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 29, 2020
FOR THE STUDENT:
, ESQ., ATTORNEY (VIA TELEPHONE)
FOR THE DISTRICT:
, Representative (VIA TELEPHONE)
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 22, 2020
FOR THE STUDENT:
, ESQ., ATTORNEY (VIA TELEPHONE)
FOR THE DISTRICT:
, Representative (VIA TELEPHONE)
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 24, 2020
FOR THE STUDENT:
, ESQ., ATTORNEY (VIA TELEPHONE)
(VIA TELEPHONE)
, Teacher, (VIA TELEPHONE)
Teacher, (VIA TELEPHONE)
FOR THE DISTRICT:
, Representative (VIA TELEPHONE)
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 26, 2020
FOR THE STUDENT:
, ESQ., ATTORNEY (VIA TELEPHONE)
FOR THE DISTRICT:
, Representative (VIA TELEPHONE)
I. PROCEDURAL HISTORY
On July 5, 2018, a due process complaint (“DPC”)[1] dated that same day was filed on behalf of (“Student” or “ ”) against the New York City Department of Education (“DoE”) alleging the denial of a free and appropriate public education (“FAPE”), and seeking funding for the Student’s placement at the (“ ” or “School”) for the bulk of the 2017-2018 and 2018-2019 school years (“SYs”). On July 11, 2018, after a recusal, I was appointed as the Impartial Hearing Officer regarding the matter. The Parents were represented by , Esq., from the , and the Department of Education was represented by on behalf of . On July 27, 2018, the remaining period of the mandatory resolution period (8 NYCRR §200.5(j)(2)) was waived by the parties, and on August 3, 2018, I held a telephonic pre-hearing conference with them. Later, after short hearings discussing the case status, a substantive hearing commencing on June 22, 2020 transpired on three dates pursuant to the Individuals with Disabilities Education Improvement Act (I.D.E.I.A.), and relevant NYS Regulations.
Eventually, mostly pursuant to joint requests from the parties, twenty-two (22)
extensions to the case timeline were issued in accordance with the Commissioner’s Regulations at 8 N.Y.C. §200.5(j)(5)(ii) and 34 C.F. §300.515(c). The latter two were granted for sixty-day periods. 8 NYCRR
200.5; See Exhibits I-XXII. The current compliance date is August 30, 2020. After the parties chose not to submit written closing statements2, the record was closed (the ARCD) on July 7, 2020, upon receipt of the full hearing transcript3. Appended to my decision are lists of the persons in attendance at the hearings, documents received in evidence, and a statement regarding the right to appeal. See 8 NYCRR § 200.5(j)(5)(v).
II. PRELIMINARY FACTUAL BACKGROUND
2 See Tr. 123-124.
3 Via electronic copy.
turned . Within a Psychological
Update administered the month prior to the last IEP meeting, she scored mostly within the average range on the Wechsler Individual Achievement Test with a below average score on math problem solving. Exhibit 4-2. The IEP in question, which had originally been developed by the District prior to the commencement of the 2017-2018 SY, was dated February 1, 2017, and as Parent counsel stated during closing was essentially in effect prior to the commencement of the 2017- 2018 school year. On it, classification was given as Other Health Impairment.
See Exhibit 5 On a Prior Written Notice dated two days later, the Parents were notified that their daughter was to be given a 10-month placement at a district school, which was to include SETSS4 and related services. Towards the close of that month, the Parents had their daughter evaluated by a pediatric psychologist and her associate during a private neuropsychological evaluation. On it, she was found to be “within the average range of overall intellectual functioning.” Exhibit D-
13 A few months later, based upon the information that they had received in July 2017 – prior to the commencement of the 2017-2018 SY – they sent a letter to the principal of the district school where their daughter had been attending, “urgently” requesting an updated IEP meeting. In the letter, they wrote about her struggles over the past school year, and brought out the conclusion of the aforementioned neuropsychological report, which recommended a “supportive classroom within a specialized school.” See Exhibit C There was no response to the Parents’ letter, and the concerns that they stated therein. Further, as the Student’s mother testified, there was no IEP for either the upcoming 2017-2018 SY, or for the following one. Tr. 98-100 Nor, has the District offered one to be put into evidence.
III. POSITIONS OF THE PARTIES
Given an opportunity to advance their respective positions through opening statements, the following transpired:
The DoE
4
Special education teacher support services
The DoE representative did not give an opening statement; nor did he call any witnesses. Instead, he simply rested. More specifically, he stated: “I'm just resting on my evidence for this case. I won't be calling any witnesses, and I do not have an opening.” Tr. 41 He also chose not to present a closing argument. Tr. 113
The Parents
The Parents’ position is that the DoE denied a FAPE to their daughter by failing to offer a program or a placement for her prior to the start of the 2017-2018 and 2018- 2019 SYs. See Tr. 107 Therefore, on the advice of professionals who knew her, and after visiting the School - which was a therapeutic placement in - they believed that they had no choice but to place their daughter there. Finally, because the Parents have fully cooperated with the DoE throughout the foregoing process, the District should be held responsible for tuition payment regarding the aforementioned
SYs. Additionally, during closing, the Parents asked that the DoE pay for their daughter’s 2019 summer attendance at the .
See the Parent’s Closing Argument - Tr. 114-123
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Legal Framework and Standard
While the case before me deals mostly with an examination of the appropriateness of the Student’s attendance at , I will begin with an overview of pertinent law regarding a District’s initial obligation to provide FAPE.
The underlying intention of the IDEIA (20 U.S.C. §§ 1400-1482) is to provide children with disabilities a FAPE. A foundational Supreme Court decision, Rowley, in defining what was meant by a FAPE held that the IDEA does not require states to “maximize the potential of each handicapped child commensurate with the opportunity provided non-handicapped children.” It does set a floor, however, and holds that a State furnishes a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Board of Education v. Rowley 458 US 176, 203 [1982].
For a child who is classified by the CSE, a threshold tool in providing a FAPE is a written, individualized education program (IEP) that is tailored to the unique needs of the handicapped child. Indeed, the "centerpiece" of the IDEA's education delivery system is the IEP. Murphy v. Arlington Central School District Board of Education 297 F.3d 195, 197 (2d Cir. 2002) (internal citation omitted).
The 2d Circuit, in Walczak v. Florida Union Free Sch. Dist., 142 F. 3d 119 (2d Cir.
1998), later added that the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP. The purpose of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.”
Walczak @130 (internal quotation marks omitted). In other words, what “the statute guarantees is an ‘appropriate’ education, "not one that provides everything that might be thought desirable by loving parents.’” Walczak at 132, citing Tucker
v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567. However, a school district must provide an IEP that affords the student with an opportunity greater than mere “trivial advancement.” Walczak, id. Then, further clarifying how much benefit is required to achieve FAPE, in Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, supra at 130 and Mrs. B., 103 F.3d at 1121, explained that a district fulfills its substantive obligations if its IEP leads to progress and not regression and a district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan.[5]
Three years ago, in Endrew F. v. Douglas Cnty. Sch. Dist. Re-1, 137 S. Ct.
988, 998-1001 (2017) - the Supreme Court - while resolving a split within the Circuit Courts - in a unanimous decision revisited and reshaped the early substantive standard it had enunciated within Rowley. Without reversing its initial delineation of what constitutes an appropriate offering by a school district to a child within a general education environment receiving special education services, and without clarifying what constitutes a “meaningful benefit”, it addressed the appropriate treatment of a child within a special education setting, and added that while an IEP need not provide a maximal benefit to the child, it must offer more than a de minimus one. Specifically: "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. id., at 999.
In other words, the Court emphasized progress for the individual child given his or her unique needs. “After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." (citations omitted) Id.
Furthermore, “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created." Thus the Court - as in its earlier Rowley decision – once again leads us to an individualized fact intensive inquiry, albeit from a different perspective, which is a focus by IEP teams on the individual child and whether appropriate progress is being made in light of that child’s unique, and often evolving circumstances.[6]
In the seminal case of Burlington, the Supreme Court addressed potential tuition reimbursement to parents, by holding that in an appropriate situation it was allowable under the Act. To make such a determination, it formulated a three-part examination of what is required to be shown. The three parts, or “Prongs” are, whether: (1) The placement offered by their school district was inadequate or inappropriate; (2) The program selected by the parent was appropriate; and, (3) If equities supported the parent’s claim. School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985). Should a parent fail in either of the initial two Prongs, the inquiry terminates at that point and reimbursement is denied. Id. The Supreme Court later put the burden of persuasion in an administrative hearing upon the party seeking relief. Schaffer v.
Weast, 546 U.S. 49, 59-62 [2005]. However, the New York State Legislature subsequently reversed that obligation, and placed the burden of production and persuasion upon the school district instead, except as regards Prong 2, where the parent is tasked with the burden. (See Educ. Law §4401[1][c], as amended by Ch. 583 of the Laws of 2007)
Prong 1-The DoE Failed to Offer an Appropriate Education The threshold issue in this matter, and indeed in all IDEA controversies – which essentially involve a determination of liability – is whether the DoE offered the respective student an appropriate IEP and program for the school year(s) at issue.
Federal law provides that each public agency shall have an IEP for each child with a disability within its jurisdiction (20 U.S.C. § 1414(d)(2)(A)). In the matter before me, the Parents allege that the District did not comply with the procedural7 or substantive requirements of the IDEA. Indeed, since it is uncontested that the District failed to have an IEP and program in place for either of the two school years at issue, I easily find that the District did not provide a FAPE to for the 2017-2018 and 2018-2019 school years. Consequently, I will now turn to the Parents’ burden to demonstrate that they had filled the void by providing for their daughter what the DoE had not.
Prong 2-The Parent Placement
In addressing the burden that a Parent must meet to satisfy Prong 2 of Burlington, the Second Circuit disseminates a detailed outline to help decide it.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive 7 Where a procedural violation is alleged, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies impeded the child’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits. 20 U.S.C. §1415 (f)(2)(E).
educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, quoting Frank G., 459 F.3d at 364-65). Furthermore, a unilateral placement at a private school need not be approved nor employ certified special education teachers. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 11 [1993]. Though, I note that while WP is not state-approved (Tr. 74), the Student’s Focus teacher, who she works one-on-one with her, is a licensed speech and language therapist. Tr. 39
Continuing with the Parent’s burden of proof, the measure of whether a unilateral placement is appropriate under the IDEA is similar but not identical to the standards applied to the DoE’s proposed placement. See A.D v. N.Y. City Dep’t of Educ., 690 F. Supp. 2d 193 (S.D.N.Y. 2010). The issue in sum is whether at the time of placement in the private school, the placement was reasonably calculated for the child to receive individualized educational benefit. Frank G., supra. Although the restrictiveness of the parental placement may be considered as a factor in determining whether the parents are entitled to an award of tuition reimbursement, “parents are not as rigorously held to the standard of placement in the LRE [least restrictive environment] as are school districts.” SRO No. 19-065 at 19 (citations omitted).
In the matter at hand, the Parents proceeded to go forward, seeking to persuade this IHO that the unilateral placement of their daughter at the was appropriate and afforded her educational benefits. Included in their presentation were three witnesses8 - two witnesses from the School itself, followed by the Student’s mother - each of whom I find to have given credible and relevant testimony. Further, the DoE – through brief cross-examination - did not uncover any
8
All of the witnesses testified over the telephone. underlying weakness in their testimony. I will now directly below briefly summarize their three respective presentations, in tandem with documentary evidence.
Ms. , who was teacher for her initial year
at he , and the special education coordinator for the second, commenced testimony for the Parents. She began by noting that was a therapeutic boarding school with a ceiling population of forty female students. The typical student was suffering from anxiety and/or depression. fit the bill in that regard, due to her anxiety and depression, which lead to her being extremely withdrawn, to the extent that she would hide within her clothing, and withdraw from the learning process, despite being intellectually capable of handling the schoolwork. The classes that she attended were relatively small, with each containing only three to twelve students. added that the School created its own version of an IEP, which it labeled a academic plan, or
“CAP,” for short. (Tr. 59) Furthermore, the CAP was updated far more frequently than the annual update requirement for local NYS school districts to update IEPs.
Therefore, according to the witness, the School was able to continually modify and advance therapeutic treatment plan.
With a head start in confidence building from the Program at
True North (which preceded her attendance at the School), continued, gained confidence, and began to hide less. She started to open up and talk to staff, which led to therapeutic progress. Significantly, in response to a direct question from Parent counsel, emphasized that “unequivocally” required the degree of wraparound support afforded by the School’s residential nature, which untapped her inherent intellectual ability, leading to a steady, upward progression of grades. Tr. 74-75 served as the clinical director who oversaw all of the therapeutic services that were being offered at the School. However, he did at times provide direct therapy to , and overall worked closely on her case. He reiterated what said regarding anxiety and depression obstructing both her academic progress, and her ability to maintain relationships.
Tr. 84 Eventually though, after focusing deeply on relationships with other students, and with her family, was able to have more direct communication with others.
Finally, mother testified. For starters, I note that she had obtained a BA from , and later an MA from the . See Exhibit D-4 Her testimony essentially consisted of two parts: (1)
Efforts to understand her daughter’s educational and emotional needs, and (2)
After becoming convinced that a private residential placement had become necessary for her, seeking out and selecting what she believed to be an appropriate one. Tr. 84 Then, in the absence of any placement for the 2017-2018 SY from the DoE, and observing steady progress having been made at the School, she reenrolled her daughter there for the 10-month 2018-2019 SY at issue.
Indeed, added that her daughter gets whatever she needs there. In sum, while continued to have difficulties in some areas, she nevertheless continued making overall progress at the School.
I note that documentary evidence underscores ’s testimony, and demonstrates that her daughter was making progress at during the two school years, which buttresses the Parents’ argument that the School was an appropriate placement for her; for while a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed App'x 80, 82 [2d Cir.
Dec. 26, 2012]; Frank G., 459 F.3d at 364), it is nevertheless a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). See, for example Exhibits K, Q and
In sum, based on the credible testimony provided by the two School witnesses and by the Student’s mother, and in the absence of any contrary evidence submitted by the DoE at hearing, I find that the record strongly supports its appropriateness for , in that it provided a program specially designed with individualized instruction to meet her unique academic and social-emotional needs, and hence provided her with an appropriate placement for the 2017-2018 and 2018- 2019 school years at issue. See Frank G., supra
Prong 3 - The Equities
Having found for the Parents on both Prongs 1 and 2, I now turn to Prong 3, where I reach a similar finding. With respect to equitable considerations, the IDEIA allows that tuition reimbursement may be reduced or denied when a parent fails to raise the appropriateness of an IEP in a timely manner and inform the school district of their intent to unilaterally place the child in a private school, fails to make their child available for evaluation by the school district, or upon a judicial finding of unreasonableness with respect to the actions taken by the Parent. 20 U.S.C.
§1412[a][10][C][iii]; M.C. v. Voluntown Bd. Of Educ. 226 F3d 60, 68 (2d Cir.2000)
See, Burlington, supra. That is not the case here. For regarding the proper administration of educational responsibility, the evidence at hearing elicited the opposite - a plethora of DoE deficiencies, which I will now present within a numerical timeline.
1) Disturbed by her daughter’s decline in performance during the 2016-2017 school year, her mother – during the early February 2017 IEP update - asked the Team for a more restrictive academic environment. However, the CSE ignored her concerns, and continued the program that was in place, which regrettably did not succeed. For during the remainder of the 2016-2017 SY while attending the District high school, continued doing rather poorly, as can be evidenced by her low grade point average. More specifically, her second semester report card revealed a plethora of Ds and Fs, which matched a similar result from her first semester grades. summarized that year by stating that her daughter’s grades “fell off of a cliff.” The social environment was terrible, and “she just went to hell.” Tr. 97-98 See Exhibit K-1
2) Shortly after the February 2017 IEP update, the Parents procured a private neuropsychological evaluation for their daughter. Exhibit D
3) Then, at the close of the 2016-2017 SY, they enrolled her in the (“ ”) in . While there, therapist advised them that their daughter was in “severe pain and crisis” (Tr. 99), and needed a residential therapeutic program.
4) Consequently, during the summer of 2017, her parents wrote a letter to the principal of the district high school urgently asking for an IEP meeting. Describing their daughter’s ongoing struggles in both underlying emotional functioning and in academics, they pointed out that during the recent 2016-2017 SY, her issues had grown to the point “that she frequently felt unable to come to class [and had] not accrued credits as expected.” Consequently, they were in fear that would “continue to flounder in [such a program over the upcoming SY] if nothing is done.”
In the letter, they asked the District to contact them at their “first opportunity” to conduct “all necessary evaluations” of their daughter, so as to have an appropriate program in place for her in September. See (Exhibit C-1) Yet, despite the obvious urgency of the letter, the District completely failed to respond to it. No evaluations were conducted. No IEP meeting was held prior to that September, or indeed at any time during the 2017-2018, or 2018-2019 SYs.
5) By that time, was hoping for a therapeutic day school in the City, but the therapist at told her that it would not be sufficient, that - who was cutting herself a lot - was in severe pain, and needed a therapeutic residential program.
Tr. 98-99
6) So, heeding that advice, mother hired an educational consultant (Tr. 100), and worked with staff to identify potential schools that might be suitable for her daughter.
7) Then, armed with the advice of professionals who knew her, the comprehensive neuropsychological evaluation that they had gotten, together with observation at the (See also, Tr. 65) that had determined need for a whole, wrap around, social-emotional and academic program, they visited three recommended residential schools. Only then did they choose , which they thought to be appropriate for their daughter. Tr. 116-117 Indeed, they believed that they had no choice but to enroll her there. signed a contract with the School on September 18, 2017, and began attending it early the following month. Tr. 102-103
Their actions stood in stark distinction from the passivity of the District. As highlighted above, one can clearly see that at very opportunity to advance position, the District turned a deaf ear and dropped the ball. For the Parents only sought a replacement for a District school after they had conscientiously sought to work with their District, which was supposed to be comprised of educational professionals. They repeatedly called out to it. They even paid for their own evaluations and professional schooling. They offered the District what they had learned. However, they were met with silence, inexplicable, ongoing silence. The silence led to a direct setback for their daughter.
In sum, the DoE’s extremely prolonged failure to provide the Student with a FAPE has led to a regression. Therefore, I find that not only must the regression be addressed and compensated for, but must also be given the education that she needs in order to have made the progress that she would have made had she been provided with timely appropriate special education by the District. So, I must now formulate an equitable remedy. In doing so, I first find that reimbursement of money paid to is insufficient to make up for the harm perpetrated upon the Parents and their child. So, in an attempt to recapture where she would have been but for the inadequate actions of the DoE, I will add to my upcoming order a layer of qualitative compensatory education.[9] For while the parents’ testimonial and evidentiary evidence demonstrated that their child had greatly improved, I find that the harm done to her needs more of a remedy than mere reimbursement for the two school years attended.
With that in mind, and upon further reviewing the record for assistance, I note that a psychological evaluation obtained by the Parents during the Spring semester of their daughter’s second school year at recommended that she “continue on in an academically based boarding school that has the ability to provide access to outpatient therapy services.” The evaluation concluded that “her gains are still fragile and require additional reinforcement in a step-down setting.”
Exhibit H-20-21 In accord with that finding, I note that had testified that during the summer program students tend to be given instruction in areas that they are most behind in, “and that's most therapeutically appropriate for them.” Tr. 76 Thus, a continuation of program at the school, which I have found to be appropriate for her academic and emotional needs would certainly go towards replacing what ought to have been given to her by the DoE in the first place. Consequently, taking into account all of the above-noted DoE miscues, in an effort to make the child whole, I am going to order that her Parents not only receive reimbursement for the two school years at issue in the DPC, but that they also be funded the follow-up 2019 summer school program at as compensatory education in an effort to reverse the predictable outcome of the
DoE’s abysmal overall performance.
Other Issues
I have considered all other requests and claims by the parties and find them to be without merit or insufficiently asserted. See T.B. v. Haverstraw-Stony Point Cent. Schl. Dist., 2013 WL 118479 (S.D.N.Y. 2013) citing Singleton v. City of Newburgh, 1 F.Supp.2d 306, 312 (S.D.N.Y. 1998), claim abandoned where alleged in the complaint but not raised elsewhere in the record. For instance, the DPC has a Section 504 claim, yet during the commencement of hearing Parent counsel withdrew that portion of his Complaint by stating that he did not have any “specific
504-only allegations.” Tr. 42 Nor, did he present any later.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT
IS HEREBY ORDERED THAT:
Upon proper proof of payment by the Parents, within thirty (30) days of its receipt of this Order, the New York City Department of Education is directed to reimburse the Parents for the following:
A. Reimbursement - for attendance at the during the 2017- 2018 and 2018-2019 school years; and
B. Reimbursement - for attendance at the during the 2019 summer program, as compensatory education.
Proper proof of payment may be demonstrated by such items as: Copies of cancelled checks, money orders, credit card statements, bank statements, invoices, etc.
Dated: July 25, 2020
/s/ Jeffrey Silverson
JEFFREY SILVERSON, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 40 days of the date of the decision, the parent and/or the school district has a right to appeal the decision to an SRO under Education Law Section 4404 and the IDEA. If either party plans to appeal the decision, a notice of intention to seek review must 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 must be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party must file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the OSR within two days after service of the request for review is complete. The rules of procedure for appeals before a 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 the Office of State Review website (http://www.sro.nysed.gov). Case Id:
DOCUMENTATION ENTERED INTO THE RECORD
DISTRICT
Exhibits Description Date Page(s)
1 Level I Vocational Interview 11/07/2016 3
2 Parent Request for Reevaluation 12/15/2016 1 3 Consent for Additional Testing 12/27/2016 1 4 Psychological Evaluation 1/5/2017 4 5 IEP w/ Attendance Page 2/1/2017 15
6 Prior Written Notice (Notice of Recommendation) 2/3/2017 5
7 Parent Letter 7/12/2017 1
8 Meeting Notice Committee on Special Education 7/13/2017 4
PARENTS
Exhibits Description Date Page(s)
A. Request for Impartial Hearing 7/5/2018 4
B. Notice of Unilateral Placement 6/18/2018 2
C. Letter to 7/12/2017 2
D. Neuropsychological Evaluation 2/20–2/24/2017 23
E. Letter from , Psy.D. 8/11/2017 1
F. Letter from , MSW 8/18/2017 2
G. True North Final Report 11/12017 6
H. Psychological Evaluation 3/20/2019 23
I. Tuition Financial Agreement 9/18/2017 3
J. Class Schedules 2017-18, 2018-19 4
K. High School Transcript 2/11/2019 1
L. Academic Plan 1/23/2018 4
M. Academic Plan Review 8/21/2018 2
N. Academic Plan Review 9/17/2018 2
O. Academic Plan Review 11/7/2018 1
P. Academic Plan Review 2/5/2019 2
Q. Progress Report 2018-2019 Fall 2
Progress Report 2018-2019 Spring 1
IMPARTIAL HEARING OFFICER
I Order extending the Compliance Date 09/05/2018 1
II Order extending the Compliance Date 10/05/2018 1
III Order extending the Compliance Date 11/01/2018 1
IV Order extending the Compliance Date 12/11/2018 1
V Order extending the Compliance Date 01/08/2019 1
VI Order extending the Compliance Date 02/06/2019 1
VII Order extending the Compliance Date 03/08/2019 1
VIII Order extending the Compliance Date 04/10/2019 1
IX Order extending the Compliance Date 05/06/2019 1
X Order extending the Compliance Date 06/05/2019 1
XI Order extending the Compliance Date 07/02/2019 1
XII Order extending the Compliance Date 08/07/2019 1
XIII Order extending the Compliance Date 09/05/2019 1
XIV Order extending the Compliance Date 10/08/2019 1
XV Order extending the Compliance Date 11/06/2019 1 XVI Order extending the Compliance Date 03/19/2020 1
XVII Order extending the Compliance Date 03/19/2020 1
XVIII Order extending the Compliance Date 03/19/2020 1
XIX Order extending the Compliance Date 03/19/2020 1
XX Order extending the Compliance Date 04/02/2020 1
XXI Order extending the Compliance Date 04/30/2020 1
XXII Order extending the Compliance Date 05/29/2020 1
Footnotes
[1] Pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C.§1415(f).
[5] Other Circuit Courts have supplemented the definition. With regard to a student attending special education classes, for instance, in Deal v. Hamilton County Board of Education, 392 F.3d 840 (2004), at 864, the Sixth circuit court of appeals concluded that “At the very least, the intent of Congress appears to have been to require a program providing a meaningful benefit toward the goal of self-sufficiency, especially where self-sufficiency is a realistic goal for a particular child.” It should be noted that this “Deal Standard “ of what constitutes FAPE was cited without comment in a second circuit case, A.D. v. M.D. individually and on behalf of E.D., Plaintiffs v. The Board of Education of the City School District of the City of New York, 690 F. Supp. 2d 193 (2009), at 217. Additionally, the third circuit has held that an Individualized Education Program (IEP) must provide “meaningful educational benefit.” T. ex. Rel. N. v. Kingwood Township Bd. Of Educ. 205 F.3d 572, 577 (3d Cir. 2000).
[6] As of the date of this decision, the Second Circuit has yet to definitively comment on the Supreme Court ruling. “Because we conclude that the School District failed to provide T.C. with a free and appropriate public education under the existing precedent in this circuit, we need not decide whether Endrew F. raised the bar for a free and appropriate public education or left Second Circuit precedent intact (the Supreme Court's decision certainly did not reduce the force of the requirement).” J.C. v Katonah-Lewisboro Sch. Dist., 2017 U.S. App. LEXIS 8171 [2d Cir May 9, 2017, No. 16-1838].
[9] See Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [noting that the "'ultimate award [of compensatory education] 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'"])