Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No.: 177844

Student's Name:

Date of Hearing: Various

Hearing Officer: Michael Lazan, Esq.

On the Due Process Complaint dated September 17, 2018, the matter of the above Student came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.

The parent brought this complaint to challenge the Student’s IEPs in effect for the 2016-2017, 2017-2018, 2018-2019 school years. Upon the joint application of the parties, multiple timelines extensions were granted in this case. For each such extension, I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension.

There was also no showing of any financial or other consequences to the parties or to the Student’s educational well-being. There was no showing of any prejudice to the Department.

Petitioner and Respondent’s briefs are hereby admitted as [HO Exhibits | and 2.

FINDINGS OF FACT

The Student isa —_- year-old in fifth grade who is eligible for services as a student with Other Health Impairment. The Student has been diagnosed with Attention Deficit Hyperactivity

Disorder.

During the 2014-2015 school year, when the Student was in first grade, he was placed in a self-contained setting. The Student did not like this setting and experienced significant behavioral issues. The Student would get picked on by other students. Tr. 311. The Student was retained at the end of the 2014-2015 school year. The Student repeated first grade, during the 2015-2016 school year, and then moved to a anew school, . Tr. 160. The Student was placed in an Integrated Co-Teaching (“ICT”) classroom, where he continued to experience behavioral difficulties, resulting in objects being thrown and other children being harmed. Exh.

B; Tr. 314-15. Petitioner was called by the school “multiple times” the Student’s behavior.

Psychological testing was conducted in regard to the Student in March, 2016. Exh. 5.

The evaluation found that the Student’s Full Scale IQ was in the average range, and that the Student’s testing suggests that he is on grade level in reading and mathematics. The Student’s October, 2016 IEP continued to recommend an ICT program with preferential seating, a behavior chart with positive rewards, brain breaks to deescalate behavior, checklists, graphic organizers, visual aids, positive feedback and a “structured environment.” Exh. 5. The IEP indicated that the Student had been engaging in serious behaviors at school, including saying provocative statements, “often” acting out by throwing objects, leaving the classroom, hiding in the classroom, and harming other students. The IEP recommended a behavior chart that gives positive rewards, active brain breaks, checklists, an “open, positive environment,” and a “structured” learning environment that provides repetition. The IEP indicated that the Student did not need a Behavior Intervention Plan (“BIP”’). Counseling was recommended twice a week for thirty minutes, once in a group, once individually.

For second grade, during the 2016-2017 school year, the Student continued at this program. Though there were reports of progress in behavior, Tr. 83, the Student continued to have behavioral challenges, including throwing objects and engaging in violence. Tr. 83, 180.

The Student was also walked out of class during this school year. Tr. 115. Petitioner was repeatedly called on the phone because of problems. In February, 2017, Petitioner requested an FBA/BIP for the Student. Exh. M. In June, 2017, a neuropsychologist from evaluated the Student and determined that the Student required a small classroom placement (Exh. 8). The Student’s teacher from the school year suggested that the Student was “clinically significant” for oppositional defiant and conduct disorder. The neuropsychologist determined that the Student’s cognitive functioning was average but determined that the Student’s reading skills were now “low average,” with the Student only at the 9" percentile on the GORT-5 measure. The Student was also now deemed to be at the “low average” level in sentence combining and sentence building. The neuropsychologist recommended a functional behavior assessment (“FBA”’) and BIP because of the Student’s behaviors, and also noted that the Student benefitted significantly from a 1:1 setting and a structured rewards system. The neuropsychologist also stated that the Student was not faring well in a large classroom. The Student did end the school year on grade level in reading according to his progress report (though the Student had been left back a grade), but the student’s overall math grade fell from a “3” in November to a “2” for the rest of the year. Exh. 19.

For the third grade, during the 2017-2018 school year, the Student continued in the ICT program at . An IEP meeting was held in September, 2017. The resulting IEP characterized the Student as functioning on grade level in reading in one section (page 1), but “significantly below age and grade expectations” on the very next page (page 2). Exh. 10. The IEP reported some progress with behaviors but also stated that the Student would elope from the classroom. It listed, as “management needs,” “brain breaks,” a structured learning environment, and a “stimulus reduced environment,” together with tasks in small segments. During this school year, the Student’s grades went progressively down throughout the year in math and social studies. Exh. L. The Student experienced significant behavioral issues during this school year, including attacking his paraprofessional, attacking other students, not taking instruction, not listening to direction, and walking out of the class frequently. The Student would also receive breaks whenever he wanted, which resulted in him missing school. Exh. H; Exh. I; Exh.

O; Tr. 69, 77, 216.

An FBA was conducted by Respondent in February, 2018. The FBA in the record indicated that the only interventions that had previously been attempted were calls home. It recommended interventions to address the behaviors seen during the course of the assessment, including “AJ Breaks,” check-ins, a schedule, and calming outlets. Exh. 14. An JEP was also created in February, 2018, which specifically recommended that the Student receive a BIP due to off-task behaviors. This IEP indicated that the Student was reading on Level “N.” Additional management needs were added in this IEP, including check-ins, a schedule, and seating next to the teacher. Exh. 13.

For the fourth grade, during the 2018-2019 school year, the Student remained in the same school and program. The received “1” grades in mathematics and reading for all reporting periods and was again tested at Level “N” on the Fountas and Pinnell measure. Exh 21. The Student was considered “far below grade level” in nine different assessments, including an Engage NY assessment and Teacher’s College assessments. Exh. 17.

CONCLUSIONS OF LAW

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to school district except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

A FAPE is offered to a student when (a) the school district complies with the procedural requirements set forth 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. While

Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are 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 a FAPE, (b) significantly impeded 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. Sect.

1415(HC1)(E)Gy); 34 C.F.R. Sect. 300.513(a)(2).

A free appropriate public education (“FAPE”) “must include ‘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.’ ”’ Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted). Allegations regarding FAPE can be characterized as “substantive” or “procedural” violations. While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA.

Pursuant to the IDEA, when procedural violations are 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 a FAPE, (b) significantly impeded 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. Sect. 1415((1)(E)(1); 34 C.F.R. Sect. 300.513(a)(2).

The school district bears the burden of proof in this matter and presented a number of witnesses who did indicate that the Student was making some gains in school over the course of the Student’s career in the ICT classrooms at . However, the documentation in the record does not corroborate these assertions. The Student was on grade level in reading prior to starting the ICT program at in the 2015-16 school year. After three years in the same program, the Student was well below level in reading, as reported on his February, 2018 IEP.

The Student’s report card for the 2018-2019 school year indicated that the Student was still on the Level “N” reading level in June, 2019, even though the Student was said to have progressed beyond Level “N” back in the 2017-2018 school year. This report card also showed that the Student’s reading and math grades for the 2018-2019 school year were “1” during the entire school year, which is considered “far below” standards.

A problem is that the school has not provided the Student with enough planned, consistent behavioral interventions throughout his career at . Certainly, until February, 2018, the Student had serious behavior issues, such as attacking and eloping from the classroom.

Yet no FBA was written for the Student until February, 2018. The Second Circuit has held that the failure to conduct a FBA constitutes a “serious procedural violation” which can lead to a finding of denial of FAPE where the IEP does not provide additional behavioral interventions that are significant. A.C. ex. rel. M.C. v. Board of Educ. of the Chappaqua Central School District, 553 F.3d 162 (2d Cir. 2009).

The Student’s IEPs provide no such specific interventions. A review the IEPs from 2016-2017 to 2018-2019 reveals mostly generic interventions to address the Student’s behaviors in the IEPs, and while the IEP from February, 2018 specifically required that a behavior intervention plan be developed for the Student, no such plan was written for the remainder of the 2018-2019 school year. Such a plan should have been developed, and the plan should have recommended that the Student be placed in small special education classes per the report of a neuropsychologist from , which recommended that the Student be placed in a small class setting. The evaluator pointed out that the Student needs smaller classes because he is distracted too much in a large class setting. Despite the requirement to place students in the least restrictive environment, I agree with Petitioner that the Student needs to be placed in small, self-contained education classes throughout the school day to gain educational benefit, especially given the requirement in Endrew F. v. Douglas County School District, 137 U.S. 988 (2017) to provide services that are “appropriately ambitious.” The Department denied the Student a FAPE for the two school years prior to filing the due process complaint, and I need not address

Petitioner’s other FAPE denial claims.

Where Districts have failed to offer students a FAPE, courts have wide discretion to insure that students receive a FAPE going forward. As the Supreme Court has stated:

The statute directs the court to “grant such relief as [it] determines is appropriate.” The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be “appropriate.” Absent other reference, the only possible interpretation is that the relief is to be “appropriate” in light of the purpose of the Act. As already noted, this is principally to provide handicapped children with “a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.

School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S.

359, 371 (1985).

Compensatory education is an available option under the Act to make up for denial of a free and appropriate public education. While the Circuit has previously enunciated a “gross violation” standard in this connection, Garro v. State of Connecticut, 23 F.3d 734, 737 (2d Cir.

1994), this standard is at odds with the standards in most jurisdictions. In P. v. Newington Bd.

of Educ., 546 F.3d 111 n.13 (2d Cir. 2008), the Circuit signaled that the Garro approach is only applicable where Students are over 21. In so analyzing this issue, the court referenced the seminal compensatory education case of Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). In Reid, the D.C. Circuit explained that compensatory education should be fashioned without a “cookie cutter approach” and that 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. Id., 401 F.

3d at 524; see also Friendship Edison Public Charter School v. Nesbitt, 532 F. Supp. 2d 121, 125 (D.D.C. 2008) (compensatory award must be based on a "qualitative, fact-intensive' inquiry used to craft an award ‘tailored to the unique needs of the disabled student"). Additionally, there is authority in this jurisdiction for a “quantitative” approach to compensatory education.

Application of a Student with a Disability, Appeal No. 14-172 (reducing a quantitatively determined award of additional services based upon evidence in the hearing record demonstrating that the student received some special education services and received some degree of benefit therefrom).

Petitioner requests compensatory services to be awarded as 700 hours of compensatory education at the rate of $125 per hour. Petitioner’s witness credibly testified that the Student could make up two years of missed services through the recommended program. Since

Petitioner’s witness did not fully consider that the Student received some education from all of classes that he took over the course of two years, I find that Petitioner’s requested award should be reduced to 500 hours of compensatory education at the rate of $125 per hour, to be used within three calendar years.

Petitioner also seeks placement of the Student in a non-public school consistent with the recommendations from the physician at . I have found that the Student does need a smaller class size, as suggested by the physician’s report, and there is nothing in the record to suggest that the Department has any such schools available to the Student. Accordingly, I will order the relief as requested.

Finally, Petitioner seeks an FBA and BIP. The record suggests that the Student still has behavior issues and requires a BIP, and that the Student’s February, 2018 FBA is likely outdated.

Accordingly, an independent FBA and BIP will be ordered.

ORDER

As a result of the foregoing, I order the following:

l. The Department of Education shall reimburse/pay for 500 hours of tutoring for the Student at at $125 per hour, including transportation;

2. Such services are to be used within three years of the issue date of this decision;

3. The Department shall reimburse Petitioner for expenses relating to a new FBA and BIP, including transportation, provided that such FBA and BIP be provided at a reasonable and customary rate in the community;

4. The matter is hereby “deferred” to the Central-Based Support Team, which will make all efforts to locate an appropriate setting for the Student and place him in that setting.

Dated: March 3, 2020

ACRD: March 3, 2020

Michael Lazan

Hearing Officer

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.

EVIDENCE

STUDENT

A Due process complaint, 9/17/18, 11 pages

B IEP, 10/11/16, 14 pages

C IEP, 9/27/17, 14 pages

D IEP, 2/12/18, 17 pages

E Neuropsychological evaluation, 6/21/17, 18 pages

F Psychoeducational report,17 pages

G Independent speech evaluation, 8/1/16, four pages

H FBA, 2/13/18, two pages

I FBA raw data, 2/13/18, 27 pages

J School years '16/'17 progress report, 24 pages

K Progress report, 11/2/16, five pages

L '17/'18 Progress report, 11/2017, 12 pages

M Letter from , 2/1/11, five pages

N Letter from parent, 7/18/17, one page

O Text messages from "s teachers to , four pages

P Letter from , 1/29/19, one page

OQ '18/'19 Progress report, 14 pages

R Promotion in doubt letter, 2018,^[1] 1 page.

DEPARTMENT OF EDUCATION

2 Speech and language evaluation, 4/7/16, nine pages

3 Independent speech evaluation, 8/'16, six pages

4 Observation and social history, 9/20/16 and 10/18/16, four pages

5 IEP, 10/11/16, 19 pages

6 Prior written notice, 10/20/16, three pages

7 408 form, 10/'16, 1 page

8 Neuropsychological evaluation, 1/27/17, 18 pages

9 OT observation, /27/17, 10/5/17, two pages

10 IEP, 9/27/17, 22 pages 11 408 form, 9/'17, one page

12 Prior written notice, 10/12/17, three pages

13 IEP, 2/12/18, 26 pages

14 FBA, 2/13/18, 29 pages

15 Prior written notice, three pages 16 408 form, one page

17 IEP, 2/13/19, 15 pages

18 Prior written notice, 2/14/19, three pages

19 Progress report '16/'17 school year, unidentified date, ten pages

20 Progress report, '17/'18 school year, 11 pages

21 Progress Report, 18/19,fourteen pages.

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Footnotes

[1] Psychological update, 3/'16, six pages