New York City Department of Education, Impartial Hearing Decision

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education laws. The New York City Department of Education will be referred to as District or the DOE and the parents as Parents or and the child will be referred to as Student or

PROCEDURAL HISTORY

This hearing was requested by a Due Process Complaint on January 5, 2019 by __, the parent of student (Parent Ex. A). Parent seeks relief for an alleged denial of FAPE for both the 2017/18 and 2018/19 school years, specifically compensatory services for both school years following the Discharge of Student by the DOE for the 2017/18 school year and the failure to create an IEP/IESP for the 2018/19 school year.

The undersigned was appointed as Impartial Hearing Officer on January 16, 2019. A Pendency Hearing was held on January 18, 2019, and a Decision and Order on Pendency was issued by the undersigned on January 19, 2019 (IHO Exhibit I). Thereafter, hearings were held on numerous dates, the last of which occurred on June 3, 2020. During all such hearings, the DOE was represented by , and the Parent was represented by ; Advocate. The undersigned presided at all hearings.

During the course of the proceedings, the parties moved to extend the case compliance date in this matter on numerous dates in order to allow for an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (IHO Exhibit II) See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

The hearing record was closed effective June 15, 2020.

Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

FACTUAL BACKGROUND

Student was, at the beginning of the 2017/18 school year, a year, month old disabled child with a DOE classification of Other Health Impairment. By the end of the 2018/19 school year, the end period of review for this Hearing, Student was _—_ and years of age.

According to an independent neuropsychological evaluation conducted over 3 dates in July, 2019 (Parent Ex. C), Student is properly diagnosed with Asperger’s Disorder (as opposed to his previously incorrect diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). He presents with restlessness, difficulty with maintaining topic in conversation, highly distractible, deficits in fine and gross motor skills, difficulty with aspects of language (particularly pragmatics and metalinguistics), deficits in executive functioning, tendency towards elopement and general behavioral dyscontrol. It was recommended that, due to his intelligence, as measured by the WISC-IV, Student remain in a mainstream setting with a 10 periods per week of Special Education Teacher Support Services (SETSS) and related services of speech/language therapy, counseling, physical therapy and occupational therapy, all in small groups (Parent Ex. C-6).

PARENT?’S POSITION

The Parents allege that Student has been denied a FAPE for both the 2017/18 and 2018/19 school years. Regarding the 2017/18 school year, Parent contends a denial of FAPE first, in recommending an ICT class for the 2017/18 school year, as contained in the March 31, 2017 IESP (DOE Ex. 1) which Parent found inappropriate and thereafter, following Parent’s objection to such recommendation, and enrolling the Student in a public school in ;

New York, the DOE’s discharge of Student from special education services due to Student allegedly having moved out of New York City (DOE Ex. 6). Regarding the 2018/19 school year, Parent contends a denial of FAPE on the grounds that the DOE failed to create any [ESP whatsoever for Student, despite Student being known to the DOE as a student with a disability.

For both school years at issue, Parent seeks continuation of the last agreed-upon program, consisting of 8 hours per week of bilingual SEIT (or SETSS at the fair market SEIT rate), speech/language therapy, 2x30, bilingual , Individual, physical therapy, 2x30, individual and occupational therapy, 2x30, individual, and appropriate compensatory services to compensate Student for the non-receipt of such special education and services.

DISTRICTS POSITION

Regarding the 2017/18 school year, the DOE contends that the IESP created for the 2017/18 school year was the appropriate educational placement for Student for such school year.

The DOE further contends that it appropriately discharged Student two months into the 2017/18 school year. Regarding the 2018/19 school year, the DOE did not present an argument as to its failure to create an IESP for Student for such school year.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982) 1.

1. The term “free appropriate public education” means special education and related services that — (A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

The IDEA requires a school district to have an Individualized Educational Plan (IEP) in effect for each child with a disability at the beginning of each school year. See 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a); see 71 Fed. Reg. 46682 [stating that the IDEA "is clear that at the beginning of each school year, each [district] must have an IEP in effect for each child with a disability in the agency's jurisdiction. Further, An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(ii1).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the “academic, developmental, and functional needsTM of the student]), establishes annual goals ttt designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii1]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v)).

An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(ii1). See also 34 C.F.R. §$300.303-300.311, 300.315; 8 N.Y.C.R.R. § 200.4(f). All reevaluations shall be conducted by a multidisciplinary team, including a specialist in the area of the student’s disability. 8 N.Y.C.R.R. § 200.4(b)(4). Children must be assessed “in all areas of suspected disability” using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” 20 U.S.C. §1414(d); 34 C.F.R. § 10.

Additionally, 8 N.Y.C.R.R. § 200.4(b)(6) provides that every reevaluation must identify “all of the special education and related services needs, whether or not commonly linked to the child’s classification.” 34 C.F.R. § 303(c)(6).

Parents should be central members of IEP teams. See 20 U.S.C. §§ 1414(a)(1)(A), 1414(c), 1414(d)(1)(B)G); 34 C.F.R. §§300.15; 300.303. Further, regulations provide that the parent must have an adequate opportunity to participate in the development of the child’s IEP Cerra v. Pawling Cent. School District, 427 F.3d 186, 192 (2d Cir. 2005, requiring that the Parent be properly notified of the IEP meeting and that such meeting be scheduled at a “mutually agreed upon time and place.” 34 C.F.R. § 300.322.

An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1J[A]LJ; 34 C-F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A ][i][111]; 34 C.F.R. § 300.320[a][3])

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S.

at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay

Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).

However, in the recent decision of the United States Supreme Court, Endrew F. v. Douglas County School District, 580 U.S. _, 14 (2017), argued January 11, 2017, and decided March 22, 2017, the Court held that, while Rowley declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act’, 458 U.S., at 202, it nevertheless still held that “a substantive standard was “implicit in the Act”. Rowley , 458 U. S., at 193, n. 15. It similarly held that “the statement that the Act did not “guarantee any particular level of education” simply reflects the unobjectionable proposition that the IDEA cannot and does not promise “any particular [educational] outcome.” Id.at 192.

Rather, the Court in Endrew held that, “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 (emphasis added), as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. . In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth”. §§1414(d)(1)(A)G)DHIV), (d)(3)(A)G)-(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all”. The Court in Endrew further stated that “The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”.

And although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that “the adequacy of a given JEP turns on the unique circumstances of the child for whom it was created”. Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982).

Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320). The school district must provide special education and related services to a student with a disability in accordance with the student's IEP and must make a good faith effort to assist the student to achieve the annual goals and, if appropriate, short-term instructional objectives or benchmarks listed in the student's IEP. See 8 NYCRR 200.4(e)(7). With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way (T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S., 2011 WL 3919040, at *13; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; see A.P. v. Woodstock Bd. of Educ., 370 Fed.

App'x 202, 205 [2d Cir. 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 [9th Cir.

2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [Sth Cir. 2000]). In order to show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimis failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP (see Houston Indep. Sch. Dist., 200 F.3d at 349; see also Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524—25 [3d Cir. 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]). Accordingly, in reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" (A.P., 370 Fed. App'x at 205; see Van Duyn, 502 F.3d at 822 [holding that a "material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled [student] and the services required by the [student's] IEP"]; see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D. D.C. 2007] [holding that where a student missed a 'handful' of speech-language therapy sessions as a result of the therapist's absence or due to the student's fatigue, nevertheless, the student received consistent speech-language therapy in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program]).

Section 504 provides that “[n]o otherwise qualified individual with a disability .. . shall, solely by reason of his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.” 29 U.S.C. §794(a). Section 504 and the IDEA are often seen as “complementary” statutes that, to a degree, mandate parallel requirements on schools to provide special education and related services. See R.B. ex rel. L.B. v. Bd. of Educ. of City of New York, 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000) (citations omitted). The Section 504 regulations clarify the nature of the prohibited discrimination. 34 C.F.R. § 104.4(b)(i1)-(ii1). In addition, the Section 504 regulations place similar and even parallel requirements on schools to provide a FAPE. See 34 C.F.R. §§

104.33-104.37.

RELATED SERVICES

As provided in 8 NYCRR 200.6(e): Related services shall be recommended by the committee on special education to meet specific needs of a student with a disability as set forth in the individualized education program (IEP).

(1) The frequency, duration and location of each such service shall be in the IEP, based on the individual student's need for the service.

(2) For students with disabilities determined to need speech and language services, the total caseload of such students for teachers providing such services shall not exceed 65. 103

200.6

(3) When a related service is provided to a number of students at the same time, the number of students in the group shall not exceed five students per teacher or specialist except that, in the city school district of the city of New York, the commissioner shall allow a variance of up to 50 percent rounded up to the nearest whole number from the maximum of five students per teacher or specialist.

(4) A student with a disability may be provided with more than one such service in accordance with the need of the student.

(5) Related services may be provided in conjunction with a regular education program or with other special education programs and services.

A board of education may be required to pay for 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 (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]).

The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993)).

CHILD FIND

The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446. F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F.Supp.2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 C.F.R. § 300.111; 8 NYCRR 200.2[a][7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.11 1[a][1][i]; Forest Grove, 557 U.S. at 245; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St.

Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004])). The "child find" requirements apply to "children who are suspected of being a child with a disability .. . and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.111[c][1]; see 8 NYCRR 200.2[a][7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. 2011]). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.11 1[a][1]; 8 NYCRR 200.2[a][7]).

A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To determine that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate the student (A.P., 572 F.Supp.2d at 225, citing Bd. of Educ. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F.Supp.2d

815, 819 [C.D.Cal. 2008], citing 20 U.S.C. § 1400[c][5]). Additionally, the school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's Rtl program (8 NYCRR 200.4[a]; see also 8 NYCRR 100.2[11]).

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [ finding that "[s]chool districts may not ignore disabled students’ needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz, 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To support a finding that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate (A.P., 572 F. Supp. 2d at 225, quoting Bd. of Educ. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D.Cal. 2008], citing 20 U.S.C. § 1400[c][5]). Additionally, the school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program (8 NYCRR 200.4[a]).

NY STATE CHILD FIND: State regulations specify procedures for identifying students with learning disabilities, providing, among other things, that: A student may be determined to have a learning disability if, when provided with learning experiences and instruction appropriate for the student's age or State-approved grade-level standards, the student does not achieve adequately for the student's age or to meet State-approved grade-level standards in one or more of the following areas: oral expression, listening comprehension, written expression, basic reading skills, reading fluency skills, reading comprehension, mathematics calculation, mathematics problem solving; and . . . the student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development that is determined by the CSE to be relevant to the identification of a learning disability. .. .(8 NYCRR 200.4[j] [3], [3] [4]

[b]).

LEAST RESTRICTIVE ENVIRONMENT

Generally, when determining an appropriate placement on the educational continuum, a CSE should first determine the extent to which the student can be educated with nondisabled peers in a public school setting before considering a more restrictive nonpublic school option (see E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *15 [E.D.N.Y. Aug. 19, 2013]; [explaining that "under the law, once [the district] determined that [the public school setting] was the least restrictive environment in which [the student] could be educated, it was not obligated to consider a more restrictive environment, such as [the nonpublic school]"]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *8 [S.D.N.Y. Mar. 19, 2013] [finding that "[o]nce the CSE determined that [public school setting] would be appropriate for the [s]tudent, it had identified the least restrictive environment that could meet the [s]tudent's needs and did not need to inquire into more restrictive options such as nonpublic programs"]).

The IDEA requires that a student's recommended program must be provided in the LRE (20 U.S.C. § 1412[a][S5][A]; 34 CFR 300.114[a][2]fi], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 111; Gagliardo, 489 F.3d at 105; Walczak, 142 F.3d at 132; Patskin, 583 F. Supp. 2d at 428). In determining an appropriate placement in the LRE, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling or other removal of students with disabilities from the general 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 U.S.C. § 1412[a][5][A]; see 34 CFR 300.1 14[a][2][1], 300.116[a][2]; 8 NYCRR 200.6[a][1]; Newington, 546 F.3d at 112, 120-21; Oberti v. Bd. of Educ., 995 F.2d 1204, 1215 [3d Cir. 1993]; J.S. v. N. Colonie Cent. Sch. Dist., 586 F. Supp. 2d 74, 82 [N.D.N.Y. 2008]; Patskin, 583 F. Supp. 2d at 430; Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 144 [N.D.N.Y. 2004]; Mavis v. Sobol, 839 F.

Supp. 968, 982 [N.D.N.Y. 1993]). The placement of an individual student in the LRE shall "(1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home" (8 NYCRR 200.1[cc]; 8 NYCRR 200.4[d][4][1i][b]; see 34 CFR 300.116). Consideration is also given to any potential harmful effect on students or on the quality of services that they need (34 CFR 300.116[d]; 8 NYCRR 200.4[d][4][ii][c]). Federal and State regulations also require that school districts ensure that a continuum of alternative placements be available to meet the needs of students with disabilities for special education and related services (34 CFR 300.115; 8 NYCRR 200.6). The continuum of alternative placements includes instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions; and the continuum makes provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement (34 CFR 300.115[b]). To apply the principles described above, the Second Circuit adopted a two-pronged test for determining whether an JEP places a student in the LRE, considering (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate (Newington, 546 F.3d at 119-20; see J.S., 586 F. Supp. 2d at 82; Patskin, 583 F. Supp. 2d at 430; see also M.W., 725 F.3d at 144; Oberti, 995 F.2d at 1217- 18; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048-50 [5th Cir. 1989]). A determination regarding the first prong, (whether a student with a disability can be educated satisfactorily in a general education class with supplemental aids and services), is made through an examination of a non-exhaustive list of factors, including, but not limited to "(1) whether the school district has made reasonable efforts 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, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class" (Newington, 546 F.3d at 120; see J.S., 586 F. Supp. 2d at 82; Patskin, 583 F. Supp. 2d at 430; see also M.W., 725 F.3d at 144; Oberti, 995 F.2d at 1217-18; Daniel R.R., 874 F.2d at 1048-50). If, after examining the factors under the first prong, it is determined that the district was justified in removing the student from the general education classroom and placing the student in a special class, the second prong requires consideration of whether the district has included the student in school programs with nondisabled students to the maximum extent appropriate (Newington, 546 F.3d at 120).

In fashioning a test to assess a student's placement in the LRE, the Court acknowledged that the IDEA's "'strong preference’ for educating students with disabilities alongside their nondisabled peers "must be weighed against the importance of providing an appropriate education" to students with disabilities (Newington, 546 F.3d at 119, see Walczak, 142 F.3d at 122; Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]; see also Lachman v. II]. State Bd.

of Educ., 852 F.2d 290, 295 [7th Cir. 1988]). In recognizing the tension created between the IDEA's goal of "providing an education suited to a student's particular needs and its goal of educating that student with his non-disabled peers as much as circumstances allow," the Court explained that the inquiry must be fact specific, individualized, and on a case-by-case analysis regarding whether both goals have been "optimally accommodated under particular circumstances" (Newington, 546 F.3d at 119-20, citing Daniel R.R., 874 F.2d at 1044).

COMPENSATORY SERVICES

The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]. Compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"; Parents of Student W. v. Puyallup Sch. Dist., 31F.3d 1489, 1497 [9th Cir. 1994] [holding that "[alppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]; Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10- 052). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; S.A. v. New York City Dep't of Educ., 2014 WL 1311761, at *7 [E.D.N.Y. Mar. 30, 2014] [noting that compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]; see also 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 student's] educational problems successfully]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puyallup, 31 F.3d at 1497 [finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]; Application of a Student with a Disability, Appeal No. 13-168; Application of the Dep't of Educ., Appeal No.12-135; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, 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., M.-C. v. Central Regional School District, 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.”’).

Under the qualitative approach, the examination should 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 this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Reid, supra at 526.

ANALYSIS

As Parent has alleged a denial of FAPE for both the 2017/18 and 2018/19 school years, each school year will be examined separately, following the review of testimony entered into the hearing record for each school year. It is noted that the DOE maintains the burden of establishing that its recommended educational placement, or lack of placement, for Student for each school year, was appropriate.

Regarding the 2017/18 school year, the DOE presented one witness. , school social worker, testified that he conducted a classroom observation of Student on or about October 7, 2019 (2 years after the school year at issue), during which time he claimed to have observed Student behaving appropriately, but nevertheless having been told by school officials that Student oftentimes engages in severe behavioral issues during the day and that he required additional services than what was being provided him (Tr. p. 103-104).

On cross examination, the witness testified that his observation occurred during a time when the teacher was reading to students, not when Student was receiving instruction and required to perform in class, for subjects such as reading, math or writing (Tr. p. 106). The witness additionally testified that he never actually spoke with Student’s teacher(s) regarding the behavioral issues referenced above (Tr. p. 110).

Most noteworthy with respect to the 2017/18 school year is the fact that the DOE’s witness provided no testimony whatsoever regarding the DOE’s recommendation for Student for the 2017/18 school year, as contained in the March 31, 2017 IESP, as he did not attend the CSE meeting for the 2017/18 school year; rather, his testimony concerned a classroom observation that occurred in October, 2019, irrelevant to the school year(s) at issue for this hearing. In fact, no evidence at all, either documentary or by witness testimony, was provided by the DOE to establish that its recommendation of an ICT class for Student for the 2017/18 school year was an appropriate recommendation to meet Student’s educational needs for such school year. Thus, it is determined that such recommendation for an ICT class for Student for the 2017/18 school year constituted a denial of FAPE.

Secondarily occurring during the 2017/18 school year was the DOE’s discharge of Student on the alleged grounds that Student moved out of New York City, and thereby was ineligible for special education services from the New York City DOE for the period following the Discharge Notice dated November 15, 2017 (DOE Ex. 6).

In that regard, Parent testified that she strongly disagreed with the recommendation for an ICT class, as well as disagreed with the removal of physical therapy from Student’s recommended services, and embarked on a search for an alternate school for Student. Parent further testified that she eventually located a school placement in , New York, several weeks after the start of the school year, and was advised by the CSE, when she requested that an IESP be created to add services to Student’s school location in the school district, to send an email informing the CSE of Student’s placement thereat. Parent testified that, shortly after sending the requested email (IHO Ex. III), Student was discharged as no longer residing in New York City, although she has never moved out of New York City and continues to reside at the exact same address since Student was months old (Tr.

p. 163-168), and was led to believe that the purpose of the requested email was simply as prelude to setting up a new CSE meeting to discuss adding services to Student’s placement in , not to discharge Student on the false grounds that Student no longer resided in New York City (Tr. p. 174).

Section 3602-c of Education Law, amended July 18, 2017 to comply with section 612(a)(10) of IDEA, as reauthorized in 2004, and federal regulations in 34 Code of Federal Regulations (CFR) sections 300.130 to 300.147, provides that, absent certain exceptions, public school districts where the non-public school is located are required to provide students with disabilities with special education services when enrolled by their parents in nonpublic elementary and secondary schools; specifically excluded from this section are students who are enrolled in public schools, in which case such students remain the responsibility of the school district of residence of the child. In the instant case, absolutely no evidence was presented by the DOE to establish that Student moved out of New York City; the email sent by Parent, ostensibly relied upon by the DOE to justify the DOE’s discharge on the grounds that Student no longer resided in New York City, establishes nothing of the sort. It merely informs the DOE that Student is attending not only a school outside of New York City, but a public school; in such case, responsibility for Student’s educational placement remains with the DOE, the school district of Student’s residence. Accordingly, the denial of a FAPE for the 2017/18 school year by the creation of the March 31, 2017 IESP is exacerbated by the additional denial of FAPE in discharging Student, effective November 15, 2017, on the erroneous grounds that Student no longer resided in New York City.

Regarding the appropriate educational placement for Student for the 2017/18 school year, no evidence was presented by the DOE to establish that Student’s educational needs, as contained in the last agreed-upon IESP dated June 6, 2017, were significantly different for the 2017/18 school year, and in fact the placement contained in the last agreed-upon IESP corresponded with the recommendations of the independent neuropsychological evaluation noted above, as well as the testimony of Student’s SEIT, more fully set forth below (who worked with Student during a portion of the 2018/19 school year pursuant to the aforesaid Pendency Order).

Such placement, and therefore the appropriate educational placement for Student for the 2017/18 school year, included 8 hours of bilingual SEIT, speech/language therapy, 2x30, bilingual, physical therapy, 2x30, and occupational therapy, 2x30, individual. As counseling was recommended by the DOE, 1x30, such service is also determined appropriate for the 2017/18 school year. Parent testified that, of all such services and instruction, only certain related services were provided (no SETSS at all), and only beginning on varying dates, the earliest of which occurred on or about December, 2017, with speech provided in a group, and with physical therapy not beginning until February, 2018 (Tr. p. 184-186). Speech language therapy, to the extent provided in a group, is therefore determined inadequate.

Accordingly, Student is determined eligible for compensatory services for the 2017/18 school year as follows:

SETSS, bilingual , entire school year, 8 hours per week - 288 hours;

Speech/language therapy, 1 hour per week, bilingual , entire school year — 36 hours; Occupational therapy, 1 hour per week, 21 weeks — 21 hours;

Physical therapy, | hour per week, 24 weeks — 24 hours

Counseling, one half-hour per week, bilingual — 10.5 hours.

Regarding the 2018/19 school year, no evidence was presented by the DOE whatsoever to establish that it held an IEP meeting for Student or created an appropriate educational placement for Student for such school year, nor did the DOE present any evidence to establish Student’s ineligibility for special education services for the 2018/19 school year.

Testifying for Parent was _ , Student’s SEIT instructor who worked with Student during the second half of the 2018/19 school year, pursuant to the aforementioned Pendency Order which authorized such services. The witness described Student as having severe social issues, difficulty interacting with his peers, acting otherwise inappropriately, having a short attention span, acting impulsively, being unregulated and having difficulty with classroom structure (Tr. p.

245). The witness further testified that Student’s behaviors and dysregulation effected his classroom participation and learning, as he had great difficulty functioning. She testified that she worked with Student on retaining eye contact, following teacher-directed tasks, sustaining attention through learning activities, responding appropriately to teachers and peers, playing in a socially acceptable manner, expressing his feelings and thoughts, sharing and waiting his turn, transitioning between activities, following rules and routines within the classroom, reducing tantrums and other behaviors, and following commands. The witness testified that she needed to use behavior modification techniques such as a timer, speaking to Student in advance and redirection (Tr. p. 247-249). The witness further stated that she was told by the teacher that Student was not able to be controlled without her in the classroom assisting Student (Tr. p. 250), and that it was her belief that, without her intervention as a SEIT, Student would not be able to remain in a mainstream classroom (Tr. p. 251).

Parent testified without contest that Student, due to the lack of an appropriately trained para, was not permitted to return to the school district. Parent instead located a school placement at a private school in and advised the DOE of such fact, requesting an IESP for Student for the 2018/19 school year. Neither an IEP meeting, nor the creation of an IESP occurred. The failure to do so constitutes a denial of FAPE for such school year.

As Student’s educational needs have not been shown by the DOE to be materially different than those needs that existed during the 2017/18 school year, and consistent with the recommendation of the independent neuropsychological evaluation and the testimony of Student’s SEIT, the appropriate educational placement for Student for the 2018/19 school year is determined to be that which was also determined appropriate for the 2017/18 school year. It is noted that, during the 2018/19 school year, Student received no related services whatsoever; he did receive SEIT/SETSS pursuant to the aforesaid November 19, 2019 Pendency Order only, but only effective on or about January 16, 2019.

Accordingly, Student is determined eligible for compensatory services for the 2018/19 school year as follows: SETSS, bilingual , 8 hours per week, 21 weeks - 168 hours; Speech/language therapy, 1 hour per week, bilingual , entire school year — 36 hours; Occupational therapy, 1 hour per week, entire school year — 36 hours; Physical therapy, 1, hour per week, entire school year — 36 hours; Counseling, one half-hour per week, bilingual , entire school year — 18 hours.

TOTAL COMPENSATORY AWARD: SETSS, bilingual — 456 hours

Speech, bilingual — 72 hours

Occupational therapy -57 hours

Physical therapy — 60 hours

Counseling, bilingual — 28.5 hours

NOTE ON COMPENSATORY SERVICES AWARD

All compensatory services, as Ordered below, shall be placed in a compensatory service “bank” to be utilized over a period of twelve (12) months from the date of this Order, administered as each respective service provider sees fit, in his/her best professional judgment, to best serve the educational needs of and to maximize the benefit of such services to

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED:

1. The DOE shall provide compensatory services, in accordance with the compensatory service “bank” noted above, as follows:

a. SETSS, bilingual — 456 hours b. Speech, bilingual — 72 hours

C. Occupational therapy -57 hours d. Physical therapy — 60 hours e. Counseling, bilingual — 28.5 hours

All such SETSS services, noted above, shall be provided at the market rate not to exceed $125.00 per period.

2. The DOE shall comply in all respects with this Decision and Order.

Dated: June 19, 2020

BRUCE S. OLINGER, ESQ.

Impartial Hearing Officer

APPEAL RIGHTS

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A. Impartial Hearing Request, dated 1/15/19 (4 pages)

B. IEP, dated 6/6/17 (16 pages)

C. Neuropsychological Evaluation, dated 7/2019 (11 pages)

D. IEP, dated 3/31/17 (14 pages)

E. SEIT Provider Report, dated 6/25/19 (3 pages)

F. SEIT Provider Certification, various dates (1 page)

G. IEP, dated 12/21/17 (10 pages)

DEPARTMENT OF EDUCATION

IEP, dated 3/31/17 (23 pages)

Prior Written Notice, dated 4/3/17 (4 pages)

Prior Written Notice with School Recommendation, dated 5/26/17 (4 pages)

Social Update, dated 1/27/17 (2 pages)

Preschool Report Observation, dated 2/2/17 (5 pages)

6. Discharge Family Moved, dated 11/15/17 (1 page)

7. DPC, dated 1/15/19 (5 pages)

IMPARTIAL HEARING OFFICER

I. Decision and Order on Pendency, dated 1/19/19 (11 pages)

II. Extension of Compliance Dates, various dates (14 pages)

Il. Parent Letter to CSE, dated 11/14/17 (1 page)

IV. Attendance Pages, various dates (17 pages)