New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 158378

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: February 27, 2017

Actual Record Closed Date: May 22, 2017

Hearing Officer: Michael K. Lambert, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 27, 2017

Attorney — Student

Attorney — Student

(by telephone) — Parents

DOE Representative — DOE

INTRODUCTION AND PROCEDURAL HISTORY

By due process complaint dated October 13, 2015 (IHO-I), the parents initiated the instant due process hearing in which they advanced a number of challenges to the educational program offered by the Department of Education (“DOE”) to in the 2015-2016 school year. An amended due process complaint was thereafter filed on or about January 21, 2016 (PE-A). In such amended due process complaint, the parents alleged that the DOE had failed to develop an IEP for a portion of the 2015-2016 school year. In terms of relief, the parents were seeking prospective payment/tuition reimbursement the costs of their unilateral placement of at the (“ ”) during the 2015-2016 school year.

The parties thereafter appeared for hearing on February 27, 2017. At that time, the DOE Representative advised that the DOE was not prepared to present any evidence in its case-in-chief (T: 6-10). The Parents offered, without objection, PE-A through PE-

In addition, the Parent and three additional witnesses testified in the Parents’ case-in-chief.

The above issues are hereby decided as set forth herein.

THE HEARING EVIDENCE

The hearing record established that was, at the time of the underlying hearing, a student who had been classified by the New York City Department of Education as a student with an (PE-B-1). The last IEP in place for , which was in place through November, 2015 (PE-B), indicated that he

.

. He had and . The CSE recommended that be placed in a , along with for the period through November 25, 2015

(PE-B). No CSE meeting was held after November, 2014 and no recommendations were made for the period after November 25, 2015 (T: 154-155).

The first witness called by the parents was , who identified herself as a Master’s level who had founded approximately 4 years earlier (T: 29). She testified that ,

, integrated a number of methodologies, including , in addressing the needs of its students (T: 30). was not a school (T: 30). It employed “licensed” , , administrative staff, , an , a , , a

, , a , a

, and a , all housed in a “

” which included

(T:

30-33). In the 2015-2016 school year, had classes, ranging in size from

(T: 33).

Ms. testified that attended during the 2015-2016 school year, starting in September 2015 in a class with , aged , and taught by a certified who was pursuing a and

(T: 34-37). There were . Ms.

testified that, , they

“ ” and “

” (T: 35-36). In addition, a worked with the classroom teacher (T: 37).

was assessed throughout the year through the (T: 37). staff collected data and met on a weekly basis to review it. was provided by a (T: 38-39). received all of his related services through licensed staff (T: 46; PE-H).

Ms. testified that, when first enrolled in in September, 2017, he had a great deal of difficulty with . He had

. He had , and

(T: 39-40).

(T: 40-41). Ms. testified that made progress in a number of areas during the 2015-2017 school year. These areas included

(T: 42-43).

Ms. identified PE-D as the contract for ’s attendance at for the 2015-2016 school year. She indicated that ’s parents had not made any payments on the contract yet, that there were no scholarships and that, if the parents were not successful in the instant hearing, they would be responsible for the tuition payment (T: 44-46).

The parents’ next witness was , who identified herself as ’s . She was also a (T: 60). Her duties included overseeing staff, training staff, helping to create the curriculum, functional behavior assessments (“FBA”) and behavior intervention plans (“BIP) and data collection (T: 61).

Ms. was involved in ’s intake at . She determined through informal and formal testing that would be appropriate for (T: 62). She referred to the assessment (PE-Z and PE-K) and explained that had made gains in the areas measured by that assessment (T: 64-67). When entered , his greatest impediment to learning was .

.

(T: 68). conducted an and developed a with respect to (PE-M). Such plans addressed the antecedents of and developed strategies for addressing such (T: 70-76). Ms.

reported that “

” (T: 76-78). He likewise made “great strides” with respect to his and in the areas of (T” 83-84) and (T: 85-86). Progress was further demonstrated through the goals, which were reviewed quarterly (T: 86-90; PE-L).

The progress that made during his time at was further memorialized in the numerous progress reports issued by staff (see, e.g., PE-O; PE-P; PE-S; PE-T; PE-

V; PE-W; PE-Y; PE-Z).

Ms. described what ’s typical day looked like at . In this regard,

(T: 78-79). This was followed by , and, depending upon the day,

(T: 79-82; PE-G).

Ms. was the next witness called by the parents. She identified herself as a licensed and registered and the (T: 119).

In that capacity, she supervised the , and

(T: 120). Ms. served as a for when he enrolled as . In addition, she supervised the other who were supporting him (T: 122). Ms.

testified that had been when he first entered the program (T: 130). He was and was a (T: 130). He was . . He had and (T: 130-131). Ms. testified that various programs were put in place to address these needs. Such programs included and , and led to gains in these areas (T: 131-135; PE-Q). Gains were further addressed through the final progress report (PE-P), which referenced multiple administrations of the (T: 135-138). Ms. also described gains that made in the areas of (T: 139-140), (T: 140-143) and

(T: 142-143). She characterized ’s progress as being “across the board” (T:

148).

’s mother was the last witness called in this matter. She provided background information regarding his in the time period prior to the 2015-2016 school year as well as her belief that had not been making progress in during that time period. She and her husband spoke with one of ’s teachers during the 2014-2015 school year regarding their concerns for ’s lack of progress (T:

153-154). The teacher accompanied the parents to look at another school, but it was not believed by the parents to be appropriate.

By the end of the 2014-2015 school year, ’s parents had concluded that they needed to look at other schools for him (T: 156). That is how they found . (T:

156). She was changes in after his enrollment in

(T: 156-158; T: 160).

’s mother testified that the DOE never contacted her regarding her September 1, 2015 letter advising of the unilateral placement at (T: 158-159; PE-C). This letter, which was mailed to the DOE, had been the first time that she notified the DOE of her intent to privately place (T: 166-168). She further testified that, if she does not receive an award of tuition reimbursement in this case, she would be responsible for the tuition. (T: 160).

Post-hearing briefs were not submitted by either of the parties.

THE LEGAL STANDARDS

Pursuant to the IDEA, all children with disabilities are entitled to a “free appropriate public education” (“FAPE”) which must include “special education and related services” tailored to meet the unique needs of the child and be “reasonably calculated to enable the child to receive educational benefits.” B oard of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 207 (1982); (20 U.S.C. § 1400[d][1][A]; Schaffer v. W east, 126 S. Ct. 528, 531 [2005]; Frank G. v. B oard of Education, 459 F.3d 356, 371 [2nd Cir. 2006]). A FAPE is offered to a student when

(a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its C SE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Paw ling Central School District, 427 F.3d 186, 192 [2nd Cir.

2005]). The Second Circuit Court of Appeals in W alczak v. Florida Union Free School District, 142 F.3d 119 (2nd Cir. 1998) held that the IDEA does not articulate any specific level of educational benefits that must be provided through an IEP. The Court citing to the Supreme Court ruling in Rowley reiterated that the IDEA does not require the states to maximize the potential of disabled children, but was meant “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside” (at pg. 192). The Second Circuit in W alczak also cited to a D.C. Circuit Court decision by now Supreme Court Justice Ruth Bader Ginsburg which held that because “public resources are not infinite,” federal law “does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child” (Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1583 [D.C. Cir. 1984]). The Third Circuit has held that an appropriate education under the IDEA is one that is “likely to produce progress, not regression” (Cypress-Fairbanks Indep. Sch. Dist. V . Michael F., 118 F.3d 245, 248 [3rd Cir. 1997]; cert denied 522 U.S. 1047 [1998]; Cerra, 427 F.3d at 195, quoting W alczak, 142 F.3d at 130 [citations omitted]; see Perricelli v. Carmel Central School District, 2007 WL 465211, at *15). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (W alczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 [2nd Cir. 1989][citations omitted]; see Grim , 346 F.3d at 379). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford B oard of Education , 103 F.3d 1114, 1120 [2nd Cir. 1997]; see Rowley, 458 U.S. at 192). Objective factors such as the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress and one important factor in determining educational benefit (Rowley, 458 U.S. at 207, n.28, 203-04; W alczak, 142 F.3d at 130; V iola v. A rlington Central School District, 414 F. Supp. 2d 366, 382 [S.D.N.Y. 2006]).

The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; see W alczak, 142 F.3d at 132). The LRE is defined as “one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled” (Carlisle A rea Sch. V . Scott P., 62 F.3d 520, 535 [3rd Cir. 1995]). The IDEA mandates that all students with disabilities may only be removed to a more restrictive environment when the nature and 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]; 34 CFR

300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3rd Cir. 1993]; Briggs v. Bd.

of Educ., 882 F.2d 688, 691 [2nd Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]).

“The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Borough of Clementon Sch. Dist., 995 F.2d 1204

[3rd Cir. 1993]). The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes such as language and role modeling with nondisabled peers” (Greer v. Rome City Sch.

Dist., 950 F.2d 688 [11th Cir. 1991]).

The Second Circuit Court of Appeals adopted the Oberti LRE test in P. v.

Newington B oard of Educ., 546 F.3d 111 (2nd Cir. 2008) requiring the consideration of whether the school has made reasonable efforts to accommodate the child in a regular classroom, the educational benefits to the child with appropriate supplementary aids and services versus a special class and the possible negative effects of the inclusion of the child on the education of the other students in the class.

Federal district courts have upheld the appropriateness of an IEP “given what the CSE knew about [the child] at the time it was developing the … IEP” E.S. v. K atonah-

Lewisboro School District, 742 F.Supp.2d 417 (S.D.N.Y. 2010). In J.R. v. B oard of Education of the City of Rye School D istrict, 345 F.Supp.2d 386 (S.D.N.Y. 2004), the Court held that in reviewing the appropriateness of an IEP that:

“This determination is necessarily prospective in nature; we therefore must not engage in Monday-morning quarterbacking guided by our knowledge of

S.R.’s subsequent progress at Eagle Hill, but rather consider the propriety of the IEP with respect to the likelihood that it would benefit S.R. at the time it was devised. See A ntonaccio, 281 F.Supp.2d at 724 (noting that this issue has not yet been addressed by the Second Circuit and holding that ‘the …IEP…must be evaluated at the time the CSE devised the IEP, on June 15, 1999, and the IHO and SRO erred by regarding any information about [the student’s] education after that date’).”

The SRO has consistently considered the IEP “at the time it was formulated” to determine if it was reasonably calculated to enable the student to receive educational benefit

(A pplication of a Student with a Disability, SRO Appeal Nos. 11-154, 09-034, 09-013).

On March 22, 2017, the United States Supreme Court in Endrew F. v. Douglas

County School Dist. RE-1, 580 U.S. --- reviewed a decision from the 10th Circuit Court of Appeals regarding the standard for providing a “free appropriate public education” (FAPE) to students with disabilities under the IDEA. The Court cites to its prior decision in B oard of Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, as it relates to students integrated into the regular education classroom and progressing in the general education curriculum. The Court maintains that a child is receiving FAPE, if he or she is receiving instruction in the regular classroom that “would enable the child to achieve passing marks and advance from grade to grade”. The Court held that Rowley did not provide concrete guidance for those students not expected to advance from grade to grade and stated that every child regardless should have the chance to meet challenging objectives. The Court declined to adopt the 10th Circuit standard of “merely more than de minimus.” The Court 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.” While this standard may change how

FAPE is interpreted or applied in other parts of the country, New York State and the Second Circuit, as well as this District, have never applied such a low standard for educating its students with disabilities. The Second Circuit case law has held consistently that:

… a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting W alczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The

IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE [least restrictive environment] (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114

The Court in Endrew held that the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created. Endrew exhibited multiple behaviors that inhibited his ability to access learning in the classroom, including screaming, climbing over furniture and students and occasionally running away. He had severe fears of ordinary things like flies, spills and public restrooms and his progress in the school district had essentially stalled.

The Court in Endrew held that an IEP is not a form document, but “is constructed only after careful consideration of the child’s present levels of achievement, disability and potential for growth.” (Id. at pg. 12). The Court cited to Rowley in emphasizing that:

“the IDEA requires that children with disabilities receive education in the regular classroom ‘whenever possible.’

Ibid. (citing 1412[a][5]). When this preference is met, ‘the system itself monitors the educational progress of the child.’ Id., at 202-203. ‘Regular examinations are administered, grades are awarded, and yearly advancement to higher grade levels is permitted for those children who attain an adequate knowledge of the course material.’ Id., at 203. Progress through this system is what our society generally means by an ‘education’.”

The Court in Endrew concludes by emphasizing that “deference is based on the application of expertise and the exercise of judgment by school authorities” who are expected to be able to offer cogent and responsive explanations for their decisions.

In terms of the available remedies in cases where a district has failed to meet its obligation to offer an educationally disabled child FAPE, IHO’s have substantial discretion. Since P. ex rel. M r. and M rs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008), the courts of the Second Circuit have ceased to limit eligibility for “compensatory education” to those over 21. In P, the Second Circuit ruled that “compensatory education” can be awarded to an elementary school student. Further, even the “gross violation” requirement, which is applicable to a claim for compensatory education by someone over 21 is not clearly established in this Circuit to be applicable to a student under 21. That standard was not relied upon in P.

In S.A . ex rel. M.A .K. v. New Y ork City D ep't of Educ., 12-CV-435 (RMM)

(MDG), 2014 WL 1311761 (E.D.N.Y. Mar. 30, 2014), the Court held:

The IDEA allows a hearing officer to fashion an “appropriate remedy, and ...

compensatory education is an available option ... to make up for denial of a [FAPE].” P. ex rel. M r. and M rs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008) (affirming compensatory education award for elementary school student); see also Student X v . New Y ork City D ep't of Educ., No. 07

CV 2316, 2008 WL 4890440, at *24 (E.D.N.Y. Oct. 30, 2008) (awarding compensatory education to student younger than twenty-one). Such an award serves “to compensate a student who was actually educated under an inadequate IEP” and “to catch-up the student to where he should have been absent the denial of a FAPE.” B rennan v. Regional Sch. Dist. No. 1 Bd. of Educ., 531 F.Supp.2d 245, 265 (D.Conn.2008). Before awarding compensatory education for a student older than twenty-one, a court must find a gross violation of the student's right to a FAPE; however, whether the same prerequisite exists to awarding compensatory education for a younger student is an open question. See Student X , 2008 WL 4980440, at *24. P. v.

Newington, 512 F.Supp.2d 89, 112 n. 3 (D.Conn.2007) (“The Court disagrees with the defendant's argument that compensatory education is warranted only if there is a ‘gross' violation of the IDEA. The requirement of a gross violation

... has been applied only to cases involving claimants over the age of 21.”), aff'd, 546 F.3d 111 (2d Cir.2008); but see J.A . v. E. Ramapo Cent. Sch. Dist., 603 F.Supp.2d 684, 690 (S.D.N.Y.2009) (finding that five-year-old student was not entitled to compensatory speech therapy, reasoning that parents failed to show gross violation because child “was not excluded from school for any period of time.”).

Also, Reid ex rel. Reid v. D.C., 401 F.3d 516, 522-26 (D.C. Cir. 2005) seems to stand for the proposition that “compensatory education” can be prospective educational services to compensate for a past deficient program and that a hearing officer, as well as a court, can fashion flexible “compensatory education” relief through the application of “equitable considerations.” Reid is cited by, for example, the Second Circuit in P., 546 F.3d at 123, for the proposition that “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.”

Finally, given the fact that the parents in this case are seeking an award of prospective payment/tuition reimbursement for the placement, such matter will be decided with reference to the B urlington/Carter line of cases.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

is a student who had

. These deficits ranged from

. Although there was an IEP in place for the period through November 25, 2015, the DOE made no attempt to defend its appropriateness. There was no evidence presented that any IEP was in place for the period after November 25, 2015. By failing present any evidence in its case-in-chief, the DOE failed to meet its burden as to any issues concerning which they bore the burden of proof. I specifically find that the DOE denied FAPE for the entirety of the 2015- 2016 school year.

The hearing evidence demonstrates that offered appropriate services in each of the areas of identified deficit. The unchallenged hearing evidence demonstrated that made meaningful gains in each of the areas of deficit. I find that the parents have met their burden of demonstrating the appropriateness of for for the 2015-2016 school year.

The hearing evidence establishes that the parents failed to provide the DOE with timely notice of their intent to privately place at . However, I decline to exercise my discretion to reduce or deny tuition reimbursement based upon this fact. This decision is based upon the failure on the part of the DOE to demonstrate that the parents were ever advised of their obligation to provide such notice in advance of a unilateral placement of Moreover, based upon the DOE's response to the 10 day letter, the initial due process complaint and the amended due process complaint, I find no basis to conclude that, had the parents provided timely notice of the unilateral placement, the DOE would have done anything in response to address the parents' concerns regarding the educational program being offered to I find that there are no other equitable factors that warrant reduction or denial of the tuition at issue.

I find that the parents do not have the ability to fund the tuition at and that an order directing the DOE to directly pay for such tuition is appropriate (PE-

AA).

ORDER

1. The Parents’ request for prospective payment/tuition reimbursement of the 2015-2016 tuition in the amount of is granted. Upon receipt of documentation from that they have not received payment of such 2015-2016 tuition, the DOE shall make such payment directly to within 30 calendar days.

2. All other claims set forth in the due process complaint are hereby dismissed. Dated: July 26, 2017

MICHAEL K. LAMBERT, ESQ.

Impartial Hearing Officer ML:

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.

Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO THE RECORD

None