New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 158602

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 14, 2016

June 2, 2016

June 20, 2016

November 21, 2016

April 3, 2017

Actual Record Closed Date: June 8, 2017

Hearing Officer: Tanya Hobson-Williams, Esq. Case No. 1585602

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 14, 2016

Attorney — Student

(Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 2, 2016

Attorney — Student

Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 20, 2016

Attorney — Student

(Via Telephone) — Student

(Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 21, 2016

Attorney — Student

(Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 3, 2017

Attorney — Student

Witness (Via Telephone) — Student

Witness (Via Telephone) — Student

District Representative — DOE

INTRODUCTION

The undersigned Hearing Officer was appointed to this matter on or about December 1, 2015. A Due Process Complaint was filed on or about October 27, 2015.

The student is diagnosed with

. The student is classified as having a on the March 17, 2015 IEP.

JURISDICTION

A decision in this matter is rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., and the New York State Education Law, Educ. Law §4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. §200.5 et seq.

BACKGROUND

On or about October 27, 2015, the Parents filed a Due Process Complaint alleging a denial of a Free and Appropriate Public Education (FAPE) for the 2012-2013, 2013-

2014and 2014-2015 school years. The complaint alleges that the District violated the student’s rights by (1) failing to timely and appropriately evaluate the student, (2) failing to develop a timely and procedurally valid IEP, (3) failing to provide an appropriate placement, (4) violating the Child Find provisions of the IDEA and section 504, (5)

denying the student a FAPE, (5) denying the student reasonable accommodations under Section 504 and (6) violating the Parent’s procedural rights.

The student is a who attended and subsequently

, an approved non-public school. He is classified as . His March 17, 2015, IEP recommended . Prior to the March 17, 2015 IEP, the student was not receiving special education services and was in a .

The District conceded FAPE for the 2012-2013, 2013-2014 and 2014-2015 school years. However, the District argues that there is no evidence to support the Parent’s request for compensatory services for related services. The District also argues that the Case No. 1585602 request for is duplicative and excessive. The District also opposes the request for as duplicative. The District further argues that the request for is premature and not ripe for review.

Due Process hearings were conducted on March 14, 2016, June 2, 2016, June 20, 2016, November 21, 2016 and April 3, 2017. appeared for the parent and , appeared for the District. The Parent submitted Exhibits A through N, R and S and the District submitted Exhibits 1 through 17.

The undersigned issued an Interim Orders on or about March 15, 2016 and June

29, 2016.

The actual record close date is June 8, 2017.

In accordance with the testimony provided at the hearings and the exhibits admitted into evidence, my decision is as follows:

FINDINGS OF FACT

The student is a student entering the . He is classified as . He was diagnosed for the first time in 2015 with a . Exhibits B. R. .

Exhibit B-2, C-1; Tr. 113.

The student suffers from and that has caused him to miss school. Tr. 112. The has worked with the student for several years. Tr. 111. is located in the and offers

. Tr. 106-108, 457. , a at meets with the student . Tr. 123. The student is reported to have and . Tr. 459-460.

. Tr. 460, 461. The student was attending when he was referred to

.Tr.113. He was in the at the time. Tr. 113.

The student attended where

. Exhibit B. The Parent requested an IEP from the school in the 2015-2016 school year, which was never provided. Tr. 113-114.

During the 2014-2015 School Year, the student at . Exhibits A, B; Tr. 113, 128. In , the student struggled with . Tr. 117. The student was and his difficulty was attributed to . Tr. 477. In

2015, arranged for and paid for an evaluation with Dr. due to the student’s struggles in school. Exhibits A, B; Tr. 115. paid for the evaluation. Tr. 115.

The District classified and offered an IEP to the student after an IEP meeting in March 2015. Exhibits 3, 4. The 2015 IEP classified the student as and recommended . Exhibit 4. Accommodations on his IEP included and . Id. No related services were provided.

The IEP noted that the student and in 2013 on the . In 2014, the student scored on the . The

IEP noted that although ,

. He has difficulty

. He needs

. He would benefit from

. Work should be provided to him in to allow

him to . He would benefit from . Exhibit 4.

. Exhibit E. The student’s Ms. at

failed to see significant progress. Tr. 118. Ms. attributed the lack of progress, in part, to the fact that Tr. 120-122. No services were provided to the student during summer

2015. Tr. 119. In the fall 2015, the student returned to as an , but continued to have and

. Tr. 120.

In February 2016, the student was enrolled in the , a specialized private school in for . Tr. 122-123. To ensure that the student attended his classes at the , arranged for

. Tr. 469.

During fall 2016, the student continued to have trouble and could no longer afford to pay .

arranged for . Tr. 470-

471. The student’s was attributed to

. Tr. 469. In November 2016, the student was no longer in attendance at the . Tr. 463. The Parent was investigating enrollment in a community school after the student left the . Tr.

463-466.

A evaluation was performed by Dr. who

diagnosed the student with a

. Exhibit

C at 15-16. He attained a on the , which is “ ” Id. With respect to , the student’s score was . Exhibit C at 4. His was

. Id. His are

. Id. Dr. concluded that the student’s scores in the were an area of real weakness, especially those related to “ ,” which measures

. Exhibit C. He performed at the which falls

within the . Exhibit C.

Dr. also administered the Case No. 1585602

to assess the student’s

. Exhibit C at 6. When compared to other

, the student scored in the which was determined to be . Id.

The student’s was in the .

Exhibit C-21. The student’s grade equivalent was .

Exhibit C-20. was an area of weakness for the student. His was in the . Id. He displayed

. The student’s Grade

Equivalent was , and his grade equivalent was . Id. He scored in the for . Exhibit C-8.

The student’s scores were and were in the

. Id. The student had but difficulty

. Id.

The student’s were

. Exhibit C at 10. His

was and in the l

. Id. He had difficulty

. Id. His Grade

Equivalent was at the . Id.

. Id. His grade-based score for fell in the although

. Exhibit C

at 20-21. The student’s ability to was better developed than his ability to .

Exhibit C at 11. He had difficulty

. Id.

The student’s fell within the

, and his

was

Id.

Dr. indicated that the student would benefit from

. Exhibit C.

( ) administered several assessments to determine the student’s levels of performance and academic needs. He scored at the on the , performed on the

, did on the

, and

. Exhibit D; Tr. 57-83. The

at the location testified that to bring the student’s levels up, she would recommend . Tr.

83.

The student’s was graded as “ ” because

. Exhibit D at 21; Tr. 81-82.

. Id.

The determined that the student

presented with

. Exhibit R.

On the

, the student’s composite score revealed

. Id. A second

test of , the , supported these results. Id. found that the student had particular difficulty in areas such as “ ” and “ ” Tr. 378.

The evaluation determined that the student could have

Exhibit R.

On the , the student performed with , indicating

. Exhibit R-6, 12.

The student was determined to have a revealing

a . Exhibit R-12. The results on the

indicated . Exhibit R-7, Tr.

384.

On the , the student’s results

were also , indicating

.

Exhibit R-13. The student had deficits in the , which are important for with an age equivalent score for the . Tr. 387.

The evaluation indicated that the student could qualify for a classification. The report recommended that the student be provided with

.

Exhibit R.

The found that the student

. The student was able to

. . He

demonstrated difficulty with . The Evaluator recommended

. Exhibit 7.

DECISION AND ORDER

The Parent alleged a denial of FAPE for the 2012-2013, 2013-2014and 2014-2015 school years. The District conceded Prong I denial of FAPE. However, the District argues that there is no evidence to support the Parent’s request for compensatory services Case No. 1585602 for related services. The District also argues that the request for is duplicative and excessive. The District also opposed the request for as duplicative. The District further argued that the request for is premature and not ripe for review.

The District conceded Prong I that they failed to provide a Free and Appropriate Education (FAPE) for the 2012-2013, 2013-2014and 2014-2015 school years and I find accordingly a denial of FAPE for those school years. The student was not identified as a student requiring special education services until 2015 when the student was and .

. .

The IDEA is designed to assist states to meet the educational needs of children with disabilities, and it establishes an enforceable right to a "free appropriate public education.” See M rs. W . v. Tirozzi, 832 F.2d 748, 750-51 (2d Cir. 1987) (citing 20 U.S.C.

§ 1400(c)). A free appropriate public education is defined as " special education and related services" tailored to the individual needs of the child. Further, the Supreme Court has determined that a "free appropriate public education" must consist of "educational instruction specially designed to meet the unique needs of the disabled child, supported by such services as are necessary to permit the child 'to benefit' from the instruction." B oard of Educ. v. Rowley, 458 U.S. 176, 188-89, 73 L. Ed. 2d 690, 102 S.

Ct. 3034 (1982).

Courts have determined that in an action brought under the IDEA, Courts have the discretion to grant appropriate relief. 20 U.S.C. § 1415(i)(2)(C)(iii). The only restriction is that "the relief is to be appropriate in light of the purpose of the Act." Burlington v. Dep’t of Education, 471 U.S. 359, 369 (1985). "[E]quitable considerations are relevant in fashioning relief and the court enjoys broad discretion in so doing." Florence County Sch.

Dist. Four v. Carter by & Through Carter, 1993 U.S. LEXIS 7154, 510 U.S. 7, 114 S. Ct.

361, 126 L. Ed. 2d 284, 62 U.S.L.W. 4001, 93 Cal. Daily Op. Service 8329, 93 Daily

Journal DAR 14208, 7 Fla. L. Weekly Fed. S 657 (U.S. Nov. 9, 1993). An award of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies have been Case No. 1585602 deemed appropriate. Burlington, 471 U.S. at 369; Polera v. B oard of Education, 288 F.3d 478, 486 (2d Cir. 2002).

In this case, the Parents are seeking, inter alia, compensatory relief in the form of to . Compensatory education is an equitable award under the IDEA.

Streck v. Bd. Of Educ., 408 Fed. Appx. 411 (2d Cir. 2010). The District’s denial of FAPE for the three school years warrants an award of compensatory education to attempt to place the student in the position he would have been in if FAPE had not been denied.

Draper v. A tlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008). A award of educational services may be warranted in some circumstances and given this student’s severe deficits, an award consistent with the Parent’s request is warranted.

Thus, an award of the will be awarded as a bank of hours to be used by the student until age 21 or 3 years after, if necessary. The are based upon the 3 years of a denial of FAPE and the recommendation of the ’s testimony. The award will be at an enhanced rate. The can be provided at the offices of .

is also awarded. This bank shall be reduced by any provided by the District pursuant to the June 29, 2016 Interim Award issued by the undersigned.

The Parent’s request for is denied. The IDEA does not provide the type of relief requested. As pointed out by the Parent, the IDEA defines to include: (a) “group and individual counseling with the child and family,” (b) “working in partnership with parents and others on those problems in a child’s living situation (home, school, and community) that affect the child’s adjustment in school”; (d) “mobilizing school and community resources to enable the child to learn as effectively as possible in his or her educational program” and “assisting in developing positive behavioral intervention strategies.” 34 C.F.R.

§300.34(c)(14). Thus, for the Student to is warranted. Also, due to the , should also be provided. Tr. 123-126.

The recommended that the student receive Case No. 1585602 based upon the student’s deficits and to improve

. Exhibit R.

A recommendation for compensatory was made by the evaluator. However, since an award of is made, I will award a bank of , which is reasonable under the circumstances and given the student’s , to be provided until the student turns 21, or within 3 years after age 21, if necessary.

An Assistive Technology (AT) device” is defined as “any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability.” 20 U.S.C. § 1401 (1); 34 C.F.R. § 300.5. These AT “services” are defined to mean “any service that directly assists a child with a disability in the selection, acquisition, or use” of an AT device. 20 U.S.C. § 1401 (1); 34 C.F.R. §300.5.

The evaluation also determined that the student could also benefit from

. Exhibit 7.

The Parent’s Due Process complaint did not request reimbursement for the nor was any evidence provided concerning the amount of the evaluation or who paid for the evaluation. Additionally, the Due Process Complaint did not request reimbursement to for the they advanced and thus the request is outside of the scope of this case.

The Parent alleged a violation under Section 504 of the Rehabilitation Act. In addition to their obligation to provide an appropriate education under the IDEA, state and local educational agencies are required to provide a free appropriate education for children with disabilities pursuant to Section 504.

Section 504 prohibits exclusion, denial of benefits, and discrimination 'solely by reason of . . . [disability]." M onahan v. N ebrask a, 687 F.2d 1164, 1170 (8th Cir.

1982). "That a court may . . . come to the conclusion that an incorrect evaluation has been made, and that a different placement must be required under [the IDEA], is not Case No. 1585602 necessarily the same thing as a holding that a [disabled] child has been discriminated against solely by reason of his or her [disability]." Id. at 1170-71.

Therefore, something more than a mere violation of the IDEA is necessary in order to show a violation of Section 504 in the context of educating children with disabilities, i.e., a Parent must demonstrate that a school district acted with bad faith or gross misjudgment. In this case, the Parent did not demonstrate that the District acted in bad faith or gross misjudgment. Thus, no violation of Section 504 has been demonstrated in this case.

In the Due Process Complaint, the Parent argues that the Student’s IEP should have extended the student’s eligibility past the age of 21 to provide him with sufficient time to obtain a diploma. Exhibit 1. In the Parent’s closing brief, they argue that the student’s right to a general education and special education and a FAPE should be extended for three years, including summers, to enable him to recoup the amount of time he would have had to try to pursue a regular diploma.

Under the IDEA, "a handicapped child does not have a right to demand a public education beyond the age of twenty-one." L.O. v. N.Y . City Dep't of Educ., 822 F.3d 95,

2016 U.S. App. LEXIS 9239 (2d Cir. N.Y. May 20, 2016); Burr v. Ambach, 863 F.2d 1071, 1078 (2d Cir. 1988), v acated on other grounds sub nom. Sobol v. Burr, 492 U.S.

902, 109 S. Ct. 3209, 106 L. Ed. 2d 560 (1989), reaff'd, 888 F.2d 258 (2d Cir. 1989).

Whether or not the IDEA applies to students beyond the age of twenty-one (21) is an unsettled question. See B urr v. A mbach, 863 F.2d 1071, 1078-79 (2d Cir.

1988), vacated sub nom., Sobol v. B urr, 492 U.S. 902, 106 L. Ed. 2d 560, 109 S. Ct. 3209

(1989), reaff'd, B urr v. Sobol, 888 F.2d 258 (2d Cir. 1989), cert. denied, 494 U.S. 1005,

108 L. Ed. 2d 475, 110 S. Ct. 1298 (1990) (child has no right to demand public education beyond age twenty-one); B oard of Educ., Oak Park & River Forest H.S., Dist.

200 v. Illinois State Bd. of Educ., 79 F.3d 654, 656 (7th Cir. 1996) [**23] ("the Act entitles disabled individuals to special education assistance only until they reach the age of 21"); Parents of Student W. v. Puy allup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir.

1994) (IDEA benefits expire upon "reaching age 21"); W enger v. Canastota Cent. Sch.

Dist., 979 F. Supp. 147, 150-51 (N.D.N.Y. 1997) (Scullin, D.J.) ("Generally, under the Case No. 1585602

IDEA, 'a disabled child does not have a right to demand a public education beyond the age of twenty-one.'") (quoting M rs. C. v. Wheaton, 916 F.2d 69, 76 (2d Cir.

1990)), aff'd, 208 F.3d 204 (2d Cir. 2000); but see St. Johnsbury Academy v. D.H., 240

F.3d 163, 168-170 (2d Cir. 2001)(holding that unless participating state's law limits a FAPE to the 21st birthday, IDEA applies to age 22); Pihl v. M assachusetts Dept. of Educ., 9 F.3d 184, 189 (1st Cir. 1993) ("he ceased to be eligible for educational services under the IDEA in 1988, when he turned 22").

However, in L.O. v. N.Y . City Dep't of Educ., 822 F.3d 95, 2016 U.S. App. LEXIS

9239 (2d Cir. N.Y. May 20, 2016), the Parent requested compensatory relief that would extend the student’s public education beyond the student’s twenty-first birthday. That court recognized that a Court may use its discretion to award equitable relief such as compensatory education. The court remanded the case because neither the administrative officer nor the District Court addressed the issue. The District’s claim that this request is not ripe because of the student’s age is without merit. In matter of L.O. v. N.Y . City Dep't of Educ., the court entertained the claim despite the fact that the student was not yet 21 and no objections were raised. 822 F.3d 95, 2016 U.S. App. LEXIS 9239 (2d Cir. N.Y.

May 20, 2016) Therefore, I find that it is within the discretion of the Hearing Officer to determine whether the Parent’s requested relief is appropriate.

Although, IDEA does not allow a student to demand a Public Education beyond age 21, it does not prohibit the award of compensatory equitable relief beyond the age of

21. A student who has been denied a FAPE for 3 school years must be able to access the relief even if it extends beyond their 21st birthday. The student in this case has not yet started the and would need . Exhibit

S. Therefore, is appropriate.

Based upon the above, it is hereby Ordered that the District provide the following:

1. An award of the as a bank of hours to be used by the student, if needed, until age 21, or within 3 years after age 21, if needed, and at an enhanced rate. This bank shall be reduced by any provided by the District pursuant to the June 29, 2016 Interim Award Case No. 1585602 issued by the undersigned.

2. An award of a bank of , to be provided

until the student turns 21 or within 3 years after age 21, if needed.

3. ;

4.

;

5. ;

6. ;

7. ;

It is So Ordered.

Dated: August 16, 2017

TANYA HOBSON-WILLIAMS, ESQ.

Impartial Hearing Officer

THW:

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

PARENT

A Impartial Hearing Request, 10/27/2015, 7 pages

B Confidential , 2/8/2015, 19 pages

C Confidential Addendum, 8/27/2015,

23 pages

D Testing 4/30/2015, 51 pages

E Records, 2015, 4 pages

F Chancellor's Regulations A501, 6/2/2014, 13 pages

G Academic Policy Guide, April 2015, 64 pages

H Academic Policy Guide, April 2014, 38 pages

I Policy, 6 pages

J Printout from the New York City Department of Education website

, 2 pages

K

, 1/10/2011, 81 pages

L ,

83 pages

P-1 E-mail from , 4/4/16

Q Withdrawn

R Evaluation of , 6/11/16, 10 pages

DEPARTMENT OF EDUCATION

2 Due Process Response, 11/18/2015, 3 pgs. 20 20

3 Meeting Notice, Committee on Special Education, 3/27/2015, 3 pages

4 IEP, 3/17/2015, 4 pages

5 Prior Written Notice, 3/27/15, four pages

6 Referral

7

9

10

11 Memo Re:

12 Suggested Procurement Order

13 Attendance 14

16 Addendum Follow-up Report