NY IHO #96825-20170913: New York... | Special Education Law

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FINDINGS OF FACT AND DECISION

Case Number: 160375

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 23, 2017

Actual Record Closed Date: August 24, 2017

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 23, 2017

Attorney — Student

Parents

(via telephone) — Student

District Representative, — DOE

I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the attorneys for the student and the parent in a due process complaint notice dated April 28, 2016. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education (“FAPE”) during the 2015/16 and 2016/17 school years (Exs. P- A at 2-9, P-B at 2-9, P-D at 2-7).^[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y.

Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y.

Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5)

business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).

II. PROCEDURAL HISTORY

The DOE appointed me to hear this matter ( ) on May 2, 2016.

See 8 NYCRR § 200.5(j)(3)(i). The parent filed an amended due process complaint on May 9, 2016 (Ex. P-B). See 8 NYCRR § 200.5(i)(7). On May 17, 2016, the parent moved for an interim order on pendency (Ex. IHO-I at 3). The DOE did not oppose the parent’s motion. In an Interim Order dated June 2, 2016, I directed that the DOE maintain the student at the (the “ ”) at public expense until such time as the due process proceedings in this matter are completed (Ex. IHO-I at 8).

See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). A due process complaint involving the same parties and student with a disability (Case No. 161589) was filed on July 11, 2016 (Ex. P-D). In an Interim Order dated March 10, 2017, I directed that Case No. 161589 be consolidated with Case No.

160375 in the interests of the student and judicial economy (Ex. IHO-II at 3). See 8 NYCRR §§ 200.5(j)(3)(ii)(a)(2), (4). A hearing on the merits of the matter was thereafter held on March 23, 2017.2 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).

III. FACTUAL BACKGROUND

At the time of the April 28, 2016 due process complaint, the student was and has been diagnosed with (Exs. P-A at 2, P-B at 2, P-C at 5, P-D at 2, P-O at 1). The student currently attends the , a nonpublic school which has not been approved by the Commissioner of Education as a school with which public school district may contract to provide special education and related services to student with disabilities (Exs. P-F at 1, P-J at 1, P-K at 1, P-L at 1). See 8 NYCRR §§ 200.1(d), 200.7.

The student's eligibility for special education and related services as a student with is not in dispute in this hearing (Exs. P-A at 2, P-B at 2, P-D at 2, P-F at 1). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).3

The parties’ familiarity with the student’s educational history prior to the 2015/16 school year, as fully set forth in my May 2, 2016 Findings of Fact and Decision in Case No. 151428 (Ex. P-C at 5-8), is assumed and will not be restated here.

Due to his , the student displays

. These deficits are pervasive and they involve

. The student has weaknesses in the areas of

2 Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 102-103; Exs. IHO-III - IHO-XVII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). 3

The student also displays (Exs. P-A at 2, P-B at 2, P-D at 2).

The CSE convened on April 15, 2015 to develop an IEP for the student. For the 2015/16 school year, the CSE recommended that the student receive the majority of his instruction in a in a ( ) on a basis. The CSE also recommended that the student receive related services of: ;

;

; and (Ex. P-F at 9-10, 12-13).

In a letter dated July 14, 2015, the DOE advised the parent that the student’s recommended program would be implemented at ( ) in (Ex. P-G).

There is no evidence contained in the hearing record of the CSE reconvening to develop an IEP for the student for the 2016/17 school year nor of any offer of an educational placement for that school year (R. 100; Exs. P-D at 6, P-E at 1).

IV. POSITIONS OF THE PARTIES

A. The DOE

The DOE asserts that the parent’s claims concerning the 2015/16 school year are moot, as the student attended the for the entirety of that school year at public expense by virtue of the June 2, 2016 Interim Order on Pendency (R. 16; Ex. IHO-I at 8).

The DOE acknowledged and conceded at the hearing that it failed to offer the student a FAPE for the 2016/17 school year (R. 16).

B. The Parent

The DOE should be ordered to reimburse the parent, and/or directly pay, for the student’s unilateral placement at the for the 2015/16 and 2016/17 school years. The

DOE failed to offer the student a FAPE for the 2015/16 and 2016/17 school years. The was an appropriate placement for the student. The relevant equities also support the student’s placement at the . The student is also entitled to compensatory additional services of , , ,

, and . The parent’s compensatory

additional services claims for both the 2015/16 and 2016/17 school year years remain ripe for adjudication by the IHO (R. 17-22; Exs. P-A, P-B, P-D).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. 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); B oard of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176,

206-07 (1982).^[4]

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 CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New Y ork City D ep't.

of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June

10, 2013); M.H. v. New Y ork City D ep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Paw ling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" W alczak v. Florida

Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. M amaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009).

While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A .C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v.

Carm el Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c)

caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R.

§ 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M .H., 685 F.3d at 245; A .H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C.

§ 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See 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."

W alczak, 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." See W alczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.

Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; W alczak, 142 F.3d at 132. Nonetheless, 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.'" See Cerra, 427 F.3d at 195 (quoting W alczak, 142 F.3d at 130); see also 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" See M rs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v.

A rlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); W alczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patsk in v. B oard of Educ., 583 F. Supp. 2d

422, 428 (W.D.N.Y. 2008).

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 C.F.R. § 300.320(a)(1);^[8] NYCRR § 200.4(d)(2)(i); Tarlow e v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals 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 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A);

A. Mootness - 2015/16 School Year

The DOE asserts that the parent’s claims for the 2015/16 school year should be dismissed as moot as all requested relief has been paid out under pendency (R. 16).

The dispute between the parties must at all stages be "real and live," and not "academic," or it risks becoming moot. See Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 (2d Cir. 2005); F.O. v. New Y ork City D ep't of Educ., 899 F. Supp. 2d 251, 254 (S.D.N.Y. 2012); Patsk in v. Bd. of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y.

2008); Student X v . New Y ork City D ep't of Educ., 2008 WL 4890440, at *12 (E.D.N.Y.

Oct. 30, 2008); J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 (W.D.N.Y. Sept. 30, 2008); see also Coleman v. Daines, 19 N.Y.3d 1087, 1090 (2012);

Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 (1980).

In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted. See, e.g., V .M . v. N. Colonie Cent. Sch.

Dist., 954 F. Supp. 2d 102, 119-21 (N.D.N.Y. 2013); M .S. v. New Y ork City D ep't of Educ., 734 F. Supp. 2d 271, 280-81 (E.D.N.Y. 2010); Patsk in, 583 F. Supp. 2d at 428-29; J.N., 2008 WL 4501940, at *3-*4. Administrative decisions rendered in cases that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student. See generally Lillbask, 397 F.3d at

87-88 (2d Cir. 2005); Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 (5th Cir. 1989). It is generally accepted, however, that a claim for compensatory education or additional services presents a live controversy. See Student X , 2008 WL 4890440, at *15;

Lesesne v. Dist. of Columbia, 447 F.3d 828, 833 (D.C. Cir. 2006); Lillbask, 397 F.3d at

89-90; Sch. Admin. Dist. No. 35 v. M r. & M rs. R., 321 F.3d 9, 17-18 (1st Cir. 2003);

Indep. Sch. Dist. No. 284 v. A .C., 258 F.3d 769, 774 (8th Cir. 2001); Fullm ore v. Dist of Columbia, 40 F. Supp. 3d 174, 178-79 (D.D.C. 2014).

While the 2015/16 school year has expired and the DOE has previously been directed to maintain the student at the at public expense during the 2015/16 school year (Ex. IHO-I at 8), as the parent’s due process complaint includes claims for compensatory additional services to remedy an alleged denial of FAPE during the 2015/16 school year (Exs. P-A at 9, P-B at 10, P-D, at 7-8), I conclude that the dispute over the 2015/16 school year is not moot.

B. Direct Payment -

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim.

See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where B urlington/Carter factors are satisfied. M r. A . v.

New Y ork City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W . v.

New Y ork City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v.

Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).

1. Recommended Public Program

2. Appropriateness of

Given my finding that the DOE failed to provide the student with a FAPE during the 2015/16 and 2016/17 school years, I turn to the appropriateness of the parent’s private program. With respect to the second criterion for an award of reimbursement, parents must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. B oard of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.

In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; W alczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65.

When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also W eaver v. Millbrook Cent. Sch. Dist., No. 09-CV-

692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).

Based on the evidence entered into the hearing record, including the credible testimony of Ms. and the parent, I find that the , was an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs (R. 50, 94).

Ms. , the at the , is a licensed . Ms.

has worked at for the past three (3) years as , a role in which she oversees all the educational and behavioral programming for students and implements training for staff and students’ families (R. 27-28).

The is a private, individualized school that primarily serves whose ages range from to (R. 30). The utilizes because it is an

(R. 29).

The student’s strengths during both school years consisted of improvement in his

(

), his , his

, and his (R. 32-33). His weaknesses during both school years included his , his , his , his , his , and his (R. 33).

The staff addressed his weaknesses using a that addressed including:

(R. 33-34). The school also utilized , that ;

, that

; , that

;

, to ; , to ; and

, to

(R. 34-35).

The academic programs that the was working on with the student during both school years included:

(R. 35-36). The also instituted

(R. 36).

For both school years, the developed annual educational goals for the student. His 2015/16 school year goals included:

(R. 37-38). Using data that had been collected on his progress, the found that the student improved in each of his goal areas during the 2015/16 school year (R. 38).

The student’s annual educational goals for the 2016/17 school year included many of the goals from the previous year and, in addition, included:

(R. 39).

The student made progress during the 2016/17 school year. Examples of the student’s progress over the last two school years included

(R. 40-41).

is an important component of the student’s educational program at the .

(R. 42-45).

(R. 45).

The has daily communication with the student’s parents (R. 46). Staff have a with them every day, the school sends home notes to the parents every day explaining what did that day, and the parents come in for clinic meetings (R. 46).

Ms. stated that it is important for the to have frequent communication with the parents because school staff want to ensure that the skills the student learns in school are generalized to the home and community settings (R. 46-47).

3. Relevant Equities

The final criterion for a reimbursement/direct payment award is that a parent's claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. V oluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000).

“Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.

The IDEA also provides that reimbursement and/or direct payment may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); S.W . v. New Y ork City D ep't of Educ., 646 F.

Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New Y ork City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); M.V . v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New Y ork City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carm el Cent. Sch. Dist. v. V .P., 373 F. Supp.

2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir.

Aug. 9, 2006); W erner v. Clarkstow n Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661

(S.D.N.Y. 2005).

The relevant equities support an award of direct payment for the student’s placement at the for the 2015/16 and 2016/17 school years. In a letter dated June 21, 2016, the parent provided adequate prior notice to the DOE of her intent to make a unilateral placement of the student at the at public expense (Ex. P-E). There is also no evidence indicating that the parent was uncooperative with the CSE (Ex. P-F), see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the cost of the student’s tuition to the unreasonable, see Carter, 510 U.S. at 16.

C. Compensatory Additional Services

Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. See Somoza v. New Y ork City D ep't of Educ., 538 F.3d 106, 109 (2d Cir. 2008); M rs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).

State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See Newington, 546 F.3d at 123 (stating "[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"); Student X v . New Y ork City D ep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); B oard of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); A pplication of a Child with a Disability , Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).

Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the 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 Reg’l Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “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.” See 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. Id. at

526.

At the hearing, the DOE failed to offer any evidence in support of its recommended program for the student for the 2015/16 school year. The DOE acknowledged and conceded that if failed to offer the student a FAPE for the 2016/16 school year (R. 16). Therefore, I find that the student is entitled to compensatory additional services to remedy the denial of FAPE. Using the credible testimony offered by Dr. , Ms. and the student’s parent, I shall apply a qualitative approach in fashioning a remedy of additional services for the student.

Dr. , who currently manages the student’s program, testified on behalf of the student’s need for services. Dr. is New York State licensed and (R. 54). Dr.

began working with the student around May 2015 (R. 57).

Dr. stated that

(R. 57). The student’s include:

(R. 58-61).

To help address some of his , Dr. works on

(R. 58-61)

Dr. opined that

(R. 62).

(R. 62-63). Dr. described the student’s

(R. 63-64). The and the are part of a meant to

(R. 64-65). (R.

65).

(R. 65). The final

goal of the is to

(R. 65-66).

Dr. ’ role in the student’s program is to assess him, develop all of the student’s goals, assign his supervisors (including a and an ), talk with his , meet and communicate with his family, and (R.

66-67). The student’s are and (R. 67). Dr.

was familiar with the progress reports they wrote and agrees that the reports accurately reflect the work the student has done during the school year (R. 67-69, 72; Exs.

P-M, P-N, P-O).

The goals Dr. developed for the student include:

(R.

70-72).

According to Dr. , the student requires

going forward to be able to make progress (R. 73-74). In addition, Dr. stated that the student required at least during the 2015/16 school year because

(R. 74-75). Ms. also stated that the student requires because

(R. 47-48).

Based on the credible testimony summarized above, the DOE will be ordered to provide the parent with an authorization for calculated on a week basis to remedy the denial of FAPE during the 2015/16 month school year and calculated on a week basis to remedy the denial of FAPE during the 2016/17 month school year.

Additionally, the DOE will be ordered to provide the parent with an authorization for calculated on a week basis to remedy the denial of FAPE during the 2015/16 month school year and calculated on a week basis to remedy the denial of FAPE during the 2016/17 month school year The DOE will also be ordered to provide the parent with an authorization for calculated on a week basis to remedy the denial of FAPE during the 2015/16 month school year and calculated on a week basis to remedy the denial of FAPE during the 2016/17 month school year.

2. Related Services -

As noted earlier, the DOE failed to offer any evidence in support of its recommended program for the student for the 2015/16 school year. The DOE acknowledged and conceded that if failed to offer the student a FAPE for the 2016/16 school year (R. 16).

The hearing record reflects that an April 2015 CSE recommended that the student receive

, and

(Ex. P-F at 10).

Per my June 2, 2016 Interim Order on Pendency, the student was maintained at the , at public expense, pending the conclusion of these proceedings (Ex. IHO-I).

The student did not receive any related services at the because the school’s philosophy is that adding related services to the curriculum would interrupt and decrease the program’s effectiveness. Ms. , however, recommended that the student receive and . She explained that the student should receive because he has and because

(R. 48-49).

Ms. , the student’s private , stated in her March 8, 2017 progress report that the student is working on addressing his “

.”

Ms. stated that the student is “

.” Ms.

recommended that the student continue with at least sessions of “ ” (Ex. P-O at 3).

Based on the credible testimony summarized above, the DOE will be ordered to provide the parent with an authorization for calculated on a week basis for both the 2015/16 and 2016/17 school years. The DOE will also be ordered to provide the parent with an authorization for calculated on a week basis for both the 2015/16 and 2016/17

school years.

D. Prospective Relief - Amendment of IEP

To the extent that the parent also seeks an amendment of the student’s IEP to include an program of

(Exs. P-A, P-B, P-D), I find

that such prospective relief would not be appropriate under the circumstances of this case.

In accordance with its obligation to review a student's IEP at least annually, the CSE should have already revised and developed a new IEP for the student for the 2017/18 school year. See 20 U.S.C. § 1414(d)(4)(A); N.Y. Educ. Law § 4402(2); 34 C.F.R. §

300.324(b)(1); 8 NYCRR § 200.4(f). A CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing a student's needs, and it would be inappropriate to circumvent these statutory processes by suddenly ordering amendments to the student's IEP, especially in the absence of any material evidence regarding the annual review of the student's current needs or services conducted subsequent to the matters under review in this proceeding. See Student X , 2008 WL 4890440, at *16 (noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year").

Moreover, the evidence in the hearing record shows that, to the extent that the CSE may recommend a level of related services commensurate with years past (Ex. P-F at

10), these services, in combination with compensatory additional services I previously ordered (Ex. P-C at 27-28) and a prospective order directing the DOE to provide additional , and services, may not be feasible or in the student's educational interests. The appropriate course is to require the parties to come into compliance with the statutory process envisioned under the IDEA and to effectuate equitable relief to remediate past harms that have been explored through the development of an appropriate evidentiary record. See A pplication of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 15-075 at 17 (SRO Sept. 21, 2015). Therefore, the parent's request that the undersigned direct amendments to the contents of new IEPs going forward is denied.

E. Alleged Systemic Violations

To the extent that the parent alleges that the DOE systemically violated the IDEA and/or Section 504 of the Rehabilitation Act by carrying out a policy that was inconsistent with the IDEA, namely, offering limited program options to students (Exs. P-A, P-

B, P-D), there is no provision in the IDEA or the Education Law that confers jurisdiction upon an IHO to sit in review of alleged systemic violations. See Levine v. Greece Cent.

Sch. Dist., 2009 WL 261470, at *9 (W.D.N.Y. Feb. 4, 2009) (noting that the Second Circuit has “consistently distinguished . . . systemic violations to be addressed by the federal courts, from technical questions of how to define and treat individual students’ learning disabilities, which are best addressed by administrators”), aff’d, 2009 WL

3765813 (2d Cir. Nov. 12, 2009). Accordingly, I find that I do not have plenary authority to order the DOE to adopt a specific policy in this matter. See A pplication of the New Y ork City Dep’t of Educ., Appeal No. 12-176 at 4-5 (SRO Aug. 28, 2013). Moreover, even assuming for the sake of argument that I had jurisdiction to resolve systemic complaints or direct the DOE to establish special education policies, there was nothing in the hearing record regarding any policy promulgated by the DOE to limit the educational program options of students with operated by .

VI. ORDER

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

IT IS

HEREBY ORDERED THAT:

1. The parent’s claim that the student was denied a free appropriate public education for the 2015/16 and 2016/17 school years is SUSTAINED;

2. Within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parent, and/or directly pay the for all costs associated with the student’s placement there from April 28, 2016 through the date of this Order;

3. Within thirty (30) days of its receipt of this Order, the DOE shall provide the parent with an authorization for calculated on a week basis for the month 2015/16 school year and calculated on a week basis for the month

2016/17 school year;

4. Within thirty (30) days of its receipt of this Order, the DOE shall provide the parent with an authorization for calculated on a week basis for the month 2015/16 school year and calculated on a week basis for the month 2016/17 school year;

5. Within thirty (30) days of its receipt of this Order, the DOE shall provide the parent with an authorization for calculated on a week basis for the month 2015/16 school year and calculated on a week basis for the month 2016/17 school year;

6. Within thirty (30) days of its receipt of this Order, the DOE shall provide the parent with an authorization for Case No. 160375 calculated on a week basis for the month 2015/16 school year and calculated on a week basis for the month 2016/17 school year;

7. Within thirty (30) days of its receipt of this Order, the DOE shall provide the parent with an authorization for calculated on a week basis for the month 2015/16 school year and calculated on a week basis for the month 2016/17 school year;

8. All compensatory services awarded should be paid for by the DOE by direct payment to the respective providers. The rate for compensatory ,

, , , and shall be at a reasonable market rate; and

9. The parent shall have four (4) years from the date of this Order to use the compensatory additional services awarded;

All other request for relief are denied.

Dated: September 13, 2017

JEFFREY J. SCHIRO, ESQ.

Impartial Hearing Officer JS:

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

PARENTS

A. Due Process Complaint Notice/Impartial Hearing Request ( ),

4/28/16, 11 pgs.

B. Amended Due Process Complaint Notice/Impartial Hearing Request (Case No.

160375), 5/6/16, 12 pgs.

C. Findings of Fact & Decision (Case No. 151428), IHO Jeffrey J. Schiro, 5/2/16, 32

pgs.

D. Due Process Complaint Notice /Impartial Hearing Request (Case No. 161589),

7/11/16, 8 pgs.

E. Ten Day Notice, 6/21/16, 2 pgs.

F. Individualized Education Program (IEP), 4/15/16, 14 pgs.

G. School Location Letter, 7/14/15, 1 pg.

H. Progress Report, 12/2015, 5 pgs.

I. Clinical Notes, 2016/17, 17 pgs.

J. Progress Report, 4/15/16, 18 pgs.

K. Student Report Card, 10/30/15, 10 pgs.

L. Student Report Card, 2/26/16, 9 pgs.

M. Student Progress Report - , 3/10/17, 4 pgs.

N. Student Progress Report - , 3/10/17, 3 pgs.

O. Report, 3/8/17, 3 pgs.

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I. Interim Order on Pendency ( ), IHO Jeffrey J. Schiro, 6/2/16, 10

pgs.

II. Order on Consolidation (Case Nos. 161589 & 160375), IHO Jeffrey J. Schiro, 3

pgs.

III. Confirmation of Extension, 7/25/16, 1 pg.

IV. Confirmation of Extension, 8/22/16, 1 pg.

V. Confirmation of Extension, 9/23/16, 1 pg.

VI. Confirmation of Extension, 10/21/16, 1 pg.

VII. Confirmation of Extension, 11/23/16, 1 pg.

VIII. Confirmation of Extension, 12/23/16, 1 pg.

IX. Confirmation of Extension, 1/23/17, 1 pg.

X. Confirmation of Extension, 2/17/17, 1 pg.

XI. Confirmation of Extension, 3/21/17, 1 pg.

XII. Confirmation of Extension, 4/24/17, 1 pg.

XIII. Confirmation of Extension, 5/24/17, 1 pg.

XIV. Confirmation of Extension, 6/22/17, 1 pg.

XV. Confirmation of Extension, 7/24/17, 1 pg.

XVI. Confirmation of Extension, 8/23/17, 1 pg.

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”

[4] 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.

[8] NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New Y ork City D ep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

New York City Department of Education, Impartial Hearing Decision