New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 157682

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: December 2, 2015

Actual Record Closed Date: February 20, 2016

Hearing Officer: Michael K. Lambert, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 2, 2015

Attorney — Student

Parents

Parents

(Via Telephone) — Student

(Via Telephone) — Student

(Via Telephone) — Student

(Via Telephone) — Student

Chairperson's Designee — DOE

INTRODUCTION AND PROCEDURAL HISTORY

On December 2, 2015, an impartial due process hearing was conducted for the purpose of hearing and deciding the Parents' request for reimbursement for tuition and other costs associated with their unilateral placement of at the (hereinafter " ") during the 2015-2016 school year. At the October 16, 2015 prehearing conference and again at the hearing, counsel for the Parents indicated that any requests for reimbursement for evaluations and/or related services were withdrawn without prejudice (T: 9; T: 22-24). For the reasons stated herein, I hereby grant the Parents' application, in part, and Order that the Department of Education (hereinafter

"DOE") reimburse the Parents and/or directly pay for the costs of the 2015-2016 tuition and the tuition only. I hereby deny the Parents' application for reimbursement for any other fees, including but not limited to the fee and the fee.

FINDINGS OF FACT

The DOE declined to present any evidence (T: 24) and, therefore, the evidentiary portion of the hearing began (and ended) with the Parents' case-in-chief. Their first witness was 's , , who provided an overview of the school. In this regard, he testified that was an " " school (T: 32),

, consisting of approximately

students in grades , (T: 26-

27; T: 31-32). The evidence as to the admissions criteria at was unclear, although

Mr. did acknowledged that there were at least some limits as the profiles of the students that was prepared to accept (T: 56; T: 64-65). There was little evidence presented as to what it was about ’s profile that led to him being accepted at , other than the fact that he seemed like a “ ” with an who was and who (T: 56-57). The class sizes at varied, but averaged approximately students (T: 27). Each class was taught by , with (T: 63-64). Students were reportedly grouped by ability, although there was relatively little testimony as to how 's placement had been determined or, other than conclusory statements by as to the appropriateness of 's placement with the other students in his (e.g., T: 70) and how his compared to that of the other students with which he was grouped (T: 59-61). The hearing evidence was unclear as to what evaluative information had to inform them as to where should be placed. was apparently when he started at .

However, the hearing evidence was unclear as to who made this determination, when it was made or the basis or bases upon which it was made (T: 57-58). Interestingly, the Enrollment Contract executed by 's father on or about April 20, 2015 apparently contemplated that he would be placed in (PE-D-2 and 3). Moreover, apparently conducted no supplemental evaluations to assist them in the or , and no evaluations were offered by the parents in an effort to demonstrate that had benefitted from the services that he received at .

also offered a program called " ", in which

(T: 113; T:

130) , as well as (T: 30-

31). According to his , , these

(T: 114). The nature of the was akin to a or a . The primary focus of the was to (T: 130-

131). Although the were intended to provide

, Ms. ' testimony was unclear as to

(e.g., T: 131-132), although the suggestion was that . The

(T:

114; T: 128-129). The hearing evidence suggested that the did not provide , either or , (T: 127;

T: 133-134).

For students who were (as was apparently the case with , although the hearing evidence did not clearly indicate when, how or by whom such determination had been made [T: 148-149; T; 151]), offered a

. , a

, testified that she taught that class (T: 137-138). There were a total of students in such class, of which were also (T: 139). 's

(T: 139-140). Although Ms.

' testimony was not entirely clear concerning the that she was providng to , she testified that he was, nonetheless, benefitting from . However, this opinion was apparently based upon her observations in as no formalized assessments has been used to assess the extent to which he was making gains in (T: 147).

's teacher, (T: 67), testified concerning 's

performance in her class and as to his educational profile in general. Ms. was not a (T: 86) and, in fact, had quite limited experience in teaching school-age students, having just started in that field in the prior school year (T: 85-86). She had received no specific training with respect to meeting the needs of students with and apparently had limited contact with the (T: 91). She had not been involved in the decision and testified inconsistently concerning the extent of her knowledge as to how had done the prior year in his class (T: 92-93). Although she testified as to 's

(T: 71-75), as well as to

, I did not find her testimony overall to be particularly valuable and I gave it little weight.

Finally, there was evidence presented as to the costs associated with attendance at . The tuition was, according to the Enrollment Agreement, (PE-D-4).

The tuition was . Mr. testified concerning a " " in the amount of , which was intended to things such as

T: 27-28). Moreover, he testified that the fee was intended to

(T: 28). No testimony was provided as to what, if any, during the course of the 2015-2016 school year or what, if any, during such school year.

THE LEGAL STANDARDS

Pursuant to the Individuals with Disabilities Education Act (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 Individualized Education Program (IEP) developed by its Committee on Special Education (CSE) 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 cites 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).

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.”

CONCLUSIONS OF LAW

The DOE failed to present any evidence during the course of the hearing.

Accordingly, I find that they have failed to sustain their burden of proof as to any matter as to which they had the burden of proof. Specifically, I find that the DOE failed to establish that they offered a free appropriate public education during the 2015-2016

school year.

I find that, while the hearing evidence regarding was somewhat incomplete, the evidence that was presented satisfactorily established that , in totality, offered an educational program which was reasonably calculated to enable him to make meaningful educational gains. In this regard, was offered a program in which he could receive his primary instruction with typically-developing peers while . In addition, he was also provided with by a in lieu of . In finding that the program offered at to be appropriate, I have considered the fact that the DOE offered 's Parents no other options - even inappropriate options. In such a case, I am of the view that the purposes underlying IDEA would not be best served by holding the parents to too exacting of a standard in terms of the educational services that they unilaterally secure for their child.

Accordingly, I find that the Parents have met their burden under Prong II.

Finally, the hearing evidence does not contain any evidence that the Parents engaged in any activities that would justify reducing or denying the relief that they would otherwise be entitled to. I found the hearing testimony of Ms. to be credible and that it provided no basis to reduce the otherwise appropriate tuition award on equitable grounds.

Finally, while I find that Parents are entitled to reimbursement for any costs that they have incurred in connection with the and tuitions, I find that there was insufficient evidence presented to establish an entitlement to reimbursement for the fee or the fee. There was no evidence whatsoever presented as to the that would have been paid for by such fee. Moreover, I find that the DOE's obligation to provide FAPE to did not include an obligation to provide . Moreover, in the absence of any evidence demonstrating that the fee was used by to pay for , reimbursement for the fee cannot

be justified.

ORDER

It is hereby Ordered as follows:

1. That the DOE reimburse the parents for any payment(s) that they have made or will make for the tuition associated with 's 2015-2016 placement at . Such reimbursement is to be made within 30 calendar days after the parents provide the DOE with written proof of payment(s).

2. That, should any additional payment(s) be due to for the tuition associated with 's 2015-2016 placement at , the DOE make such payment(s)

directly to .

3. That any such reimbursement and/or direct payment of the tuition be in an amount not to exceed .

4. That the DOE reimburse the parents for any payment(s) that they have made or will make for the tuition associated with 's 2015-2016 placement at . Such reimbursement is to be made within 30 calendar days after the parents provide the DOE with written proof of payment(s).

5. That, should any additional payment(s) be due to for the tuition associated with 's 2015-2016 placement at , the DOE make such payment(s) directly to .

6. That any such reimbursement and/or direct payment of the tuition be in an amount not to exceed .

7. That the parents' request for reimbursement for all other costs associated with the unilateral placement of at during the 2015-2016 school year, including but not limited to the fee and the fee, is in all other respects denied.

So Ordered:

Dated: February 23, 2016

MICHAEL K. LAMBERT, ESQ.

Impartial Hearing Officer ML:

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be 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. The petition for review shall be served upon the school district 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. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

None