New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 154623

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: June 4, 2015

July 1, 2015

August 11, 2015

September 11, 2015

November 6, 2015

November 19, 2015

Actual Record Closed Date: March 28, 2016

Hearing Officer: Roslyn Roth, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 4, 2015

Attorney, via telephone — Student

District Rep, via telephone — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 1, 2015

ESQ., Attorney, — Student

Parent/Mother — Student

(Via Telephone) — Student

District Representative, Committee On Special Education — DOE

Region — DOE

District Representative, Committee on Special Education — DOE

Region — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 11, 2015

Attorney — Student

Parents

District Rep. — DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 11,

2015

Attorney — Student

Parent/Mother — Student

(Via Telephone) — Student

(Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 6, 2015

Attorney — Student

Parents

(Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 19,

2015

ESQ., Attorney — Student

Parents

(Via Telephone) — Student

District Representative — DOE

PROCEDURAL BACKGROUND

This hearing was held pursuant to New York Education Law § 4404(1), 20 U.S.C.

§1415(f), the Individuals With Disabilities Act (“IDEA”). In accordance with the Parents’ Due Process Complaint dated January 9, 2015 and as by Parent’s Amended Due Process Complaint dated January 26, 2015, I was assigned to hear this matter. (Exhibits A, B) By interim order submitted July 24, 2015, the parent’s request for certain independent evaluations was granted. The order directed that the Department of Education, (“DOE”)

fund the , and evaluations, but it denied the request for another evaluation. Timely extensions were given. In accordance with the July order, the student received an evaluation and a evaluation. (Exhibits M, N, EE)

The Parent was represented by counsel, the Department of Education, “DOE” was represented by District Representatives. The DOE entered 4 exhibits and called 1 witness in support of its case. The parent submitted 23 exhibits, “A-N, P-T, and AA-EE” and called 5 witnesses in support of her position. The following witnesses testified on behalf of the parent: a from the , a teacher from the , the evaluating , the evaluating and the parent. The CSE Special Education teacher testified on behalf of the DOE. (List of Exhibits annexed hereto as “Attachment A”).

DISTRICT’S POSITION

The DOE asserts that the 2013-2014 IEP was valid and that while there was a failure to create an IEP in a timely manner for 2014-2015 school year, which constituted a procedural violation, the student remained in an appropriate setting and thus, there was no substantive violation of the law. Accordingly, the DOE asserts that the student has received a free and appropriate public education and that even though the student did not receive an IEP for the 2014-2015 school year, her educational services remained intact from the prior year which the parents admitted were appropriate. The DOE further asserts that the equities do not support an award of compensatory educational services and further, that the parent has not met her burden of proving that compensatory services would yield the educational benefit the parent believes the student can attain.

PARENTS POSITION

The parents assert that the child needs additional services in addition to those which she receives in the private school in order for her to receive a free and appropriate public education, (“FAPE”), and that the IEP meeting that took place during the 2013- 2014 school year was not procedurally or substantively adequate. The parents assert that the failure of the DOE to develop an IEP for the 2014-2015 school year was a denial of FAPE. The parent’s claims regarding the failure of the DOE to properly evaluate the student were addressed in the prior interim order and will not be repeated herein.

The parents also claim that there was a gross violation of IDEA and of the student’s rights and that the DOE has made decisions about her special education services based upon her disability and classification and has applied blanket policies to decisions about her IEP and and placement. The complaint also alleges that the DOE has an illegal policy that does not vest most of representatives who participate in resolution meetings with the authority to resolve impartial hearing that seek financial payments for IEEs or compensatory education. (Exhibits A, B)

The hearing concerns the provision of adequate services; the parent asserts that the failure of the CSE to recommend for the 2013-2014 school year denied the student FAPE and that the failure to develop an IEP for the 2014-2015 school year was a denial of FAPE. The parent asserts that the student would have been entitled to additional services, and that as a result of the lack of those services she was denied a free and appropriate public education, and is therefore entitled to compensatory educational services. According to the parent’s due process complaint the parent seeks the number of hours and types of services that would afford the student the opportunity to . (Exhibits A, B)

FINDINGS OF FACT

The student is classified , her classification is not in dispute. The student has been attending the since the and is in her at . For the past the DOE has funded the student in a private school approved by the Commissioner of Education for the education of students with disabilities. The DOE’s recommendation and that placement in the private school are not in dispute.

The parent consented and agreed to the recommendation offered for the 2013

2014 school year. However, the due process complaint alleges the 2013 IEP denied the student a FAPE and deprived her of educational benefit based on substantive and procedural violations. (Exhibits A, B, 2)

The Committee on Special Education, (“CSE”) met on 5/22/13 to develop an IEP for the 2013-2014 school year. The IEP lists the student’s performance on the and the evaluations dated 9/10/12 and 9/5/12, which provided current and adequate information regarding the student ’s . The student are at a and her and . According

to her performance on given in July and August 2015, when she ended the , the student’s were on a .

The 2013-2014 IEP contains goals to address the student’s weaknesses in and to . The IEP also contains , and goals and goals. The IEP includes goals that target her weaknesses in . goals were also included in the IEP that address her . goals that address the student’s deficits in , and were also included in the student’s 2013-2014 IEP. The student was recommended for a in a class of in the , an

. (Exhibit 1)

The student’s report card for the 2013-2014 school year indicates that she and had made progress. (Exhibit CC) There was no evidence submitted that the student required additional services to meet the goals contained in her IEP or that the IEP

was deficient.

The evaluation last dated 8/19/2015 was reviewed by the ; she testified that the student and . Further, the witness testified that the student “ ”. Additionally, the witness testified that the student has ,

, , and . The student

has . Accordingly, while the student , she is deficient in . (TR 256-257) (Exhibit EE)

The witness testified that she had evaluated her previously, and that based on the comparison of her prior performance, the student made dramatic improvement in .

The witness testified that and remain more challenging for the student. (TR

260) The evaluator testified that the student requires . The witness recommended a

, with a to “

”. (TR 267)

The who evaluated the student testified that the student’s most significant issue in regard to her is because “ ”. (TR 382). The witness testified that the student requires a to provide . (TR 384).

There was no evidence to support the parents’ allegations of systemic violations and or a basis for a determination that the DOE discriminated against the student on the basis of her disability.

CONCLUSION OF LAW

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE)(20 U.S.C. § 1400[d][1][A]; see Schaffer v.

Weast, 126 S.Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9] [D]; 34 C.F.R. § 300.17[d]; 4 see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320).

In determining whether an IEP provides a FAPE to a student with a disability, a Court considers (1) whether the IEP was created in compliance with the IDEA's procedural requirements, and (2) whether the program contained in the IEP is reasonably calculated to produce educational benefits for the student.

Under the IDEA, if a procedural violation is 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 child, or c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; Matrejek

v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007]; 34 C.F.R. § 300.513[a][2]). Here, the failure to conduct an annual review significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE, and therefore failed in its obligation to offer the student a FAPE. The failure to generate a timely IEP even when the student remains in an undisputed appropriate program, is a denial of FAPE. Accordingly, for the 2014-2015 school year the failure of the DOE to meet and generate an IEP for the 2014-2015 was a denial of FAPE.

The IDEA requires school districts to provide each disabled student with an IEP that is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207. The IDEA does not require the school district to '"maximize the potential of handicapped children.'" W alczak, 142 F.3d at 130 (quoting Rowley, 458 U.S. at 199).

Rather, "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity [for] greater than mere trivial advancement. Cerra, 427 F.3d at 195

(internal citation and quotation marks omitted). The statute requires 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 Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted)).

The evidence establishes that the IEP for the 2013-2014 school year provided the student with special education and related services that allowed the student to make meaningful educational progress commensurate with her abilities and thereby provided the student with FAPE. Accordingly, the parent’s claim related to the 2013-2014 IEP is dismissed.

The parent’s claim that the failure of the CSE to meet and develop an IEP for the 2014-2015 school year is sustained. As a remedy for the denial of FAPE for the 2014- 2015 school year the parents seeks compensatory services.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (W enger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).

Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a] [1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see E.M. v. New Y ork City D ep't of Educ., 2014 WL 3377162 [2d Cir. Jul. 11, 2014] [noting that "when parents believe the local public school district has denied their child a FAPE, one option available to them is to keep the child enrolled in public school and seek administrative (and, later) judicial review of the child's IEP for the purpose of obtaining compensatory education"] [internal quotations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]

[stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and ...

compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; S.A . v. New Y ork City D ep't of Educ., 2014 WL 1311761 [E.D.N.Y. Mar. 30,

2014]; B.M. v. New Y ork C ity D ep't of Educ., 2013 WL 1972144 [S.D.N.Y. May 14,

2013], aff'd, 2014 WL 2748756 [2d Cir. June 18, 2014] [finding "no basis for an award of compensatory education" where "the alleged procedural violations ... [we]re not sufficient to support a finding that [the student] was denied a FAPE"]; Student X . v. New Y ork City D ep't of Educ., 2008 WL 4890440 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]). The award of compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, is appropriate 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 (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO 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 Student with a Disability , Appeal No. 09-111 [adding summer reading instruction to an additional services award]; A pplication of the Bd. of Educ., Appeal No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; A pplication of a Student with a Disability , Appeal No. 09-044 [awarding "make-up" counseling services to remedy the deprivation of such services].

The purpose of an award of additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M., 2014 WL 3377162; Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W . v. Puy allup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "(a)ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]; A pplication of the Dep't of Educ., Appeal No. 11-075;

A pplication of a Student with a Disability, Appeal No. 10052). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[ ] the problems with the IEP"]; S.A ., 2014 WL 1311761

[compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]; see also Draper v. A tlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "(c)ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M ., 478 F.3d 307, 316 [6th Cir. 2007]

[holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puy allup, 31 F.3d at 1497 ["[t]here is no obligation to provide a day-for-day compensation for time missed"]; A pplication of a Student with a Disability, Appeal No. 13-168; A pplication of the Dep't of Educ., Appeal No. 12-135; A pplication of the Dep't of Educ., Appeal No. 11-132; A pplication of a Student with a Disability , Appeal No. 11-091).

In this case, since the student was continuing her attendance in the with the related services of , and , there was no evidence to support the parents’ claim that the failure of the DOE to provide FAPE resulted in a lack of educational progress to the student.

The DOE has met its burden in establishing that it provided a FAPE to the student for the 2013-14 school year.

Order:

The request for compensatory services is denied.

Dated: April 13, 2016

ROSLYN ROTH, ESQ.

Impartial Hearing Officer RR:

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

PARENT

A Due Process Complaint dated January 9, 2015 8 pages

B Amended Due Process Complaint dated January 26, 2015 8 pages

C Letter to dated January 28, 2014 1 page

D Consent from Parent dated 7/21/2014 1 page

E Letter requesting evaluations dated July 15 and 17 1 page

F Letter dated August 11, 2014 2 pages

G Request for Evaluation dated August 20, 2014 1 page

H Notice of Meeting dated October 9, 2014 1 page

I Notice of Meeting dated October 24, 2014 1 page

J Evaluation dated December 1, 2014 5 pages

K dated August 19, 2011 6 pages

L Department of Education Reports, 2014-2015 15 pages

M Evaluation dated 7/28/15 19 pages

N dated 7/28/15 17 pages

P IEP dated 5/12/12 14 pages

Q IEP and CSE Minutes dated 6/19/15 19 pages

R Evaluation dated 10/20/14 14 pages

S Follow-Up dated 12/1/14 10 pages

T undated 9 pages

AA Omitted

BB Report Card 2012-2013 23 pages

CC Report Card 2013-2014 26 pages

DD Report Card 2014-2015 31 pages

EE Report dated 8/19/15 39 pages

DEPARTMENT OF EDUCATION

1 IEP dated 5/22/13 16 pages

2 Final Notice of Recommendation dated 5/22/13 1 page

3 CSE Minutes dated 5/22/13 1 page

4 Events Log 9/11 to 4/15 8 pages

HEARING OFFICER

I DOE Closing Statement dated 1/15/16 23 pages II Parent’s Closing Statement dated 1/15/16 9 pages