New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 158125

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 4, 2015

November 16, 2015

November 20, 2015

December 1, 2015

December 11, 2015

December 17, 2015

December 21, 2015

January 8, 2016

January 21, 2016

February 1, 2016

February 10, 2016

February 26, 2016

March 10, 2016

Actual Record Closed Date: March 20, 2016

Hearing Officer: Esther Mora, Esq.

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

Attorney (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 16, 2015

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 20, 2015

For the Student:

DID NOT APPEAR

For the Department of Education:

, District Representative (Via Telephone)

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

Attorney (Via Telephone) — Student

District Representative (Via Telephone) — DOE

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

Attorney (via telephone) — Student

District Rep (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 17, 2015

ESQ., Attorney — Student

Department of Education Representative — DOE

(Via Telephone) — DOE

DOE

(Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 21, 2015

ESQ., Attorney (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 8, 2016

For the Student:

(DID NOT APPEAR)

For the Department of Education:

, District Representative (Via Telephone)

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

Attorney — Student

(Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 1, 2016

ESQ., Attorney (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10, 2016

Attorney — Student

Parents

ICLC (Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 26, 2016

Attorney — Student

Mother — Student

District Rep. — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 10, 2016

Attorney — Student

District Representative — DOE

INTRODUCTION

This matter came before me pursuant to the Individuals with Disabilities Education Act. The hearing was concluded on March 10, 2016. I find that the school district failed to provide a FAPE for the 2013-14, 2014-15 and 2015-16 school years and that the parent is entitled to the relief she seeks.

SCHOOL DISTRICT

The school district presented witness testimony from a and from an , and documentary evidence (Exhs. 1-5)

The school district contends that its evaluation was appropriate. The testified that she conducted a evaluation on December 6, 2015 and the results indicated that the student was performing in the and was not eligible for .

(Tr. At 119-169; Exh. 4)

Additionally, the school district contends that its November 20, 2015 evaluation was appropriate. The who conducted the evaluation testified that the student has but his needs can be met in the classroom without . She also testified that test results did not indicate a need for an evaluation.

The school district also contends that the testimony of the school district witnesses and the school district's documentary evidence establish that the student does not require a or a . (Tr. At 119-169, 170-225; Exhs. 1-5)

PARENT

Parent witnesses included an independent

( ) (Tr. At 252-295), an independent (Tr. At 310-353), and the parent (Tr. At 358-391) Parent also submitted documentary evidence (Exhs. A-W)

The parent's testimony and documentary evidence, including his IEPs, establish that the student has exhibited since at least

, , including an

, . (Tr. At 358-391; Exhs. C, D, E, F)

The independent who conducted the independent educational evaluation testified that during the evaluation the student was and . She also testified that the evaluation, records and parent input indicated that his included , ,

, ,

. She recommended of , of , of and of . She also recommended and an . (252-295; Exh. U)

The independent testified that the evaluation she conducted determined that the student has difficult

, , and .

Results indicated that he has

. She recommended a classroom

with that can also meet the student's

needs. She opined that such a placement is not available within the school district and that the student will have to be placed in a non-public school. She also opined that he will require around to ( ) of to address his . Due to his needs, she recommended a week, per session, and . She also recommended or and . ( Tr. At 310-353)

APPLICABLE STANDARDS - FAPE

As was recently restated in Appeal No. 15-085, two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch.

Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07

[1982]).

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 (Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2dCir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling 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'" (Walczak 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. Mamaroneck 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 indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (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]). 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 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).

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 (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" (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" (Walczak, 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" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).

Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 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'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir.2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir.

1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

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 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), 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 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington

v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).

"Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR

300.148).

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 (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

APPLICABLE STANDARDS – ADDITIONAL SERVICES

The parent also seeks additional services. The applicable standards for this relief were also set forth in Appeal 15-085. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Wenger 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 Newington, 546 F.3d at 123 [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]"]; Student X. v. New York City Dep'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]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. March 6, 2008], adopted, 2008 WL 9731174 [S.D.N.Y. July 7, 2008]) Likewise, SROs 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 (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]; Application of a Student with a Disability, Appeal No. 09-111 [adding summer reading instruction to an additional services award]; Application of the Bd. of Educ., Appeal No.

09-054 [awarding additional instructional services to remedy a deprivation of instruction]; Application of a Student with a Disability, Appeal No. 09-044 [awarding "make-up" counseling services to remedy the deprivation of such services]; Application of a Student with a Disability, Appeal No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; Application of a Student with a Disability, Appeal No. 08-

072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE]; Application of the Bd. of Educ., Appeal No. 08-060 [upholding additional services awards of physical therapy and speech-language therapy]; Application of a Student with a Disability, Appeal No. 08-035 [awarding ten months of home instruction services as compensatory services]; Application of the Bd. of Educ., Appeal No. 06-074; Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-054).

The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE (see E. Lyme Bd. of Educ., 790 F.3d at 456; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; 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. Puyallup

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"]; Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10-052). 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. v. New York City Dep't of Educ., 2014 WL 1311761, at *7 [E.D.N.Y. Mar. 30, 2014] [noting that 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 .Atlanta 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"]; Puyallup, 31 F.3d at 1497 [finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]; Application of a Student with a Disability, Appeal No. 13-168; Application of the Dep't of Educ., Appeal No. 12-135; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

FINDINGS

Having reviewed the entire record, including all of the testimony and documentary evidence presented by both parties, I find that there were procedural and substantive violations resulting in denial of FAPE during the 2013-14, 2014-15 and 2015-16 school years. The hearing record establishes that the school district's evaluations were inadequate, resulting in a denial of FAPE. The school district should have conducted a and an evaluation, in addition to more comprehensive and evaluations.

The school district also failed to meet the notice requirements of 8 NYCRR Sec.

200.5, which denied the parent an opportunity to meaningfully participate in the development of the student's IEP, failed to properly constitute an IEP team in that there was no present at IEP meetings, failed to provide the parent with pertinent school records, as were requested in the due process complaint and subpoenas, failed to provide the parent with progress reports to enable her to meaningfully participate in making educational decisions, failed to provide despite the student's and , failed to provide adequate and appropriate , resulting in a lack of progress in , failed to conduct an evaluation despite indications that he might have benefited from , as testified by the independent , failed to offer an appropriate educational placement, in a classroom , such as was recommended by the independent , and failed to provide meaningful and reasonably measurable

IEP goals to address the student's deficits in .

I have considered the parties' remaining contentions and find them to be without merit.

ORDER

1. This matter is remanded to the school district.

2. Within fifteen calendar days of the date of this Order the school district is to convene an IEP meeting with all the required members, including the parent, special education teacher, , and . The team is to develop an IEP that addresses the student's individual educational needs and includes meaningful and measurable annual goals and short-term objectives in all areas of need based on recent assessments, including, but not limited to, ,

, and .

3. Because the school district has been unable to meet the student's needs in a public school setting, the school district's Central Based Support Team is to place the student in an appropriate non-public school for the remainder of the 2015-16 school year and for the 2016-17 school year.

4. To address the student's delays and to compensate for lack of services, within five calendar days of the date of this Order the school district is to authorize the parent to obtain of by a provider, at the enhanced rate.

5. To ensure that the student's are adequately identified and addressed, within five calendar days of the date of this Order the school district shall authorize the parent to obtain, at school district expense, a to be conducted by of

6. To ensure that the student's are adequately addressed, within five calendar days of the date of this Order the school district shall authorize the parent to obtain, at school district expense, a to be conducted by a from Within five calendar days of receiving the , the IEP team is to reconvene to incorporate the into the student's IEP.

7. Within five calendar days of the date of this Order the school district shall pay for the independent educational evaluation conducted by Additionally, the evaluation is to be reviewed by the IEP team when it reconvenes.

8. Consistent with the recommendations set forth in the independent evaluation (Exh. V), the IEP is to specify that the student's is to be either or .

9. Within ten days of the date of this Order the school district is to conduct an evaluation to determine whether would help the student progress in the areas of , and .

10. To compensate for lack of services, and to minimize the impact on the student's instruction during the school day, within ten calendar days of the date of this Order the school district is to commence providing of , during , at an enhanced rate.

11. To compensate for the lack of appropriate services, and to minimize the impact on the student's instruction during the school day, within ten calendar days of the date of this Order the school district is to commence providing of , during , at an enhanced rate.

Dated: March 23, 2016

ESTHER MORA, ESQ.

Impartial Hearing Officer EM:

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 Demand for Due Process Hearing, dated 9/9/15, 11 pages

B DOE Due Process Response, 3 pages, dated 10/27/15, 3pp

C IEP, dated 6/17/15, 7 pages

D IEP, dated 5/19/14, 9 pages

E IEP, dated 5/9/13, 8 pages

F IEP, dated 4/3/12, 10 pages

G PWN, dated 9/9/15, 2 pages

H Letter to District from parent, dated 8/24/15, 1 page

I Letter to District from parent, dated 6/18/15, 1 page

J Letter to District from parent, dated 6/18/15, 1 page

K PWN, dated 5/19/14, 2 pages

L FNR, dated 5/9/13, 1 page

M independent provider auth. , dated 12/11/12, 1 page

N independent provider auth. , dated 10/16/12, 1 page

O FNR, dated 4/3/12, 2 pages

P CSE meeting notice, dated 3/26/12, 1 page

Q IEP progress report, dated 6/26/15, 2 pages

R Detail progress report, dated 6/16/15, 4 pages

S Detail progress report, dated 5/12/15, 4 pages

T Detailed progress report, 5/12/15, 4 pages

U assessment report, 10/29/15, 12 pages

V eval report, 2/1/16, 19 pages

W Parent's closing brief, 3/10/16, 24 pgs

DEPARTMENT OF EDUCATION

1 , 2 pages

3 eval, dated 4/17/15, 8 pages

4 eval,8/11/15, 8 pages

5 closing brief, Dated 3/10/16, 5 pages