New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 158550

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 8, 2016

August 31, 2016

Actual Record Closed Date: September 30, 2016

Hearing Officer: Edgar DeLeon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

Attorney — DOE

08/08/16 08/31/16 Attorney PARENT 08/08/16 08/31/16

Mother PARENT 08/08/16

(T) PARENT 08/08/16

On July 15, 2016, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law and Part 200 of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parent of an (8) year old student attending a New York State public school and the New York City Department of Education (“DOE”) - District:

9, concerning the student’s special education program. I was appointed after the recusal of at least one other IHO. A pre-hearing conference was held on July 27, 2016. The impartial hearing was held on August 8, 2016. Oral argument on the Parent’s Motion to

Reopen her case-in-chief was heard on August 31, 2016. The parties then opted to submit written closing statements. The Parent’s written closing statement was received on September 30, 2016. (P-N) The DOE did not submit a closing written statement. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent’s Due Process Complaint (“DPC”) is dated October 23, 2015 and alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2012-2013, 2013-2014 and 2015-2016 school years. (D-1) The Parent’s DPC and claims therein was partially resolved in a “partial resolution agreement” which the parties executed on December 18, 2015. (D-4) Thereafter, the Parent requested that the matter proceed to a hearing because the DOE denied the student a FAPE because it failed to expeditiously implement the partial resolution agreement and the student now requires compensatory services. (T-12-3) The DOE argues that it believes that the parties had a “full resolution” of the Parent’s DPC except for the Parent’s counsel’s attorney’s fee which had since been sent to “the settlement unit.” (T-9-11)

THE PRE-HEARING CONFERENCE

A pre-hearing conference was held on July 27, 2016. Thereat, the Parent asserted that an amended DPC had been filed on April 4, 2016. (T-8) It was noted that the amended DPC had not been forwarded to this IHO. (Id.) The DOE asserted that the amended DPC had been agreed to by the “previous IHO”, that there had been a full resolution of the original DPC and that the amended DPC is similar to the original and asked for much of the same relief. (T-9) An amended DPC dated April 4, 2016 was received in evidence at the impartial hearing, but it was never assigned to the undersigned through the NYC IHO System. (P-E)

The Parent argued there was not a full resolution of the original DPC and the DOE countered that the Parent had conceded there was, but as time went on, the Parent argued that and the Parent decided to exercise her right to proceed to a hearing and amended the DPC to add additional violations which she felt had arisen since the time of filing her first DPC. (T-10) The Parent agreed that the parties were in the process of negotiating the fees and conceded that although the DOE did not offer all of the relief that was requested in the original DPC, the Parent did make certain concessions as to the number of hours of compensatory services. (T-12)

THE PARENT’S MOTION TO REOPEN

The Parent’s “Motion to Re-Open”, the DOE’s opposition to the same and the Parent’s “reply” to the DOE’s opposition are annexed hereto as IHO Exhibits (I), (II), and (III) respectively. Oral argument was heard from the parties on the issue. (T-226-286)

The undersigned denied the Parent’s request to reopen the hearing after finding that the parties’ signed partial resolution agreement (D-4) leaves only two issues to decide at the impartial hearing (i.e., the Parent’s request for and compensatory education), and that the hearing produced a sufficient record to decide those issues, (T-286-9)

THE “PARTIAL” RESOLUTION AGREEMENT

The parties had extensive discussions on the record over what their “partial” Resolution Agreement resolved or did not resolve. (T-42-66 & D-4) After oral argument, it was ruled that the partial Resolution Agreement resolved the parties dispute for the 2012-2013, 2013-2014, 2014-2015 and 2015-2016 school years. (T-66-7)

However, because the DOE did not implement the partial Resolution Agreement, the student suffered an additional harm and was denied a FAPE for the 2015-2016 school year, even though that year was included in the partial Resolution Agreement. (T-67)

The enforcement of the partial Resolution Agreement and the Parent’s request for Case No. 158550 attorney fees, are not issues that fall within the jurisdiction of the IHO to address. (T-50,

55-7, 59-61 & 65-7) For example. an IHO is not be permitted to impose sanctions upon a party because the party failed to adhere to the terms of a resolution agreement since the relevant statute requires that kind of enforcement action to be conducted before a court of competent jurisdiction. (See SRO 16-017) As for the Parent’s request for attorney fees, the IDEA does not authorize an IHO to award attorneys' fees or other costs to a prevailing party; and entitlement, if any, to costs must be determined by a court of competent jurisdiction. (See 20 U.S.C. § 1415[i][3][B] and Murphy v. Arlington Cent. Sch. Dist.

Bd. of Educ., 402 F.3d 332 [2d Cir. 2005])

THE DOE’S CASE

In sum, substance and relevant part, the DOE argues that the Parent is precluded from bringing claims which fall outside of the IDEA’s two-year statute of limitations. (T-

88) On April 4, 2016, the Parent filed an amended DPC, requesting much of the same relief that was included in her original DPC and has already been “fulfilled” by the agency. (T-89) The student does not warrant a (“ ”) and the Parent has not expressed which specific reports she disagrees with. (T-89-90) The agency has offered the Parent “ ”, but does not believe that the student is entitled to compensatory because the evaluation in evidence shows that the student does not require it. (T-90-1) The agency concedes that it did not offer the student a FAPE for the 2015-2016 school year.

(T-65-6, 82 & 92)

The DOE did not call any witnesses to testify on its behalf but did submit (15)

documents into evidence.

THE PARENT’S CASE

In sum, substance and relevant part, the Parent argues that the student has continued and repeated to fail to make progress in his and .

(T-93) The Parent disagrees with the student’s evaluation. (T-94)

Additionally, because the parties’ agreement was not implemented in a timely fashion, the student has been additionally harmed for 2015-2016 school year. (T-95)

The Parent called (2) witnesses to testify on her behalf and submitted (13)

documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness is the

. (T-97) Pursuant to 8 NYCRR 200.5[j][3][xii][f]), her direct testimony was received by affidavit. (P-L) On direct testimony, the witness testified that she personally evaluated the student. (P-L) She is

, and

, , ,

, , . (Id.) She has also

worked as a . (Id.)

The witness testified that she personally knows the student and his mother and personally evaluated the student because . (Id.) Prior to conducting the evaluation, she reviewed the student’s October 5, 2015 IEP. (Id.) During the administration of the evaluation, she noted that the student and . (Id.) The student . (Id.) For example, . She noted that the student’s was . (Id.)

He exhibited , ,

. (Id.)

The witness testified that she administered the following tests to the student on April 8, 2016: , ,

, ,

, , , ,

, ,

, and . (Id.) Based upon the student’s evaluations, recommends he requires in total to , at the rate of per hour of . (Id.) The student received a rating of “ ” on the , with a “ ” on this test, with a “ ” in the “ ” . (Id.) Based upon these scores, the student , instead he . (Id.) In her experience as a special education teacher, evaluator, and participant at IEP meetings, students who require an IEP goal which seeks to

.

On the and the , the student earned ratings of “ ” The rating of on the is due to ,

, and . (Id.) The rating of on the is due to . (Id.) On the is performing at and on the the student scored at a . (Id.)

The test showed that the student

, , , or

. The showed that was “ ”, or “ ” (Id.) However, while the student’s

, his

, indicating the . (Id.) On the the student , indicating . (Id.) During the , the student , earning him an overall rating of “ ” on

. (Id.)

On the , , the student earned a rating of

“ ”, scoring in the , which is " ".

(Id.) On , he earned a rating of “ ”, having scored in the and earning “ ” (Id.) The student also earned a rating of “ ” on the of the evaluation, scoring in the and earning “ ” (Id.) On the , the student and . (Id.) The student . (Id.) On the the witness opined that

.

The witness testified that based upon the student’s evaluations, she believes that the student will require total hours of compensatory for

.

On cross examination, the witness testified that she has been taught on how to administer evaluations to students in special education. (T-172-3) However, they do not test special education students with specialized assessments. (T-173) She has only reviewed the student’s IEP from October 5, 2015. (T-175)

. (T-

175-6) The student was provided with as required by his IEP.

(T-178-9)

The witness testified that at their locations, the rate is per hour. (T-181) At the locations, the rate is per hour. (Id.) They teach , . (T-183) On the test, the student . (T-186) However, she opines that while the student , he and he . (T-187) The witness conceded that the student . (T-188) The witness also conceded that the that were given to the student were because they “

” (T-191-2)

The witness testified that the “ ” provides is not , but instead how the student “ .

(T-196) They recommended the number of hours of the student needs from his evaluation, the number of from the to estimate the student’s and then estimate the number of the student needs. (T-204)

On redirect examination, the witness testified that they have had success with their

“ ” without the assistance of an . (T-212) All of the student’s at the would be provided by . (Id.)

It is her testimony that the student was in the when she tested him and that the top of her report is inaccurate in this part. (T-215-6) There was no substantive testimony developed during the witness’ re-cross examination. (T-217-20)

The student’s mother also gave her direct testimony by affidavit. (P-M) She testified that the student was diagnosed with (Id.) Prior to entering the NYC-DOE, the student , where he attended a and received the following related services: , , and

. (Id.)

. (Id.)

The student’s mother testified that on October 5, 2015, the CSE met to develop the student’s annual IEP for the upcoming 2015-2016 school year and she personally attended this meeting. (Id.) The CSE conducted the meeting and developed annual IEP goals for the student without conducting updated evaluations. (Id.) She told the CSE that the student required a due to a . (Id.) She stated that the student was a and was because and that he needed and . (Id.) She also complained about the student’s and about . (Id.) Despite the student’s failure to make meaningful progress, the CSE again placed him in an with ,

and

. (Id.) She

continued to believe that an was not appropriate for the student and that he required a placement with additional related services. (Id.)

The student’s mother also testified that his goals, his goal and goal from his February 2015 IEP were copied verbatim into his October 2015 from the February IEP, and his goals were copied verbatim from the February 2015 IEP into the October 2015 IEP, even though the student had supposedly met those goals.

(Id.) She believed that an goal should have included on his IEPs to address and that a goal should have been included to address . (Id.) The student’s had not improved since the February 2015 IEP, yet the CSE removed his despite the fact that the student’s , his and his

. (Id.)

The witness further testified that at no point before, during or after this meeting did the DOE provide her with a “ ”, nor did the agency advise her of her legal rights.

(Id.) On three separate dates in January 2016, the DOE conducted a Evaluation of the student which she had an opportunity to review. (Id.) She learned that the student’s teachers told the evaluator that he required more ,

, , and . (Id.) She

disagrees with the report of the student’s assessment which rated his ability as “ ”, because and . (Id.) The student’s evaluation conducted in April 2016 also stated that his , and that . (Id.)

The witness also testified that a Evaluation conducted in or about March and April 2016 noted that the student . (Id.) To date, the student , , . (Id.)

In March 2016, the student’s teachers completed a school report, on which they indicated that he was ,

, , , .

(Id.) This conflicted with the report in which the same teachers allegedly reported that .

(Id.)

The witness testified that the DOE conducted an Evaluation in April 2016, which she reviewed and was happy to read that the student had a to and to . (Id.) The student’s teachers noted to the evaluator that he , but the DOE did not reconvene to modify his IEP, mandate or to add a goal to address this deficiency. (Id.) The student did not get his full mandate of during the 2015- 2016 school year. (Id.)

In or about April 2016, the witness said she received the student’s report card for the second marking period and saw that , and that . (Id.) In or about March and April of 2016, she brought the student to Dr. for a Evaluation who stated that his overall performance on this evaluation, considered in connection with school observations, teacher interviews and an interview with the witness, is most consistent with a diagnosis of . (Id.) This directly contradicted the results of the Evaluation conducted by the . (Id.)

The witness also testified that she agreed with Dr. 's assessment that the student’s placement in an was inappropriate and that he required a , but that a placement would be too restrictive.

(Id.) Dr. 's recommended that the student be placed in an school because but requires and

. (Id.)

The witness testified that towards the end of the 2015-2016 school year, . She does not believe that the student made meaningful progress towards his IEP goals, or that the DOE placed the student in an appropriate program with appropriate related services, nor that he received an appropriate amount of necessary for him to make meaningful progress and to adequately address his deficiencies. (Id.) She also does not believe that the student received an appropriate amount of necessary to make meaningful progress and to adequately address his deficiencies. (Id.) She believes that the student should have received services to address and

, as well as

. (Id.)

On cross examination, the witness conceded that the student did in fact receive and that there is an error in paragraph (6) of her affidavit. (T-112) She conceded that in June 2015 the school did request regarding her request that the student have a , although the student did not start to attend school until October because . (T-113-4) The witness testified that there was no one at the school in July or August for her to give the ’s letter and so she submitted it the first day of school. (T-115) The student did not attend in 2015 and is not attending now, because she was not informed where he should be going to school. (T-118)

The witness testified that and

. (T-119) She concedes that the DOE conducted , and evaluations, but testified that she did not agree with the evaluation. (T-120-1) She also said that the student has not gotten any service at all. (T-121) She agrees with the student’s “ ” and asserts that the student was receiving in . (T-122-3)

However, she conceded that the Evaluation that was conducted did not recommend services for the student. (T-124) She also conceded that if the student were placed in a non-public school and

. (T-127)

The witness testified that the told her that the student was diagnosed with . (T-128) In December of 2015 she signed a “ ” (T-129) As a result, she received authorizations to hire private providers for the student around the end of July. (T-133) Later she testified that she could not remember when she received the “ ” (T-134) However, she received the private providers list “ ” after she signed the resolution agreement, possible January of this year. (T-135)

On re-direct examination, the witness testified that now she does not agree with the student’s evaluation, because . (T-142-3) The witness testified that the student did not get his “ ” regularly the way he was supposed to, but added that she cannot remember how much the student is supposed to get. (T-145) She believes that the student needs more services. (T-146) She also does not agree with the student’s assessment. (T-158)

On re-cross examination, the witness conceded that after she signed the resolution agreement, the student had a until the end of the year. (T-

162) During voir dire the witness testified she understood that the agreement she signed provided that the student would receive the services listed in addition to what he was receiving already on his IEP. (T-163) However, he never received the extra services.

(Id.) She told the IEP special education teacher that she disagreed with the student’s , and evaluations as soon as she received the documentation in June. (T-164-5) Later the witness testified that the only thing she objects to is the reference in the evaluation regarding

. (T-167)

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE 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 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See 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] and Perricelli v. Carmel Cent. Sch.

Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

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 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]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and 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 impartial hearing officer'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." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and 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 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] and 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 and 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.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir.

2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and 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]; 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; E.G. v. City Sch. Dist.

of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 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]; SRO No.

07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and

SRO No. 08-087)

The DOE 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] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) 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. (See Burlington, 471 U.S. at 370-

71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra

v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "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. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S.

at 12, 15 and 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; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-

105) 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 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "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….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) 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." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at

364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch.

Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir.

2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty

v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07-

120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters."

(See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement 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, fail to engage with potential placements offered 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]; Thies v. New York 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 York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)

PARENT’S REQUEST FOR SERVICES

The Parent herein request that the student receive “ ” as a related service, which was not addressed in the parties’ partial Resolution Agreement. (D-4) Such education, services and aids, where warranted, must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals. (See 34 C.F.R. § 300.347[a][3][i] and see 8 NYCRR 200.4[d][2][iv][a]) “Supplementary aids and services” means aids, services, and other supports that are provided in regular education classes or other education-related settings to enable students with disabilities to be educated with non-disabled students to the maximum extent appropriate in accordance with the least restrictive environment. (See 8 NYCRR 200.1[bbb] and 20 U.S.C. § 1401[29]; 34 C.F.R. § 300.28)

The DOE may be required to reimburse a Parent for his or her expenditures for private educational services obtained for a student by his or her Parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parent were appropriate, and the equitable considerations support the parent's claim. (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985], Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005])

Here, the only evaluation regarding “ ” is dated January 11, 2016. (P-C) The evaluation did not recommend that the student receive “ ” (Id.)

However, the copy of the evaluation submitted in evidence is not “ ” and “ ” The evaluation is also extremely sparse with little if any evaluative information provided. I decline to give the “ ” any credible weight in evidence.

By contrast, the Parent’s comprehensive Evaluation conducted in March and April of 2016, found in part as follows:

. (P-H)

The Evaluation goes on to states that “

.” (Id.) The evaluation goes on to state the following:

(Id.)

The Evaluation falls short of recommending that the student received services, stating instead that “

.”

(Id.) However, the student’s mother believes that the student should have a “ ” to address . (P-M) She affirmed that the student did receive services when and that she does not agree with the DOE’s evaluation. (T-112 & 120-3)

The Parent’s DPC requests “

.” (D-1) The DOE conducted a

“ ” in January of 2016, which the Parent disagrees with. (Supra)

The Parent’s Evaluation was conducted after the DOE evaluation and recommends that the student be evaluated for possible receipt of services. State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination. The decision shall reference the hearing record to support the findings of fact." (See 8 NYCRR 200.5[j][5][v]) Here, the record is devoid of how much, if any services the student should receive this school year.

However, whereas here, the Parent disagrees with an evaluation obtained by the school district, the Parent has a right to obtain an independent evaluation at public expense. (8 NYCRR § 200.5[g]) If the Parent does request an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent evaluation is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. (8 NYCRR § 200.5(g)(iv) Here, the DOE did not take either course of action. Additionally, 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) provide that if a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.

Accordingly, for all of the reasons stated above, the undersigned will order a private

“ ”, the costs of which shall be paid by the DDOE upon its receipt of reasonably satisfactory proof of services having been rendered.

THE PARENT’S REQUEST FOR COMPENSATORY EDUCATION SERVICES

It is well settled that compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. (See Wenger v. Canastota, 979 F.

Supp. 147 [N.D.N.Y. 1997]) Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA. (See 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1],

4402[5])

In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 C.F.R. § 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; SRO No. 05-084 & 05-037), or until the conclusion of the school year in which he or she turns age 21. (See Educ. Law §§ 3202[1], 4401[1], 4402[5]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 C.F.R. § 300.102[a][1], [a][3][ii] & SRO No. 04-100)

Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation 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 York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001] & SRO No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education])

Compensatory education relief may also 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 allow s 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 also R.C. v. Bd of Educ., 2008 LEXIS 113149, at *38-40 [S.D.N.Y. March 6, 2008])

Likewise, State Review Officers 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 Bd. 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]; SRO No. 09-111 [adding summer reading instruction to an additional services aw ard]; SRO No. 09-054 [aw arding additional instructional services to remedy a depriv ation of instruction]; SRO No. 09-044

[aw arding "make-up" counseling services to remedy the depriv ation of such services]; SRO No. 09-035 [aw arding 1:1 reading instruction as compensation for a depriv ation of a FA PE]; SRO No. 08-072 [aw arding after school and summer reading instruction as compensatory services to remedy a denial of a FA PE]; SRO No. 08-060 [upholding additional services aw ards of physical therapy and speech-language therapy ]; SRO No.

08-035 [aw arding ten months of home instruction services as compensatory services] and SRO Nos. 06-074, 05-041 & 04-054)

New York has not directly addressed thus far in unpublished or published court decisions to date, whether a student entitled to compensatory education services should receive those services on a “qualitative”, “quantitative” or hybrid of the two approaches. (See Student X v. New York City Dep’t of Educ., 51 IDELR ¶ 122 (E.D.N.Y. 2008)

(acknowledging that the Second Circuit has not addressed this issue, while aw arding an hour-for-hour amount in a lack of im plem entation case). The limited exception, which does not dictate any particular approach, is the net reduction for unreasonable parental conduct. The

SRO has followed both the quantitative and hybrid approach. (See SRO Nos. 13-048, 12-235

& 12-209) In any event, the case law in New York has applies a balancing of the equities in terms of reducing or eliminating an award in cases of net unreasonable parental conduct.

(See French v. New York State Educ. Dep’t, 476 F. App’x 468 (2d Cir. 2011), J.G. v. Kiryas

Joel Sch. Dist., 777 F. Supp. 2d 606 (S.D.N.Y. 2011) and SRO Nos. 11-027 & 11-096

(upholding the portion of an IHO decision that denied compensatory education services due to the parents’ failure to cooperate with the district).

The DOE concedes that it did not offer the student a FAPE for the 2015-2016 school year. (T-65-6, 82 & 92) The (“ ”) credibly testified that she personally conducted a battery of assessments on the student, the vast majority of those test summarized above and indicating that . (P-L) The student received scores of “ ”, “ ”, “ ” and “ ”

(Supra) The conceded that and that

(T-188 & 191-2)

Nevertheless, the testified that based upon the student’s evaluations, he requires in total to he needs to make meaningful progress, at the rate of ( ) per hour of . (Id.) All of the at the is performed by . (Id.)

The ’s testimony was by far uncontroverted. The student’s mother added that and . (P-M) The student’s , and . (Id.) The student’s Evaluation notes that “ .” (P-H) The also states

.” In March

2016, the student’s teachers completed a school report, on which they indicated that , which conflicted with the DOE report dated January, 2016, in which the same teachers allegedly reported that . (Id. &P-B) This evidences the the mother testified too.

I note that there is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. Therefore, I find that equitable considerations do not bar an award of compensatory education to the Parent.

NOW therefore, it is hereby

ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall immediately reimburse the Parent for the cost of a private “ ” for the student’s 2016-2017 school year; and it is further

ORDERED that the student shall receive a total of hours of compensatory educational services consisting of , to be paid at the rate of per hour, the costs of which shall be paid by the DOE upon its receipt of reasonably satisfactory proof of services having been rendered; and it is further ORDERED that the CSE shall forthwith reconvene to produce a new IEP for the student that considers the student’s private “ ” all of the student’s available evaluations and any related services that he should receive for the remainder of the 2016-2017 school year.

Dated: October 5, 2016

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

EDL:

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

Number/Letter Title Dated For # of Pages

01 DPC 10/23/15 DOE 22

02 Letter from Doctor 09/28/15 DOE 01

03 Prior Written Notice 10/22/15 DOE 03

04 Resolution Agreement 12/15/15 DOE 04

05 IEE Authorization 01/12/16 DOE 05

06 Evaluation 01/11/16 DOE 05

07 Consideration for 05/17/16 DOE 03

08 05/05-23/16 DOE 33

09 05/17/16 DOE 01

10 05/25/16 DOE 05

11 CSE Meeting Notice 06/01/16 DOE 03

12 IEP 06/16/16 DOE 18

13 Prior Written Notice 06/20/16 DOE 04

14 05/04-12/16 DOE 04

15 Attendance Reports 2015-2016 DOE 01

A IEP 10/05/15 PARENT 16

B Evaluation 01/2016 PARENT 13

C Evaluation 01/11/16 PARENT 04

D School Report 03/04/16 PARENT 05

E DPC - “ ” 04/04/16 PARENT 23

F School Letter 04/18/16 PARENT 01

G Report Card 04/07/16 PARENT 01

H Evaluation 03+04/2016 PARENT 18

I Evaluation 04/08/16 PARENT 11

J Evaluation 04/18/16 PARENT 11

K Eval. 05/26/16 PARENT 06

L Affidavit - 08/05/16 PARENT 12

M Affidavit - Mother 08/08/16 PARENT 15

N Closing Statement 09/30/16 PARENT 32

I Parent Motion to Reopen 08/11/16 IHO 42

II DOE Opp. to Motion to Reopen 08/18/16 IHO 02

III Parent Reply - Motion to Reopen 08/23/16 IHO 03