New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 158791

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: February 17, 2016

February 24, 2016

Actual Record Closed Date: March 1, 2016

Hearing Officer: Barbara Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 17, 2016

Parents

Friend of — Parents

Impartial Hearing Rep. — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 24, 2016

Parent (via telephone) — Student

Impartial Hearing Rep. — DOE

This is . On February 17, 2016 and February 24, 2016, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA 2004), 20 U.S.C. Section 1415(f)(3), regarding the special education of at the New York City Department of Education Impartial Hearing Office at . , an Impartial Hearing Representative, represented the Department of Education (DOE) and the Parent appeared pro se.

, a friend, accompanied the Parent and was there for support. A list of documents received into evidence and witnesses who testified is attached to this final decision.

PROCEDURAL ISSUE

This hearing was only scheduled for February 17, 2016. Upon receiving the transcript of the February 17, 2016 hearing and reviewing the evidence, I realized that I was missing some crucial evidence. I sent email to the parties and the DOE Impartial Hearing Office requesting either additional documents, including to the spring 2015 IEP and the spring 2015 “Final Notice of Recommendation” (FNR), or an additional day of testimony. In response to my request, the parties agreed to have a second hearing date on February 24, 2016 to permit more testimony and the admission of additional evidence.

The Parent testified by telephone not to have to miss work again.

ISSUES

The first issue in this impartial hearing is whether there are any outstanding claims after the parties signed a partial resolution agreement. If so, then the Parent has made the following claims in this impartial hearing:

1. There are no Services in the partial resolution agreement (Tr. 27-8, 35, 55)

and neither are compensatory services in and . (Tr. 64)

2. There is an error in the dates indicated in the resolution agreement (Tr. 36)

3. Additional compensatory services for delays in the implementation of the partial resolution agreement (Ex. 1 at 4; Tr. 27, 37, 57-8); and

4. Money placed in a fund for the Parent to use to obtain services as a possible alternative method of funding services. (Tr. 27, 29, 40)

FINDINGS OF FACT

is a student who has . She

( ) and

, , and . (Ex. 3 at

1; Tr. 31). She now has , ,“

” and . (Ex. G; Ex. 3 at 1) She is . (Ex. G) Her are assessed in the range. (Ex. 3 at 1)

had services for ( ) and although she did have some and .1 (Tr. 31,

45, 47-8) The Parent used a to

. (Tr. 46)

The Committee on Special Education (CSE) convened twice for as she was . (Ex. 3 at 21) The first meeting was in April 2015.

(Tr. 86) There is no evidence concerning this meeting in this impartial hearing. The second CSE meeting was on May 13, 2015 and it developed an IEP. (Ex. 5) The Mother requested at the May 13, 2015 CSE meeting.^[2] (Ex.^[1] at 3; Tr. 31) The

DOE Representative in this hearing opined that the May 13, 2015 IEP placed in a with related services and with a . (Tr. 74; Ex. 3 at 17) But the DOE failed to issue a “final notice of recommendation” (FNR) with a placement for September 2015 following the May 13, 2015 CSE meeting. (Tr. 74) The reason offered for the lack of a

FNR “

. (Tr. 74) So the DOE issued provided no placement for this Student. Meanwhile, the 2015 – 2016 school year began, and had no educational services.

There are two IEP’s in evidence in this impartial hearing. (Ex. 3, 5) The problem is that the DOE did not draft an IEP, save it, and then draft a new IEP. Instead, the CSE simple took a previous IEP, crossed out some items, and hand wrote in a new date and some updated information. Making a few cross outs and adding some new information to revise an old IEP rather than drafting a new one leaves internal inconsistencies in the document. For example, exhibit 5 indicates that the placement is , but provides with . (Ex. 5 at 17) A student does not need when she is on . It appears that exhibit 5 is the May 13, 2015 IEP but the final signature page is from November 30, 2015 just like exhibit 3. (Ex. 5 at 21) These internal inconsistencies make it difficult to discern what happened at any one meeting without analyzing the document carefully.

For example, exhibit 3 was originally dated May 13, 2015. (Ex. 3 at 17). That date is part of the computer generated document. It states that was considered but rejected because “ ” (Ex. 3 at 19) At the top of the last page of the IEP is an attendance sheet that has a handwritten note where the form indicates “date of IEP.” The original document date of May 13, 2015 is crossed out but still legible, and the date of “11-30-15 second third meeting – ” has been added. The inconsistency of dates is also reflected on the first page of the IEP.

There the IEP states that the IEP is to be implemented beginning 12/7/2015 which suggests that this is a November 30, 2015 IEP. But the projected date of annual review is still 5/11/2016 which suggests that this IEP is actually from a May 13, 2015 CSE meeting. Furthermore, the section begins, “

“ (Ex. 3 at 1) This statement confirms that this IEP is from a May 13, 2015 CSE meeting because that is when this Student was old and receiving . By November 30, 2015, she was old and not receiving any services. I find as a matter of fact that the CSE issued a May 13, 2015 IEP but that it is impossible to discern a placement on it.

Exhibit 3 in evidence is silent as to the amount of and related services the Student is to receive. (Ex. 3 at 18) New York Education Law §3205(1)(a) “Requires that each minor from six to sixteen years of age shall attend upon full time instruction.” Furthermore, “. . . a minor who becomes six years of age after the first of December in any school year shall be required to attend upon full time instruction from the first day of session in the following September . . . “ Education Law §3205(1)(c) is , and she is not required to be in until .

Whatever the placement was supposed to be, the DOE issued no FNR and provided no beginning in September 2015. The Parent filed a request for due process on November 5, 2015. (Ex. 1) She wrote:

“

” (Ex 1 at 2)

She also wrote the word “pendency” on it, and indicated that ’s services should not have been interrupted. (Ibid.) After receiving the due process complaint, the CSE reconvened and placed on with related services during the third CSE meeting on November 30, 2015. (Ex. 3 at 21) The DOE admits that there was a period of time that the Student was not receiving her related services. (Tr. 22) The

Parent claims that the Student has not received any services both related services and this school year. (Tr. 36)

In her due process complaint, the Parent did not claim that the DOE did not provide an IEP or FNR for for the beginning of the 2015 – 2016 school year. (Tr.

74) To the contrary, she requested that the “ ” (Ex. 1 at 4) There was a presumption that there was a then current

IEP.

The parties participated in resolution negotiations that involved various versions of a proposed resolution agreement. (Ex. F) The Parent signed a resolution agreement on

February 2, 2016 and checked off that it was a partial settlement because there were requested items not included in it. (Tr. 27; Ex. 2 at 2, 3) There is an IEP dated November

30th, 2015 that also places the Student on , and a final FNR was issued following that meeting on December 4th, 2015 that is in Department of Education's

Exhibit 4.

Following the resolution agreement, the DOE issued RSA’s for related services.

The Parent gave inconsistent testimony that she received the RSA’s on the before this impartial hearing, which was February 12, 2016, but also that she received them in January. (Tr. 41, 52) As she did not sign the resolution agreement that provides for RSA’s until February, I find as a matter of fact that the Parent received the RSA’s by February 12, 2016 and simply misspoke when she testified that she received them in January. (Ex. B)

The Parent testified that it is difficult finding service-providers willing to with the RSA’s because the providers she contacted do not have the time open on their schedules now, and other problems. (Tr. 40, 42; Ex. A, B) The Parent also admits that . (Tr. 45) She has asked the DOE about as a potential method of implementation of services. (Tr. 65)

has , and the Parent has gotten her a week

funded by . (Tr. 59-60) It is provided in a by a .

(Tr. 60) The Parent takes there using . (Tr. 60)

CONCLUSIONS OF LAW

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]; Tarlow e v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y.

July 3, 2008), and establishes annual goals related to those needs. 34 C.F.R.

§300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii). An IEP should provide for the use of appropriate special education services. 34 C.F.R. §300.320(a)(4); 8 NYCRR 200.4(d)(2)(v). The IEP must be "reasonably calculated to provide 'meaningful' benefit" to the child.” M rs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997).

Subsequent to its development, an IEP must be properly implemented. 8 NYCRR

200.4(e)(7):

“The school district must provide special education and related services to a student with a disability in accordance with the student's IEP and must make a good faith effort to assist the student to achieve the annual goals and, if appropriate, short-term instructional objectives or benchmarks listed in the student's IEP.”

See also A pplication of a Child with a Disability , Appeal No. 08-087, A pplication of a Child with a Disability , Appeal No. 09-111. A new IEP must be implemented each year.

Gagliardo v. A rlington Cent. Sch. Dist. 489 F.3d 105, 107 (2d Cir. 2007).

While school districts must comply with all IDEA procedures, not all procedural errors rise to the level of a substantive denial of FAPE. Grim v. Rhinebeck Cent. Sch.

Dist., 346 F.3d 377, 381 (2d Cir. 2003) Procedural violations alone do not deprive a student of a FAPE unless they impede the child’s right to a FAPE, significantly impede the parents’ opportunity to participate in the decision-making process, or cause a deprivation of educational benefits. 20 U.S.C. §1415(f)(3)(E)(ii) Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not so. See Werner v. Clarkstown Cent. Sch. Dist., 363 F.

Supp.13 2d 656, 659 (S.D.N.Y. 2005) The IDEA directs that an impartial hearing officer'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)

In this case, the DOE committed a number of procedural violations of the IDEA.

First, the New York State Commissioner of Education Regulations Section 200.1( )

defines as:

means special education provided on an individual basis for a student with a disability

.

and Section 200.1(ww) defines special education as:

Special education means specially designed individualized or group instruction or special services or programs, as defined in subdivision 2 of section 4401 of the Education Law, and special transportation , provided at no cost to the parent, to meet the unique needs of students with disabilities.

(1) Such instruction includes but is not limited to that conducted in classrooms,

, hospitals, institutions and in other settings. (emphasis added)

is a location for receipt of special education services so that once the CSE decides to place a child , becomes the child’s placement.

The DOE must implement on the first day of school. It is not up to a mystery office in the DOE. The CSE makes the decision, and some other office may make the arrangements but another entity does not have the authority to make the decision.^[3] In this case, the DOE did not even issue a FNR after the May 13, 2015 CSE meeting so had no educational services at all why the DOE waited for some unknown paperwork in a mystery office.

Second, the DOE cannot simply cross out information on old IEP’s and write over them. It must generate a new document and maintain clean copies of previous IEP’s.

IEP’s are to be “kept” according to FERPA, IDEA, and New York statutes and regulations. Parents must be able to access these prior IEP’s, evaluations, and other educational records. New York State Commissioner of Education Regulations Section

200.5(d)(6):

(6) The parents of a student with a disability must be afforded an opportunity to inspect and review all education records with respect to the identification, evaluation, and educational placement of the student and the provision of a free appropriate public education to the student, in accordance with the requirements of 34 C.F.R. sections 300.613 through 300.625 (Code of Federal Regulations, 2009 edition, title 34, sections 300.613 – 300.625, Superintendent of Documents, U.S.

Government Printing Office, Washington, DC 20402-0001; 2009 - available at the Office of Counsel, New York State Education Department, State Education

Building Room 148, 89 Washington Avenue, Albany, NY 12234).

I find that the DOE failed to maintain copies of IEP’s according to the New York State Commissioner of Education regulations and failed to issue a timely FNR following the May 13, 2015 CSE meeting as a matter of fact. Regardless of what placement the CSE recommended, every child must have a FNR giving a place to go to school by the first day of the new school year, even if it is .

Lastly, the DOE failed to implement any IEP for this Student while waiting for some paperwork. If the paperwork was necessary to change a placement, the previous IEP remains in effect and the DOE should have implemented it. The student is not supposed to be left without services.

In this case, the DOE committed procedural violations that caused a deprivation of educational benefits for the above reasons, and because she has been without any educational services from September 2015 through the end of February 2016. This is six months without educational services.

The Parent cited to pendency in her impartial hearing complaint. Pendency is not triggered until a party requests a hearing. See A pplication of a Child with a Disability , Appeal No. 02-095, citing Bethlehem Cent. Sch. Dist. v. Doe, 961 F. Supp. 31 (N.D.N.Y.

1997). In this case, the Parent did not request an impartial hearing until November 5, 2015. (Ex. 1) But the DOE had an obligation to implement that May 13, 2015 IEP beginning on the first day of school in September 2015.

CONCLUSIONS OF LAW

An Impartial Hearing Officer has authority to consider only those issues that were raised in the due process complaint.

NYS §200.5(j)(1)(ii) Subject matter of the impartial due process hearing. The party requesting the impartial due process hearing shall not be allowed to raise issues at the impartial due process hearing that were not raised in the complaint, unless the other party agrees otherwise.

The New York State Review Office applies the “Four Corners Rule” to impartial hearing complaints even when, like in this case, the parents are pro se. See A pplication of a Student with a Disability , Appeal No. 09-141 in which the SRO found that it is impermissible for an IHO to raise procedural issues that pro se parents did not raise in their impartial hearing complaint.

The IDEA requires that a parent’s complaint provide sufficient notice to the educational agency. “Congress has chosen to legislate the central components of due process hearings. It has imposed minimal pleading standards, requiring parties to file complaints setting forth “a description of the nature of the problem,” §1415(b)(7)(B)(ii), and “a proposed resolution of the problem to the extent known and available . . . at the time,” §1415(b)(7)(B)(iii) Schaffer ex rel. Schaffer v. W east, 126 S.Ct. 528, 532 (2005)

(emphasis added) With this legal background, I consider what claims were made in the Parent’s complaint but not addressed in the partial resolution agreement.

The Partial Resolution Agreement

The parties entered into a resolution agreement for:

RSA’s for a week for minutes; times a week for minutes; times per week for minutes; times per week for minutes, and services times per week for minutes.

Compensatory services for hours; compensatory for hours; and compensatory for hours. (Ex. 2)

I note that the resolution agreement does not indicate how will be provided to the Student’s through RSA’s. I also note that this settlement amounts to approximately hours of related services per day plus hours of compensatory education even without the additional requested services and they are all to be provided through RSA’s. This extensive use of RSA’s shifts the burden of finding qualified service providers and scheduling them from the DOE to the Parent for the Student’s related services that are her under the resolution agreement.

But the issue in this impartial hearing is not the feasibility of implementing the resolution agreement nor the fact that the agreement shifts the burden of finding and scheduling service providers from the DOE to the Parent, as the parties agreed to this arrangement in their partial resolution agreement. The issue is what claims the Parent raised in her due process complaint that are not addressed in the partial resolution agreement so that they survive the agreement. These are the only issues before me because the enforcement of a resolution agreement is a solely a matter for the courts.

Under the federal and state regulations governing resolution sessions, a written settlement agreement is enforceable in state or federal court. 34 C.F.R. §300.510[d][2]; 8 NYCRR

200.5[j][2][iv] Impartial hearing officers and the New York State Review Office do not review matters resolved in a resolution agreement. See A pplication of a Student with a Disability , SRO Appeal No. 09-112. Case law further establishes that the New York State Commissioner of Education does not have jurisdiction to hear matters resolved in a resolution agreement:

“An appeal to the Commissioner of Education is not the proper forum to challenge a written settlement agreement reached at a resolution session scheduled in response to a request for an impartial hearing pursuant to the federal Individuals with Disabilities Education Act (“IDEA”) 20 USC §1415(f)(1)(B) and Education Law §4404(1)(b). Such agreements are enforceable in any State court of competent jurisdiction or in a United States district court (20 USC §1415[f][1][B][iii][II];

Education Law §4404[1][b]). Accordingly, the appeal must be dismissed for lack of jurisdiction.”

A ppeal of RUTH RADOW from action of the B oard of Education of the Law rence

Union Free School District regarding expenditure of funds. Decision No. 15,824

(August 20, 2008)

In this impartial hearing, the Parent made the following claims:

1. are not in the partial resolution agreement at all, and there is no compensatory and services.

The Parent used the DOE’s “Request for Due Process Proceedings” form to request an impartial hearing, but she attached two pages of information to it. She wrote:

“

.”

“ ”( ) is the equivalent to a

“ ”( ), which is for . While there

was reference to hours of on a previous version of the resolution agreement, there is no mention of in the final signed resolution agreement. (Ex. F at 2; Ex. 2) I find as a matter of fact that the pro se Parent raised the issue of a ( ) in her impartial hearing complaint and it was not addressed in the partial resolution agreement.

I find that while and are in the resolution agreement as services to be provided through RSA ’s, the agreement does not provide any compensatory or services. I also find that the Parent made a general claim for compensatory education services in her complaint in bold face type, “ ” (Ex. 1 at 4) She then described a need for compensatory , compensatory , and compensatory . (Ibid.) She did not describe a need for compensatory , compensatory , or compensatory . I find that the Parent did not include compensatory services in , , and although the resolution agreement provides compensatory although there was no specific request for it.

2. Clarification of date of the impartial hearing complaint.

The Parent requested an impartial hearing on November 5, 2015 and according to her own testimony, she filed no other hearing requests. No other complaint has been admitted into evidence in this impartial hearing. I find as a matter of fact that any reference to other hearing request dates in the resolution agreement is a clerical error. (Ex. 1)

3. Additional compensatory services for delays in the implementation of the partial resolution agreement

The Parent signed a resolution agreement on February 2, 2016 and admits that she received the RSA’s the Friday before this impartial hearing, which would have been on February 12, 2016 that is ten days after she signed the resolution agreement. While there were initial clerical errors, they were corrected in a timely manner. I find that there was no delay in implementing the partial resolution agreement. It did take some time for the resolution agreement to be drafted and then the Parent requested revisions to it that further delayed it. I note that the Parent always had the option of partially accepting the first version of the resolution agreement and beginning services which is what she finally did on the second version of it.

4. Money placed in a fund for the Parent to use to obtain services as an alternative payment method

While I applaud the Parent for reading case law, she cites a case that is not in this jurisdiction and serves only as persuasive precedent. Furthermore, there is no need to create a fund for the Parent to use to purchase services. If the Parent cannot locate the services she agreed to in the resolution agreement, she may contact additional service providers, use hospital-based services, request an enhanced rate from the DOE, or pursue a challenge to the resolution agreement she signed in court.

COMPENSATORY EDUCATION

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, 151 (N.D.N.Y.

1997). Additional services are a form of compensatory education when, as in this case, the student is still eligible under the IDEA. The purpose of a compensatory education award is to remedy a denial of a FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (holding that compensatory education is a remedy designed to “make up for” a denial of a FAPE, and awards should be designed to "appropriately address the problems with the IEP"). An impartial hearing officer has discretion to fashion an equitable compensatory education award. In fashioning such a remedy, the inquiry should be fact-specific, and the award should 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., No. 3, 31 F.3d 1489, 1497 (9th Cir. 1994) ("There is no obligation to provide a day-for-day compensation for time missed").

“The 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. (Cites omitted) The remedy's mandates in this case . . . appropriately addressed the problems with the IEP, We therefore see no infirmity in the hearing officer's chosen remedy.” P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).

I find that the DOE failed to provide or for from September 2015 to the end of February 2016. That is six months minus vacations so that she missed approximately five months of instruction or twenty weeks.

of for a total of times per week

or of .

CONCLUSION

In addition to the services in the partial resolution agreement, I find that the DOE must provide the Student with in the form of and provide compensatory services for not provided during the 2015 – 2016 school year from the first day of school to the date of this final decision.

I have deliberately not ordered any compensatory services in and . First, compensatory services in these two areas are not specified in the Parent’s complaint. In addition, the IEP’s in evidence have one goal with three short-term objectives all of which involve

. (Ex. 3 at 12) These are she cannot work on while on

.

ORDER

I hereby order the DOE to provide through to per day for the rest of the 2015 – 2016 school year.

I further order the DOE to provide her with hours of compensatory through services to be completed within a year of the date of this final decision. I remind the DOE that is not a related service, but . As such, the DOE is responsible for its provision and it cannot issue RSA’s for .

I suggest that the parties begin to work together now to locate an appropriate day school for for the 2016 – 2017 school year, develop an IEP, and have the DOE issue a timely FNR for September 2016.

Dated: March 1, 2016

BARBARA J. EBENSTEIN, ESQ.

Impartial Hearing Officer BJE:

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 Email, dated January of 2016, 14 pages

B Email with Provider, dated February, 2016, four pages

C Email with Former , one page

D Email with District Representative regarding 's RSA Resolution

Agreement, dated December, 2015, eight pages

E Email with 's Providers regarding

RSAs, dated February, five pages

F First Draft of Resolution Agreement

G Letter, undated, one page

DEPARTMENT OF EDUCATION

1 Due Process Complaint, dated November 10th, 2015, four pages

2 Resolution Agreement, dated February 2nd, 2016, three pages

3 IEP, dated November 30th, 2015, 21 pages

4 Prior Written Notice, with Notice of Recommendation, dated December 4th,

2015, four pages

5 IEP, May 13, 2015, 21 pages

6 E-mails, 8 pages

---

Footnotes

[1] The pro se Parent was confused by the term “ .” (Tr. 47-8) But it appears that this Student has never been in a . She has received all of her services . (Tr. 48-9)

[2] The Student’s considers her , and he later supported for her although there is no evidence when. (Tr. 50)

[3] Much like the Court’s observation of the DOE’s CBST in R.E. v. New Y ork City D ep’t of Educ., 694 F.3d 167 (2d Cir. 2012).