New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 159431

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 8, 2016

Actual Record Closed Date: March 31, 2016

Hearing Officer: Barry Port, Esq.

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

Mother, Father — Student

, IHRO

, (via telephone)

, (via telephone)

INTRODUCTION

On January 8, 2016, the New York City Department of Education (DOE)

appointed me to act as the Impartial Hearing Officer (IHO) in a case brought pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1)

regarding the education program of a school-aged child, ( ). The parents of requested the hearing by filing an impartial hearing request with the DOE on January 7, 2016. The hearing commenced and was held on March 8, 2016 at the Impartial Hearing Office located at . Lists of witnesses testifying and documents received into evidence are attached to this Decision and Order.

FACTS AND PROCEDURAL HISTORY

The student, , was born on and is currently

and classified as “ ” He is currently in and attends in . On May 27, 28, and 29, 2015 a 3 year mandated evaluation was conducted and the report (DOE Ex. 3) was used to prepare the IEP for the student on May 29, 2015 (DOE Ex. 4). In the IEP, the assessment showed that was performing and was at a based on . performed in the on and it was noted that his weakness in the area of

(DOE Ex. 4-1). The IEP further

indicated that: “

” (DOE Ex. 4-2).

Because of his difficulties, it was found that requires the and to make progress in the (DOE Ex. 4-3). It was recommended that receive ( ) for per week (DOE Ex. 4-5).

, the for , testified that she has been in her current position for a little more than a year and a half, that she has a Master’s Degree in and is certified in New York State as a , and she is a New York State licensed (Tr.

P.62-63). She first became familiar with when he was due for his mandated 3-year re-evaluation and she performed the evaluation (DOE Ex. 3) which encompassed including the

( ) and the

( ). The re-evaluation was conducted on May 27, 2015 and the IEP meeting was held on May 29, 2015 (Tr. P. 63-64). was the concern on the . At school, , which is the that are used. showed to be (Tr. P.68). In , was able to but struggled with . and . To further assess his

,a was used to assess ’s ability to and performed in the . Whereas the on the was , scored a . The is ’s and , . had difficulty and .

. ’s was also in the

. When asked to , (Tr. P. 70-71).

At the May 29, 2015 IEP meeting, it was discussed that the IEP team, ’s mother and his teachers had a great deal of concern with . It was recommended that an outside evaluation with a doctor be pursued because , specifically in , because he (Tr. P.72-73). The parents did obtain an independent evaluation and a copy of the report (DOE Ex. 6) was shared with the school and Ms. did review it and spoke with the parent and the evaluator.

was diagnosed with and it was discussed how could be supported at the school. (Tr. P.72-73). In the IEP (DOE Ex. 4), it was recommended that receive ( ) and for his teachers to . was assessed at a (Tr. P.74).

To address ’s needs , the was provided with some

including

(Tr.

P.76).

Ms. stated that at the end of last year when was evaluated and the IEP was created, he was still in where and is now . At the time of the IEP, it was felt that with would support During the current year, has still not made progress in . has now been opened up for re-evaluation and the school is looking to add a in a setting in so can . Also, on a basis, it is proposed that but I hasn’t started yet (Tr. P.77-78).

On cross-examination, Ms. acknowledged that the has been out for several months due to a personal matter, that Ms. doesn’t know what is being used and has been discussed, and she is not aware how ’s IEP is being implemented in the classroom (Tr. P.79-80). Ms. further indicated that there is no in the school and that any program would be handled by the in the (Tr. P.83-84). The school was provided with the independent evaluation report of September 7, 2015 (DOE Ex. 6) on October 20, 2015, and Ms. met with the evaluator, the parent, the student, and the IEP teacher on November 9, 2015 to discuss the findings and the evaluator’s recommendations which included a recommendation that receive in a program such as which the parent was going to pursue (Tr.

P.93-94). It was understood that the mother would pursue the program and the school would . The school was not recommending that the child needed the program but it was the parents’ decision (Tr. P.95-96).

Ms. further stated that there is an IEP meeting scheduled at the end of March 2016 because even though ’s annual review would typically take place around May 29, continues to and , and it is felt that needs . One of the things that Ms. would like to discuss at the meeting is adding a instead of so ’s (Tr.

P. 99-100).

testified that upon receiving the recommendation from the who conducted the independent evaluation to provide with an program, she investigated and reached out to the program and had tested on November 3, 2015.

recommended that would need an program per week for a minimum of for . She went back to the school with this information and they recommended that Mrs. apply for in order to accommodate the demands of the program. Mrs. did apply for (DOE Ex. 10)

and was denied and she requested mediation and was again denied (Tr. P.106). The school had recommended that Mrs. seek because the program could not work and that would need just of if he had (Tr. P.107-

108). Mrs. was informed by the DOE that her request for was denied because didn’t have a and doesn’t qualify for (Tr.P.110). had made some progress in because there was a teacher in the school who had worked with him but that teacher left the school. There’s no in the school and hasn’t worked with a other than the teacher. The program did not come into the school any earlier than January or February of 2016 and the school does not have a program (Tr. P.110-112). Mrs. has not considered sending to a different school because she wants to deal with the whole child and she doesn’t want to take him out of a school that he has been familiar with since . Mrs. has seen ’s during the current school year (Tr. P.113-114).

testified that she is the for with . The program receives referrals from parents or doctors and these are sent to the for review and to speak to the child’s to determine if is appropriate. To qualify for , . This includes students with and without disabilities. The referral needs to be signed by a (Tr. P.53-54). A referral was received for on November 10, 2015 (DOE Ex. 10) and it contained a diagnosis of . The referral was signed by a Ph.D not by an M.D. A letter was then sent to the family denying the referral indicating that students with should be accommodated in school and the form was not signed by a (Tr.P.57).

Issues to be resolved

1. Whether the DOE failed to provide the student with a Free and Appropriate Public Education (FAPE) by failing to develop an appropriate IEP with appropriate program recommendations?

2. Whether the parents are entitled to compensatory education?

CONCLUSIONS OF LAW AND DISCUSSION

Two purposes of the Individual with Disabilities Education Act (IDEA) (20 U.S.C. Sections 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. Section 1400[d][1][A]-[B]; see generally Forest Grove

v. T.A., 129 S. Ct. 2484, 2491 [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; Cerra Pawling Cent. Sch. Dist., 427 F.

3rd 186, 192 [2d Cir. 2005]). Under IDEA, if a procedural violation is alleged, a finding may be made that the 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.

Section 1415[f][3][E][ii]; 34 C.F.R. Section 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26[2007].

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). The “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak v. Florida

Union Free Sch. Dist., 142 F. 3d 119, 130 [2d Cir. 1998]. School districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S.at

189, 199). However, 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.

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]. The student ’s recommended program must be provided in the least restrictive environment (LRE)(20

U.S.C. Section 1412[a][5][A]; 34 C.F.R. Sections 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see P. v. Newington Bd. Of Educ.., 546 F. 3d 111, 114

[2d Cir. 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105, 108 [2d Cir.

2007]; Walczak, 142 F. 3d at 132; Patskin v. Bd. Of Educ., 583 F. Supp. 2d 422, 428

[W.D.N.Y. 2008]).

FINDINGS

It is found that the DOE failed to provide the student, , with a FAPE for the 2015-2016 school year. It is noted that the parent has not alleged and the record does not contain any evidence of procedural violations. The parent has received all required notices and has had an opportunity to participate in the IEP process. However, the DOE has failed to satisfy its burden of establishing that it provided with a FAPE for the 2015-2016 school year. The evidence clearly establishes that has . , the who conducted the evaluation of in May 2015 and who represented the District at the IEP meeting held on May 29, 2015 made it clear that was a major concern and that it was recommended that the parents seek an independent evaluation. Ms.

indicated that the showed to be

as he was about to be entering . At the time of the IEP, it was recommended that an be provided wherein the would provide the necessary

. However, Ms. acknowledged at the hearing that was not making progress in the setting and that more intensive support was needed to help progress. Furthermore, was not even being provided with the necessary support in the for an extended period of time as the assigned was not available due to personal problems. , ’s mother, testified that there was very little support provided in the school as there was no , no , and there were no available for to and it was only within the last few months that was even brought into the school. Recognizing ’s , Ms. and the IEP teacher met with the parents, the student and the independent evaluator in the beginning of November 2015 to discuss the results of the independent evaluation and the recommendations contained therein and the evaluator recommended that an program was necessary in order to help make progress. , the who conducted the evaluation (DOE Ex. 6), noted that ’s difficulty was the reason for the referral and that many tests measuring were administered to gain an understanding of ’s abilities. It was found that ’s fell in the , his fell in the , and his fell in the . Related to difficulties in , ’s scores also fell in the (DOE Ex. 6-16). In a letter dated November 10, 2015 (DOE Ex. 9-1), further stated that ’s

“

.”

As indicated above, case law establishes that in order to provide a FAPE, a school district must implement an IEP that is likely to produce progress not regression and affords the student an opportunity to achieve more than trivial advancement. At the end of , it was estimated that was but as of the middle of the 2015-2016 school year, it was estimated by the independent evaluator based on a battery of tests and by (who had conducted its own testing) that was . This clearly does not show progress and, in fact, it demonstrates , particularly in light of . The DOE’s own witness, Ms.

, acknowledged that was not progressing and required . Although she indicated that another IEP meeting was scheduled for the end of March 2016 and she had ideas as to what additional supports or services could be provided, no change in program or services provided was implemented through the date of this hearing. Although Ms. and other school personnel were well aware of ’s difficulties in , nothing concrete was offered to assist throughout most of the 2015-2016 school year and, as a result, failed to progress in this regard. Mrs.

indicated that it was .

Accordingly, in light of the above, it is found that the DOE denied a FAPE for the 2015-2016 school year.

RELIEF

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. Sec. 1401[3], 1412[a][1][B]; Educ. Law Sec.

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 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}”). Likewise, compensatory “additional services” have been awarded to students who 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 such services by reason of age or graduation (Bd. Of Educ. v.

Munoz, 16 A.D.3d 1142 [4th Dep’t 2005]; (Application of a Student with a Disability, Appeal No. 09-111 [adding summer reading instruction to an additional services award]; 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 FAPE].

The purpose of a compensatory education award is to provide an appropriate make-up remedy for a denial of FAPE and “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” [Reid v. Dist. Of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005]; see E. Lyme Bd. Of Educ., 790 F.3d at 456; Newington, 546 F.3d at 123; 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”].

In this case, the parent had actually explored a suggested by the independent evaluator for providing with an program offered by . The program optimally called for sessions, per week for and it was indicated that the minimum that should be provided would be . The parent, at the school’s suggestion, tried to provide with this program by applying for which have allowed enough hours to . However, did not qualify for and it was logistically impossible for to in and then in . It is found that in light of the school’s failure to provide a FAPE by failing to implement an IEP that provided an educational benefit and thereby causing the student to fail to progress for most of the school year, it is fair and reasonable to award compensatory education in the form of attendance at for per day for a total of of .

The district has presented no viable alternative and it is found that the program suggested above is designed to place the student in the position he would have been in had the district complied with its obligations. I find that ( ) is an appropriate service provider and, in the absence of other concrete options presented by the district for consideration (the potential program changes suggested by are only mere speculation), the district shall be ordered to fund the tuition for the to be provided by during the summer of 2016, school vacations or as otherwise determined by agreement. The compensatory services are required separate and apart from any IEP services that the student may otherwise receive.

ORDER

It is hereby ordered that:

(1) The parents’ request for relief be granted and that the district is directed to fund of at as compensatory

education .

(2) The district is directed to fund the of and , to be used by the student either during the summer vacation of 2016 or within one year of the date of this decision at the student’s option.

It is further ordered that the district shall, within 30 days of the date of this decision, conduct an evaluation of the student and reconvene to consider the results and modify the IEP, as necessary, if it is has not already done so.

Dated: April 11, 2016

BARRY PORT, ESQ.

Impartial Hearing Officer BP:

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

Department of Education Evidence

Ex. 1 - Due Process Complaint dated January 7, 2016

Ex. 2 - dated April21, 2015

Ex. 3 - Evaluation dated May 29, 2015

Ex. 4 - IEP dated May 29, 2015

Ex. 5 - Prior Written Notice of Recommendation dated June 11, 2015

Ex. 6 - Independent Evaluation dated September 7, 2015

Ex. 7 - dated October 6, 2015

Ex. 8 - dated October 19, 2015

Ex. 9 - Letter from dated November 10, 2015

Ex. 10 -

Ex. 11 - Request for Re-evaluation dated February 10, 2016

Ex. 12 - (print date 2/29/16)

Ex. 13 - Report Card 2014-15

Ex. 14 - Report Card 2015-16

Parent Evidence

Ex. A - Due Process Complaint dated January 7, 2016

Ex. B - Amended Complaint dated January 11, 2016

Ex. C - evaluation dated July 6, 2012

Ex. D - IEP dated September 11, 2012

Impartial Hearing Officer Evidence

Ex. I - IHO appointment dated January 8, 2016