New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 160695

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: July 21, 2016

July 28, 2016

August 12, 2016

September 9, 2016

September 14, 2016

September 21, 2016

October 5, 2016

October 7, 2016

October 13, 2016

November 15, 2016

Actual Record Closed Date: December 7, 2016

Hearing Officer: Esther Mora, Esq.

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

Attorney — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 28, 2016

Attorney (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 12, 2016

Attorney (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 9, 2016

Attorney (Via Telephone) — Student

District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 14, 2016

Attorney — Student

Attorney — Student

District Representative — DOE

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

Attorney — Student

Attorney — Student

Teacher (Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 5, 2016

Attorney — Student

Attorney — Student

District Representative — DOE

Witness — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 7, 2016

Attorney — Student

Attorney — Student

(Via 18 Telephone) — Student

(Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 13, 2016

Attorney — Student

Parents

Student

Interpreter — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 15, 2016

Attorney — Student

District Representative — DOE

District Representative — DOE

INTRODUCTION

This matter came before me pursuant to the Individuals with Disabilities Education Act. The hearing was concluded on November 15, 2016. I find that the school district failed to provide a FAPE during the 2013-14, 2014-15 and 2015-16 school years.

The school district's denial of FAPE, both in substance and due to procedural violations, deprived the student of appropriate educational services and impeded the parent's opportunity to meaningfully participate in the decision-making process. Therefore, the parent is entitled to the relief she seeks.

SCHOOL DISTRICT

The school district concedes that it did not provide a FAPE during the 2013-14 school year. However, it contends that it provided a FAPE during the 2014-15 and 2015-

16 school years because the student was enrolled in an appropriate program where she made meaningful progress.

The school district presented witness testimony from the student's classroom teacher during the 2014-15 and 2015-16 school years. She testified about the services provided to the student during those years, her strengths and weaknesses, and the progress she made. (Tr. At 91- 162)

A from the student's school also testified on behalf of the school district. She was the district representative at IEP meetings for the student. She testified regarding the documents reviewed and discussions held at the meetings and the recommendations made by the IEP teams. (Tr. At 167-189)

The school district also submitted documentary evidence. (Exhs. 1-33)

PARENT

The testified on behalf of the parent. reviewed the student's educational records and conducted an assessment. Test results indicate that

. The student

requires , which can provide. The recommended that the student receive these services

. (Tr. At 203-225)

The testified on behalf of the parent.

She is licensed in and . She

reviewed the student's educational records regarding and conducted an informal assessment. She determined that t and that needs were not being met by the school district. She disagreed with the school district's recommendations. She opined that the student required . She also concluded that further evaluation was required. She is available to conduct the assessment at a rate of per hour. (Tr. At 226-253)

A from the also testified on behalf of the parent. conducts comprehensive, independent evaluations and is available to evaluate the student at a rate of ( ) (Tr. At 260-276).

The mother testified on her own behalf regarding the student's , her and her efforts to obtain appropriate educational services. (Tr. At 276-290)

The parents also submitted documentary evidence. (Exhs. A-I)

APPLICABLE STANDARDS – FAPE, COMPENSATORY EDUCATION

As was recently restated in Appeal No. 16-016, two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unIique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch.

Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.

2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 8 Because the district does not cross-appeal from the IHO's determinations which were adverse to the district, those determinations have become final and binding on the parties and will not be reviewed on appeal (8 NYCRR 200.5[j][5][v]; M.S. v. New York City Dep't of Educ., 2

F. Supp. 3d 311, 325 [S.D.N.Y. 2013]). 9 State regulations permit service of "a reply . . .

to any procedural defenses . . . or to any additional documentary evidence served with the answer" (8 NYCRR 279.6). While the reply was not served in a timely manner, I exercise my discretion to accept it for the limited purposes permitted by State regulations. 10 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at 10 [S.D.N.Y. Feb.

9, 2007]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a)

impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 394 Fed. App'x 718, 720, 2010 WL 3242234 [2d Cir. Aug. 16, 2010]; E.H. v.

Bd. of Educ., 2008 WL 3930028, at 7 [N.D.N.Y. Aug. 21, 2008], aff'd, 361 Fed. App'x 156, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 293 Fed. App'x 20, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).

Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at 15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE)

(20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent.

Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo

Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 486 Fed.

App'x 954, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F.

Supp. 2d 422, 428 [W.D.N.Y. 2008]). 11 An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at 6 [S.D.N.Y. July 3, 2008]

[noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04- 046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

Appeal No. 16-016 also restates that compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v.

Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the 20 form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see Newington, 546 F.3d at 123 [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; Student X., 2008 WL 4890440, at 23 [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. March 6, 2008], adopted, 2008 WL 9731174

[S.D.N.Y. Jul. 7, 2008]) Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005]

[finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]). The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE (see E. Lyme Bd. of Educ., 790 F.3d at 456; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v.

Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be factspecific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v.

Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]; Application of the Dep't of Educ., Appeal No. 11-075). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; S.A. v. New York City Dep't of Educ., 2014 WL 1311761, at 7 [E.D.N.Y. Mar. 30, 2014] [noting that compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007]

[holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puyallup, 31 F.3d at 1497 [finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]).

FINDINGS

Having reviewed the entire record, including all of the testimony and documentary evidence presented by both parties, I find that the student was denied a FAPE and is entitled to the relief set forth below. I agree with the parents that the student did not receive a FAPE during the 2013-14, 2014-15 and 2015-16 school years that the parent was denied her right to meaningfully participate in the development of the student's IEPs, that the student is entitled to compensatory services and that the student is entitled to independent and evaluations.

The record establishes that the recommendations made in the IEPs were not supported by adequate and updated evaluations. For many years the CSE continued to recommend the same program and services even though the student was not making adequate progress. The CSE also failed to adequately assess and evaluate the student in all areas related to her disability, such as when demonstrated a possible need for , and when indicated that she required a evaluation to fully assess her educational needs. The record also establishes that the parent was denied her right to meaningfully participate in the development of the student's educational programs. For example, documents were not translated even though the parent speaks no English, and she was not provided with sufficient evaluative data to enable her to meaningfully participate in assessing her daughter's needs. Consequently, the student is entitled to compensatory services, an independent evaluation and a evaluation.

I have considered the parties' remaining contentions and did not need to reach them, or find them to be without merit.

ORDER

1. Within five calendar days of the date of this Order the school district is to fully fund an independent evaluation to be conducted by providers of the parent's choosing at enhanced rates.

2. Within five calendar days of the date of this Order the school district is to fully fund an independent evaluation to be conducted by providers of the parent's choosing at enhanced rates.

3. Within five calendar days of the date of this Order, the CSE is to reconvene an IEP meeting to provide and until the independent evaluations are completed.

4. Within seven calendar days after the independent evaluation is provided to the school district, the CSE is to reconvene to amend the student's IEP in accordance with the recommendations contained therein and to include a recommendation for a

.

5. Within five calendar days of the date of this Order the school district is to authorize the parent to obtain, at school district expense, at a rate of at least ( ) per hour, provided by , as compensatory and remedial additional services to compensate for the denial of a FAPE. Services will be payable upon the submission of monthly invoices to the school district. These hours will not expire and will be scheduled at the parent's discretion so that the student can be assured of being able to access the services. The school district shall also fund .

6. Within five calendar days of the date of this Order the school district is to authorize the parent to obtain, at school district expense, ( ) at as compensatory and remedial additional services for the school district's failure to provide related services in the past. These hours will not expire and will be scheduled at the parent's discretion, and funded at market rates for or another provider chosen by the parent so that the student can be assured of being able to access the services. The school district shall also fund

.

7. Within five calendar days of the date of this Order the school district is to authorize the parent to obtain, at school district expense, ()

to be divided as follows:

and

, as compensatory and remedial additional services for the school district's failure to provide services in the past. These hours will not expire and will be scheduled at the parent's discretion, and funded at market rates for a provider chosen by the parent, so that the student can be assured of being able to access the services. The school district shall also fund

.

Dated: December 9, 2016

ESTHER MORA, ESQ.

Impartial Hearing Officer EM:

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Request, 6/9/16, number of pages not stated

B , 8/5/16, one page

C , undated, one page

D , one page

E

, date unknown, five pages

F , date unknown, three pages

G , undated, nine pages

H CV for , undated, five pages

DEPARTMENT OF EDUCATION

1 6/9/16 Due Process Complaint, ten pages

2 3/11/13 IEP, 18 pages

3 3/10/14 IEP, 15 pages

4 6/9/14 Prior Written Notice, five pages

5 2/4/16 Progress Report, two pages

6 1/7/15 Evaluation, three pages

7 2/4/15 IEP, 18 pages

8 3/3/15 Prior Written Notice, five pages

9 11/23/15 Prior Written Notice, five pages

10 11/23/15 Prior Written Notice, five pages

11 6/20/15 Waver to amend IEP, four pages

12 11/12/15 IEP, 13 pages

13 6/27/16 Prior Written Notice, five pages

14 8/2/16 Evaluation, five pages

15 2013/'14 Report Card, one page

16 2014/'15 Report Card, two pages

17 6/20/15 Student Data Sheet, two pages

18 9/2014 , three pages

19 5/18/15 , six 13 pages

20 10/8/14 Assessment, wo pages

21 12/21/14 Assessment, five pages

22 9/15/14 , four pages

23 4/2/13 , seven pages

24 11/20/15 , ten pages

25 2/3/16 , nine pages

26 5/23/16 , six pages

27 9/11/15 , seven pages

28 6/1/16 , five pages

29 9/15/15 - seven pages

30 5/9/16 , six pages

31 6/6/16 - , one page

32 2015/2016 Report Card, two pages