New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 155701

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 30, 2015

Actual Record Closed Date: December 22, 2015

Hearing Officer: John Naun, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 30, 2015

Attorney — Student

Parents

(Via Telephone) — Student

District Representative — DOE

The parent filed a request for a hearing on June 9, 2015. The parties met for one day on November 30, 2015. The hearing was rather brief. The DOE opposed the parent’s claims in a general denial but offered no witnesses or evidence.

The request for a hearing alleges that the DOE failed to provide sufficient compensatory services as ordered by a prior hearing officer and as confirmed by a subsequent SED SRO decision issued after an appeal. Both the IHO decision and the SRO confirmation were surprisingly nebulous in determining the particular compensatory services and the amount. The orders stated the matter was to be submitted to a third unnamed independent provider to be selected by the CSE. The CSE and IHO were not asked to decide. The lack of clarity as to the specific amount of services in the IHO order and SRO order may have caused the apparent problem that the parties have in implementing both decisions.

The parent filed its “Complaint” in in the prior proceeding on June 27, 2013.

Pursuant to the applicable statute of limitations the jurisdiction of the hearing officer was applicable to the two years prior to the filing—i.e. 2011-2012 and 2012-2013 school years. The parent referred to the prior hearing officer’s order and the SRO order Case No.

144992 (Exh C) in her complaint in this matter. The prior decision was issued on December 17, 2013. It would appear that any request for compensation in the prior hearing would cover any alleged deprivation of services or denial of FAPE occurring prior to June 27, 2013 or to be more generous in application at most up to December 17, 2013 the date of the prior decision. As such any request for compensatory relief should be limited to beginning with either of those dates until the date this current request was filed on June 19 2015.To be safe we shall use the earlier date of June 27, 2013.

In the prior /order decision of an IHO, which was appealed to the SRO, the IHO

ordered that:

1. The District shall immediately begin efforts to place this student in a ; [The child was in fact subsequently placed in May 2014.]

2. The District shall immediately conduct an and for the student.

3. The CSE team shall reconvene within 15 calendar days of the date of this order to rewrite the IEP to recommend a , and an appropriate

amount of ;

4. The CSE shall contract with independent prov iders to issue a reports (sic) to determine the appropriate amounts of compensatory services in regard to

, , and ….

[Emphasis Supplied] Exh C-10)

The District apparently was unhappy with the decision as to point “4” above and therefore appealed the IHO decision to the SRO limited to his determination as to compensatory services. The SRO found the DOE’s actions so indefensible and appalling that he stated:

A ccordingly, I find no reason in this case to issue an order directing the CSE to reconvene (as requested by the DOE) to determine the appropriate and amount and scope of additional services for the student and will not disturb the IHO’s order. (Emphasis A dded)

Clearly the SRO was intentionally taking the decision away from the CSE. The

CSE was instead ordered to contract with independent providers to make the determination as to compensatory damages as noted above. The DOE, obeying the SRO order, referred the matter of compensatory services to an for review and determination. The selected reviewed the records, and orders and determined the amount and scope of compensatory services as she was directed or ordered. The determined that the child “appeared” to have been denied

“consistent” services for the period from March 2012 to October 2013 and noted this was because or because . (Exh D-6; Exh. IHO 1-4)

The parent asserts that that the ’s decision pursuant to the SRO order was faulty. In the first place she states the erroneously chose the October 2013 date as the cutoff or end date for awarding back service. There was an assumption that this date was the date the child finally began to receive her services. The reading the decisions interpreted the eventual placement of the child in the with pendency of services in October 2013 as the point services were restored to the child. (Exh A-3) The parent maintains the IHO in his decision “meant” that the ordered placement of the child in a would be the start of appropriate services. (The child entered on May 2014.) Thus the parent argues that the period from October 2013 to May 2014 (seven months) was also a period in which the child was denied appropriate services and a period the failed to compensate.

The , based on the information and direction given to her by the SRO and IHO orders, made an independent and good faith attempt to determine the amount of compensatory services the child was to receive. She based her calculations on the estimated amount of the child missed between March 2012 and October

2013-- the latter date, as noted above, being the date the surmised that the “ ” began and the period, after which compensation for services was no longer required. (Exh. A-3) In her brief, submitted at the end of the hearing (Entered herein as IHO Exh1), the parents’ attorney argues that:

. IHO EXH 1-4)

The above statement is pure conjecture. The parent’s counsel argues utilizing 18 month period of lack of appropriate services, the period determined by the , the made a miscalculation as to the number of compensatory hours the child should receive for that period of time. The parent notes that the calculated that the child missed periods per week over 18 months (

).The DOE received the ’s report/award

and calculated the amount of services due as hours of services using hours per week or hours per month. The parent claims the number based on hours per week is incorrect. The parent argues that 18 months of services awarded by the equals actual weeks; weeks times sessions per week equals ( ) sessions or totaling hours of compensated services rather than

.

The parent alleges that the award is even further flawed. She states that the child missed more than her due and was . She was therefore deprived of her . The parent also notes that the failed to consider that the child . (Exh. A-3].

The IHO must assume the had, without any evidence to the contrary, the essential documents and data from the hearings and the two orders she was enforcing.

The parent is making argument here after the fact or after the orders were complied with on their face. If the failed to carry out the intent and meaning of the SRO order enforcing the IHO order then perhaps the parent should have sought judicial relief as noted in the discussion below. This hearing is limited to the request for a hearing herein and to events that occurred or are alleged to have occurred after the prior hearing determination and award for compensatory damages was made—i.e. related to the two years before the prior complaint. [The SRO order was not appealed.]

There is no basis for the hearing officer herein to revisit the ’s award or the application and enforcement of the IHO and SRO’s respective decisions or orders.

The DOE complied with the SRO order. The CSE was strictly prohibited from making any decision as to compensatory damages. The amount and scope of the compensatory services was to be determined solely by the independent expert provider(s) who were to be designated by the CSE to do the evaluation/testing. The SRO was quite adamant that compensatory services were not to be determined by a reconvened CSE. (Based on prior history, as indicated in the record of the prior hearing, there seemed to be no confidence by the IHO or SRO in the CSE to make the determination.) If we assume the parent is correct as to the calculation of weeks, the DOE may have made a mistake in interpreting the ’s award of 18 months of service as indicating hours instead of . It seems the CSE may have acted beyond the order in making a partial or non substantial determination as to the compensatory hours. However, as noted above, the hearing officer herein has no jurisdiction over this matter.

It should be noted, for the sake of argument and hopefully clarity, that if the IHO, herein, did have jurisdiction, the CSE decision is more than substantially in conformity with the controlling SRO “restrictive” order. The CSE, and the it chose, pursuant to the SRO order, based on the evidence, appears to have followed dutifully what may be referred to as the somewhat nebulous prior orders of the IHO as confirmed by the SRO. For this reason, on the merits alone, if the IHO had jurisdiction, as such, the DOE action would be found to be sustainable and stand.

In addition, again setting aside the substance of the CSE action in this prior matter, the IHO does not as a matter of law, as indicated in prior decisions, have jurisdiction to enforce or reinterpret the decisions of an IHO or SRO. As noted by prior decisions of the SRO in this area of IHO jurisdiction, it is well settled that the IHO does not have the authority to review prior orders of another impartial hearing officer. [ And even a State Review Officer does not have jurisdiction to review a prior State Review Officer order (see Application of a Child Suspected of Having a Disability, Appeal No.

03-07, holding that a petitioner's enforcement remedies include judicial enforcement pursuant to CPLR Article 78, an action in federal court, or VESID administrative complaint procedure ). See also Application of a Child with a Disability, Appeal No. 01-

086 wherein the SRO also held that a petitioner's enforcement request was not properly before the State Review Officer and that a petitioner's remedy was to seek judicial enforcement of the impartial hearing officer's tuition reimbursement award).

The parent in the current complaint made a request for additional compensatory which she argues accrued due to a lack of FAPE and inadequate services rendered after the prior hearing officer’s decision. She asserts that because the IHO decision was not timely implemented the child continued to be deprived of needed services and should be compensated in addition to the hours already provided by the . In particular, in her request, the parent claims additional at per hour to be provided by the ( ).

The child was tested and evaluated by the in May of 2015 after hours of . At the hearing, the witness from the testified earlier testing was completed on 4/2/14 prior to rendering the hours of . As the DOE noted in the cross examination, the prior testing was not introduced into evidence by the parent and there was no way to compare the results of the child prior to being by with the testing done after the in May 2015. The second testing in May 2015 was after the prior was done in preparation for the mother’s claim for compensatory services in this hearing. (T. 37) The evaluation, which is an exhibit of this hearing, was entered in support of a new claim by the parent that the child needs additional compensatory hours of . The parent argues that this is because the child has due to a delay in receiving school provided services as per the prior order.

The parent argues the relief is justified based on a “qualitative” compensatory argument (the child’s is allegedly based on prior DOE pedagogic failings and not the deprivation of a certain number of allotted sessions she should have received per her IEP). The claim does not, as such, refer to specific hours of service which were not provided (the easier quantitative argument.). In this context, the parent admits that the child since May 2014, one year prior to the second testing was in a where she made some progress and . This seems to be a valid cut off point ending the period of lack of appropriate services since the child was now in a geared to her specific needs . Therefore, the period where the child apparently was denied services, according to the claim by the parent, was from October, 2013, the date the ended her calculation for services until her placement in the appropriate in May 2104 pursuant to the prior hearing officer’s order. This is a period of five months. The child was receiving ( ) pursuant to the ’s determination noted above. However, according to the parent was still not receiving enough services. The parent stated the failed to consider since and was still lacking in her placement at the time she needed additional hours of beyond the .

Since the ended her award of services on October, 2013, as per the prior complaint, we can therefore address the period of October 2013 to May, 2014 as a subsequent claim in this hearing. In short it is a relief not covered by the prior hearing’s determination and therefore in this IHO’s jurisdiction. However, any relief as to time periods relating to services after the child was placed in the will not be addressed herein since the child is assumed to have at that time been receiving appropriate services.

The in May 2015, in its second evaluation, done after it has for hours, found and proposed a schedule to . This qualitative approach is based on the assumption that the child if given the right services would be . (At the time the .) The parent wanted hours to

.

As noted at the time of the May 2015 testing, the child had already completed hours of prior and the progress was somewhat limited. The limited progress was noted by the DOE representative at the hearing wherein he raised the issue of how much services are warranted, how much the child can carry and how much did the program provide. [The mother noted that the child still struggles in her in that she cannot

.] (T.21-22) (The various reports of the child’s abilities were inconsistent.)

The found appropriate by the in her prior evaluation, as noted above, is a somewhat concrete independent measurement and is a plausible guideline. If we apply the guideline to the seven months after the ’s determination and prior to the child’s placement in the appropriate (i.e. October 2013 to May 2014) it appears that a fair and just award would be calculated at for we arrive at . The parent however was not satisfied with the of and claims that the child should have received at least of to compensate for the child’s loss of due to . (T. 10) This measure as argued by parent’s counsel would result in the child receiving of compensatory time for the seven month period. The evidence to support the number of suggested by the parent is not clear or compelling. However, there is some merit that may not be sufficient to cover the time the child lost . It seems that rather than the child should have more appropriately received of compensatory services. This would mean a seven month award of (i.e.

). It should be noted that it does not necessarily follow that more hours per week of compensatory services, in the crowded schedule of this young girl and her would be profitable. More is not always better.

As noted above, based on the various factors discussed herein, the amount of additional compensatory services suggested by is clearly not supported by the record. The child is in a new school which is apparently appropriately geared to her specific needs. No one challenged this placement in the appeals. This she receives there should help her to make progress. A compensation of seems appropriate.

In elaborating further on the award of compensatory services, herein, it is noted that the child apparently as noted by the witness. The child when given compensatory services at for did not appear to benefit in a substantial way. The awarded the child has to be viewed in terms of this prior experience, her work day in the , her difficulties in , , and . It is noted that child is considered and therefore should be able to progress in some substantial way from and her new program placement. She deserves a chance now that , which was argued to be the child’s major issue. In her new environment or placement she may be able to , and , with the help of a skilled staff and appropriate program.

In dealing with the recommendation, the “self serving” factor of is not dispositive but also should be weighed in judging the evidence and recommendations.

The results and recommendations for service must be viewed in the context of the fact that the is a for profit organization and it is estimating the child’s needs for hours as a business, from which it will profit. In addition, as noted above, the testing, itself, used . The testing and the determination of the as to the needs of the child as to the amount of tutoring required appears somewhat vague and questionable. It does not exactly fit into the type of an “independent” evaluation and judgment the SRO attempted to order in its prior decision discussed above.

The parent at the hearing attempted to amend the request for a hearing to seek additional hours beyond the original determination of hours in order to . The DOE opposed this request to amend and the IHO, therefore, denied the amendment. Any claim to hours sought after the request that generated this hearing ( hours) will not be considered by this hearing officer. It may be addressed pursuant to another request for a hearing if the parent still believes that is appropriate.

Based on the forgoing it is found and ordered that:

1. The child was denied adequate services for the seven month period from October 2013 to May 2014 (entry into the ) and thus denied a FAPE;

2. The child shall be provided with hours of at by a l at per hour actually taught.

3. The parent shall be reimbursed for the fee for the May 2015 evaluation upon presentment to the DOE with proof of services, and an itemized bill.

4. It appears that the CSE reasonably complied with the prior SRO Order based upon the stringent restraints placed on it by the SRO and, in any event, it is determined that this hearing officer has no jurisdiction to revisit the prior hearing officer’s or the SRO’s orders or to deal with their enforcement and will not do so.

5. The parent and child will be provided with

.

So Ordered

Dated: January 6, 2016

JOHN J. NAUN, ESQ.

Impartial Hearing Officer

JJN:

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, 5 pages, dated 6/9/15

B DOE Due Process Response, 3 pages, dated 6/15/15

C Findings of Fact and Decision, dated 12/17/13, 12 pages

D Eval, dated 5/9/14, 7 pages

E , dated 4/2/15, 43 pages