New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 161908

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 15, 2016

Actual Record Closed Date: December 9, 2016

Hearing Officer: Barbara Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 15,

2016

ESQ., Attorney — Student

Parents

District Representative — DOE

This is New York City . On November 15, 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 . , Esq. of the represented the Parent, and , CSE representative, represented the New York City Department of Education (DOE). A list of documents received into evidence and witnesses who testified is attached to this final decision.

Dr. was unable to testify in this impartial hearing due to timing. (Tr.

16) The parties agreed that she would submit her testimony by affidavit subject to cross-examination. (Tr. 16-17) The Parent’s counsel submitted Dr. ’s affidavit, and the DOE representative sent an email that cross-examination was not be necessary.

ISSUE

The initial issue in this impartial hearing was a denial of a “free and appropriate public education” (FAPE) during the 2015 – 2016 and 2016 – 2017 school years. (Ex. A)

The CSE convened on November 4, 2016, and it developed an “individual education program” (IEP) that recommends placement in a class in a . (Tr. 6) As the CSE was not timely in developing this IEP

and making this recommendation because it was several months after the start of the 2016 – 2017 school year, the DOE conceded a denial of FAPE for both the 2015 – 2016 and 2016 - 2017 school years. (Tr. 6) The DOE did not submit evidence and it did not put on a case in this impartial hearing.

The sole remaining issue in this impartial hearing is the nature of an appropriate compensatory education award. The Parent requested compensatory education in the form of . (Ex. A at 12) She also requested

. (Tr. 18-20) The DOE

expressed no opinion on the nature of an appropriate compensatory education award.

FINDINGS OF FACT

is an student who has diagnosed by a and in a evaluation by the .

(Tr. 6-7; Ex. K at 17, Ex. J at 7-8) Although his and

, “

” (Ex. K at 14)

In 2014, a previous impartial hearing officer ordered the DOE to fund four independent educational evaluations (IEE’s). On December 3, 2015, the CSE convened to review the IEE’s, and it developed an IEP for for the remainder of the 2015 – 16 school year. (Ex. C) The December 3, 2015 IEP placed in a , and provided the following related services:

; ; and

. (Ex. C at 11) The

December 3, 2015 also provides “ ” ( )

. (Ex. C at 10-11) This IEP does not provide “ ” ( ) services. (Ex. C at 12) Although the December 3, 2015 IEP placed in a class with related services, the DOE failed to place him according to this IEP thereby leaving him in an inappropriate class for the remainder of the 2015 – 2016 school year.

Dr. , , assessed the ’s current

( ), the

, and the that she

administered to him on August 4, 2016. (Ex. Q) Based on these assessments, she found the Student tested at ,

, , and at

. (Ex. Q)

Dr. recommended that needs . (Ex. Q,

Ex. R at 3) Dr. affirmed that , would have a

who is trained in the work with for “

.” (Ex. R. at 3) She did not state that he would have a for .

The DOE referred the Student to the Central Based Support Team (CBST) for placement in an approved non-public school, and the CBST has no discretion to reject the referral. The parties anticipate that will start attending a new school early in 2017.

(Tr. 13)

CONCLUSIONS OF LAW

Compensatory education is an equitable remedy that may be awarded to students who are no longer IDEA eligible when 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. Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); M rs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990), Somoza v. New Y ork City D ep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 (2d Cir. 2008); P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008)

Compensatory education in the form of “additional services” may be awarded when, as in the instant matter, the student is still IDEA eligible and there has been a denial of FAPE. See 20 U.S.C. §§ 1401(3), 1412(a)(1)(B); New York Educ. Law §§ 3202(1), 4401(1), 4402(5)). Additional services are in addition to an appropriate education under the IDEA. Within the Second Circuit, compensatory education relief may be in the form of additional special education or related services for students when there has been a denial of a FAPE. See Student X . v. New Y ork City D ep'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) and R.C. v. Bd of Educ., 2008 LEXIS 113149, at *38-40 (S.D.N.Y. March 6, 2008). Likewise, the New York State Review Office has awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services. 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 L during home instruction); A pplication of a Student with a Disability , Appeal No. 09-111 (adding summer reading instruction to an additional services award); A pplication of the Bd. Of Educ., Appeal No. 09-054 (awarding additional instructional services to remedy a deprivation of instruction); A pplication of a Student with a Disability , Appeal No. 09-044 (awarding "make-up" counseling services to remedy the deprivation of such services); A pplication of a Student with a Disability , Appeal No. 09-035 (awarding 1:1 reading instruction as compensation for a deprivation of a FAPE); A pplication 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 a FAPE); A pplication of the Bd. of Educ., A ppeal No. 08-060 (upholding additional services awards of physical therapy and speech-language therapy); A pplication of a Student with a Disability , Appeal No. 08-035 (awarding ten months of home instruction services as compensatory services); A pplication of the Bd. of Educ., Appeal No. 06-074;

A pplication of a Child with a Disability, Appeal No. 05-041; A pplication of a Child with a Disability , Appeal No. 04-054).

An impartial hearing officer has discretion in fashioning an award of compensatory education. See P. v. Newington Bd. Of Educ., 546 F.3d 111, 123 (2d Cir.

2008) (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]"). It is well established that a hearing officer has the authority to grant any relief he deems necessary, including compensatory education, based on the facts and circumstances of each individual case. Letter to Kohn, 17 IDELR 522 (OSEP 1991). See also New York SRO Appeal No. 08-052. “[I]t is well settled 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 is tailored to meet the unique circumstances of the case. Wenger v. Canastota, 979 F. Supp.

147 (N.D.N.Y. 1997). A pplication of a Child with a Disability , Appeal No. 02-019

Although "[t]here is no obligation (under IDEA) to provide a day-for-day compensation for time missed," most courts routinely do so, in the absence of evidence that such relief would be inappropriate or overcompensatory. (Id.) See M anchester Sch. Dist. v.

Christopher B., 807 F. Supp. 860, 871-72 (D.N.H. 1992); M iener v. State of M issouri,

558 IDELR 123 (8th Cir. 1986).

In exercising my discretion to fashion a compensatory education award in this case, I am mindful that will be starting a new school in early 2017 where he should receive appropriate . That should end the denial of FAPE for the 2016 – 2017 school year. Therefore, the award in this case covers one and a half school years. Additional compensatory education services should supplement ’s education, and some of these compensatory services may be provided to at his new school .

The Parent requested

using the at as part of a compensatory

education award. (Ex. Q, Ex. R at 3) Dr. recommended based on the Student’s current academic levels rather than on the amount of instruction he missed due to the denial of FAPE.

I find that the DOE denied a FAPE to K.T. during the 2015 - 2016 school year and the first half of the 2016 - 2017 school year.^[1] As there are days of instruction in a school year, that is days of missed appropirate classroom instruction. I find that in the form of is or in . I calculate of for each day of missed appropriate instruction which equals to be provided by or another similar organization that will use with the Student.

The Parent also requested compensatory education in the form of related services.

It is unclear how many related services sessions received during the 2015 – 2016 school year and the 2016 – 2017 school year to date as the DOE failed to produce the records for this time period as requested by the Parent. The DOE also failed to produce any witnesses who could have testified to how much related service received. New York State places the burden of production on the school district, and the DOE failed to produce those records. I draw a negative inference from this failure. I find that the DOE has not carried the burden of production in this case.

In the alternative to the production of the , the Parent requested a total of ,

, and .

“

.” (Tr. 12)

I find that this is an inappropriate calculation.

First, there are suggestions in the record that did receive some related services during the 2015 – 2016 school year, and the first half of the 2016 2017 school year. For example, the June 15, 2016 IEP repeats that .“

” in . (Ex. D at 5)

Then, just as is than and

, so related services sessions are than related services. There are school days in a year that is roughly weeks of school per year. I am fashioning a compensatory education award that covers the 2015 – 2016 school year and the first half of the 2016 – 2017 school year, and that is approximately weeks. All related services are on the IEP’s for Therefore, I am awarding of each related service per week that amounts to a total of

, , and

. The Parent also requested so that

. (Tr. 18-20)

ORDER

I hereby order the DOE to:

Fund with a from a

, , or another agency that uses to be used by the Student by December 31, 2017;

Provide RSA’s for ,

, and to be provided by by December 31,

2017; and

Fund to

.

Dated: December 13, 2016

BARBARA J. EBENSTEIN, ESQ.

Impartial Hearing Officer BE:

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 dated 08/09/16

B Individualized Education Plan dated 10/14/14

C Individualized Education Plan 12/03/15

D Individualized Education Plan 06/15/16

E by , dated 02/12/13 2

F 02/12/14 5

G 06/03/14 5

H Evaluation by 02/23/15 5

I by 03/26/15 9

J Evaluation by 06/30/15 11

K Evaluation by 06/28/15 27

L Teacher Report Form 11/09/15

M Evaluation by - 11/18/15

N Evaluation 03/15/16

P-O School Location Letter 12/04/15

P Resume of Undated

Q Letter from at , dated 08/05/16

R Affidavit from with resume dated 12/05/16

Footnotes

[1] Although the DOE conceded a denial of FAPE for the 2016 – 2017 school year, will attend a new school with a new IEP in early 2017. There should be no denial of FAPE then. If there is, it could be the subject of a subsequent impartial hearing.