New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 156428

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: May 5, 2016

Actual Record Closed Date: May 20, 2016

Hearing Officer: Michael K. Lambert, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 5, 2016

Attorney — Student

Parents

(Via Telephone) — Student

District representative — DOE

INTRODUCTION AND PROCEDURAL HISTORY

By due process complaint dated July 6, 2015, the parents initiated the instant due process hearing in which they advanced a number of challenged to the 2015-2016 educational program offered by the Department of Education (“DOE”) to

Specifically, the parents challenged the appropriateness of recommendations made at a June 22, 2015 CSE meeting to remove and the CSE’s failure to conduct a and develop a (PE-B).

The due process complaint alleged that ’s 2012-2013 IEP represented his current educational program and placement for pendency purposes. The DOE agreed with this position. ’s IEP for the 2012-2013 school year contained recommendations for , including at an enhanced rate of per hour, per a resolution agreement dated June 5, 2013, in addition to attendance at the . On October 21, 2015, a Pendency Order was issued directing that the DOE maintain such services from July 6, 2015 through the final adjudication of this case or by written agreement of the parties.

On December 7, 2015, the parents filed an amended due process complaint (PE-E)

in which they challenged the appropriateness of recommendations made at a July 22, 2015 CSE meeting (PE-A). Specifically, the parents objected to the failure of the CSE to recommend and the involvement of a in ’s program. The parents also alleged that the DOE had failed to appropriately implement the July 22, 2015 IEP by failing to identify and recommend an appropriate . During the hearing, remained in attendance in an program at the (T: 9).

A hearing was conducted on May 5, 2016. The DOE rested without the presentation of any evidence (T: 5). The parents called two witnesses and introduced four exhibits. In terms of requested relief, counsel for the parents indicated that they were seeking an for to attend. In the alternative, they were seeking and (T:

39-40).

The above issues are hereby decided as set forth herein.

THE HEARING EVIDENCE

’s mother was called as the first witness in the parents’ case-in-chief. She testified that is a student who was currently attending an at the (T: 9). In addition, he received and (T: 10-11). He has had an IEP since he was

(T: 13). Mrs. testified that presented with

(T: 15-16).

Unhappy with his progress in the 2014-2015 school year, Mrs. had seen by a new doctor, Dr. , who referred her to Dr. (T: 17-18). Dr.

evaluated over two sessions (PE-C). recommended that be placed in and that he be provided with

(PE-C-9).

Mrs. provided the DOE with a copy of the evaluative report prepared by Dr.

(PE-C; T: 20). Such report was reviewed at a July 22, 2015 CSE meeting. ’s classification was changed to at that meeting (T: 21). The CSE recommended that the matter be deferred to the CBST for the identification of a

(PE-A-10). Mrs. was in agreement with both recommendations (T: 21). No such school was thereafter located (T: 22-23). Mrs. also testified that was receiving (T: 35) , including , and that, although they were “ ” helping (T: 23-26), he was still presenting with (T: 26).

Mrs. testified that , although he was not receiving any or services there (T: 37-38) was “ ” at the in the 2015-2016 school year (T: 36).

(T: 39).

The parents next called Dr. as a witness in this matter. She testified that she had a Ph.D. in , that she was a licensed in New York and New Jersey, that she had done predominately and in and that she had been employed for at (T: 42). Her area of specialty was and (T: 42-43). Dr. testified that she had tested approximately 1 year earlier (T: 43). His presentation during such testing was consistent with a diagnosis of (T: 44) and Dr. recommended that his classification be changed to (T: 47). He was described as , , and . He presented with i

(T: 44). Dr. and an assistant administered a

(T: 44-45). During the administration of such assessments, required “ ” (T: 46). Dr.

recommended that be placed in a

(T: 48) where he should have

(T: 51). She opined that an program would be crucial for (T: 49-50). In addition, she also recommended, inter alia, the addition of a and (PE-C-8-9; T: 50-55).

A post-hearing brief was thereafter submitted on behalf of the parents. The DOE did not submit a post-hearing brief.

THE LEGAL STANDARDS

Pursuant to the IDEA, all children with disabilities are entitled to a “free appropriate public education” (“FAPE”) which must include “special education and related services” tailored to meet the unique needs of the child and be “reasonably calculated to enable the child to receive educational benefits.” Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 207 (1982); (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Frank G. v. Board of Education, 459 F.3d 356, 371 [2nd Cir. 2006]). 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 v. Pawling Central School District, 427 F.3d 186, 192 [2nd Cir.

2005]). The Second Circuit Court of Appeals in Walczak v. Florida Union Free School District, 142 F.3d 119 (2nd Cir. 1998) held that the IDEA does not articulate any specific level of educational benefits that must be provided through an IEP. The Court citing to the Supreme Court ruling in Rowley reiterated that the IDEA does not require the states to maximize the potential of disabled children, but was meant “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside” (at pg. 192). The Second Circuit in Walczak also cites to a D.C. Circuit Court decision by now Supreme Court Justice Ruth Bader Ginsburg which held that because “public resources are not infinite,” federal law “does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child” (Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1583 [D.C. Cir. 1984]). The Third Circuit has held that an appropriate education under the IDEA is one that is “likely to produce progress, not regression” (Cypress-Fairbanks Indep. Sch. Dist. V. Michael F., 118 F.3d 245, 248 [3rd Cir. 1997]; cert denied 522 U.S. 1047 [1998]; Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli v. Carmel Central School District, 2007 WL 465211, at *15). 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 School District, 873 F.2d 563, 567 [2nd Cir. 1989][citations omitted]; see Grim, 346 F.3d at 379). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 [2nd Cir. 1997]; see Rowley, 458 U.S. at 192). Objective factors such as the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress and one important factor in determining educational benefit (Rowley, 458 U.S.

at 207, n.28, 203-04; Walczak, 142 F.3d at 130; Viola v. Arlington Central School District, 414 F. Supp. 2d 366, 382 [S.D.N.Y. 2006]).

The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; see Walczak, 142 F.3d at 132). The LRE is defined as “one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled” (Carlisle Area Sch. V. Scott P., 62 F.3d 520, 535 [3rd Cir. 1995]). The IDEA mandates that all students with disabilities may only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. 1412[a][5][A]; 34 CFR

300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3rd Cir. 1993]; Briggs v.

Bd. of Educ., 882 F.2d 688, 691 [2nd Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]).

“The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Borough of Clementon Sch. Dist., 995 F.2d 1204

[3rd Cir. 1993]). The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes such as language and role modeling with nondisabled peers” (Greer v. Rome City Sch.

Dist., 950 F.2d 688 [11th Cir. 1991]).

The Second Circuit Court of Appeals adopted the Oberti LRE test in P. v.

Newington Board of Educ., 546 F.3d 111 (2nd Cir. 2008) requiring the consideration of whether the school has made reasonable efforts to accommodate the child in a regular classroom, the educational benefits to the child with appropriate supplementary aids and services versus a special class and the possible negative effects of the inclusion of the child on the education of the other students in the class.

Federal district courts have upheld the appropriateness of an IEP “given what the CSE knew about [the child] at the time it was developing the … IEP” E.S. v. Katonah- Lewisboro School District, 742 F.Supp.2d 417 (S.D.N.Y. 2010). In J.R. v. Board of Education of the City of Rye School District, 345 F.Supp.2d 386 (S.D.N.Y. 2004), the Court held that in reviewing the appropriateness of an IEP that:

“This determination is necessarily prospective in nature; we therefore must not engage in Monday-morning quarterbacking guided by our knowledge of

S.R.’s subsequent progress at Eagle Hill, but rather consider the propriety of the IEP with respect to the likelihood that it would benefit S.R. at the time it was devised. See Antonaccio, 281 F.Supp.2d at 724 (noting that this issue has not yet been addressed by the Second Circuit and holding that ‘the …IEP…must be evaluated at the time the CSE devised the IEP, on June 15, 1999, and the IHO and SRO erred by regarding any information about [the student’s] education after that date’).”

The SRO has consistently considered the IEP “at the time it was formulated” to determine if it was reasonably calculated to enable the student to receive educational benefit

(Application of a Student with a Disability, SRO Appeal Nos. 11-154, 09-034, 09-013).

In terms of the available remedies in cases where a district has failed to meet its obligation to offer an educationally disabled child FAPE, IHO’s have substantial discretion. Since P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008), the courts of the Second Circuit have ceased to limit eligibility for “compensatory education” to those over 21. In P, the Second Circuit ruled that “compensatory education” can be awarded to an elementary school student. Further, even the “gross violation” requirement, which is applicable to a claim for compensatory education by someone over 21 is not clearly established in this Circuit to be applicable to a student under 21. That standard was not relied upon in P.

In S.A. ex rel. M.A.K. v. New York City Dep't of Educ., 12-CV-435 (RMM)

(MDG), 2014 WL 1311761 (E.D.N.Y. Mar. 30, 2014), the Court held:

The IDEA allows a hearing officer to fashion an “appropriate remedy, and ...

compensatory education is an available option ... to make up for denial of a [FAPE].” P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008) (affirming compensatory education award for elementary school student); see also Student X v. New York City Dep't of Educ., No. 07

CV 2316, 2008 WL 4890440, at *24 (E.D.N.Y. Oct. 30, 2008) (awarding compensatory education to student younger than twenty-one). Such an award serves “to compensate a student who was actually educated under an inadequate IEP” and “to catch-up the student to where he should have been absent the denial of a FAPE.” Brennan v. Regional Sch. Dist. No. 1 Bd. of Educ., 531 F.Supp.2d 245, 265 (D.Conn.2008). Before awarding compensatory education for a student older than twenty-one, a court must find a gross violation of the student's right to a FAPE; however, whether the same prerequisite exists to awarding compensatory education for a younger student is an open question. See Student X, 2008 WL 4980440, at *24. P. v.

Newington, 512 F.Supp.2d 89, 112 n. 3 (D.Conn.2007) (“The Court disagrees with the defendant's argument that compensatory education is warranted only if there is a ‘gross' violation of the IDEA. The requirement of a gross violation

... has been applied only to cases involving claimants over the age of 21.”), aff'd, 546 F.3d 111 (2d Cir.2008); but see J.A. v. E. Ramapo Cent. Sch. Dist., 603 F.Supp.2d 684, 690 (S.D.N.Y.2009) (finding that five-year-old student was not entitled to compensatory speech therapy, reasoning that parents failed to show gross violation because child “was not excluded from school for any period of time.”).

Also, Reid ex rel. Reid v. D.C., 401 F.3d 516, 522-26 (D.C. Cir. 2005) seems to stand for the proposition that “compensatory education” can be prospective educational services to compensate for a past deficient program and that a hearing officer, as well as a court, can fashion flexible “compensatory education” relief through the application of “equitable considerations.” Reid is cited by, for example, the Second Circuit in P., 546 F.3d at 123, for the proposition that “[t]he 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.”

FINDINGS OF FACT AND CONCLUSIONS OF LAW

By failing present any evidence in its case-in-chief, the DOE failed to meet its burden as to any issues concerning which they bore the burden of proof. I specifically find as follows:

1. That the DOE failed to establish the appropriateness of the educational programs developed by the CSE on June 22, 2015 or July 22, 2015.

2. That the DOE failed to appropriately evaluate during the 2015-2016 school year by failing to conduct an and thereafter failing to develop an appropriate . Such failure, along with the inappropriate utilized at the , resulted in the denial of FAPE

3. That the uncontroverted hearing evidence demonstrates that is in need of a at which

.

4. That the uncontroverted hearing evidence establishes that is in need of

.

ORDER

1. That the DOE identify an appropriate

for that is designed to

. Until such school is identified, the DOE shall provide with a at the or such other school that be mutually agreed upon by the parties.

2. That, within 30 calendar days of the effective date of this Order, the DOE conduct an and develop a for to address . The CSE shall thereafter promptly meet to determine the elements of ’s . I will not Order that , but the CSE is at liberty to include such support in the . The parents may bring any challenges to the resulting in a new due process complaint.

3. That the CSE meet within 30 calendar days of the effective date of this Order to determine the that should be added to ’s IEP. The parents may bring any challenges to the resulting recommendations in a new due process complaint.

4. That, to the extent not already done, the DOE provide as compensatory education services any services described in the October 21, 2015 pendency order that have not been provided during the period July 6. 2016 through the date of this Order. The parents shall provide the DOE with a list of any missed services within 30 calendar days of the effective date of this Order.

5. That the CSE meet within 30 calendar days of the effective date of this Order to consider the that should be added to ’s IEP. In the event that the parties are unable to reach agreement on the to be added to ’s IEP, the DOE shall to be offered to as compensatory services as may be mutually agreed upon by the parties.

These hours may also be used for the provision of

.

6. All other claims set forth in the due process complaints are hereby dismissed.

Dated: August 30, 2016

MICHAEL K. LAMBERT, ESQ.

Impartial Hearing Officer MK:

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

None