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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth: District: 3 Hearing Requested By: Parent Date of Hearing: April 7, 2010
May 10, 2010
June 22, 2010
July 12, 2010
September 29, 2010
November 12, 2010
January 6, 2011
January 31, 2011
March 10, 2011
April 18, 2011
April 21, 2011
May 11, 2011
May 20, 2011 Actual Record Close Date: July 28, 2011 Hearing Officer: James McKeever, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 7, 2010
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 11, 2010
Attorney — Student
Parents
Worker — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 22, 2010
Attorney — Student
Attorney — DOE
Intern — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 12, 2010
Attorney — Student
Attorney — DOE
Intern — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 29, 2010
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 12, 2010
Attorney — Student
Psychologist/DOE-parent witness — Student
Attorney — DOE
Psychologist/DOE-parent witness — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 6, 2011
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 31, 2011
Attorney — Student
Deputy Executive Director of CSE-/DOE-parent witness — Student
Attorney — DOE
Deputy Executive Director of CSE-/DOE-parent witness — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 10, 2011
Attorney — Student
Psychologist/DOE-parent witness — Student
Attorney — DOE
Psychologist/DOE-parent witness — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 18, 2011
Attorney — Student
Parents
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 21, 2011
Attorney — Student
Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 11, 2011
Attorney — Student
Director of Contractual Services/DOE-parent witness — Student
Attorney — DOE
Director of Contractual Services/DOE-parent witness — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 20, 2011
Attorney — Student
Psychologist/DOE-parent witness — Student
Attorney — DOE
Psychologist/DOE-parent witness — DOE
On the above referenced dates, the parties appeared for an impartial hearing pursuant to the IDEA, Section 504 of the Rehabilitation Act, New York Education Law Section 4401 and Section 1983, regarding the parent’s request for compensatory services for her son, , based on Department of Education’s (“DOE”) failure to properly evaluate from 1996 – 2007, and classify as a child with a disability on the spectrum, inter alia.
The complaint, date January 25, 2010 indicates that the parent is not challenging whether received a free and appropriate public education (“FAPE”) for the 20072008, 2008-2009 or the 2009-2010 school years (Exhibit “Y”).
The DOE contends that all claims brought by the parent prior to January 2008 are time barred by the statute of limitations and that DOE is not required to make a medical diagnosis on the “namely ” among other arguments discussed below.
was initially referred to the CPSE for an evaluation in 1996. The psychological evaluation administered as part of initial referral concluded that ’s cognitive skills were in “mildly ” range (Exhibit “H”). The DOE offered placement at the School with children who were very low functioning. The parent opted not to place at the School and home schooled and then sent him to School (“ ”), a non-public school, where he remained through the grade.
In October 2000, was referred a second time to the CSE by his classroom teacher.
In November 2000, , a school psychologist, conducted an evaluation using the , Human Figure Drawing and Sentence Completion Tests and administered the to (Tr. 530/766). Mr. ’s evaluation report indicated that ’s cognitive scores were in the range (Exhibit “A”).
On January 2, 2001, the DOE conducted a evaluation and recommended services three times per week. (Exhibit “15”) (Exhibit 16 “Initial Referral”).
On January 4, 2001, the CSE determined that was not a student with a disability and recommended placement in a general education setting. (Exhibit “15”).
On March 19, 2001, the CSE classified as and impaired and recommended services and placement in a general education setting.
There was no evidence in the record regarding an IEP between March 19, 2001 to May 9, 2003 (Exhibit S1). The May 9, 2003 IEP continued to classify as impaired and recommended placement in a general education setting. The parent testified that sometime during this school year, while was in the grade at , the DOE discontinued ’s services (Tr. 971).
In grade, transferred to
In grade, moved to the School.
In the middle of grade, was referred by the DOE to the program and remained there for second half of grade (2005-2006) and all of grade (2006-2007) .
In November 2006, the parent was contacted by , a DOE school psychologist, who conducted a evaluation of on December 1,
2006. testified that he contacted ’s parent because ’s name came up on a list for a triennial evaluation. conducted a clinical interview and a cognitive and achievement battery.
On December 13, 2006, the CSE declassified and discontinued his services.1 The December 13, 2006 CSE meeting consisted of and ’s mother.
In April 2007, the parent obtained an independent evaluation from . . made findings of Disorder with respect to (Exhibit “N”).
Thereafter, the DOE determined that was not a licensed As a result, the DOE discredited her report.
The parent and testified that had not received services since 2003.
In January 2008, was evaluated by , who diagnosed with ’s Syndrome (Exhibit “L”).
attended the School (“ ”) from to grade and graduated in the spring of 2011. It is undisputed that made academic progress while at . Statute of Limitations:
The IDEA requires that, unless a State chooses to set a different limitations period under State law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged violation (20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; N.Y. Educ. Law § 4404[1]). The IDEA was amended in 2004 and the present two year statute of limitations became effective in July 2005 (id.). Prior to July 2005, the statute of limitations in New York for alleged violations of IDEA was one year (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir. 2003]; Application of the Bd. of Educ., Appeal No. 02-119; see Application of a Child with a Disability, Appeal No. 06-013).
As stated above, the parent’s complaint, dated January 25, 2010. alleges that from 1996 through 2008, the DOE failed to adequately identify and/or diagnose as a functioning student with s, and, as such, failed to provide with appropriate education services.
On or about March 2010, the DOE filed a motion to dismiss the parent’s claims as time barred pursuant the Statute of Limitations (“SOL”) under the IDEA (IHO Exhibit “ “). The parent filed their opposition to the motion on March 18, 2010 (Exhibit “ “). On or about March 2010, the DOE filed their reply papers (Exhibit “ “). After a review of the parties’ motion papers it was determined that a hearing was required on this issue before a ruling could be made.
On May 10, 2010, the , a DOE employee, and the parent testified as to the facts concerning when the parent became aware of any alleged violation by the DOE. The hearing on this date centered around a report obtained by parent from , who the parent retained after she received the DOE evaluation from . In March 2007, made a finding of with respect to The parent testified that she gave ’s report to the DOE and confirmed that he received it from the parent. Mr. testified that after receiving the report, the DOE learned the was not a licensed psychologist in the State of New York and, as such, her report regarding was not considered by the DOE. The record shows that the parent relied on the DOE’s representations with respect to the validity, or lack thereof, of ’s report.
Based on these facts, I found that the parent was not on notice of any alleged DOE violation with respect to because the DOE could not discredit ’s report back in 2007, and then come to a hearing in 2010 and say however that ’s report was valid enough to place the parent on notice that was on the “
As I indicated on the record on May 10, 2010, I found that the parent was not aware that the DOE failed to appropriately identify and/or diagnose until the parent received the report from in January 2008, who found that has s’ disorder.
As such, the was tolled for ’s IDEA claims back to 1996
Further, the DOE’s assertion that the parent was on notice of the DOE’s alleged violations because the parent received her due process rights beginning in 1996, is unpersuasive.
First, the DOE Exhibit 10 is a “Notice of Preschool Referral” and Exhibit 11 is the “Consent for Initial Preschool Evaluation.” Neither sufficiently supports a finding that the parent was on notice of any possible claim against the DOE.
Second, the DOE’s assertion that due process rights were explained to the parent by a worker (DOE Exhibits “7, 13, 14, and 15”) or anyone else was not established at the hearing in the DOE failed to call the worker and/or anyone else, with the exception of Mr. , to testify at the hearing.
Finally, the DOE’s position that it was not required to make a diagnosis of “ ” or anything else on the “ is unpersuasive as the record shows that the DOE eventually classified as a student with in January 2009. .
(See, DOE Response to Due Process Complaint at IHO Exhibit “3“ annexed to the parent’s Motion to Compel at Exhibit “B“ page 1).
Accordingly, the DOE’s request for dismissal of the parent’s claims under the IDEA based on the SOL is denied.
FAPE from 1996-2007:
The DOE bears the burden of proof in due process hearings brought under the IDEA in New York State (See, N.Y. Educ. Law Section 4404).
In this case, the DOE elected not to call any witnesses to demonstrate that was offered a FAPE for any school year at issue. Nor did the DOE present any evidence that decertification in 2006 was proper. Accordingly, the record shows that the DOE failed to meet its burden of demonstrating that they offered a FAPE for any of the school years at issue.
Therapy:
The parent alleges that the DOE failed to provide services as per the DOE’s assessment, which found eligible in August 2008 (Exhibit “F”). The parent asserts that this claim was not time barred because the due process complaint was brought within the two years SOL. A review of record reveals that the parent’s complaint indicates that the parent was not challenging the issue of free and appropriate public education for the
2007-2008, 2008-2009 or the 2009-2010 school years. As such, the parent’s request for a finding of a denial of FAPE based on the DOE’s failure to provide service in 2008 is denied.
Compensatory Education:
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 may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a or school diploma (34 C.F.R. § 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd.
of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 C.F.R. § 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100). Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if 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 (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir.
1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]).
The record shows that is an extraordinary young man who, despite the DOE’s repeated failure to appropriately evaluate him from 1996 to 2008, succeeded academically. The record also shows that graduated school in June 2011 and will likely go to . Nevertheless, I find that is entitled to compensatory educational services because the DOE’s failure to adequately evaluate after three referrals for evaluation and over an 11 year time period referenced above, resulted in a gross violation of his rights under the IDEA. Additionally, the DOE’s position that they were not required to provide services to a student who is unilaterally placed in a private school is inconsistent with their Child Find obligations. (IDEA, see U.S.C. § 1412(a)(3).
See also Educ. Law §§ 4402(1)(a);4410(4); 34 C.F.R. § 300.111; 8 NYCRR 200.2(a)).
Finally, ’s academic success is only one factor to consider when analyzing the issue of whether a student derive an educational benefit and received a FAPE under the IDEA. development is critical. Here, the record shows that the DOE failed to provide any services with respect to ’s development. *.N.Y.C.R. SECIOTN
200.1(ww)(3). The record also shows that ’s services were unilaterally terminated by in 2006.
Relief:
The parent requests the following relief:
1. Compensatory Education in the form of eligibility for at least two years.
2. Issuance of Related Service Authorizations (“RSA”) for and services for up to two years to address: (1) pragmatic , and skills; and
(2) , and intolerance.
3. Issuance of RSA’s or privately fund a provider for to assist with transition services and activities of daily living, including but not limited to, transitioning to college, travel and money management; and
4. A Metrocard for to travel to and from any compensatory service.
Here, the record supports a finding to extend ’s eligibility for an additional two years based on my finding of a gross violation of ’s rights under the IDEA for an extended period of time2. Nevertheless, the record is insufficient to make a finding that the requested services are appropriate to address ’s deficits and/or make up for the services the DOE did not provide from 1996-2007. Although and his mother testified that would benefit from and services, and based on my observation of it is clear that he would benefit from some services, the record is insufficient for me to order the requested relief as no evaluation and/or assessment was offered at the hearing to support the parent’s request.
Further, the DOE’s request to have this matter remanded to the CSE to determine the appropriate amount of services is in inappropriate as I can not delegate my role as the fact finder to the CSE. Accordingly, based on by broad discretion to fashion an appropriate remedy for the denial of FAPE, the DOE is directed to fund an independent therapy evaluation and an independent and evaluation, at a cost not to exceed $2,400 per evaluation. Once the evaluations are complete, the parent shall submit same to the CSE and RSA’s shall be issued for the
Eligibility is limited to the services provided in this Order. recommended services. The services shall not exceed a two year period and shall be limited to what is requested in paragraph No.[2] above.
With respect to transition services, the therapy evaluation shall address the issue of daily living skills and include a recommendation for these services, if appropriate.
Lastly, the parent’s request for an Order directing the DOE to issue a Metrocard for to travel to and from any compensatory service is granted. Section 504:
I will not reach the parent’s claims brought under Section 504 of the Rehabilitation Act as all the relief sought in this matter will fall under the IDEA. Post Hearing Exhibits:
The parent’s attorney submitted several proposed exhibits along with her post hearing brief (Reply). The DOE objected. I will not admit these exhibits into the record because they were submitted after the hearing concluded. As such, none of the proposed exhibits were considered, nor relied upon for this decision. Additional DOE Arguments:
I review the remaining arguments by DOE and find that they are without merit.
ORDERED
1. shall remain eligibility for education serves from two years following the date of his graduation;
3. The therapy evaluation shall address the issue of daily living skills and include a recommendation for these services, if necessary.
4. The DOE shall issue a Metrocard for to travel to and from any compensatory service provided in this Order. Dated: August 8, 2011
_________________________
JAMES MCKEEVER, ESQ.
Impartial Hearing Officer
JM:jj
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the 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 Psychological Evaluation, 11/21/00, 5 pp. B Evaluation, 2/2/01, 3 pp. C Evaluation, 7/20/07, 6 pp. D Evaluation,4/6/10, 4 pp. E Vocational Assessment, 5/17/08, 2 pp. F Evaluation, 8/8/08, 5 pp. G Assistive Technology Evaluation, 6/23/09, 4 pp. H Evaluation, 2/27/96, 3 pp. I Evaluation, 2/15/96, 3 pp. J History, 2/1/08 K Evaluation, 5/7/08, 3 pp. L Evaluation, 1/29/08, 33 pp. M Evaluation, 12/1/06, 7 pp. N Evaluation, 1/15/07, 13 pp. O Teacher Report, 12/5/06, 3 pp.-no “O” on Transcript P Teacher Report, 12/6/06, 3 pp. Q IEP, 5/9/03, 10 pp. R IEP, 12/13/06, 8 pp.-No “R” on Transcript. S IEP, 8/27/07, 10 pp. T Various Notices, Various Dates, 18 pp. U Test Resource Guide Excerpts, 1999, 28 pp. V Test Resource Guide Excerpts Volume II,I 30 pp. W Hearing Request, 1/25/11, 4 pp. X Test Resource Guide Volume I, 1998, 53 pp. Y Test Resource Guide 1999 Edition, 224 pp. (Listed as Exhibit “W” on transcript). Z Test Resource Guide Volume 7, Undated, 94 pp. (Listed as Exhibit “X” on transcript).
DEPARTMENT OF EDUCATION
1 Due Process Request, 4/23/07, 15 pp. 2 Due Process Request, 6/23/07, 4 pp. 3 Amended Due Process Request, 6/20/07, 3 pp. 4 Letter, 9/14/07, 2 pp. 5 Due Process Request, 1/18/08, 4 pp. 6 Amended Due Process Request, 1/23/08, 4 pp. 7 Work Report, 11/21/00, 4 pp. 8 History, 7/20/07, 3 pp. 9 Due Process Request, 1/25/10, pp. 10 Notice of Preschool Referrals, 2/5/96, 1 p. 11 Consent for Initial Preschool Evaluation, 2/5/96, 1 p. 12 Letter from to CPSE, 3/18/96, 1 p. 13 Notice of Referral, 10/31/00, 1 p. 14 Consent for Initial Evaluation, 10/31/00 15 Remain in General Education SBST, 1/8/01, 1 p. 16 Notice of Referral, 1/29/01 17 Meeting Notice, 1/29/01, 1 p. 18 Parent Member Declination Letter, 3/18/01, 1 p. 19 FNR, 3/26/01, 1 p. 20 Meeting Notice, 5/1/03 21 FNR, 5/19/03, 1 p. 22 Notice of History Meeting, 3/13/08 23 Appointment Letter, 6/25/07, 1 p. 24 Withdrawal Notice, 4/1/96 25 Letter, 5/30/96 26 Letter, CPSE, 6/25/96 27 Progress Reports , Various Dates, 72 pp. 28 Initial Referral, 10/10/00, 3 pp. 29 Email, 1/28/11, 3 pp. 30 School Records from page 73-83 31 Teacher Report, 12/7/06, 3 pp.
IMPARTIAL HEARING OFFICER
I Motion to Dismiss, 3/15/10, 55 pp. II Parent Opposition, 3/24/10, 18 pp. III Parent Motion to Compel, 3/15/11, 13 pp. IV Memo of Law-Parent- re Burden of Proof, Undated, 13 pp. V Memo Law-DOE-Re Burden of Proof, 8/23/10, 2 pp. VI Response to Motion to Compel, 3/24/10, 1 p. VII Post-Hearing Brief, 6/29/11 DOE, 31 pp. VIII Post-Hearing Brief, 6/7/11 Parent, 30 pp. IX DOE Reply. 7/14/11, 2 pp. X Parent Reply Memo with Exhibits, Undated, 112 pp.-Exhibits Id only XI Parent Sur-Reply-Not Considered, 7/14/11, 2 pp.
Footnotes
[2] The DOE is directed to fund an independent therapy evaluation and an independent and evaluation, at a cost not to exceed $ per evaluation. Once the evaluations are complete, the parent shall submit same to the CSE and RSA’s shall be issued for the recommended services. The services shall not exceed a two year period and shall be limited to what is requested in paragraph No. 2 above.