NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: Student‟s Name: Date of Birth: District: 2 Hearing Requested By: Parent Date of Hearing: November 0, 20 0
January , 20
January 2 , 20
January 28, 20
February 2, 20
February 8, 20
March 4, 20
April , 20
April 26, 20
May 2 , 20 Hearing Officer: Jean Marie Brescia, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 0, 20
0
Attorney — Student
STEVEN MALDONADO, Interpreter — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY , 20
Attorney — Student
Parents
Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 2 , 20
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 28, 20
Attorney — Student
Parents
Director, EBL Coaching (via telephone) — Student
Assistive Technology Consultant (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 2, 20
Center Director — Student
Attorney — Student
— Student
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 8, 20
Attorney — Student
Parents
Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 4, 20
Attorney — Student
Pathologist — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED APRIL , 20
Attorney — Student
Parents
Student
Psychologist — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 26, 20
Attorney — Student
Parents
Student
Attorney — DOE
— DOE
NAMES AND TITLES OF PERSONS WHO APPEARED MAY 2 , 20
Attorney — Student
Attorney — DOE
— DOE
On September 7, 20 0, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 4 (f), in the matter of . The parent requested the hearing on September to: ( ) challenge the alleged failure of the New York City Department of Education to provide with a free appropriate public education for the 2008-2009, 2009-20 0 and 20 0-20 school years and (2) seek, inter alia, evaluations of and compensatory educational services for (Parent‟s Ex. A). The hearing convened on November 0 (after two prior hearing dates were adjourned at the request of the Department), and subpoena issues and statute of limitations and res judicata questions were addressed. In addition, the parent requested an interim order with respect to independent evaluations (trans. 6 -62). Subsequent hearing dates were adjourned at the request of the parties in order to permit the Department to respond to the parent‟s subpoena and for the parties to develop their cases. The hearing re-convened on January .
On January , the parent requested that the hearing officer issue a pendency order and/or an interim order with respect of pendency. The Department represented that it was unable to proceed on the merits on that date because its witnesses were unavailable due to their need to be present at school during Regents‟ week (trans. 84-86).
The hearing reconvened on January 20. The parties presented additional oral argument with respect to pendency, and the Department presented, and rested, its case on the merits (trans. 4 ). Review of the record by the hearing officer revealed that additional documents were required for consideration of pendency/interim relief. On January 28, the parent provided this documentation (Parent‟s Exs. Q, R). On January 3 , an Order on Pendency and an Interim Order with respect to evaluations were issued. The Order on Pendency stated that ‟s pendency placement was a class with and therapy for two 30 minute sessions per week in a group of no more than five students.
The hearing on the merits continued on January 28, February 2, February 8, March 4 and April . At the hearing on April , the Department of Education requested a continuance to present the testimony of a rebuttal witness and an extension of the compliance date (trans. 739-740, 7 7). These requests were granted,[1] and the hearing was continued on April 26. At the hearing on April 26, the Department requested a second continuance (and an extension of the compliance date) in order to present the testimony of a rebuttal witness (trans. 769-770). These requests were denied (trans. 782-787, 799). Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.
The compliance date was extended to December and January 4 at the request of both parties in order to permit them to investigate and prepare their cases. The compliance date was extended to February 3 at the Department‟s request in order to permit the Department‟s witnesses to be available. The compliance date was extended to March at the parent‟s request in order for the parent‟s witnesses to be available and then to April 4 to accommodate a personal emergency of parent‟s counsel. On April , the compliance date was extended to May 4 at the Department‟s request in order to permit the Department to present a rebuttal case. The compliance date was subsequently extended to June 3 to permit reconstruction of a portion of the transcript and to June 20 to permit the parties to file, and the hearing officer to consider, post-hearing memoranda of law. The record closed on June 9 upon the receipt by the hearing officer of the parties‟ memoranda.
Background
A prior impartial hearing was conducted for during the 2008-2009 school year. The hearing officer issued a Findings of Fact and Decision, dated January 29, 2009, finding that the Department had failed to provide with a free and appropriate public education for the 2006-2007 and 2007-2008 school years and invalidating the IEPs created for in 2006, 2007 and 2008 (Parent‟s Ex. B at pp. 4, 6-
7). The parent had challenged IEPs from years prior to 2006 (Parent‟s Ex. B at p. 7). However, the hearing officer did not consider these earlier IEPs on statute of limitations grounds (Parent‟s Ex. B at p. 7). The hearing officer ordered the following:
the department of education shall fund up to 480 hours of instruction for , at a cost not to exceed $ 09 per hour, which instruction may be provided at any time until
] turns on August 23, 20 2 (Parent‟s Ex. B at p.
8 [emphasis added]).
Testimony at the prior hearing indicated that the instruction should be delivered for four hours per day, five days per week (Parent‟s Ex. B at p. 0). The hearing officer also ruled that “the [parent‟s] request for HLC instruction is denied, without prejudice to ‟s right to request a future hearing for such relief” (Parent‟s Ex. B at p. 8). The decision of the hearing officer was not appealed.
‟s most recent IEP was created on May , 2009 (Parent‟s Ex. C). This IEP recommends that ‟s disability be classified, for the purposes of the IDEA, as disabled and that she attend a class and receive and therapy (two 4 minute sessions per week in a group of five students). Attended School until she was graduated in June 2009 with an IEP diploma (Department Ex. 7 at p. 3; Parent‟s Ex. A at p. 2). She has not attended School since that time.
‟s “Student Permanent Record” from School shows that earned 46 school credits and had a “cumulative average” of 68.70% (Parent‟s Ex. S).
completed the 480 hours of tutoring at by March 20 0 (Parent‟s Ex. A at p. ; Parent‟s Ex. K at p. [record of completion of 472 hours]).
The parent requested the instant hearing on September , 20 0. The hearing request alleges that the Department failed to provide with a free appropriate public education for the 2008-2009, 2009-20 0 and 20 0-20 school years and “illegally terminated ‟s education and related services in June 2009” (Parent‟s Ex. A at p. 4). As relief, the parent requests the following: compensatory educational services sufficient to permit to earn a GED diploma; a program which would “allow to earn a legitimate diploma, other than an IEP diploma;” compensatory related services; therapeutic services; and assistive technology (Parent‟s Ex. A at pp. -6). The School District‟s Case
In March 2009, a CSE bilingual school conducted a evaluation of (Department Ex. ). At the time of the evaluation, had a % cumulative average and had earned school credits. She had failed or been absent for every Regents or RCT examination she had been scheduled to take (Department Ex. at p. ). The evaluator noted that had attained a full scale I.Q. score of on the edition administered in 2003.
The evaluator administered subtests of the to . She achieved the following scores: letter-word identification, st %ile; passage , and applied problems, . . With respect to the score on the letter-word identification subtest, the psychologist noted that:
This score is commensurate with what would be expected based on her intellectual functioning. This score is classified as being in the range. This subtest is a measure of reading decoding, including the ability to identify and verbalize words. It may also be considered a measure of how many words she knows in her sight vocabulary (Department Ex. at p. 2).
The psychologist made a similar observation with respect to the . %ile score on applied problems, noted that such a score was “commensurate with what would be expected based on her intellectual functioning. This subtest is a measure of quantitative reasoning, math achievement and math knowledge” (id).
informed the evaluator that she wanted to be a teacher (Department Ex. at p. 3).
On a - evaluation conducted in March and April 2009, attained the following age-equivalent scores on the (“ oral expression, listening , . and written expression . (Department Ex. 2 at p. 2). Her composite score was in the , “extremely (Department Ex. 2 at p. 4). On two subtests of the , attained the following approximate grade level scores: word recognition, grade, and reading , grade. The therapist conducting the evaluation concluded that “presents with a moderatesevere and disability that will affect her ability to complete activities of daily living upon graduation from school” and recommended that she “masters basic decoding, and encoding skills for single sounds, blends, digraphs. Acquiring these basic reading skills is imperative for overall reading success in the future” (Department Ex. 2 at p. 4). The therapist recommended that receive and therapy for two 4 minute sessions per week in a group of five. In the event that continued with therapy after graduation, such therapy should focus on expressive/receptive vocabulary training and compensatory strategies for engaging in activities of daily living (such as completing job applications and financial management).
The Department of Education elected not to present the testimony of any witnesses on its direct case (trans. 4 ). The Department argued that since had been graduated with an IEP diploma in June 2009, and the parent did not request a free appropriate public education for for the 2009-20 0 and 20 0-20 school years even though the parent was aware of ‟s right to return to school, the Department was not required to provide with a free appropriate public education (trans. - , 68- 69, 72). The Department did not present evidence establishing that Department personnel provided the parent with notice of, or any other information concerning, ‟s right to continue with her education after receiving her IEP diploma (trans. 20 -202).
The Department conceded that a valid IEP was not in place from the period from September , 2008 through May , 2009 (trans. 86). The Department argued that the prior hearing officer‟s January 2009 decision adjudicated the parent‟s requests for relief, and provided compensatory services, through the end of the 2008-2009 school year; and, therefore, no award of compensatory education or services can be made in this proceeding for any deprivation of appropriate educational services for any time prior to June 30, 2009, the end of the 2008-2009 school year (trans. 8687, 9 - 92).
The Parent‟s Case
, the center director of ‟s New York Center, testified that she had a master‟s degree in cinema studies and has been working at for fifteen years (trans. 3 9). She does not have any teaching certification (trans. 362). provides one-to-one instruction to students from age years through adult (trans. 320). instructors have bachelor‟s degrees and are trained in-house. Ms. worked with at and supervised her instructors (trans. 32 ).
In June 2008, was tested at (trans. 327; Parent‟s Ex. J). On the Peabody Picture Vocabulary Test, scored at the percentile, which was on a grade level and at a : “ age.” On the of , she scored at the . “ age” on word opposites, . “ age” on verbal absurdities and below the on oral directions. On the est word attack subtest, scored at the th %ile and . grade level. On the Test, she scored at the percentile and attained a grade level score. On the , she scored at grade . level on and . grade level on math computation. On the , scored at the . grade level with a . grade level in . On the y Test, she scored at the . grade level.
was retested in August 2009, before her instruction at b (trans. 327). In the year since the 2008 testing, had regressed in oral processing, particularly in vocabulary, and made some “small increases” in decoding (trans. 327). attained the following scores: Test, , . grade level and : “mental age;” ts of . “ age” in word opposites, . “mental age” in verbal absurdities, and below the in oral directions; work attack subtest, grade level; grade level; , grade level in and . grade level in math computation; , paragraph reading . grade level with a grade level in ; and y k.4 grade level (Parent‟s Ex. K).
received instruction at in decoding, reading fluency, listening and reading , and then math (trans. 328). ‟s attendance at was “excellent,” and she was “responded very well to instruction” and “though she did experience frustration, she would come to session and . . . work often times through the frustration” (trans. 329, 3 6). When b the instruction, “she was unable to associate a sound to every letter of the alphabet” (trans. 329). The first step of the instruction was to “help her connect the sounds” and work “at that sound symbol level” for about two weeks (trans. 330). She was soon able to read three syllable words and “occasionally” four syllable words independently (trans. 330). Instruction then moved towards and imagining and sequencing material (trans. 33 ). needed “a lot of repetition and consistency” in order to make progress (trans. 332). By January
20 0, was able independently to read and comprehend a paragraph at a “ or grade level” (trans. 334). At that point, instructors started to work with her on math. By the end of instruction, was able to “image a number line” and count by 2‟s, ‟s and 0‟s, had learned addition, subtraction and multiplication facts, and has started “ about division” (trans. 334).
was retested at in March 2010, after 388 hours of instruction in reading and 84 hours of instruction in math (Parent‟s Ex. K2). attained the following scores: , . grade level; of , . “mental age” in word opposites, “mental age” in verbal absurdities, and st below the %ile in oral directions; work attack subtest, . grade level; , . grade level; , . grade level in and . grade level in math computation; , paragraph reading . grade level with a . grade level in ; y Conceptualization
Exhibit K includes the results of the August 2009 and the March 2010 testing.
Test, grade level; and of Mathematical Ability, grade level in computation and . grade level in story problems. Ms. observed that the test showed that made “some very nice improvement in receptive st vocabulary from the to the percentile” and “about a year increase” in both age equivalents and grade level (trans. 338). The “opposites subtest” measures expressive vocabulary, and made “approximately a two year age equivalent growth” (trans. 340). The “verbal absurdities” subtest measures listening and expression, and made years worth of progress (trans. 34 ). regressed in the oral directions subtest as demonstrated by her standard score (trans. 34 -342). She made “about grade levels of growth” in word attack as measured by the and grade level of growth in word recognition (trans. 342-343). In , “was having difficulty visualizing exactly what letters she ought to visualize for a particular word” (trans. 347). The showed that had made improvement in her ability to read and recall passages (trans. 348-3 ). Ms. stated that made progress in math based upon her observations of during instruction (trans. 3 6). During instruction, was able to read and understand ninth grade level reading material with the assistance of a dictionary (trans. 42 -426).
Ms. recommended that continue to receive instruction because “she needs the kind of repetition and intensive stimulation that that environment provides” and that this instruction be multi- and for four hours per day, five days per week (trans. 3 7). charges $ 7.00 per hour for its services (trans. 360).
,a with a private practice and a faculty appointment at , testified that she had a doctorate degree in clinical psychology (trans. 634). conducted a evaluation of in September 2008 (Parent‟s Ex. N; trans. 637). The evaluation notes that suffers from ‟ a disorder that causes of various administered the , on which obtained a verbal IQ of
(borderline range), a performance IQ of (extremely and a full scale IQ of (extremely On the - attained the following percentile rank and age equivalent scores: word reading, reading ,< pseudoword decoding, . ; numerical operation, < math reasoning, < . ; and , observed that ‟s “academic achievement was largely consistent with aspects of IQ, with phonemic decoding, and written expression relatively stronger than other skills assessed; reading and both areas of mathematics tested remain specific problem areas for ” and that “can learn and retain new information when she is provided with repetition” (Parent‟s Ex. N at p. 6).
‟s expressive vocabulary was in the range. Her receptive vocabulary was in the extremely Her ability to learn a word list was in the extremely low range and to repeat sentences of increasing length was in the borderline range (Parent‟s Ex. N. at p. ). ‟s performance “on timed measures of visual attention, processing and scanning ranged from extremely to , with a measure of letter sequencing indicating that the alphabet is not automatic for ” (Parent‟s Ex. N at p. ). Testing also suggested difficulties with attention and perceiving or processing stimuli. noted that had “difficulty sustaining her attention over extended periods of time, e ly when a task is perceived as boring or uninteresting” (Parent‟s Ex. N at p. 6).
explained that the evaluation revealed that ‟s intellectual functioning was in the “extremely low range” (trans. 639). demonstrated “no functional impairments in the areas of communication, daily living skills or ization” and therefore a diagnosis of mental retardation was not appropriate (Parent‟s Ex.
N. at p. 6). noted, however, that needed to improve her understanding of written material and her ability to complete basic math calculations and to express information in written form (Parent‟s Ex. N. at p. 7). recommended that:
Given ‟s current clinical presentation, two primary recommendations can be made. First, she requires prolonged and intensive instruction in reading, mathematics and writing, with this work specifically focusing on the real-world application of these skills; a model stressing repetition of the material will work best for and produce optimal results. It is also recommended that this instruction be provided on an individualized basis (one-to-one); it is clear that ‟s current classroom setting of remains too distracting and stimulating for her with little to no gains being made. This class size will need to be reduced drastically before academic success can be expected. Second must undergo a formal psychiatric evaluation; this should be conducted to further assess her current psychiatric state and determine whether interventions besides continued counseling to address issues, depression and self-esteem are warranted at this time (Parent‟s Ex. N at p. 7).
Dr. prepared a psychoeducational “update” evaluation of in January
20 (trans. 642; Parent‟s Ex. V). Dr. administered the . obtained a verbal index in the range ( ), a perceptual reasoning index in the extremely ), a working memory index in the extremely ( ) and a processing speed index in the extremely
( (Parent‟s Ex. V. at pp. 2-3). On the , attained the following percentile rank and age equivalent scores: word reading, . ; reading rd , , ; pseudoword decoding, , . ; numerical operation, < . ; math reasoning, < . ; , . ; and written expression, 0. .
Dr. concluded that “has shown progress in achievement relating to word decoding (phonics) and reading . This confirms that she is not necessarily bound by levels of intellectual functioning, but able to learn through repetition and multi instruction provided on a one-to-one basis” (Parent‟s Ex. V at p. 4). Dr. noted that ‟s phonemic decoding was now at the percentile (trans. 646). ‟s difficulties sustaining attention and concentration continued (trans. 646-647). Dr. opined that multi instruction had been “working” with because she had improved her decoding and reading and that was capable of with such interventions (trans. 647, 649). With , instruction “mediated some of the attention concerns” and made “more comfortable” and “able to be receptive to ” in a way she had not been in a school classroom (trans. 6 0).
Dr. recommended that “continue to receive one-to-one multi instruction, as well as / services to enhance expressive and receptive skills, which are demonstrably weak” and have available to her “assistive technology supports which may enhance her speed and overall progress” (id).
Dr. agreed that individuals with extremely low I.Q.s often do not reach expected grade levels and that there is a correlation between cognitive ability and educational achievement (trans. 668-669). ‟s academic deficits were consistent with her I.Q. with the exception of the areas of memory and (trans. 676). Dr. stated that I.Q. was not the “sole factor” in ‟s presentation (trans. 673). Given the progress made at (particularly in the areas of decoding, word reading and reading ), she “has already proven that she is capable of more than her I.Q. would suggest” and has “the ability to learn new skills over time” (trans. 682, 684, 736-737).
, a licensed and pathologist, testified that she was the owner and director of the Manhattan Beach Reading Center and provided and therapy and conducted evaluations (trans. 49 ). She evaluated in April 2009 (Parent‟s Ex. P; trans. 494). On the Illinois Test of Psycholinguistic Abilities, which correlates cognitive ability and performance in order to identify whether an individual has a disability, scored “significantly below average” on ten of the twelve subtests and demonstrated a “generally impoverished” vocabulary, a “breakdown of working memory skills,” and a “breakdown in the basic skills of English literacy related to reading and writing” (Parent‟s Ex. P at pp. 4- ; trans. 49 496). From these results, Ms. concluded that ‟s expressive and receptive , for the purposes of speaking, listening, reading and writing, was “significantly delayed and would require and therapy” (trans. 497).
On the Test of y Perceptual Skills-Revised, which measures the ability to discriminate, understand, interpret, and express information delivered “through the y channel” (as would be delivered in the classroom), scored “significantly below her age and grade level” (trans. 497; Parent‟s Ex. P at p. 6). Ms. noted that ‟s “very poor performance correlates with her current IQ scores;” furthermore, the scores on the and the IQ scores “ into the range of a student, with a classification of . It is important to note that ‟s pragmatic ability is considerably stronger, and does not correlate with such poor test scores” (id). Ms. opined that “these scores would be er if had a stronger knowledge base, an educational plan that targets specific and functional areas of and skills of daily living, on a : individualized basis” (id). On the scored at the , with her writing sample “simple, with grammatical and a lack of development” (Parent‟s Ex. P at p. 9).
Ms. testified that the typical “classroom environment is based” (trans. 02). Students are listening to spoken instructions and directions. has difficulty processing such information (trans. 03).
Ms. recommended that receive and therapy focusing on expressive and receptive (for five 60 minute sessions per week, : ); individual life skills training with a worker or life coach (for two 90 minute sessions per week, : ); writing instruction (two 60 minute session per week, : ); and a referral and training for assistive technology (Parent‟s Ex. P at pp. 0- ).
Ms. updated her and evaluation of in December 20
0 (Parent‟s Ex. L; trans. 07). was unable to complete the Diagnostic Screening Test, which assesses “overall achievement in written ” in the areas of grammar, punctuation, capitalization, sentence structure and (trans. 080). On the Assessment, ‟s work was “rated” as “extremely poor for expressive written ” (Parent‟s Ex. L at p. 3). Ms. also gave the th grade NYS ELA reading sample. was able to read this sample with fluency; however, her written short responses to the reading were “ (id). had difficulties decoding the grade ELA reading passage as well as with understanding the vocabulary in the passage (Parent‟s Ex. L at pp. 3-4).
Ms. concluded that had “a Disability” and recommended that she receive individualized and therapy focusing on expressive , processing, and written expressive (for five 60 minute sessions per week, : , for month school years) and individual life skills training with a worker or life coach (for two 90 minute sessions per week, : , for month school years)(Parent‟s Ex. L at pp. 4- ). Ms. opined that the recommendation of the Department‟s therapist that receive and therapy for minute periods per week in a group of students was not “academically or therapeutically an appropriate recommendation” because it was “not an adequate amount of time for” and would provide with very limited individual attention from the therapist (trans. 8- 9). Ms. opined that would not benefit from group instruction (trans. 0).
, the president of Consulting, an assistive technology consulting company, testified that he provides assistive technology services to children and adults with disabilities (trans. 28 ). He has provided consulting services to the Department of Education (trans. 284). He is an electronics engineer with a master‟s degree in applied psychology and certification from the national professional association for individuals working in the field of assistive technology (trans. 282-283). Mr. performed an assistive technology evaluation for in April 2009 (trans. 28 ; Parent‟s Ex. M). He recommended that she have available to her a Windows-based laptop, a Kurzweil reading and writing program, a subscription to bookshare.org, and a reading program. For math, he recommended a hand-held money calculator and a device to learn math facts, called , and related software. Mr. also recommended ten hours of technology training (Parent‟s Ex. M at pp. 6-8; trans. 288296). Mr. opined that his recommendations for were still valid (trans. 296297).
Dr. testified that she was the founder, owner and director of a provider of “one-on-one tutorial services to education students with specific needs” (trans. 237, 8 ).[3] She has a master‟s degree in education and a doctorate degree in education (trans. 239). services students from pre-kindergarten through adults. Most of the students experience disabilities, and and/or difficulties (trans. 240). The instructors are certified education teachers trained in multi approaches to reading, writing and math (trans. 240).
Dr. assessed in November 20 0 (trans. 24 ). At the time of her evaluation, she was aware that the parent had requested this impartial hearing and had reviewed the parent‟s hearing request (trans. 8 2). During the evaluation, she administered the and the Test of Written and Qualitative Reading th Inventory. On the tested at the low grade level for reading skills, mid th grade level for skills, “borderline” level (approximately second grade) for math th th skills, and grade level in written skills (trans. 243, 269). She tested at the grade level on reading fluency and (trans. 244). As a result of her testing and interview of , Dr. concluded that unless ‟s skills were addressed with “the right research-based, multi instruction . . . she will continue to struggle through life, not having many of these fundamental skills that are essential not just for success in school, but for success in life and in any kind of career that she might choose to pursue” (trans. 24 ). Dr. opined that needed intensive instruction (trans. 246, 260). Such instruction would provide the “potential” for to pass the RCTs and obtain a school diploma (trans. 246, 27 ).
Dr. opined that had made progress at in decoding and reading . These gains demonstrated to Dr. that “responded very well to one on one multi based instruction” (trans. 249, 26 ). Dr. recommended that receive instruction at for 20 hours per week for at least one school year, for a total of 800 hours, in the areas of decoding, , reading , math and writing (trans. 249, 2 ). This estimation of the hours of instruction was based upon Dr. ‟s experiences in working with disabled students (trans. 2 -2 6). EBL charges $ 0.00 per hour for its services (trans. 2 2). EBL instructors would be able to collaborate with therapists and an assistive technology trainer (trans. 2 0).
Dr. explained that ‟s I.Q. scores on Dr. ‟s testing were in the “ range” (trans. 827-828). In Dr. ‟s experience, students with such I.Q. scores were capable of making educational progress with “appropriate intensive multi-instruction using the methodology” (trans. 83 ). Dr. opined that “has the potential to make significant gains with the right kind of intensive instruction” (trans. 837).
testified that she was years of age, did not attend school and was (trans. 444-44 ). She last attended School, graduating with an IEP diploma in June 2009. She participated in tutoring at (trans. 44 , 463). She feels that she is not qualified for any because her reading, writing and math skills are poor (trans. 44 -446). She babysits her younger brother and uses the computer to shop online (trans. 4 0). She reported that she was easily distracted and needed assistance in attending to tasks (trans. 448). In school, when she did not understand the work, she would not want to do it (trans. 449). She is able to travel by public transportation but is not comfortable shopping in stores because she is “ripped off” when she is unable to calculate the change she is owed (trans. 4 7-4 9).
was “comfortable” at because the instructors worked with her oneto-one on what she “really needed” in reading; she did not have time to work on much math (trans. 463-464).
explained that she suffers from a ailment that affects her body‟s absorption of , impacting her and resulting in and rapid
(trans. 46 -466). The condition requires her to take three times per day (trans. 468). receives because she suffers from (trans. 469).
would like to have a job and attend college (trans. 470). She has not passed any Regents exams or RCTs (trans. 47 ). She did not want to return to School because when she attended the school, she did not “understand the work” and “was just like just there, but like in another world” (trans. 474).
Findings of Fact and Decision
A. Statute of Limitations
A party must request an impartial hearing within two years of when the party “knew or should have known about the alleged action that forms the basis of the complaint.” 20 U.S.C. § 4 (f)(3)(C). Since the parent requested the hearing on September , 20 0, only claims arising after September , 2008 may be determined in this proceeding. As a result, all claims arising on or before September , 2008 are barred by the IDEA‟s statute of limitations and are dismissed.
B. Res Judicata/Collateral Estoppel
With respect to the 2008-2009 school year, the Department contends that any claims arising during the 2008-2009 school year are barred by the doctrine of res judicata (DOE Closing Brief).4 The Department is in error. In fact, these “finality” doctrines compel a completely different conclusion in this proceeding. The doctrine of collateral estoppel requires that the finding in the prior proceeding that the February 2008 IEP was invalid is binding in this proceeding.
The prior hearing officer‟s written decision dated January 2009 (Parent‟s Ex. B), as it states, determined that the Department did not provide with appropriate educational services for the 2006-2007 and 2007-2008 school year. The 2008-2009 school year was not before that hearing officer, and therefore he did not make any “FAPE” determinations with respect to that year. The last school year before that hearing officer was the 20072008 school year. That decision (again as it so states) provided compensatory educational services as a remedy for the Department‟s denial of a free appropriate public education to during the 2006-2007 and 2007-2008 school years. While the decision was not issued until January 2009, and while it determined that the IEP created in February 2008 was invalid, that decision could not have adjudicated future “FAPE” or compensatory education claims for the 2008-2009 school year. As a result, in this proceeding, we start with ( ) the previous adjudication of an invalid February 2008 IEP (created during the 2007-2008 school year) and (2) no prior determinations with respect to “FAPE” or remedies for the 2008-2009 school year.
The CSE could have reconvened promptly in January 2009 to create a new IEP for . It did not. Since an invalidated IEP was “in place” for most of the 2008-2009 school year, I find that the Department failed to provide with a free appropriate public education for the portion of the 2008-2009 school year subsequent to September .
C. Provision of an Appropriate Educational Program to The central purposes of the IDEA are to ensure: ( ) that students with disabilities have available to them a free appropriate public education that emphasizes education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. § 400(d)( )(A) & (B)(emphasis added); Schaffer v. Weast, 46 U.S. 49, (200 ); Board of Education v. Rowley, 4 8 U.S. 76, 79- 8 ( 982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-
2 . A free appropriate public education includes education and related
Neither the Department nor the parent paginated their closing briefs. I am not going to do this job for services designed to meet the student‟s individual needs, provided in conformity with a written IEP. See 20 U.S.C. § 40 (9); 20 U.S.C. § 4 4(d). A school district offers a student a free appropriate public education when ( ) it complies with the procedural requirements of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 4 8 U.S. 76, 206-207 ( 982). While school districts are required to comply with all procedures set forth in the IDEA, not all procedural errors result in an inadequate IEP. See, e.g., Application of a Child with a Disability, Appeal No. 06- 2 . If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate educational program only if the procedural inadequacy: ( ) impeded the student‟s right to a free appropriate public education; (2) “significantly impeded the parents‟ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. § 4 (f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. The School District bears the burden of demonstrating the appropriateness of the program recommended by its CSE.
A recommended educational program must be reasonably calculated to allow the student to receive an educational benefit and be the least restrictive environment for the student. Board of Education Hendrick Hudson S.D. v. Rowley, 4
8 U.S. 76 ( 982). A school district fulfills its obligations under the IDEA when it provides a child an IEP that is “‟likely to produce progress, not regression” and that affords the child the opportunity for more than “mere „trivial advancement‟”—in short, likely to provide some “‟meaningful‟” benefit. Application of a Child with a Disability, Appeal No. 06- 2 , quoting Cerra v. Pawling Central School District, 427 F.3d 86, 9 (2d Cir. 200 ) and Mrs. B. v. Milford Board of Education, 03 F.3d 4, 20 (2d Cir. 997). A school district thus satisfies this standard “by providing personalized instruction them. with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 4 8 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 v. Florida Union Free School District, 42 F.3d 9, 30 (2d Cir. 998); see also Rowley, 4 8 U.S. at 89. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 42 F.3d at 32 (quoting Tucker v. Bay Shore Union Free School District, 873 F d 63, 67 (2d Cir. 989) [citations omitted]).
An appropriate educational program “begins with an IEP which accurately reflects the results of evaluations to identify the student‟s needs, establishes annual goals related to those needs, and provides for the use of appropriate education services.” Application of a Child with a Disability, Appeal No. 07-0 0. The Department did not provide evidence establishing the appropriateness of the May 2009 IEP. The Department did not provide evidence that it provided a free appropriate public education to for the 2009-20 0 and 20 0-20 school years. Therefore, the record supports findings that the Department failed to provide with appropriate educational programs for the 2009-20 0 and 20 0-20 school years.
The Department of Education argues that it was not required to provide educational services during the 2009-20 0 and 2009-20 0 school years because she had been graduated from school and did not request a free appropriate public education from the Department (DOE Closing Brief). The Department argues that since graduated in June 2009 and did not request a free appropriate public education for any subsequent period of time, the Department was absolved of its responsibility to provide with anything. In other words, while the Department concedes ‟s “right to return” to school since she received an IEP diploma, the awarding of that diploma “convey[ed] some finality on the District‟s obligation to proactively conduct annual review and education placement without specific request to do so” (DOE Closing Brief).
This argument must fail. The Department had specific procedural steps it was required to take when it issued the IEP diploma to . The Department did not even attempt to demonstrate that these steps were taken—offering no testimony or documents to indicate that these steps were taken. The Department needed to establish that the following requirements were met:
. The CSE was required to provide prior written notice to the parent, prior to ‟s graduation with an IEP diploma, indicating that “continue[d] to be eligible for a free appropriate public education until the end of the school year in which [she] turns age or until the receipt of a regular school diploma.” 8 N.Y.C.R.R. §200. (a)( )(iii).
2. Then, when received the IEP diploma, that diploma was required to “be accompanied by a written statement of assurance that [she] shall continue to be eligible to attend the public schools . . . until [she] has earned a school diploma or st until the end of the school year of [her] birthday.” 8 N.Y.C.R.R. § 00.9(e).
3. And finally, that there were “written policies and procedure ensuring that students with disabilities are provided appropriate opportunities to earn a school diploma . . . .” 8 N.Y.C.R.R. § 00.9(a).
Failures ( ) and (2) constitute the type of procedural violations recognized as significant. Each individually (and certainly both taken together) ( ) impeded ‟s right to a free appropriate public education; (2) “significantly impeded the parents‟ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to ; and (3) “caused a deprivation of educational benefits.”
20 U.S.C. § 4 (f)(3)(E)(ii). As a result, even if the Department correctly argues that it was under no obligation to provide a “FAPE” after June 2009 unless the parent asked, this argument would ultimately fail because the Department did not demonstrate that it had provided the parent with prior written notice and/or notice at the time of the IEP diploma of ‟s continue right to a “FAPE.”
D. Remedies
To remedy the Department‟s failures to provide with appropriate educational services for the 2008-2009, 2009-20 0 and 20 0-20 school years, the parent requests compensatory education in the form of one-to-one tutoring for . Compensatory education is an equitable remedy tailored to meet the unique circumstances of each case. Application of the New York City Department of Education, Appeal No. -004. Compensatory education, which is the continuation of instruction to a student after he is not longer eligible for instruction because of age or graduation, may be awarded 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, e.g., Application of the Board of Education of the City School District of the City of Buffalo, Appeal No. 06-074; Application of a Child with a Disability, Appeal No. 06-066. 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 local or a Regents school diploma or until the conclusion of the ten-month school year in which the student turns age 2 . N.Y. Educ. Law §§3202( ), 440 ( ), 4402( )(b); 8 N.Y.C.R.R. §§ 00. (b)(7)(iii), 00.9(e).
Compensatory educational relief may also be granted to a student with a disability who remains eligible for instruction under the IDEA. The IDEA permits 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 free and appropriate public education.” P. v. Newington Board of Education, 46 F.3d , 23 (2nd Cir. 2009).
I am called upon to formulate a plan for . In doing so, I must be cognizant of the very restrictive nature of the tutoring relief the parent is requesting and the equitable nature of compensatory education. The Department is correct in its argument that a educational program is overly restrictive for . The evidence does not establish that can learn or benefit from instruction only in a environment. The evidence does establish that requires a multi program of instruction with repetition of material and support to address her difficulties in a small class setting. The Department makes several useful suggestions that this decision shall adopt, such as requiring the CSE to reconvene and consider a school program with a small student: teacher ratio, small class size, individualized instruction and daily therapy, and requiring additional years of school-based instruction for (DOE Closing Brief).
While the equities in this proceeding do not favor the Department, the parent is also held to equitable standards. I must consider the parent‟s apparent unwillingness to accept a program that does not consist of instruction. Furthermore, the hearing request in this proceeding does not seek public school services nor requests a CSE meeting to collaborate on the creation of a education program for . The parent has evinced a desire for one form of educational services and one form only— instruction through a private tutoring service. Planning a child‟s education program is a “collaborative process” involving educators and the parent. Schaffer v. Weast, 46 U.S. 49, (200 ). The parent should engage in that process on a going-forward basis.
I am ordering the CSE to reconvene to create an IEP for in accordance with the following guidelines: the recommended program shall include (a) a class size of or fewer students; (b) multi-instruction; (c) individualized instruction; and (d) daily and therapy. These guidelines are minimal and are not meant to exclude other services (educational, transitional, vocational, etc.) that the CSE determines are appropriate. These guidelines do not exclude a deferral to the Central-Based Support Team for a non-public school placement. Since it is now June, this IEP would be for the 2011-2012 school year.
In addition, I will require the Department to provide with one year of compensatory education (education past her birthday). The guidelines in the above paragraph apply to this award of compensatory education.
Regarding the request for assistive technology, while Mr. ‟s testimony was credible and informative, the record does not establish that requires such technology in order to benefit from educational instruction. See Sherman v. Mamaroneck Union Free School District, 340 F.3d 87 (2nd Cir. 2003). As a result, the claim for assistive technology is dismissed.
Therefore, for all the above reasons, it is ordered that:
. The Department of Education shall cause the CSE to reconvene on or before July, 2011 and create an IEP for in accordance with the following guidelines: the recommended program shall include (a) a class size of or fewer students; (b) multi-instruction; (c) individualized instruction; and (d) daily and therapy. These guidelines are minimal and are not meant to exclude other services (educational, transitional, vocational, etc.) that the CSE determines are appropriate. These guidelines do not exclude a deferral to the Central-Based Support Team for a non-public school placement.
2. The Department of Education shall provide with one 0-month school year of compensatory education in accordance with the following guidelines: the educational program shall include (a) a class size of or fewer students; (b) multiinstruction; (c) individualized instruction; and (d) daily and therapy. These guidelines are minimal and are not meant to exclude other services (educational, transitional, vocational, etc.) that the CSE determines are appropriate. These guidelines also do not exclude a deferral to the Central-Based Support Team for a non-public school placement.
3. The parent‟s request for assistive technology is denied. Dated: June , 2011
___________________________
JEAN MARIE BRESCIA, ESQ.
Impartial Hearing Officer JMB: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 3 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
[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, 9/ / 0,[6] pp. B Findings of Fact and Decision, /29/09, 2 pp. C IEP, / /09, 3 pp. D IEP, 2/26/08, 4 pp. E IEP, 3/20/07, pp. F Therapy Evaluation, 3/27/09, 7 pp. G Letter from Dr. , 2/ / 0, p. H IEP Diiploma Memorandum and Attachments, 4/20 0, pp. I Standard Operating Procedures Manuel Excerpt (pages 267-279), Undated,
(*from February 2009 SOPM), 3 pp. J Testing Summary, 6/29/08, 3 pp. K Testing Summary, 8/3/09, 3/ 6/ 0, 3 pp. L / Update, 2/ / 0, pp. M Assistive Technology Evaluation, 4/6/09,[8] pp. N psychological Evaluation, 9/ 8/08, 3 pp. O Subpoena, / 0/ 0, 2 pp. P Evaluation, 4/23/09, pp. Q IEP, /26/06, 0 pp. R IEP, 6/ 0/0 , 0 pp. S Permanent Record, 2008-2009,[2] pp. T Journal Article, Spring 2006,[0] pp. U Journal Article, 2000, pp. V Evaluation, / / ,[7] pp.
DEPARTMENT OF EDUCATION
l Educational Evaluation, 3/20/09,[3] pp.
9 Subpoena Submission, Correspondence, Legal Argument and Decision(s)
3/29/ , 3/28/ , 3/26/ , 3/2 / , 3/24/ , 2 pp.
Correspondence Re. Rebuttal Witness and Hearing Officer Decision,
4/ 3/ , 4/7/ , 3 pp.
2 Correspondence Re: April 26, 20 Hearing Purpose, 4/2 / , 2 pp.
Footnotes
[1] The Department was offered a number of hearing dates in April and given clear warning (which the Department acknowledged) that the hearing would not be continued past April 26 (trans. 7 2-7 3).
[3] The court reporting service was unable to locate a portion of the tape of Dr. ‟s testimony. This testimony involved the end of Dr. ‟s cross-examination and the beginning of her re-direct testimony. The parties cooperated in attempting to stipulate to the content of the missing testimony and were successful with respect to part of that testimony. Dr. was recalled to testify in order to reconstruct that portion of her testimony to which the parties were unable to stipulate (see trans. 8 8-863). Neither the Department nor the parent submitted a proposed summary of Dr. ‟s testimony nor made an offer of proof with respect to that testimony; as a result, any complaints that the reconstructed testimony was not a fair representation of the original testimony are misplaced and unsubstantiated (see trans. 864-867). Furthermore, it is worth noting that the Department did not renew its request to present the testimony of a rebuttal witness even though the hearing officer was required to re-open the record and extend the compliance date in order to reconstruct Dr. ‟s testimony.
[2] - Evaluation , 3/30/09, 3/3 /09, 4/ /09, 4/6/09, 6 pp.
[3] Testing Results , 3/20/09, p. 4 Omitted Omitted
[6] Memorandum, / 9/ , 3 pp.
[7] Due Process Response, / 4/ , 4 pp.
[8] Signed Subpoena, 3/28/ , p.
[0] J. Correspondence Re: Rebuttal Witness, 4/ / , p.