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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: February 14, 2011
March 30, 2011
April 13, 2011
May 12, 2011
May 17, 2011
May 24, 2011
June 7, 2011
June 22, 2011
August 1, 2011
August 24, 2011
Record Close Date: October 11, 2011
Hearing Officer: James McKeever, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 14, 2011
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 30, 2011
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 13, 2011
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 12, 2011
None — Student
Attorney (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 17, 2011
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 24, 2011
Attorney — Student
Parents
Principal (via telephone) — Student
Assistant Principal (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 7, 2011
Attorney — Student
Parents
Asst. Principal, (via telephone) — Student
(via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 22, 2011
Attorney — Student
Grandmother — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 1, 2011
Attorney — Student
(via telephone) — Student
Founder and Director, Coaching (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 24, 2011
Attorney — Student
(via telephone) — Student
Professor of (via telephone) — Student
Attorney — DOE
On the above listed dates, I conducted an impartial hearing regarding the due the process request filed by the student’s grandparent 1 on December 14, 2010. The complaint alleges various violations under the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act during the 2007-2008, 2008-2009 and 2009-2010 school years. At the hearing, the parent confirmed that the IDEA claims were limited to the 2008-2009 and 2009-2010 school years and that the 504 claims were relevant to the 2007-2008 school year. (Tr. 24, 26)
As a result of the alleged violations, the parent is seeking various forms of compensatory services.2
The Department of Education (“DOE”) conceded that a free and appropriate public education (“FAPE”) was not offered to the Student during the 2008-2009 and 2009-2010 school years (Tr. 58). The DOE contends, however, that the deprivation of FAPE in this case does not warrant an award of compensatory services. The DOE also contends that the student’s 504 claims should be limited to December 2007 based on the three statue of limitation under Section 504 and/or dismissed for failure to make out a claim.
is a -year-old boy who was classified as ” by the DOE’s Committee of Special Education (“CSE”) in January 2008 and recommended for a placement. During the 2007-2008 school year, . attended grade at . Sometime in the fall of 2007, . was school. The led to the initial referral to the CSE. did not have a program for . The DOE, however, issued a Nickerson Letter to .’s parent for placement in a state approved school. Nevertheless, . remained at for the entire 20072008 school year. Due to his in this school year, . was removed from his class to a “” . While in the . received academic instruction from the teacher, however, the instruction was not driven by the Individualized Education Program (“IEP”)
During the 2008-2009 and 2009-2010 school years, . attended in a 1 program. In October 2010, moved to .
1
The Student’s grandparent who will be referred to as “parent’ for purposes of this decision
The parent’s request for reimbursement for IEE’s was withdrawn at the hearing. IDEA Statutory Framework:
The IDEA was enacted "to ensure that all children with disabilities have available to them a [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). It requires all states and the District of Columbia to provide resident children with disabilities a FAPE designed to meet their unique needs. Id. § 1412(a)(1).
The IDEA aims to guarantee children with disabilities a FAPE by requiring states and the District of Columbia to institute a variety of detailed procedures. "'[T]he primary vehicle for implementing'" the goals of the statute "'is the [IEP], which the [IDEA] mandates for each child.'" Harris v. District of Columbia, 561 F. Supp 2d 63, 65 (D.D.C.
2008) (citing Honig v. Doe, 484 U.S. 305, 311-12 (1988)). An IEP is a written statement that includes, among other things: (i) a statement of the child's present levels of academic achievement and functional performance; (ii) a statement of measurable annual goals, including academic and functional goals; (iii) a description of the child's progress in meeting those goals; (iv) a statement of the special education and related services and supplementary aids and services to be provided to the child; and (v) an explanation of the extent, if any, to which the child will not participate with nondisabled children in any regular classes. Id. § 1414(d)(1)(A)(i). An "IEP Team" -- which consists of the parents of the child with disability, not less than one regular education teacher of the child (if applicable), not less than one special education teacher or provider of the child, and a representative of the local education agency -- is charged with developing, reviewing, and revising a child's IEP. See id. § 1414(d)(1)(B) (defining an IEP Team). Because the IEP must be "tailored to the unique needs" of each child, Bd. of Educ. v. Rowley, 458 U.S. 176, 181 (1982), it must be regularly revised in response to new information regarding the child's performance, behavior, and disabilities, and must be amended if its objectives are not met. See, 20 U.S.C. §§ 1414(b)-(d). In order to be sufficient to confer a FAPE upon a given child, an IEP must be "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207. Each local educational agency is required to have an IEP in effect for each child with a disability in the agency's jurisdiction at the beginning of each school year. 20 U.S.C. § 1414(d)(2)(A).
The IDEA requires that children with disabilities be placed in the "least restrictive environment" so that they can be educated in an integrated setting with children who are not disabled to the maximum extent appropriate. See § 1412(a)(5)(A). The IDEA also guarantees parents of disabled children the opportunity to participate in the evaluation and placement process. See §§ 1414(f), 1415(b)(1).
Finally, Impartial Hearing Officers have broad discretion to grant such relief as they deem appropriate. See, U.S.C. 1415(i)(2)(C)(iii). Statute of Limitations for 504 claims: Statute of Limitation (SOL) for IDEA claims:
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)
The hearing record indicates that the parent’s IDEA claims were limited to the 2008-2009 and 2009- 2010 school years. The due process complaint was filed on December 14, 2010. As such, I find that the 2008-2009 and 2009-2010 school years are within the . The parent’s request for a tolling of the for the IDEA claims to cover the 2007-2008 school year is denied as the record is devoid of any facts to support an exception to the two year time limitations. Additionally, the parent advised on the record that the IDEA claims were limited to the years that were within the . Compensatory Educational Services for a Deprivation of FAPE for 2008-2009 and 20092010 school years:
The DOE concedes that the student was denied of FAPE with respect to 20082009 and 2009-2010 school years. However, the DOE contends that compensatory services are inappropriate in this case. The parent requests the following compensatory services:
1. tutoring services at not to exceed 1,080 hours at a rate of $ per hour;
2. Funding “ ”, an computer at a cost of $
3. 360 hours of services through a related service authorization or a market rate provider;
4. 60 hours of services through a related service authorization or a market rate provider;
5. An award of $ for services in the event an evaluation determines that the student need services; and
6. An Unit;
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]).
In June 2011, Dr. , a , evaluated . Dr. reported that . is significantly below grade level in all academic areas and that his academic skills are poor in comparison to his intellectual potential. Dr. also diagnosed . with a , . Although Dr. reported that . was performing well in his current placement, Dr. opined that . needed in math, writing, , and an program to make up for the services that in the school years.
The amount of services in each of these areas is at issue. With respect to and services, the parent called , a , who recommended and going forward. Dr. ’s initial report did not include an evaluation for “make up” compensatory services. Although Dr. submitted an addendum to her report later in the hearing process, after the parent’s attorney contacted her, and recommended a specific amount a make up services, the record shows that Dr. did not review and/or any additional information concerning . before writing the addendum. As such, I find the addendum is unreliable and I will not consider it as part this decision. However, based on Dr. ’s recommendation of and going forward, and the evaluation of Dr. , who also diagnosed . with a significant and , I find that and are warranted. Because the record is insufficient to make a finding that the requested 360 hours of services is appropriate to address .’s deficits and/or make up for the services that DOE did not provide during the subject school years, the DOE is directed to fund an independent evaluation, at a cost not to exceed $ to ascertain the appropriate amount of make up services for . Once the evaluation is complete, the parent shall submit the evaluation to the CSE and the DOE shall issue Related Services Authorization’s (“RSA”) for the recommended services.3
With respect to , Dr. reported that requires (“ ”) to address his and skills. The record shows that the DOE failed to provide with services during the second half of 2007-2008 school year. For the 6 months (approximately), that should have received , and didn’t, I find that the parent’s request for 60 of compensatory services is appropriate. As such, the DOE shall issue an RSA for same.
With respect to tutoring services, the parent called Dr. , of coaching, who recommended that receive of make up, services. Dr. testified that she assessed in May 2011 using the for math, reading and spelling and the . Dr. also conducted the to assess ’s reading skills. Dr. found that was several years behind in all academic areas, which is supported by Dr. ’s evaluation. As such, I find that compensatory educational in and instruction is appropriate. I also find that Dr. ’s recommended amount of service, although not listed in her report, is not unreasonable. Accordingly, the parent’s request for these services is granted. The DOE shall issue a P3 letter for tutoring services.
Services:
The parent’s request for services is denied. There is no evaluation in evidence and nothing is the record supports a finding that a $ bank of services is appropriate.
Unless the parties agree to an amount. Funding “ ” and an “ ” unit.
The parent’s request for funding for an at a cost of $ and for an unit is denied. The record shows the has made significant gains in his current placement and that he is deriving a meaningful educational benefit without these services. Again, nothing in the record suggest that requires a “ ” computer and “ ” unit to access his education. Section 504 Claims:
A claim under Section 504 requires a finding that: (1) the student is disabled; (2)the student is qualified to participate in school activities; (3) the school receives federal financial assistance and (4) the student was excluded from participation in and/or denied benefits or subjection to discrimination based on his disability.
Here, he record shows that was often excluded from his classroom and brought to the “Save Room” during the 2007-2008 school year as a result of his behavior issues in the classroom. Although the record shows that received instruction while in the , the record shows that it was not driven by his IEP.[4] I find that DOE’s actions in this regard were inappropriate. However, the record does not support a finding of gross negligence or intentional discrimination (Bartlett v. N.Y. State Bd. Of Law Examiners, 156 F.3d 321 (2nd Cir 1998). As such, the parent’s claims under Section 504 are dismissed. 5
Because the parent’s 504 claims were dismissed, I need not address the parent’s request to toll ’s 504 claims back to September 2007. Nor will I address the parent’s request for an adverse inference regarding the DOE’s failure to provide ’s discipline records for 2007-2008 school year.
ORDERED
The Department of Education is directed to issue a P3 letter for tutoring services to be used over a three-year period.
The Department of Education is directed to issue an RSA for 60 hours of OT services to be used over a two-year period.
The Department of Education is directed to fund an independent and evaluation, at a cost not to exceed $ to ascertain the appropriate amount of make up and services for student. Once the evaluation is complete, the parent shall submit the evaluation to the CSE and the DOE shall issue RSA’s for the recommended services. Dated: October 13, 2011
_______________________________
JAMES MCKEEVER, ESQ.
Impartial Hearing Officer
JM:dl
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 ON MARCH 30, 2011
PARENT
A. Impartial Hearing Request, 12/14/10, 6 pages
B. Due Process Response, 12/21/10, 5 pages
C. IEP, 3/18/10, 14 pages
D. IEP, 1/12/10, 13 pages
E. IEP, 9/11/08, 15 pages
F. IEP, 1/3/08, 16 pages
G. Notice of IEP Meeting, 12/21/10, 1 page
H. Report Card Grade, 6/22/10, 2 pages
I. Report Card Grade, September 2007 – June 2008, 2 pages
J. Letter, 12/11/09, 1 page
K. FNR, 11/13/08, 1 page
L. Authorization to Attend, 11/13/08, 1 page
M. Final Notice Changer Program, 9/3/08, 1 page
N. Authorization to Attend, 9/3/08, 1 page
O. Notice of Meeting, 9/4/08, 1 page
P. Request for Assessment, 9/7/08, 1 page
Q. Social History, 11/13/07, 1 page
R. Notice of Referral, 11/5/07, 1 page
S. Request for Evaluation, 11/23/07, 1 page
T. Evaluation, 12/20/07, 7 pages
U. Printout, Various Dates, 11 pages
V. Initial Referral, July 2006, 4 pages
W. Questionnaire-Child School, 3/13/10, 2 pages
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 17, 2011
PARENT
None
DEPARTMENT OF EDUCATION
1 DOE Motion to Dismiss, 4/13/11, 14 pages 2 P-1 Nickerson Letter, 4/7/08, 1 page 3 Evaluation, 1/20/11, 3 pages 4 Evaluation, 4/14/08, 5 pages
DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 7, 2011
PARENT
X. Commissioner Regs Part 201, Undated, 15 pages
Y. Commissioner Regs A710, Undated, 15 pages
Z. Chancellor Regs A443, Undated, 93 pages
AA. Letter , 5/25/11, 1 page
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 1, 2011
PARENT
BB. Evaluation, 6/15/11
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 24, 2011
PARENT
CC. Addendum to Evaluation, 8/2/11, 1 page
DD. Evaluation 6/2/11, 15 pages
DEPARTMENT OF EDUCATION
None
Footnotes
[4] At least after January 2008 when he was first classified.