NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
AMENDED FINDINGS OF FACT AND DECISION
Case Number:
Student‟s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: July 11, 2011
September 26, 2011
Actual Record Close Date: December 2, 2011
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 11, 2011
Attorney — Student
Attorney — Student
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 26, 2011
Attorney — Student
Attorney — Student
Parents
Provider (via telephone) — Student
District Representative — DOE
— DOE
I. PROCEDURAL HISTORY
This hearing was requested on May 3, 2011 by counsel for the student and the parents pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401, et. seq. The primary issues to be determined at this hearing are whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parent for costs associated with private tutoring services provided to the student and whether equitable make-up services should be ordered to compensate for public services to which the student was unlawfully deprived (Ex. P-A at 2,8).[1] I was appointed by the DOE to hear this matter on May 4, 2011. In a due process response dated May 22, 2011, the DOE denied each and every allegation contained in the parent‟s due process complaint (Ex. P-T). In a letter dated June 5, 2011, I advised the parties of their rights and obligations under the New York Education Law and the Regulations of the Commissioner of Education of the State of New York (Ex. IHO-I). A pre-hearing conference was held on June 7, 2011 with the parties to clarify the issues and select dates for the hearing (Exs. IHO-I at 2, IHO-II). See 8 NYCRR § 200.5(j)(3)(xi). Hearings in this matter were held on: July 11, 2011 and September 26, 2011.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
II. FACTUAL BACKGROUND
At the time of the September 26, 2011 impartial hearing in this matter, the student was ) year old student attending the grade at the School in (Ex. P-A).3
At approximately years of age, the student began attending the School. Soon after this enrollment, the student‟s in a construction accident and the student reportedly “suddenly after she had just and able to .” By the time she was ) years old, some of the student‟s improved and she was able to and demonstrate although she remained . When the student attended an at School, there were no concerns expressed to the parent about learning abilities, although the student was still and (Exs. P-Q at 2-3, P-P at 1).
Due to deficits, the student was initially referred for an evaluation to the DOE‟s Committee on Education (“ ”) by the School. Obtained results using the Stanford-Binet - Fourth Edition, placed the student‟s cognitive functioning within the average to range. skills were said to be “ .” On the Vineland Adaptive Behavior Scales, the student‟s adaptive skills were found to be range. and was recommended for the student following an evaluation in that domain (Ex. P-S at 1).
In , it was reported to the parent that the student continued to be and and would often respond to questioning by putting her head down or nodding her head and smiling (Ex. P-Q at 2-3).[4]
In (the 2000/01 school year), the same behavior was exhibited, particularly with and non-involved behavior (Ex. P-Q at 2-3).
In (the 2001/02 school year), the parent reported that the student was getting by and there were no alerts to suggest the possible need for an educational evaluation (Ex. P-Q at 2-3).
In (the 2002/03 school year), some of the ongoing problems with withdrawal continued to exist. The student also demonstrated difficulty at this time with acquiring basic sight vocabulary, developing phonemic awareness and letter-sound connections. The student had difficulty with simple words such as: “the,” “to,” and “at,” but would know more difficult words. The suggestions made by school staff at that time section 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage. 8 NYCRR § 200.1(zz)(6).
were for the student to do additional reading at home (Ex. P-Q at 3).
When the student was in (the 2003/04 school year), tutoring was suggested (presumably by the staff at ) to help the student with reading difficulties. The student received two (2) hours of tutoring, three (3) times per week, after class and during the summer. Notwithstanding this tutoring, the student‟s performance still remained inconsistent. For example, the student would exams of material she studied and knew the night before (Ex. P-Q at 1, 3).
During the student‟s (the 2006/07 school year), the student continued to struggle with reading comprehension and phonemic awareness, particularly in social studies, despite the presence of additional educational supports, including tutoring. The student also demonstrated difficulty with retrieving information from texts for learning and retention. The student‟s math skills, in contrast, were an area of relative (Exs. P-Q, P-P at 1).
The student was evaluated at (located at ) (the “ on January 21, 2007. The student performed below grade level in all academic areas during the evaluation. After the testing, the student began an individualized instructional program at the which focused on phonics, vocabulary, reading, writing and math. The student received 170 hours of instruction through September, 2007 (Exs. P-Q at 4, P-S at 1).
The student‟s levels of functioning were reevaluated by the DOE‟s Committee on Special Education (the “CSE”) in the spring of 2007. A social history was taken on March 19, 2007, during which the parent received notice of her procedural safeguards which were reviewed with her at that time. After that review, the parent provided her informed written consent for the student‟s reevaluation by the CSE (Exs. P-Q at 4, P-S at 1).
On an April 20, 2007 psycho-educational evaluation, the student‟s overall cognitive functioning (as measured by the WISC-IV) was determined to be in the range (Full Scale IQ although a significant variance was noted between the student‟s average verbal comprehension score ) and her perceptual reasoning score
(96) (Exs. P-P at 2-4, 7, P-R at 4, P-S at 1).
The student‟s educational achievement was assessed during the same evaluation using the Woodcock-Johnson III. The student scored grade level on mathematical skills. In verbal areas, however, the student scored grade level only on reading comprehension ( Auditory memory ( ), spelling ( ) and letter-word identification (GE ) all measured her then grade equivalence. Based on the data yielded from the evaluation, the school psychologist who conducted the testing stated that the student would benefit from a structured classroom with a positive reinforcement program, a reading evaluation and counseling (Exs. P-P at 2, 5, 7, 9, P-R at 4, P-S at 1).
The CSE convened on May 9, 2007 to review the student‟s individualized education program (the “IEP”) and recommend a program for her for the 2007/08 school year (her grade). The CSE classified the student as one with a or impairment but recommended that she receive all of her instruction in a general education setting. The student‟s general education instruction was to be supported by individual therapy, three (3) times per week for thirty (30) minutes per session. The student continued to attend during her grade year and received her recommended therapy at in . (Exs. P-J at 1-2, P-R at 1-2, 6, 8, P-S at 1).5
In or around February 2008, the parent discontinued the student‟s given the student‟s “minor gains” and inability “to generalize her skills in the classroom setting, especially during testing situations.” The student continued to participate, however, in an after school academic program at the . In a March 4, 2008 letter, Ms. , the student‟s grade teacher at , stated that the student‟s struggled with , but that was an area of relative strength. Ms. saw “enormous improvement” in the student‟s academic abilities after she was enrolled (during the grade) in the . In her professional opinion, the student‟s disability was more than a and had not been adequately addressed through therapy (Exs. P-G at 2, P-H, P-J at 2, P-S at 1).
The student was reevaluated in the spring of 2008 due to academic concerns. In a means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student‟s educational performance. 8 NYCRR § 200.1(zz)(11).
March 10, 2008 related service student progress report, the student‟s therapist stated that the student had made “ toward increasing her language skills” despite having “difficulty maintaining attention and continually requiring redirection to attend to a structured task.” With respect to the student‟s future program, the therapist stated:
It is my recommendation that a reading specialist will better help to serve [the student‟s] needs and enable her to meet her IEP goals. Additionally, after school intervention services such as tutoring, will benefit [the student] and improve her overall academic skills (Ex. P-G at 2).
In a May 15, 2008 WISC-IV interpretive report, it was noted that student‟s overall measured in the average range ( with the student‟s abilities ( better developed than her abilities ( Academically, the student‟s performance, as measured by the Woodcock-Johnson III, was in reading, mathematics, math calculation, and written language, but was in written expression (Exs. P-N at 3, P-S at 3-4).
The CSE reconvened on July 30, 2008 to review the student‟s IEP and recommend a program for her for the 2008/09 school year (her grade). The CSE continued to classify the student as one with a and to recommend individual therapy, three (3) times per week for thirty (30) minutes per session. The CSE also recommended, however, that the student receive five (5) periods per week in a separate location (Exs. P-B, PN at 1-2, 15, 17).
The CSE reconvened on September 23, 2009 to review the student‟s IEP and recommend a program for her for the 2009/10 school year (her grade). The CSE continued to classify the student as one with a and to recommend individual therapy, three (3) times per week for thirty (30) minutes per session, and
(5) periods per week in a separate location (Exs. P-C, P-M at 1-2, 9, 11).
The CSE reconvened on October 7, 2010 to review the student‟s IEP and recommend a program for her for the 2010/11 school year (her grade). The CSE changed the student‟s classification from to .[6] While the CSE discontinued its recommendation of individual therapy for the student (at the urging of the parent), it continued to recommend that she receive five (5) periods per week in a separate location (Exs. SD-1 at 1-2, 8, 10, SD-3).
III. POSITIONS OF THE PARTIES
A. The Parent
The student is entitled to reimbursement for private tutoring services obtained, and entitled to equitable make up services, following the DOE‟s failure to implement recommended services to the student. The provided the student with individualized instruction to meet the student‟s unique learning needs. Equitable considerations support the parent‟s reimbursement claim. The parent is also entitled to reimbursement of transportation costs. The hearing officer should also order payment for a full set of independent evaluations (R. 98-104; Exs. P-A, IHO-III).
B. The DOE
The parent‟s claims concerning the 2007/08 and 2008/09 school years should be time barred based on the applicable statute of limitations. The DOE developed an individualized education services plan (“IESP”) for the student for the years at issue which offered her educational services equivalent of those to which she would have otherwise received in a public educational setting. The parent‟s claims for compensatory additional services should be denied because the parent failed to secure from an approved provider following CSE approval for that service (R. 69-77; Ex. IHO-IV).
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, 20 U.S.C. § 1400-1482, are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.[7] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
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. See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student‟s right to a FAPE; (b) significantly impeded the parents‟ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).
The IDEA directs that, in general, an impartial hearing officer‟s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 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 Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. 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 Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is „likely to produce progress, not regression,‟ and . . . affords the student with an opportunity greater than mere „trivial advancement.‟” Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). The IEP must be “reasonably calculated to provide some „meaningful‟ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.
The student‟s recommended program must also be provided in the least restrictive environment (the “LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(I), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student‟s needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).
B. Statute of Limitations
The IDEA was amended in 2004 with an effective date of July 1, 2005. The
IDEA 2004 amendments added an explicit limitations period for filing a due process hearing request and also added explicit accrual language. IDEA 2004 requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within two (2) years of when the party knew or should have known of the alleged action that forms the basis of the complaint. See 20 U.S.C. § 1415(f)(3)(C); see also 20 U.S.C. § 1415(b)(6)(B); N.Y. Educ. Law § 4404(1)(a); 8 NYCRR § 200.5(j)(i). An exception to the timeline to request an impartial hearing applies if a parent was prevented from filing a due process complaint notice due to a “specific misrepresentation” by the district that it had resolved the issues forming the basis for the due process complaint notice or the district withheld information from the parent that the district was required to provide. See 20 U.S.C. § 1415(f)(3)(D)(ii); 34 C.F.R. § 300.511(f); 8 NYCRR § 200.5(j)(1)(i).
I find that the parent‟s claims for the 2007/08 and 2008/09 school years are not barred by the relevant statute of limitations. Typically, the first step in establishing whether the parent‟s claims are time barred is to determine when the parent‟s claims accrued. Here, the DOE has failed to establish when the parent knew, or should have known, that she possessed a claim on the timely implementation of the CSE‟s recommendations for for the student. Additionally, while there is evidence in the record that a DOE social worker reviewed procedural safeguards with the parent during a March 19, 2007 social history, see 8 NYCRR § 200.5(f), the DOE has failed to establish that this review included notice to the parent of the relevant statute of limitations (Exs. PQ at 4, P-S at 1).
C. Tuition Reimbursement
A board of education may be required to reimburse parents for private educational services obtained for a student, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate and equitable considerations support the parents‟ claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 369 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to private schools for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427 (S.D.N.Y. 2011); Connors v. Mills, 34 F. Supp. 2d 795, 805-806 (N.D.N.Y. 1998).
1. DOE‟s proposed program
At the hearing, the DOE conceded the first criterion of the Burlington/Carter analysis, thereby acknowledging that it failed to offer the student a FAPE for the 2007/08, 2008/09, 2009/10 and 2010/11 school years (R. 71, 77). Accordingly, I find in the parent‟s favor on this issue.
2.
Having failed to offer the student a FAPE, I turn to the appropriateness of the services the parent privately obtained for the student. With respect to the second criterion for an award of reimbursement, the parent must show that the private services obtained for the student were appropriate to meet her special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student‟s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, „the same considerations and criteria that apply in determining whether the [s]chool [d]istrict‟s placement is appropriate should be considered in determining the appropriateness of the parents‟ placement.‟” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student‟s potential. See Frank G., 459 F. 3d at 364-65. When determining whether the parent‟s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides „education instruction specifically designed to meet the unique needs of a handicapped child.‟” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89.
Based on my review of the hearing record, I find that the provided the student with specifically designed instruction to address her unique learning needs and that the student demonstrated progress while attending that program. From January 21, 2007 through September 30, 2007, the student received 170 hours of individualized instruction at the which focused on phonics, vocabulary, reading and math (Exs. P-H, P-I). As a result of this individualized instruction, Ms. (the student‟s grade teacher at ) noted an “enormous improvement” in the student‟s academic abilities, her attitude and her confidence (Ex. P-H). After eight (8) months of instruction at the , the student‟s vocabulary skills improved to the percentile from the percentile and her t comprehension skills improved to percentile from the percentile, as measured by the California Achievement Test (Ex. P-I).
3. Relevant Equities
I now turn to the issue of whether equitable considerations, e.g., notice, cooperation and reasonableness of cost, favor an award of tuition reimbursement. The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 U.S. App. LEXIS 20967 (2d Cir. Aug. 9, 2006). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
I find that there are no equitable reasons for limiting reimbursement of the costs associated with the tutoring delivered to the student between January 21, 2007 through September 30, 2007. As the parent did not remove the student from public educational programming in order to have the student receive tutoring from the I find that the IDEA‟s prior notice requirement, see 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1), to be inapplicable to the facts of this case. The student has consistently attended , a non-public school, since her (the 2000/01 school year) (Ex. P-Q at 2-3). For the time period at issue, the provided tutoring to the student after school and over the summer months, which did not interfere with the student‟s receipt of instruction in a general education setting (Exs. P-H, P-I, P-Q at 1-2).
No evidence has been offered by the DOE that the parent was uncooperative in its efforts to develop IEPs for the student or that the costs associated with the tutoring of the student between January 21, 2007 and September 30, 2007 were unreasonable.
D. Dual Enrollment Services
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs. See 20 U.S.C. § 1412(a)(1)(A); N.Y. Educ. Law §§ 4402(2)(a), (b)(2). However, the IDEA confers no individual entitlement to special education or related services to student who are parentally placed in nonpublic schools. See 20 U.S.C. § 1412(a)(10). Although boards of education are required by the IDEA to provide some special education services to some students enrolled privately by their parents in nonpublic schools, no such students are individually entitled under the IDEA to any or all of the services they would receive if they were enrolled in a public school. See 20 U.S.C. §§ 1412(a)(10), (a)(3)(A); 34 C.F.R. § 300.137(a), 138(a)(2); see also Analysis of Comments & Changes to 34 C.F.R. Parts 300 & 301, 71 Fed. Reg. 156 at 46,597 (Aug. 14, 2006).
In contrast to the IDEA, New York Education Law § 3602-c, known as the dual enrollment statute, requires that school districts provide special education programs on an equitable basis to students with disabilities who are enrolled by their parents in nonpublic schools. See N.Y. Educ. Law § 3602-c(2)(b)(1); Board of Educ. of the Bay Shore Union Free Sch. Dist. v Thomas K., 14 N.Y.3d 289, 293 (2010).[8] That statute also provides that “pupils enrolled in nonpublic schools for whom services are provided pursuant to the provisions of this section shall receive such services in regular classes of the public school and shall not be provided such services separately from pupils regularly attending the public schools.” N.Y. Educ. Law § 3602-c(9). The request for such services is to be filed with the board of education on or before the first day of June preceding the school year for which the request is made. See N.Y. Educ. Law § 3602-c(2).
In Board of Education of Monroe-Woodbury Central School District v. Wieder, 72 N.Y.2d 174 (1988), the Court of Appeals determined that the dual enrollment statute requires neither that educational services be provided at a student‟s nonpublic school, nor that they be provided at the public school. Rather, the Court recognized that where the services must be provided should be determined based upon the child‟s “individual education needs in the least restrictive environment.” See Wieder, 72 N.Y.2d at 188.
It is undisputed that, during the 2008/09, 2009/10 and 2010/11 school years, the student was a classified student with a disability voluntarily enrolled by her parent in a non-public school, i.e., (Exs. P-A, P-B, P-C, P-G, P-H, P-I, P-J, P-M, P-N, P-S, P-T). The DOE offered no evidence at the hearing that it had consulted with representatives of to design and develop special education and related services for the student or that representatives of were included in meetings in which IESPs for the student were developed. See VESID Guidance Memo at 4. For each of these school years, however, the CSE recommended that the student receive , five (5) hours per week, which was consistent with the March 10, 2008 opinion of the student‟s therapist (Ex. P-A, P-
9 B, P-C, P-G at 2, P-M, P-N).
9 As the DOE argued at the hearing that its IEPs for the student for the 2008/09, 2009/10 and 2010/11 school years also represented its IESPs for the student for those school years, any argument that the parent
Although Section 3602-c of the Education Law clearly states that the school district of location is responsible to provide special education services pursuant to the IESP developed for each eligible student, see N.Y. Educ. Law §§ 3602-c(2)(b)(1), (9), the parent offered credible testimony that the CSE required the parent to secure which the CSE had recommended for the student for the school years at issue (R. 127, 132-136, 138, 142-143, 165-166, 176-177; Exs. P-A, P-D, P-E, IHO-III). As a result of logistical difficulties encountered by the parent in finding available DOE-approved providers, the student was repeatedly denied recommended for multiple school years (R. 127, 154-157, 136, 138-139, 143-144; Exs. P-A, IHO-III). I therefore find, that this transfer of responsibility for the provision of special education services from the CSE to the parent, was clearly inconsistent with Section 3602-c of the Education Law and unlawful.
E. Additional Services
State Review Officers have awarded compensatory “additional services” to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See, e.g., Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep‟t 2005). An award of additional services, however, must be predicated on a determination that there was a denial of FAPE to the student. See Application of a Student with a Disability, Appeal No. 11-032 at 26 (SRO June 6, 2011).
Given the DOE‟s concession on the first criterion of the Burlington/Carter analysis, it has acknowledged that it failed to offer the student a FAPE for the 2007/08, 2008/09, 2009/10 and 2010/11 school years (R. 71, 77). Additionally, as noted above, I have found that the student was repeatedly denied recommended for multiple school years because the CSE unlawfully transferred to the parent its responsibility to provide special education and related services to the student (R. 127, 154-157, 136, 138139, 143-144; Exs. P-A, IHO-III).
failed to make a timely request dual enrollment services for the school years at issue is deemed waived (R. 69-77; Ex. IHO-IV).
I find that this deprivation of instruction can be remedied through the provision of additional services to the student by the before the student becomes ineligible for instruction by reason of age or graduation. Ms. , Director of the , credibly testified that all teachers are certified in teaching and have teaching experience (R. 227). Additionally, teachers participate in curriculum and record keeping training sponsored by the (R. 228). The student has previously been paired with teachers certified to provide instruction to middle school and high school-aged adolescents (R. 238, 252). The uses a multisensory, data-driven curriculum and crafts individualized programs narrowly tailored to meet the needs of each student (R. 228-230). The student has previously demonstrated academic progress when receiving tutoring services from the
(R. 230, 232, 245; Exs. P-I, P-H, P-J, P-O).
F. Adequacy of Evaluations
A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student‟s parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR §§ 200.4(b)(4), 200.16(d)(5), however, a school district need not conduct a reevaluation more frequently than once per year unless the parent and the school district otherwise agree and at least once every three (3) years unless the district and the parent agree in writing that such a reevaluation is unnecessary, see 8 NYCRR §§ 200.4(b)(4), 200.16(d)(5); see also 34 C.F.R. §§ 300.303(b)(1)-(2). Additional evaluations or assessments may be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).
Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student‟s IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments and may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR §§ 200.4(b)(6)(x), 200.16(d)(5).
A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. See 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR §§ 200.4(b)(6)(vii), 200.16(d)(5). An evaluation of a student must be sufficiently comprehensive to identify all of the student‟s special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified. See 34 C.F.R. § 300.304(c)(6); 8 NYCRR §§ 200.4(b)(6)(ix), 200.16(d)(5). Among the other elements of an IEP is a statement of a student‟s academic achievement and functional performance and how the student‟s disability affects his or her progress in relation to the general education curriculum. See 20 U.S.C. § 1414(d)(1)(A)(i)(I); 34 C.F.R. § 300.320(a)(1); 8 NYCRR §§ 200.1(ww)(3)(i), 200.4(d)(2)(i).
In developing the recommendations for a student‟s IEP, the CSE or CPSE must consider the results of the initial or most recent evaluation; the student‟s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student‟s performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations. See 34 C.F.R. § 300.324(a); [8] NYCRR §§ 200.4(d)(2), 200.16(d)(5).
While I find that the CSE has failed to conduct a reevaluation of the student‟s levels of educational functioning since May of 2008, see 34 C.F.R. §§ 300.303(b)(1)-(2);
IT IS HEREBY ORDERED THAT:
(1) Within thirty (30) days of its receipt of adequate proof-of-payment, the DOE shall reimburse the parent for 170 hours of instruction provided to the student by the between January 21, 2007 through September 30, 2007;
(2) The DOE shall fund 350 hours of tutoring of the student by the , at a rate of /hour, and registration and assessment fees of $ as compensatory additional services;
(3) The DOE shall provide the student with transportation to and from the for her receipt of tutoring services; and
(4) Within 30 days of its receipt of this Order, the CSE shall commence a comprehensive reevaluation of the student. The determination of needed evaluation or assessment data for this reevaluation shall be made by the CSE in accordance with the procedures set forth at 8 NYCRR § 200.4(b). Amended decision Dated: December 27, 2011
Original Decision Rendered: December 19, 2011
_____________________________
Impartial Hearing Officer
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 JULY 11, 2011
PARENT
A Impartial Hearing Request/Due Process Complaint, 5/3/11, 10 pp. B Minutes from CSE Meeting, 7/30/09, 1 p. C Minutes from CSE Meeting, 9/23/09, 1 p. D [Reserved] E NYC DOE SETSS Provider Registry, 12/2010, 26 pp. F [Reserved] G [Reserved] H [Reserved] I Letter from ( ), 4/11/08, 1 p. J Psychosocial Report, 5/13/08, 3 pp.. K Evaluation, 11/26/10, 3 pp. L [Withdrawn] M IEP, 9/23/09, 12 pp. N IEP, 7/30/08, 17 pp. O , General Enrollment Center Contract, 4/29/11,[1] p. P Evaluation, 4/20/07, 9 pp. Q Social History, 3/19/07 R IEP, 5/9/07, 16 pp.. S WISC-IV Interpretive Report, 5/15/08,[4] pp. T NYC DOE Due Process Response, 5/22/11,[3] pp.
DEPARTMENT OF EDUCATION
2 [Withdrawn]
I Letter to Parties from IHO, 6/5/11, 5 pp. II Letter to Parties from IHO, 6/7/11, 2 pp.
DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 26, 2011
PARENT
D Approved BOE Providers, undated, 1 p. F Score Report, 2010, 2 pp. G Related Service Student Progress Report, 3/10/08, 2 pp. H Letter from , 3/4/08, 1 p.
DEPARTMENT OF EDUCATION
3 Letter to CSC Committee from mother, 10/7/10, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
IMPARTIAL HEARING OFFICER
III Parent‟s Closing Statement & Memorandum of Law, 10/31/11, 21 pp. IV DOE‟s Closing Statement, 10/31/11, 3 pp. V Confirmation of Extension, 7/20/11, 1 p. VI Confirmation of Extension, 8/17/11, 1 p. VII Confirmation of Extension, 9/16/11, 1 p. VIII Confirmation of Extension, 9/26/11, 1 p. IX Confirmation of Extension, 11/16/11, 1 p.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.” The pendency component of the parent‟s due process complaint notice was withdrawn (R. 105-108; Ex. P-A at 7-8
[2] The parties moved to extend the case compliance date in this matter several times during the course of the hearing. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their respective positions in accordance with the requirements of due process justified the delay in the resolution of the matter. Accordingly, requests for extensions of the compliance date were granted due to the availability of witnesses and the extensive testimony and issues presented in this proceeding (R. 90-91, 262-271; Exs. IHO-V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX). means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell or to do mathematical calculations, as determined in accordance with
[4] is a dual language school (English/ in where the student has been educated for all times relevant to this proceeding (Ex. P-Q).
[6] It appears from the October 7, 2010 IEP that this change in the student‟s classification to learning disabled occurred without an individual evaluation or adherence to the procedures set forth in Section 200.4(j) of the Regulations of the Commissioner of the State of New York (Exs. SD-1, P-A).
[7] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[8] See also Office of Vocational and Education Services for Individuals with Disabilities (VESID) guidance memorandum dated September 2007 titled “Chapter 378 of the Law of 2007 - Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c”.
[8] NYCRR § 200.4(b)(4), I decline to order an independent educational evaluation (“IEE”) at public expense because the hearing record does not indicate that the parent disagreed with an evaluation obtained by the school district as required by federal and State regulations that govern when a parent is entitled to an IEE at public expense, see 34 C.F.R. §§ 300.502(a), (b); 8 NYCRR § 200.5(g)(1); R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d 222, 234-235 (D. Conn. 2005); Application of a Student with a Disability, Appeal No. 11-001 (SRO Feb. 23, 2011). V. ORDER NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
[1] IEP, 10/7/10, 12 pp.
[3] [Reserved]
[4] P4- Authorization, 9/19/10, 1 p. IMPARTIAL HEARING OFFICER