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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: November 15, 2011
December 19, 2011 Actual Record Close Date: January 5, 2012 Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 15, 2011
Service Coordinator — Student
Parents
Interpreter — Student
CSE District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 19, 2011
Service Coordinator. — Student
Parents
Interpreter — Student
CSE District Representative — DOE
Attendance Teacher (via telephone) — DOE
INTRODUCTION
This hearing was requested on June 16, 2011, by of student . The hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act (IDEIA) §§ 1415(f) & 1412 (a) (10)(C), to receive compensatory services for services and home instruction that Student did not receive. I was appointed to hear the matter by the Department of Education of the City of New York [Hereinafter referred to as “the District”.] on June 16, 2011, and a hearing was scheduled for August 26, 2011 The District requested three separate adjournments of this matter due to availability of witnesses and a staff training day.
The hearing commenced on Tuesday November 15 , at 1:36 in the p.m., and continued on December 19, 2011 at 1:45 in the p.m. pursuant to the IDEIA 20 U.S.C. §1415 (f). Appended to the record are lists of the persons in attendance at the hearing and the Documents received into evidence.
BACKGROUND
Student has been on for approximately the past five years in a predominantly –speaking household. Student was classified as ( ). Student is and , , and suffers from ( ), , , , and . Student is for and needs and . In addition, student has in . Student turned of age as of .
The last CSE for the Student was held on March 20, 2007, from which an IEP was created. (Parent’s Exhibit A).
The IEP indicates that it is a CSE Triennial review. Student was recommended a 12 month school year special class in a special school\district with related services and staffing ratio of Other recommendations included program accessibility related services adaptive physical education assistive technology bilingual instruction in and special education transportation in an ambulance with students registered nurse in attendance. The IEP also indicates (Parents Exhibit A. Two) no change in program or services for student. In attendance at the CSE meeting was parent, a district representative, school psychologists and a special education teacher. The IEP recommended related services of: therapy given in 1x30 x 1, therapy given in 1 x 30 x2, given in English 3x30x1, given in English 3x30x1. Services
( an full time daily , , given in English 2x30x1. A transition plan and services were also recommended for student. It is interesting to note that except for pages A1 and A2, all of the pages of this IEP are dated November 10, 2006 which has been written over or crossed out with a handwritten March 20, 2007 in its place.
Parent testified that student’s last day in attendance at public school was January 26, 2007. The district brought no witnesses to testify to the 2007 IEP, no witnesses, nor evidentiary documents regarding services actually provided to student and admitted that no IEP had been created for student since March 20, 2007. (Tr. p. 32 at 1-10).
The resolution Compliance date for this matter was July 15, 2011. On July 20, 2011, I telephoned both the district and the parent and left messages for both in an attempt to schedule this matter. Having not heard from either party, on August 1, 2011, I telephoned the district, only to learn that the district representative , no longer worked for the district and I spoke with Dr. . Together we called the parent and there was no answer. It was decided to schedule this matter for August 26, 2011, without the input of parent. Parent telephoned me on August 3, 2011 and stated that she might not be able to make that date and that she needed the hearing scheduled in the afternoon, when the .
Parent also informed me that the district had not yet held a resolution meeting with her on this matter and I suggested that she call Dr. to set up a resolution meeting with the district. A resolution meeting was held on August 17, 2011. A resolution agreement has been entered into evidence as District Exhibit 2 and the resolution notes from the meeting have been entered into evidence as District Exhibit 3. The bottom of the page of Exhibit 2 page 1 is cut off and is not entirely legible. The district representative, Mr.
represented that there was no other clearer copy to be had. The agreement was signed by parent and the district representative on August 17, 2011. The resolution notes (Exhibit
3) indicate that the litigators plan of action states that student has not been provided with related services or any updated annual reviews or triennial reviews since March 20, 2007.
The litigator also recommends offering parents a for2 – 3 hours of SETSS per day at a standard rate for 46 weeks. And to consider need for related services through an RSA for standard rate of 46 weeks the chairperson agreed with SETTS and related services for one year plus , , and the use of . (Exhibit 3). The district also submited into evidence a series of RSA’s dated October 6, 2011, but offered no testimony whether the RSA's were in fact delivered or presented to parent nor any testimony as to whether student was currently receiving the services. The RSA’s specify twice weekly 30 min. sessions in a group of one, once weekly in 30 min. sessions in a group of two individual weekly 30 min. session in a group of one, three times weekly in 30 min. sessions in a group of one.
POSITION OF THE PARTIES
Parent’s Position
Due to , doctors have ordered that student leave the public school setting and be
Student’s IEP has not been revised nor reevaluated since March 20, 2007. Although student is on a 12 month program, student has not received summer services for the past four summers. Student has never received the servicers delineated in the IEP, including , , or . Parent states that student has never received communication equipment, computer adapters and materials at home for the teacher and therapist to work with. As a result, parent requests student be compensated for services and hours of instruction not received over these past years.
District’s Position
The District asserts that its position in the case of this student is that the student, now at the age of years old had, has aged out a special education services and therefore, the district is opposed to the granting of any and all compensatory services as petition by the parent. (Tr. p. 101 at 5 – 11).
HEARING TESTIMONY
Appearing for the Student were: Parent, , Interpreter , Interpreter
Serivces Coordinator . Appearing for the District were: , CSE Designee and ,
Attendance Teacher (via telephone).
was sworn in, affirmed he was alone in a room, and testified via telephone. (Tr.
p.46). Mr testified that he is certified as a special education teacher, as a principal and as an assistant principal (Tr. P. 46). The witness is currently employed in district as attendance teacher in the office in the . As the attendance teacher, he monitors all five boroughs. Mr. testified that he was not personally familiar with student but that according to his records of student lives in . When questioned by this hearing officer if the witness had any documents with him, he replied that he had computer documents on the student. The documents included school attendance sheets and New York City public schools individual student attendance history. Upon questioning by this hearing officer, it was learned that said documents were not produced to parent nor were any copies and made available at the hearing. This hearing officer ruled that the documents were not in evidence and thus, testimony concerning them would not be heard. (Tr.pp. 44 – 45).
The witness described his duties as attendance teacher as monitoring series of absences by any student; his job is to investigate why the student is absent and try to resolve the problem. Additionally, the witness attempts to get students back into a regular program in a school. (Tr. P. 51). Without looking at documents, the witness was unable to recall if he had ever investigated absences in the case of this student. The witness testified that a parent signature on the teacher’s timesheet is not a requirement of the district. (Tr. P. 57). The witness also testified that in order for the district to send a teacher to anyone's home, there must be a chaperone over 18 years of age present while the teacher is with the student. This is for the protection of the students and for the protection of the teacher. (Id.). The witness testified that the district has a supervisor that routinely goes out and checks on the work of teachers performing
. Mr. testified that teachers are supposed to come to a home with a lesson plan and supplies and materials for the lesson. (Tr. P. 65).
Mr. testified that he did not have any direct knowledge whether or not any teacher or any services were sent to the home of student over this past summer the 2010- 2011 school year. The witness further testified that he has absolutely no involvement with the IEP process. (Tr. P. 73). The witness further testified that he is not notified when a student begins his job is only triggered by absences of the student, absences when they reach the amount of 5 or 10 days. The witness had no direct recollection if his involvement had been triggered on more than one occasion the case of this student. The witness further testified that after approximately 10 absences the computer automatically generates a 407 form and the teachers obligation is finished. The teacher speaks to a supervisor and the supervisor gives teacher a different student. At this point, Mr. investigates to find out what happened to the student.
was sworn in and testified through an interpreter. Ms. testified that student had received no services in the summer of the 2010-2011 school year. (Tr. P. 81). She testified that in the 2011-2012 school year a teacher came for only one day. Ms.
testified that in the 2010-2011 school year a teacher came only eight hours per week although he was supposed to be there 10 hours per week and documented that he was there 10 hours a week. The witness stated that she called the district and explained that the teacher was not present for 10 hours. The witness stated that the teacher was falsifying documents by stating that he was beginning his teaching at 3:30 in the afternoon. Ms. said that it is impossible for him to start at 3:30 in the afternoon because student needed to have treatments in the , , and a , by 3:30. The witness testified that she believed that the name of the person at the district who she spoke to was named .
She also testified that the district believed the teacher, and not her regarding the time teacher spent in the home. The witness testified she felt it was a shame that the teacher is getting paid because he stole all those hours.
The witness testified that she requested a new IEP every year. (Tr. P. 85). The witness also testified that in all the years student was receiving he never received , , or . Never once. (Tr. P. 89). Regarding absences, the witness testified that if student had an appointment she would let the teacher know or maybe two days the student was sleeping, but besides that student was always home, and available for the teacher. (Tr. P. 94). Ms. testified that sometimes the teacher would come to the house at
4:00 or 4:30 and student was not ready because the ", and student was getting . At these times, Ms. would ask the teacher to wait until student was ready.
APPLICABLE STANDARDS
The two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students 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; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v.
T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
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 (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" (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] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (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 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). 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]; see Rowley, 458 U.S. at 192).
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]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y.
July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2];
06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087).
The burden of proof is on the school district during an impartial (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).
Compensatory damages
Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction (20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). It 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 (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]).
If a student with a disability reaches age 21 during the period commencing July 1st and ending on August 31st and is otherwise eligible, the student shall be entitled to continue in a July and August program until August 31st or until the termination of the summer program, whichever shall first occur (Educ. Law § 4402[5][a]).
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).
Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). In New York State, a student who is otherwise eligible as a student with a disability may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 C.F.R. § 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd.
of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b];6 8 NYCRR 100.9[e], 200.1[zz]; see 34 C.F.R. §
300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).
Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C, 916 at 69; Burr, 863 at 1071; Cosgrove v. Bd. of Educ., 175
F. Supp. 2d 375, 387 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]).
Here, the fact that the Student turned after the request for a hearing does not operate as a per se jurisdictional bar that precludes an impartial hearing officer from directing the district to provide compensatory education upon a finding of a gross violation of the IDEA (Somoza, 538 at 109 n.2, 113 n.6). Compensatory education is an equitable remedy within the broad forms of relief on the merits that are permissible under the IDEA (see Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100 [S.D.N.Y. Apr. 7, 2011]; see also Forest Grove v. T.A., 129 S. Ct. 2484, 2490-91, 2494 n.11
[2009]), Mrs. C., 916 F.2d at 75; Burr, 863 F.2d at 1078, reaff'd 888 F.2d 258 [2d Cir.
1989] [upholding a remedy in the form of continued secondary education services after the student's entitlement under the statute expired]); see also Application of a Student with a Disability, Appeal No. 10-109; Application of the Bd. of Educ., Appeal No. 03-
010).
FINDINGS OF FACT AND LAW
Prong One of Provision of FAPE the District Complies with the Procedural
Requirements
At a minimum the CSE is to meet on a triennial basis, except if the Parent requests a reevaluation, then it can be performed once per year unless both parties agree to perform a reevaluation more frequently. NYCRR 200.4(b)(4). At the time of the request of this hearing, the CSE had not convened for this Student for time period of over four years, Parent testified that she requested a reevaluation of Student over these past years. She did not make the request in writing; however I find her testimony credible.
Moreover, the District has never provided the related services that were proscribed in the March 20, 2007 IEP. This hearing officer requested that the District provide to me the RSA and bills for services provided to Student for the past two years, to show that services were indeed provided. No documents were produced by the District. There has been no evidence or testimony to refute the assertion that Student has never received recommended services since he went on in January of
2007.
I find this to be a gross violation of state and federal laws resulting in the denial of and exclusion from, educational services for a substantial period of time (see Somoza v.
New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C,
916 at 69; Burr, 863 at 1071; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387
[N.D.N.Y. 2001].
Prong Two of provision of FAPE: The IEP Developed is Reasonably Calculated to Enable Student to Receive Educational Benefits
Due to districts failure to convene a CSE meeting or create an IEP since March 20, 2007, we need not address whether the IEP was reasonably calculated to enable student to receive educational benefits.
The District has failed to provide FAPE. Timeliness of Request
Student was in a 12 month program, (Parent’s Exhibit A) and turned on . The date of the hearing request in this matter is June 15, 2011, and at that time student was still eligible under the law for and related services. Parent’s request was made during the time that Student was still eligible for services. Even if it could be found that it was not timely, Compensatory damages are an equitable remedy, fashioned on a case by case basis, and Parent has a claim. Resolution agreement
It seems that a resolution agreement was executed by the parties on August 17, 2011. (See district Exhibit 2). However testimony of the parent shows that no services were actually provided except one in November of 2011, who was eventually denied payment by the district for services because Student turned . (Tr. p. 97).) The district’s position is that student has simply . Thusly, the district has failed to provide the services in the resolution agreement, and I find them to be in breach of the agreement.
For these reasons, and the above finding of a gross violation of state and federal laws resulting in the denial of, or exclusion from, educational services for a substantial period of time, I declare the resolution agreement null and void.
ORDER
The district has utterly failed to provide student with FAPE, and I grant Parent compensatory services, in the home of Student for Ninety Two (92) weeks, on a twelve month program as follows:
SETSS five times per week, 2 hours per day, group size of one;
Education Services 2x30x1;
, 2x30x1;
Therapy 3x30x1;
Therapy 3x30x1;
, an full time five days per week.
Services are to include augmentive devices, symbols, and adapted . Said services are to begin no later than 15 school days from the date this ORDER is sent to the
Parties. Although the District may issue RSA’s, the District is ordered to find the Providers and to accommodate Student’s medical needs in scheduling said services. All services are to be performed in accordance with the New York City Department of Education school calendar.
Additionally, all of the above providers are to perform evaluations on Student and report them to the CSE. District shall perform a Survey, making use of the last teacher who provided services to Student, and of course, a . The CSE shall gather said evaluations and meet within 30 school days of this decision to create a new IEP and add such other services as the CSE deems necessary. Under no circumstance shall the CSE modify the services ordered herein to be less than what is contained in this Order, the CSE may only add services. The only circumstance in which the services in listed in this Order may be changed is if Parent, in writing, deems them unnecessary or redundant. A translator must be present at the CSE meeting.
It is also Ordered that the CSE reconvene for a review before June 15, 2012, to create an IEP and program recommendations for the 2012-2013 school year, and again before June 15 2013, for the 2013-2014 school year (As per this Order, Student should receive services for approximately half of that school year). As stated above, the CSE shall not diminish the amount of services in this Order.
The District is also Ordered to notify parent, both in writing and via telephone, of any medical documents needed by District. This notification is to be made at least one month before the documents are needed by the District.
Dated: January 18, 2012
_________________________________
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
PARENT
A IEP, 3/20/07, 14 pp.
DEPARTMENT OF EDUCATION
1 Impartial Hearing Request, 6/15/11, 3 pp. 2 Resolution Agreement, 8/17/11, 2 pp. 3 Resolution Notes, 8/17/11, 2 pp. 4 Resolution Attendance Sheet, 8/17/11, 1 p. 5 Related Services Authorization, 10/6/11, 5 pp.
Footnotes
[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]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No.