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:
Hearing Requested By: Parent
Date of Hearing: March 7, 2012
March 29, 2012
May 30, 2012
June 14, 2012
June 29, 2012
September 19, 2012
Actual Record Closed Date: October 24, 2012
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 7, 2012
ESQ., Attorney — Student
District Representative (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 29, 2012
ESQ., Attorney (via telephone) — Student
District Representative (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 30, 2012
ESQ., Attorney (via telephone) — Student
District Representative (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 14, 2012
ESQ., Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 29, 2012
ESQ., Attorney (via telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON SEPTEMBER 19, 2012
ESQ., Attorney — Student
Parent (via telephone) — Student
(via telephone) — Student
— Student
District Representative — DOE
— DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. The parent originally requested this impartial due process hearing in a letter dated June 25, 2011 and received by the New York City Department of Education (the “DOE”) on July 15, 2011 (R. 36; Ex. P-B).[1] Thereafter, the parent retained counsel who filed an amended hearing requested dated February 3, 2012 (Ex. PA). The parent alleges that the DOE denied the student a free appropriate public education (“FAPE”) for the 2009/10, 2010/11 and 2011/12 school years and seeks, inter alia, reimbursement for independent evaluations and the provision of compensatory education and/or equitable additional services (Ex. P-A at 2, 12-14).
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to age in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
I was appointed to hear this matter ON February 7, 2012, following the recusal of another hearing officer. In a letter dated February 23, 2012. I advised the parties of their rights and obligations under the New York Education (Ex. IHO-1). At a hearing held on March 7, 2012, the parent moved for an interim order on pendency. (R. 7-11, 30-34; Exs. IHO-I at 2-3, P-A at 12-13). The DOE did not oppose the parent‟s application (R. 37). In an Interim Order on Pendency dated March 26, 2012, I directed the DOE to place the student in an age and grade appropriate collaborative team teaching class (12:1), along with individual and group and transportation, until such time as the due process proceedings in this matter are completed. (Ex. IHO-II at 5). See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m).[2] Pre-hearing conferences were held with the parties on March 29, 2012 and May 30, 2012 to clarify the issues and select dates for the impartial hearing. See 8 NYCRR § 200.5(j)(3)(xi). Thereafter, hearings in this matter were held on June 14, 2012; June 29, 2012; September 19, 2012. 3 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).
III. FACTUAL BACKGROUND
At the time of the February 3, 2012 amended due process complaint notice, the student was ) years old and receiving home instruction from his parent (Exs. P-A at 2, 8, P-N at 2).[4] The student's eligibility for special education and related services as a student is not in dispute in this hearing (Exs. P-A, P-C at 1, P-H at 1).[5] See 34 C.F.R. § 300.8(c)(6); 8 NYCRR § 200.1(zz)(6).
The student attended when he was years old. There were no concerns expressed to the parent during the (Ex. P-J at 2).
At age , the student began . At this time, the student‟s teacher informed the parent that the student was “ .” With extra help provided to the student, the student from to grade, and from grade (Ex. P-J at 2).
In ( school year), the student‟s teacher informed the parent that the student‟s “ ” was and suggested that the student‟s . The parent brought the student to an , who determined that the was (Ex. P-J at 2). In December of 2003, the parent and him at . The student‟s new grade teacher
3 Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to allow the parties adequate time to present their available witnesses on the extensive issues raised in the parents‟ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that allowing the parties adequate to present their available witnesses on the extensive issues raised in the parents‟ due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 67-68, 117-119, 199-200; Exs. IHOIII, IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX).
also reported that the student “ ” in class and . The parent brought the student to an , Dr. , who that the student needed and suggested that the student might have a . The student received Section 504 academic interventions at school and . The student continued to receive these interventions in grade ( school year) (Ex. P-J at 2).
In grade ( school year), the student reportedly received special education teacher support services (“SETSS”), and . The parent estimated that the student was about one . The student advanced to grade ( school year), but was still reported to “ ” . The student‟s was discontinued at this time (Ex. PJ at 2).
In the spring of 2007, the student was evaluated, , and recommended to receive instruction in a collaborative team teaching (“CTT”) class ( ) (Exs. P-F at 1, PJ at 2, P-O at 1). At the beginning of the student‟s (the school year), the parent the student‟s schools from “ ” to “ .” The student reportedly did well at during both his ) school years (Ex. P-J at 2).
In the latter part of the student‟s school year), the parent requested schoolbased for the student due to and . The parent also pursued, but was to for the student through (Ex. P-J at 2).
In March of 2010, staff at reportedly called Services to report the parent for . The case was later closed. The parent withdrew consent for the student‟s special education services to facilitate his transfer from to . The parent rereferred the student to the CSE at or near the end of the 2009/10 school year so that the student could receive services in . In June of 2010, the grade at (Exs. P-J at 2-4, P-F, P-N at 3).
Teacher reports from the spring of 2010 indicated that the student had . A June 2010 report from Ms. stated that the student‟s “ and from the teacher” and that the student had “ .” Ms. determined the student‟s skills to be “ ,” and stated that his homework was “ level.” A June 2010 report from Mr. stated that the student was , (even when explained) and for “more than .” A June 2010 report from Mr. stated that the student did in class or “ any skills” and had “ ” (Exs. P-K, P-L, PM, P-N at 4)
As part of a July 28, 2010 assessment, the student was administered portions of the Wechsler Intelligence Scale for Children - Fourth Edition (“WISC-IV”). The student‟s measured in the . The student‟s performance skills measured in the The student‟s academic skills were deemed to be when compared to others at his grade level. His math (Ex. P-F at 5-6).
The CSE convened on August 6, 2010 to develop an IEP for the student‟s grade (the 2010/11 school year). The CSE classified the student as having a and recommended that he receive the majority of his instruction in a CTT class ( ) along with individual and . The student‟s placement was designated as the for (Exs. P-C at 1, P-D, P-E, P-N at 3).
The CSE reconvened on March 22, 2011 to review the student‟s IEP and recommend a program for the student‟s grade (the 2011/12 school year). The IEP stated that the student was “a and who had with and .” It goes on to state that “his ability to and was on , but he [ ] work ” and would . It further notes that the student often came in general as as to , and that he had been “ the school.” The CSE continued the student‟s classification and recommended that he receive instruction in a general education setting supported by per week, along with individual and (Exs. P-H at 4, P-N at 2).
The parent elected, in or around July 2011, to provide the student with home instruction based on her determination that the student‟s school lacked sufficient services to meet the student‟s educational needs (Ex. P-A at 8).
An independent evaluation of the student was conducted by , Ph.D. on April 14, 2012. At that time, the student‟s parent reported that the student‟s areas were his . The parent also reported that the student was not given recommended CTT and/or SETSS services at school. The student‟s ability was measured using the WISC-IV. The student achieved a Full Scale level. The student‟s Index (a measure of acquired reasoning) . The student‟s Index (a measure of ) (Ex. P-N at 2, 9, 12).
The student was also administered a set of tests from the Woodcock-Johnson III Test of Achievement. In skills, the student or at the . The student‟s or at the level. The student‟s fluency was at the . In skills, his standard score was level. His calculation at the and his standard in - was or at the . Lastly, the student‟s picture or at the (Ex. P-N at 10).
From responses provided on the Achenbach System of Emperically Based Assessment - Child Checklist for (“CBCL”), Dr. determined that the student showed marked , although . Other measures of were also at levels (Ex. P-N at 10).
Based on the data obtained during the evaluation, Dr. concluded that the relate to surface and (also known as or word form and ).” Dr. explained that:
(Ex. P-N at 11).
In addition to the chall es described above, the student also demonstrated , on the Behavior Rating Inventory of Executive Functioning - Parent Form (“BRIEF”) and indicated on other tests of the evaluation. Functionally, it was difficult for the student to hold many details in his head at the same time (Ex. P-N at 12).
Dr. recommended that the student receive reading to address and and math to in . Dr. also recommended that the student be evaluated for and that he accommodations (Ex. P-N at 13).
Dr. a New York State , conducted an evaluation of the student in June of 2012 (R. 143, 145; Ex. P-O). Dr. found that the student presented with . The student struggled with , which had a in a classroom environment
(R. 149-150). The student and had with “ ” and (R. 151-152). Regarding his , the student “ ,” but sentences, which may include “ , or , or ” (R. 155). Dr. opined that the student was in a “ ” position with ,” given that he is now at be but ” (R. 155156; Ex. P-O at 3).
Based on the student‟s performance on formal testing along with her , Dr. determined the student possesses . Dr. stated that the student‟s s in have had a direct impact on his academic performance. Dr. recommended that the student receive , ( ) minutes per session (Ex. P-O at 5).
IV. POSITIONS OF THE PARTIES
A. The Parent
For the 2009/10, 2010/11 and 2011/12 school years, the DOE: (a) failed to timely and appropriately evaluate the student and his special education needs, and to employ legally sufficient evaluation procedures; (b) failed to offer or provide the student with substantively appropriate IEPs, programs, placements and special education services; (c) failed to comply with the procedural requirements of the IDEA and New York State law with regard to referrals, evaluations, IEP development, special education service recommendations, and placement decisions with regard to the student; and (d) failed to offer the student a free appropriate public education. To remedy these errors, the parent seeks independent educational evaluations and compensatory additional services (R. 718; Ex. P-A at 2, 12-14).
B. The DOE
The DOE conceded that it denied the student a free appropriate public education during the school years at issue (R. 113). The DOE agreed to the fund an independent evaluation and an independent evaluation of the student at public expense (R. 52, 56).
V. 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.[6] 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. Compensatory Additional Services
Compensatory relief may be awarded to a student with a disability who was denied a FAPE and remains eligible for instruction under the IDEA. See 20 U.S.C. § 1401(3), 1412(a)(1)(B); N.Y. Educ. Law §§ 3202(1), 4401(1), 4402(5). Within the Circuit, compensatory relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE. See Newington, 546 F.3d at 123 (stating that compensatory education is an available option under the IDEA to make up for a denial of a FAPE); Student X v. New York City Dep’t of Educ., 2008 WL 4890440 at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one (21), and to students who were not provided with pendency services).
Likewise, 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 that it failed to offer the student a FAPE, I find that the DOE failed to provide the student a FAPE for the 2009/10, 2010/11, and 2011/12 school years (R. 113). As detailed below, I find that the DOE‟s deprivation of instruction to the student can be remedied through the provision of compensatory additional services.
1. One-to-One Instruction
Regarding the 2009/10 school year, the DOE failed to establish that it had an IEP in place or provided the student with any special education instruction or services. I note, however, that in June of 2010, the student from the grade at (Exs. P-J at 2-4, P-F, P-N at 3).
As for the 2010/11 school year, the parent presented undisputed testimony that the student was not provided with any special education instruction. At a meeting held on August 6, 2010, the CSE recommended that the student receive the majority of his instruction in a CTT class (12:1). The student‟s placement was designated as , the School for (Exs. P-C at 1, P-D, P-E, P-N at 3). The parent provided credible and undisputed testimony that, notwithstanding the IEP mandate, the student‟s school lacked a CTT class, and instead, offered to provide the student with SETSS (R. 174; Ex. P-A). The parent also offered credible and undisputed testimony that the student was never provided with SETSS during the 2010/11 school year (R. 174).
As for the 2011/12 school year, the DOE has not offered any evidence that it provided the student with special education while on its attendance rolls for that academic year. At a meeting held on March 22, 2011, the CSE recommended that the student receive instruction in a general education setting supported by SETSS for five (5) periods per week (Exs. P-H at 4, P-N at 2). In a letter dated June 25, 2011, and received by the DOE on July 15, 2011, the parent objected to absence of appropriate services for her son and requested a “Nickerson” letter (Ex. P-B).[7] No evidence was offered by the DOE of any response to the parent‟s June 25, 2011 letter, other than to convene an impartial hearing.
Following her submission of the June 25, 2011 letter, parent elected to provide the student with home instruction, having concluded that the student‟s school lacked sufficient services to meet the student‟s educational needs. At some point during the 2011/12 school year, the parent was which compromised her ability to continue home instruction of the student (Ex. P-A at 8). In an Interim Order on Pendency dated March 26, 2012, I directed the DOE to place the student in an age and grade appropriate collaborative team teaching class (12:1), along with individual and group and transportation, until such time as the due process proceedings in this matter are completed (Ex. IHO-II at 5). See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). In April of 2012, the DOE authorized the student to attend school at the School of (Exs. P-P, P-Q). The student‟s placement was later changed to School in May of 2012 (R. 178-179).
In my review of the hearing record, I have given considerable weight to Dr. ‟s uncontested recommendation that the student should receive instruction/ to address and and to address in . (Ex. P-N at 11-13).
State regulations regarding home instruction offer guidance as to what would constitute an appropriate award when instruction is meant to compensate for the DOE‟s failure to provide a student with appropriate special education services. State regulations require that, for student at the level of education, a minimum of ten
(10) hours per week of instruction is preferred. See 8 NYCRR § 200.6(i)(2). Thus, in the absence of any evidence that the DOE provided the student with special education services during the school years at issue, and in light of the undisputed evidence that the student requires instruction and remediation, I find that an award of ) hours per week multiplied by a year) or a total of hours of is warranted here.
Alternatively, I have considered a reduction of this award based on the facts that the student from his grade (the school year) and that the parent removed the student from school to provide him with home instruction for a portion of the 2011/12 school year. I decline, however, to reduce the award of instruction in light of the facts that: (1) the DOE failed to offer any evidence that is provided the student with any special education instruction and services during the years at issue; (2) the DOE conceded that it failed to offer the student a FAPE for all three (3) school years; and (3) the parent‟s removal of the student from school during a portion of the 2011/12 school year was predicated on the DOE‟s past failure to provide the student with recommended special education instruction and services.
2. Services
From my review of the hearing record, I credit the uncontested testimony of Dr. that the student‟s educational records indicated that the student was a candidate for services in previous years (R. 158, 164). The student had a history of and teacher reports noted that the student had with (R. 164-165).
Dr. recommended that the student per week of services (R. 157; Ex. P-O at 5). Dr. testified that the applicable rate for such services in New York City ranges per hour, with an hour and $ (R. 159).
Given the DOE‟s failure to identify, evaluate or program for the student‟s and needs during the years at issue, I shall order the DOE to provide the student with hours of .[8] These services shall be furnished to the student through providers of the parent‟s selection with a maximum allowable rate of $ per hour.
3.
According to the August 2010 IEP, the student was entitled to times per week ( per session (Ex. P-C at 9). In March of 2011, the student‟s IEP was revised and the student‟s recommended services were ) individual sessions per week (Ex. PH at 4).
In his report, Dr. recommended that the student be provided with services to address with understanding ” as well as with “ and related (Ex. P-N at 13).
The DOE failed to offer any evidence that it provided the student with appropriate school-based services during the 2009/10 school year (Ex. P-A at ¶ 25). The parent credibly testified that the student did not receive any of his mandated services during the 2010/11 school year as had been recommended in the August 2010 and March 2011 IEPs (R. 173; Exs. P-C at 9, P-H at 3).
As for the 2011/12 school year, the student was provided home instruction by his parent through my March 26, 2012 Interim Order on Pendency (Exs. IHO-II, P-A at 8, PP, P-Q). Under New York State law, students with disabilities who receive home instruction may receive special education programs and services on an equitable basis from public schools, upon parental request. See N.Y. Educ. Law § 3602-c(2)(b)(1); Application of the New York City Dep’t of Educ., Appeal No. 10-089 (SRO Nov. 12, 2010). I deem the parent‟s June 25, 2011 letter to the Board of Education, received on July 15, 2011, to have requested the provision of special education programs and services for the student (Ex. P-B). The DOE failed to offer the student with any public program or services through on or about April 17, 2012 (Ex. P-Q).
To remedy the deprivation of services to the student during the 2009/10 school year, I shall order the student to of individual, school-based and hours of small group ( school based .[9]
Likewise, to remedy the deprivation of services to the student during the 2010/11 school year, I shall order the student to receive hours of individual, schoolbased and hours of small group ( school based .
To remedy the deprivation of services to the student during the 2011/12 school year, I shall order the student to receive hours of individual, school-based
.[10]
4. Transition Services
In her post-hearing closing statement and memorandum of law, counsel for the student and the parent seeks, for the first time, an award of compensatory transition services. Under the IDEA, to the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enables the student to prepare for later post-school activities, including post ary education, employment, and independent living. See 20 U.S.C. § 1401(34); 34 C.F.R. § 300.43; N.Y. Educ. Law § 4401(9); 8 NYCRR § 200.1 (fff). Accordingly, pursuant to federal law and State regulations, an IEP for a student who is at least 16 years of age (15 under State regulations) must include appropriate measurable post ary goals based upon age appropriate transition assessments related to training, education, employment, and, if appropriate, independent living skills. See 20 U.S.C. § 1414(d)(1)(A)(viii); 34 C.F.R. § 300.320(b); 8 NYCRR § 200.4(d) (2)(ix). An IEP must also include the transition services needed to assist the student in reaching those goals. See id.
State regulations, however, also provide that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process compliant notice unless the other party agrees. See 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. §§ 300.507(d)(3)(i), 300.511(d); 8 NYCRR § 200.5(i)(7)(b); R.B. v. Department of Educ. of City of New York, 2011 WL 437694, at *6-*7 (S.D.N.Y. Sept. 16, 2011); M.P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at *8
(S.D.N.Y. Aug. 27, 2010). As the issue of transition services was not raised in either the original or amended due process complaint notices, I will not consider the issue now (Exs. P-A, P-B). See C.F. v. New York City Dep’t of Educ., 11 Civ. 00157 (LTS), 111 LRP 68797 (S.D.N.Y. Oct. 28, 2011).
Alternatively, while counsel suggests in her brief that a general allegation in the due process complaint that the DOE failed to evaluate the student in all areas of suspected disability constituted adequate notice of a specific claim for transition services, I do not find that the DOE was provided with sufficient notice in the complaint that the provision/deprivation of transition services was at issue (Ex. P-A). See 8 NYCRR § 200.5(i).
C. Independent Educational Evaluations
The parent seeks the provision of independent , and evaluations. Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district. See 34 C.F.R. 300.502(a), (b); 8 NYCRR § 200.5(g)(1). A parent, however, is only entitled to one IEE at public expense “each time the public agency conducts an evaluation with which the parent disagrees.” See 34 C.F.R. § 300.502(b)(5); 8 NYCRR § 200.5(g)(1). If the parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See 34 C.F.R. §§ 300.502(b)(2)(i)-(ii); A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 549 (D. Conn. 2002). If a school district‟s evaluation is appropriate, a parent may not obtain an IEE at public expense. See 34 C.F.R. § 300.502(b)(3); 8 NYCRR § 200.5(g)(1)(v).
The DOE has previously consented to fund independent neuropsychological and speech/language evaluations (R. 52, 56). In light of that agreement, the DOE shall be ordered, on consent, to pay any outstanding costs associated with Dr. ‟s April 14, 2012 independent evaluation and Dr. ‟s June 20, 2012 independent, comprehensive evaluation (Exs. P-N, P-O).
The parent also seeks funding for an evaluation (Ex. P-A at 12). While the DOE previously consented to conduct its own evaluation of the student, no evidence was offered into the hearing record that such an evaluation was ever conducted (R. 53, 56, 63). Given the parent‟s February 3, 2012 request for an evaluation at public expense and the DOE‟s failure ensure that either an evaluation was provided at public expense or initiate an impartial hearing to show that its evaluation (if one was done) was appropriate, the DOE shall be ordered then to fund an independent evaluation of the student. See Application of a Student with a Disability (Tuxedo Union Free Sch. Dist.), Appeal No. 08-087 at 18 (SRO Dec. 15, 2008), rev’d on other grounds, G.B. & L.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552 (S.D.N.Y. Sept. 30, 2010), aff’d, summary order No. 11-3552 cv (2d Cir. Oct. 18, 2012).
Likewise, the parent seeks funding for an evaluation (R. 191; Ex. P-A at 12). qualifies as a related service under the IDEA and State law. See 8 NYCRR § 200.1(qq); Application of a Child with a Disability (Lebanon Cent. Sch. Dist.), Appeal No. 05-021 (SRO April 13, 2005). The student‟s was first identified in school year, the student‟s grade (Ex. P-J at 2). Again, given the parent‟s February 3, 2012 request for an evaluation at public expense and the DOE‟s failure ensure that either an independent vision therapy evaluation was provided at public expense or initiate an impartial hearing to show that its (if one was done) was appropriate, the DOE shall be ordered then to fund an independent vision therapy evaluation of the student. See Application of a Student with a Disability (Tuxedo Union Free Sch. Dist.), Appeal No. 08-087 at 18 (SRO Dec. 15, 2008), rev’d on other grounds, G.B. & L.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552 (S.D.N.Y. Sept. 30, 2010), aff’d, summary order No. 11-3552 cv (2d Cir. Oct. 18, 2012).
D. Attorneys‟ Fees
The parent‟s request for attorneys‟ fees must be denied (Ex. P-A at 14). The IDEA doesnot authorize an administrative officer to award attorneys‟ fees or other costs to a prevailing party; and entitlement, if any, to such costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); see also Application of the Bd. of Educ., Appeal No. 08-026 (SRO May 12, 2008). Since only a court can determine who is a prevailing party entitled to attorneys‟ fees, I conclude that I lack subject matter jurisdiction over this aspect of the parent‟s claim.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF
FACT,IT IS HEREBY ORDERED THAT:
(1) The DOE failed to provide the student with a FAPE during the 2009/10,
2010/11, and 2011/12 school years;
(2) The DOE‟s denial of FAPE to the student can be remedied through the provision of the following compensatory additional services at public expense:
(a) The student shall be provided with a total of hours of instruction from a duly certified/licensed special educator at public expense;
(b) The student shall be provided with hours of individual speech/language therapy at public expense via independent providers of the parent‟s selection with a maximum allowable rate of $ per hour;
(c) The student shall be provided with hours of individual, schoolbased and hours of small group ( ), school-based , both at public expense;
(3) On consent, the DOE shall reimburse the parent and/or directly pay for an independent evaluation performed by Dr. on April 14, 2012;
(4) On consent, the DOE shall reimburse the parent and/or directly pay for an evaluation performed by Dr. on June 20, 2012;
(5) The DOE shall reimburse the parent and/or directly pay for an independent evaluation;
(6) The DOE shall reimburse the parent/and or directly pay for an independent evaluation;
(7) The DOE shall provide the student with suitable transportation to and from his recommended placement in a manner consistent with its obligations under Sections 3635 and 4402 of the New York Education Law; and
(8) Within thirty (30) days of the date of this Order, the CSE shall convene to develop an appropriate IEP for the student. Dated: November 2, 2012
JEFFREY SCHIRO, ESQ.
Impartial Hearing Officer JS:gc
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 7, 2012
PARENT
A. Amended Impartial Hearing Request/Due Process Complaint, 2/3/12, 14 pgs.
B. Original Impartial Hearing Request/Due Process Complaint, 7/15/12, 2 pgs.
C. Individualized Education Program (IEP), 8/6/10, 11 pgs.
D. Final Notice of Recommendation (FNR), 8/31/10, 1 pg.
E. Authorization to Attend, 9/14/10, 1 pg.
F. Evaluation, 7/28/10, 7 pgs.
G. Student Report Card, 6/27/11, 1 pg.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 29, 2012
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 30, 2012
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 14, 2012
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Letter to Parties from IHO, 2/23/12, 6 pgs.
II. Interim Order on Pendency, 3/26/12, 7 pgs.
DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 29, 2012
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 19, 2012
PARENT
H. Individualized Education Program (IEP), 3/22/11, 12 pgs.
I. Subpoena, 4/15/12, 3 pgs.
J. Social History - Initial, 8/31/10, 4 pgs.
K. Teacher Report (McElhiney), 6/3/10, 3 pgs.
L. Teacher Report ( ), 6/4/10, 3 pgs.
M. Teacher Report ( ), 6/4/10, 2 pgs.
N. Evaluation, 6/15/12, 14 pgs.
O. Comprehensive Evaluation, 6/21/12, 6 pgs.
P. Authorization to Attend, 4/4/12, 1 pg.
Q. Authorization to Attend, 4/17/12, 1 pg.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
III. Confirmation of Extension, 3/29/12, 1 pg.
IV. Confirmation of Extension, 5/24/12, 1 pg.
V. Confirmation of Extension, 6/14/12, 1 pg.
VI. Confirmation of Extension, 7/17/12, 1 pg.
VII. Confirmation of Extension, 8/13/12, 1 pg.
VIII. Confirmation of Extension, 9/19/12, 1 pg.
IX. Confirmation of Extension, 10/22/12 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] In April of 2012, the DOE authorized the student to attend school at the R of (Exs. P-P, P-Q). The student‟s placement was changed to School in May of 2012 (R. 178-179).
[4] Home instruction is typically provided by parents who exercise the right to instruct their child(ren) at home instead of at a public or nonpublic school. See 8 NYCRR §§ 100.10(a), (b). Homebound instruction, in contrast, is provided on a temporary basis by a public school district when a student is unable to attend school because of short-term disability or discipline. See Appeal of a Student Suspected of Having a Disability (Fayetteville-Madision CSD), 40 Educ. Dep‟t Rep. 75 (2001); Appeal of Douglas & Barbara K., 34 Educ. Dep‟t Rep. 214 (1994).
[5] . 8 NYCRR § 200.1(zz)(6).
[6] 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.
[7] A Nickerson letter authorizes a parent to immediately place the student in an appropriate special education program in a State-approved nonpublic school at no cost to the parent. See Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 (E.D.N.Y. Jan. 5, 1982); Application of the New York City Dep't of Educ., Appeal No. 12-062 at 13 n.13 (SRO June 18, 2012).
[8] The figure of hours is derived from Dr. recommendation of ( individual sessions per week school years of missed .
[9] The August 2010 IEP called for the student to receive
[10] The March 2011 IEP called for the student to receive of individual school-based per week (Ex. P- H at 4). I calculated the first service by .