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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: March 3, 2011
April 1, 2011
April 6, 2011
June 21, 2011
July 19, 2011
August 9, 2011
August 17, 2011
August 29, 2011
October 21, 2011
December 29, 2011
Actual Record Close Date: October 1, 2012
Hearing Officer: Edgar De Leon, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 3, 2011
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 1, 2011
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 6, 2011
Attorney — Student
Attorney — DOE
School Psychologist (via telephone) — DOE
Unaffiliated Observer — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 21, 2011
Attorney — Student
Parents
Interpreter — Student
Attorney — DOE
Attorney — DOE
Teacher, — DOE
Guidance Counselor — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 19, 2011
Attorney — Student
Parents
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 9, 2011
Attorney — Student
Attorney — DOE
Teacher (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 17, 2011
Attorney — Student
Pathologist (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 29, 2011
Attorney — Student
Neuropsychologist (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 21, 2011
Attorney — Student
Coaching Director (via telephone) — Student
Educational Vocational Rehab Consultant (via telephone) — Student
JOSEPH TILLMAN, Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 29, 2011
Attorney — Student
Parents
Cantonese Interpreter — Student
Attorney — DOE
On January 27, 2011, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Parts 200 and 201 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act, concerning a dispute between the Parents of a (15) year old student attending a public school and the New York City Department of Education (“DOE”) - District , regarding the student’s special education program.
After the “resolution period” and adjournments granted for cause or on consent, the matter was set down for a hearing on March 3, 2011, April 1, 2011, April 6, 2011, June 21, 2011, July 19, 2011, August 9, 2011, August 17, 2011, August 29, 2011, October 21, 2011 and December 29, 2011. The parties opted to submit written closing statements which after adjournments were submitted on or about March 13, 2012. A list of the persons attending the hearing and the exhibits entered into evidence is annexed hereto.
BACKGROUND
This case involves a ( ) year old student classified as “ ” at a Committee on Special Education (“CSE”) meeting held on June 4, 2010. (See Parents’ Due Process Complaint - “DPC”) The DOE recommended continued placement in a program. (Id.)
The Parents challenge the June 4, 2010 and the student’s May 13, 2008 IEP on both procedural and substantive grounds. (Id.) The Parents also allege that the student has been denied a “free and appropriate public education” (“FAPE”) for the 2008-2009 and 2009-2010 school year. (Id.) Accordingly, the Parents request the following relief:
(a) A finding that the NYC DOE violated the laws;
(b) Compensatory and equitable make-up services that include but are not limited to tutoring, as well as instruction in if evaluations suggest the need for the services;
(c) An IEE with a n and t;
(d) An lEE with a given her issues;
(e) An IEE in ;
(f) An LEE in ;
(g) Accommodations, supports and services;
(h) Services to address the such as ;
(i) The DOE should conduct an evaluation and an occupational therapy evaluation within 30 days of this request. Failure to do so should give rise to the parent's right to lEEs under Jose P. and, if the DOE fails to do so, the IHO should award payment and/or satisfaction of the parent's debts for independent evaluations in those areas;
(j) The DOE should pay the parent's attorney fees; and,
(k) All other relief that the hearing officer deems necessary.
THE DOE’S CASE
The DOE opposes that Parent’s request as either barred by the statute of limitations (T-32-3) and/or not warranted because the agency offered the student a “free and appropriate public education” (“FAPE”) for the 2008-2009 and 2009-2010 school years. The DOE declined to make an opening statement. (T-89)
The DOE called (4) witnesses to testify on its behalf and submitted (36) documents into evidence. The sum, substance and relevant part of the evidence presented by the DOE is incorporated in the decision below.
THE PARENT’S CASE
The Parent argues that the student was denied a FAPE for the 2008-2009 and 2009-2010 school years. (T-608) Chinese or Fucaonese is the Parent’s native language and he does not speak, read or understand English fluently. (T-609) The DOE never gave the student’s Parents their due process rights in their native language. (Id.) The student only received minimal and languished in the class in the 2008-2009 and 2009-2010 school years where she not only did not progress, but in instead significantly regressed. (T-610) In the 5th grade, the DOE reduced the student’s services and moved her into a class in middle school. (Id.) The DOE has consistently failed to respond to the Parent’s concerns which he expressed in writing with the assistance of another, stating that the DOE had not properly evaluated and placed the student. (T-612)
The Parent called (5) witnesses to testify on her behalf and submitted (33) documents into evidence. The sum, substance and relevant part of the evidence presented by the Parent is incorporated in the decision below.
FINDINGS OF FACTS AND DECISION
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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])
A FAPE is offered to a student when (a) the DOE 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 and 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 an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])
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]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008])
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." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and 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." (See 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] and Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and 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.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“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; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
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. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09). Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)
The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, 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] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 37071; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)
The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007). The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016).
A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and 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 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02014 and 01-105). 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 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "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….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) 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 parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).
The IDEA allows that tuition 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 child from public school, or by written notice ten 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] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)
The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, the IDEA provides that tuition 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, fail to engage with potential placements offered 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]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)
In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)
There is an issue in this case concerning whether the Parent’s claim for the 20082009 and 2009-2010 school years is barred by the statute of limitations. The Parent herein seeks relief under both the IDEA and Section 504 of the Rehabilitation Act.
(DPC) The Parent filed the DPC on or about January 24, 2011.
The IDEA requires that, unless a State chooses to set a different limitations period under State law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged violation. (See 20 U.S.C. § 1415[f][3][C], 20 U.S.C. § 1415[b][6][B] and N.Y. Educ. Law § 4404[1]). The IDEA was amended in 2004 and the present two year statute of limitations became effective in July 2005. (Id.) Prior to July 2005, the statute of limitations in New York for alleged violations of IDEA was one year. (See M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir. 2003], SRO Nos. 02-119 and 06-013) IDEA 2004 contains specific exceptions whereby a party will not be held to the two year statute of limitations period under two specific circumstances. (See 20 U.S.C. § 1415[f][3][D][I]) The statute states in relevant part that the two year statute of limitations “shall not apply to a parent if the parent was prevented from requesting the hearing due to (i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or (ii) the local educational agency's withholding of information from the parent that was required under this part to be provided to the parent.” (Id.) The Second Circuit courts disfavor the continuing violation doctrine. (See Cabrera v. NYC, 436 F. Supp. 2d 635, 642 [S.D.N.Y. 2006], Berkhout v. New York City Dep't of Educ., 2004 WL 1586500, *6 [S.D.N.Y] and SRO No. 04-082). In the Second Circuit, the continuing violation doctrine would act to toll the statute of limitations only if one of the alleged violations occurred within the limitations period. (Id.)
In M.D. v. Southington Bd. of Educ., 334 F.3d 217, C.A.2 (Conn.)(2003), the Second Circuit cited, In Morse v. Univ. of Vermont (973 F.2d 122, 127 (2d Cir.1992)) and held that all “actions under § 504 of the Rehabilitation Act are governed by the state statute of limitations applicable to personal injury actions.”
In New York, the statute of limitations in personal injury actions is governed by CPLR § 214, which states as follows:
Actions to be commenced within three years: for non-payment of money collected on execution; for penalty created by statute; to recover chattel; for injury to property; for personal injury; for malpractice other than medical, dental or podiatric malpractice; to annul a marriage on the ground of fraud.
The following actions must be commenced within three years:
1. an action against a sheriff, constable or other officer for the non-payment of money collected upon an execution;
2. an action to recover upon a liability, penalty or forfeiture created or imposed by statute except as provided in sections 213 and 215;
3. an action to recover a chattel or damages for the taking or detaining of a chattel;
4. an action to recover damages for an injury to property except as provided in section 214-c;
5. an action to recover damages for a personal injury except as provided in sections 214-b, 214-c and 215;
6. an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort; and
7. an action to annul a marriage on the ground of fraud; the time within which the action must be commenced shall be computed from the time the plaintiff discovered the facts constituting the fraud, but if the plaintiff is a person other than the spouse whose consent was obtained by fraud, the time within which the action must be commenced shall be computed from the time, if earlier, that that spouse discovered the facts constituting the fraud.
(emphasis added)
CPLR § 214-b mandates a two year statute of limitations to actions to recover damages for personal injury caused by contact with or exposure to phenoxy herbicides. CPLR § 214-c states that when an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier. Finally, CPLR § 215 states that the following actions must be commenced within one year: against sheriff, coroner or constable; for escape of prisoner; for assault, battery, false imprisonment, malicious prosecution, libel or slander; for violation of right of privacy; for penalty given to informer; on arbitration award.
SRO No. 07-099 states: “Turning next to petitioners' argument that the impartial hearing officer should have heard all of petitioners' claims in a consolidated IDEA/section 504 hearing, I note that school districts are required to have certain policies and practices in place to implement the provisions of section 504, and to provide the opportunity for an impartial hearing and a review procedure (see 34 C.F.R. § 104.36). However, that review procedure does not include state-level review by a State Review Officer, whose jurisdiction is limited to matters arising under the IDEA and Article 89 of the Education Law (Application of a Child Suspected of Having a Disability, Appeal No. 03-094; Application of a Child with a Disability, Appeal No. 97-80). While a school district may elect to satisfy the impartial hearing requirements of section 504 by providing a hearing that conforms to the more stringent impartial hearing provisions under the IDEA, neither the IDEA nor Article 89 of the Education Law contain a provision mandating school districts to provide parents with consolidated IDEA/section 504 impartial hearings.”
Here, there is no indication that the Parent was prevented from requesting the hearing due to (i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint. (20 U.S.C. § 1415[f][3][D][I]) However, here, the Parent alleges that the DOE withheld information from the Parent that was required under law, i.e., adequate due process notices, procedural safeguards and/or prior written notice, in English or in the Parent’s native Chinese language. (Id.) (See N.Y. Educ. Law § 4404, 20 USC § § 1415(b)(3)(B), (d)(2)(E), 34 C.F.R. §§ 300.503(c) & 300.504 and 8 N.Y.C.R.R. Part 200.5) The DOE conceded that it did not translate documents into Chinese for the Parent. (T-461 & 463)
As early as December 31, 2008, the Parent wrote a letter stating that his daughter “needs to be evaluated now to find a special school.” (P-X) Thus, whether the Parent wrote this letter with or which out the assistance on another (supra), one can still surmise that the Parent knew about his right to request evaluations and/or “a special school” in 2008 and the Parent was not prevented back then from requesting an impartial hearing. (Id. & SRO No. 11-121) Statute of Limitation determinations must be made on a caseby-case basis, considering factors affecting whether the parent ‘knew or should have known’ about the action that is the basis of the complaint.” (See 71 Fed Reg. 46540, 46706 (2006)) Here, there is documentation, provided by the Parent, “knew or should have known” that he could have requested an impartial hearing.
The question then becomes whether the Parent can pursue a claim for the 20082009 and 2009-2010 school years under the three year Statute of Limitations for “Section 504” claims. It is first noted that New York State Education Law makes no provision for state-level administrative review of hearing officer decisions in section 504 hearings and a State Review Officer does not review section 504 claims. (SRO Nos.: 05-108, 05-033, 03-094, 00-051, 00-010, 99-10 & 06-003)
The Second Circuit held as follows in Fink v. New York City Dept. of Personnel, 53 F.3d 565, C.A.2 (N.Y.), 1995:
Section 504 prohibits the exclusion of an otherwise qualified individual with disabilities from participation in any federally funded program by reason of these disabilities, and discrimination against any such individual by any Executive Agency receiving federal funding. As the Act has been interpreted, it requires the employer to make a reasonable accommodation of the plaintiff's disability. See Gilbert v. Frank, 949 F.2d 637, 642 (2d
Cir.1991). It does not require the perfect elimination of all disadvantage that may flow from the disability; it does not require a lowering of standards, Southeastern Community College v. Davis, 442 U.S. 397, 413,
99 S.Ct. 2361, 2370, 60 L.Ed.2d 980 (1979), nor that the employer “make
‘fundamental’ or ‘substantial’ modifications” in order to eliminate the disadvantages flowing from the disability. Alexander v. Choate, 469 U.S.
287, 300, 105 S.Ct. 712, 719-20, 83 L.Ed.2d 661 (1985). It does not require the employer to provide every accommodation the disabled employee may request, so long as the accommodation provided is reasonable. See Carter v. Bennett, 840 F.2d 63, 67 (D.C.Cir.1988).
In Stone v. City of Mount Vernon, 118 F.3d 92, C.A.2 (N.Y.), 1997, the Second Circuit defined the essential terms of “essential functions”, “reasonable accommodation” and “undue hardship” as follows:
1. “Essential Functions”
The term “essential functions,” which is not defined in the statutes themselves, is generally defined in ADA regulations promulgated by the
Equal Employment Opportunity Commission (“EEOC”) to mean the “fundamental” duties to be performed in the position in question, but not functions that are merely “marginal,” 29 C.F.R. § 1630.2(n)(1) (1996).
The regulations also provide illustrations of the reasons that a given function may be found to be fundamental to the position and examples of evidence that may be considered in making that finding:
Essential functions-(1) In general. The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term “essential functions” does not include the marginal functions of the position.
(2) A job function may be considered essential for any of several reasons, including but not limited to the following:
(i) The function may be essential because the reason the position exists is to perform that function;
(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
(3) Evidence of whether a particular function is essential includes, but is not limited to:
(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs. [29]
C.F.R. § 1630.2(n). Plainly, the considerations set out in this regulation are fact-intensive. Usually no one listed factor will be dispositive, and the regulations themselves state that the evidentiary examples provided are not meant to be exhaustive.
2. “Reasonable Accommodation”
With respect to the term “reasonable accommodation,” the ADA sets out a nonexclusive list of different methods of accommodation encompassed by the term “reasonable accommodation,” stating that
[t]he term “reasonable accommodation” may include-
(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position,... and other similar accommodations for individuals with disabilities.
42 U.S.C. § 12111(9) (emphases added). The ADA regulations state that the employer is required to provide(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or
(iv) Modifications that enable a[n] ..employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.
accommodation, the costs of which, facially, do not clearly exceed its benefits.” Borkowski, 63 F.3d at 138. Having accomplished this, a plaintiff will have made a prima facie showing that a reasonable accommodation is available and the burden of non-persuasion will shift to the defendant. See id.; Gilbert v. Frank, 949 F.2d at 642. The defendant must then show that the accommodation is not reasonable, or that it imposes an undue hardship, which “in practice ... amount to the same thing.” Borkowski, 63 F.3d at 138 (collecting cases).
(emphasis added)
3. “Undue Hardship”
In providing that discrimination includes an employer's failure to make a reasonable accommodation “unless such [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such [employer],” 42 U.S.C. § 12112(b)(5)(A), the ADA defines “undue hardship” as follows:
(A) In general
The term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).
(B) Factors to be considered
In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include-
(i) the nature and cost of the accommodation needed under this chapter;
(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities;
and
(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. 42 U.S.C. § 12111(10).
We have noted that “ ‘undue’ hardship, like ‘reasonable’ accommodation, is a relational term; as such, it looks not merely to the costs that the employer is asked to assume, but also the benefits to others that will result.” Borkowski, 63 F.3d at 139; see also42 U.S.C. § 12101(a)(9)
(purposes of ADA include providing individuals with disabilities an equal opportunity to pursue employment opportunities and reducing societal cost of dependency and non-productivity).
Although the Parent’s DPC alleges that the claim is brought under both the IDEA and Section 504 of the Rehabilitation Act of 1973, the record does not address the “Section 504” claim. Accordingly, the Parent abandoned that claim at the impartial hearing. (SRO No. 10-067) As such, I find that the Parent’s claim in this case is limited to the two year Statute of Limitation under the IDEA. The Parent’s request for relief herein is limited to two years back from the filing of the DPC, i.e., January 24, 2009.
As stated above, a FAPE is offered to a student when (a) the DOE 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 and Cerra, supra)
Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.
Here, the student’s CSE on June 4, 2010 was composed of the Parent, a District Representative, a School Psychologist, a Special Education Teacher, a Pathologist and an “other” person. (D-17) There was no Parent Member at the June 4, 2010 IEP meeting. (Id.) The student’s May 13, 2008 CSE team was composed of the Parent, a , a School Counselor, a Special Education Teacher and a School Psychologist. (P-F) There was no Parent Member at the student’s May 13, 2008 IEP meeting either. (Id.)
8 NYCRR § 200.3(a)(1)(viii) states:
200.3 Committee on special education and committee on preschool special education.
(a) Each board of education or board of trustees shall appoint:
(1) committees on special education in accordance with the provisions of Education Law, section 4402, as necessary to ensure timely evaluation and placement of students. The membership of each committee shall include, but not be limited to:
(viii) an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that the additional parent member may be the parent of a student who has been declassified within a period not to exceed five years or the parent of a student who has graduated within a period not to exceed five years. Such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting; (emphasis added)
In this case, the student and her Parents were born in China and they primarily speak Chinese. (T-820 & 832-3) The DOE did not provide the Parent with translation services at the CSE meetings and acknowledged that it did not provide the Parent a translated copy of his due process rights. (T-271-4, 461-3, 830-9, 897-8, 901-2, P-F & P-Y) The failure to have a Parent Member present, translation services provided and/or relevant documents translated for the Parent, the DOE effectively denied the Parent the opportunity to meaningfully participate in the CSE meetings. (See 20 U.S.C. § 1415(f) & 34 C.F.R. § 300.513(a)(2)). It was the duty and responsibility of the CSE to ensure the Parent could effectively participate at the CSE review. SRO Decision 02-013 provides relevant analysis in this regard:
It is well settled that an IEP prepared by an invalidly composed CSE is a nullity (Application of a Child with a Disability, Appeal No. 99-27;
Application of a Child with a Disability, Appeal No. 95-8). Respondent argues that petitioner did not raise the issue of a parent member of the CSE at the hearing. I note, however, that petitioner’s attorney inquired of respondent’s witnesses whether a parent member was present.
The law requires that an additional parent member participate in the CSE meeting unless the student’s parents have affirmatively requested that the additional parent not participate (Educ. Law § 4402[b][1][a][viii]). I disagree with the hearing officer that the parent effectively waived the presence of a parent member simply on the basis of attending the meeting with an advocate, and because she failed to complain at the meetings or at the hearing. A parent must affirmatively request that the parent member not attend the meeting in order to waive the requirement, which is otherwise mandatory (8 NYCRR 200.5 [c][2][v]; Application of a Child with a Disability, Appeal No. 01-096;
Application of a Child with a Disability, Appeal No. 01-079)….There is nothing in the record to suggest that petitioner requested in writing that the parent member not attend the 2001-02 annual review…
Respondent argues that the role of the parent member was filled by the parent’s legal advocate, especially since she resided in the district and had a child with a disability. I do not find this argument persuasive, as it is the school district’s responsibility to have a properly composed CSE, including a parent member appointed by the Board of Education. Since there was no parent member of the CSE present any of the three annual review meetings, the 2001-02 IEP was not prepared by a validly composed CSE and is a nullity. I therefore do not need to discuss the other procedural and substantive issues related to the IEP.
I also find that the student’s IEP’s dated May 13, 2008 and June 4, 2010 in this case are a nullity because they were not properly constituted under law. Accordingly, I also find that the DOE failed to offer the student a FAPE for the 2008-2009 school year, from January 24, 2009 to the end of the 2008-2009 school year, and for the 2009-2010 school year.
Notwithstanding the same, I further note for the record that the May 13th IEP changed the student’s student to teacher ratio to a less restrictive , ostensibly because the recommended DOE school only had a class for students. This was despite the fact that the IEP identified her as “within” the high deficient range on the “WISC-IV.” (P-F) A Evaluation was conducted by the DOE on May 27, 2010, shortly after the May 13, 2010 IEP was produced; found that the student was based on her scores. (P-G) The student was said to not .” (T-853) The student’s Bi-Lingual Psychological Educational Evaluation, dated May 2, 2008, and extremely valuable in light of the fact that Chinese is the student’s native language, was not even discussed at the IEP meeting. (T-314-5)
While school districts are required to comply with all IDEA procedures, it is also true that not all procedural errors render an IEP legally inadequate under the IDEA. (See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE. (See J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]) The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement." (See Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]), In other words, the IEP must be likely to provide some "meaningful" benefit. (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]) In the case at bar, I believe that the IEP’s failure to include the student’s Bi-Lingual Evaluation and reduction of services in light of the student’s deficiencies, also render the document flawed. It is noted, although not necessarily, that the student’s June 4, 2010 IEP continued the student student’s placement and related services. (P-C)
I now turn to the question of whether the Parent’s requests for additional and/or compensatory services are appropriate for the student. Here, the record is replete with evidence that the student requires compensatory services. The student is said to need a lot of catching up. (T-805) The student’s report recommended compensatory services in reading and math, that the student’s private school is largely responsible for her improvement and that she should get “the most amount of services” that’s possible. (T-703, 735-6 & P-
EE) The speech therapist testified that the student should receive approximately (400) hours of daily individual (60) minute sessions, to make up for the two years that she missed. (T639-40) The EBL Coaching Director assessed the student and stated that the student should receive assistance for (15) hours per week for a total of (1,380) hours. (T-773-5 & P-GG) The Educational Vocational Rehabilitation Consultant testified that because the student’s impairments had not been identified early enough, and due to her age, it is critically important that the student receive tutorial assistance. (T-805 & P-FF) According to the consultant, the student requires a System 7 computer because the software that she will require in compatible with that system. (T-809 & P-FF)
It is well settled that compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. (See 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]; SRO No. 05-084 & 05-037), or until the conclusion of the school year in which he or she turns age 21. (See Educ. Law §§ 3202[1], 4401[1], 4402[5]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 C.F.R. § 300.102[a][1], [a][3][ii] & SRO 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. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001] & SRO No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education])
Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA. (See 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]) Within the Second Circuit, compensatory education 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 "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [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]; see also R.C. v. Bd. of Educ., 2008 LEXIS 113149, at *38-40 [S.D.N.Y. March 6, 2008])
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 Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; SRO No. 09-111 [adding summer reading instruction to an additional services award]; SRO No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; SRO No. 09-044 [awarding "make-up" counseling services to remedy the deprivation of such services]; SRO No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; SRO No. 08-072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE]; SRO No. 08-060 [upholding additional services awards of physical therapy and speech-language therapy]; SRO No. 08-035 [awarding ten months of home instruction services as compensatory services] and SRO Nos. 06-074, 05-041 & 04-054)
Having found that the student herein was denied a FAPE for the 2008-2009 and 2009-2010 school year, and based on the record above, I further find that the student is entitled compensatory educational services. The recommendations above are based upon a denial of FAPE for two years for a twelve month period. (T-640) However, because I have found that the Parent’s claim is barred beyond January 24, 2009 and the student is designated a 10-month student (P-C & P-F), the amount of compensatory services awarded is accordingly adjusted to minus (¼), i.e. minus (4) months from the 10-month school year.
In the absence of evidence demonstrating that the Parent failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049).
Here, the Parent attended the IEP meetings on May 13, 2008 and June 4, 2010 (P-C & P-F) There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. What is concerning is the Parent’s failure to give the DOE “notice” as required under the law.
SRO Decision 08-062 holds as follows:
The IDEA allows that tuition 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 child from public school, or by written notice ten 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" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir.
2002]); Application of a Child with a Disability, Appeal No. 07-133;
Application of the Dep't of Educ., Appeal No. 07-120; Application of the Dep't of Educ., Appeal No. 07-115; Application of the Dep't of Educ., Appeal No. 07-098; Application of a Child with a Disability, Appeal No. 07-079; Application of a Child with a Disability, Appeal No. 07-075; Application of a Child with a Disability, Appeal No. 07-038; Application of the Dep't of Educ., Appeal No. 07-032; Application of the Bd. of Educ., Appeal No. 06-
122; Application of a Child with a Disability, Appeal No. 06-069;
Application of the Dep't of Educ., Appeal No. 06-057; Application of a Child with a Disability, Appeal No. 06-042; Application of a Child with a Disability, Appeal No. 06-041; Application of a Child with a Disability, Appeal No. 06-035; Application of the Bd. of Educ., Appeal No. 05-092;
Application of the Bd. of Educ., Appeal No. 04-022).
Firstly, the Parent herein is not seeking “tuition reimbursement.” Secondly, the hearing record does not show that the lack of notice was designed to impede the DOE from responding in a timely manner to reconvene a CSE to address the Parent’s concerns. Indeed, after the May 13, 2010 IEP, meeting, the CSE reconvened yearly without issue to produce a new IEP for the student. (P-C, P-D, P-E & P-F)
I conclude that the Parent's numerous letters to the DOE satisfied the “temporal” requirement under 34 C.F.R. § 300.148(d)(1) in that they were provided yearly and gave the DOE notice of his concerns about his daughter’s education and its shortcomings. (P-X, P-W, P-T, P-S & P-P) It was the DOE that did not effectively respond to the Parent's letters. I note that the CSE could have conducted evaluations and re-evaluations and met at any time prior to the yearly IEP meeting to address the Parent's concerns.
Under these circumstances, I do not believe the Parent should be denied tuition reimbursement based on equitable considerations. Therefore, I find that equitable considerations do not bar an award to the Parent.
NOW therefore, it is hereby
ORDERED that the DOE shall provide the student with the following compensatory services, the cost of which shall be paid by the DOE upon its receipt of reasonably satisfactory proof that services have been rendered to the student:
(a) Individual : (400) hours divided by (24) months (representing a 12-month school year) = (16.67) hours per month, then (400) hours minus (16.67 x 2 = 33.34) hours equals (366.66) hours for a (10) month school year, (366.66) hours minus (91.66) hours (representing ¼ of a 10month school year) = 274.34 hours of individual awarded; and
(b) : (1,380) hours divided by (24) months (representing a 12-month school year) = (57.5) hours per month, then (1,380) hours minus (57.5 x 2 = 115) hours equals (1,265) hours for a
(10) month school year, (1265) minus (316.25) hours (representing ¼ of a 10-month school year) = 948.75 hours of awarded at the rate of $110.00 per hour (T-777); and
(c) a “System 7” computer to be purchased and/or loaned to the student with printer, scanner and router plus the following software: MS Word, Kurzweil 3000, Dragon Naturally Speaking 11, Math Pad, Math Pad Plus, Type to Learn 4 and Bookshare Membership, plus 25 hours of Assistive Technology Consultative Services for one year; and
(e) all of the Parent’s other requested relief has either already been provided, i.e. Independent Educational Evaluations (“IEE”) (T-39-40), or is denied; and
(f) that the CSE shall forthwith reconvene and consider all of the student’s relevant evaluations, including her IEE evaluations and produce a new IEP for the student. Dated: October 18, 2012
_____________________________
EDGAR DE LEON, ESQ.
Impartial Hearing Officer
ED:jj
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 Impartial Hearing Request, 1/24/11, 10 pp. B Amended Due Process Response, 7/13/10, 6 pp. C IEP, 6/4/10, 16 pp. D IEP, 5/24/10, 20 pp. E IEP, 5/26/09, 15 pp. F IEP, 5/13/08, 15 pp. G Reevaluation, 5/27/10, 5 pp. H Developmental Pediatrics Evaluation, 4/20/10, 3 pp. I Visit Notes, 2/24/10, 7 pp. J Evaluation, 1/7/10, 6 pp. K Progress Report, 5/13/08, 1 p. L Bilingual Educational Evaluation, 5/2/08, 7 pp. M Progress Report, 6/1/09, 2 pp. N Notice of Recommendation for Annual Rev, 6/24/10, 1 p. O Notice of IEP Meeting, 5/27/10, 1 p. P Letter from the Parent, 5/26/10, 1 p. Q Letter from MS, 5/14/10, 1 p. R FNR, 5/25/10, 1 p. S Letter from the Parent, 9/24/09, 1 p. T Letter from the Parent, 5/26/09, 1 p. U Notice of IEP, 5/26/09, 1 p. V FNR of Modification of IEP, 5/13/08, 1 p. W Letter from the Parent, 1/31/08, 1 p. X Letter from the Parent, 12/15/07, 2 pp. Y NYC DOE EPIC Facilitator’s Guide, Winter 2010, 57 pp. Z Assessment Memo, 8/23/10, 18 pp. AA Referral Evaluation Review Form, 9/26/02 and 4/15/03, 1 p. BB Progress Report, 5/6/08, 1 p. CC Evaluation, 3/2/08, 20 pp. DD Bilingual Evaluation, 6/20/11, 6 pp. EE Evaluation, 6/23/11, 71 pp. FF Assistive Tech. Assessment, 9/2011-10/2011, 10 pp. GG Report, 8/26/11, 1 p.
DEPARTMENT OF EDUCATION
1 Progress Report Card 2008-2009, 3/11/11, 1 p. 2 Student Report Card 2009, 3/11/11, 1 p. 3 Student Biographical Information, 3/10/11, 2 pp. 4 Admission and Discharge History, 3/10/11, 1 p. 5 Attendance History for 2010, 3/10/11, 2 pp. 6 Exam History, 3/10/11, 2 pp. 7 Address History Inquiry, 3/10/11, 1 p. 8 “Main”, 3/10/11, 3 pp. 9 Class Details, class 802-E33, 3/10/11, 2 pp. 10 Class Details, class 801- E303, 3/10/11, 2 pp. 11 DIIT-General Inquiry, 3/10/11, 1 p. 12 Exam History Inquiry, 3/10/11, 6 pp. 13 Contact Sheet, Various Dates, 1 p. 14 Transmittal Summary, Undated, 1 p. 15 EPC/CSE Conference Results, Undated, 1 p. 16 Final Notice of Recommendation, 6/4/10, 1 p. 17 Individualized Educational Plan, 6/4/10, 16 pp. 18 Re-Evaluation, 3/28/10, 5 pp. 19 2-Hour Comprehensive Psy. Evaluation, 1/27/10, 7 pp. 20 Physical Examination, 7/12/09, 3 pp. 21 Pathology Visit Note, 8/12/10, 7 pp. 22 Progress Report, 6/4/10, 1 p. 23 Progress Report, 5/27/10, 1 p. 24 Notice of IEP Re-Evaluation, 5/27/10, 2 pp. 25 Notice of Request for Re-Evaluation, 5/27/10, 1 p. 26 Contemporary Evaluation, 5/27/10, 1 p. 27 Acknowledgment, 5/31/10, 1 p. 28 Letter from , 5/26/10, 1 p. 29 SBST/CSE Exam Completion, 5/27/10, 1 p. 30 Student Biographical Information, 5/27/10, 2 pp. 31 General Inquiry, 5/27/10, 1 p. 32 Detailed Placement Inquiry Screen, 5/27/10, 1 p. 33 Student Evaluation Detail Inquiry, 5/27/10, 1 p. 34 General Inquiry, 5/27/10, 1 p. 35 Detail Inquiry Placement Screen, 5/27/10, 1 p. 36 Related Service Student Information, 5/27/10, 1 p.
Footnotes
[29] C.F.R. § 1630.2(o)(ii) and (iii). This description too is nonexclusive; the EEOC notes that “[t]here are any number of other specific accommodations that may be appropriate for particular situations but are not specifically mentioned” in § 1630.2(o). EEOC, Interpretive Guidance on Title I of the Americans with Disabilities Act,29 C.F.R. pt. 1630, app. at 344 (1996). An accommodation is “reasonable,” however, “only if its costs are not clearly disproportionate to the benefits that it will produce.” Borkowski, 63 F.3d at 138. (emphasis added) As to the requirement that the requested accommodation be reasonable, “we have held that the plaintiff bears only a burden of production.” Id.; see Gilbert v. Frank, 949 F.2d at 642. This burden “is not a heavy one.... It is enough for the plaintiff to suggest the existence of a plausible