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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: October 30, 2013
Actual Record Closed Date: October 31, 2013
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 30, 2013
Parents
Parent (via telephone) — Student
(via telephone) — Student
NO APPEARANCE
I. INTRODUCTION - ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the parent and the student in a due process complaint dated May 29, 2013. The primary issues to be determined at this hearing are whether or not the New York City Department of Education (the “DOE”) has denied the student a free appropriate public education (“FAPE”), and if so, whether compensatory additional services are warranted to remedy the violation (Ex. P-A).[1]
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 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 engage 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, or educational placement of a student with a , or a student suspected of having a , 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 forty-five (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
On May 31, 2013, I was appointed by the DOE to hear this matter following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). A pre-hearing conference was held on August 13, 2013 to clarify the issues and set dates for the hearing. See 8 NYCRR § 200.5(j)(3)(xi). A hearing in this matter was held on October 30, 2013.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the October 30, 2013 hearing, the student was years old and diagnosed with
On or about July 10, 2012, the parent requested an impartial hearing in which he challenged, inter alia, the appropriateness of the DOE placement, program and services for the student over a multi-year period (Case No. 139851). On November 19, 2012, Impartial Hearing Officer Deborah Berger issued a Decision and Order. IHO Berger’s Order was not appealed by either party and the time to do so has now expired. See 8 NYCRR §§ 200.5(k)(1); 279.2. IHO Berger ordered the DOE to provide the student with Order). IHO Berger also ordered the DOE to provide the parent with a Nickerson letter as an alternative (17 of Order).[4] IHO Berger also ordered the DOE to provide the student until the student was actually placed in a nonpublic school and ordered the continued provision of such services even after the student was placed in her nonpublic school (7(c) of Order). IHO Berger ordered the provision of Lastly, IHO Berger ordered the DOE to perform a
On December 4, 2012, the DOE issued the parent a Nickerson (P-1) letter, authorizing the student’s placement in a New York State approved nonpublic school at public expense (Ex. P-C).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE did not appear for the hearing. On October 17, 2013, all parties received notice of the October 30, 2013 hearing through the DOE’s Impartial Hearing System. As I did not receive any request from the DOE to adjourn, cancel or postpone the October 30, 2013 hearing following the October 17, 2013 notice, the October 30, 2013 hearing proceeded as scheduled (R. 18-21).
B. The Parent
The CSE has failed to afford the student with a FAPE for a significant period of time which warrants a compensatory remedy. The parent seeks compensatory additional services in the form of , as well as transportation (R. 28-33).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General Legal Standards
Two purposes of the IDEA are: (1) to ensure that students with 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 and parents of such students are protected.[5] 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 . 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 .” 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 s 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 Courts have repeatedly recognized the "broad discretion" that hearing officers and reviewing courts must employ under the IDEA when fashioning equitable relief, and as noted recently, courts have also "repeatedly rejected invitations to restrict the scope of remedial authority provided in Section 1415(i)(2)(C)(iii)." See Mr. and Mrs. A v. New York City Dept. of Educ., 769 F. Supp. 2d 403, 422-23, 427-30 (S.D.N.Y. 2011); see also Forest Grove v. T.A., 129 S. Ct. 2484 (2009).
Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no . It has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such could be remedied through the provision of additional services before the student becomes See Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); 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 ); Board 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 "makeup services" to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Child with a , Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
The DOE failed to appear for the October 30, 2013 hearing, and consequently, failed to meet its legal burden to demonstrate that its recommended educational program for the student was reasonably calculated to meet her educational needs (R. 18-21; Ex. PG). See N.Y. Educ. Law § 4404(1)(c); see also Rowley, 458 U.S. at 206-07. Alternatively, even after a thorough review of the evidence entered into the hearing record, I find that the CSE’s March 21, 2013 recommendation that the student be educated for the 2013/14
Given my finding that the DOE has denied the student a FAPE, and in light of credible and unrebutted testimony offered by Ms. of the amount and nature of instruction the student requires in order to make meaningful academic progress, I find that the student is entitled to compensatory additional services in the form of individual tutoring provided by the
C. Independent
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 obtained by the school district. See 34 C.F.R. § 300.502(a), (b); 8 NYCRR § 200.5(g)(1); see R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 (D. Conn. 2005)(finding parental failure to disagree with an obtained by a public agency defeated a parent's claim for an IEE at public expense). A parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an with which the parent disagrees." See 34 C.F.R. § 300.502(b)(5); 8 NYCRR § 200.5(g)(1); see R.L., 363 F. Supp. 2d at 234-35. If a 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 is appropriate or that the obtained by the parent does not meet the school district criteria. See 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv); A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 549 (D. Conn. 2002). If a school district's 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); DeMerchant v. Springfield Sch. Dist., 2007 WL 2572357, at *6 (D. Vt. Sept. 4, 2007).
I decline to order the DOE to s of the student as the hearing record does not indicate that the parent disagreed with any s obtained by the DOE as required by federal and State regulations that govern when a parent is entitled to an IEE at public expense (Exs. P-A at 3, P-K). See 34 C.F.R. §§ 300.502(a), (b); 8 NYCRR § 200.5(g)(1); R.L., 363 F. Supp. 2d at 234-35; Application of a Student with a , Appeal No. 11-001 at 6 (SRO Feb. 23, 2011).
D. Transportation
While the parent seeks transportation for he and the student to and from the in the form of paid MetroCards supplied by the DOE, in light of the absence of any case law specifically addressing this issue, I decline to award such relief to the parent (Exs. P-A at 4, P-K at 2).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
1. Within thirty (30) day of the date of this Order, the DOE shall authorize the student to receive
2. Within thirty (30) days of the date of this Order, the DOE shall authorize the student to receive
3. Within thirty (30) days of the date of this Order, the DOE shall directly pay the Dated: November 19, 2013
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
JJS: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 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 OCTOBER 30, 2013
PARENT
A. Due Process Complaint Notice/Impartial Hearing Request, 5/29/13, 4 pgs.
B. Findings of Fact and Decision (Case No. 139851), Impartial Hearing Officer
Deborah Berger, Esq., 11/19/12, 30 pgs.
C. P-1 (Pursuant to Impartial Hearing Order 139851) Letter, 12/4/12, 1 pg.
D. , 12/4/12, 2 pgs.
E. , 12/12-13/12, 4 pgs.
F. E-mail to , 3/8/13, 1 pg.
G. Individualized Education Program (IEP), 3/21/13, 12 pgs.
H. IEP Meeting Notice, 6/13/13, 6 pgs.
I. s, 5/9/13, 56 pgs.
J. Letter to Parent from DOE (L.V. v. NYC DOE), 6/27/13, 1 pg.
K. Affidavit of Parent, 10/16/13, 2 pgs.
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
I. Confirmation of Extension, 8/13/13, 1 pg.
II. Confirmation of Extension, 9/16/13, 1 pg.
III. Confirmation of Extension, 10/17/13, 1 pg.
IV. Letter to IHO , 11/11/13, 3 pgs.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] 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 parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that allowing the parties adequate time to present their available witnesses on the extensive issues raised in the parent’s 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. 11-12; Exs. IHO-I, IHO-II, IHO-III). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[4] A Nickerson letter is a letter from the DOE authorizing a parent to place a student in a State-approved nonpublic school at no cost to the parent. See Jose P. v. Ambach, No. 79 Civ. 270, 553 IDELR 298 (E.D.N.Y. Jan. 5, 1982). The remedy of a Nickerson letter is intended to address the situation in which a student has not been of referral to the CSE. See M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 279 (E.D.N.Y. 2010).
[5] 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.