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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 26, 2013
April 18, 2012
April 27, 2012
May 16, 2012
May 25, 2012
June 8, 2012
June 13, 2012
June 22, 2012
June 27, 2012
July 31, 2012
August 17, 2012
September 19, 2012
November 9, 2012
November 16, 2012
November 30, 2012
January 9, 2013
February 22, 2013
March 15, 2013
March 29, 2013
June 21, 2013 Actual Record Closed Date: September 30, 2013
Hearing Officer: Judith Kramer, Esq.
NAMES AND TITLES OF PERSONS WHO APPEA ON MARCH 26, 2012
For the Student:
Attorney Representing the Family, Via Telephone
For the Department of Education:
Representing the Department of Education, Via Telephone
NAMES AND TITLES OF PERSONS WHO APPEA ON APRIL 4, 2012
For the Student:
, Attorney
, Parent
, Student
For the Department of Education:
Representative
NAMES AND TITLES OF PERSONS WHO APPEA ON APRIL 18, 2012
For the Student:
, Attorney
For the Department of Education:
, Attorney
NAMES AND TITLES OF PERSONS WHO APPEA ON APRIL 27, 2012
For the Student:
, Attorney
, Parent
, Student
For the Department of Education:
, Attorney
, Assistant Principal
NAMES AND TITLES OF PERSONS WHO APPEA ON MAY 16, 2012
For the Student:
, Attorney
, Parent
, Student
For the Department of Education:
, Attorney
, Teacher (Via Telephone)
, Teacher (Via Telephone)
, Teacher (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEA ON MAY 25, 2012
For the Student:
, Attorney
, Parent
, Student
For the Department of Education:
, Attorney
Education Teacher (Via Telephone)
, Assistant Principal
l Education Teacher (Via Telephone)
Education Teacher (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEA ON JUNE 8, 2012
For the Student:
, Attorney
, Parent
. Student
, Teacher
For the Department of Education:
, Attorney
, Teacher (Via Telephone)
, Teacher (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEA ON JUNE 13, 2012
For the Student:
, Attorney
,
, Teacher
For the Department of Education:
, DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEA ON JUNE 22, 2012
For the Student:
, Attorney
Principal (Via Telephone)
Education Teacher (Via Telephone)
For the Department of Education:
, Attorney
NAMES AND TITLES OF PERSONS WHO APPEA ON JUNE 27, 2012
For the Student:
, Attorney
Ed Teacher (Via Telephone)
Pathologist (Via Telephone)
For the Department of Education:
, DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEA ON JULY 31, 2012
For the Student:
, Attorney
, Parent
, Student
For the Department of Education:
, DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEA ON AUGUST 17, 2012
For the Student:
, Attorney
, Parent
, Student
(Via Telephone)
For the Department of Education:
, DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEA ON SEPTEMBER 19, 2012
For the Student:
, Attorney
For the Department of Education:
, Attorney
, Attorney
NAMES AND TITLES OF PERSONS WHO APPEA ON NOVEMBER 9, 2012
For the Student:
, Attorney
, Mother
, Student
(Via Telephone)
For the Department of Education:
, Attorney
, Attorney
NAMES AND TITLES OF PERSONS WHO APPEA ON NOVEMBER 16, 2013
For the Student:
., Attorney
, Parent
, Student
(Via Telephone)
For the Department of Education:
ESQ., Attorney
, ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEA ON NOVEMBER 30, 2012
For the Student:
, Attorney
, Parent
, Student
(Via Telephone)
(Via Telephone)
For the Department of Education:
, Attorney
NAMES AND TITLES OF PERSONS WHO APPEA ON JANUARY 9, 2013
For the Student:
, Attorney
, Mother
, Student
(Via Telephone)
For the Department of Education:
, Attorney
NAMES AND TITLES OF PERSONS WHO APPEA ON FEBRUARY 22, 2013
For the Student:
, Attorney
, Parent
(Via telephone)
For the Department of Education:
Department of Education Attorney
NAMES AND TITLES OF PERSONS WHO APPEA ON MARCH 15, 2013
For the Student:
, Attorney
, Parent
Director, Via Telephone
For the Department of Education:
, Attorney
NAMES AND TITLES OF PERSONS WHO APPEA ON MARCH 29, 2013
For the Student:
, Attorney
For the Department of Education:
, Attorney
NAMES AND TITLES OF PERSONS WHO APPEA ON JUNE 21, 2013
For the Student:
, Attorney
For the Department of Education:
, DOE Attorney
INTRODUCTION
On April 4, 2012, an impartial hearing was commenced pursuant to the Individuals With Education Act (“IDEA”), 20 U.S.C. 1415 regarding an application for pendency in connection with a request which alleged the failure of the Department of Education (DOE) to provide a free and appropriate public education (FAPE) to M (“the student“) for the 2009- 2010, 2010-2011, 2011-2012 school years. On April 12, 2012, the pendency hearing was continued. The hearing on the merits was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing on the merits commenced on April 18, 2012 at 2:05 p.m., was continued on various dates and concluded on June 21, 2013.
A list of exhibits that were admitted into evidence is attached to this decision.
BACKGROUND
On March 8, 2012 the parent on her own behalf and on behalf of the student filed a request for an impartial hearing alleging that the student was denied a FAPE during the 2009-2010, 2010-2011 and 2011-2012 school years because, among other things, she allege various procedural and substantive violations during the Individualized Education Program (IEP) process and the failure of the DOE to implement the IEPs in place for those school years.
The student, who was classified as , attended School. (“”) His IEP’s were updated regularly each year but were not always created and implemented timely and were not always reflective of the student’s then current needs. In the Education Teacher Support Services () were eliminated from the IEP in the and his services were uced. In his last semester, when he attended a worked study program at the Home (“”), his program was changed prior to the IEP meeting and his mandated related service of was not provided. He received some education services in each of the years in question but not always in the way they were mandated on his IEP. The student’s were not at at the time of but his teachers reported that he made each year in some areas of but could not quantify the . The student’s , although variable and at times at with assistance, were overall below at the time of his . All of his teachers thought that he was a very hard worker, .
This case presents the question, in the first instance, of whether a student who has received a local is still eligible to receive compensatory education/ services after . The second question is whether the parent is time bar from asserting claims that exceed the two year statute of limitations. The third question is whether FAPE was provided to the student in any or some of the years in question. Finally, the last question is what relief, if any, the student should be granted.
THE PARENT and STUDENT’S POSITION
The parent and the student contend that:1) he is eligible for compensatory services and/or compensatory education; 2) their claims for all three years are timely; 3) the student was denied a FAPE in all three years at issue due to the DOE’s : A) failure to student; B) failure to develop timely, substantively and procedurally appropriate IEPs; C) failure to have the Committee on Education (CSE) teams duly constituted; D) failure to implement the IEPs; E) failure to identify all of his ; improper uction of related services;
F) improper change of program to fewer ICT classes without justification; G) termination without justification; H) termination of without justification; I) failure to provide specific and measurable goals on the IEP; and J) failure to provide a legally sufficient plan. The parent and student further contend that, though they need not show that the violations were “gross”, they were and thus, they seek compensatory education and/or compensatory education services in various amounts of different services at DOE expense and independent at DOE expense.
THE DOE’S POSITION
The DOE contends that the stature of limitations bars the claims made for the 2009-2010 school year. They further contend that since the student has received a local , he is bar from receiving any further education services at DOE expense including compensatory education or services. Finally it contends that in any event, the student was not denied FAPE in any of the school years in question and that the request should be denied in its entirety. Finally, the DOE contends that if compensatory services are awarded, the parent failed to meet her burden to justify the amount of such services that she is requesting.
FINDINGS OF FACT
The student is ( ) years old and attended School (“”) from until he . (Ex. 7;
T. 1637). During that time, the student was classified with and had Individualized Education Programs (“IEPs”) in place that provided that he have a program. (Exs.B,C,D, L). The IEP reviews covering those school years took place on December 18, 2008, December 19, 2009, December 22, 2010 and November 28, 2011. After he received a local from school, he was then services from the DOE.
school year
The 2009 IEP was written before the CSE meeting. It was unclear who prepa the goals or recommendations for . (T. 972-6, T. 1509-10; 1512-13). The parent attended the 2009 IEP meeting and stated that she received money from the DOE for a lawsuit to for the student which she did. (T. 990). The school was “concerned” that the student’s was ,“not at ” and that, based on his , he could benefit from . was not recommended on the IEP but the parent was informed that it was available at the school. (T. 952, 954,956. 987, 988). The parent agreed with the recommendations on the IEP and she seemed very knowledgeable about the process. The parent did not request ( ) for the student. The 2009 IEP recommends the same program as the 2008 IEP, except that the 2009 IEP uced . (Compare Exs. C & D). ICT classes were again recommended in 3 academic subjects (Ex. D at 7, Ex. 7). 1
.
School Year.
The December 2009 IEP was in effect at the commencement of the 2010-2011 school year. That IEP mandated that the student be placed in ICT classes for three academic subjects . For the first term of the 2010 -2011 school year, the student had two
Class codes with a “T” meant ICT or CCT classes. (T. 697).
7. (Ex. 7; T. 1661). In the , he took world studies in a large general education class but was taught by a teacher who was once provisionally licensed in Education.
The student had in the of 2010. (T.1340). The period was 40 minutes. (T. 1344). The academic skills of the students in the group could range (T. 1314, 1459-60). The students had different goals. (T. 1344). The teacher did not
The 2010 IEP team relied upon various prior to creating the IEP. They relied upon the Educational Performance (T. 1360,1376-1377) The CSE terminated the student’s class, increased his grouping .( Compare Ex. D. with I, i). No one provided the parent. with any or reports before or during the 2010 meeting. (T. 2776-7).
A component of the was administe to the student by his resource room () teacher on December 14, 2010 because there was concern about the academic reported on his 2008 . (T. 1373-5).
The 2010 IEP meeting began with the assistant principal, the parent and the the teacher “ as ” (Tr. 1365-6, 1371-2, 1384), as she could not fulfill her responsibility to develop an appropriate IEP if she was not allowed to have the student . (T. 1385). It was her understanding that you could not place the student in a more without a and she wanted to change his placement to a self-contained class.. It was not necessary to do more unless the parent requests it. The mother did not request that any new or that an be done. No one at the meeting believed that the student needed AT. The mother did not request any additional services or programs. The mother did not express an opinion with
No or was produced and there was no discussion about services or post-plans at the 2010 review. (T. 1386-7, 2774-5). There was no one at the IEP meeting responsible for making a decision about services . No one was able to identify any services that the student. received in 2010-11. (T. 797-8). However, the work study program at the was discussed. At some point, the parent was informed about .
The general education teacher for his second class of the year, testified that although the 2010 IEP requi the student to be placed in an (Tr. 1317), such a placement would not be (T. 1318). school year
).
CONCLUSIONS OF LAW
In general, under the IDEA, a child with a is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). FAPE consists of a program that enables a child “to receive ‘meaningful educational benefits’.” R.E. v. N.Y. City Dep’t of Educ., 2011 WL 924895, No. 10 Civ. 3176, at *9 (S.D.N.Y. Mar. 15, 2011) (emphasis added). FAPE does not require the student to be offe an optimum education. It requires only that the student have an opportunity to receive a meaningful educational benefit and that the existing mandates on his IEP’s are appropriate and have been met. In this case, the student’s mandates were not met and thus, he was not provided with a FAPE in the relevant years. As more fully discussed below, although the student is a , he is entitled to compensatory services to some degree.. The Receipt of the Local
The first issue to be addressed here is whether the issuance to the student of a local precludes the claims for relief filed by the student and the parent in their entirety. The DOE contends that it does citing to the state and federal regulations. The DOE relies upon the Federal (34 C.F.R §300.102[a][3][i]) and New York (8NYCRR 100.5[b][7][iii]) regulations for . The parent’s counsel, of course, does not agree. She argues, correctly, that the student remained eligible for a FAPE following the issuance of the local in 2012 since, looking at the federal regulation in its entirety, the right to a FAPE ends only when a student graduates with a “ ” which “does not include an alternative degree that is not fully aligned with the standards, such as a certificate or a general educational (GED).” 34 CFR §300.102(3)(iv).
The grant of a local to students with does not fully align with the State’s academic standards. It is a policy that allows districts to issue s that the state designated as equivalent to a “regular ,” but which are earned by achieving standards that would otherwise be conside failing if applied to a student without a . (Ex. Y, X, UU). The policy allows a student with an IEP to earn a local even if
The Statue of Limitations
The second issue to be addressed is whether the claims relating to the 2009-2010 school year are time-bar. Under the 2004 Reauthorization of IDEA, the IDEA requires that, unless a state established a different limitations period under state law, a party must request a due process hearing within two years of when a party knew or should have known of the alleged action that forms the basis of the complaint. 20 U.S.C. § 1415(f)(3)(C) see also 20 U.S.C. § 1415(b)(6)(B); Educ. Law § 4404(1)(a). The SRO applies the same standard two year statute of limitations to IDEA claims. Application of a Child with a , Appeal No. 06-086.
A claim accrues when the complaining party knew or should have known of the involved. In the instant matter, the parent’s 2009-2010 school year accrued more than two years before March 8, 2012, the date of the impartial hearing request. The parent and the student include allegations regarding the December 18, 2008, IEP which relates to both the 2008-2009 and 2009-2010 school years. The allege, among other things, that the IEP was substantively and procedurally flawed. Since the IEP was created in 2008, these claims relating to the 2009-2010 school year alleging procedural and substantive flaws in the 2008 IEP accrued as of December 2008 while the others relating to the procedural and substantive claims of the December 2009 IEP accrued upon the date of the second IEP for the second half of that academic year. In addition, the claims relating to the implementation of the December 2008 IEP accrued at the beginning of the 2009-2010 school year and the claims relating to the implementation of the December 2009 IEP accrued in December/January 2009 when that IEP was to be implemented. Thus, the claims for the 2009-2010 school year are time-bar unless the parent and student have shown that they into one of the exceptions to the application of the two-year statute of limitations.
Pursuant to New York Education Law Section 4404[1][a] there are two statutory exceptions to the two year statute of limitations, the timeline shall not apply if the parent was prevented from requesting a hearing due to (1) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or (2) the local educational agency witeld information that was requi to be provided to the parent. 20 U.S.C. § 1415(f)(3)(D)(i); 34 CFR 300.51(f); 8 NYCRR 200.5(j)(1)(i). Here, there was no evidence of specific misrepresentations made to the parent by the DOE, nor was there any evidence that the DOE witeld information requi to be provided to the parent. Further, the parent was a participant in all of the IEP meetings in question and as such was aware of the student’s classification and education services that the DOE was recommending and ultimately provided to the student.2 She was on notice at the time of each of the IEP meetings. Moreover, the parent was well aware of her due process rights, having successfully commenced a prior due process hearing against the DOE in 2005.
School Year.
The December 2009 IEP was in effect at the commencement of the 2010-2011 school year. That IEP mandated that the student be placed in
Similarly, the CSE did not discuss any basis or rationale for the changes made to the portions of the IEP. The did not attend the review and could not say when she wrote her IEP page (T. 1505). She did not know why the 2010 IEP contained only one goal. (T. 1534-5). She had no role in the decision to increase the
By the semester of the 2011-2012 school year, the student had earned sufficient cits and passed all but one requi . He elected to attend in order to receive in lieu of returning to . Board of Educ., 197 F.3d 793 (6th Cir. 1999); see also M.C. v. Katonah/Lewisboro Union Free Sch. Dist., No. 10 CV 6268, 2012 WL 834350 (S.D.N.Y. March. 5, 2012)
In addition, the teacher administe two informal to the student prior to beginning his instruction. Although the parent now complains that she never consented to those , it is hard to imagine the basis of that complaint given the positive outcome of the instruction. However, while at , the student did not receive any other education services including which the assistant principal at agreed he was entitled to at that time. Accordingly, the student was not provided with all of his mandated services during the 2011-2012 school year resulting in a denial of FAPE.
The fact that a new conducted in 2012 revealed that one expert believes
The CSE had a substantial amount of evaluative information available at the time of the IEP meetings held to discuss the students 2010-2011 and 2011-2012 school years. An appropriate educational program begins with an IEP that accurately reflects the results of to identify the services. 34 C.F.R. §300.320(a); 8 NYCRR 200.4(d)(2). Federal and State regulations mandate that each child with a be at least once every three years (34 C.F.R. § 300.303[b][2]; 8 NYCRR 200.4[b][4]). The procedure for a requires qualified educational professionals to conduct an initial review of the existing data including information provided by the student's parents, current classroom-based and observations, and observations by teachers and related service providers (34 C.F.R. § 300.305[a][1]; 8 NYCRR 200.4[b][5][i]). Based on that review, and based on input from the student's parents, the CSE must then identify what additional information, if any, is needed to determine whether the student continues to have an educational , the student's present of performance, whether the student needs education services, or whether any additions or modifications to the education services are needed. 34 C.F.R. § 300.305[a][2]; 8 NYCRR 200.4[b][5][ii]. If additional information is needed, the school district must administer tests and obtain other materials to produce the needed information. 34 C.F.R. § 300.305[c]; 8 NYCRR 200.4[b][5][iii] (emphasis added). Here, the DOE did not believe that a full re-was needed. It had an updated of academic performance which sufficed. In Connor v. New York City Department of Education, 2009 WL 3335760, (SDNY), the District Court held that there was no denial of FAPE where the District did not conduct a new of the student but changed her program recommendation.
In the instant matter, had sufficient information regarding the student’s current academic and ultimately recommended services based on the current information about the student. With the exception of the teacher, the student’s teachers at the time were the ones who participated in the 2010 meeting. Informal and teacher reports as well as discussions at the meetings provided the IEP team with sufficient information to draft appropriate academic goals for the student. The propriety of an IEP must be assessed in light of the information known at the time of its formulation. See J.A. v. E. Ramapo Cent. Sch. Dist., 603 F. Supp.2d 684, 689 (S.D.N.Y. 2009) (Young, U.S.D.J.). Here, the student’s parent and teachers gave input in the creation of the 2010 IEP in question. Moreover, all of the IEE’s obtained by the parent during the course of this litigation, confirmed the findings made in the prior . They revealed little if any new information that would have affected the program recommendations in the IEPs nor did the suggest that it would have.3
Federal and State regulations provide that a parent has the right to an IEE at public expense if the parent disagrees with an obtained by the school district. 34 C.F.R. § 300.502[b][1]; 8 NYCRR 200.5[g][1]. In the instant matter, the parent did not challenge the appropriateness of the performed by the DOE. The parent simply stated that the DOE did not perform new prior to the IEP meetings. But, the CSE teams had several before it including a 2005 , a 2005 as well as a 2008 updated to that containing academic testing results. The DOE is not requi to conduct annual . They conduct triennially and others when warranted. Moreover, the parent never made a request to the CSE for additional DOE . Instead, she belatedly requested IEEs in the due process complaint and at the impartial hearing. The parent did not request any of the during or prior to any of the relevant CSE meetings.
The parent and the student’s claim that the DOE failed to properly “
Legally valid “” and “re” are used to determine a child’s eligibility and classification, and to develop the “content of the child's IEP, including information related to enabling the child to be involved in and in the general education curriculum.” 34 CFR§ 300.304. They are intended to assess and describe students’ “individual needs” and the extent of their “educational and achievement.” 8 NYCRR § 200.4(b)(4). They also determine whether any “additions or modifications” are needed in order to enable at student to meet his goals and to participate in the general education curriculum. 34 CFR §300.305.
In this case, the student was prior to the creation of the 2010 IEP. There was an updated prepa reflecting the student academic . It was prepa by a .. (Ex. 14 ). There was no performed and there were no and
Moreover, the parent insists that the DOE the student. However, the DOE does not have an obligation or the ability to “” students. It merely classifies them based upon professional . In 2007, the student was classified as . This classification has been in effect for his entire school career. It was not challenged until the hearing in 2012 when the parent produced evidence from The DOE has never had the opportunity to review these reports prior to the hearing or to conduct its own with regard to the newly raised . It is simply not appropriate for any compensatory relief to be granted for such belated which the CSE never had an opportunity to consider during the school years in question. As such the parents’ request for reimbursement for the IEE’s is denied. Compliance with procedural and substantive requirements of the IDEA and regulations
IEP teams must “take whatever action is necessary to ensure that the parent understands the proceedings” at the IEP meeting (34 CFR §300.322[e]). Prior written notice (“”) must be provided (in language understandable to the public whenever the district “proposes” or “refuses” to “initiate or change” “the identification, , or educational placement of [a] child, or the provision of a free appropriate public education to the child” (20 USC §1415[b][3][B][c]; 34 CFR §300.503[c]). For the 2010-2011 school year, the parent may not have received a for the IEP meeting, however, she does not deny that she attended it. In addition, she was quite familiar with DOE procedures and participated at the meeting. Moreover, there was no change in educational placement made for which the DOE was requi to give her notice. The final notice of recommendation (FNR) was provided.. Thus, any violation of these regulations were de minimus and did not violate FAPE.
For the 2011-2012 school year, the DOE did not meet all of its procedural and substantive obligations. It did not provide in relation to the student’s which is conside a “change of placement” that technically requi . It similarly failed to provide the parent with “a summary of the student’s academic achievement and performance” that “include[d] recommendations on how to assist [him] in meeting [his] goals.” 20 USC § 1414(c); 34 CFR §300.305. The student and the parent were aware of the achievement prior to his entry in . They were aware that all he requi for was to pass . In addition, the parent was not given of the November IEP meeting which took place by phone. Although the IEP reflect the participation of a full IEP team, the only participants on the phone, according to the parent, appea to be just the teacher and the parent. The parent’s testimony in this regard is cible because the IEP states that the student participated and the parent said he was not on the phone nor did she hear any other voices participating in the meeting.. Thus, the IEP team was not properly constituted. However, once again, the parent did have an opportunity to discuss the change of placement from to on three separate occasions so she was not unaware of the change of placement. In fact, she and the student agreed to it prior to the change to the IEP. The placement was explained to the student and he said that he understood that nature of the placement at the . He welcomed it because he said he no longer wanted to attend . Thus, once again, the consequences of the failure of the DOE to give of the IEP meeting and to provide the parent with a summary of his academic achievement prior to his were de minimus and not a violation of FAPE. Services-
The IDEA requires that the student receive services upon his from school. Other than the plans that appea upon the student IEPs for the two years in question, the parent argues that the efforts of the DOE to provide additional services were not clearly established at the hearing. The parent argues that since the student had as a goal, the DOE was requi to ensure that the standards for preparation as set forth expresy in the were met. They apparently believe that unless all IEP students attain proficiency in all the standards set forth therein, they are denied a FAPE. This interpretation of the purpose of those standards is not reflected anywhere in them. The standards are intended to set forth expectations for students to have when working on their and which teachers should seek to help them achieve . Id. They set goals, not absolute requirements of achievement. To require the DOE to ensure that these standards must be met by each and every school student, with or without an IEP, who wishes to attend is unrealistic and is not requi by the IDEA or any other statute.
The parent further argues that the DOE did not have mandated “age appropriate related to training, education, employment, and, where skills” as requi by 34 C.F.R. § 300.320(b)(1)) They urge that a full should be conducted to explore e and ILS. However, the parent failed to accept some services that were offe and which would have provided the student with options. For example, the record shows that at least some staff members at were aware of his desire to attend community . They tried to prepare him for that endeavor by offering to refer the student to . could have done an and could have offe the student employment information. In addition, could have assisted the student in filling out applications for community . Yet, even though he obtained letters of recommendation from the staff, he refused to pursue services based upon his mother’s advice. Having refused services that were offe, neither the student nor the parent can now expect compensatory services because the services that were offe did not satisfy their unrealistic expectations. Technology
The parent is seeking an award of an . The record shows that parent has never raised the issue of technology at any of the IEP meetings. No one at the CSE meeting believed that was necessary. Thus, the CSE did not find it necessary to mandate on the IEPs. 4 Moreover, the student has responded and has improved his and writing skills without the use of . He, in fact, is seeking assistance in his request presumably because he assumes it will improve . Finally, as Dr. pointed out, there are several inexpensive might benefit the student in while working which he purchased with funds received from the DOE although she was unable to state that they would result in any improvement. Interestingly, the parent has not chosen to purchase these programs for her son to this day. Thus, the request for an is denied.
COMPENSATORY EDUCATION AND/ OR COMPENSATORY SERVICES
Compensatory education is an equitable remedy that is tailo to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). Compensatory education may be awarded to a student with a 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]). The DOE contends that compensatory education may not be awarded unless a “gross violation” of the IDEA is found. Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or 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. NYC Dept. of Educ., 538 F.3d 106, 109 n. 2 113 n.6 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69, 75 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071, 1078 (2d Cir. 1988); Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 (N.D.N.Y. 2001). The DOE contends that something well beyond a denial of a free appropriate public education (“FAPE”) is requi. See Carlie Area School v. Scott P., 62 F.3d 520 (3d Cir. 1995).
The parent contends that the gross violation standard need not be applied here. The parent acknowledges that the Second Circuit has applied that standard in some cases, but it has not been well established and has not been applied in all cases. For example, P v. Newington, 546 F.3d 111 (2d Cir. 2008), the court most recently ruled that a denial of FAPE will justify a compensatory education award; in that case, the student was still eligible but the court drew no distinction. On the other hand, the court’s dicta cited the gross violation standard with approval in another case that same year. Somoza v. New York City Dept. of Educ., 538 F.3d 106 (2d. Cir. 2008). In any event, the parent argues that whether a violation is “gross,” is subjective and may defined in various ways including: “glaringly noticeable”, “material ”; “large-scale,” or “blatant.”
The DOE essentially contends that that the attainment of passing s and regular advancement from to are generally accepted indicators of satisfactory (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998] and thus, precludes a finding that there were gross violations. However, that circular logic only applies if one were to accept the premise that the receipt of the local terminates a student’s access to education services. The DOE acknowledges that there are rare exceptional cases, wherein a student has graduated, received a local , and remains eligible for compensatory education because education services to which he was entitled were denied to him for substantial periods of The parent received a voucher with which she could purchase up to $3,000 worth of for the student as time without justification. This case fits into that category. The denial of mandated services were “material” as well as “blatant” and thus, “gross”. Thus, an award of compensatory education and or services is warranted.
Even in the absence of a finding that the denial of mandated services constitutes a gross violation, the DOE concedes that compensatory education relief in the form of supplemental education or related services may be awarded if there has been a denial of a FAPE (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]) (P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [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]"]. Compensatory services is an appropriate remedy where a board of education failed to provide the services recommended by its CSE and the degree of or harm that resulted from the school district’s failure to implement the recommended services must be clear. The record is clear that the student was denied his mandated services and that his service were uced without any meaningful input from the provider in the Spring of 2011. It is also clear that he was not given services during the semester of 2011 although they were mandated on his 2010 IEP. Moreover, there was no discussion of the removal of services from his IEP at the November 2011 IEP meeting but they were nonetheless removed from that IEP.
It is also clear that when the student receives proper individualized instruction, he is able to succeed. There are several clear examples of his success when proper services were provided. For example, the student was able to pass the regents when he was placed in the appropriate ICT class for and received . This was the only Regent he ever passed with a of at least 65 without the aid of the Safety Net.. The student passed the science RCT exam when he received daily 1:1 instruction. And, the student has been making steady since he began receiving individualized in and during the pendency of this lawsuit which he had been unable to do while at during his last two years. Thus, the denial of these mandated services or their unjustifiable removal from the IEP caused the student .
result of a class action settlement. (Ex ZZ) Thus, she was well aware of the existence of for students with. Transportation expenses
Transportation is a related service to which the student is entitled to travel to and from his service provider. The DOE should issue for all of the weeks he is entitled to compensatory services at least one week before each month.
While the parent has not met her burden to demonstrate that all of the requested relief is necessary for the remediation of the student, and it is in the discretion of the IHO to fashion a remedy, the student will be awarded compensatory services as so orde below. ORDE that:
1) The
4) the student shall receive transportation to and from his and services. The DOE should issue Metrocards for all of the weeks he is entitled to compensatory services at least one week before each month. Dated: October 7, 2013
________________________
JUDITH KRAMER, ESQ.
Impartial Hearing Officer JK:mv
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 ENTE INTO THE RECORD
| 1 | November 28, 2011 IEP 2011 [10] |
| 2 | January 13, 2012 Final Notice of Recommendation (FNR) 2012 2 |
| 3 | February 12, 2012 Letter re: 1 Parent’s Acknowledgment of Program (Due Process Rights) |
| 4 | November 15, 2001 1 |
| 5 | February 2, 2012 Signed Local Acceptance 1 |
| 6 | December 22, 2010 Final Notice of Recommendation (FNR) 2010 2 |
7 February 2, 2012 2
8 September 2011 1
9 September 9, 2011 2
11 June 28, 2005 4
12 June 3, 2005 2
13 December 10, 2008 Notice of IEP Meeting 2008 1
14 December 2, 2008 7
15 February 8, 2011 3
16 February 17, 2011 1
17 2009-2010 2
18 September 14, 2011 2
19 2001-2012 20
20 2006-2012 Exam Marks 10
| 21 | April 1, 2011 File Note Re: Mailing of IEP 1 |
| 22 | November 6, 2008 Contact Sheet 1 |
| 23 | May 9, 2005 Interim Order 4 |
| 24 | November 22, 2011 Transcript 2 |
| 25 | December 8, 2010 Letter 1 |
| 26 | Various Dates, May 2012 Emails 2 |
| 27 | 12/17/12 1 |
| 28 | Various Several Drafts 44 |
| 29 | Various Emails between Dr. 30 |
| 30 | Undated Calendar, Entry Form 2 Parent’s Exhibit List |
A Impartial Hearing Request 3/8/2012 17
B IEP 9/25/2008 12
C IEP 12/18/2008 13
D IEP 12/19/2009 14
E Due Process Response (3rd) 3/19/2012 5 F Due Process Response (2nd) 3/26/2012 5 G Due Process Response (1st) 3/19/2012 4 H 2008-2009 51
I IEP 12/22/10 15
J Correspondence between Counsel Various 2012 5 K 5/25/05 7 L NYC DOE 2011-2012 School Year Calendar 1/28/12 4 M Denied Various 8 N NYSED Planning Documents 2003 and 2008 35
O January 2012 4 P Denied Q 8/27/09 7 R Withdrawn S 2010 & 2011 25 T Undated 23 U Withdrawn on 6/21/13 V Denied W Curriculum 5/05 92 X Memorandum April 18, 2012 12
Y NYC DOE Requirements Summary 6/11 8 Z Centials for School Teachers Undated 25 AA (Revised Edition) 3/96 23 BB NYSED undated 6 CC - NYSED undated 63 DD Log Various dates 2 EE Regulation of the Chancellor A-501 11/13/09 25 FF Regulation of the Chancellor 6/1/12 13 GG and E 2009/2010 5 HH documents Various dates 5 II Student Transcript 9/6/11 2 JJ 6/5/12 and 6/11/12 14 KK Attachments to Exhibit JJ June 2012 67 LL Letter to 7/31/12 8 MM New York 6/2/10 and updated
85
1/10/11
NN (Appendix) Undated 107 OO Undated 53 PP 8/3/12 17 QQ Email from 12/14/12 7 RR 12/10/10 73 SS 1/27/12 62 TT 11/19/12 62 UU Undated 5 VV Revised 8/2008 6 WW Parent 1/16/12 1 XX Copyrighted 1997 140 YY Statement of Agreement and Order 7/21/05 5 ZZ Voucher for Educational Services Undated 26 AAA Denied BBB Denied CCC Denied DDD Denied EEE Denied FFF Short Order by 2/13/13 1 GGG New York State P- 83
HHH Withdrawn III Student-Specific Documents Produced by DOE Various 75 JJJ Emails between Counsel April and May 9
2013 KKK Subpoena 4/16/12 3 LLL Subpoena 6/16/12 2 MMMSubpoena 8/17/12 2 NNN New York State and 2004 and cover memoranda memorandum 2011
Footnotes
[10] December 18, 2008 Final Notice of Recommendation (FNR) 2008 1