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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: September 7, 2012
July 25, 2013
Actual Record Closed Date: August 2, 2013
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 7,
2013
ESQ., Attorney — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 25, 2013
ESQ., Attorney — Student
Parents
ESQ., Attorney — Student
Supervisor Psychologist (via telephone) — Student
ESQ., Attorney — DOE
JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the parents of the student on June 29, 2012, and was later amended on October 8, 2012. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to provide the student with compensatory additional services to remedy an alleged deprivation of services during the summer of 2012 and September
2012 (Exs. P-A, P-C).[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 one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to 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, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution period unless the compliance date is extended. 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 forty-five
(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 appeal that decision 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).
PROCEDURAL HISTORY
On June 29, 2012, the parents (then appearing pro se) filed a due process complaint notice (R. 263; Ex. P-A. See 8 NYCRR §§ 200.5(i)(1), (j)(1). On August 17, 2012, the DOE appointed me to serve as the IHO in this matter following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). The parents retained counsel and a pendency hearing with the parties was held on September 7, 2012 (R. 3-19). See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). On September 20, 2012, I rendered an Interim Order on Pendency which directed the DOE to maintain the student, at public expense, in special class program in a New York State approved nonpublic day school, supported by those related services set forth in a May 25, 2011 IEP pending the completion of this proceeding (R. 234; Ex. IHOI at 6-7). See id. Thereafter, the parents filed an amended due process complaint dated October 8, 2012 (R. 234; Ex. P-C). See 8 NYCRR § 200.5(i)(7). In a due process response dated October 15, 2012, the DOE denied each and every allegation contained in the parents’ amended due process complaint (Ex. P-D). See 8 NYCRR §§ 200.5(i)(4), (5). A pre-hearing conference with the parties was held on January 4, 2013 to clarify the issues and set dates for the hearing (R. 23-26, 234-235). See 8 NYCRR § 200.5(j)(3)(xi). On January 31, 2013, I granted the parties’ joint request to adjourn a February 4, 2013 hearing in this matter given their good faith efforts to arrive at a settlement of disputed issues which would obviate the need for a hearing. From that time through June 24, 2013, I received periodic reports from the parties that their efforts to arrive at a settlement were fruitful and nearing completion. On July 1, 2013, however, I received notice from the parties that they had failed to arrive at a settlement and wished to proceed with the hearing (R. 235). Another pre-hearing conference was held with the parties on July 18, 2013 (R. 236-237). A hearing in this matter was thereafter held on July 25, 2013. 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).
FACTUAL BACKGROUND
At the time of the June 29, 2012 due process complaint, the student ( ) years old and had been diagnosed with (Exs. SD-3 at 2, P-A, P-C at 1). From on or about October 1, 2012 through the present, the student attended an ungraded program at the in Manhattan pursuant to my September 20, 2012 Interim Order on Pendency (Exs. IHO-I at 6-7, SD-11, SD-12, P-I, P-J, P-K, P-L, P-M). The Commissioner of Education has approved the as a school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's current eligibility for special education and related services as a student with a I is not in dispute in this hearing (Exs. IHO-I at 5, P-A, P-C, P-D). See 34 C.F.R. § 300.8(c)(11); 8
NYCRR § 200.1(zz)(11).[2]
At a meeting held on May 25, 2011, the CSE recommended for the 2011/12 school year that the student receive the majority of his instruction in a special class in a New York State approved nonpublic school. The CSE also recommended that the student receive related services of education; , one (1) time per week for thirty (30)
minutes per session; , two (2) times per week for thirty (30) minutes per session; small group (2:1) , one (1) time per week for thirty (30) minutes per session; and (2:1) one
(1) time per week for thirty (30) minutes per session (R. 252; Ex. P-B at 1, 11, 13).
The student attended an ungraded program at the during the 2011/12 school year
(R. 252; Ex. SD-3 at 1). The Commissioner of Education has approved the Reese School as a school with which public school districts may contract to instruct students with disabilities (R. 252; Ex. P-C at 2). See 8 NYCRR §§ 200.1(d), 200.7. In a November 2011 educational progress report, Ms. , the student’s teacher at during the 2011/12 school year, noted that the student in the classroom setting requiring teacher prompts, reminders and redirection. In English/Language Arts, the student was working on making inferences and written expression and was level. In mathematics, the student was working on word problems and functioning in computation and problem solving at a grade level. The student received instruction in social studies and science using a modified curriculum (Ex. SD-4). The student was reportedly making progress on goals during individual and group (Ex. SD-5). During the student demonstrated , (Ex. SD-7 at 2).
In December of 2012, the student’s mother requested a reevaluation of the student because he was going to age out of the at the end of the 2011/12 school year and she wanted to secure an appropriate school for the student for the 2012/13 school year (Ex. SD-3 at 1). The was measured to be in the average range on a January 2012 e valuation using the DAS-II (ss 94). As measured by , the student was functioning within the (ss 130). Lastly, on the Woodcock-Johnson, the student demonstrated relative deficits in reading decoding (ss 91) and reading comprehension (ss 85) (R. 253-254; Exs. SD-2, SD14 at 2).
The CSE reconvened on March 2, 2012 and reviewed the student’s then-present levels of academic, . The CSE, however, did not make any specific program recommendation for the student other than to defer the matter to the DOE’s Central Based Support Team (“CBST”) (R. 256; Exs. SD-15 at 1, 6, 9, P-A at 2). Based on educational records assembled by Ms , a school who had chaired the March 2, 2012 CSE meeting, the CBST determined, in April or May of 2012, that the student was no longer appropriate for a New York State approved nonpublic school. Instead, the CBST stated that the student’s special education needs could be met in a small class in a community school with special education teacher support services (“SETSS”) (Exs. P-C at 2, P-P, PQ, P-R).
The CSE reportedly reconvened on May 23, 2012 and recommended for the 2012/13 school year that the student receive the majority of his instruction in a special class in a community school (although no IEP of such meeting was entered into the hearing record) (Ex. P-C at 2). On August 14, 2012, the DOE issued a Final Notice of Recommendation (“FNR”) which identified the student’s placement for the 2012/13 school year (Ex. SD-16).
POSITIONS OF THE PARTIES
A. The DOE
The DOE concedes that it denied the student a free appropriate public education for the 2012/13 school year. The parents’ claims for extended school year (twelve month) services for the summer of 2012 and for compensatory education, however, should be dismissed as moot. On the merits, there is no evidence in the hearing record that the student would have suffered substantial regression of skills without the provision of summer services. The parents’ compensatory education claim should be denied because: (1) the parents could have enrolled the student at the upon his acceptance into the program on September 7, 2012; (2) the DOE did not delay in securing a pendency program/placement for the student; and (3) the student suffered no actual harm from any missed instruction during the month of September 2012, as he has made substantial progress at the during the 2012/13 school year (R. 104-110, 123; Ex. IHO-II).
B. The Parents
The parents’ claims for extended school year (twelve month) services for the summer of 2012 and for compensatory education are not moot. On the merits, the DOE had no substantive basis for its determination that the student no longer required services on an extended school year basis. The student is entitled to compensatory education, as the DOE refused to implement his pendency placement, or provide any school placement, during the month of September 2012 (R. 110-122, 124-126; Ex. IHO-III).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General Legal Standards
Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.[3] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).
The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192 The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(I), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).
B. Extended School Year Services - Mootness
The parents seek a declaratory ruling that the March 2012 CSE erred in concluding that the student was ineligible for extended school year (twelve month) services for the summer of 2012 (Ex. IHO-III).[4]
It is well settled that the dispute between the parties in an appeal must at all stages be "real and live," and not "academic," or it risks becoming moot. See Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 (2d Cir. 2005); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008); see also Chenier v. Richard W., 82 N.Y.2d 830, 832 (1993); Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 (1980). In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted. See, e.g., Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 05-058; Application of a Child with a Disability, Appeal No. 04-027; Application of a Child with a Disability, Appeal No. 00-037; Application of the Bd. of Educ., Appeal No. 00-016; Application of a Child with a Disability, Appeal No. 96-37. Administrative decisions rendered in cases concerning such issues arising out of school years that have since expired may no longer appropriately address the current needs of the student. See Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 (5th Cir. 1989); M.S. v. New York City Dept. of Educ., 2010 WL 3377667, at *9 (E.D.N.Y. Aug. 25, 2010); Application of a Child with a Disability, Appeal No. 07-139; Application of the Bd. of Educ., Appeal No. 07-028; Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 04007.
However, an exception provides that a claim may not be moot, despite the end of a school year for which the student's IEP was written, if the conduct complained of is "capable of repetition, yet evading review." See Honig v. Doe, 484 U.S. 305, 318-23 (1988); Lillbask, 397 F.3d at 84-85; Daniel R.R., 874 F.2d at 1040. The exception applies only in limited situations, see City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), and is severely circumscribed, see Knaust v. City of Kingston, 157 F.3d 86, 88 (2d Cir. 1998). First, it must be apparent that "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration." Murphy v. Hunt, 455 U.S. 478, 482 (1982); see also Knaust, 157 F.3d at 88. Second, controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again. See Weinstein v. Bradford, 423 U.S. 147, 149 (1975); Hearst Corp., 50 N.Y.2d at 714-15. To create a reasonable expectation of recurrence, repetition must be more than theoretically possible. See Murphy, 455 U.S. at 482; Russman v. Bd. of Educ., 260 F.3d 114, 120 (2d Cir. 2001). Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence. See Russman, 260 F.3d at 120; M.S., 2010 WL 3377667, at *9 [noting that each year a new determination is made based on a student's continuing development]; J.N. v. Depew Union Free School Dist., 2008 WL 4501940, at *4 (W.D.N.Y. Sept. 30, 2008). Mootness may be raised at any stage of litigation. See In re Kurtzman, 194 F.3d 54, 58 (2d Cir. 1999).
Here, I find that the parents’ claim concerning the student’s eligibility for extended school year (twelve month) services during the summer of 2012 to be moot for reasons other than the passage of time. It is undisputed that the Reece School provided the student with summer services during the summer of 2012 at public expense, notwithstanding his aging out of that program on or about June 30, 2012 (Ex. SD-8). While the CSE’s March 2, 2012 IEP stated that the student was ineligible to receive special education services during July and August of 2012, as that IEP failed to recommend any program for the student and lacked a projected date of implementation, I find that it was a nullity (Ex. SD-15 at 1, 6-7, 9). While the CSE reportedly reconvened on May 25, 2012, no IEP from that meeting was offered into the hearing record by either party (Ex. P-C at 2). Given these circumstances, I find that any ruling on the student’s eligibility for extended school year (twelve month) services during the summer of 2012 would be academic, and thus the issue is now moot.
C. Compensatory Additional Services
Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. 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 school aged student 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 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 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 of twenty-one); 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 "make-up 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 Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
Here, the DOE has conceded that it denied the student a FAPE for the 2012/13 school year. As the student was educated at the during the summer of 2012 and the Learning Spring School from on or about October 1, 2012 through the present, the issue presented is what remedy, if any, is warranted for the deprivation of service to the student during the month of September 2012 (R. 268; Ex. IHO-III at 5). While the DOE argues that the student suffered no actual harm during September 2012, as evidenced by his progress at during the 2012/13 school year, I do not find that student’s progress on meeting outdated IEP goals equitably estops his claim for compensatory relief (Exs. SD11, SD-12, SD-14, P-B, P-I, P-J, P-K, P-L, P-M). The parents, in contrast, seek an award of sixty-four (64) hours of after-school academic tutoring, which they state is an equivalent number of hours of academic instruction the student would have received during September 2012 (Ex. IHO-III at 18, 25).
Pending its identification of a substantively equivalent pendency program, see Knight v. District of Columbia, 877 F.2d 1025, 1028 (2d Cir. 1989); Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751 (2d Cir. 1980); McKenzie v. Smith, 771 F.2d 1527, 1533 & n.13 (D.C. Cir. 1985); Letter to Fisher, 21 IDELR 992 (OSEP 1994), the DOE was obligated to provide the student with alternate instruction which I find, at a minimum, would have been two (2) hours per day of one-on-one home instruction (i.e., tutoring), see 8 NYCRR § 200.6(i)(2). As there were sixteen (16) instructional days during the month of September 2012 (Ex. IHO-III at 17), the DOE shall be ordered to provide the student with thirty-two (32) hours of after-school, one-to-one SETSS to compensate for the deprivation of services and denial of FAPE during the month of September 2012.
Alternatively, while the DOE argues that no remedy is warranted as it was not obligated to implement pendency services for the student until the dispute over the location of those services had been resolved, see Application of the Bd. of Education of the Arlington Cent. Sch. Dist., Appeal No. 10-111 at 7 (SRO Dec. 23, 2010); Application of the New York City Dep’t of Educ., Appeal No. 10-110 at 7 (SRO Dec. 7, 2010); Application of the Bd. of Educ. of the Tuxedo Union Free Sch. Dist., Appeal No. 07-125 at 5 (SRO Jan. 9, 2008), it is well settled that school districts must ensure that a student's IEP is in effect by the beginning of the school and that the parents are provided a copy, see J.G. v. Briarcliff Manor Union Free School Dist., 682 F. Supp. 2d 387, 396 (S.D.N.Y. 2010). Here, as there were no IEPs which recommended a special education program for the student for the 2012/13 school year, compensatory additional services is warranted to remedy the deprivation of FAPE during the month of September 2012.
Additionally, the DOE argues that the relevant equities do no support an award of compensatory additional services because the parents failed to enroll the student at the Learning Spring School for approximately one month after his September 7, 2012 acceptance to the school (Ex. IHO-II, P-F). Given the DOE’s failure, however, to provide the student with an IEP which recommended a special education program for the 2012/13 school year, see 8 NYCRR § 200.4(d)(2), its failure to provide the parents with prior written notice of recommendations made for the 2012/13 school year, see 8 NYCRR § 200.5(a), and its acknowledged failure to offer the student a FAPE for the 2012/13 school year, see 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17, it is difficult to weigh the relevant equities of this matter in the DOE’s favor. Ultimately, it was the DOE’s duty, not the parents, to have an IEP in place at the beginning of the 2012/13 school year. See J.G. v. Briarcliff Manor Union Free School Dist., 682 F. Supp. 2d 387, 396 (S.D.N.Y. 2010). But for the parents’ efforts to secure a seat for the student at the Learning Spring School, the DOE’s exposure in this matter would have been considerably greater.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT: Within thirty (30) days, the DOE shall begin providing the student with thirty-two (32) hours of after-school, one-on-one SETSS, via RSA’s, at a rate not to exceed $45 per hour. Dated: August 16, 2013
_______________________
JEFFREY SCHIRO, ESQ.
Impartial Hearing Officer JS: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 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 SEPTEMBER 7, 2012
PARENT
A. Impartial Hearing Request/Due Process Complaint Notice, 6/29/12, 1 pg.
B. Individualized Education Program (IEP), 5/25/11m 13 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 8, 2013
PARENT
C. Amended Impartial Hearing Request/Due Process Complaint Notice, 10/8/12, 4
pgs.
D. DOE Due Process Response, 10/15/12, 4 pgs.
E. Letter from parent, 9/13/12, 2 pgs.
F. Letter 9/7/12, 1 pg.
G. Attendance Record, 2012/13, 4 pgs.
H. Social History Update, 1/24/13, 2 pgs.
I. Progress Report, 6/7/13, 4 pgs.
J. Adaptive Physical Education Progress Report, 6/7/13, 1 pg.
K. Speech/Language Progress Report, 6/2013, 2 pgs.
L. Counseling Progress Report, 6/7/13, 1 pg.
M. Occupational Therapy Progress Report, 6/7/13, 2 pgs.
N. [Reserved]
O. [Reserved]
P. Central Response for Consideration of a State Approved Non-Public School,
5/7/12, 1 pg.
Q. DOE Assurance Checklist, 4/26/12, 2 pgs.
R. IEP Team Efforts to Place Student in Least Restrictive Environment, 4/26/12, 2
pgs.
S. CBST Student Case Profile, undated, 2 pgs.
DEPARTMENT OF EDUCATION
1. [Reserved]
2. DOE Evaluation, 1/20/12, 8 pgs.
3. DOE Social History Update, 12/27/11, 2 pgs.
4. Educational Progress Report, 11/2011, 6 pgs.
5. Progress Report, 11/15/11, 3 pgs.
6. Counseling Progress Report, 11/14/11, 2 pgs.
7. Occupational Therapy Progress Report, 11/15/11, 3 pgs.
8. Attendance Card, Summer 2012, 1 pg.
9. Application for Admission (mother), undated, 11 pgs.
10. Application for Admission (father), undated, 11 pgs.
11. Progress Report, 11/16/12, 10 pgs.
12. Progress Report, 3/15/13, 10 pgs.
13. [Reserved]
14. Consultation Report, 3/11, 22/13, 10 pgs.
15. Individualized Education Program (IEP), 3/2/12, 10 pgs.
16. Final Notice of Recommendation (FNR), 8/14/12, 1 pg.
IMPARTIAL HEARING OFFICER
I. Interim Order on Pendency, 9/20/12, 8 pgs.
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
II. Closing Brief & Memorandum of Law for the DOE, 8/9/13, 27 pgs.
III. Closing Statement & Memorandum of Law on behalf of and his Parents, 8/9/13,
25 pgs.
IV. Confirmation of Extension, 9/7/12, 1 pg.
V. Confirmation of Extension, 1/4/13, 1 pg.
VI. Confirmation of Extension, 1/31/13, 1 pg.
VII. Confirmation of Extension, 3/3/13, 1 pg.
VIII. Confirmation of Extension, 4/1/13, 1 pg.
IX. Confirmation of Extension, 5/1/13, 1 pg.
X. Confirmation of Extension, 6/3/13, 1 pg.
XI. Confirmation of Extension, 7/2/13, 1 pg.
XII. Confirmation of Extension, 7/26/13, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(11).
[3] 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.
[4] Twelve-month special service and/or program means a special education service and/or program provided on a year-round basis, for students determined to be eligible in accordance with sections 200.6(k)(1) and 200.16(i)(3)(v) of this Part whose disabilities required a structured learning environment of up to 12 months duration to prevent substantial regression. A special service and/or program shall operate for at least 30 school days during the months of July and August, inclusive of legal holidays, except that a program consisting solely of related service(s) shall be provided with the frequency and duration specified in the student’s individualized education program. 8 NYCRR § 200.1(eee).