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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: May 29, 2014
Actual Record Closed Date: June 16, 2014
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 29, 2014
Parents
District Representative, CSE 8 — DOE
Special Education Placement Officer — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the parent, who appears in this matter pro se, in a due process complaint notice dated April 3, 2014. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) provided the student with appropriate services on an equitable basis (Ex. IHO-
I).[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 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 April 22, 2014, the parties participated in a resolution session meeting, which did not yield an agreement on the disputed issues (Ex. P-C at 1-2). See 8 NYCRR § 200.5(j)(2). I was appointed by the DOE to hear this matter on May 6, 2014, following the recusal of another hearing officer. See 8 NYCRR §§ 200.5(j)(3)(i)-(ii). A pre-hearing conference was held on May 16, 2014 to clarify the issues and set a date for the hearing. See 8 NYCRR § 200.5(j)(3)(xi). 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 May 29, 2014 hearing, the and educationally classified as having a (R. 32; Exs. IHO-I at 2, SD-1 at 1, SD-2).[2] For the 2013/14 school year, the student’s fourth grade, she was voluntarily enrolled by her parent in a small nonpublic school located (R. 32; Exs. IHO-I at 2, SD-1 at 16, SD-2, SD-3). The student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing (Exs. IHO-I, SD-1 at 1, SD-2). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).
During the 2011/12 and 2012/13 school years, the student also attended the Waldorf School. Prior to that, the student attended in Brooklyn for two (2) years (2009/10 and 2010/11 school years). At the student received instruction in an integrated co-teaching (a/k/a collaborative team teaching) class with related services of speech/language therapy and occupational therapy (R. 62-63; Ex. IHO-II at 4).
Given the student’s history of deficits and the results of a February 9, 2011 , Dr. of the with disorder. On the Wechsler Intelligence Scale for Children - Fourth Edition, the student’s Verbal Comprehension score of fell within the Borderline range. Her Perceptual Reading score of 92 fell within the Average range. Her Working Memory score and Processing Speed score range of functioning (Ex. IHO-II at 4).
As part of a July 23, 2012 conducted by the DOE, the student was administered the Woodcock-Johnson Tests of Achievement - Third Edition. The student achieved the following scores on that assessment, reported as grade equivalents: letter-word identification ( ), reading fluency ( ), passage comprehension ( ), math calculation ( applied problems ( ) and spelling ( (Ex. IHO-II at 5-6).
On an August 17, 2012 , the student displayed difficulties and decreased developmentally appropriate hand manipulation increased the time the student required to accomplish school activities and due to . Individual was recommended to help the student improve her organizational planning, of the academic and fine motor skills and practice sensorimotor and sensory integration strategies (Ex. IHO-II at 6).
At a meeting held on September 10, 2012, the CSE developed an individualized education services plan (“IESP”) for the student for the 2012/13 school year and recommended that she receive special education teacher support services (“SETSS”) five
(5) times per week in a group of no more than (8:1); , two (2) times per week for thirty
(30) minutes per session; , one (1) time per week for thirty (30) minutes per session; and individual , two (2) times per week for thirty (30) minutes per session. On October 10, 2012, the parent provided the DOE with her written consent and agreement to the recommended IESP services (Ex. IHO-II at 6).
At a meeting held on September 18, 2013, the CSE developed an IESP for the student for the 2013/14 school year and recommended that she receive SETSS five (5) times per week; two (2) times per week for thirty (30) minutes per session; group , one
(1) time per week for thirty (30) minutes per session; and two (2) times per week for thirty (30) minutes per session (Exs. SD-1 at 14, SD-2).
IV. POSITIONS OF THE PARTIES
A. The DOE
The parent’s claim for compensatory additional services should be denied. The DOE fulfilled its legal obligations to the student by developing an IESP for the student on September 18, 2013 which called for the student to receive SETSS, individual and group . At the September 18, 2013 meeting, the parent was given a P-4 authorization with a list of providers that could implement the recommended SETSS service. The parent unreasonably rejected multiple licensed SETSS providers following the September 18, 2013 IESP meeting and the April 22, 2014 resolution session meeting (R. 33-35; Exs. SD-3, P-C).
B. The Parent
Despite diligent efforts, the parent has been unable to find an available and qualified individual to provide the student with recommended SETSS at the DOE’s standard rate. As a result, the student has been denied recommended SETSS services for the entire 2013/14 school year. The DOE should be ordered to fund compensatory SETSS services, such as Lindamood-Bell language intervention services, at an enhanced rate (R. 11-16, 18-19, 29-32; Ex. IHO-I).
V. 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). While the IDEA however, confers no individual entitlement to special education or related services to students who are parentally placed in nonpublic schools, see 20 U.S.C. § 1412(a)(10); Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 733-34 (2d Cir. 2007), it authorizes the delivery of special education services to be provided to parentally placed private school students located within a district “on the premises of private, including religious, schools, to the extent consistent with law,” see 20 U.S.C. § 1412(a)(10)(A)(i)(III).
In 2007, New York State amended Education Law Section 3602-c to comply with the reauthorization of 20 U.S.C. § 1412(a)(10) (“Children in Public Schools”) and its implementing regulations, 34 C.F.R. § 300.130 - 300.147. See N.Y. Educ. Law § 3602-c as amended by Ch. 378 of the Laws of 2007.[4] Education Law Section 3602-c commonly referred to as the dual enrollment statute - requires parents who seek to obtain educational services for students with disabilities placed in nonpublic schools to file a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. See N.Y. Educ. Law § 3602-c(2). The district of location’s CSE must review the request for services and develop an IESP based upon the student’s individual needs and “in the same manner and with the same contents” as an IEP. See N.Y. Educ. Law § 3602-c(2)(b)(1). In addition, the district of location’s CSE “shall assure that special education program and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” See id.
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. Recommended Dual Enrollment Services
As the student both resides in, and is privately educated, within the territorial boundaries of the DOE, the DOE is both the district of residence and district of location for purposes of a dual enrollment analysis under Section 3602-c of the New York Education Law. Consistent with its obligations under that statute, the CSE belatedly convened on September 18, 2013 to develop an IESP for the student following the parent’s June 11, 2013 written request for a meeting (Exs. SD-1, P-A at 6).
For the reasons set forth below, I find that the DOE failed to provide the student with appropriate services on an equitable basis. With respect to recommended SETSS, I find that the DOE’s mere issuance of a P-4 form, on or about September 18, 2013, failed to provide the student with appropriate services on an equitable basis (Exs. SD-1 at 14, SD-2, SD-3).
Generally, school districts are authorized to enter into contracts for special education services or programs, including related services, with other school districts, BOCES, State-operated and State-supported schools, approved private residential and nonresidential schools both inside and outside New York State. See N.Y. Educ. Law §§ 3602-c(2), (3), 4401(2), 4402(2)(b); Application of a Student with a Disability (New York Dep’t of Educ.), Appeal No. 12-050 at 28 (SRO June 5, 2012). School districts and BOCES, however, do not have the authority to contract with independent contractors for instructional services which are the very core and function of a school district, see Board of Cooperative Educ. Servs. v University of the State of New York, 40 A.D.3d 1349 (3d Dep’t 2007); Bork v. City Sch. Dist. of North Tonawanda, 60 A.D.2d 13 (4th Dep’t 1977), appeal denied, 44 N.Y.2d 647, Appeal of Barker, 45 Ed. Dept. Rep. 430; see also Johanna Duncan-Poitier & Rebecca H. Cort, Clarifying Information Related to Contracts for Instruction (VESID July 29, 2009), except in limited circumstances which are not present here, see John B. King & Erin M. O’Grady-Parent, Q&A Related to Contracts for Instruction (Office of P-12 Educ. June 2, 2010). In this case, the DOE’s P-4 authorization not only impermissibly contracts out core instructional services, i.e., SETSS, but it also impermissibly delegates to the parent the DOE’s duty to secure appropriate dual enrollment educational services for the student (R. 63).
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).
Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Reg’l Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem”).
Given the legal inadequacies of the P-4 authorization process for recommended SETSS as detailed above, and the fact that the student did not received any recommended SETSS services for the entirety of the 2013/14 school year, I find that the parent is entitled to compensatory SETSS. Applying the quantitative approach to calculating a compensatory education award, I note that the CSE recommended that the student receive SETSS five (5) times per week during the 2013/14 school year (Ex. SD-1 at 14). The student was enrolled in the fourth grade during the 2013/14 school year (R. 32). According to the DOE’s school calendar, there were approximately 180 instructional days for fourth grade students during the 2013/14 school year (Ex. IHO-III at 4). The DOE, therefore, shall be ordered to provide the student with 180 hours of compensatory SETSS. As the parent credibly testified that her efforts to secure recommended SETSS for the student were frustrated, in part, by the DOE’s standard rate for such service (R. 73-76; Exs. P-B, P-C), the compensatory SETSS ordered shall be funded by the DOE at an enhanced rate. Compensatory services may commence during the summer, contingent on parent and provider availability.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
(1) the parent’s claim that the student has been denied appropriate special education services on an equitable basis is SUSTAINED;
(2) within thirty (30) days of the date of his Order, the DOE shall begin providing the student with 180 hours of compensatory SETSS, as an enhanced rate, through June 30, 2015, which may commence during the summer months, at the discretion of the parent and provider. Dated: July 3, 2014
Jeffrey Schiro mv
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 ON MAY 29, 2014
PARENT
A. E-mail Correspondence, various dates, 6 pgs.
B. Craig’s List Listing, 5/23/14, 8 pgs.
C. Resolution Meeting Documents, 4/16/14, 9 pgs.
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), 9/18/13, 17 pgs.
2. Final Notice of Recommendation (FNR), 9/18/13, 1 pg.
3. SETSS Authorization (P-3/P-4) Form, 9/18/13, 1 pg.
IMPARTIAL HEARING OFFICER
I. Due Process Complaint Notice/Impartial Hearing Request, 4/3/14, 2 pgs.
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
II. Amended Findings of Fact & Decision (Case No ), 3/18/13, 14 pgs.
III. DOE 2013/14 School Year Calendar, 9/24/13, 4 pgs.
IV. Confirmation of Extension, 6/12/14, 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] In September 2007, the Office of Vocational and Educational Services for Individuals with Disabilities (“VESID”) published a guidance memorandum - “Chapter 378 of the Laws of 2007 - Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the [IDEA] 2004 and New York State (NYS) Education Law Section 3602-c” - to “inform school districts of their responsibilities to provide special education services to students with disabilities who are enrolled in nonpublic elementary or secondary schools by their parents.” Available at http://www.p12.nysed.gov/specialed/publications/policy/nonpublic907.pdf. VESID has since been reorganized and renamed, and is now referred to as the Office of Special Education.