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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: July 28, 2014
August 14, 2014
September 2, 2014
October 6, 2014
Actual Record Closed Date: October 24, 2014
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 28, 2014
Attorney — Student
Parents
Interpreter — Student
DOE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 14, 2014
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 2, 2014
Attorney — Student
Parents
DOE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 2, 2014
Attorney — Student
Parents
Impartial Hearing Representative — DOE
INTRODUCTION
On June 5, 2014, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article89 of the Education Law of the State of New York.
On July 28, 2014 a hearing was conducted. Pre Hearing Conference was conducted August 14, 2014. Hearing continued September 2, 2014, and concluded October 6, 2014. Appearances and documents entered into the record are appended hereto.
Parent hearing request, dated June 19, 2014, contained several allegations relating to the student’s most current and past Individual Education Programs (IEPs). (Ex 1)
Parent seeks relief related to alleged failure of the DOE to offer, and evaluate, classify, and provide, a Free and Appropriate Education (FAPE) to the student. This includes a reconvene or the IEP team, compensatory education and services relating to the alleged DOE failure, as well as an ). (Ex 1)
At hearing of July 28, 2014 the DOE acknowledged it had failed to offer the student a FAPE for the 2014-2015 school year, and offered several services to resolve the parent’s complaint. On and off the record discussions resulted in an agreement as indicated below and reflected in the Interim Order, dated 07/30/2014. (T 25-27, IHO Ex V)
Agreement included:
The DOE shall provide authorization for 12 hours weekly the student at an enhanced rate, commencing August 18, 2014 and continuing through the 2014-2015 school year. Up to two hours of the 12 total weekly hours may be used by the parent and provider for parent training related to the student’s needs;
The DOE shall complete of the student by September 1, 2014;
In the event the DEO cannot complete the above evaluation by September 1, 2014, then the DOE shall fund a parent up to the
At hearing of September 2, 2014 the recently obtained Neurological Evaluation was entered into evidence. (Ex 12)
At hearing of September 2, 2014, parties were able, after a period of time communicating on and off the record, to agree to the following, as indicated in Second Interim Order, dated September 4, 2014, IHO Ex VI):
DOE will convene a Committee on Special Education (CSE) to create an IEP for the student;
Said IEP shall contain a recommendation to defer the student to the Central Based Support Team (CBST) for placement in an approved non public school;
Said CSE will consider any and all new information obtained or offered at the meeting by the parent and DOE. This includes the Neurological Evaluation of August 26, 2014 (Ex 12), consideration of placement in a class with 8 students, and consideration of amending the student’s classification based contained in Evaluation, November 2013 (Ex 9-7);
Said IEP shall include 12 hours weekly Special Education Teacher Support Services (SETTS) to be delivered too the student at an enhanced rate, commencing August 18, 2014 and continuing through the 2014-2015 school year. Up to two hours of the 12 total weekly hours may be used by the parent and provider for parent training related to the student‘s needs. The IEP is not to contain an end date for services; DOE shall provide a copy of the finalized IEP and a copy package, to the parent by October 3, 2014.
On September 2, 2014, the DOE representative and parent attorney, made a motion to extend the compliance date by 30 days to for an IEP meeting to be conducted, which was anticipated to resolved several of the issues related to the hearing request. Motion was granted and compliance date was extended to September 27, 2014. (IHO Ex VIII)
On October 2, 2014, the DOE representative and parent attorney, made a motion to extend the compliance date by 30 days to for availability of witnesses. Motion was granted and compliance date was extended to 10/29/2014. (IHO Ex VII)
BACKGROUND
Student (Ex D 13), currently (T 19), and receiving home instruction (T 89).
As indicated below most issues related to the hearing request were resolved through a pair of Interim Orders. Remaining issues are set forth below and reflect some preferences by the parties regarding the specifications of the Final Order. (IHO Ex V & VI)
At hearing of October 6, 2014, and as indicated above, Parties agreed to the following: (T 102-103)
DOE will issue ”) for the related services listed on the September 16, 2014 IEP, which include:
A , two thirty minute sessions (Ex 13-14/15);
b. , two thirty minute sessions (Ex 13-15); and
c. , two thirty minute sessions (Ex 13-15).
DOE will provide authorization for 200 hours of Special Education Teacher Support Services (SETSS), which can be used as , to be delivered to the student at an enhanced rate. The 200 hours will be available for use for two years from the date of the final order.
THE PARENT’S POSITION
( ) presented the parent’s position throughout the hearing.
On the final hearing dated of October 6, 2014 ES presented the parent’s position.
“Since the last date of hearing an IEP meeting was held, and a deferral was made to the Central Based Support Team. Our office has been in contact with Ms.
(phonetic), who received the case in and we understand that applications have been sent out for a number of schools. The parent actually does have an interview set up for
Friday with one school. So you know, at this point, the deferral has been made; however, the student is not yet placed in a school, and the parent has two concerns to address today at the hearing--actually, three concerns. The first is a remaining compensatory education claim. The second is an independent educational evaluation claim, and the third would be a request for a date by which the student needs to be placed in a school. Those are the three issues from the parents' perspective.” (T 88-89)
At the time of hearing the student receiving the ordered . (T 89)
Parent also raises the issue of for related service delivery while the parent is on home instruction awaiting placement. DOE representative indicated the DOE would issue the , as indicated for services on the latest IEP, of September 11, 2014.
(T 99-100, Ex 13)
Parent agreed to the compensatory service offer made on the last day of hearing as indicated below. (T 104)
Parent contends that a strict timeline for placement should be imposed by the IHO “to ensure that the DOE places the Student expeditiously and that (student) not incur further harm, the IHO should direct that the DOE place the Student in a non-6 public school program that meets his needs, and that provides a proper peer group, within thirty
(30) days of the IHO’s order. Consistent with his IEP, the placement shall be a small self-contained class of no more than eight students, in a non-public school that can supply
(student’s) with his related services and that needs.” (IHO Ex IX 5-6)
Parent also seeks to have portions of Interim Orders include in the Final Decision and Order.
Specifically parent seeks inclusion of:
“1. IEP shall retain a recommendation for 12 hours weekly of SETSS/ABA for the entire 2014/2015 school year, and the DOE shall provide authorization for said hours to be delivered to the Student at an enhanced rate commencing 08/18/2014 and continuing through the 2014/2015 school year. Up to two hours of the 12 total weekly hours may be used by the parent and provider for parent training related to the student‘s needs;
2. IEP shall contain a recommendation to defer an approved non-public school for the 2014/2015 school year;“ (IHO Ex 6)
DEPARTMENT OF EDUCATION POSITION
Impartial Hearing Office Representative, presented the DOE position.
At the last day of hearing DOE set forth that it will issue for delivery of services to the student as indicated in the recent IEP of September 11, 2014. (T 102, Ex 13)
DOE also set forth that regarding compensatory services it was willing to, at the request of a hearing officer order, to 200 , at an enhanced rate of $102.00 a sessions, based on deprivation of FAPE for the 2014-2105 school year. (T 102-103)
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and
(2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. 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 (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).
Under the IDEA, if procedural violations are 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (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" (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, 142 F.3d at 130; 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)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (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] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). 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]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see 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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No.07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
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 (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).
COMPENSATORY SERVICES
Parties agree to a degree of compensatory education s) for the cost of related services and reimbursement of money paid.
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).2
Presently, the student is unplaced and parties have agreed to an amount of services as compensatory education which are included in the Order below.
ORDER
1. The DOE shall provide authorization for 12 hours weekly ) to be delivered to the student at an enhanced rate, commencing 08/18/2014 and continuing through the 2014-2015 school year. Up to two hours of the 12 total weekly hours may be used by the parent and provider for parent training related to the student’s needs;
2. Student IEP for the 2014-2015 school year shall contain a recommendation to defer the student to the Central Based Support Team (CBST) for placement in an approved non public school;
3. DOE will issue for the related services listed on the 9/16/2014 IEP, which include:
a. , two thirty minute sessions;
b. , two thirty minute sessions;
c. , two thirty minute sessions.
will include allowance for an amount of sessions equal to those covering the 2014-2015 school year. will allow parent to obtain services from the date of issuance of each RSA through one calendar year from said issuance date.
4. DOE shall offer the parent placement deferral process within 30 days of the date of this Order, in an appropriate non public school placement. Placement to be in accordance with the student‘s most recent IEP of 09/11/2014.
5. DOE will provide authorization for 200 hours of ) to be delivered to the student. These are in addition to the services already include in the student‘s IEP and included in this Order above. Services are to be authorized at an enhanced rate. Hours are to be available to the parent for 13 months from the date of issuance of the authorization.
6. This decision is subject to appeal and review by the State Review Officer. Dated: October 28, 2014
ESQ.
Impartial Hearing Officer
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.
PARENT
ENTERED 07/28/2014
A. Duplicate Excluded
B. Duplicate Excluded
C. Individualized Education Program. 02/09/2011, 20 pages
D. IEP, 05/1-/2011, 11 pages
E. IEP, 05/29/2012, 14 pages
F. IEP, 05/28/2013, 14 pages
G. IEP, 05/29/2014, 13 pages
H. Prior Written Notice, 05/20/2014, 3 pages
I. Bilingual Evaluation, 02/11/2009, 7 pages
J. Teacher Report, 11/18/2013, 3 pages
K. Duplicate Excluded
L. Duplicate Excluded
M. Physical Therapy Evaluation, 04/23/2014, 5 pages
N. Duplicate Excluded
O. Social History Update, 05/13/2014, 3 pages
P. Conners 3 Teacher Short Form Assessment Report, 05/15/2014, 9 pages
Q. Letter from Parent to DOE, 10/16/2013, 1 page
R. Letter from to DOE, 10/16/2013, 1 page
S. Letter from , 10/29/2013, 1 page
T. NYCDOE Inquiry Form, 01/28/2014, 1 page
U. 2013-2014 Report Card, 2013, 1 page
V. 2012-2013 Report Card, 2012, 2 pages
ENTERED 10/06/2014
W. Progress report from , 09/22/2014, 4 pages
DEPARTMENT OF EDUCATION
ENTERED 07/28/2014
1. Due Process Complaint, 06/19/2014, 16 pages
2. Due Process Response, 06/30/2014. 4 pages
3. IEP, 05/28/2013, 13 pages
4. Report, May 2013, 2 pages
5. Report, 05/17/2013, 3 pages
6. Final Notice off Recommendation, 05/28/2013, 1 page
7. IEP, 05/29/2014, 20 pages
8. Student Progress Report, May 2014, 2 pages
9. Evaluation, November 2013, 11 pages
10. Vineland II Teacher Rating Form Report, 05/09/2014, 9 pages
11. Evaluation Tracking Form, 05/09/2014, 10 pages
ENTERED 09/02/2014
12. , 08/26/2014, 11 pages
ENTERED 10/06/2014
13. IEP, 09/11/2014, 21 pages
IMPARTIAL HEARING OFFICER
ENTERED 07/28/2014
I. IHO Notice of Appointment, 06/26/2014, 3 pages
II. Subpoena, , 07/17/2014, 1 page
III. Subpoena, , 07/17/2014, 1 page
IV. Notice of Appearance, , 06/25/2014, 1 page
ENTERED 08/14/2014
V. Interim Order, dated 07/30/2014, 7 pages
ENTERED 10/06/2014
VI. Second Interim Order, 09/05/2014, 7 pages
VII. Grant of extension of timelines, 10/03/2014, 3 pages
ENTERED 10/24/2014
VIII. Grant of extension of timelines, 09/27/2014, 3 pages
IX. Parent’s Closing Brief, 10/24/2014, 8 pages
X. Update, 10/24/2014, 1 page
XI. Central Response for Consideration of a State Approved Non-Public School,
09/24/2014, 1 page