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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: 4
Hearing Requested By: Parent
Date of Hearing: September 29, 2014
October 17, 2014
October 30, 2014
Actual Record Closed Date: November 15, 2014
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 29, 2014
Attorney (Via Telephone) — Student
DID NOT APPEAR
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 17, 2014
Attorney — Student
Parents
Interpreter — Student
Impartial hearing Representative — DOE
Impartial hearing representative — DOE
Teacher (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 30, 2014
Attorney — Student
Center Director, (Via Telephone) — Student
Parents
Interpreter — Student
Impartial Hearing Representative — DOE
INTRODUCTION
On 08/26/2014, 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) (1).
Pre Hearing Conference was conducted on 09/29/2014. Date was set to commence hearing.
A hearing was conducted and appearances made by the parties as indicated herein
Appended to the record are lists of persons in attendance and the documents received in evidence.
This matter was instituted by the impartial hearing request, as amended, dated 08/22/2014 alleging that the Department of Education (DOE) failed to provide a Free and Appropriate Public Education (FAPE), for the student, for the 2011-2012, 2012-2013 and 2013-2014 school years. Case presentation clarified that the years in question appeared actually to be 2012-2013, 2013-2014 and 2014-2015. (T 122) Allegations, in part, include that the student was not adequately evaluated in a timely manner. (Ex 1)
Parent sought relief which included a determination a FAPE was denied for the years in question, compensatory education services, travel and a reconvene of the 2014-2015 IEP meeting. (Ex A 5-6)
BACKGROUND
Presently the student is having year in . (T 67)
Information gleaned from documentary evidence includes the following: Ex. IEP Student Age/Grade Evaluation Results Instructional/
Academic Achievement Functional Level #6 10/25/2012 Grade level not included Reading
Math (Ex 6-9)
Recommendation for Special Education Teacher Support Services. Speech goals included,
No . (Ex 6-6)
Modified promotional criteria to meet 25% of 3rd grade math and reading standards. (Ex 6-10) #7 10/29/2013 Same as previous year,
Grade level not included. grade
grade (Ex 7-11)
Recommendation for Special Education Teacher Support Services and speech therapy services recommended. (Ex 7-8)
Modified promotional criteria to meet standards and 40% of 4th grade reading and math standards. (Ex 7-11) #10 01/16/2014 Reading level, Reading 2nd grade
Per testing, grade
Per teacher. (Ex 10-1) (Ex 10-12)
Math computation grade
level. (Ex 10-1) (Ex 10-12)
Recommendation for , and services. (Ex 10-12)
Modified promotional criteria to math standards and grade reading standards and math standards and grade reading standards . (Ex 10-17)
THE PARENT’S POSITION
), attorney, presented the parent’s position.
Parent position is contained in hearing request and outlined in opening statement. (T 122-126, Ex 1)
Parent contends the DOE failed to provide a FAPE for the 2012-2013, 20132014 & 2014-2015 school years and including testing fees, , and a reconvene of the CSE. (Ex 1-5 & 1-6, T 125-126)
Request was later identified and should match the recommended 715 hours. (T 203, Ex Q 4)
PARENT WITNESS DAWN HELENE
(DH) , stated her educational and professional qualifications and testified as the Center Director for the (T 129-132)
provides “supplemental instruction in reading, writing, phonics, .” (T 132-133)
services to student with and without IEPs covering a variety of classifications such . (T 133-134)
reviewed the results of student testing and related recommendations. This included: at the time of testing, June 2014, the student was at (T 134, Ex Q), testing reflected which require starting grade (T 146, Ex Q 1), at about level (T 147, Ex Q 1 (T 148-149, Ex Q 1), which may be attributable, in part, to the multiple choice format(T 150 & 153, Ex Q 2 (T 152, Ex Q 2), and in math the student did not master many skills that should (T 153-154).
In comparing student testing performance to the student’s IEPs: “his 2014 IEP was him at , and what we found is that he didn't demonstrate , and I would say that that is generous, certainly not indicative of what I would refer to as his mastery level, and I know that they don't necessarily mean mastery level when they're . Could (student) fight his way and sometimes understand it? Sure. When we gave , however, he only . So, I would say that I would place that level a bit lower.” (T 155)
describes the “there are some lower skill levels that he doesn't have mastery of and some and moving the student forward. (T 158-159)
, totaling reflect time anticipated to move
Students are tested (T 169)
Flexibility is allowed in providing the student services depending on student and parent schedule. (T 170)
Diagnostic , there is a and the . (T 171)
Special Education Teacher in that providing support for the student within the program of instruction that they're receiving in school at the time… We're not concerning ourselves with at his . We're concerned with, having identified the gaps that have opened up in a very different mission and strategy to the two different services.” (T 173)
Student is not guaranteed to have a special education provider unless ordered. (T 174)
does not believe the student requires a special education teacher to provide the services recommended. (T 186)
some training to tutors. (T 174)
During testing the student was provided with his IEP testing accommodations. (T 182)
Students are recommended to come four hours weekly and sessions are usually two hours. (T 184)
PARENT WITNESS
) testified as the student’s mother.
Testimony included her are spoken in the home (T 188), student was evaluated (T 189) and repeated 3rd grade (T 190), student counselor provided information to the parent and testing was undertaken (T 192), testing shows student capabilities (T193) and is accurate (T 194), parent can take the student (T 194), student is (T 195), parent would like the by a special education teacher. (T 196)
DEPARTMENT OF EDUCATION POSITION
DOE contends is not necessary since a comprehensive evaluation was completed in 12/06/2012. (T 18-19, Ex 5)
DOE concedes the student was not offered a FAPE for the 2012-2013 school year and while , they should only be awarded for that time period. (T 20-21)
Any awarded service should be . (T 180)
DOE contends the student made three years of progress over one year and points to progress indicated in report card. (T 32, Ex 11)
DOE contends a FAPE was provided for the 2013-2014 and 2014-2015 school years. (T 204)
DEPARTMENT OF EDUCATION WITNESS DANIELLE STEIN
and testified as a DOE , who prepared of 01/13/2014, and attended the IEP meeting of01/16/2014. (T 24-26, Ex 9 & 10)
ICT was recommended because there are two teachers in the room, so that while one teacher teaches the other can redirect the students. (T 28-29)
was not recommended: “… is small group instruction with the special education teacher, and the way our school does reading or the ELA period is with small group instruction with a special education teacher based on each child's level. (Student) was in a small group with a special education teacher during the literacy block. So there was no need to recommend another similar service on his IEP. It was kind of already built into his program.” (T 36)
Only one math goal was provided: “math goal is really comprehensive, and working on this math goal there's so and this is a lot of work. There are so many different components it makes sense that there's one so he can focus on all the components and achieve it within one year rather than spreading himself thin. It seems to me that this goal is the next step in his math development - -” (T 40)
Witness describes the reading goals as “pretty comprehensive…they address everything he needs to be addressed within one year and also to develop the next level of reading for him….So these goals specifically talk
Witness would expect the student to move up about course of the 2013-2014 school year. (T 51)
Witness does not
Witness believes the IEP and recommendation were appropriate for the student when made. (T 55)
Witness clarified that the reading level on the IEP
DEPARTMENT OF EDUCATION WITNESS
) stated her professional and education qualifications and testified as a DOE teacher, who instructed the student for the 2013-2014 school year, . (T 78-80)
testified the student was “hard-working…had a when he first came to the school and , …as the year went Improved…exceled and showed . , but as the year went on that improved as well. He's a very social student, interacted with and participate in class.“ (T 80)
Student was typically in a or less, (T 81) Student also received small group reading instruction each day with three or four students. (T 83)
Student strengths included shorter writing pieces…“ (T 82)
Student periods of time and explaining his reasoning in mathematics was an area of struggle…” (T 82)
Student made progress, though . (T 84-85)
Report card shows student progress (T 86, Ex 11)
Student is . “He was very in . given the supports that teachers provide he was able to keep up. He started in but he was there was somebody there to give it to him.” (T 87)
Student did not require a more restrictive setting. (T 88)
An provided the appropriate amount of support for the student. (T 89)
The 01/16/14 IEP includes an independent is one level above the independent level. “ . (T 99-100, Ex 10-1)
Witness did not add the IEP notation that indicates the student is reading on a level. (T 103-104)
Regarding student levels: “So , like I said I don't know--I didn't create the IEP so I or because that's where he was performing on our math assessments. That has .” (T 104)
were not included in the IEP since the student had the support of two teachers in the classroom. (T 107)
Witness was unable to provide information regarding some aspects of the IEP, such as specifics regarding goals and measurement of goals, stating: “I was the general education teacher in the classroom. I had involvement with the IEP. I actually wasn't the one to write it or produce it.” (T 109-110)
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 student is offered a FAPE 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; 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 an IEP legally inadequate under the IDEA (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 a procedural violation is alleged, an administrative hearing 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 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; 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]).
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 (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). 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, but 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). 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 v. Pawling Cent. Sch. Dist., 427 F.3d 186, at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see 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]; 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 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]).
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]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; [S.D.N.Y. Aug. 27, 2010]).
Boards of Education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and; (3) equitable considerations support the Parent's claim (School Committee of the Town of Burlington v, Department of Education , Massachusetts, 471 U.S. 359 [1985]; Application of a Child with a Disability, Appeal No. 01-052). Further, the fact that the facility selected by the Parent to provide special education services to the Child had not been approved as a school for children with disabilities by the State Education Department of the State of New York is not dispositive. (Florence Co. School District Four v. Carter by Carter, 510 U.S. 7 [1993]). DOE IEPs and Offer of FAPE for the 2012-2013, 2013-2014 & 2014-2015 School Years
DOE concedes the student was not offered a FAPE for the 2012-2013 school year and while some compensatory services are warranted, they should only be awarded for that time period (T 20-21) via SETSS. (T 180)
DOE contends a FAPE was provided for the 2013-2014 and 2014-2015 school years. (T 204)
Student IEPs reflect a lack of progress regarding the student. Each IEP, from 2012 through 2014, which are for through the , include the same Instructional and Functional Level of . (Ex 6, 7 & 10)
Latest IEP includes and one level. (Ex 10-1)
Student appears, from a review of the IEPs to be regressing.
DOE witness attempts to defend the 01/13/2104 IEP (Ex 10) by as “really comprehensive”. (T 40, Ex 10-6) goal reads: “Within one year provided with targeted instruction…will be benefit to the student. Goal presumably is on the instructional . or target student area of need and does not explain what or how “targeted instruction” is to be provided.
Witness describes reading ”. (T 46, Ex 10-7 & 10-8) This as to how the student is to be instructed nor what skill is to be addressed. The IEP also includes the student demonstrates “ skills, as
Witness who taught the student for the 2013-2014 school year provided testimony that included the student though not (T 82)
IEPs do not reflect progress . Regarding student levels: “ grade, like I said I don't know--I didn't create the IEP so I don't know off the top of my head , and math's at third grade because that's where he was performing on our math assessments. That has nothing to do with his reading.” (T 104)
Witness was unable to provide information regarding some aspects of the IEP, such as specifics regarding goals and measurement of goals, stating: “I was the general education teacher in the classroom. I had involvement with the IEP. I actually wasn't the one to write it or produce it.” (T 109-110)
Documentary evidence . November 2013 teacher report indicates student the student frequently does not . (Ex F 1) and . (Ex F 1) However, the area in . (Ex F 1) IEP drafted soon after does not contain any specific reading goals to address comprehension. (Ex 10)
Considering the teacher report identifies
I find the IEPs do not identify nor address the student’s needs and indicate regression as evidenced by the years in
Compensatory Tutoring Hours and Services
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
As indicated above the student has not been shown to make any progress over the last several school years. move student towards grade level. No evidence was presented by the DOE to contest any report or recommendation to contend that if services are should provide them. (T 180)
is found to be credible. Student functioning levels and areas of weakness and recommendations are found to be reasonable and appropriate for the student to move towards grade level. (Ex Q 4)
Considering the student is (Ex 10-1) and a FAPE for the student. began in 2012-2013 and continues through today and until to student is returned to where he would-be without such failure.
I find the parent is entitled I find 615 to be reasonable under the circumstances to bring student towards grade level considering the failure of the DOE to provide a FAPE. I decline to as that would be considered an amendment to the hearing request, which under the circumstances would not be granted as the hearing had already commenced.
The awarded hours, if provided would require about 61 weeks to be implemented.
EQUITABLE CONSIDERATIONS
I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meetings, participated in requested evaluations and communicated with the DOE with her concerns. (T 188-196)
ORDER
1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2012-2013, 2013-2014 and 2014-2015 school years.
2. DOE shall directly pay the amount fee in the
3. DOE shall authorize education services at the rate
4. Payment d
5. Student shall to obtain the services to utilize to be paid for by the DOE.
6. Parent and student shall be to and the receipt of parent of authorization to receive the above services.
7. DOE shall perform of the student within 45 days of the date of this order.
8. This decision is subject to appeal and review by the State Review Officer. Dated: December 1, 2014
, Esq. gc
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.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
ENTERED 10/17/2014
A Amended Impartial Hearing Request, 8/22/14, 6 pages B Classroom Observation, 10/18/12, 1 page C Excluded Duplicate D Excluded Duplicate E Excluded Duplicate F Progress Report, 11/23/13, 3 pages G Letter , 12/5/13, 1 page H Excluded Duplicate I Excluded Duplicate J Excluded Duplicate K Recommendation and Annual Re-evaluation, 1/16/14, 1 page L , 2/11/14, 2 pages M Recommendation and Annual Review, 3/10/14, 1 page N Excluded Duplicate O School Report, 2014/15, 3 pages P Progress Report, 2014/14, 1 page Q , 6/9/14, 31 pages
DEPARTMENT OF EDUCATION
ENTERED 10/17/2014
1 Due Process Complaint, 8/15/14, 8 pages 2 Due Process Response, 8/18/14, 4 pages 3 Classroom Observation, 10/18/12, 1 page 4 , 10/24/12, 7 pages 5 , 12//12, 4 pages 6 IEP, 10/25/12, 12 pages 7 IEP, 10/29/13, 13 pages 8 Social History Update, 1/8/14, 2 pages 9 , 1/13/14, 5 pages 10 IEP, 1/16/14, 19 pages 11 Report Card, June 2014, 3 pages
IMPARTIAL HEARING OFFICER
ENTERED 10/17/2014
I E-mail of Appointment, 8/27/14, 3 pages II Notice of Appearance, 9/2/14, 1 page III Notice of Appearance, 9/24/14, 1 page IV Notice of Appearance, 9/24/14, 1 page
ENTERED 11/15/2014
V Grant of Extension of Timelines, 10/30/2014, 3 pages
Footnotes
[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]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059. Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a child with a Disability, Appeal No. 08-087). The burden of proof is on the school district of demonstrating the appropriateness of the program recommended by the CSE. A parent for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7