NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: July 29, 2013
September 23, 2013
October 23, 2013
November 22, 2013
January 27, 2014
April 1, 2014
May 30, 2014
Actual Record Closed Date: October 15, 2014
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 29, 2013
ESQ., Attorney — Student
Parents
District Representative — DOE
School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 23,
2013
ESQ., Attorney — Student
Parents
District Representative — DOE
Teacher (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 23, 2013
ESQ., Attorney — Student
Parents
District Representative — DOE
Teacher (via telephone) — DOE
Speech Therapist, (via telephone) — DOE
Principal, (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 22,
2013
ESQ., Attorney — Student
Parents
Advocate — Student
MEIRA GARFINKEL, Occupational Therapist (via telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 27, 2014
ESQ., Attorney — Student
Parents
DR., Neuropsychologist (via telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 1, 2014
ESQ., Attorney — Student
DR., Audiologist (via telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 30, 2014
ESQ., Attorney — Student
Parent (via telephone) — Student
District Representative — 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 originally requested by the attorney for the student and the parent in a due process complaint notice dated March 12, 2013. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) provided the student with a free appropriate public education (“FAPE”) for the 2012/13 school year. The parent seeks additional evaluations and services, and other relief (Ex. P-A).[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 , 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 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).
II. PROCEDURAL HISTORY
On April 16, 2013, the parent filed an amended due process complaint (Ex. P-B). See 8 NYCRR § 200.5(i)(7). The DOE appointed me to hear this matter on April 19, 2013 following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). A pre-hearing conference with the parties was held on May 31, 2013 to clarify the hearing issues and set dates for the hearing (R. 17-20). See 8 NYCRR § 200.5(j)(3)(xi). Hearings in this matter were thereafter held on: July 29, 2013; September 23, 2013; October 23, 2013; November 22, 2013; January 27, 2014; April 1, 2014; and May 30, 2014. [2] 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 March 12, 2013 due process complaint, the student ( old and attended the ”) in District . The student was enrolled in a general education program while receiving special education ”). The student also received related services therapy (Exs. IHO-XVII at 3, IHO-XVIII at 4, SD-2 at 1-3, SD-4, SD-6 at 1, SD-7 at 1, SD-8 at 2, SD-13, SD-16, SD-17, SD-18, P-M, P-X at 1, P-Y at 1, P-Z at 1). The student has . In addition, the at 1, 6, P-I at 1, P-Q at 1, P-R at 1-2, P-S at 1, 3-4, P-T at 3). The student's current eligibility for special education and related services as in this hearing (Exs. SD-2 at 1, 12, SD-3 at 1, P-A, P-B, P-D at 1). See 34 C.F.R. §
300.8(c)(11); 8 NYCRR § 200.1(zz)(11).[3]
The student received , P-O at 1).
In January of 2009, the student presented with omissions, which negatively impacted intelligibility in both known and unknown contexts. The student tended to ).
In March 2009 over again. Her parents also
In a February 2010 report from the student’s classroom teacher, it was reported that the student
An April 2010
On April 7, 2010, the CSE convened to conduct regarding the student which anticipated the . She had (Ex. P-E at 2).
For the 2010/11 school year, the CSE 1).[4] The parent disagreed with the CSE's
VII, IHO-VIII, IHO-IX, IHO-X, IHO-XI, IHO-XII, IHO-XIII, IHO-XIV, IHO-XV, IHO-XVI). See 34
C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). program recommendation for the student, and on June 21, 2010, she requested an impartial hearing (Ex. P-BB at 5).
In an interim decision dated September 14, 2010, IHO determined that placement in a kindergarten classroom within the district's general education environment combined with the student's related services recommendations outlined in the student's November 2009 IEP constituted the student's pendency (stay-put) placement (Exs. P-AA, P-BB at 56).
An October 2010 stated that the student noise (Ex. P-E at 3).
In a February 22, 2011 decision on the merits, concluded that the April 2010 IEP deprived the student of a FAPE, and as relief, she directed the DOE to provide the student with, among other things, compensatory additional services, which included 30 hours of SEIT services,
Based on the results of a March 28, 2011 , the student was found to have complexity (Exs. SD-3 at 1, P-G at 8-9).
According to an April 6, 2011 accuracy (Exs. SD-3 at 1, P-R at 4).
On April 21, 2011, the parties entered into a settlement agreement in which the DOE agreed, among other things, to provide the parent with related service authorizations (“RSAs”) to obtain 45 hours of “ DOE further agreed to evaluation of the student and pay for the
An conducted by (ability to
During an October 2011 with team (“CBST”) for placement in a nonpublic school setting (Ex. P-J).
On February 9, 2012, the CSE convened to develop the student's IEP for the 2012/13 school year (Ex. SD-3 at 1). According to the February 2012 IEP, the CSE recommended placement of the student general appropriate. The February 2012 CSE also recommended the provision of three (3) thirty (30) minute sessions per week of student's teacher redirection and repetition in addition to the provision of academically centered strategies such as graphic organizers, differentiated instruction, manipulatives,
2010/11 school year. and sentence starters. The February 2012 CSE determined that the student did not require (Ex. SD-3 at 2). The (“BIP”) (Ex. SD-3 at 2). [5]
By final notice of recommendation (“FNR”) to the parent dated February 13, 2012, the DOE notified her of the to the student. The parent requested an order directing minimum of two (2) minimum of three (3) weekly
Furthermore to reimburse the parent for twice weekly forty-five (45) minute sessions of PT for the remainder of the C at 11-12).
Following its November 14, 2012 Decision and Order, the CSE scheduled a CSE meeting for November 21, 2012 at 9:00 a.m. (Ex. P-L at 4). In a November 20, 2012 e-mail to Ms. , the parent stated that she intended to bring her attorney to the CSE meeting and that her attorney was not available on November 21, 2012 to participate in the meeting (Ex. P-L at 3-4). On consent of both parties, the CSE meeting was rescheduled for December 5, 2012 at 12:00 p.m. (Ex. P-L at 2).
The parent ear ; and (4) an order directing the district to conduct an assistive technology evaluation of the student. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-235 at 6-7 (SRO
September 3, 2013).
Neither party, however, appealed the following findings and and physical therapy on the resultant IEP; (3) that the student be provided sessions of PT for the remainder of the 2012/13 school year; and (6) an award of fifty (50) hours of compensatory SETSS/tutoring services. Accordingly, those determinations became final and binding on the parties and were not reviewed by the SRO on appeal.[6] See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-235 at 10 (SRO September 3, 2013), citing 34 C.F.R. § 300.514(a); 8 NYCRR § 200.5(j)(5)(v).
In a letter to the parent dated November 29, 2012
In an e-mail to the parent dated May 6, 2013, a school psychologist clarified that the CSE was seeking the parent’s informed written consent for the following evaluations: an evaluation with a reading without the parent’s written consent (Ex. P-U at 1).
On a May 11, attendance and quality of homework as “poor” (Exs. SD-2 at 1, 12, SD-4).
According the handwriting was extremely neat.
Furthermore, the ). The student as measured
In the area of sensory processing, the student had difficulty staying on task in the classroom. The
According to the , by the spring of 2013 the student was functioning independently and safely in the school peers, and so (Exs. SD-2 at 3, SD-8 at 2, P-Z at 2).
The CSE reconvened on May 22, 2013 to develop an IEP for the student. The CSE recommended that the student receive instruction in a general education classroom with direct (Ex. SD-13).
In a decision rendered on September 3, 2013, the SRO affirmed the majority of IHO sessions of and the provision of individual counseling to the student, once a week for thirty (30) minutes per session for one year. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-235 at 16 (SRO September 3, 2013).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE met its obligation to provide the student with a FAPE during the 2012/13 school year. The IEP complies with the IDEA’s procedural and substantive requirements. The student made meaningful progress during the 2012/13 school year. The student’s IEP contains goals that were reasonably calculated to generate progress. The student was placed in an (Ex. IHO-XVII).
B. The Parent
vision therapy as prescribed by the February 2012 IEP. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-235 at 10-11 (SRO September 3, 2013),
The DOE denied the student a free appropriate public education for the 2012/13 school year. The student did
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[7]
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; 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 ); 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. 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); 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. 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, 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." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students 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.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also 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" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“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); see also 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. Board 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 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 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 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); Grenon v. Taconic Hills Cent. Sch. Dist., 2006 WL 3751450, at *6 (N.D.N.Y. Dec. 19, 2006); Application of a Student with a Disability, Appeal No. 11-159 at 3-4 (SRO Jan. 5, 2012).
The CSE erred in cancelling the December 5, 2012 meeting “due to the appeal of the court case” (Ex. P-F) as it was “undisputed by the parties that the February 2012 IEP did not provide the student with a FAPE” (Ex. SD-3). See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-235 at 11 (SRO Sept. 3, 2013).
The hearing record reflects that 712-713).
Alternatively, while the CSE reconvened on May 22, 2013 to develop an IEP for the student, that IEP was scheduled to be implemented on June 5, 2013, three (3) weeks before the conclusion of the school year (Ex. SD-2 at 1). Cf. Application of the New York City Dep’t of Educ., Appeal No. 11-016 at 14 (SRO April 13, 2011) (“A district must have an IEP in effect at the beginning of each school year for each student with a disability in its jurisdiction”) citing 34 C.F.R. § 300.323(a); 8 NYCRR § 200.4(e)(1)(ii); Cerra, 427 F.3d at 194; Tarlowe, 2008 WL 2736027, at *6. I find that the CSE’s failure to develop an appropriate IEP within a reasonable time 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).
C. Request for Placement of the Student in a Nonpublic School The parent asserts that regardless of the provision of special education supports such student cannot be satisfactorily educated in the general education environment, which necessitates placement in a State-approved nonpublic school (Exs. IHO-XVIII at 16-20, P-A at 2, P-B at 2). As described below, although there was a denial of a FAPE in this instance, I do not find that deferral to
"The IDEA mandates that '[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily'" P. v Newington Bd. of Educ., 546 F3d 111, 119 (2d Cir. 2008) (emphasis added); see 20 U.S.C. § 1412(a)(5)(A); Walczak, 142 F.3d at 122; M.W. v New York City Dept. of Educ., 2013 WL 3868594, at *9 (2d Cir. July 29, 2013); E.S. v. Katonah-Lewisboro School Dist., 2012 WL 2615366, at *1 (2d Cir. July 6, 2012) (explaining that "[t]he 'special education and related services must be provided in the least restrictive setting consistent with a child's needs'"); E.F. v New York City Dept.
of Educ., 2013 WL 4495676, at *15 (E.D.N.Y. Aug. 19, 2013) (explaining that "under the law, once [the district] determined that [the public school setting] was the least restrictive environment in which [the student] could be educated, it was not obligated to consider a more restrictive environment, such as [the nonpublic school]); A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *8 (finding that "[o]nce the CSE determined that [public school setting] would be appropriate for the [s]tudent, it had identified the least restrictive environment that could meet the [s]tudent's needs and did not need to inquire into more restrictive options such as nonpublic programs"); R.C. v Byram Hills Sch. Dist., 906 F. Supp. 2d 256, 273 (S.D.N.Y. 2012) (noting that "[w]hile it is natural to assume that a student would benefit from being in a smaller classroom environment with more support, the IDEA does not require that the [d]istrict provide an ideal learning environment, but instead only one where the student can progress).
The hearing record does not support the conclusion that the student must be removed from the . According to the student’s teachers and related service providers,
(R. 243-244; Exs. SD-2 at 1-3, 12, SD-4, SD-6, SD-7, SD-8 at 2, P-X, P-Y, P-Z at 2).
At its May 23, 2013 meeting the CSE recommended that the student receive the majority of her instruction in a general education classroom with direct SETSS support in math and English/language arts, five (5) days per week. The CSE concluded that the student “does not require a full day of a small class (12:1) . . . because [she] continues to benefit from mainstreaming” (Ex. SD-2 at 8, 13).
Alternatively, opined that the student requires a non-public school setting, that opinion is not consistent with the student’s performance on standardized assessments of her cognitive and academic abilities administered nor is it consistent with anecdotal reports of her functioning at school (Exs. SD-2 at 1-3, SD-4, SD-6, SD-7, SD-8 at 2, P-E at 11, 15-18, P-O at 2-5, 8, P-Y, P-Z at 2). Under the circumstances of this case, an appropriate equitable remedy would be an award of additional educational services.
D. 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”). Under the qualitative approach, the ; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C.
Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Id. at 526.
1.
The parent seeks tutoring and compensatory SETSS at DOE expense an enhanced rate (Exs. IHO-XVIII at 23, P-A at 2, P-B at 2).
After nullifying the February 2012 instructional program include, at a minimum, two (2) periods per (3) periods per week of . services in the form of 50 hours of to be used during the 2012/13 school year (Ex. P-C at 10-12). These components not appealed by either party to the SRO. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-235 at 6-8, 10-11 (SRO Sept. 3, 2013). For reasons which are not entirely clear, however, the DOE attempted to fulfill both these mandates by providing the student with ten (10) hours of SETSS per week in school, which both parties now acknowledge contributed to too many pull-outs during the student’s instructional day (R. 248, 269, 326; Ex. IHO-XVIII at 7, 13).
The student’s mother credibly testified that the student did not start receiving recommended calendar for the 2012/13 school year (available at:
http://www.schools.nyc.gov), I have determined that there were approximately fifteen
(15) instructional weeks between the onset of the school year and the time at which the student began receiving . Applying a quantitative approach to fashioning a remedy, I find that the student is entitled to 75 hours of multiplied by 15 instructional weeks).[8]
Given the DOE’s past difficulty to secure a suitable for the student in a timely fashion
(R. 801-802; Exs. SD-16, SD-17, SD-18), this service shall be provided after-school and compensated at an enhanced rate not to
2.
The parent seeks (Exs. IHO-XVIII at 24-25, P-A at 2, P-B at 2). Based on the evidence submitted into the hearing record, I do not find that additional speech/language evaluation, that the student five (5) times per week (Ex. P-G at 9-
10). On a May 3, 2012 was recommended for the student to (Ex. P-S at 5-6). During the 2012/13 school year, the student received , three (3) times per week. According to the therapist, the student made progress throughout the year and improved (Exs. SD-2 at 1, SD-18, P-X).
3.
In her due process complaints, the at an enhanced rate at the DOE’s expense (Exs. P-A at 2, P-B at 2). In his September 3, 2013 Decision, the SRO ordered the DOE to provide the student with twenty (20) sessions of the parent for sessions already obtained for the student or providing an RSA for the student. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-235 at 16
(SRO Sept. 3, 2013). As there was no evidence offered into the hearing record that the student was denied the 2012/13 school year, I find that are not warranted at this time.
4.
The parent (Exs. IHO-XVIII at 24, P-A at 2, P-B at 2). As described below, I find that I lack jurisdiction over this component of the parent’s claim.
After nullifying the February 2012 IEP that the student’s instructional program include individual sensory-based OT, two (2) times per week for thirty (30) minutes per session directed the DOE to reimburse the parent for twice weekly thirty (30) minute sessions of OT for the remainder of the 2012/13 school year (Ex. P-C at 11). These components of were not appealed by either party to the SRO. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-235 at 6-8, 1011 (SRO Sept. 3, 2013).
The evidence contained in the hearing record reflects that during the 2012/13 school year, the student received therapy” that year (Exs. SD-2 at 2, SD-18, P-Y).
Alternatively, while the record also reflects that the agency designated to provide the student with additional could not do so because the student lacked a current IEP for most the 2012/13 school year (Exs. SD-2, P-N), as the mandate for the missed services 2012 Decision, rather than an IEP, I find that I lack jurisdiction on this component of the parent’s claim (Ex. P-C at 11). See, e.g., Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 11-060 at 8 (SRO July 28, 2011).
5. Counseling
In her due process complaints, the parent seeks counseling at an enhanced rate at the DOE’s expense (Exs. P-A at 2, P-B at 2). In his September 3, 2013 Decision, the SRO ordered the DOE to provide the student in the form of individual counseling services one (1) time per week for thirty (30) minutes for one (1) year. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-235 at 16 (SRO Sept. 3, 2013). As there was no evidence offered into the hearing record that the student was denied appropriate counseling services during the 2012/13 school year, I find that at this time.
6.
The parent raises for the first time in her post-hearing brief, a claim for additional at an enhanced rate (Exs. IHO-XVIII at 24, P-A at 2, P-B at 2). I find that this issue is beyond the scope of this hearing. A party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees, see 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. §§ 300.507(d)(3)(i), 300.511(d); 8 NYCRR § 200.5(j)(1)(ii), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five (5) days prior to the impartial hearing (20 U.S.C. § 1415(c)(2)(E)(i)(II); 34 C.F.R. § 300.507(d)(3)(ii); 8 NYCRR § 200.5(i)(7)(b). In this case, the parent's due process complaints do not assert any claims that may be reasonably read to include a denial of , the parent may not raise this issue now for the first time her post-hearing brief.
Alternatively, even if I were to consider the parent’s claim, the evidence entered into the hearing record does not support an award of . After 2012 IEP, that the student’s instructional program for forty-five (45) minutes per session. directed the DOE to reimburse the parent for twice weekly forty-five (45) minute sessions of PT for the remainder of the 2012/13 school year (Ex. P-C at 11-12). These components of IHO were not appealed by either party to the SRO. See Application of a Student with a Disability (New York City Dep’t of Educ.), 3, 2013).
The evidence contained in the hearing record reflects that the student received PT in school during the 2012/13 school year. By the spring of 2013, the student met most of her physical therapy goals and was able to negotiate the school environment safely and age-appropriately. The student’s therapist recommended that the service be discontinued (Exs. SD-2 at 3, SD-18, P-Z).
E. Additional Evaluations
In her due process complaints, the parent seeks 2, P-B at 2).
An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(20(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative must ensure that a student is appropriately assessed in all areas related to including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix). A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4), however, a school district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).
The evidence entered into the hearing record reflects that on or about May 6, 2013, school staff requested, but never received, the parent’s informed written consent, see 8 NYCRR § 200.5(b)(1)(i), for an with (Exs. SD-19, SD-20, P-U at 1). Given the absence of any dispute between the parties about the necessity of these evaluations, the DOE will be directed to conduct these evaluations of the student, at its customary and standard rates, within thirty (30) days of its receipt of parental consent.
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 was denied a FAPE during the 2012/13 school year is SUSTAINED; and within thirty (30) days of its the DOE shall authorize the student’s receipt after-school and compensated at an enhanced rate not to
2. Within thirty (30) days of its receipt of parental consent, the DOE shall conduct an assistive technology evaluation of the student and an evaluation with an , at its customary and standard rates. Dated: October 24, 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.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A. Due Process Complaint Notice/Impartial Hearing Request, 3/12/13, 2 pgs.
B. Amended Due Process Complaint Notice/Impartial Hearing Request, 4/16/13, 3
pgs.
C. Corrected Findings of Fact & Decision, 11/14/12 (corrected 12/5/12), 17 pgs.
D. Final Notice of Recommendation (FNR), 2/13/12, 1 pg.
E. Evaluation, 8/19/11, 18 pgs.
F. Letter to parent , 11/29/12, 1 pg.
G. Evaluation, 3/28/11, 10 pgs.
H. Evaluation, 10/2011, 7 pgs.
I. Evaluation, 10/20/11, 5 pgs.
J. Letter from parent, 1/3/12, 2 pgs.
K. [Reserved]
L. E-mail to , 7/23/13, 5 pgs.
M. [Reserved]
N. E-mail to parent , 3/16/12, 1 pg.
O. Educational Evaluation, 5/11/13, 12 pgs.
P. Classroom Teacher/Student Evaluation, 2/8/12, 2 pgs.
Q. Evaluation, 4/14/11, 4 pgs.
R. Evaluation of , 4/6/11, 8 pgs.
S. Evaluation, 5/3/12, 6 pgs.
T. Evaluation, 3/17/12, 4 pgs.
U. E-mail to parent / , 5 pgs.
V. Parent/Teacher Communications, various, 12 pgs.
W. Student Tests/Progress Reports, various, 30 pgs.
X. Report, undated, 1 pg.
Y. Progress Report, 5/6/13, 3 pgs.
Z. Progress Report, 5/14/13, 3 pgs.
AA. Individualized Education Program (IEP), 11/9/09, 18 pgs.
BB. Findings of Fact & Decision, , 2/22/11 (corrected 3/22/11), 43 pgs.
CC. Evaluation Summary, 3/10/14, 2 pgs.
DEPARTMENT OF EDUCATION
1. [Reserved]
2. Individualized Education Program (IEP), 5/22/13, 14 pgs.
3. Individualized Education Program (IEP), 2/9/12, 14 pgs.
4. Card, 6/20/13, 2 pgs.
5. [Reserved]
6. Annual Review Plan, 5/6/13, 3 pgs.
7. Progress Report, undated, 1 pg.
8. Annual Review Plan, 5/14/13, 3 pgs.
9. /Student Evaluation, 5/21/13, 1 pg.
10. [Reserved]
11. [Reserved]
12. [Reserved]
13. Final Notice of Recommendation (FNR), 5/22/13, 1 pg.
14. Letter to parent, 9/19/12, 1 pg.
15. Letter to parent from , 9/20/12, 2 pgs.
16. (P-4) Form, 9/20/12, 1 pg.
17. Letter to parent from , 9/24/12, 2 pgs.
18. E-mail to parent from , 11/8/12, 1 pg.
19. E-mail to parent from , 5/6/13, 1 pg.
20. Assistive Technology Evaluation Referral, 5/6/13, 6 pgs.
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 7/1/13, 1 pg.
II. Confirmation of Extension, 7/29/14, 1 pg.
III. Confirmation of Extension, 8/29/13, 1 pg.
IV. Confirmation of Extension, 9/30/13, 1 pg.
V. Confirmation of Extension, 10/30/13, 1 pg.
VI. Confirmation of Extension, 11/22/13, 1 pg.
VII. Confirmation of Extension, 12/30/13, 1 pg.
VIII. Confirmation of Extension, 1/29/14, 1 pg.
IX. Confirmation of Extension, 2/28/14, 1 pg.
X. Confirmation of Extension, 3/27/14, 1 pg.
XI. Confirmation of Extension, 4/17/14, 1 pg.
XII. Confirmation of Extension, 5/15/14, 1 pg.
XIII. Confirmation of Extension, 6/23/14, 1 pg.
XIV. Confirmation of Extension, 7/29/14, 1 pg.
XV. Confirmation of Extension, 8/18/14, 1 pg.
XVI. Confirmation of Extension, 9/29/14, 1 pg.
XVII. DOE’s Closing Brief & Memorandum of Law, 6/18/14, 7 pgs. XVIII. Parent’s Brief, 6/18/14, 26 pgs.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to allow the parties adequate time to present their available witnesses and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and that the reasons for the requested extensions were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 19-20, 520- 521, 621-622, 722-724, 766-767, 845-847; Exs. IHO-I, IHO-II, IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-
[3] 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).
[4] State regulations incorporate "collaborative team teaching (CTT)" services within its "Continuum of services" as "integrated co-teaching services," which is defined as the following: "the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and non-disabled students." See 8 NYCRR § 200.6(g). Effective July 1, 2008, the "maximum number of students with disabilities receiving integrated co-teaching services in a class . . . shall not exceed 12 students." See 8 NYCRR § 200.6(g)(1). In addition, State regulations require that an "integrated co-teaching class shall minimally include a special education teacher and a general education teacher." See 8 NYCRR § 200.6(g)(2). For consistency within this decision, I will use the term "ICT" class when referring to the DOE’s recommended placement for the
[5] Behavioral intervention plan means a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior. 8 NYCRR § 200.1(mmm).
[6] Additionally, the DOE did not oppose the parent's request for the provision of RSAs for compensatory related services in lieu of reimbursement to the parent or the issuance of RSAs for twenty (20) sessions of
[7] 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.
[8] NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 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); see also 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). B. 2012/13 School Year The parent asserts entered into the hearing record, I find that the CSE failed to develop an appropriate IEP for the student for the disputed school year. As neither party ) that the February 2012 IEP did not provide the student with a FAPE (Exs. SD-3, P-C at 10), see Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-235 at 10-11 (SRO Sept. 3, 2013), that determination became final and binding on the parties, see 34 C.F.R. § 300.514(a); 8 NYCRR § 200.5(j)(5)(v), and consistent with the principles of res judicata and collateral estoppel, that determination will not be revisited here, see Perez v. Danbury Hosp., 347 F.3d 419, 426 (2d Cir. 2003); Murphy v. Gallagher, 761 F.2d 878, 879 (2d Cir. 1985);
[8] To the extent that delays are alleged to have occurred in the DOE’s implementation of IHO Lazan’s award of compensatory SETSS/tutoring services (Ex. IHO-XVIII at 23), I find that I lack jurisdiction to enforce a prior IHO’s Order. See, e.g., Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 11-060 at 8 (SRO July 28, 2011).