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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: December 5, 2013
December 10, 2013
Actual Record Closed Date: March 31, 2014
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON ON DECEMBER 5, 2013
ESQ., Attorney — Parents
Advocate — Parents
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 10, 2013
ESQ., Attorney — Parents
Parents
Director, Huntington Learning Center (via telephone) — Parents
District Representative — DOE
School Psychologist — 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 attorneys for the parent and the student in a due process complaint dated September 19, 20132. The primary issue to be determined at this hearing are whether or not the New York City Department of Education (the “DOE”) shall be ordered to provide the student with compensatory additional services to remedy an alleged denial of a free appropriate public education for the 2010/11, 2011/12, 2012/13 and 2013/14 school years (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 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 trialtype 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 September 23, 2013, I was appointed by the DOE to hear this matter following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). Hearings in this matter were thereafter held on December 5, 2013 and December 10, 2013.[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 September 19, 2013 hearing request, the student old and was diagnosed .[3] At a meeting held on June 18, 2013, the CSE recommended for the 2013/14 school year (the student’s ) that he receive the majority of his instruction in a special class at his community school, The student's eligibility for special education and related services as a student with an is not in dispute in this hearing (Exs. P-A at 1-2, P-J at 1, 6).[4] See 34 C.F.R. § 300.8(c)(7); 8 NYCRR § 200.1(zz)(7).
When the student was old, he was evaluated (Ex. P-D at 4). The student’s levels were measured as , but he had (Exs. P-B at 3, P-C at 4-5). The student received early intervention services until he old.
The student was in September 2009, but when his mother tried to register him at , his local school, she was told they and he was (R. 53, 77). In September of 2010, the student began (R. 53). Although his mother provided the school with all of , he was placed in a general education classroom, in what she described as a "top" first grade class with approximately 30-34 students (R. 53-54, 77-78).
A few months into the 2010/11 school year, the student’s teacher told his mother that she believed he needed to be evaluated for (R. 54, 78-79). The parent followed up with school personnel, and testified that she witnessed the student’s teacher raise the issue with school administrators, but no evaluations were performed at that time (R. 81). The parent asked school personnel if he could be placed him in , or even , but, was informed that she would have to wait until the following school year to make a change (R. 55, 79-80). When school personnel could not locate the student’s , the parent provided them with a second set of documents (R. 79). No action was later taken by the DOE to evaluate the student during the 2010/11 school year, and he was retained in the for the following year (R. 56, 82, 84).
The DOE performed and a evaluation in August 2011 (Exs. P-E, P-F). The student was reported to have a Full Scale IQ FSIQ") (. percentile), which is compared to his peers (Exs. P-A at 2, P-E at 2, 4). The student’s reading and writing skills for his grade” and his mathematical proficiency was very limited compared to his peers. The student’s language abilities were scored to be at when compared to his peers reasoning, comprehension, expression, vocabulary, and word reasoning were . The student’s memory was within the second percentile compared to his peers, the “ ” The evaluator also explained that the student can become distracted and described his attention span as being “on the low side” (Exs. P-A at 2, P-E at 2-4). The parent was not provided with the evaluations, nor was she provided with notice of a meeting following the evaluations (R. 55, 108).
The student began the first grade, for a second time, in a general education first grade class at . The student’s first IEP meeting was held on September 20, 2011 without the parent, where he was classified as having an intellectual disability. The CSE recommended that the student receive the majority of his instruction in a special class in a community school along with small group (3:1) , three (3) times per week for thirty (30) minutes per session (Ex. P-G at 7). The parent was not provided with a copy of this IEP; instead, she received a letter that was sent home with her son's schoolwork that indicated that he had been determined to be intellectually impaired, and would be transferred to at with three (3) sessions per week (R. 56, 85-87).
The CSE reconvened on September 14, 2012 without the parent and recommended that the student continue to receive instruction during his second grade in a 12:1+1 special class at P.S. 41 (R. 60-61, 91-92, 107; Ex. P-H at 7-8).
Beginning at the end of the 2011/12 school year, student (R. 57-58, 60, 89). This school year (2012/13) (R. 59-60). While school staff called the student’s parent about his , there was no evidence offered at the hearing on what, if anything, school staff did to alleviate the situation (R. 58, 60). Testimony offered at the hearing had a impact on the student and interfered with his (R. 91-93). At one point, the student tried (R. 66, 100-101). Following this incident, the parent took the , and was referred to Dr. , a (R. 68). Dr. informed the parent that she had a right to see the documents , and instructed her how to obtain the documents from the school (R. 69-70). Dr. then reviewed the student’s file and pointed out discrepancies in evaluation to his mother (R. 69-70). Among other things, Dr. recommended that the parent take her son to various tutoring centers, including (" "), and also suggested that she request that the DOE reevaluate him (R. 70-71).
Although the student received subject on his final report card, the student was promoted (Ex. P-I). The CSE reconvened on June18, 2013, with the parent in attendance, to develop an IEP for the student for the 2013/14 school year. The CSE recommended that he continue to receive instruction in a special (R. 61-63, 91; Ex. P-J at 6, 12). In August of 2013, the student’s mother requested that her son be reevaluated by the CSE (Ex. P-L). The DOE completed a on November 6, 2013 which measured the student’s range, with most subtest scores in (Ex. P-N at 3). As of September 2013, his reading level was measured at a level D, which is an early level (Exs. P-J at 1, P-R at 2).
Based on the recommendations of Dr. the parent took the student to the in September 2013 to see if they could help him make academic progress through their tutoring program (R. 71). The staff tested the student and found that his academic achievement levels were far below grade level. Based on his specific academic gaps, they developed a proposed program of individual remedial tutoring designed to bring him to grade level, and estimate that it will take him 735 hours to complete the program. The parent’s mother believes this one-on-one tutoring is necessary to help him catch up academically to his grade level (R. 72, 105-106).
IV. POSITIONS OF THE PARTIES
A. The DOE
The student has received all of the services called for in his IEPs for the disputed school years. The student has a number which were addressed before his enrollment in first grade. The student did not which may have impacted on his progress over the last several school years. An FBA of the student was completed following the resolution process (R. 41-44).
B. The Parent
The DOE denied the student a free appropriate public education for the 2010/11, 2011/12, 2012/13 and 2013/14 school years. Procedural violations impeded the parent’s ability to meaningfully participate in the development of the student’s IEPs and deprived the student of educational benefits. The DOE failed to evaluate the student during the 2010/11 school year. The parent was excluded from participating in the development of the student’s IEPs. The IEPs developed by the DOE were substantially deficient and based on defective data. The student was which public education. The student is entitled to the remedy of compensatory additional services. The parent’s request for an FBA was withdrawn at the hearing (R. 44-49, 119; Ex. IHO-VI).
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.[5] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).
The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.
The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(I), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1);[8] NYCRR § 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); Case No. 147038 the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).
B. Exclusion of Parent from IEP Process
The parent asserts that she was excluded from CSE meetings which developed IEPs for the student for the 2011/12 and 2012/13 school years. For the reasons set forth below, I find that the DOE significantly impeded the parent's opportunity to participate in the decision making process regarding the provision of a FAPE to the student.
The IDEA and the federal and State regulations set forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child." See 20 U.S.C. § 1415(b)(1); 34 C.F.R. §§ 300.501(b)(1)(i), (ii); 8 NYCRR § 200.5(d). Parents of a student with a disability are mandated team members of a CSE. See 34 C.F.R. § 300.321(a)(1); 8 NYCRR § 200.3(a)(1)(i). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's CSE meetings or are afforded the opportunity to participate. See 34 C.F.R. § 300.322(a); 8 NYCRR § 200.5(d); see also Mr. M v. Ridgefield Bd. of Educ., 2007 WL 987483 (D. Conn. Mar. 30, 2007).
If neither parent can attend a CSE meeting, the school district must use other methods to ensure parent participation, including individual or conference telephone calls. See 34 C.F.R. §§ 300.322(c), 300.328; 8 NYCRR §§ 200.5(d)(1)(iii), (d)(7). A CSE meeting may be conducted without a parent in attendance if the school district is unable to convince the parents that they should attend. See 34 C.F.R. § 300.322(d); 8 NYCRR § 200.5(d)(3). The school district must keep a record of its attempts to arrange a mutually agreed upon time and place, such as telephone call records, correspondence, and detailed records of visits made to the parents' home or place of employment and the results of those visits. See 34 C.F.R. § 300.322(d); 8 NYCRR §§ 200.5(d)(3) - (4).
There is no dispute that the parent did not attend the September 2011 and September 2012 CSE meeting which generated IEPs for the student for the 2011/12 and 2012/13 school years, respectively (Exs. P-G at 11, P-H at 8). The parent credibly testified at the hearing that she did not receive any notice of either the September 2011 or Case No. 147038
September 2012 CSE meetings and that she did not receive copies of the IEPs generated from those meetings until the hearing (R. 55-56, 60-61, 85-87, 91-92, 107-108). No credible evidence was offered by the DOE at the hearing to demonstrate that it took reasonable steps to ensure that the parent was present at the student's CSE meetings for the 2011/12 and 2012/13 school years. Consequently, I find that that the CSE significantly impeded the parent's opportunity to participate in the decision making process regarding the provision of a FAPE to the student, see 20 U.S.C. § 1415(f)(3)(E)(ii), and that this violation rose to the level of depriving the student of a FAPE for the 2011/12 and 2012/13 school years, see Pawling Cent. Sch. Dist. v. New York State Educ. Dep’t, 3 A.D.2d 821, 825, 771 N.Y.S. 2d 572, 576 (3d Dep’t 2004); Application of the Bd. of Educ. of the Valhalla Union Free Sch. Dist., Appeal No. 09-124 at 26 (SRO Dec. 24, 2009).
C. Substantive Appropriateness of Public Programming
As noted earlier, the IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.
The evidence entered into the hearing record reflects that although the student has been promoted from grade-to-grade, he has not make meaningful academic progress over the last several school years in the recommended special class. The student currently struggles academically and is functioning far below grade level (Exs. P-G at 1, 7, 10, P-H at 1, 4, 7, P-I, P-J at 1, 6, 10). Now in , the student is generally only able to read two and three letter words (Exs. P-J at 1, P-R at 2). Although the student has memorized some longer sight words, if a letter is changed in a sight word, he cannot decode it (R. 94-95).
The parent has seen no progress in his reading ability and stated at the hearing, “He can’t Case No. 147038
” (R. 64, 72; Ex. P-M at 1). The student , but unless they (R. 72-73, 88). The parent also offered credible testimony that the in past years, which on him and interfered with his (R. 91-93). While the student’s student’s prior years has reportedly of the program (Ex. IHO-VI at 11).
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 Case No. 147038 a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
I find that the student is entitled to compensatory services designed to remedy the DOE’s failure to provide him with a FAPE. The student is but has reached only a first , at best. Even with the modified promotional criteria of the June 2013 IEP, he is expected to attain 50% of the third grade standards for ELA and math by the end of the current school year (Ex. P-J at 11). This represents a significant educational gap that must be bridged.
To bridge this gap, the parent is seeking 735 hours of one-on-one tutoring at the to address the DOE’s failures in the fundamental academic areas of decoding, spelling, reading comprehension, vocabulary, writing and math. This proposed tutoring program is reasonable, appropriate and designed to bring the student to academic achievement levels he should have attained, but for the DOE’s failure to provide him with an appropriate education.
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”).
Applying the quantitative approach to the circumstances of this case, I note there are approximately 180 days in a school year in New York, and at least two years and a half years at issue in this proceeding. With that in mind, 735 hours of tutoring corresponds to about than 1.6 hours per school day to compensate for the lost instruction time, and, examined from that perspective, is mathematically reasonable, and even conservative.
Alternatively, examined from a qualitative perspective, the parent’s proposed remedy is equally compelling. Under this approach, the examination should focus on the Case No. 147038 child’s needs; “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.
In September 2013, assessed the student’s achievement levels in his most fundamental academic areas, and identified his specific areas of need. These findings were consistent with those later revealed by the DOE’s updated . Based upon those findings, Ms. developed a tutoring program specifically designed to close the gap between those achievement levels and the knowledge the student would need to attain to be considered at a third grade level in each of those fundamental academic areas (R. 200).
Ms. testified in great detail concerning the assessments given to the student at the and how they correlated to the specific program recommendations made for remedial instruction in vocabulary, reading comprehension, writing and math. The often works with students with a , including those intelligence (R. 135-136).
Having identified specific gaps in the student’s knowledge, the instructors will work individually with him, starting at his mastery level in each area of curriculum, which will allow him to begin instruction at his comfort level and focus on one thought process at a time, and then build upon that progressively, until the student achieves his goal, which is to bring in each of those fundamental areas (R. 140-141). The program is not designed to teach the student work as an after-school program might do, but to fill in the academic gaps caused by the denial of FAPE (R. 177-178).
Based upon the results of the assessments, Ms. determined that the student needs 110 hours of instruction in phonics, auditory perception, spelling and decoding, 215 hours in reading comprehension, 184 hours in vocabulary, 60 hours in writing and 165 hours in math instruction, for a total of 735 hours, in order to complete the curriculum designed to bring him up to level in those areas (R. 173; Ex. P-K at 3). She stated that the time Case No. 147038 estimates are based upon knowledge gathered over the course of twelve (12) years of working with students, as well as the average length of time it would take a student to work through each chosen component of the curriculum (R. 172, 205-206). Ms. testified that the student could theoretically complete the program in two (2) years, but stated that a more open-ended time-frame might be more realistic for him (R. 176-177).
Ms. opined that the aspects of the program which would specifically benefit the student included the one-on-one attention he would receive from the teachers, and the intended methodology of starting work at his ability level to boost his confidence, and then slowly build upon his knowledge base (R. 173-175). To help with his demonstrated areas of need, Ms. testified that would employ multi-sensory instruction techniques, the use of manipulatives, and the involvement of large motor movements to help him learn (R. 171). If any particular instructional strategy proves unsuccessful, staff at the have the ability to choose from numerous pieces of curriculum to adjust instructional techniques to the student’s needs (R. 210, 212). Based on Ms. ’s credible testimony, I find that can offer the student a program which is appropriate, individualized, and tailored to meet his needs in an intensive but focused manner and will compensate him for the DOE’s failure to provide him with a FAPE.
E. Transportation
The parent seeks transportation for herself and the student to and from in the form of paid Metro Cards supplied by the DOE (Exs. IHO-VI at 17, P-A at 10). As the student is nine years old and educationally classified as having , I find that he is unable to safely travel alone from his home in Brooklyn to the to receive compensatory additional services. As the student has been recommended to receive special education transportation to and from his 12:1+1 special class program at P.S. 41 for the last two school years (Exs. P-H at 7, P-J at 9), I will direct the DOE to provide the student with transportation to and from , which the DOE may fulfill by providing the student and parent with prepaid MetroCards.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, Case No. 147038
IT IS
HEREBY ORDERED THAT:
1. The parent’s claim that the student was denied a FAPE for the 2011/12, 2012/13 and 2013/14 school years is SUSTAINED;
2. Within thirty (30) days of the date of this Decision & Order, the DOE shall begin providing the student with compensatory additional services in the form of 735 hours of one tutoring provided by , at a rate of $95 per hour; 3. Within thirty (30) days following submission of an appropriate invoice, the DOE shall pay the $100 registration fee and the $295 testing fee directly and
4. The DOE shall provide the student with transportation to and from compensatory additional services delivered at , which the DOE may fulfill by providing the student and the parent with prepaid Metro Cards. Dated: April 11, 2014
Jeffrey J. Schiro, Esq./gkw
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer JJS: gkw Case No. 147038
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 DECEMBER 5, 2013
PARENT
A. Due Process Complaint Notice/Impartial Hearing Request, 9/19/13, 12 pgs.
B. Bilingual Developmental Assessment, 11/10/05, 6 pgs.
C. Bilingual Evaluation, 11/10/05, 4 pgs.
D. Social History, 11/18/05, 4 pgs.
E. Evaluation, 8/1/11, 5 pgs.
F. Speech/Language Evaluation, 8/17/11, 6 pgs.
G. Individualized Education Program (IEP), 9/20/11, 11 pgs.
H. Individualized Education Program (IEP), 9/14/12, 9 pgs.
I. Final Report Card, 2012/13, 2 pgs.
J. Individualized Education Program (IEP), 6/18/13, 12 pgs.
K. [Reserved]
L. Letter from parent, 8/23/13, 1 pg.
M. Social History Update, 10/29/13, 2 pgs.
N. Evaluation, 11/26/13, 4 pgs.
O. [Reserved]
P. [Reserved]
Q. [Reserved]
R. ARIS Parent Link, 9/2013, 3 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 10, 2013
PARENT
K. Evaluations, 9/19/13, 47 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 12/5/13, 1 pg.
II. Confirmation of Extension, 1/9/14, 1 pg.
III. Confirmation of Extension, 2/3/14, 1 pg.
IV. Confirmation of Extension, 3/4/14, 1 pg.
V. Confirmation of Extension, 3/24/14, 1 pg.
VI. Petitioner’s (Parent) Closing Brief, 3/3/14, 18 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 accommodate the availability of the parties’ witnesses, to allow for correction of the hearing transcript, to allow for adequate time for the parties to submit post-hearing briefs and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for extension requests justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 216-217; Exs. IHO-I, IHO-II, IHO-III, IHO-IV, IHO-V).
[3] was described at the hearing as a birth defect in which the sutures of an infant’s skull close prematurely, preventing the proper development and formation of the brain, which can lead to developmental delays (R. 52; Ex. P-D at 2).
[4] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(7).
[5] 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, 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