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: May 5, 2014
June 2, 2014
June 27, 2014
Actual Record Closed Date: August 11, 2014
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON
Name Title For Date
DOE Representative DOE 05/05/14 (T) 06/02/14 06/27/14 Attorney PARENT 05/05/14 (T) 06/02/14 Attorney PARENT 06/02/14 06/27/14
Mother PARENT 06/02/14 06/27/14
Clinical Professor of PediatricsPARENT 06/02/14 (A) 06/27/14 (T)
On October 16, 2013 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), Part 200 of the Regulations of the Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a (4) year old student and the New York City Department of Education (“DOE”) - Home District: Service: involving the student’s special education program. After adjournments were granted on consent or for cause, the impartial hearing was held on May 5, 2014, June 2, 2014 and June 27, 2014. A list of the witnesses who appeared at the hearing and the documents taken into evidence is annexed to this decision.
BACKGROUND
The student in this case is alleged to have .” (See Due Process Complaint “DPC”) It is alleged that the Committee ”) held a meeting on February 5, 2014 that resulted in a recommendation that the student receive services. (Id.) The Parent also alleges that the CPSE agreed to help her find a , but they could not find one at the prevailing DOE rate. (Id.) The Parent further asserts that the Individualized education Program (“IEP”) resulting from the meeting is procedurally and substantively flawed and caused the student to miss (4) months of special education services. (Id.)
At the hearing, the Parent seeks the following relief:
(a) a finding that the above noted failings and violations deprived the student of a “free and appropriate public education” (“FAPE”); and
(b) a finding that the above significantly impeded the Parent's opportunity to participate in the decision making process regarding the provision and caused a deprivation of educational benefits; and
(c) an order that the DOE provide compensatory x 30 per week) 3 x 30 per week) for the time during which the student , from July 6, 2013 to November 11, 2013; and
(d) an order that the DOE provide compensatory services week) from July 6, 2013 to February 5, 2014, when began pursuant to the IEP dated February 5, 2014; and
(e) an order that the DOE provide compensatory services (15 hours per week) from July 6, 2013 to February 5, 2014, services began pursuant to the IEP dated February 5, 2014; and
(f) an order that the DOE compensate the Parent for out-of-pocket expenses for PROMPT speech therapy that she has incurred since November of 2013; and
(g) an order that the DOE of (180) minutes per week (corresponding to the current SLT mandate of 3 x 60 per week) for the student, to be provided certified speech therapist at “Michelle Solomon’s” practice, located in New York, New York, at a rate of $125 per (45) minutes; and
(h) payment of attorney's fees and expenses.
THE DOE’S CASE
The DOE conceded “Prong 1” and “Prong 3” of the Burlington/Carter test for reimbursement to a Parent for tuition reimbursement and/or reimbursement for services obtained by the Parent when the services offered by the agency are inadequate. (T-33-4) As to “Prong 2”, the agency argues that the educational program as proposed by the Parent would be overly restrictive for the student. (T-33)
The DOE did not call any witnesses and submitted (10) documents in evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the DOE’s case is incorporated in the decision below.
THE PARENT’S CASE
The Parent argues that the student is a boy . (T-34) In September of 2013, the student was diagnosed with . (Id.) As a result of the DOE’s failure to provide the student with a FAPE, the Parent request compensatory and . (T-34-6)
The Parent called (2) witnesses to testify on her behalf and submitted (35) documents in evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the Parent’s case is incorporated in the decision below.
FINDINGS OF FACTS & DECISION
IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 (2005)) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)
The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2nd Cir. 2005))
The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 (2nd Cir. 2000)) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 (1982)) 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. § 300.550(b), 8 NYCRR §200.6(a)(1))
The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the private school employ certified special education teachers, or have its own IEP for the student. (SRO No. 94-20)
Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:
Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-
102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-
049).
As stated above, the DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents were appropriate, and equitable considerations support the Parents' claim. (Carter and Burlington, supra)
In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA. (Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)
It is well settled that compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. (See Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]) Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA. (See 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5])
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 C.F.R. § 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; SRO No. 05-084 & 05-037), or until the conclusion of the school year in which he or she turns age 21. (See Educ. Law §§ 3202[1], 4401[1], 4402[5]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 C.F.R. § 300.102[a][1], [a][3][ii] & SRO No. 04-100)
Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation 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 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001] & SRO No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education])
Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA. (See 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]) Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE. (See Newington, 546 F.3d at 123 [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; 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]; see also R.C. v. Bd. of Educ., 2008 LEXIS 113149, at *38-40 [S.D.N.Y. March 6, 2008])
Likewise, State Review Officers 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 Bd. 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]; SRO No. 09-111 [adding summer reading instruction to an additional services award]; SRO No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; SRO No. 09-044 [awarding "make-up" counseling services to remedy the deprivation of such services]; SRO No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; SRO No. 08-072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE]; SRO No. 08-060 [upholding additional services awards of physical therapy and speech-language therapy]; SRO No. 08-035 [awarding ten months of home instruction services as compensatory services] and SRO Nos. 06-074, 05-041 & 04-054)
In this case, the DOE concedes that it did not offer the student a FAPE and that there are no equitable considerations that would bar an award on behalf of the Parent. (T-33-4) Accordingly, I need only decide if the services sought by the Parent are appropriate. Here, the Parent need only demonstrate that the service sought provide educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)
testified for the Parent. (T-38 & P-FF) She first met the student on or about September 13, 2013 when his mother, brought him (T-39 & P-FF) When she completed the student’s ( Checklist to the student. (T-40-1 & P-FF) Based on the results of the Parent interview she conducted, she diagnosed the student (T-43-4 & P-FF)
The witness testified that specific methodologies to address therapy and “ .” (T-44 & P-FF) The witness ” as follows:
is an acronym that stands for Pron1pts for Restructuring Oral Muscular ) to manually guide them through a targeted word, phrase or sentence. The technique develops motor control and the development of proper oral muscular movements, while eliminating unnecessary muscle movements, such as jaw sliding and inadequate lip rounding. used to restructure the speech production capabilities of children with directly addresses the difficulty with speech sound production that children protocol is another approach used to teach how to say words and help them increase motor-speech coordination. Generally, children start by saying simple words without including too many of the complex consonants, vowels, or syllables and then move on to more complex words as their motor-speech coordination improves. (T-44-5 & P-FF)
The witness conceded that she has more and is also familiar with peer reviewed published research , when used intensively, can be very effective in helping children with . (T-45 & P-FF) She found the student’s expressive language “profoundly delayed.” (T-47-8 & P-FF) She recommended that the student be provided with intensive speech therapy that should include multisensory Protocol and that he is placed in an inclusion program with typically developing children. (T-45-6 & P-FF)
The testimony of the witness was uncontroverted during her cross examination. (T105-129) The witness ” is mostly found in the mid-west is much more accessible to patients. (T-122) in not necessarily multi-sensory based. (T-123) At this point, she for the student. (T-128)
The student’s mother also testified. She said that the student is delayed in speech and . (T-56) On August 28, 2013 only recommended a special education school for the student. (T-60) She did not think the student belongs in a special education school. (T-61) Her research showed her that children . (Id.) She wanted the student to receive services at his daycare. (T-62) She asked them. (Id.) The student had not received services since July 5th. (T-66)
The witness testified that on October 2, 2013, the CPSE coordinator tried to find the student a spot at a school but there were none available and no services were provided from July through October. (T-67-70) She asked for the special education teacher, physical therapy, speech, and occupational therapy, which were the same services that the student had received for early intervention. (T-74) The student started and occupational therapy, but not , in November. (T-77-9 & P-H)
The witness testified that on February 5, 2014 they got the services that they had asked for, which were the special education teacher five days a week for three hours, for a total of
(15) hours a week, from two times (30) to two times (45) minutes and the student finally got physical therapy at “three times (60)”, and his speech services were increased from three times
(30) to three times (60) minutes a week. (T also said that she was going to look to find agencies that . (T-81) In March or April she said that she could not find anything. (T-82)
The witness testified that the student because they cost $125 for (45) minute sessions which she could not pay. (T-84) She wanted the student to continue with the private she has seen progress. (T-85) At the can only go on the weekend, because during the week they moved the teacher that works with the student to another is further away from them. (T-
85) The teacher can only see the student during the day at 3:00 pm which she cannot do because the (Id.) There was no substantive testimony developed during the witness’ cross examination. (T-90-3)
During voir dire the witness testified that the sessions were a little more successful and are longer. (T-94) The student had (10) sessions with the but is not seeing her now. (Id.) There was no substantive testimony developed ruing the witness’ re-direct examination. (T-93-7) There was no re-cross examination of the witness. (T-97)
State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the IHO. (See 8 NYCRR 200.5[j][5][v]) I find that based on the record before me the Parent is entitled to the relief requested. The agency concedes that it denied the student a FAPE and he is severely delayed in . (T-33-4, 47-8, 56 & P-FF) The student has been diagnosed with ”) which can be addressed . (T-43-4 &P-FF) Indeed, PROMPT therapy has been specifically recommended for the student. (T-45-6 & P-FF) The agency also acknowledges that the student can benefit and even tried to procure those services for the student. (T-81-2) The Parent can no longer secure those services at the Long Island agency and also believes that the longer Prompt sessions benefit the student. (T-85 & 94) For all of the reasons I find that the Parent is entitled to have the student receive from the private provider at the enhanced rate of $125.00 per (45) session.
As stated above, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE. (See Newington, Student X. and R.C. supra) The Parent in this case researched “children ” and found that they are better off in environments with typically developing kids. (T-61) For this reason she wants the student to receive services at his daycare with is consistent with the law’s requirement that the student be placed in the “least restrictive environment.” (T-62) What’s more, the DOE in this case could not find a placement for the student which amounts to a “significant” and “material” denial of FAPE. (See Houston Independent School District v. Bobby R., 200 F.3d 341 at 349 [5th Cir. 2000], Fisher v. Stafford Township Bd. of Educ., 2008 WL3523992, at *3 [3d Cir. Aug. 14, 2008], Couture v. Bd. of Educ. of Albuquerque Pub. Schs., 535 F.3d 1243 [10th Cir. 2008], Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003], A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 [2d Cir. March 23, 2010], Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811 [9th Cir. 2007] and Catalan v. Dist. of Columbia, 478
F. Supp. 2d 73 (D.D.C. 2007)) It is uncontroverted that as a result of the denial of FAPE, the student did not receive necessary special education related services from July to November of 2013. (T-67.70, 77-9 & P-H)
For all of the reasons stated herein, I find that the student is entitled to the requested.
NOW therefore, it is hereby
ORDERED that the DOE provide compensatory services (2 x 30 per week) and (3 x 30 per week) for the time during which the student did not receive any services, from July 6, 2013 to November 11, 2013; and it is further
ORDERED that the DOE provide compensatory x 30 per week) for the time from July 6, 2013 to February 5, 2014 which the student did not receive any services; and it is further
ORDERED that the DOE provide compensatory (15 hours per week) for the time from July 6, 2013 to February 5, 2014 which the student did not receive any services; and it is further
ORDERED that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE compensate the Parent for out-of-pocket expenses for that she has incurred since November of 2013; and it is further
ORDERED that the (180) minutes per week (corresponding to the current per week) for the student, to be provided by the student’s therapist at the of per (45) minutes. Dated: August 27, 2014
, ESQ.
Impartial Hearing Officer EDL;mv
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
Number/Letter Title Dated For # of Pages
01 IEP 08/28/13 DOE 21
02 IEP 10/02/13 DOE 08
03 FNR 10/02/13 DOE 01
04 Notice of Awaiting Placement 10/02/13 DOE 01
05 FNR 08/28/13 DOE 01
06 Approval Authroization 09/09/13 DOE 01 07 Notice of Eligibility 10/02/13 DOE 01 08 Child Outcome Summary Report 08/28/13 DOE 07 09 Evaluation 06/2013 DOE 03 10 Examination 06/17/13 DOE 01 A Amended 12/02/13 PARENT 05 B Acceptance Notice 12/03/13 PARENT 02 C Original 10/15/13 PARENT 04
D IEP 10/02/13 PARENT 19
E Attendance Page undated PARENT 01 F Attendance Page 08/28/13 PARENT 01 G Summary Student Information 10/07/13 PARENT 01 H Receipt for Pre-School Services undated PARENT 01 I Progress Report 11/30/13 PARENT 02 J Letter 11/13/13 PARENT 02 K Letter from 12/13/13 PARENT 02 L E-Mail from 09/25/13 PARENT 05 M Progress Notes 09/19/13 PARENT 02 N Developmental Pediatric Eval. 09/13/13 PARENT 03 O Progress Note 06/06/13 PARENT 03 P Consent for Evaluation 06/07/13 PARENT 01 Q Bilingual Social History 06/07/13 PARENT 02 R Bilingual . 06/07/13 PARENT 05 S Bilingual Educational Eval. 06/10/13 PARENT 07 T Classroom Observation 06/10/13 PARENT 02 U Letter to CPSE 06/10/13 PARENT 01 V Bilingual Speech Eval. 06/27/13 PARENT 05 W Evaluation 07/04/13 PARENT 05 X Progress Report 01/10/13 PARENT 03 Y Re-Evaluation 06/21/13 PARENT 03 Z Progress Report 06/27/13 PARENT 04
AA IEP 02/05/14 PARENT 19
BB Summary Student Information 02/05/14 PARENT 01
CC FNR 02/05/14 PARENT 01
DD Authorization for IEP Change 02/05/14 PARENT 01 EE Statement of Account 03/08/14 PARENT 04 FF Affidavit of 02/20/14 PARENT 09 GG C.V. of undated PARENT 08 HH Amended DPC & Resolution “K” 03/17/14 PARENT 11 II Justification for 06/18/14 PARENT 02