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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: August 14, 2013
November 20, 2013
December 18, 2013
Actual Record Closed Date: February 17, 2014
Hearing Officer: John Farago, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 14, 2013
Attorney (Via Telephone) — Student
Attorney (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 20, 2013
ESQ., Attorney — Student
BARBARA JOHNSON, Parent Advocate — Student
ESQ., Attorney — DOE
Principal (Via Telephone) — DOE
Principal (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 18, 2013
ESQ., Attorney — Student
Grandparent — Student
Psychologist — Student
Director, — Student
Department of Education Attorney — DOE
Special Ed Teacher — DOE
This hearing concerns the placement of a fourteen year old speech impaired youngster whose family has challenged the Individualized Education Programs (IEP) for the 2009-10, 2010-11, and 2012-13 school years and has sought to have her evaluated. Because the Complaint was filed in May of 2013, it acknowledges that it reads back two years, to May of 2011.1
I have previously directed the district to conduct the requested evaluation, which has by now been completed and reviewed by the Committee on Special Education (CSE).
1 A recent US District Court decision from the Western District of Pennsylvania analyzes “the interplay between 20 U.S.C. §§ 1415(f)(3)(C) and 1415(b)(6)(B).” G.L. v. Ligonier Valley Sch. Dist. Auth., 2:13CV-00034, 2013 WL 6858963 (W.D. Pa. Dec. 30, 2013). The court notes that, Section 1415(f) (3)(C)9 states:
A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows.
Section 1415(b)(6)(B)10, on the other hand, provides:
The procedures required by this section shall include the following ... (6) An opportunity for any party to present a complaint....(B) which sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for presenting such a complaint under this subchapter, in such time as the State law allows, except that the exceptions to the timeline11 described in subsection (f)(3)(D) shall apply to the timeline described in this subparagraph.
Id. at 3.
The court concludes that the plain language of the statute, supported, and to some degree undermined, by caselaw from within the Third Circuit, leads to a conclusion that the two sections taken together provide for a 2+2 analysis of the timeline of a special education case: A Complaint must be filed within two years of the date on which the parent should have known of the alleged violation, and that Complaint may allege violations that had occurred up to two years prior to that date of presumed knowledge. In this case that would permit claims to be alleged for acts and omissions commencing in May of 2009. Whether or not that analysis is applicable in the Second Circuit – and no cases to my knowledge expressly reject it, while the plain language of the statute does indeed support it -- the Complaint here does not allege harms reading back prior to May of 2011, although it does propose relief that would address the child’s condition as of that date. That condition inevitably was attributable to acts and omissions prior to that date, as it is in every case.
Accordingly, this decision follows the timeline articulated in the Complaint and reads back to address acts and omissions by the district occurring on or after May 9, 2011; it crafts a remedy designed to address the child’s needs as of that date. At that review, the district and the parent developed an IEP, which both agree is now appropriate for the child. That IEP changed the prior June, 2012 IEP by changing the child’s classification from and by changing her program to an ICT class supported by Special Education Teacher Support Services (SETSS) services, and, finally, by adding , and related services.
In the words of the family’s Closing Brief, the remaining issues are “(1) whether the DOE’s failures denied [the child] a FAPE from May 8, 2011 through the end of the 2012-2013 school year and (2) whether the grandparent’s request for compensatory education arising out of those failures is appropriate.”
The family now thus seeks compensatory services to counterbalance the district’s failure to have evaluated, or updated the evaluation of, the child, subsequent to the last full district evaluation in 2009, and for other consequential failures to have provided an appropriate IEP since that time. The parent believes that such an evaluation became mandatory as of October, 2012, when a triennial evaluation was due, but that it should also have been triggered much earlier as a result of the child’s academic deterioration during 2009-11. She further argues that an annual review should have been conducted, but was not, during 2009-10, or in any event no later than November 13, 2010, but was not in fact conducted until May 2011. Accordingly, the parent contends that there was no appropriate IEP in place for 2010-11 or 2011-12 or 2012-13, and that this failure to provide FAPE was only remedied once the evaluation and review ordered by me in my two Interim Orders were completed and the agreed-upon IEP generated in October of 2013.
I Find that, absent a minimally adequate evaluation, there could have been no valid IEP and hence no valid placement, and there was therefore, on the undisputed facts in the record before me, no free appropriate public education (FAPE) beginning at the very least when the triennial evaluation was due in October of 2012 and continuing until the current agreed-upon IEP. I further Find, however, that the appropriate prospective remedy for such a past denial of FAPE lies in the development of an appropriate IEP going forward, augmented by such additional services that the CSE believes could be of benefit to the child and bring the child as rapidly as possible back to her level of performance as of when the denial of FAPE commenced. I therefore Order a reconvening of the CSE to consider the impact of the past failure to evaluate the child and address the relative regression in her academic performance between 2009 and 2013, and to add further SETS services prospectively, including during the summer of 2014 and at such other times as the CSE should deem appropriate and potentially effective to compensate for the failure to have provided FAPE during 2011-12 and 2012-13.
I. The Failure to Evaluate.
Every child with special needs is entitled to five distinct elements of a special education placement under the federal law. These are cascading or developmental in the sense that the first four of these five elements occur in a specific order, each building upon the ones before it):
(1) a proper evaluation by a multi-disciplinary team (implemented in 34 CFR 300.122);
(2) on the basis of that evaluation, a program developed collaboratively by a committee with specified membership including the parents or the child and captured in an IEP (implemented in 34 CFR 300.320 et seq);
(3) a proposed placement capable of delivering that IEP program (implemented in 34 CFR 300.101), to be in effect at the beginning of each school year (implemented in 34 CFR 300.323);
(4) the actual delivery of the IEP program once the child is enrolled in the offered placement (id.); and
(5) a detailed and extensive array of due process protections, including the impartial hearing mechanism, to assure that the first four are available and properly implemented in each individual case (implemented in 34 CFR 300.500 et seq).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. §300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]). While a failure to conduct an annual assessment is not a per se denial of FAPE, the failure to conduct the mandated (34 C.F.R. 300.303; 8 NYCRR 200.4[b][4]) triennial review, in the context of the allocation of the burden of proof in New York in special education hearings (NY Educ. L. 4404), raises a rebuttable concern that the district lacked the information needed to make an adequate assessment of the child. Where a subsequent assessment leads to a change in the child’s classification, as it did here, that presumption is all the more compelling. See, e.g. Bell v. Bd. of Educ. of the Albuquerque Pub. Sch., CIV06-1137JB/ACT, 2008 WL 4104118 (D.N.M. May 6, 2008); Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275 (11th Cir. 2008). Although decisions of the State Review Office are not precedent for any subsequent proceeding, the SRO aptly summed up both the law and the district’s obligation to the child in SRO 05-025:
A CSE must have adequate and timely evaluative data to prepare an appropriate IEP for a child (Application of the Bd. of Educ., Appeal No. 99-94;
Application of a Child with a Disability, Appeal No. 99-05; see Application of a Child with a Handicapping Condition, Appeal No. 91-25). Consistent with this, a CSE must arrange for an appropriate reevaluation of each student with a disability if conditions warrant a reevaluation, or if the student, parent, or teacher requests a reevaluation, but at least once every three years (34 C.F.R 300.536[b]; 8 NYCRR
200.4[b][4]). The obligation for a reevaluation is not optional (Application of a Child with a Disability, Appeal No. 97-34). A reevaluation must be sufficient to determine the student's individual needs, educational progress and achievement, ability to participate in the regular education program, and continued eligibility for special education (8 NYCRR 200.4[b][4]; Application of the Bd. of Educ., Appeal No. 99-94; see also Application of a Child with a Disability, Appeal No,
96-3; Application of the Bd. of Educ., Appeal No. 94-43). The results of any reevaluations must be addressed by a CSE in reviewing and revising a student’s IEP (8 NYCRR 200.4[d][4]). As part of a reevaluation, existing evaluation data shall be reviewed, and on the basis of that review (along with input from the parent), a determination made as to what additional data are needed to determine, inter alia, the present levels of performance and educational needs of the child and whether any additions or modifications to the special education services are needed (8 NYCRR 200.4[b][5]). If additional data are not needed, the school district must notify the parents of that determination and the reasons for it (8 NYCRR 200.4[b][5][iv]).
Here, a child who had been in and out of general education, was losing ground over the course of the years in question in this hearing. See Exhibit J at 1-2. The district should have been concerned about the continuing academic deficits reflected in the child’s report cards (Exhibits H, J, and O) and her increasing disaffection from school, reflected in the suspension and the sequential change of school over a short period of time. When, ultimately, the district was ordered to fund an independent evaluation to fill in the void created by its failure to have assessed the child in over three years, the child’s classification was changed from , and the substance of her program was dramatically intensified.
I Find that the district had failed to conduct the indicated and, ultimately, mandatory evaluations and that its reviews for the period under review had lacked the clinical material needed in order to develop an appropriate program. I further Find that when the district did have such a current and accurate assessment before it, the program it developed was far more intensive and more narrowly tailored to the child’s actual and specific needs. To the extent that this failure was procedural in nature, I further Find that it led to a denial of service and a deprivation of the grandparent’s capacity to participate adequately in the CSE review.
In sum, I Find that the failure to evaluate in timely manner both constituted and resulted in a denial of FAPE for the years challenged here.
II. Compensatory Education.
The grandparent seeks an order of compensatory education to remedy the denial of FAPE that she alleges and that I have held took place during the 2011-12 and 20122013 school years.
Compensatory education is an extraordinary remedy, not mentioned in the special education statute, designed to address circumstances when the routine mechanisms defined by the statute are unavailable or unavailing. Compensatory education is judicially ordered from the outside, unilaterally imposed on both parties by an external decision maker. The statute, by contrast, meticulously sets out a collaborative process joining school districts and families together to evaluate, plan, and implement a shared understanding of a child’s needs and the educational program designed to address them. The Committee on Special Education (CSE) is the shared setting in which the parties come together to review the child’s assessments; the IEP is the plan they jointly derive from that review; and the district-provided placement is the delivery mechanism for that plan. Where there are disputes, the law provides for a detailed due process mechanism – of which this impartial hearing is one step – to resolve those disputes and return the parties to the CSE to pick back up on working together.
Compensatory education in New York has evolved to address two distinct factual dilemmas, both arising from circumstances in which the mechanisms of the statute are impossible to utilize: (1) compensatory education may be ordered when the child is no longer within the CSE’s jurisdiction – when she has aged out of, or graduated from, public education and is therefore no longer routinely entitled to them protection and procedures of the statute; (2) compensatory services may, as a separate and distinct matter, be ordered when the collaborative process has is in place and has generated an appropriate IEP, but all or a portion of the program there defined, the child has been denied the services mandated on the agreed-upon IEP. In the former circumstance the CVSE process is unavailable: the child is no longer within the jurisdiction of the CSE. In the latter, it is unavailing: the IEP is in place but not being delivered; the problem of foregone services could not reliably be addressed by ordering a return to a CSE/IEP cycle that had already been demonstrably unable to deliver the services it had mandated.
Both of these distinct sorts of compensatory education are awarded cautiously and within strict limitations. The former is generally only awarded after the expiration of eligibility (not the case here), and then only when there has been a gross denial of services. V.M. v. N. Colonie Sch. Dist., __ F. Supp. 2d __ (N.D.N.Y. 2013) (citing Mrs.
C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990)); J.A. v. E. Ramapo Sch. Dist., 603 F. Supp. 2d 684 (S.D.N.Y. 2009) (citing Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); French v. New York State Dep't of Educ., 2011 WL 5222856, at *2 [2d Cir. Nov. 3, 2011]; 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]; cf. French v. New York State Educ. Dep’t, 476 F. App’x 468, 471 (2d Cir. 2011) (“for a ‘gross procedural violation’ . . . [resulting] in the student's complete deprivation of a FAPE during her period of eligibility,” citing Garro v. Dep’t of Educ., 23 F.3d 734 (2d Cir. 1994))
The latter is only awarded when there has been an express denial of services detailed and mandated on an existing IEP (again, not the circumstance here). See, e.g., N.Y. SRO Decision No. 13-048 (Sept. 18, 2013); N.Y. SRO Decision No. 12-235 (Sept. 3, 2013); N.Y. SRO Decision No. 12-209 (May 3, 2013). For a state appellate court decision that upheld such an award for a lack of implementation denial of FAPE, see Bd. of Educ. v. Munoz, 793 N.Y.S.2d 275 (App. Div. 2005).
The present case does not fall into either of these categories. The parties have agreed prospectively on an IEP, but there was no agreed-upon IEP during the years challenged. Indeed, the very nature of the challenge is the alleged deficits of those IEPs. Accordingly, the compensatory services form of compensatory education is not applicable, both because there was no mandate in place to serve as the metric forb the denial of service, and because there now is an agreed-upon IEP in place reflecting the parties’ capacity to work together to address the child’s needs without requiring an externally-imposed directive.
Moreover, the child is still of school age, and there is no reason why the remedy for the past defect cannot, at this point in time, be developed by the CSE and delivered by the district. I know of no authority that would support a unilateral prospective remedy when there is an agreed-upon IEP in place and where the past claimed deprivation was not a denial of exiting IEP services but, instead, derived from a kind of speculation about what might have been appropriate if only there had been a proper IEP in place.
To be sure, the nature of the CSE review I order here is different from the normal work of the CSE. In general, the task of the CSE is to meet or exceed the standard articulated by the US Supreme Court in Rowley v. Hendrick Hudson School District, 458 US 176 (1982), requiring merely that the program defined be reasonably calculated to provide some meaningful educational benefit. Here, because I have found that the district has fallen short of that standard over a prolonged period, the CSE must look to help the child recover the ground lost by that shortcoming as swiftly as possible. It must, therefore, take two steps: first, assess the extent to which the child can benefit from additional services, such as additional SETS services to provide structured tuitoring by a licensed special education teacher, and, second, it must directly provide those services either through its own itinerant staff or by contracting directly for them.
Working together with the parent, the district can assess the child’s availability for such services both during the school year and the summer, reviewing progress regularly as they deem appropriate but no less frequently than the child’s annual review. As with any CSE review and decision, if the grandparent disagrees with the district’s assessment, she can request a new hearing on the new issue.
III. Order
Accordingly, I decline to award compensatory services from a private provider but, instead, return the parties to the joint planning process and direct them to participate in a new CSE review no later than April 1, 2014. In light of the enhanced services provided in the child’s current agreed-upon IEP, I further Order the district to conduct an educational update, with that report to be available to both sides no later than March 15, 2014; thereafter, the CSE is to assess the child’s progress in light of the level of services defined in the October 2013 IEP, and incorporate these mandated tutoring services to compensate for the services foregone in past years. Finally, I Order the district to develop a program to provide the family with such services, including during the summer of 2014, commensurate with the child’s needs viewed in light of the past denial of FAPE. Dated: February 18, 2014
JOHN FARAGO, ESQ.
Impartial Hearing Officer JF:gc
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 Hearing Request, 5/8/13, 8 pages B Assessment, 10/5/09, 6 pages C Classroom Observation, 10/9/09, 2 pages D Social History Update, 10/5/09, 3 pages E IEP, 11/13/09, 12 pages F Social History Update, 1/25/10, 3 pages G Teacher Report, 1/25/10, 3 pages H IEP, 9/8/11, 11 pages I Report Card, 1 page J IEP 9/3/12, 13 pages K Report Card, 2 pages L Proposed 2013-2014 IEP, 8 pages M Testing Documents 3/23/13, 59 pages N Subpoenas 7/22/13 with Cover Letters, 7/24/13, 18 pages O Report Card, 1 page P Evaluation, 8/28/13, 31 pages Q Evaluation, 8/17/13 and 9/7/13, 8 pages R Evaluation, 9/19/13, 18 pages S IEP, 10/15/13, 17 pages
DEPARTMENT OF EDUCATION
1 IEP, 8/8/11, 9 pages 2 IEP, 6/28/12, 10 pages 3 Final Notice of Recommendation, 8/23/11, 1 page 4 Log of Events, 8 pages