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 #:
Student’s Name:
Date of Birth:
Hearing Requested by:
Date of Hearing:
Actual Record Close Date: .
Hearing Officer: .
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE HEARING
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(via phone). — District
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INTRODUCTION
On . I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, §1415 (f) (1), by the (“the District”) concerning a dispute involving the special education program of . . ( or “the student”) for the . and the . school years covering the period of .
through the filing of the due process complaint (“dpc”) on . .
BACKGROUND
is a year old student who during the period covered in the dpc was in the in the District. is classified as and classification is not at issue. From attended in a class. In transferred to and was placed in a class. The assert that the District has failed to provide with a free and appropriate public education (“FAPE”) for the period covering . . The District contends that was provided with FAPE and that the recommended programs and services addressed unique needs.
FINDINGS OF FACT
has attended school in the District since (t. 1797) and according to has been receiving services for disability since was years old. (t. 1798). A Re-evaluation of Social History dated states that was first classified in 4 when was years old. (Ex. 41) An Individualized Education Program (“IEP”) was generated on (Ex. 22) at a meeting of the Committee on Special Education (“CSE”) for year. The IEP notes that at that time the student’s classification was changed from to . As a special alert it is noted that the student takes medication and is diagnosed with as well as having been diagnosed with The IEP recommends a special class and related services of . The IEP notes, under Academic Achievement, deficits in reading and writing as well as a great weakness in language. In addition, it is noted that “.. displays weakness in …there are times when will be y for his teachers. At times will refuse to follow directions, especially those that pertain to . has had a few instances this year . Though these behaviors are inconsistent, they are clearly damaging towards education.” Under management needs it is noted that needs specialized programs. While it is noted, under management needs, that needs a classroom system the IEP does not require a ….
started the fourth grade at on in a class. A class is a highly structured program which follows a bound curriculum. The students are expected to do the work but it is a smaller class with a maximum of students. In the District the also has a teaching assistant which allows for breaking down in to smaller groups for instruction and to provide behavioral support. The class that was in had approximately students in it. (t. 1283-84, 1843) A progress report dated , by teacher, , revealed that spent the entire first day of school at desk. (Ex. 40) notes that has a great deal of the school day after that and has missed most of math and ELA lessons. The report notes that the that was taking had been adjusted the prior Thursday in order to address the .[1] At the time of the report was reading at an end of level. By this point had not met with group at all because was and on one occasion did not want to do the work so left the group. It was further reported that has displayed in the classroom since the second week of school and has the teacher when attempted to him. states in progress report that has not been receiving an education since school started and that are increasing in frequency and intensity. The testified that had been in the for about half the year. The consulted with the and did some research and discovered that they were giving at the wrong time and that was what they believed was causing to . (t. 1801) However, a Update dated (Ex. 43) indicated that beginning in ( grade) began to in class and engage in . The were believed to be related to and . The report noted once tasks were the often escalated and presented as . On a plan was implemented which was ultimately found to be unsuccessful as level of motivation was minimal and inconsistent and continued to escalate.
The , prepared a report of (Ex. 38) for which collected data from through .
It was found that was an average of 2 hours and six minutes a day and that it appears to be out of control, though it was also found that on some occasions it could be . The report also found that was physically to teacher and classroom staff 14 out of 18 days. The report also broke down how much time was spent on-task (time spent participating in lessons/classwork) and off-task (time spent in class not participating in lessons/classwork).
While indicates that it was hard to quantify based on the large amount of time it was found that spent an average of 104 minutes per day on-task and 56 minutes per day off-task.
In addition, averaged one per day. In summary problem significantly interfered with academic, social and emotional functioning and presented a significant to the educational environment. posited that every day falls further behind and feels frustrated and overwhelmed by this fact.
,a , was contacted by the in regarding . (t. 1280, 1283) participated in a CSE meeting held on . (Ex. 21) The IEP generated from the meeting notes as a special alert that as of is being treated by . The CSE met to review progress and there was discussion regarding implementation of a as well as development of a and . Prior to the CSE meeting spoke to about . The had consented to communication with . (t. 1814-15). testified that they discussed both and recommendations for the CSE.
stated that in order to stabilize the ideal situation would be a so that can take place in an environment that simulates demands. suggestion was the program in which could be evaluated by on staff and could be adjusted in an academic environment.[2] also discussed placement in a class where academic demands would be reduced and the could be adjusted as an . In addition discussed and said that reduction of a certain might result in increasing but would also be likely to increase behavior. The stated that the issues would ultimately trump needs. (t. 1292-93, Ex. 44) The testified that the first time that[3] heard about a placement was in and advised the CSE that opposed such a placement because the District had not yet tried a or . (t. 1860-61)
On the CSE met and the IEP generated as a result (Ex. 19) indicates that the committee reviewed the (Ex. 39) dated and the Teacher Progress Summary (Ex. 40). The Teachers
Progress Report, dated did not differ markedly from the prior report. The report stated that out of had missed all but 2 which participated in only briefly. continued to often the first 2 or 3 hours a day causing to miss the core lessons in and and as the day progressed behavior changed from to . At the CSE meeting there was consideration of a program but the did not want to entertain such a placement and wanted the student to remain in the District with a . (t. 1310-12) As a result of the meeting the CSE recommended a change in placement from to , the addition of . In addition the was to continue and a was to be developed. The level of remained essentially the same. The testified that had asked for an increase in to as well as individual based on deficits in this area but was denied.
The testified that had been asking for this for several years with the same result. (t. 1806-09)
testified that though the was created and reviewed by the CSE for the CSE meeting a was not created for while at despite the IEP directing the creation of an . (t. 1350, Ex.
21, 19) testified that the was to be done at or an alternate placement and that by that time the data would be old and would be not be in a . (t. 1350-51) agreed that while at was for a large part of the day, missing a significant amount of instruction and that the District was not meeting educational needs. could not explain why services were not offered, only that they were trying to work with and to see if they could get to be more during the day. (t.
1347-48) In addition, testified that , if had developed one, would have caused a safety issue because it would have involved placing and staff members in a potentially dangerous situation by prompting him to because the focus of the was the fact that was throughout the school day. (t. 1353) It is conceded by that a could have been helpful to address non-compliance issues when was . It was found that during hours was the most significant and was engaging in more during hours. (t. 1362-63) testified that it was unclear whether is motivated by , or as an from classroom demands.[4] testified that did not believe that a would be appropriate and if a student needs that level of support all day long should be in a therapeutic environment. opined that having a 1:1 with all day long in a would actually be more restrictive than being in a therapeutic environment. A develops the plan and the staff implements it. (t. 1395-1399)
In was placed in a class in and teacher was . A class allows students, teacher and teaching assistant and is a special education classroom. It provides students who have borderline IQ’s and cognitive delays with reading, writing, math, science, social studies and health. IQ was in the borderline range. (t. 209-10, 1284, 854) The class had a teacher’s assistant whose role is to provide individualized instruction, small group instruction and may cover a content area. There was also a that was assigned to and was responsible for management. The would prompt, redirect, reward and take data with . The did not provide instruction. (t. 221-23)
Prior to having in class was provided with reports, an IEP and spoke via phone with the staff at . learned that had demonstrated challenging such as and that an placement was being considered but the were not in agreement so they were going to try a more placement in the district. The teacher was concerned about and that a class was not an appropriate place to handle these . On the first day received help from with the transition. advised that believed that would be more appropriately placed in but that the were not in agreement. (t. 214-15, 242, 622) The student transitioned well the first day but the started right away. It was in the third week that they started to see , it was intermittent and they were able to redirect but things began to escalate. (t. 217 worked with , a , to develop an dated (t. 216-18, Ex. 13) The was implemented throughout the classroom day. It focused on refusal and redirection and having make alternative choices to problematic . most challenging behaviors were and the would turn in to and that became a .
The was effective on some days but on others it was not. (t. 226-28, 232) testified that between there were approximately 7 days where . There was approximately 18 days in the school environment. (t 233-34)
also regularly communicated with the , from the first day, with a weekly log and then a daily log. The logs contained activities, and any other comments felt necessary. The would review and initial and then send it back to . After three or four weeks the teacher realized was writing a lot and changed to daily logs. (t. 218-19, Ex. 25, 29))
testified that reading is done in the classroom and is something that they concentrate on all day across all subjects. uses a program called which is a decoding program. They also do guided reading which is provided 1:1 at a reading table. Guided reading consists of reading a story based on the students reading level and answering questions. Writing was also done across all subjects. During regular writing periods would use graphic organizers, which would help.
(t. 235-36) would exhibit during reading and writing and the teacher would offer modifications but found that they were sometimes more distracting then helpful and could also lead to behaviors. believed that initially saw skill acquisition consistently but by mid-spring saw an inconsistent demonstration of skills. (t. 238-39)
was provided to from 013. believed that the services were appropriate and that worked in collaboration with . (t. 1490) stated that classroom is language based and has experience and background in (t. 1500-01) For the period from progress was inconsistent and effort was inconsistent. (t. 1502, 1513) felt that group was appropriate because goals were appropriate within the group setting and peer modeling is important. (t. 1504) testified that role is to provide services that are services to the extent that they affect academic performance in the classroom. (t. 1512)
testified that has severe deficits in formulating sentences in that often does not speak in complete sentences speaking in fragments instead and does not always use the correct syntax. (t.
1525-26, 1540, 1553) characterized the student as severely delayed but maintained that group services 3 times per week were appropriate. also testified that pragmatic speech is weak compared to that of non-disabled peers. (1553-55) also agreed that had severe deficits in expressive and receptive language. (1586-87) also had difficulty with meanings of words and using word associations and categorizing and word class. (t. 1643)
is a school psychologist and provided services to . (t. 1063) Starting provided counseling . During individual sessions used different materials to focus on goals to get to talk about coping strategies and how to handle different situations. In group counseling it was similar but with other children it would help generalize the skills and practice different scenarios with other children. (t. 1069-70) spoke to the about and was informed that had difficulty and had . In addition, there were that were going on. (1071-72) testified that the most significant factor in dealing with are his and that they negatively impact education and that reports from teachers say that more often than not refuses to do schoolwork. was aware of in class and in . stated that was not punished or reprimanded for and did not believe that the school was . They were aware that was not and that issues and they would not punish a child in such an instance. (t. 1127-1132)
A Progress Report/ was prepared by dated . (Ex. 14) notes that have been inconsistent since started in the and that can go several days with successful completion of work and in absence of . then goes on to note that within the last month had increased in frequency and intensity. In addition, since January 8 times for . The report notes that there has been an inconsistent decrease in the amount of time in school and interventions to help have a successful day were also inconsistent. The report notes that when escalate the students in the classroom are escorted to another room. This causes a significant disruption to the class and have generated safety concerns. Multiple staff members outside the classroom are often involved in managing regularly. The has been inconsistently successful and strategies have been changed several times to attempt an increase in success. The recommendation is that current placement be re-evaluated.
On the CSE met for an annual review and the IEP generated as a result (Ex. 17) indicates that the CSE continued to recommend the continuation of the program with the same related services and extended school year was recommended. In addition, a packet was to be sent to for review and the CSE is to reconvene upon receipt of information from and to discuss progress in extended school year and review placement. On the same date the CSE met as a requested review (noted as a result of meeting) and the IEP generated (Ex. 18) notes an increase . recommended an increase in the amount of because felt progress in the was inconsistent and would benefit from additional sessions. (t. 1081) At the time of the CSE meeting expressed to the team that felt that the placement was inappropriate and that other options should be explored such as a placement. also believed that based on concerns an placement should be considered. (t. 629-31, 575, 1081, 1123) ) The teacher testified that did best to provide with everything that was appropriate for at but often interfered and did not believe that placement was appropriate for given his level of . (t.
579) testified that the proactive strategies were not working with and also reactive strategies were not working, coping skills did not work, the were tending to increase and was constantly being changed or increased or decreased. (t. 612) The testified that was told by that they were ill equipped to handle and that a placement would be better suited. The stated that even though they believed that should be in they capitulated to the and kept in the , (t. 1820, 1828-29)
On the CSE met for an annual review (noted as annual review #2) and the IEP generated as a result (Ex. 16) indicates that the CSE continued to recommend the continuation of the program with the same related services. The comments section notes that did not participate in extended school year services (as recommended in the IEP) and that the stated that is having a wonderful and concerns are decreasing. It also notes that the elected to keep the student in district. ,a and CSE chairman, chaired the CSE meeting. testified that a referral was made to and thought that the were in favor of the placement. (t. 830, 834,
962) An acceptance for placement of in the for the school year was received from dated (Ex. 3) It specified that would be in a special education class with . testified that is familiar with program offered and that has satellite clinics in different settings in the community. At they have a within the same building and some students are referred to participate in . The students can receive within that school setting during the school day.
It offers comprehensive for the students in addition to the supportive that the center provides. stated that based on management needs the program would be appropriate for as has a building wide system and all the staff and teachers are fully trained on the n system. (t. 842-43, 845) testified that was approximately 7 or 8 times between and that in general students don’t get unless there is a significant risk or concern for the health and safety of a student or other students or staff members in the building. (t. 987-88) testified that the program in-district would be appropriate for academic needs but it was management needs that were of concern and it appeared at the end of the school year that the District was unable to meet those needs. However, based on the report that the student was having a wonderful and that were decreasing in the home setting the CSE felt that the District could provide an in-district placement. (t. 865-67, 892, 963-64) The testified that had no idea why the District never sent to . (t. 1974)
remained in the school year for the period at issue ( ). testified that the only reason that the student remained in District was because the refused to agree to an out of district placement. (t. 322-23) continued to believe, in time period, that the student was not in the proper placement and that were such that they needed to be addressed in a therapeutic environment but as remained in district they were still trying to provide with an appropriate education. (t. 326-27, 320, 575-76, 579) During this time frame during an average school day would throw pencils during instruction, rip up work, empty his desk, push furniture around, walk away from an activity, dump food and water on the floor and would throw game pieces around the room. testified that did not during this time frame but there was an incident on where adults. (t. 529-32, Ex. 25) further testified that believed that became so severe that needed to be in a more restrictive setting. (t. 582) There were a number of instances when the were called to pick up from school because were such that posed a danger to or others. (t. 607, Ex. 25) In October there was a change and became more open to learning skills. became more compliant, decreased and became a more active member of the classroom then had been previously. At that time testified that had thoughts that the placement might be appropriate, but it was too short a period of time and continued to believe that a or out of district placement was the appropriate placement. (t. 757, 760-63) had concerns about the appropriateness of placement in after a significant incident with but than in was changed decreased and then thought it was appropriate. (t. 1125-26) testified that in the time that worked with there were approximately 25 instances where there have been , 15 in which was able to and 10 where was . (t. 1136)
On the CSE met for a requested review and the IEP (Ex. 15) generated on that date noted that the CSE is requesting an and a and the CSE was to reconvene upon completion of the evaluations. testified that the CSE was still in favor of an out of district placement but the were not so the District was “in good faith” exploring in-district options. (t. 648)
CONCLUSIONS OF LAW
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. 1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v.
Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. 1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. 1414 (d); 34 C.F.R. 300.320). As noted by the State Review Office (“SRO”) in Application of a Student With A Disability, Appeal No. 11-068 the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition for a unilateral placement has the burden of proof regarding appropriateness of such placement. (Educ. Law Section 4404 (1) (c); see MPG v. New York City Dep’t of Educ., 2010WL3398256 at *7 (SDNY Aug 27, 2010) In the case at hand the Parent is seeking evaluations, increased services and compensatory services.
I find that based on the evidence and testimony adduced at the hearing that the District has failed to provide with FAPE for the and the school years for the period covered in the dpc of in that the recommended programs failed to provide JD with an appropriate education.
The State Review Office (“SRO”) considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Edu., Appeal No. 08-
037. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE for the student; or caused a deprivation of educational benefits.” (Matrejek v. Brewster Cent. School
Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y. 2007). FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). In Walczak v. Florida Union Free Sch. Dist, 142 F.3d 119 (2d Cir. 1998) the Court observed that the “[Individuals with Disabilities Education Act]
does not itself articulate any specific level of educational benefit that must be provided through an IEP. The Supreme Court has… specifically rejected the contention that the “ ‘appropriate’ education” mandated by IDEA requires states to ‘maximize the potential of handicapped children’ Board of Educ. V. Rowley, 458 U.S. at 197 n.21, 189, 102 S.Ct. at 3046 n.21, 3042.
the purpose of the Act was ‘more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.’ Id. At 192, 102 S.Ct at 3043; accord Lunceford v. District of Columbia Bd. Of Educ., 745 F.2d 1577, 1583
(D.C.Cir 1984) (Ruth Bader Ginsburg, J.) (because public ‘resources are not infinite,’ federal law ‘does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child’) An appropriate public education under IDEA is one that is likely to produce progress, not regression.’ Cypress-Fairbanks Indep.
Sch. Dist. v. Michael F., 118 F.3d 245, 248 (5th Cir.1997) (internal citation omitted), cert.
denied, ---U.S.---, 188 S.Ct. 690, 139 L.Ed.2d 636 (1998). Id., at 130, 132. An IEP must be reasonably calculated to produce educational benefit, not necessarily to maximize potential. See
Rowley, 458 U.S. at 189 (1982). A public school district is not required to provide essentially
“everything that might by thought desirable by loving parents.” See Walczak, 142 F.3d at 132
It is clear from the evidence and testimony presented in this case that has serious issues with hat significantly interfered with his academic, social and emotional functioning and that these did not suddenly appear in . The operative IEP (Ex. 22) for this period dated notes as well as weaknesses in attention, behavior and compliance. It is stated that there are times when is obstinate and nearly , that are clearly damaging to his education. The were not new at that time as they are noted in the Psycho-educational Update (Ex. 43) In any event the
IEP generated on was entered in to evidence in this matter but the District offered no evidence or testimony to support a finding that this IEP was designed to meet unique needs and offer an appropriate education with sufficient support services for the school year. Rather, the testimony and evidence support a finding that did not receive an appropriate education for the period from . In the Teachers Reports (Ex. 40) prepared for teacher, , specifically states that is not receiving an education as is mmfor a good portion of the day (beginning on the first day of school), not participating in group and has displayed . A (Ex. 38) done at this time found issues significantly impacted and interfered with academic, social and emotional functioning and presented a significant disruption to the educational environment. at the time advised that in order to the ideal situation would be a so that intensive treatment can take place in an environment that simulates classroom demands. The doctor noted that safety issues would ultimately trump education needs.
In a meeting on the CSE met to discuss and it recommended a and that an be developed. There was discussion of a placement which the opposed because they felt that the District had not provided the student with a . When the CSE met again on report did not differ markedly from prior report and reflected a continuation of for large portions of the day, missing much of core lessons, missing all but two of reading sessions and remaining . A placement was again considered but based on objections from the was not recommended.
Instead, the recommendation was for a , The Parents request for a was denied. I find that this IEP failed to provide with FAPE. By all accounts was not receiving an education and were significantly interfering with academic, social and emotional functioning as well as causing a significant disruption to the educational environment. And while a was to have been developed for this meeting it was not and the reasoning seemed to be based more on the student leaving that school and being someone else’s issue than anything else. There is nothing in the record to support the Districts decision to have the student remain in the District in a for the remainder of the school year, other than to appease the , especially in light of the fact that the educational professionals and the doctor who actually worked with felt that an out of district placement was the appropriate placement. While the placement is considered more restrictive it is still a classroom environment and there is nothing in the record to support a finding that it differed from the program substantially so far as being able to adequately address . While the feelings on the placement of their child should be considered and given weight they do not hold the ultimate veto power over the appropriate educational placement.
The student started in the program in and did not do well as the same of continued unabated. The teacher, , upon learning that was going to be in class and learning of was concerned and did not believe that class was the appropriate place to address and handle these . While there appeared to be some intermittent success with working with ultimately that was all it was, intermittent. The teacher attempted to work with the student but to no avail as would assert themselves during non-preferred tasks such as writing and reading. I credit the testimony of as candid and concerned. testified that believed that initially saw some skill acquisition but by mid-spring saw an inconsistent demonstration of those skills. The Progress Report/ (Ex. 14) supports testimony and notes the inconsistent success that they have had in addressing and notes that in the month prior to the date of the report have increased in frequency and intensity continued in class, and caused a significant disruption to the class and caused safety concerns.
The CSE met on for the annual review. Both expressed the opinion that the class was inappropriate based on behavioral concerns. In spite of the opinions of the classroom teacher and school psychologist the CSE recommended the continuation of the class with the same related services and the addition of extended school year (Ex. 17). An application packet was sent to though the continued to oppose such a placement. The CSE was to reconvene upon receipt of information from and to discuss progress in extended school year and review placement.
On the CSE met to review the response from , progress in extended school year and the program recommendation. While had sent an acceptance of in to the program (one which gave the student access to located within the school) the recommendation of the CSE continued to be the program with related services. The student had not participated in extended school year as the had chosen to keep out of school during the summer. , chair of the CSE testified that was familiar with the recommended program and based on management needs the program would be appropriate for . Incredibly, the CSE continued to recommend the placement (Ex. 16) relying totally on the statement that was having a wonderful and were decreasing in the home setting. This in spite of a history stretching back to at least of, , in the classroom setting which left the student unavailable for learning and caused significant safety concerns. Once again, there is nothing in the record to support the Districts decision to have the student remain in the District in a for the remainder of the school year, other than to appease the , especially in light of the fact that the educational professionals who worked with felt that an out of district placement was the appropriate placement. I find that the IEP’s generated on and failed to provide JD with FAPE.
remained in the setting for the period in question, , and teacher continued to be .
opinion remained constant that the student was not in the proper placement, that behaviors were such that they needed to be addressed in a therapeutic environment and the only reason remained in the district was because the objected to a placement. There was a time, in where had thoughts that may be in the appropriate placement because had a change of medication but that was too short a time and continued to believe that the placement was appropriate. I find credible the testimony of the Districts witnesses regarding the severity of and the significant impact this had availability for learning.
The District argues that not only did they have an obligation to consider the request for the least restrictive environment (“LRE”) and allow the student to remain in District but they are required to do so under the IDEA as set forth in 20 U.S.C. §1412 (a)(5)(A). A review of that section reveals that the state must ensure the LRE to the maximum extent possible but recognizing that this is not always possible, but preferable, and that a more restrictive environment may occur when the nature and severity of the disability cannot be met in a less restrictive environment. “Under the IDEA, a disabled student’s least restrictive environment refers to the least restrictive educational setting consistent to the student’s needs..” TM ex rel
AM v. Cornwall Cent. School Dist., 752 F.3d 145 (2d Cir. 2014) There is no question that the District had the obligation to consider the request to keep the student in a District placement but they were not obligated to do so if the programs and services available would not be adequate to provide FAPE. In the instant case, given the severe nature of , the credible testimony of the school district witnesses and documents submitted in to evidence support a finding that the recommended placements were not appropriate and did not afford with FAPE.
Assuming arguendo that the program was appropriate when initially recommended in it should have been abundantly clear by the CSE meeting that it was not appropriately addressing the students severe needs or providing an educational benefit. The fact that, after an acceptance to the program, the CSE elected to maintain the student in the program based on the assertion that were decreasing in the home environment is nothing short of astounding. Even more so in view of the fact that the student was not attending extended school year services as recommended so there was no way to determine whether would have shown improvement in a classroom setting.
The seek, as relief, a variety of services, evaluations and compensatory services. I address those requests at this time. The services sought by the in #5 after school instruction and #7 appropriate are moot as they refer to being given specifically for the remainder of the school year and that school year has ended. The seek compensatory relief in #2 reading services, and #3 services. I do not find an award of compensatory damages in this case to be appropriate. The purpose of an award of additional services is to provide an appropriate remedy for a denial of FAPE. See SRO Appeal No 14-114 citing (E.M. v. NYC Dept. of Educ., 758 F.3d at 451(2d Cir. 2014); P. v. Newington 546 F3d at 123 (2d Cir 2008) [holding that compensatory education is a remedy designed to “make up for” a denial of FAPE]; Reid v. Dist.
Of Columbia, 401 F3d 516, 524 (D. Cir. 2005) [holding that, in fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have applied in the first place”] It is unclear whether or not the services recommended for the student by the CSE for the period in question would have been appropriate but for . noted that when was having a good day appeared able to participate and demonstrate skill acquisition. My finding in this matter is based on behaviors which the record supports left unavailable for learning the majority of time in a program which was unable to adequately address those issues. I find that an award of compensatory damages, as well the increase in the frequency of services sought in #3, are not supported in the record and certainly without the commensurate appropriate program to address issues would be futile. The also seeks in #4 compensatory training/counseling at home. This is denied as there was no testimony or evidence regarding parent training/counseling and accordingly such an award is not supported in the record. Similarly, the requested evaluations in #1 and evaluations and #10 are denied. The need for these evaluations are not supported in the record. The seek in #8 that the District will be more sensitive to the students’ needs and appropriately include in all school and classroom activities. I find that this request is vague and there is nothing in the record to support a finding that the District had not been sensitive to needs or purposely excluded from activities. Finally, the seeks #6 that the District supply the student with a 1:1 teacher’s assistant in the classroom and #9 supply the student with a 1:1 behaviorist supplying direct services in and out of the classroom. There is nothing in the record to support a finding that a 1:1 teacher’s aide is necessary or appropriate, nor is there any support in the record that a 1:1 behaviorist would be appropriate or warranted.
The argues in their closing statement (Ex. IV) that an adverse inference should be taken against the District based on their failure to call certain witnesses or to produce witnesses, or their addresses, at the request of the . The cites to New York Hearing Officers manual for authority.[5] I find this argument without merit and decline to do so. [6]
In view of the foregoing I find that the District has failed to provide FAPE for the student for the and school years for the period from through .
I further find that there is no evidence or basis for the relief requested by the Parents as set forth above and therefore the requested relief is denied.
Dated:
___________________________________
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.
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Footnotes
[1] was decreased effective . At the time was taking day and . The was decreased to .. per day. (Ex. 38)
[2] The testified that when learned of recommendation for called and informed that did not have a and that did not know that and changed opinion on placement at . The stated that if knew it was an issue would have gotten a letter. (t. 1804-05, 1860-62) There is nothing in the record to support the testimony that had a change of opinion on the appropriateness of a placement at . testified about conversation with on and the case continued until giving ample time for the to supply supporting testimony or evidence.
[3] The placement and placement are used interchangeably.
[4] The asserts in the dpc that the District reinforced negative behaviors. One of these behaviors was . It is the position of the that had a problem with the that was corrected and in class continued and was allowed so it became learned behavior. (t. 1801-02) There is nothing in the record to support a finding that the was solely a result of learned behavior.
[5] The supplies a link to the New York State Administrative Law Judges Association, a professional organization, which has no authority in this matter.
[6] The advocate for the was advised that if needed witnesses could submit subpoenas to the IHO for signature (t. 154-57, 1672-75). The advocate did not submit any subpoenas to obtain witnesses or documentation. This was a very contentious hearing and the behavior of the advocate was often unprofessional, argumentative and disrespectful to the witnesses, attorney for the District and this IHO throughout the hearing. (including but not limited to t. 1383-88, 1316-19, 237-39, 240-41, 1492-97, 1555- 56, 1642-43, 915-18, 989-98, 519-24)