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:
District:
Hearing Requested By: Parent
Date of Hearing: November 12, 2014
December 5, 2014
Actual Record Closed Date: April 28, 2015
: , Esq.
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NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 12,
2014
Parents
Impartial Hearing Representative — DOE
School (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 5, 2014
Parents
DR., Supervisor Physician (via telephone) — Student
DR., Physician (via telephone) — Student
Impartial Hearing Representative — DOE
’s — 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 parent of the student in a due process complaint notice dated June 23, 2014. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”)
has offered the student a free appropriate public education for the 2014/15 school year
(Ex. SD-1).[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 trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has
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not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-
(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
In a due process response dated June 27, 2014, the DOE denied each and every allegation contained in the due process complaint (Ex. SD-2). See 8 NYCRR §§ 200.5(i)(4), (5). The DOE appointed me to hear this matter on July 1, 2014, after the recusal of another . See 8 NYCRR § 200.5(j)(3)(i). Following my appointment, the DOE challenged the sufficiency of the parent’s due process complaint.
See 8 NYCRR §§ 200.5(i)(3), (6). On July 1, 2014, I determined that the parent’s due process complaint was insufficient as it failed to adequately describe the nature of the problem, including related facts, and failed to offer a proposed solution to the problem.
See 8 NYCRR §§ 200.5(i)(1)(iv)-(v), (i)(6). On July 14, 2014, the parent filed an amended due process complaint. See 8 NYCRR § 200.5(i)(7). Hearings in this matter were thereafter held on: November 12, 2014 and December 5, 2014.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR §
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200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the June 23, 2014 due process complaint, the student was years old and diagnosed with: an (“ ”); a ; a ; a , not otherwise specified; and an (Exs. SD-3 at 1, SD-4 at 1, SD-9 at 4, SD-10, SD-11, P-
A, P-B). For the 2014/15 school year, the CSE recommended that the student attend a classroom in a school on a ( ) month basis, supported by several related services (Ex. SD-3 at 10-11, 14-16). The student's current eligibility for special education and related services as a student with an is not in dispute in this hearing (Exs. SD-1, SD-2, SD-3 at 1). See 34 C.F.R. § 300.8(c)(10);
8 NYCRR § 200.1(zz)(10).[3]
During the 2013/14 school year, the student attended a with the (“ ”). The student also received and (Ex. SD-4 at 1, SD-5 at 2, SD-6 at 2,
SD-7, SD-8, SD-12 at 1).
As part of a evaluation conducted on September 17, 2013, the student was administered the . On that assessment, the student obtained a , placing her in the of overall intelligence. The student’s , fell within the and her , fell within the (Ex. SD-4 at 2).
The measuring personal and social
sufficiency, was completed via an interview with the student’s mother. The student earned an score placing her overall within the (Ex. SD-4 at 3).
As part of a / evaluation conducted on October 7, 2013, the 8 NYCRR § 200.1(zz
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student was administered the
. The student achieved a
(Ex. SD-5 at 3). As part of an evaluation
conducted on October 7, 2013, the student was administered the to assess her . The student’s scores on the converted into a fine motor quotient of , which fell within the . The student’s processing skills were assessed according to the - . Based upon the results of that assessment, the student was experiencing some (Ex. -6 at 5-6).
According to the student’s teacher, interviewed on March 6, 2014, the student “ ” (Ex.
-8).
As part of a and in May 2014, the student was administered the . On this assessment, the student achieved a
(Exs. SD-9 at 3-4, P-A).
At a meeting held on August 15, 2014, the CSE convened to develop an IEP for the student for the 2014/15 school year. The CSE recommended that the student receive the majority of her instruction in a classroom in a school on a ( ) month basis. The CSE also recommended that the student receive related services of:
(Ex. SD-3 at 10-11, 14-
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16). The parent advised the CSE at the August 15, 2014 meeting that she was concerned that the student would not be sufficiently challenged in a classroom (Ex. SD-3 at 16). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE offered the student an appropriate which was reasonably calculated to meet her unique educational needs in the least restrictive environment. The parent’s request for the student’s enrollment in a is beyond the jurisdiction of the . The student’s were adequately addressed in the IEP through / (R. 22-24, 113-115; Ex.
SD-2).
B. The Parent
The student should be placed in a
(R. 8-11, 24-25, 115-116; Exs. SD-1, SD-9 at 4, P-A).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a 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 (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A ., 557 U.S. 230, 239 (2009); B oard of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176,
206-07 (1982).[4]
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A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New Y ork City D ep't.
of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June
10, 2013); M.H. v. New Y ork City D ep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Paw ling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" W alczak v. Florida
Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. M amaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009).
While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A .C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v.
Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M .H., 685 F.3d at 245; A .H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug.
21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); M atrejek v. Brew ster Cent.
Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir.
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Aug. 19, 2008).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C.
§ 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."
W alczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See W alczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.
Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; W alczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" See Cerra, 427 F.3d at 195 (quoting W alczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See M rs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v.
A rlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); W alczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patsk in v. B oard of Educ., 583 F. Supp. 2d
422, 428 (W.D.N.Y. 2008).
An appropriate educational begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlow e v. Dep't of Educ., 2008
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WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New Y ork City D ep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Substantive Appropriateness of Proposed
As noted earlier, the IDEA directs that, in general, an impartial ’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.” M rs. B.
v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at
192.
Based on the evidence submitted into the hearing record, I find that the CSE’s proposed for the student was not reasonably calculated to provide her with meaningful educational benefit. The student presents with a
(R.
84; Exs. SD-9, SD-10, SD-11). The student also presents with
(R. 40, 85; Ex. SD-9). At a meeting held on
August 15, 2014, the CSE recommended that the student receive the majority of her instruction in a setting on a ( ) month basis supported by related services of: , ,
, / and (R. 42; Ex. SD-3 at 10-11, 14-
16).
1. /
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While the August 2014 CSE’s recommendation was consistent with the student’s high intellectual and academic (R. 42-43), the CSE erred in failing to conduct a (“ ”) of, and failing to develop a (“ ”) for, the student.5
Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. Among the special factors in the case of a student whose impedes his or her learning or that of others, the CSE shall consider positive
, and other strategies, to address that . See 20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.324(a)(2)(i); 8 NYCRR § 200.4(d)(3)(i); see also E.H. v. B oard of Educ., 2009 WL 3326627 (2d Cir. Oct. 16, 2009); A .C., 553 F.3d at 172; J.A . v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 (S.D.N.Y.
2009); M.M . v. New Y ork City D ep't of Educ., 583 F. Supp. 2d 498, 510 (S.D.N.Y. 2008);
Tarlow e, 2008 WL 2736027, at *8; W .S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 149-
50 (S.D.N.Y. 2006). To the extent necessary to offer a student an appropriate educational
, an IEP must identify the supplementary aids and services to be provided to the student. See 20 U.S.C. § 1414(d)(1)(A)(i)(IV); 34 C.F.R. § 300.320(a)(4); 8 NYCRR §§
200.4(d)(2)(v)(a), (b)(3); Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100, at *1 (S.D.N.Y. Apr. 7, 2011); Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 (N.D.N.Y. Sept. 29, 2009) (discussing the student's IEP which appropriately identified modifications, accommodations, and supplementary aids and services); P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 380 (S.D.N.Y. 2008).
In New York State, policy guidance explains that "the IEP must include a statement (under the applicable sections of the IEP) if the student needs a particular device or service (including an
) to address one or more of the following needs in order for the student to receive a [FAPE]." See Guide to Quality Individualized Education (IEP)
Development and Implementation, at 25 (Office of Special Educ. Dec. 2010), av ailable at means the process of determining why a student engages in that impede learning and how the student’s relates to the environment. 8 NYCRR § 200.1(r).
means a plan that is based on the results of a and, at a minimum, includes a description of the problem , global and specific hypotheses as to why the problem occurs and and services to address the . 8 NYCRR § 200.1(mmm).
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http://www.p12.nysed.gov/specialed/publications/ iepguidance/IEPguideDec2010.pdf.
"The and/or supports should be indicated under the applicable section of the IEP," "[a] student's need for a [ ] must be documented in the IEP."[6] Id. State procedures for considering the special factor of a student’s that impedes his or her learning or that of others may also require that the CSE consider having an conducted and a developed for a student in certain non-disciplinary situations. See 8 NYCRR §§ 200.4(d)(3)(i), 200.22(a), (b). An is defined in State regulations as “ ” “include(s), but is not limited to, the identification of the problem
, the definition of the in concrete terms, the identification of the contextual factors that contribute to the (including
) and the formulation of a hypothesis regarding the general conditions under which a usually occurs and probable consequences that serve to maintain it.” 8 NYCRR § 200.1(r). According to State regulations, an shall be based on multiple sources of data and must be based on more than the student’s history of presenting problem . See 8 NYCRR § 200.22(a)(2). An must also include a baseline setting forth the “frequency, duration, intensity and/or latency across activities, settings, people and times of the day,” so that a BIP (if required) may be developed “that addresses antecedent behaviors, reinforcing consequences of behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement.” See 8 NYCRR § 200.22(a)(3). Although State regulations call for the procedure of using an when developing a , the failure to comply with this procedure does not automatically render a deficient. See A .H., 2010 WL 3242234.
With regard to a , the special factor procedures set forth in State regulations further note that the CSE or CPSE "shall consider the development of a [ ] for a
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student with a disability when: (i) the student exhibits persistent that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions; (ii) the student's places the student or others at risk of harm or injury; (iii) the CSE or CPSE is considering more restrictive programs or placements as a result of the student’s ; and/or (iv) as required pursuant to" 8 NYCRR § 201.3. See 8 NYCRR § 200.22(b)(1). Once again, "[i]f a particular device or service, including an is needed to address the student’s that impedes his or her learning or that of others, the IEP shall so indicate." 8 NYCRR § 200.22(b)(2). If the CSE determines that a is necessary for a student "the [ ] shall identify: (i) the baseline measure of the problem , including the frequency, duration, intensity and/or latency of the targeted . . . ; (ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the , teach individual alternative and to the student, and provide consequences for the targeted inappropriate (s) and alternative acceptable (s); and (iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted at scheduled intervals.” 8 NYCRR § 200.22(b)(4).[7] Neither the IDEA nor its implementing regulations require that the elements of a student's be set forth in the student's IEP. See Student Needs Related to Special Factors (Office of April 2011) av ailable at http://www.p12.nysed.gov/specialed/formsnotices/IEP/training/QA-411.pdf. However, a student's is developed and implemented, "such plan shall be reviewed at least annually by the CSE or CPSE." See 8 NYCRR § 200.22(b)(2). Furthermore, "[t]he implementation of a student’s [ ] shall include regular progress monitoring of the frequency, duration and intensity of the at scheduled intervals, as specified in the [ ] and on the student's IEP. The results of the progress monitoring shall be documented and reported to the student's parents and to the CSE or CPSE and shall be considered in any determination to revise a student's [ ] or IEP." 8 NYCRR §
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200.22(b)(5).
Contrary to the opinion offered by Ms. (R. 43, 53-55, 69-70), I find that the student’s and , as documented in the IEP, demonstrate that the student needed an and a to address that impeded her learning (R. 88; Ex. -3 at 5). The student has been diagnosed with:
an ;a ;a ;a , not
otherwise specified; and an (Exs. SD-3 at 1, SD-4 at 1, SD-9 at 4, SD-10, SD-11, P-A, P-B). The August 15, 2014 IEP notes that the student “presents with a history of being ” “
” “ ” “
” “
” The student “was [also] described as throughout the day.”
The CSE determined that the student “
”
“
” (Ex. SD-3 at 2-3). It is left unstated in the IEP, however, how this student would accomplish all those tasks in the absence of an and a .
Alternatively, while the August 15, 2014 IEP recommended that the student receive several modifications (e.g., )
and services during the course of the 2014/15 school year (Ex. SD-3 at 4, 10),
I find that those were insufficient to meet the student’s significant and . Cf. C.F. v. New Y ork city Dep’t of Educ., 746 F.3d 68, 80 (2d Cir. 2014); F.L. v. New Y ork City Dep’t of Educ., 553 Fed.
App’x 2, 6-7 (2d Cir. 2014); M .W ., 725 F.3d 131, 139-141 (2d Cir. 2013); R.E., 694 F.3d at 190; A .C. v. B oard of Educ., 553 F.3d at 172-173. The CSE will be ordered to secure the parent’s informed written consent to conduct and/or develop an and a for the student.
2. -to-
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The parent asserts that the August 2014 CSE erred in failing to recommend a -to- for the student (Ex. -1).
School districts must arrange for special education programs and related services based upon completion of a student’s IEP and the recommendation of the CSE. See 8 NYCRR § 200.2(d). Federal regulations clarify that related services “ ” See 34 C.F.R. § 300.34(a). School health services are defined as “ ” See 34 C.F.R. § 300.34(c)(13).
In New York State, each decision to recommend a -to- must weigh the factors of both the student’s individual needs and the available supports in the setting where the student’s IEP will be implemented. There are a number of important considerations that must be made by the CSE in regard to each of these factors.
These include, but are not limited to, consideration of each of the following: (1) the student’s individual needs that require additional adult assistance; (2) the skills and goals the student is planned to achieve that will reduce or eliminate the need for the -to-
; (3) the specific role (e.g., instructional, assistance with personal hygiene) that the will provide for the student; (4) other natural supports, accommodations and/or services that could support the student to meet these needs (e.g.,
; environmental accommodations or modifications; changes in scheduling; instructional materials in alternate formats; assistive technology devices; peer-to-peer supports); (5) the extent (e.g., portions of the school day) or circumstances
(e.g., for transitions from class to class) the student would need the assistance of a -to-
; (6) the size the CSE has recommended for the student;
(7) the potential benefits from assignment of the -to- and how these will be measured to determine continuation of the recommendation; and (8) the potential negative impact of assignment of a -to- for the student
(e.g., self-image, isolation and/or development of independence). See P.
DeLorenzo, Guidelines for Determining a Student with a Disability's Need for a -to-
A ide, at 2-3 (Office of Special Educ. Jan. 2012), av ailable at ’s http://www.p12.nysed.gov/specialed/publications/1-1aidejan2012.pdf.
The CSE convened on August 15, 2014 to consider recommendations made by the student’s physicians as contained in several reports (R. 34, 36; Exs. SD-9, SD-10, SD-
11). In a May 2014 ,
Drs. and recommended, among other things, that the student receive -to- services (Exs. SD-9 at 4). Dr. testified at the hearing that a -to- was recommended for the student because she had
(R. 86-87). Ms. testified that the August
2014 CSE declined to even consider the p arent’s request for a -to- for the student because the physicians did not specify whether they sought a health or (R. 47-48, 66-67). Instead, the CSE recommended that school personnel call EMS when the student displayed
(Ex. SD-3 at 4). Given the student’s , and the physicians’ recommendation of a -to- , I find that the August 2014 CSE erred in failing to consider this school health service for the student (R. 84; Exs. SD-
9 at 4, SD-10, SD-11; P-A). The CSE will be ordered to reconvene and determine whether or not the student requires a -to- in order to receive a
FAPE.
3.
The parent asserts that the recommended IEP failed to include a of for the student (Ex. SD-1).
Dr. testified that the student requires as part of her overall educational , and that this service is usually provided by a /
(R. 97-98; Exs. SD-9 at 4, P-A, P-B). Ms. testified that the August 2014 CSE recommended that be provided to the student in school via
/ (R. 47, 57, 70; Ex. SD-3 at 6). The August 15, 2014 IEP called for the student to receive individual / , (Ex. -3 at 6, 11). Based upon a careful review of the evidence
’s
contained in the hearing record, I find that the IEP appropriately addressed the student’s through / services. See, e.g., A pplication of the New Y ork City Dep’t of Educ., Appeal No. 13-073 at 18-19 (SRO March 3, 2015);
A pplication of the New Y ork City Dep’t of Educ., Appeal No. 11-164 at 14 (SRO Feb. 22,
2012); A pplication of a Student with a Disability , Appeal No. 09-034 (SRO May 1,
2009).
4. Placement in a Gifted & Talented
The parent asserts that the student requires placement in a gifted and talented and that provision of such a should have been included in the student’s IEP (R. 42; Ex. SD-1).
Although New York State encourages school districts to provide programs tailored to meet the needs of their gifted students, see N.Y. Educ. Law § 3204(2-b); 8 NYCRR § 142, it does not required them to do so, see Bennett v. City Sch. Dist. of New Rochelle, 114 A.D. 2d 58 (2d Dep’t 1985). While Dr. recommended that the student be placed in a gifted with an enriched curriculum (R. 85-88; Ex. SD-9 at 4, P-A), Ms. credibly testified that the student’s eligibility for, and placement in, a gifted and talented is not a CSE function (R. 47-49). As the DOE does not have an affirmative duty to provide eligible students with gifted and talented instruction, see id., I decline to find that the absence of such programming from the student’s IEP constituted a denial of FAPE, see A pplication of a Child with a Disability (Syracuse City Sch. Dist.), Appeal No. 99-36 (SRO June 2, 2000).
C. Compensatory Additional Services
The parent seeks reimbursement of services she secured for the student during the 2014/15 school year (Ex. P-C).
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 Y ork City D ep't of Educ., 538 F.3d 106, 109 (2d Cir. 2008); M rs. 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
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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 W enger 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 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 Y ork City D ep'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); B oard 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); A pplication of a Child with a Disability , Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M .C. v.
Central Reg’l Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem”). Under the qualitative approach, the examination should focus on the 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
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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.
As a threshold matter, I find that the parent’s request for compensatory additional services is beyond the scope of her amended due process complaint (Exs. SD-1, P-C).
The party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing and may not raise issues at the impartial hearing that were not raised in its due process complaint notice unless the other party agrees, see 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. §§ 300.508(d)(3)(i); 300.511(d); 8 NYCRR § 200.5 (j)(1)(ii), or the original due process complaint is amended prior to the impartial hearing per permission given by the at least five days prior to the impartial hearing, see 20 U.S.C. § 1415(c)(2)(E)(i)(II); 34 C.F.R. § 300.508(d)(3)(ii); 8 NYCRR §
200.5(i)(7)(i)(b); N.K. v. New Y ork City D ep't of Educ., 2013 WL 4436528, at *5-*7
(S.D.N.Y. Aug. 13, 2013); B.M . v. New Y ork City D ep't of Educ., 2013 WL 1972144, at *6 (S.D.N.Y. May 14, 2013); C.H. v. Goshen Cent. Sch. Dist., 2013 WL
1285387, at *9 (S.D.N.Y. Mar. 28, 2013); B.P. v. New Y ork City D ep't of Educ., 841 F.
Supp.2d 605, 611 (E.D.N.Y. 2012); M.R. v. S. Orangetow n Cent. Sch. Dist., 2011 WL
6307563, at*12-*13 (S.D.N.Y. Dec. 16, 2011); C.F. v. New Y ork City D ep't of Educ., 2011 WL 5130101, at*12 (S.D.N.Y. Oct. 28, 2011); C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *13(S.D.N.Y. Sept. 22, 2011); R.B. v. Dep't of Educ., 2011 WL 4375694, at *6-*7 (S.D.N.Y. Sept.16, 2011). The July 14, 2014 amended due process complaint cannot be reasonably read to include a claim for compensatory additional services (Ex. SD-1). Moreover, a further review of the hearing record shows that the DOE did not agree to an expansion of the issues in this case. See A .M., 2013 WL
4056216, at *9-*11; B.M ., 2013 WL 1972144, at *6.
Alternatively, even if the amended due process complaint could be read to include a claim for compensatory additional services, I would not find that such a remedy is warranted here. The evidence entered into the hearing record reflects that the student was not of compulsory school age in the fall of 2014, cf. N.Y. Educ. Law § 3205; In the M atter of K iesha BB, 30 A.D.3d 704 (3d Dep’t 2006), and therefore was not required to attend full time instruction during the 2014/15 school year, cf. N.Y. Educ. Law §§ 3202,
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3204(1)-(2), 3205(1)(a), 3210(2), 3212(2)(d); 8 NYCRR §100.10; A ppeal of B row n, 34
Ed. Dept. Rep. 33 (1994). As there is no allegation or evidence that the DOE prohibited the student from attending a publically funded during the 2014/15 school year (Exs. SD-1, SD-2), there is no deprivation of instruction which could be remedied through the provision of additional services.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
1. The parent’s claim that the student was denied a FAPE for the 2014/15 school year is SUSTAINED; and
2. Within thirty (30) days of the date of this Order, the CSE shall request the parent’s informed written consent to conduct an of, and/or develop a for, the student; and
3. Within thirty (30) days of the date of this Order, the CSE shall convene to consider whether the student’s ,
, and/or require her receipt of -to-
services in a school setting.
Dated: May 14, 2015
, ESQ.
Impartial
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
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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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DOCUMENTATION ENTERED INTO THE RECORD
PARENTS
A. Letter from , M.D., 10/8/14, 1 pg.
B. , 7/15/14, 5 pgs.
C. Report, 11/11/14, 4 pgs.
DEPARTMENT OF EDUCATION
1. Amended Due Process Complaint, 7/14/14, 5 pgs.
2. Due Process Response, 6/27/14, 4 pgs.
3. Individualized Education (IEP), 8/15/14, 18 pgs.
4. Evaluation, 9/17/13, 5 pgs.
5. / Evaluation, 10/7/13, 4 pgs.
6. Evaluation, 10/7/13, 5 pgs.
7. Classroom Observation, 3/6/14, 1 pg.
8. Social History Update, 3/6/14, 1 pg.
9. Consultation - Summary, 5/2014, 5 pgs.
10. Report, 6/12/14, 3 pgs.
11. Report, 6/3/14, 3 pgs.
12. Report, 5/28/14, 2 pgs.
IMPARTIAL
I. Confirmation of Extension, 9/29/14, 1 pg.
II. Confirmation of Extension, 10/30/14, 1 pg.
III. Confirmation of Extension, 12/1/14, 1 pg.
IV. Confirmation of Extension, 12/24/14, 1 pg.
V. Confirmation of Extension, 1/30/15, 1 pg.
VI. Confirmation of Extension, 2/23/15, 1 pg.
VII. Confirmation of Extension, 4/1/15, 1 pg.
VIII. Confirmation of Extension, 4/27/15, 1 pg.
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 and in order 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 the extensions justified the delay in the resolution of the matter and that the reasons for the requested extensions were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (Exs. -I - -VIII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] means having
[4] 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.
[6] While the student's need for a must be documented in the IEP, and prior to the development of the , an either "has [been] or will be conducted, see Guide to Quality Individualized Education (IEP) Development and Implementation, at 25 (emphasis in original), it does not follow that in every circumstance an must be conducted and a developed at the same time as the IEP, see Cabouli v. Chappaqua Cent. Sch. Dist., 2006 WL 3102463 (2d Cir. Oct. 27, 2006).
[7] The Official Analysis of Comments to the federal regulations explains that the decision regarding whether a student requires interventions such as a rests with the CSE and is made on an individual basis. See Consideration of Special Factors, 71 Fed. Reg. 46683 (August 14, 2006).