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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: July 10, 2013
December 12, 2014
April 20, 2015
Actual Record Closed Date: June 29, 2015
Hearing Officer: Jean M. Lucasey, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 10, 2013
Attorney (via telephone) — Student
Attorney (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 12, 2014
Attorney (via telephone) — Student
District Representative (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 20, 2015
Attorney — Student
District Representative — DOE
FINDINGS OF FACT AND DECISION
Procedural History
(“Parent”), as mother of (“ ”) filed a Due Process Complaint on July 8, 2013, alleging, among other things, that did not receive a Free Appropriate Public Education (“FAPE”) for the 2012-2013 and 2013-2014 school years. (Ex. A.) On July 9, 2013, I was appointed as hearing officer in this matter after recusal of the original hearing officer. On July 10, 2013, a pendency hearing was held, and my Order on Pendency was released on July 12, 2013.
On August 28, 2013, Parent filed the first amended complaint, adding claims in relation to the 2013-2014 school year. (Ex. C.) Parent further amended her complaint on November 13, 2013, (IHO Ex. xvii), and the parties reportedly engaged in settlement negotiations for several months thereafter. On October 9, 2014, Parent filed the instant amended complaint (the “DPC”), adding claims for the 2014-2015 school year.1 (Ex. D.)
After extending the timeline several times at the request of the parties for continued settlement negotiations that ultimately proved fruitless, (see IHO Exs. ii-xiv; Tr. 52-55,
87-88), I ordered the parties to meet for hearing, which was held on April 20, 2015.
At hearing, the District Representative stated that the District did not concede that it failed to offer a FAPE to but rather stated that it was resting its case and that it would not offer any evidence, no documents or testimony, to prove that it had offered a FAPE to for the school years in question. (Tr. 63, 90.) As Parent’s counsel revealed at hearing that had not been receiving the related services ordered through pendency, and as the District Representative agreed that the services should be provided as soon as possible, (Tr. 79-80), on May 29, 2015, I issued an Interim Order for to begin receiving and a week immediately. (IHO Ex. xv.) On May 27, 2015, Parent, through her counsel, submitted a Motion for Summary Judgment in Support of Her Request for Relief for in relation to the 2012-2013, 2013-2014, and 2014-2015 school years. (Ex. T.) For reasons set forth fully below, I HEREBY GRANT
Parent’s Motion in full.
FINDINGS OF FACT
The October 9, 2014, Amended Due Process Complaint is the operating complaint here.
The DPC and the prior impartial hearing decision in case no. 133515 (“ ”) set out the facts in some detail. (Exs. B, D.)
Until April of 2013, attended a class at , a state-approved non-public school. (Ex. D.) He received, among other things, hours per week of using Analysis (“ ”). (Exs. B, M.) Parent filed a hearing concerning the 2012-2013, 2011-2012 and 2010-2011 school years, which resulted in
Decision I. (Ex. B.)
In the Decision I, the IHO ruled that the program with hours per week of did not offer a FAPE, and that he required a more intensive program as well as . (Ex. B.) The IHO in Decision I ruled that the DOE should provide with:
1. A program that consistently provides throughout the day, with a -to- instructional ratio, supervised daily by a or to oversee and instructional programming;
2. per week of based instruction ( ) under the supervision of a or ;
3. per week for , on and school vacations to accommodate ’s schedule;
4. A Functional Assessment, Functional Analysis, and Treatment Plan must be conducted and developed to treat self-stimulatory ;
5. An evaluation for an (consider
);
6. ( ) to assist the Parent in implementing
effective strategies for across and community settings;
7. Monthly interdisciplinary meetings ( ), including and school professionals working with , as well as his parents, conducted in order to calibrate instructional and goals;
8. A program to prevent anticipated regression. (See Ex. B at 20-21.)
The DPC alleges that the DOE agreed to fund at the (“ ”) as a way of implementing Decision I. (Ex. D.) The DOE’s records show that it funded at from 3/20/2013 through 6/30/2013. (Exs. R, S.)2 Right after placing at , however, the DOE recommended that all of the services ordered by
Decision I be changed and that he be placed in a program without any services. (Exs. D, E.)
When the initial complaint was filed in July 2013, the DOE consented to ’s pendency at , with his after-school services and transportation, and admitted that the DOE agreed to fund him at . (Tr. 12-40.) I issued a pendency order on July 12, 2013, establishing ’s pendency as follows:
1. The DOE SHALL CONTINUE to prospectively fund ’s placement at the as of July 8, 2013, as his ;
2. THE DOE’s funding of at represents its effort to implement Orders
No. 1 and No.[2] in the Findings of Fact and Decision of December 21, 2012, which directs that shall be 1) “placed in a program that follows the principles and strategies of [ ] on a basis, with -to- instructional ratio,” and 2) that the “program must be supervised daily by a
[ ] or [ ] to oversee all and instructional
programming”;
3. The DOE SHALL CONTINUE TO PROVIDE special education transportation for to attend throughout the pendency of this matter;
4. The DOE SHALL FUND of with providers selected by Parents;
5. The DOE SHALL FUND supervision of the by a or for at least per week with providers selected by Parents;
6. The DOE SHALL FUND for each with providers selected by the Parents;
7. The DOE SHALL FUND per month between the treatment-team members with providers selected by the Parents;
8. The DOE SHALL PROVIDE the above services to on a extended-school year basis; and
9. This Order is retroactive to July 8, 2013, which is the date of filing of the due process complaint, and remains in full effect pending this litigation.
(See Interim Order on Pendency dated July 12, 2013, IHO Exs. i-4, i-5; internal citations omitted.)
Despite the fact that was receiving the above set of services for the 2013-2014 school year and that the DOE was on notice of the disagreement regarding the 2013 IEP and process (Ex. A), the DOE again formulated an IEP that greatly reduced his services for the 2014-2015 school year. (Exs. D, F.)
In the DPC, Parent alleged numerous claims and allegations of deficiencies in the IEP and IEP development process. (Ex. D.) At hearing, the DOE representative appeared and indicated that the DOE was neither introducing any evidence or witnesses nor rebutting any of Parent’s allegations. (Tr. 63-64.) The DOE introduced no IEP into evidence, did nothing to defend the IEP, explain its proposal, or seek to address any of the challenges to the IEP and the proposed changes to ’s program as alleged in the DPC.
(Ex. D.)
Further, the DOE agreed at hearing to provide related services of and (“ ”) (“ ”) and (“ ”) to , based on the fact that the DOE had recommended those services for (Exs. E, F;
Tr. 78-81.)[3]
Parent argues that the IHO should deem all facts alleged in the DPC that were not addressed, rebutted, or responded to by the DOE through competent evidence, to be true. A pplication of a Student with a Disability , No. 14-179 (in the absence of any specificity in relation to the DOE’s concession, the SRO determined that the DOE intended to admit every deficiency in the IEPs alleged in the DPC). In the instant case, the DOE determined it would not put any evidence in the record, including the IEPs. As such, Parent argues, while the DOE did not concede FAPE, absent the DOE’s production of evidence, the deficiencies alleged in the IEP, along with all other allegations, should be deemed admitted. Parent points out that the SRO himself deems to be true all allegations that are not disproved by the other party or inconsistent with the record. See, e.g., A pplication of a Student with a Disability , 01-044. Based on Parent’s persuasive argument, I FIND that the DOE’s failure to submit any evidence whatsoever on its behalf or in support of its IEP and recommended programs and services amounts to an admission of the charges Parent made against them in the DPC. Accordingly, I deem as true all
Parent’s allegations against the DOE as admitted, and consider all such allegations to be true for purposes of this Decision.
For failure of the DOE to provide a FAPE to for the 2012-2013, 2013-2014 and 2014-2015 school year, Parent seeks the following relief:
1. For failure to prove that it provided FAPE to during the 2014-2015, 2013- 2014 and 2012-2013 school years, the DOE should be found to have denied him a FAPE;
2. Continuation of the last agreed upon program (as ordered as pendency) for the duration of the 2014-2015 school year;
3. An order for compensatory education to make up for any pendency services not delivered to during the pendency of the hearing, the denial of FAPE in the 2012-2013 SY, and the failure to provide and despite the DOE’s agreement that he needs those services per its own recommendations.[4]
CONCLUSIONS OF LAW
I. THE HEARING OFFICER HAS JURISDICTION TO ISSUE A RULING
UPON A SUMMARY JUDGMENT MOTION
The State Review Officer (“SRO”) has recognized that the use of a summary judgment motion or summary disposition procedure in an impartial hearing may be appropriate under the IDEA where: (a) the parties have had a meaningful opportunity to present evidence; and (b) the nonmoving party is unable to identify any genuine issue of material fact. See Appeal of a Student with a Disability, No. 04-059 (citing
J.D. v. Paw let Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000) and A pplication of a Child with a Disability , Appeal No. 04-018). See also A pplication of the Bd. of Educ., Appeal No. 10-014; A pplication of the Bd. of Educ., Appeal No. 05-007; A pplication of the Bd. of Educ., Appeal No. 11-10.
The DOE expressly chose to introduce no evidence or defend any IEP or proposed change to ’s pendency placement. It is the Parent’s position that, given the
(a) relative burdens of proof (see below); (b) the fact that the IHO should deem the allegations in the DPC to be admitted; and (c) the evidence in the record, and (d) the clear legal entitlement to the compensatory services being sought, there are no material
issues of fact that would prevent the IHO from ordering a remedy for Parent and
As I have found, above, that Parent’s allegations are deemed admitted as true, I further
FIND that no genuine issue of material fact exists here, and I HEREBY GRANT
Parent’s Motion for Summary Judgment.
II. THE DOE FAILED TO MEET ITS BURDEN OF PROOF
The DOE bears the burden of proof, both of production and persuasion, on the question of whether it offered a FAPE and on Parent’s request for compensatory education. N.Y. Educ. Law § 4404. See also A pplication of a Student with a Disability , Appeal No. 11-032 (the DOE bears the burden of proof on all issues in compensatory education cases), A pplication of a Student with a Disability , Appeal No. 11-053 (same),
A pplication of a Student with a Disability , Appeal No. 11-091 (same). The DOE failed to meet its burden as it did not introduce any documentary evidence or call any witnesses, failed to rebut or address any of Parent’s allegations and declined to introduce the proposed IEPs into the record.
Under the unequivocal of New York Education Law §4404, a parent only has a burden of proof regarding a school placement when they are “ ” N.Y. Educ. Law § 4404. That provision of § 4404 does not apply to Parent here because did not enroll in as a
“ ” “ ”
Further, the law is clear that a child’s last-agreed-upon placement and program can only change by agreement or by final, unappealed order of an administrative officer or a court. 20 U.S.C.A. §§1415(b)(6) (f) (2005); Bd. of Educ. of the Paw ling Central School Dist. v. Schutz, 290 F.3d 476, 484 (2d Cir.2002); Letter to Hampden, 49 IDELR 197 (OSEP 2007); Paw ling v. Schutz, 290 F.3d 476 (2d Cir. 2002); Student X v . New
Y ork City Dept. of Educ., 51 IDELR 122 (E.D.N.Y. 2008); A pplication of the D epartm ent of Education, Appeal No. 08-009.
The instant case is a unique situation where the DOE was already funding the student in a private program ( ) and, as a method of implementing an IHO’s order for a particular type of program with a more intensive ratio, elected to fund the student in to implement that order. (Exs. B; Tr. 12.) Similarly, the services that has been receiving were ordered by the IHO, pursuant to a decision that the DOE did not appeal. (Ex. B; Tr. 10-13.)
In this case, the DOE sought to modify ’s program by proposing new IEPs, (Exs. E, F), and those proposals triggered the DPCs. (Exs. A, C, D, IHO Ex. xvii.)
Subsequently, at the hearing, the DOE apparently changed its mind and elected not to defend its proposal(s) to change or modify the last-agreed-upon placement or explain why it failed to reevaluate prior to proposing the changes.
Further, the DOE asserted no defense at hearing that suggested that the last-agreed-upon placement was no longer appropriate. As such, I cannot raise sua sponte the question of whether the program should, in any event, be changed. Consequently, I FIND that the DOE bore the entire burden of proof with respect to all issues including Parent’s request to continue the pendency services until the end of the 2014-2015 school year, and that Parent was not required to prove the “ ” of and the services.
Further, I FIND that the DOE did not meet its burden to show that it offered or provided a FAPE in the 2012-2013, 2013-2014 or 2014-2014 school years, and I make an Order below that the DOE shall continue the last-agreed-upon placement until such time as Parent either agrees to modify said placement, or until a subsequent IEP is offered and a subsequent IHO, the SRO, or a court, issues a final decision.
III. THE DOE FAILED TO ESTABLISH THAT IT OFFERED A FAPE TO
IN ANY OF THE SCHOOL YEARS AT ISSUE
This is a FAPE case. The U.S. Supreme Court held in Rowley that FAPE required by the IDEA means an education that is “tailored to the unique needs of the handicapped child by means of an individualized education plan.” Board of Ed. V. Rowley, 458 U.S.
176, 181-182 (1982). The DOE is required to ensure that a FAPE is available for all eligible students on the first day of each school year. Rowley, 458 U.S. 176, 206, 207 (1982). To establish that it provided a FAPE, the DOE must show that (a) it complied with the procedural requirements set forth in the IDEIA, and (b) the IEPs developed were reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 207. The special education provided by a district must open the “door of public education” in a “ ‘meaningful’ way,” and the IEP must provide the opportunity for more than only “trivial advancement.” W alczak v. Fla. Union Free Sch. Dist., 142 F.3d 119,
122-23 (2d Cir. 1998). Further, a child’s IEP “must be likely to produce progress, not regression.” Cerra v. Paw ling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005). In New York, the local educational agency has the burden of proving that it offered an appropriate educational program that amounted to a FAPE. See N.Y. Educ. Law §4404(1)(c).
A. The DOE Denied a FAPE in 2012-2013
The DPC alleged that the DOE failed to offer FAPE to for the 2012-2013 school year because the DOE failed to offer an IEP. (Ex. D.) The DOE did not refute this claim on the record or in any of the due process responses that it filed. (Exs. E, F.) Thus, I FIND that the DOE denied a FAPE for 2012-2013. R.K. v. N.Y . City Dep’t of Educ.,
09-CV-04478 (KAM) (E.D.N.Y. January 21, 2011).
The DOE’s failure to provide an IEP injured in that he was therefore stuck in a program for the lion’s share of the 2012-2013 school year, a program that an IHO had already deemed inappropriate. (Ex. B.) Per the tacitly admitted allegation in the DPC, remained in the inadequate program (comprised of a placement, with hours of afterschool ) until on or about April 5, 2013, when the DOE finally implemented the IHO’s order and funded him at . (Ex. D5 at ¶45.)[6]
Instead of implementing Decision I immediately, the DOE failed to place him at until April of 2013. (Exs. D, S.) Further, the DOE admitted it provided just out of the of that was ordered by the IHO (not including the compensatory bank). (See Ex. S2.) Thus, was forced to linger in an inappropriate program from July 1, 2012 until April of 2013. Accordingly, I FIND that the DOE denied a FAPE to for the 2012-2013 school year.
B. The DOE Denied a FAPE in 2013-2014 and 2014-2015
Despite the extensive history, the DOE proposed to change ’s program to a public school program without any or after-school services (i.e. a far less restrictive setting than ) for the 2013-2014 SY, only a few weeks after it finally implemented ’s program at , the increased , and
. (Ex. E.)
Despite the fact that remained at , received services at , and made progress (Exs. H-Q), the DOE appears to have initially proposed a similar change for the 2014-2015 school year as well. (Ex. F.) At hearing, the DOE chose not to defend any of the allegations in Parent’s DPC. The DOE did not introduce evidence of the IEP meeting or IEPs, and did not explain why it attempted to remove ’s program, the program that it agreed to place him in a short time earlier, after an extensive hearing about the range of his significant needs.
Given the DOE’s failure to meet its burden that it provided a FAPE to for the 2013-2014 and 2014-2015 school years, I FIND that the DOE failed to provide a FAPE to for those years.
C. Continuation of Requested Services and Inclusion of Requested Services in
IEP
The Parent requests that the IHO order the services that constitute ’s last-agreed-upon placement, as modified by the DOE’s recent agreement to add and to continue, (Tr. 78-81), and for those services to be incorporated into an IEP.
As these are the last-agreed-upon services, there is no reason that those services should not be included in an IEP. Further, the DOE has failed to explain why it neglected to formulate an IEP to include the services and goals that relate to the services that were ordered in Decision I. Accordingly, I HEREBY ORDER that the DOE SHALL
DEVELOP an IEP that includes, inter alia, the following services, consistent with this
Decision:
1. A program that follows the principles and strategies of on a basis, with -to- instructional ratio, and that the program be supervised daily by a or to oversee all and instructional programming, to be implemented at
(" ") ;
2. Special education transportation for to attend throughout the pendency of this matter;
3. of with providers selected by Parents;
4. Supervision of the by a or for at least
per week with providers selected by Parents;
5. for each with providers selected
by the Parents;
6. per month between the treatment-team members with providers selected by the Parents;
7. extended-school year basis; and
8. After-school - ( ) on a basis; and
9. After-school ( ) on a basis.
IV. COMPENSATORY EDUCATION IS WARRANTED HERE
In addition to requesting continuation of the services, Parent is also seeking an order for categories of compensatory education: (a) a bank of and to make up for the fact that the DOE agreed at hearing that should have those services because the DOE offered them and yet the DOE failed to provide them during the pendency of the hearing; (b) an order for the DOE to provide with the opportunity to roll-over and use any pendency services that were not provided to him while the hearing was pending; and
(c) compensatory education to make up for the fact that he was denied a FAPE for the 2012-2013 school year.
Compensatory education is an appropriate remedy when a student does not receive a FAPE. P. v. Newington, 546 F.3d 111 (2d Cir. 2008)(compensatory education awarded to make up for deficiencies in IEP). “ ” is prospective equitable relief, requiring a school district to fund education beyond the expiration of a child’s eligibility as a remedy for any earlier deprivations in the child’s education. See
Burr v. Sobol, 888 F.2d 258 (2nd Cir. 1989). While compensatory education is a remedy that is available to students who are no longer eligible for instruction, State Review Officers have awarded “ ” 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. SRO 06-074; see also Streck v.
Board of Educ. of the East Greenbush Central School Dist., 408 F.App’x 411 (2nd Cir.
2010) (“To implement the SRO’s award, the value of the prospective compensatory education must be set aside by the school district and placed in ESCROW for use in paying up-front for the compensatory education expenses”). ). The Second Circuit has noted that while the IDEA does not compel a hearing officer to provide a day-for-day or hour-for-hour compensation for time missed, that type of relief is routinely awarded absent any evidence that it is “inappropriate or over-compensatory.” Melvin by and Through Martell v. Town of Bolton School Dist., 100 F.3d 944 (2nd Cir. 1996).
Student X v. New York City Dept. of Educ., 51 IDELR 122 (October 30, 2008 E.D.N.Y.), stands for the proposition that pendency hours should be made up on a basis. The Student X court found that a child’s pendency entitlement is to be implemented regardless of the individual merits of the case; to issue a compensatory award for less services than the pendency mandate required would allow a district to benefit from violating a pendency order and circumvent the underlying provisions of the pendency provision. (Ibid.) Similarly, here, the DOE was obligated to provide the services that the undersigned ordered on July 12, 2013, and it determined not to appeal the award. Thus, to allow the DOE to escape the obligation to make up the specific services that a prior IHO had previously determined were necessary for FAPE would frustrate the IDEA’s underlying purpose and violate Parent’s due process rights. As noted above, the DOE failed to establish that it offered a FAPE for any of the years at issue.
With respect to the 2012-2013 school year, from on or about April 4, 2013, onward, was attending the program ordered by the first IHO and is not seeking compensatory education for the portion of time from April 4, 2013 through June 30, 2013. The DOE did not proffer any suggestion for what, if any, remedy should be due to for that 9-month period of time when he was forced to remain in an inappropriate program.
The Decision I spelled out what the first IHO thought the program should have been for the 2012-2013 school year, but that decision was issued far too late for it to be retroactively implemented. (See Ex. B.)
Thus, given the rationale in Student X, the Parent seeks an order of compensatory education aligned with the substance of Decision I. An accounting of that case shows that the DOE did not fully implement the decision between the dates of December 2012 through June 2013. Out of 390 hours authorized at for the period
December 21, 2012 through June 30, 2013, the DOE provided just hours, (Ex. S2), leaving hours of that did not receive. Further, the evidence showed that was not in a program from December 2012 through April 4, 2013. Given the Student X rationale, a compensatory award for that year should not fall below the floor of the IHO’s decision. To find otherwise would the DOE for failing to timely implement IHO decisions. Further, while Parent was not necessarily required to exhaust her claims that DOE did not timely enforce Decision I, she is within her rights to argue that is entitled to a remedy for a lack of FAPE for 2012-2013. Finally, there is no statutory prohibition against Parent’s attempt to exhaust her request for compensatory education for the time period between December 2012 and April 4, 2013. Accordingly, I make an Order below for the DOE to provide hours of to as compensation for its failure to provide him a FAPE for the 2012-2013 school year.
With regard to compensatory education related to pendency, based on a ,
, the Student was entitled to the following number of hours of services during the 2013-2014 and 2014-15 school years:
1. hours ( );
2. of the by a or (
);
3. );
4. ( );
(See Interim Pendency Order, IHO Ex. i.)
Because of the many hours that is still entitled to because the DOE admittedly failed to provide the services, a precise award of service hours cannot be calculated until a full accounting is completed. So, rather than requesting that the IHO order a particular number of make-up hours, Parent seeks that the IHO order the following:
Within 60 days of the issuance IHO’s Decision, the DOE SHALL CALCULATE the number of pendency hours, if any, that did not receive from July 1, 2013 through June 30, 2015; and (b) to the extent that there are any hours that were not provided, those missing hours would form the basis of a bank of services that can use until such time as the earlier date of: (i) the date on which the hours have been completed; (ii)
graduates with a regular diploma; or (iii) ages out of his entitlement to public education.
Finally, with regard to compensatory related services, the evidence shows (and the DOE agreed) that should receive and - .
The DOE admitted, however, that it failed to provide those services, and it chose not to explain the reason for the failure. Thus, Parent asks that the IHO order a bank of the and services equal to at least the number of hours that the DOE had recommended for for the time periods in question. (Exs. E, F.) For each of the 2013-2014 and 2014- 2015 school years, the DOE recommended of and , for a total of and hours. (Id.) Given the clear mandate for the services and given that the DOE agreed that these services should have been provided, I make an Order below for the DOE to establish a bank of hours of and services for
ORDERS
In light of my findings above that the DOE failed to offer a FAPE to for the 2012-2013, the 2013-2014 and the 2014-2015 school years, I HEREBY ORDER the following relief:
1. As soon as is practicable but in no event later than 30 days after the date of this Decision, the DOE SHALL DEVELOP an IEP that includes:
■A program that follows the principles and strategies of on a basis, with -to- instructional ratio, and that the program be supervised daily by a or to oversee all and instructional programming, to be implemented at (" ") ;
■Special education transportation for to attend throughout the pendency of this matter;
■ of with providers selected by Parents
■Supervision of the by a or for at least
per week with providers selected by Parents;
■ for each with providers selected by the Parents;
■ per month between the treatment-team members with providers selected by the Parents;
■ extended-school year basis; and
■After-school - ( ) on a basis; and
■After-school ( ) on a basis;
2. I further ORDER that the DOE SHALL PROVIDE hours of to as compensation for its failure to provide him a FAPE for the 2012-2013 school year;
3. I FURTHER ORDER that the DOE, within 60 days of the issuance of this Decision, as compensation for its failure to provide a FAPE to for the 2013-2014 and 2014-2015 school years, SHALL CALCULATE the number of pendency hours, if any, that did not receive from July 1, 2013 through June 30, 2015; and (b) to the extent that any hours were not provided, those missing hours SHALL FORM the basis of a bank of services for ’s use until such time as the earlier date of: (i) the date on which the hours have been completed; (ii) graduates with a regular diploma; or (iii) ages out of his entitlement to public education;
4. Finally, with regard to compensatory related services, I HEREBY ORDER the DOE to establish a bank of - and services equal to the number of hours that the DOE recommended for for the time periods in question but that has not received as of the date of this Decision. For the 2013-2014 and 2014- 2015 school years, the DOE recommended of and , for a total of and hours. (See Exs. E, F.) The DOE SHALL ESTABLISH a bank of hours of and services for , and said bank of related services shall be available for ’s use until such time as the earlier date of: (i) the date on which the hours have been completed; (ii) graduates with a regular diploma; or (iii) ages out of his entitlement to public education.
It is SO ORDERED.
Dated: June 29, 2015
JEAN M. LUCASEY, ESQ.
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.
DOCUMENTATION ENTERED INTO RECORD
PARENT’S EXHIBITS
Exhibit Description Date Pages
Ex. A Due Process Complaint 07/08/13 15
Ex. B /21/12 26
Ex. C First Amended Due Process Complaint 8/28/13 16
Ex. D Amended Due Process Complaint 10/09/14 20
Ex. E Due Process Response 12/20/13 5
Ex. F Due Process Response 10/10/14 4
Ex. G Withdrawn
Ex. H Student Progress Report for 11/15/12 7
Ex. I Student Clinic Form 06/10/13 38
Ex. J Documents Various 172
Dates
Ex. K Proposed Goals and 06/11/13 4
Objectives (2013-2014 SY)
Ex. L Withdrawn
Ex. M Observation Report from Dr. 06/20/12 11
Ex. N Withdrawn
Ex. O Withdrawn
Ex. P Proposed Goals and 03/03/14 5
Objectives (2014-2015 SY)
Ex. Q Student Clinic Form 03/05/14 16
Ex. R. Correspondence re Accounting of Services 7/15/13 3
Ex. S. Correspondence re Accounting of Services Various 4
Ex. T Parent’s Motion for Summary Judgment 5/27/15 16
DEPARTMENT OF EDUCATION EXHIBITS
None
IMPARTIAL HEARING OFFICER EXHIBITS
i Order on Pendency 7/12/13 7
ii Order Granting Extension 10/11/13 1
iii Order Granting Extension 12/18/13 1
iv Order Granting Extension 2/26/14 1
v Order Granting Extension 3/28/14 1
vi Order Granting Extension 4/28/14 1
vii Order Granting Extension 5/28/14 1
viii Order Granting Extension 7/2/14 1
ix Order Granting Extension 9/2/14 1
x Order Granting Extension 1/27/15 3
xi Order Granting Extension 2/26/15 1
xii Order Granting Extension 3/30/15 3
xiii Order Granting Extension 4/20/15 1
xiv Order Granting Extension 5/22/15 1
xv First Interim Order 5/29/15 1
xvi IHO Email to Parties 4/20/15 1
xvii Amended Complaint 11/13/13 17
Footnotes
[2] As discussed at hearing on April 20, 2015, Parent has asked the DOE for an accounting of the outstanding services relative to prior orders and pendency, and the IHO agreed to consider this additional evidence. (Tr. 61-62.) Parent provided the documents in question via email to the IHO, with a copy to the District Representative, on May 27, 2015. The documents are appended to and made a part of the Record of this hearing as Parent’s Exhibits R and S.
[3] The Parent introduced the Due Process ”), (Exs. E, F), but only for the limited purposes of establishing an admission to the offer of the related services. (Tr. 81-83.)
[4] In her Motion, Parent advised that to the extent that systemic claims were alleged, should summary judgment be granted on the issues of FAPE and relief, she would seek to withdraw those claims without prejudice. As I have granted summary judgment and relief below, I HEREBY GRANT Parent’s request and ORDER that any systemic claims alleged in her DPC are withdrawn without prejudice as a result of this Decision.
[5] While the SRO has indicated that summary judgment is proper in some cases, the SRO has also overturned an IHO’s decision for compensatory education for an over-age student based upon a summary judgment motion. See, A pplication of a Student with a Disability , No. 11-004. The instant case is distinguishable, however, in that the DOE opposed the motion, argued that there were facts at issue, the student was over-age (and thus, the IHO applied a heightened “gross” standard for relief) and, unlike here, the compensatory award was not based upon clear legal mandates or upon services admittedly not provided. Further, given the lack of IEP here for the 2012-2013 school year and the fact that an IHO decision established that the program that had remained in place was not appropriate, the record includes ample evidence here upon which the current IHO can base her decision.
[6] See Exhibit I, the June 10, 2013, Student Clinic Form from , which indicates that various programs were initiated for at as early as April 4, 2013. See also Exs. J30, J33.