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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: November 18, 2014
December 16, 2014
January 13, 2015
February 17, 2015
Actual Record Closed Date: March 13, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 18, 2014
ESQ., Attorney — Student
Parents
District Representative — DOE
School Psychologist (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 16, 2014
Parents
DR., Psychologist (Via Telephone) — Student
Teacher (Via Telephone) — Student
ESQ., Parent Attorney — Student
Hearing Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 13, 2015
Esq,. Attorney — Student
Parents
Director (Via Telephone) — Student
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 17, 2015
Attorney — Student
(Via Telephone) — Student
Impartial Hearing Representative — DOE
The parent of filed a request for an impartial hearing on September 8, 2014 challenging the student’s placements for the 2013-2014 and 2014-2015 school years, and seeking various forms of relief, including compensatory , deferral to the Central Based Support Team (“CBST”) for a non-public school placement, reimbursement for testing and evaluations, and (“ ”), and (“ ”) evaluations at the Department of Education’s (“DOE”)
expense, at the enhanced rate. (DOE Ex. 1).[1]
I was designated to hear this matter on September 19, 2014, after the prior hearing officer recused. An impartial hearing was held before me on November 18, 2014, December 16, 2014, January 13, 2015 and February 17, 2015. The compliance date was extended on four occasions due to the extensive testimony and availability of witnesses, with a final compliance date of March 22, 2015. (IHO Ex. II, III, IV, VIII).
DOE POSITION
The DOE’s position is that it provided the student with a Free Appropriate Public Education (“FAPE”) during the two years in question, except that it acknowledges that during a portion of the 2013-2014 school year, there was a gap in services (when there was only teacher in the (“ ”) class, rather than ), for which is entitled to compensatory services. (Tr. pp. 20-21).
EVIDENCE AT HEARING
is a year old boy with a classification of . His
specific classification was not disputed in the Due Process Complaint. (DOE Ex. 1).
was initially classified on December 18, 2013, during his year, after his mother expressed concern that he was not making sufficient progress. (Tr. pp.
251-253; DOE Ex. 4).
A psychoeducational evaluation was performed in November 2013 by . ’s was determined to be in the range. His scores were in the range. He demonstrated difficulty with . His score was in the . He
(DOE Ex. 4). During Ms. ’
observation of , he presented as (Tr. p. 73).
A / evaluation was performed on December 9, 2013. ’s scores on testing were in the range, indicating
It
was recommended that he receive per week for minute sessions. (DOE
Ex. 5).
A CSE review was held on December 18, 2013 (during ’s year), and was placed in an (“ ”) class with related services of / (“ ”) at . was provided on an “ ” basis. He continued in the same program as a student. DOE Ex. 2.
(Tr. pp. 47, 246-248). Currently, his class has students. (Tr. p. 263).[2]
Ms. , the school psychologist who evaluated and participated in the December 28, 2013 IEP meeting, testified that the CSE felt that the program would provide with teacher to help him , and for . (Tr. pp. 35-36). She testified that at the time of the testing, was performing at / level in and
. (Tr. p. 66).
The CSE considered, but rejected a more restrictive setting, because was not performing level. (Tr. pp. 54-46). It was not felt that an or was needed, as was not in h is . (Tr. p. 50). The IEP states that performs at a level for and . (DOE Ex. 2, p. 10).
Ms. explained how the IEP goals were developed, in consultation with the provider. (Tr. p. 53). The goals address ’s difficulty with , . , and . Some of the goals do not specify grade levels. (DOE Ex. 2, pp. 4-7; Tr. pp. 55-57, 88-97). The and are for to achieve “ ” with . (DOE Ex. 2 pp. 6-7). Ms. did not feel that an or evaluation was warranted. She testified that in her testing, demonstrated an . (Tr. pp. 62-63).
On February 28, 2014, ’s mother wrote to the school and requested further testing, because she was not satisfied with his progress in the class. In addition, she complained that teacher is not consistently in ’s class.
(Par. Ex. F). Ms. asked for , but was told that such a class would be inappropriate for , because he would be placed with students with . (Tr. p. 254).
, ’s teacher (during the 2012-2013
school year) testified that struggled with , and , and was performing on a level. (Tr. p. 178, 183). did not receive any special education services during his year. (Tr p. 188). In or about January of his year (2013-2014), was her class during period, because he was performing level. While he had made some progress, he was still standards; and had not met standards. (Tr. pp. 179-182).
Ms. testified that during a portion of ’s year (when he was placed in an class), the teacher from the class was moved to another class. (Tr. pp. 189-190).[3] She testified that made minimal progress during the 2012-2013 and 2013-2014 school years, based upon her work with him. (Tr.
pp. 193-194).
On May 20, 2014, , a certified school psychologist, performed additional testing of , and prepared a “ report”. She noted that he displayed weaknesses in
(DOE Ex. 3).
Ms. felt that the new testing did not reveal any new information about
; and requested that the DOE pay for an independent evaluation. (Tr. p. 262).
Her request was granted and was evaluated by Dr. in August of 2014. Dr. reported that ’s was in the range; and that his . He also presented with a . (Par. Ex. P). He diagnosed with ,
, including a
. (Tr. pp. 135-136).
had marked difficulties with
(Par. Ex. P). In ,
. (Tr. p.
127). He testified that while can he is unable to (Tr. pp.
128-129). In addition, he . (Tr. p.
144).
Dr. recommended placement in a nonpublic school, with setting, that works at his skill level, with expertise in . He further recommended that receive and . (Par. Ex. P). He testified that classroom in a nonpublic school is the least restrictive environment for .
(Tr. p. 137). He testified that could learn in a class of to students; depending upon the school setting. (Tr. pp. 165-166).
He testified that due to his (Tr. p. 138). He testified that a program in the public schools would be inappropriate because Mathew would . (Tr. p. 141). He
recommended , as presented with (Tr. p. 144).
He further recommended , to hours per week, with a trained special education teacher who specializes in
(Par. Ex. P).
As of the hearing date, the CSE had not reviewed Dr. ’s report. (Tr. p.
282). [4]
Ms. believes that requires
. (Tr. pp. 263-264).
(Tr. p. 277).
(Tr. p. 265).
During the 2013-2014 school year, received grades of “ ”[5] for and . (Par. Ex. K). During the current school year, his performance continues to be . (Tr. p. 267; Par. Ex .S). On February 3, 2015, ’s school sent Ms. a “promotion in doubt” letter. (Par. Ex. W). His teachers report that he . (Tr. p. 267). His
/ Progress report also indicates that little progress has been made. (Par.
Ex. U).
, a / , performed an
processing evaluation of on September 24, 2014. 6 She recommended utilizing an approach to treat ’s / challenges .(Par. Ex.
Q). In an affidavit dated February 10, 2015, she recommended that he receive times per week , for sessions, with a / with expertise in treating children with
(Par. Ex. V3).
, the managing director of the (“ ”)
in , , testified that he has a Bachelor’s Degree, and has been working at for almost five years. (Tr. pp. 203-204). He testified that attended during the , pursuant to an agreement to provide independent
(“ ”).[7] was found to be performing at a level in his skills. (Tr. pp. 209, 226). Due to the time limitations imposed, was able to use only of the allotted hours. Nevertheless, he was still struggling with , with (Tr. pp. 211-212). He was still level, and was not ready for a curriculum. (Tr. p. 213). He had progressed to an level in his skills. (Tr. p. 229).
Mr. recommended that receive at least hours of instruction, to get caught up, and to bring him up level above level. (Tr.
pp. 214, 231). ’s was, and will continue to be provided by a licensed special education teacher. (Tr. pp. 215-216). would be provided in a setting. (Tr. p. 236). Mr. recommended that receive hours per week of , given his level. (Tr. p. 233).
Mr. testified that provides at the rate of per hour. (Tr.
p. 237). is approved by the DOE to provide . (Tr. p. 241). When it performs services pursuant to a P-4 letter issued by the DOE, it is at the lower rate of per . (Tr. pp. 242-243).
Closing Briefs
In its closing brief, the DOE opposed the request for an order directing the CSE to CSE. defer the case to the CBST. It requested instead that the DOE reconvene to review the independent evaluation to make an appropriate recommendation for the student. The DOE argued that it should only be required to provide compensatory services for the period of time when ’s classroom was not staffed with teachers, during the 2013-2014 school year. It did not state what that time period was. It stated that the DOE is able to provide the student with an independent provider who can or another mutually agreed upon location to provide services to the student. (IHO Ex. VI)
In her closing brief, the parent requested that the IHO order the DOE to:
1. Provide hours of compensatory through , at the enhanced rate of per hour;
2. Provide compensatory , times per week
for sessions at a rate not to exceed per hour.
3. hours of compensatory ;
4. Reimbursement in the amount of for testing. (IHO Ex. VII).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S.
176, 192 [1982]. The special education provided by a district must be meaningful, and provide the opportunity for more than only trivial advancement. Walczak v. Fla Union Free School District, 142 F. 3d 119 (2d Cir. 1998). Th e school district must also implement the IEP, which includes offering placement in a school that can fulfill the requirements set forth in the IEP. D.C. ex rel, E.B., v. New York City Department of Education, 61 IDELR 25 (U.S.D.C., S.D.N.Y. 2013); See T.Y., K.Y. on behalf of T.Y., v.
New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009).
An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs that result from the student’s disability to enable the student to be involved in and make progress in the curriculum. Application of the Board of Education, Appeal No. 11-007, p. 21
(citing 8 NYCRR200.4[d][2][iii]). Application of a Student with a Disability, Appeal No.
11-043. See M.H. and E.K. , v. New York City Department of Education, 685 F.3d 217 (2d Cir. 2012.).
2013-2014 School Year
I find that the DOE failed to meet its burden of proving the appropriateness of the December 18, 2013 IEP. Although was at a level for and , the IEP set goals for him to achieve level in both areas. It was clear from the start that could not achieve his goal in the recommended program; as he was class for .
Compounding the inadequacy of his IEP was the fact that it was not implemented, as written, for months during his year.
For the foregoing reasons, I find that the DOE failed to meet its burden of proving the appropriateness of its recommendations for the 2013-2014 school year; and is entitled to compensatory services for this time period.
2014-2015 School Year
In the summer of 2014, Dr. conducted an evaluation and concluded that due his , , the least restrictive environment for is a nonpublic school. This finding is consistent with the evidence in the record that is not progressing in the setting, and that he has ’s promotion is in doubt.
Dr. ’s testimony that a class in the public schools would be inappropriate for is consistent with information provided to the mother by school personnel. I find that is entitled to compensatory services, due to the inappropriateness of his current placement.
COMPENSATORY SERVICES
In P. v. Newington Board of Education, 546 F. 3d 111 (2d Cir. 2008), the Second Circuit held that upon a finding of a denial of FAPE, a hearing officer may fashion an appropriate remedy, including compensatory education to make up for a denial of FAPE.
Citing Parents of Student W. v. Puyalluip Sch. Dist. 31 F. 3d 1489 (9th Cir. 1994), the Second Circuit stated that “appropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA”. P. v. Newington Board of Education, supra.
In these proceedings, the DOE concedes that is entitled to ; but does not propose any specific measure for the amount of he should receive. I find that hours of compensatory , as recommended by Mr. is appropriate, taking into account the
.
The DOE has offered to provide to , at or a mutually agreed upon location. This may actually be more beneficial to than going to for the same service. Therefore, I will order that the shall be provided to commencing 10 business days following this order, at least hours per week; provided however if the DOE is unable to provide the service as ordered, it shall forthwith issue a P4 letter authorizing the parent to obtain the service from (without any limitation in time); or fund the service at a rate not to exceed per .
The parent did not present evidence to support the need for compensatory and , as requested in the closing brief. Nor was this relief requested in the due process complaint.
PLACEMENT
Based upon Dr. ’ testimony, ’s case should be deferred to the CBST for a nonpublic school placement. Upon remand, the CSE shall review Dr.
’s evaluation, as well as the parent’s independent and evaluations to determine an appropriate level of . The CSE should review the need for an evaluation.8
The parent’s request for hours per week of specialized is denied, as it was not included in the due process complaint.
I do not find any basis in the record for me to order the CSE to conduct an evaluation.
Request for Reimbursement for Evaluation
Parents are entitled to an Independent Education Evaluation at public expense if they disagree with the DOE’s evaluation. A parent is entitled to only one independent evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees. 8 NYCRR 200.5(g)(1). There is no indication in the record that the parent ever requested that the DOE perform an evaluation, prior to requesting this hearing. Therefore, the parent’s request to be reimbursed for the cost of the evaluation is denied.
ORDER
Therefore, it is hereby ordered as follows:
1. The DOE shall provide with hours of , on an basis, , at ’s or another agreed upon location. Said services shall commence within 20 days of this order, and shall be provided no less than hours per week; and shall be without any limitation in time. If the DOE fails to provide the service, as ordered herein, it shall forthwith issue a P4 letter (or other appropriate document)
authorizing the child to receive the service at , or another qualified provider, at the contracted rate or at a rate not to exceed per hour.
2. The CSE shall reconvene within 30 days of this order to review the parent’s private evaluations and to develop an appropriate IEP, which shall include and . The CSE shall also the consider the need for and for an evaluation. After determining an appropriate program, ’s placement shall be deferred to the Central Based Support Team for a nonpublic school placement.
3. The parent’s request for compensatory is denied.
4. The parent’s request for reimbursement for the private evaluation is denied. Dated: March 17, 2015
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 THE RECORD
PARENT
F Parent Request to Reopen, dated 2/28/14, 3 pages
G School Letter, dated 3/7/14, 2 pages
H Eval Notice, dated 5/7/14, 2 pages
I Eval, dated 5/20/14, 9 pages
J Progress Report, '13-'14, 3 pages
K '13-'14 Report Card, 4 pages
L E-mail w/P-4 Voucher, dated 6/13/14, 3 pages.
M Eval, dated 6/23/14, 16 pages 1
N Parent Letters, dated 7/14/14-10/21/14, 9 pages
O Assessment Authorization, dated 7/22/14 2 pages
P , dated 9/22/14, 26 pages
Q Eval, dated 9/24/14, 18 pages
R Parent Request for Independent Eval, dated 7/10/14, 1 page
7 FNR, dated 12/18/13, 1 page 14 14S 2014-2015 report card, 4 pages
T Evaluation 11/30/14, 5 pages
U Progress Report 11/7/14, 2 pages
V Affidavit of dated February 10th, 2015, 4 pp.
W Promotion in Doubt Letter dated February 3rd, 2015, 1 pp
DEPARTMENT OF EDUCATION
1 Due Process Complaint, dated 9/8/14, 4 pages
2 IEP, dated 12/18/13, 13 pages
3 Report, dated 5/20/14, 9 pages
4 Psychoed Report, dated 11/2013, 4 pages
5 Eval, dated 12/9/13 5 pages
6 Classroom Observation, dated 12/4/13, 1 pages
IMPARTIAL HEARING OFFICER
I Subpoena, 12/3/14, 1 page
II Case Follow-up Sheet, 10/16/14, 1 pg III Case Follow-up Sheet, dated 12/16/14, 1 page
IV Case Follow-up Sheet, dated 1/13/15, 1 page
V Email Communications, 3/13/15, 3 pages
VI DOE Closing Brief, 3/9/15, 6 pages
VII Parent’s Closing Brief, 3/11/15, 21 pages
VIII CFU, 2/17/15, 1 page
Footnotes
[1] As of the hearing, the parents had obtained the evaluations privately; and was seeking reimbursement in the amount of for the evaluation. (Tr. pp. 19-20; 271; Par. Ex. T). services and classroom/school recommendations were made. The report does not include a recommendation for an evaluation. (Par. Ex. T). Mrs. asked the CSE to perform an evaluation, prior to requesting this hearing. (Tr. p. 274). Although the parent presented testimony about the need for an increased amount of (“ ”), to be delivered by a specialized provider, this relief was not part of the due process request. (DOE Ex. 1).
[2] According to the parent’s counsel and the DOE representative, this was the last CSE review. (Tr. pp. 275- 276). Ms. testified that she received a notice for an IEP meeting to be held in July 2014, but that the meeting was postponed because the parent had requested an independent evaluation.(Tr. pp. 284-285, 286).
[3] Ms. also testified that the teacher was absent from ’s class during his year, for a period of months. (Tr. pp. 80-81).
[4] The parent’s attorney represented that a meeting was scheduled to occur on February 10, 2015; but that the parent requested that it be postponed. (Tr. pp. 307-308).
[5] According to the legend, “ ” indicates level. (Par. Ex. K, p. 1)_. This evaluation was performed after the parent requested this hearing, and has never been reviewed by the
[7] was authorized to receive hours of , to be completed by August 15, 2014. (Tr. pp. 206- 208).