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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: December 16, 2014
January 15, 2015
February 24, 2015
February 25, 2015
March 24, 2015
March 31, 2015
Actual Record Closed Date: May 8, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSON WHO APPEARED ON DECEMBER 16, 2014
Attorney — Student
Parents
Director (Via Telephone) — Student
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 15, 2015
Attorney — Student
DR., Psychologist (Via Telephone) — Student
Attorney — Student
, IHRO
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 24,
2015
ESQ., Attorney — Student
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 25,
2015
Attorney — Student
Mother — Student
(Via Telephone) — Student
(Via Telephone) — Student
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 24, 2015
Attorney — Student
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 31, 2015
Attorney — Student
Parent (Via Telephone) — Student
, IHRO
- Teacher (Via Telephone)
Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as “District,” the parent as
“Parent” and the student will be referred to as Student. The Parent filed a complaint notice on September 29, 2014 (Ex. B), and an amended complaint notice on October 29, 2014 (Ex. A).The hearing on this matter took place on December 16, 2014, January 15, 2015, February 24, 2015, February 25, 2015, March 24, 2015, and March 31, 2015. I issued an interim order for hours of per week at a on December 24, 2014 (IHO Ex. 2). I issued a second interim order to extend the services at the on February 27, 2015 (Ex. IHO 3). A third interim order was issued on April 7, 2015. (Ex. IHO 4) That order extended services again, at a continued rate of up to hours per week. (Id.) This is a compensatory education case.
Parents’ Position
The Parent alleges that the Department of Education (DOE) failed to refer the Student to the Committee on Special Education (CSE) during the 2012-2013 and 2013- 2014 school years, despite knowing that the Student had difficulties. (Ex. 1-3)
Consequently, the Student did not receive a FAPE during the 2012-2013, and 2013-2014 school years. (Id.) The May 2014 and September 2014 Individualized Education Program (IEP)s deprived the Student of a Free Appropriate Public Education (“FAPE”) because the IEPs did not provide for the severity of the Student’s needs. (Id. at 4) Specifically, the DOE failed to provide for appropriate testing accommodations; program accommodations; and levels of support. (Id. at 5) The Parent argues also that the goals included in the May 20, 2014 IEP were vague, immeasurable, and meaningless. (Id. at 6)
Furthermore, the DOE failed to implement the May 20, 2014 IEP by neglecting to provide or related services. (Id.) Thus, the District again failed to provide a FAPE during the first half of the 2014-2015 school year. (Id. at 1-3-6) The Parent argues that compensatory education is the appropriate form of relief. (Id. at 6-
7) The Parent also seeks an order directing the DOE to conduct an evaluation, and to reconvene the CSE to incorporate its results into an appropriate IEP.
(Id. at 7) Relatedly, the Parent seeks an order that the DOE provide the Student with a and , including and .
(Id.) The Parent requests that training for use of be provided to the Student and Parent. (Id.) The Parent also seeks an order from the IHO, directing the CSE to defer the case to the Central Based Support Team (“CBST”) for placement in a non-public school. (Id. at 8) Lastly, the Parent seeks payment of attorney’s fees and expenses. (Id.)
District’s Position
The District chose not to defend the Parent’s allegations pertaining to the 2012- 2013 and 2013-2014 school years, and the first half of the 2014-2015 school year. (Tr. 13) Thus, the Districts concedes that it did not provide a FAPE to the Student during this time period. (Id.)
The District argued that the IHO should not order the evaluation because this evaluation had already been ordered. (Id.) In fact, it was scheduled for the same day as the hearing held on December 16, 2014. (Id.) On this point, the District argued that an order to pay for a and should be postponed, pending the results of the evaluation. (Id. at 16) The District argued also that the Parent’s request for an independent evaluation should not be granted. (Id. at
14) The District stated that it already agreed to pay for this evaluation at the customary rate. (Id.) Likewise, the District argued that it should not be ordered to pay for an independent evaluation. (Id.) The District agreed to pay for this evaluation at the customary rate. (Id.)
The District argued that a deferral to the CBST would be inappropriate. (Id. at 15)
Rather, the Student would benefit from an IEP reconvene to re-examine her special education program. (Id.) It is currently unclear what an appropriate program for her is.
(Id.)
The District argued that the Parent’s request for funding of additional services in the amount of hours at dollars ( ) per hour should not be considered until after the evaluation is conducted. (Id. at 16) Lastly, the - hours of services at the (“ ”) sought by the Parent should be reduced to reflect a more appropriate obligation if this request is considered. (Id. at 16-17)
Student History
At the time the Amended Complaint Notice was filed, the Student was an
-old girl attending the grade. (Ex. 2-1; 3-1) She currently attends grade at a public school placement. (Ex. 2-1) The record is silent in this case with respect to the Student’s academic history prior to the 2013-2014 school year. The first
Report depicting the Student’s progress was issued in November, 2013. (Ex. W) In general, the Report indicated that the Student was rarely able to . (Id. at 2) The Student was sometimes able
. (Id.) Another Progress Report was issued in March, 2014 (during the same school year). (Ex. U) That Report showed minimal improvement.
(Id. at 2) The Student improved to where she was sometimes able to . (Id.) The Student remained unable to . (Id.)
Toward the end of the 2013-2014 school year, Student was administered a psychoeducational evaluation on or about April 23, 2014 and May 29, 2014. (Ex. L) The
Student was evaluated via the –
(“ ”). (Id. at 7) Her registered in the range. (Id.) The Student’s academic achievement was measured using the – (“ ). (Id.) Her skills were in the range. (Id.) In the area of , her scores were , and her skills were . (Id.) The psychologist noted that the Student possess , but often and appears to have difficulty . (Id.)
A (“ ”) was conducted after the first day of the psychoeducational evaluation, but before that evaluation was concluded. (Ex. N) The
May 14, 2014 indicated that (Id. at 3) The Student expressed that she does not like being “ ”
. (Id. at 6)
At the beginning of the 2014-2015 school year, the Student was administered a series of academic tests by the (Ex. K) The results of this evaluation were published on or about September 17, 2014. (Ex. I) The indicated that the Student rating was . (Id. at 1) The Student’s
; and ratings were , as was . (Id.)
The recommended that the Student undergo hours of to remedy her deficiencies.
Academic Year Grade Attended by the Student
Grade
2012-2013
The Parent alleged that the District failed to provide the Student a FAPE during this school year. The District conceded that it
did not.
Grade
2013-2014
The Parent alleged that the District failed to provide the Student a FAPE during this school year. The District conceded that it
did not.
Grade
2014-2015 (Current) The Parent alleged that the District failed to provide the Student a FAPE during this school year. The District conceded that it did not provide the Student a FAPE during the first half of the 2014-2015 school year.
The District’s only points of contention are with the relief sought.
Findings of Fact
The following evidentiary details are established as factual findings in this case:
1. The District did not provide the Student with a FAPE during the 2012-2013 school year. (Tr. 13)
2. The District did not provide the Student with a FAPE during the 2013-2014 school year. (Id.)
3. The District did not provide the Student with a FAPE during the first half of the 2014-2015 school year. (Id.)
4. An evaluation was ordered by the District while this case was pending. (Id.) The evaluation took place on December 16, 2015—one of the days during which the hearing for this matter was conducted. (Id.)
5. The Parent disagreed with the results of the evaluation, but did not amend the complaint to reflect her objection. (Tr. 255)
6. The Parent testified via affidavit. (Ex. IHO 1) On cross-examination, the Parent was unable to recall or relate her testimony to its content. (Tr. 113-208, 248-85)
7. Prior to the Complaint Notice, an was not a part of the Student’s special education or related services. (Ex.s C; D; 6; 7)
8. Both evaluators responsible for the report suggested that should not be recommended (Ex. 11-5), and the Parent did not present evidence to rebut the evaluators’ recommendation.
9. The Director of the testified that the Student would need a total of hours in . (Tr. 53) However, she did not discuss how many skills per grade level would need to be addressed with in this area, nor is this information provided in the .
(Ex. J) Thus, the hours of instruction requested for was unsupported.
10. The Director of the restated the number of and hours that the calls for, though she did not provide a basis for their calculation. (Tr. 54)
11. The DOE has the capacity to provide programs. (Tr. 193)
Thus, ( ) is an appropriate
compensatory education award in this case. (Ex. IHO 6-6)
12. The Student’s - recommended that the Student receive an additional hours of - per week, for a total of hours. (Tr. at 171-72, 185) This was a reasonable suggestion that was not objected to.
13. The District is capable of supplementing an award for hours at the ; therefore, the Student does not require the baseline estimate for hours at the (Ex.s U; V; W; X)
14. An appropriate award for this Student includes hours at the
; - ; and .
Legal Background
The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (FAPE).
20 U.S.C. § 612(a) (I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a) (1) (A). The IDEA defines a FAPE as 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, or secondary school education in the state involved, and
- (D) Are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).[1]
A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an IEP (20 U.S.C. § 614(d)). The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. W east, 546 U.S. 49, 53 (2005) The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14) In New York State, the IEP is produced by a committee on special education (CSE), whose members are appointed by the board of education or trustees of the school district. (N. Y. Educ. Law § 4402(1) (b) (1) (McKinney Supp. 2005))
The District admits that it did not provide a FAPE within the meaning of 20 U.S.C. § 601(9) during 2012-2013 and 2013-2014 school years. (Tr. 13) It also failed to provide a FAPE during the first half of the current school year (2014-2015). (Id.) In light of the District’s admissions, I need not determine whether this Student was offered a FAPE. Therefore, I begin with the District’s first objection to the relief sought by the
Parent.
The District argues that the IHO should not order the Parent’s request for an evaluation because it was already ordered. (Id.) At hearing on December 16, 2015, the District noted that the evaluation was scheduled for that very same day. (Id.)
IHOs are vested with the authority to direct that a student be evaluated at district expense (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]). However, it has also been acknowledged that the IHO's authority to direct an evaluation is not unlimited (see, e.g., Application of a Child with a Disability, Appeal No. 04-012; Application of a Child with a Disability, Appeal No. 96-13). The extent of the authority has been variously formulated as one which can be exercised when additional evaluative data is necessary to determine an appropriate educational placement (see Application of a Student with a Disability, Appeal No. 10-100; Application of a Child with a Disability).
Although an IHO may order the evaluation sought by the Parent, it is unnecessary to do so here. The District already ordered the evaluation. (Tr.
from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).
13) The Parent was informed that the results of the evaluation would be considered during this proceeding. (Tr. 88) Thus, I find that the Parent’s request for this order was nullified as of the hearing on December 16, 2014. Furthermore, the Parent did not raise objections to the evaluation ordered by the District when it was ordered. For these reasons, I find that there is no need to order the District to conduct an evaluation.
To the extent that the Parent seeks another evaluation at the District’s expense, this request is denied.
The Parent testified via affidavit that she did not agree with the results of the evaluation. (Ex. IHO 1-4) Here, I reiterate what was said during the hearing: This allegation is outside the four corners of the Complaint Notice. Thus, the Parent’s disagreement with the evaluation should have been raised in an amended complaint. (Tr. 255)
At this juncture, I address the rest of the Parent’s testimony via affidavit. State regulation allows an IHO to "take direct testimony by affidavit in lieu of in-hearing testimony, provided that the witness giving such testimony shall be made available for cross-examination." (8 NYCRR 200.5[j][3][xii][f]) Thus, the Parent’s preferred method of offering direct testimony was permissible. However, the use of the Parent’s Affidavit in this case was an utter failure. (Tr. 113-208, 248-85) On cross examination, the Parent was simply unable to recall her testimony set forth in the affidavit, or even relate her thoughts to its content. (Id.) Based on the Parent’s inability to recall the content of her own Affidavit during cross-examination, I find that the Affidavit cannot be used in support of the Parent’s allegations. I therefore, strike the Affidavit in its entirety.
I turn to the Parent’s request for a and , including and . (Ex. 1-7) The District argued that consideration of this demand should be postponed, pending the results of the evaluation. (Tr. at 16)
A board of education must provide an to a child if it is required as part of the child's special education or related services, or it is a supplementary aid or service which is necessary for the child to be educated in the least restrictive environment (Application of a Child with a Disability, Appeal No. 95-2). State regulation requires that a child's IEP describe any specialized equipment or device needed by a child to benefit from instruction (8 NYCRR 200.4 [c][2][vii]).
To this point, an has not been a part of the Student’s special education or related services. (Ex.s C; D; 6; 7) Thus, the issue now is whether it is a supplementary aid or service which has become necessary for this Student. The Student was administered an evaluation on or about December 16, 2014. (Ex.
11) Therein, it was noted that the Student was able to with increased need for support. (Id. at 5) Both evaluators responsible for the report suggested that should not be recommended. (Id.) The evaluators believed adding would increase the Student’s need for assistance, thereby creating a more restrictive environment. (Id.) The Parent did not present evidence to rebut the evaluators’ recommendation, save the oppositional testimony laid out in the Parent’s
Affidavit. (Ex. IHO 1) As previously indicated, I have discounted the Parent’s Affidavit in its entirety. For these reasons, the Parent’s request for an order directing the District to provide a and is denied. (Ex. 1-7) Accordingly, the Parent’s request that the District provide training for use of is also denied. (Id.)
Compensatory Education
Regarding the remedy of compensatory education, I find guidance in Reid v.
District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and … mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]
Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation 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 n.2, 113 n.6 [2d Cir. 2008]; M rs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387
[N.D.N.Y. 2001]
Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v.
Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see generally R.C. v.
Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]). Likewise, SROs 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 (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005]
[finding it proper for an SRO 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 the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; A pplication of a Student with a Disability , Appeal Nos. 13- 226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; A pplication of a Student with a Disability , Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; A pplication of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]).
In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W . v. Puy allup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address the problems with the IEP"]; see also Draper v. A tlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008]
[holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Parents of Student W . v. Puy allup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; A pplication of the Dep't of Educ., Appeal No. 11-132.
Services
To the extent that the Parent seeks Compensatory Education I find that such relief is warranted in this case. Originally, the estimated that a total of hours of are needed (Ex. J-1). The general method employed by the to arrive at this need can be surmised by examining the evaluation and the testimony of the director of (Ex. I; Tr. 26-82). Testing is first conducted to determine/estimate the number of grade levels of deficit, if any, with respect to a particular skill. Such a grade deficit for that skill would then be multiplied by a pre-assigned number of hours estimated to achieve mastery of level.
The product is the number of hours needed for the student to arrive at his/her currently- expected level of achievement for that skill at his/her current age. While this type of calculation may carry with it a suggestion of a “cookie cutter” or mechanistic approach to determination of a compensatory education award, it is nonetheless a systematic approach and constitutes a reasonable method for estimating a need considering the degree of complexity of the task. I find it as one useful factor in my consideration and determination of the appropriate award in this particular case.
In the Complaint Notice, the Parent requested an order for additional services in the form of , though she did not specify the number of hours she was seeking. (Ex. 1-7-8) The Parent’s Closing Brief noted that the director revised the program to show the updated number of hours the Student would require. (Ex. IHO 5-10)
In the Brief, the number of hours cited is (562.5).
(Id.) Yet, the actual report from the states that the revised estimate is (Ex. GG) Whether the Closing Brief or states the precise number of hours, it appears that the revised number is based on the initial estimate of hours cited in the (Ex. J-1), less the hours already provided due to Interim Orders beginning February 25, 2015. (Ex. IHO 5-10) The validity of the revised number is dependent upon a finding that the initial estimate was an accurate measurement of what the Student required. (Ex. J-1)
Put another way, the Parent’s revised estimate is only accurate if the Student actually needed hours to begin with. (Id.) I do not make that finding here.
The Director of the testified that skills would require attention to remedy the Student’s deficit. (Tr. 52) She estimated that each skill would require hours of , for a total of hours. (Id.)
These figures were affirmed the Student began at the (Ex. IHO 5-10;
Tr. 193-94) The Director testified that the category entitled refers to the isolation of a specific question type for . (Id. at 53) She said that hours of per grade level—through grade—would be required in this area. Thus, the Student needed a total of hours. (Id.) The Director did not discuss how many skills per grade level would need to be addressed with in this area, nor is this information provided in the . (Ex. J)
Therefore, I cannot find support for each of the hours of instruction requested for . The Director estimated that - hours would be necessary to through the grade. (Tr. 53) Lastly, the Director restated the number of and hours that the calls for, though she did not provide a basis for their calculation. (Id. at 54) Thus, I cannot find support for all hours called for in , or for each of the hours called for in . (Id.)
In consideration of the Student’s deficiencies as noted above, as well as the Student’s academic status toward the ending of the grade year, coupled with a seeming period of progress as of late (Ex.s U; V; W; X), I find that a bank of hours of would be adequate for bringing this Student to the academic level appropriate for her current standing.
My reasoning goes as follows: The requests for hours in ; hours in ; and hours in were unsupported by the Director’s testimony even though the hours were identified in the . To resolve this issue each unsupported request is reduced by percent . The finding of progress during the and grade is my basis for reducing the total hours recommended by an additional percent to the four hours. Recapping, I start with the .
Reducing the hours not specifically supported by testimony an additional percent leaves hours. Then based upon my finding of progress, an additional percent ( ) reduction, leaving -
hours.
In consideration of the estimate; the Parent’s request; and the testimony of the Director of the , I find that - hours of is an accurate baseline estimate for bringing this Student to the academic level appropriate for her current standing. I find also that the Student would likely benefit from additional services provided by the District.
The School Psychologist testified in this case. (Tr. 107-95) On cross-examination, the Psychologist admitted that the DOE offers evidence-based programs. (Id. at 191) He testified specifically that this includes programs. (Id. at 193)
Upon review of the testimony in this case, I agree that - is also an appropriate compensatory education award. (Ex. IHO 6-6) The Student’s - testified in this case. (Id. at 120-87) She recommended that the Student receive an additional hours of - per week, for a total of hours. (Id. at 171-72, 185) This was her recommendation to remediate the deprivation of educational benefit to this Student. (Id. at
171) I find no reason or legitimate objection in the record to the ’s suggestion.
(Id. at 7) Thus, I find that hours of -
, administered times per week for , is an appropriate award for this Student.
On the issue of , I find that an award for these services may be appropriate; though, I am mindful that the Parent may not wish to accept District sponsored support services. Understandably, the Parent may no longer possess confidence in a program provided by the same District that failed to educate the Student for the last and years. I therefore defer this matter to the CSE to consider an if services should be integrated into the program. In the event that the Parent is not satisfied with the program offered, this will be an issue between the Parent and District going forward.
Since the District is capable of supplementing an award for hours at the , I find that such services should be included to facilitate this Student’s development.
(Ex.s U; V; W; X) A diverse, comprehensive award is appropriate for this Student. This is not a case where the District made missteps that were nontrivial. The District utterly failed to provide the Student with a FAPE for years, and conceded this much at the outset of the case. (Tr. 13) Therefore, I find that the Student is entitled to all of the hours for which the Parent has support. Thus far, the Student has shown that such an award would likely be utilized. (Ex. FF) As of February 16, 2015, the Student completed hours of instruction, attending sessions for and hours at a time. (Id. at 1) As a result, the Student is progressing in line with the predictions made by the Director of the (Id. at 2) Thus, the evidence indicates that continuation of the program will advance the Student’s to the level expected.
Finally I address the Parent’s request for a remand to the CSE with instruction to defer the matter to the Central Based Support Team. (CBST) I do remand the matter but stop short of directing the deferral to the CBST. The academic circumstances of the Student are currently, at least potentially, in flux. As she approaches the end of this school year she is a year older, she has been benefitting from services under the aforesaid interim orders and she will soon to be receiving additional services under this order. This is not to say that a deferral is not warranted, simply that I am not in the best position to make this decision.
In this order I provide compensation for the Director of the to participate in any CSE activities. With this in mind, I do direct a remand to the CSE so that they can consider the updated evaluations which have occurred since the filing of the complaint notice, consider the Student’s progress in her current academic situation, consideration of input from the Director of the and consider the manner of implementing the additional services for in the context for the upcoming school year programming. The CSE may actually make a deferral to the CBST but if they do not, it is an issue between them and the Parent going forward.
Accordingly,
I hereby ORDER
1. Beginning on the day following the date of this Order, the District shall provide a bank of - hours of instruction less any hours of instruction exhausted under the THIRD INTERIM ORDER dated April 7, 2015; the hours of instruction are to be provided by the , to be paid upon presentation of bills for services rendered. Of this bank of hours, hours shall be provided to the for working with the CSE each time it convenes to prepare goals, share learning characteristics, and/or otherwise collaborate for the benefit of the Student. However, in no case should hours awarded be extended beyond thirty-six (36) months from April 7, 2015.
2. The District shall reimburse the and dollars ) for the cost of diagnostic testing and dollars
) for the cost of the Student Registration fee.
3. The District shall provide reimbursement for, or the provision of a for the Parent and for the Student each month the is accessed.
4. The District shall provide the Student with of - times per week. However, in no case should hours awarded be extended beyond hours.
5. The CSE shall reconvene without delay for the purpose of creating a program that will provide an educational benefit for the Student.
6. The CSE shall reconvene without delay for the purpose of developing an appropriate program for 2015-2016 in light of the direction and order herein. Dated: May 27, 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
A Amended Demand, 10/29/14, 10pp
B Demand for Due Process, 9/29/14, 9pp
C IEP, 9/10/14, 14pp
D IEP, 5/20/14, 16pp
E Assessment, 10/7/14, 1pp
F Letter, 10/ 2/14, 1pp
G Prior Written Notice, 5/20/14, 3pp
H CSE Meeting Notice, 5/13/14, 2pp
I Evaluation Results, 9/17, 14, 3pp
J , 1pp
K Testing, 9/13/14, 45pp
L Evaluation Report, 5/29/14, 7pp
M , 5/19/14, 5pp
N , 5/14/14, 6pp
O / Evaluation, 4/28/14, 3pp
P Teacher Checklist, 4/18/14, 4pp
Q Assessment Report, 4/10/14, 5pp
R Parent Checklist, 1/31/14, 4pp
S Parent Assessment Report, 1/31/14, 6pp
T Student Interim Progress Report, 10/20/14, 1pp
U Report, 3/2014, 2pp
V Monthly Progress Report, 3/14/14, 2pp
W Report to families, 11/2013, 2pp
X Monthly Progress Report, 11/13/13, 2pp
Y DOE History Screens, 4/7/14, 3pp
Z Evaluation, 1/6/15, 26pp
AA School Assessment Team Teacher Report, 12/5/14, 5pp
CC Interim Order, 12/24/14, 4pp
Evaluation, 1/30/15, 13pp
EE Invoice, 1/30/15,1pp
FF Letter, 2/16/15, 2pp
GG , 2/16/15, 1pp
DOE
1 Due Process Complaint, 9/10/14, 9pp
2 Amended Due Process Complaint, 10/29/14, 10pp
3 Psychoeducational Evaluation Report, 5/29/14, 8pp
4 Evaluation, 4/28/14, 4pp
5 Observation, 5/13/14, 2pp
6 IEP, 5/20/14, 31pp
7 IEP, 9/10/14, 19pp
8 Evaluation, 11/20/14, 7pp
9 Email, 11/17/14, 7pp
10 Report Card, 11/20/14, 1pp
11 Evaluation, 12/16/14, 6pp
IHO
I Parent Affidavit, 4pp II Interim Order, 4pp III Second Interim Order, 5pp IV 3rd Interim Order, 5pp V Closing Brief, 5pp VI Closing Brief, 14pp
Footnotes
[1] "Special education" is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term "related services" is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit