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:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: January 8, 2015
January 23, 2015
February 3, 2015
February 11, 2015
February 25, 2015
March 2, 2015
March 5, 2015
March 12, 2015
March 17, 2015
Actual Record Closed Date: March 24, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 8, 2015
Attorney for Parent (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 23, 2015
Attorney (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 3, 2015
Attorney (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 11, 2015
Attorney — Student
Attorney — Student
Mother — Student
Father — Student
Interpreter — Student
IHRO Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 25, 2015
Attorney — Student
Parents
Parents
Neuro Psychologist (Via Telephone) — Student
Interpreter — Student
IHRO Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 2, 2015
Attorney (Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 5, 2015
Attorney — Student
IHRO Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 12, 2015
Attorney (Via Telephone) — Student
DEPARTMENT DID NOT APPEAR
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 17, 2015
Attorney — Student
IHRO Representative — DOE
This hearing was requested by the parent on October 2, 2014. The hearing was held on December 31, 2014, January 8, January 23, February 3, 11, 25, March 2, 5, 12 and 17, 2015. As is noted in the hearing record, many of the issues raised in the due process complaint were resolved or withdrawn. The remaining issues are addressed below.
SCHOOL DISTRICT
The school district opposes the relief requested by the parent. The school district submitted documentary evidence to support its position. (Exhs. 1-10)
1. Compensatory
The school district asserts that the record does not support the parents’ claim for hours of compensatory . The school district contends that the IEP team should be given the opportunity to review the most recent evaluation to make appropriate recommendations of what, if any, services are appropriate.
2. Compensatory and
The school district asserts that the record does not support the parents’ claim for hours of compensatory and . The school district contends that the IEP team should be given the opportunity to review the most recent evaluation to make appropriate recommendations of what, if any, services are appropriate.
3. Compensatory
The school district asserts that the record does not support the parents’ claim for hours of compensatory , especially since the student did not attend mandated when it was offered to her. Additionally, the school district contends that the Individualized Education Program (IEP) team should be given the opportunity to determine what, if any, services are appropriate.
4. Compensatory The school district asserts that the record does not support the parents’ claim for hours of compensatory . The school district contends that the IEP team should be given the opportunity to review the most recent evaluation to make appropriate recommendations of what, if any, services are appropriate. Additionally, the school district requests that any order for compensatory specify that it be provided as , through school district providers.
5.
The school district asserts that there is no support in the record for a
.
6.
The school district asserts that there is no support in the record for a transportation
.
PARENT
The parent contends that the school district failed to provide the student a free appropriate public education (FAPE) for the 2012-13 and 2013-14 school years.
The parent submitted documentary evidence and testimony. (Exhs. A-QQ)
Parents’ witnesses included the parents and a .
FINDINGS
I find that the school district failed to offer a FAPE for the 2012-13 and 2013-14 school years. I also find that the record supports the relief sought by the parent in part.
As was recently restated in Appeal No. 14-012, two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
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 (Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling 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'" (Walczak 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. Mamaroneck 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 indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 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., 394 Fed. App'x 718, 720, 2010 WL 3242234 [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, 361 Fed. App'x 156, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 293 Fed. App'x 20, 2008 WL 3852180 [2d Cir. 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 (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" (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" (Walczak, 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" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).
Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 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'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see 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" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE)
(20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent.
Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 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, 486 Fed.
App'x 954, 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]; Patskin v. Bd. of Educ., 583
F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), 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 CFR 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 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
The school district bears the burden of showing that it offered a FAPE. The school district did not present any witnesses and the documentary evidence it submitted was insufficient to rebut the testimony and documentary evidence submitted the parents.
Additionally, the school district did not present any rebuttal witnesses. Therefore, the school district failed to meet its burden that it offered a FAPE during the 2012-14 school years.
The parents seek the relief set forth below. I find that the parents are entitled to part of the relief sought.
1. Compensatory
The parents’ claim for compensatory is supported by the evaluation obtained by the parent and the testimony of the . The evaluation revealed
(Exh. U) The evaluator testified that hours of compensatory would be appropriate to address these needs.
I find that the parent’s request for hours of compensatory is appropriate.
2. Compensatory and
The record indicates that during the 2012-14 school years the student was entitled to and . The IEP mandated per week in a of . The school district failed to prove that the student received the mandated services. Additionally, despite the student’s and , she was not provided any and during those years. The record establishes that the student I find that the parent’s request for hours of compensatory is appropriate to address these deficits.
3. Compensatory
The student’s 2012-13 IEP mandated . The record indicates that the service was removed from the 2013-14 IEP . However, the school district failed to demonstrate what, if anything, it did to address the lack of attendance. The school district had the obligation to show that it did more than simply offer the service to the student, especially when it was clear that the school district was informed by the parent that the student . Removing from the IEP constituted a denial of a FAPE and entitles the student to compensatory relief. I find that hours of compensatory is appropriate to compensate for the lack of during the 2012-
14 school years.
4. Compensatory
The record indicates that during the 2012-14 school years the student made little academic progress. She remained at a level in and a level in . (Exhs. P, S) She was
Despite this, the school district failed to change her program or provide , such as . The record also indicates that the student would probably have benefitted from services had they been offered. Because the parents were dissatisfied with the student’s services and lack of educational progress, they paid for private and the student benefitted.
(Exhs. BB, PP) Additionally, the testified that the results of the evaluation indicate that the student would benefit from . (Exh. U) I find that the student is entitled to compensatory in the amount of hours (the equivalent of hours per year or hours per week for the year period). Because of her , this amount is needed to ensure that the student is able to progress. The school district’s request that they be allowed to provide compensatory services, instead of
, is denied.
5. Additional and
The record supports the parents’ request for additional l and
.
6.
The record establishes that because of the student’s , she requires a until such time as she is placed in an appropriate program. It is clear from the record that
7.
The school district asserts that there is no support in the record for a . The record indicates that the student is able to travel to her current school on her own. Therefore, I agree with the school district that this service is not required at this time. However, the parents retain the right to request this service, and a new impartial hearing, if this situation changes.
8. Program
I find that the student is entitled to a month program. The record establishes that the student was required to because of .
However, because the student had not benefited from the services provided during the school year, the parent s paid for private services. Because of the student’s month program.
9.
The parents seek help them understand and take advantage of strategies to assist the student. I find that this service should be made available to the parents.
10. Appropriate IEP with appropriate transition Goals I find that the student is entitled to an appropriate IEP with appropriate transition goals.
ORDER
1. Compensatory
Within ten days of the date of this Order the school district is to authorize the parent to obtain hours of at school district expense.
2. Compensatory and
Within ten days of the date of this Order the school district is to authorize the parent to obtain hours of independent and at school district expense.
3. Compensatory Counseling
Within ten days of the date of this Order the school district is to authorize the parent to obtain hours of and at school district expense.
4. Compensatory
Within ten days of the date of this Order the school district is to authorize the parent to obtain hours of independent at school district expense.
5. Additional and
Within ten days of the date of this Order the school district is commence providing additional and to the student during the school day and this additional service is to be added to her IEP.
6.
Within two weeks of the date of this decision, and until the student is transferred to an appropriate program at a non-public school, the student is to receive the services of a to assist her in the classroom.
7.
The parent’s request for a for her current school placement is denied without prejudice because the student is able to travel to and from her current school on her own. The parents retain the right to request this service, and a new impartial hearing, if this situation changes.
8. Month Program
The student shall receive a month program.
9.
The parents are to receive to help them understand and take advantage of strategies to assist the student.
10. Appropriate IEP with appropriate transition goals
Within two weeks of the date of this decision, the school district is to convene an IEP meeting to develop an appropriate IEP in accordance with this Order. In addition to the services mentioned above, the IEP is to include all other appropriate services and appropriate transition goals. Dated: March 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 RECORD
PARENT
A - Evaluation, 1/24/03, 5 pages
B Examination, 3/28/03, 3 pages
C Testing Report, 5/2/06, 9 pages
D IEP, 9/29/06, 15 pages
E Evaluation of , 4/23/07, 6 pages
F IEP, 9/15/08, 13 pages
G Psychoeducational Evaluation, 3/25/09, 4 pages
H IEP, 4/29/09, 15 pages
I IEP, 4/28/10, 13 pages
K Psychoeducational Evaluation, 4/8/11, 4 pages
L Classroom Observation, 4/6/11, 1 page
M IEP, 4/11/11, 19 pages
N IEP, 6/28/11, 23 pages
O Student Report Card, 4/5/12, 1 page
P IEP, 5/11/12, 22 pages)
Q Removal of , 8/30/12, 1 page
R Student Report Card, 4/17/13, 1 page
S IEP, 5/21/13 14, pages
T Letter from Parent to CSE, 1/8/14, 1 page
U Evaluation, 1/8/14, 30 pages
V Letter, 2/6/14, 2 pages
W Student Transcript, 2/26/14, 1 pages
X Student Progress Report, 4/3/14, 2 pages
Y IEP, 4/3/14, 22 pages
Z Student Report, 6/25/14, 2 pages
AA Homework, undated, 1 page
BB and Assessment, 6/14/14, 3 pages
DD Report Ms. , undated, 1 page EE Student Progress Report, 3/9/11, 1 page
FF / Student Progress Report, 3/28/11, 2 pages
GG Records Request and Confirmation, 8/4/14, 4 pages
HH Records Request Confirmation, 8/5/14, 1 page
II Request for Impartial Hearing, 10/2/14, 15 pages
JJ IEP, 5/8/13, 14 pages
KK Report Card, 10/22/14, 1 page
LL CBST Deferral, 1/6/15, 1 page
MM Student Report Card, 1/20/15, 1 page
NN Student Transcript, 1/20/15, 1 page
OO Progress Report, 12/8/14, 2 pages
PP , 2/19/15, 6 pages
QQ Closing Brief, 3/5/15, 28 pages
DEPARTMENT OF EDUCATION
1 Due Process Complaint, 10/2/14, 15 pages
2 IEP, 11/25/14, 14 pages
3 Classroom Observation, 1/25/14, 1 page
4 Evaluation, 11/25/14, 3 pages
5 Update, 11/21/14, 3 pages
6 Assessment Planning, 10/29/14, 1 page
7 Consent for New Evaluations, 11/5/14, 1 page
8 Evaluation, 9/1/13, 9/27/13, 10/3/13, 10/7/13,
30 pages
9 State Approved NPS Tracking Document, 1/8/15, 1 page
10 Closing Statement, 3/17/15, 3 pages