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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: June 12, 2015
June 25, 2015
July 31, 2015
August 11, 2015
September 18, 2015
Actual Record Closed Date: October 5, 2015
Hearing Officer: James McKeever, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 12, 2015
Attorney — Student
Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 25, 2015
Attorney for Parent (Via Telephone) — Student
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 31, 2015
Attorney — Student
Parents
Representative — DOE
IEP/ Unit Coordinator (Via Telephone). — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 11, 2015
Attorney — Student
Parent/Mother — Student
(Via Telephone) — Student
DR., Neuropsychologist (Via Telephone) — Student
Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 18,
2015
Attorney — Student
Mother — Student
(via telephone) — Student
Representative — DOE
PROCEDURAL HISTORY: — DOE
I was appointed to this matter on June 1, 2015. Hearings were held on June 12, 2015 and June 25, 2015 regarding the issue of pendency. The Decision and Order on the issue of pendency was issued on July 3, 2015. The hearing on the merits was held on July 31, 2015, August 11, 2015 and September 18, 2015.[1]
On several dates the parties requested an extension of the compliance date in order to complete the hearing. The Orders of Extension are appended to this decision (IHO
Exhibit 1).
FINDINGS OF FACT:
On or about May 15, 2105, the parent filed the within Due Process Complaint (“DPC”) alleging that the New York City Department of Education (“District”) failed to offer the subject Student a Free and Appropriate Public Education (“FAPE”) during the 2014-2015 school year. Specifically, the parent alleged that the District’s placement in a class with related services of ( ) and (“ ”) was insufficient to met the student’s academic needs and that the Student required placement in a small class with (“ ”), , as well as additional services, inter alia. (Exhibit A).
Consequently, the parent requests compensatory educational services in the form of private services as well as make up services (Exhibit A).
The Student is n with . The Student presents with significant delays as well as and
(Exhibits A).
2014-2015 SCHOOL YEAR
On May 23, 2014, the Committee on Special Education (“CSE”) held a meeting and developed an Individualized Education Program (IEP) for the Student for the 2014- 2015 school year.
is the Unit Coordinator and a certified special educational teacher at (Tr. 54). Ms. was present at the IEP held on May 23, 2014. Ms.
testified that at the time of the CSE meeting, the Student had . Specifically, the Student had difficultly answering yes/no questions and he was only beginning to become familiar with . Ms.
testified that the Student required a lot of and to follow directions and to join in in a social setting. With respect to placement, Ms. opined that the Student required a small group and instruction with , as well as , , or in order to obtain an educational benefit (Tr. 59).
Following the IEP meeting the Student was placed in a , class with , , and services (Tr. 62). At this time the CSE reduced the Student’s services from to . Nevertheless, Ms. testified that she believed that the IEP was appropriate to meet the Student’s needs during the 2014-2015 school year. However, she conceded that there was no discussion at the IEP meeting regarding the amount services the Student would have received during this school year (Tr. 73). On cross-examination, Ms. testified that, based on a teacher progress report, the Student’s mandate was modified from (Tr. 67-68, 72).
No one testified on behalf of the District regarding the Student’s academic and/or progress during the subject school year (See record generally).
is a (“ ”) who testified on behalf of the parent (Tr. 81). Mr. is employed by (Tr. 82). Mr. has provided services to the Student since September 2013 (Tr. 83). Mr. testified that based on his assessment, and as of the date of the hearing, the Student’s communication skills were significantly delayed
(ranged from ) and that his academic skills were at (Tr. 86) He opined that the Student required of services in the home (Tr. 91). He also testified that the when he observed the Student in the public school placement during the subject school year, the Student was not receiving any services and that the Student’s teacher did not implement the Student’s (Tr. 97). He further testified that the Student’s language skills had regressed during the subject school year and that Student had become more (Tr. 98). Consequently, Mr. believes that the Student requires a (Tr. 99-100, 102).
Dr. is a licensed who testified on
behalf of the parent (Tr. 122, Exhibit R). Dr. completed a psycho-educational evaluation of the Student in February 2015. She testified that the given the intensity of the Student’s needs, he requires of instruction in a school setting to reduce his (Tr. 128-131). She also testified that it is “ ” that the Student receive instruction in the home in order to generalize his skills into a natural environment and that in the home would be appropriate to meet his needs (Tr. 131, 150).
With respect to , Dr. testified that the Student had and she noted that the Student was unable to communicate his needs without picture . Consequently, Dr. recommended that the Student receive on a using to address his (Tr. 132).
Further, during a classroom visit in the 2014-2015 school year, Dr. testified that she did not observe any instruction in the classroom and that there was no evidence of a being employed (Tr. 132). Finally, and based on the parent’s report, Dr.
testified that the Student had regressed with respect to his due to a reduction in services by the CSE. In conclusion, Dr. opined that Student would benefit from make up and additional services, and that the parent’s required in order to meet the Student’s needs (Tr. 140-141).
The parent objected to the CSE’s decision to reduce the Student’s and its decision not to provide services in school or at home (Tr. 158-159). The parent testified that the reduction in caused the Student’s to regress significantly and that as result, the Student no (Tr. 164). The parent also testified that during the subject time period the Student began to engage in and (Tr. 158).
On or about December 1, 2014, the parent advised the CSE that she would obtain a private psycho-educational evaluation and seek reimbursement from the District (Exhibit N). The District failed to fund the parent’s private evaluation and failed to initiate a hearing to defend its own evaluation.
is a who testified on behalf of the parent (Tr. 181). Ms.
is employed as the at the
(“ ”), which offers and , as well as , inter
alia (Tr. 180, 182, 191). is affiliated with the (“ ”), which is where the Student is currently enrolled (2015-2016). The providers at all have a Certificate of Clinical Competence (Tr. 187). The supervises the service providers and evaluates the data collected on a weekly basis in order develop the appropriate program for the Student (Tr. 184). Finally, Ms.
testified that collaborates and works closely with , which would benefit the Student (Tr. 912).
FAPE for the 2014-2015 school year:
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 v.
T.A., 129 S. Ct. 2484, 2491 [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 8 Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (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 a procedural violation is 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]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F.
Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 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 v.
Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; 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 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 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; 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. Dep't 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 enabling 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 9 300.320[a][4]; 8 NYCRR 200.4[d][2][v]. 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 burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27,
2010]).
2014-2015 School Year:
Here, the only witness who testified for the District was Ms. . The testimony elicited from Ms. was limited to the development of the Student’s IEP.
Significantly, no evidence was presented by the District to rebut the parent’s allegation that the Student was denied an educational benefit during the 2014-02015 school year because the Student’s placement failed to include services throughout the day and because the Student’s services were reduced form to . To the contrary, the parent and Mr. testified that the lack of services at school and the reduction in caused the Student to regress. Accordingly, I find that the District has not met its burden of demonstrating that Student was offered a FAPE during the subject school year.
Compensatory Education:
Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
While compensatory education is a remedy that is available to students who are no longer eligible for instruction, State Review Officers have upheld hearing officers awards of “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. SRO 06-074.
Here, the evidence shows that the student was denied a FAPE during the 2014- 2015 school year because the CSE failed to recommend any instruction and because the CSE inappropriately reduced the Student’s . The parent presented evidence sufficient to support a finding that the Student required during the subject school year. The parent also presented evidence sufficient to support a finding that the Student required of instruction in the classroom in order to obtain an educational benefit. I note there is nothing in the record to rebut the parent’s evidence with respect to their proposed level of and their proposed level of services. Accordingly, based on these facts, I find that the Student is entitled to compensatory services in the amount of , which is based on , that he should have received during the 2014-2015 school year. I also find that the Student is entitled to in the amount of ( ) , which is based on for , that he did not receive during he 2014-2015 school year. I further find that is an appropriate provider for the compensatory and the , and that the rates for their services are not inappropriate. However, I do not find that the Student is entitled to any compensatory services for a denial of FAPE during the 2014-2015 school year because the parent voluntarily resolved this issue with the District at a resolution meeting in April 2014.
Further, based on Dr. ’s findings, I find that the parent is entitled compensatory because there was no evidence in the record that the District provided direct during the subject school year. As such, I find that that parent is entitled to of compensatory , which based on Dr. ’s recommendation of for . I also find that is an appropriate provider for .
IEE:
Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]). A parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an evaluation with which the parent disagrees" (34 C.F.R. § 300.502[b][5]; 8 NYCRR 200.5[g][1]; see R.L., 363 F.
Supp. 2d at 234-35). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 C.F.R. §
300.502[b][2][i]-[ii];5 8 NYCRR 200.5[g][1][iv]; see, e.g., A.S. v. Norwalk Bd. of Educ., 183 5 , Appeal No. 08-039; , Appeal No. 07-126; , Appeal No. 06-067; , Appeal No. 05-
009; F. Supp. 2d 534, 549 [D. Conn. 2002] [upholding order of reimbursement where the district failed to demonstrate that its evaluation was appropriate]; Application of the Bd.
of Educ., Appeal No. 09-109; Application of a Student with a Disability, Appeal No. 08-
101). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502[b][3]; 8 NYCRR 200.5[g][1][v].
Here, the evidence shows that by letter dated December 1, 2014, the parent advised the District that she would obtain a private psycho-educational evaluation and seek reimbursement for the cost of the evaluation from the District (Exhibit N). Dr.
conducted the evaluation and the cost was . The District failed to fund the parent’s private evaluation and failed to initiate a hearing to defend its own evaluation.
Accordingly, the parent’s request for reimbursement for the cost of the evaluation conducted by Dr. is granted.
I have considered all the other relief requested by the parent and said relief is denied, without prejudice.
ORDERED
The Department shall fund ( ) of services for to the Student to be provided by .
The Department shall fund , ( ) of make
up services to the Student to be provided by .
The Department shall fund of compensatory services to the parent to be provided by .
The above services shall be provided pursuant to a schedule determined by the parent.
The Department shall reimburse the parent for the cost of the evaluation conducted by Dr. in the amount of upon proof of payment of same.
Dated: October 9, 2015
JAMES MCKEEVER, 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
District’s Exhibits:
0. Hearing request
1. IEP, dated 5/23/14, 24 pages
2. IEP, dated 3/28/14, 21 pages
3. IEP, dated 1/31/13, 20 pages
4. PWN, dated 3/8/13, 4 pages
5. report, dated 8/18/13, 2 pages
6. Psycho-ed, dated 3/14/12, 5 pages
7. Withdrawn
8. 14-'15 progress report, 2 pages
9. , dated 11/4/14, 3 pages
10. , dated 5/21/14, 6 pages
11. , dated 5/21/14, 8 pages
12. Classroom observation, 5/21/14, 1 page
13. and , May, June & July 2014, 19 pages
14. Parent eval. request, 9/25/14, 1 page
Parent’s Exhibits:
B.Findings of fact and decision, dated 1/28/15, 11 pages
C.Pendency Order, dated 12/23/13, 5 pages
D.Due Process Response, dated 5/5/15 3 pages
E.Progress report, dated 1/14/13, 3 pages
F. Letter, dated 6/17/13, 2 pages
G. Eval, dated 6/26/13, 4 pages
H.Letter, dated 7/23/13, 1 page
I. Educational progress report,dated 1/11/14 4 pages
K. Progress report, dated 6/1/14, 3 pages
L. Progress report, dated 8/15/14, 3 pages
M. Parent letter, dated 9/25/14, 1 page
N. Parent letter, dated 12/1/14, 2 pages
O. Child observation form, dated 12/11/14,
P. Letter, dated 2/2/15, 1 page
Q letter, dated 2/4/15, 1 page
R Psycho-ed, dated 2/16/15, 14 pages
S. , 1 page
T. Proof of payment, 2/26/15, 2 pages
U. Report, dated 5/16/15, 2 pages
V. Parent letter, dated 5/1/15, 2 pages
W. Parent letter, dated 6/9/15, 2 pages
X. Report card, 3 pages
Y. 13-'14 report card, 5 pages
Footnotes
[1] On August 11, 2015, the parent rested its case. However, subsequent to that hearing date, the parent’s counsel requested another hearing date in order to submit additional evidence. The DOE objected. Despite having rested its case, the parent’s request was granted because the record had not yet be closed and because I found no prejudice to the District who had notice and an opportunity to cross-examine the parent’s witness.