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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: July 3, 2014
Actual Record Closed Date: March 25, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 3, 2014
ESQ., Attorney — Student
Parents
Interpreter — Student
IHRO Representative — DOE
Administrator of Special Education — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the parent of the student in a due process complaint notice dated December 11, 2013. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) denied the student a free appropriate public education during the 2011/12, 2012/13 and 2012/13 school years (Exs. IHO-I, IHO-II, P-A).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y.
Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y.
Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See
N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
On December 11, 2013, the DOE appointed me to serve as the IHO in this matter.
See 8 NYCRR § 200.5(j)(3)(i). The parent filed an amended due process complaint on March 20, 2014 (Ex. IHO-II). See 8 NYCRR § 200.5(i)(7). The parent filed a second amended due process complaint on April 9, 2014 (Ex. P-A). See 8 NYCRR § 200.5(i)(7).
A hearing in this matter was thereafter held on July 3, 2014.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the April 9, 2014 second amended due process complaint, the student was years old and has been diagnosed with an (“ ”), (“ ”) and (Exs. IHO-II at 2, SD-2 at 2, P-A at 2, P-B at 1, 4, P-C at 1, 4, P-D at 2,
P-M at 1, P-N at 1-2, 5). For the 2013/14 school year, the student attended the in a program at the on
(Exs. IHO-I, IHO-II at 1, P-A at 1, P-S, P-T). While the student's current eligibility for special education and related services as a student with a disability is not in dispute, see 34 C.F.R. § 300.8(c);[8] NYCRR § 200.1(zz), the parent seeks, among other things, a change in the student’s classification from to (Exs. IHO-II at 2, -2 at 1, P-A at 2, P-D at 1).3
The student has a history, going back to early childhood, of problems with , , and . As he has become older, the component has apparently improved but the component had become the main concern. The student also has a history of and (Ex. P-B at 1-2, 4, P-C at 1-2, 4).
On October 6, 2010, the student was assessed using the (“ ”) to help determine his , , and skills. The student was asked to . To gain a sense of his abilities, the student was also asked to . Finally, the student to determine his and skills. Based on those assessments, the student tested at level for and and a level for ; expected levels for his grade. He also struggled with as well as the (Ex. P-O at 1).
On a January 16, 2013 psychoeducational evaluation, the student was administered the - (“ ”).
The student obtained an overall score of which fell within the range of . The score is comprised of various composite scores that include ( ), ( ), ( ), and ( ). All scores fell within the range of . The student obtained subtest scores within the range for the most part, with the exception of a range performance on reflecting skills (Exs. -2 at 1, P-D at 1,
P-E at 2).
Several subtests of the from the - -
(“ ”) were also administered to the student as part of the January 2013 psychoeducational evaluation. In the area of - , the student achieved a . In the area of , the student achieved a . In the area of , the student achieved a . In the area of , the student achieved a . In the area of , the student achieved a . In the area of , the student achieved a . In the area of , the student achieved a . (Exs. -2 at 1, P-D at 1, P-E at 4).
In evaluations from March 2013 and September 2013, the student’s treating physician recommended that the student attend a school with teacher-to-student staff ratio and curriculum (Exs. P-B at 5, P-C
at 5).
By the conclusion of his (2012/13), the student had achieved grades ranging from , earned ( ) credits, and had Exam
( ). From teacher reports of that school year, the CSE understood that the student demonstrated a preference for . The student was unable to or . The student struggled with , as well as with . He struggled to be and needed throughout the day (Exs. SD-2 at 1, P-D at 1, P-P).
On October 4, 2013, the CSE convened to develop an IEP for the student through October 17, 2014. The CSE recommended that the student receive the majority of his instruction in in a New York State approved school on a month basis. The CSE also recommended that the student receive related services of: transportation; , time per week for minutes per session; and , time per week for minutes per session (Exs. SD-2 at 5, 7-8, P-D at 6-7, 9-11).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE does not contest the parent’s allegation that the student was denied a free appropriate public education during the 2011/12, 2012/13 and 2013/14 school years.
As to the requested relief, the DOE asserts that it has already authorized the student’s receipt of compensatory additional and services. The DOE has agreed to conduct and / reevaluations of the student. The
DOE does not object to a change in the student’s classification to or to a deferral to its Central Based Support Team (“CBST”) for a change in the student’s educational placement. The DOE does object, however, to the parent’s request for compensatory additional services, as the student was reportedly dismissed from
/ in 2011 (R. 29-32).
B. The Parents
The DOE denied the student a free appropriate public education for the 2011/12, 2012/13 and 2013/14 school years. The CSE should be ordered to conduct the following reevaluations of the student: a psychological evaluation; a evaluation; a / evaluation; a and a . The student’s educational classification should be changed to . The CSE should be ordered to reconvene and develop an appropriate IEP for the student which provides for instruction,
/ , and the provision of a . The DOE
should be ordered to educationally place the student in a , setting.
Lastly, to remedy the DOE’s prolonged denial of appropriate education and services, the student is entitled to compensatory additional and services (R. 32-37;
Exs. IHO-I, IHO-II, P-A).4
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“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 (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A ., 557 U.S. 230, 239 (2009); B oard of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 206-07 (1982).[5]
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. See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New Y ork City D ep't.
of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June
10, 2013); M.H. v. New Y ork City D ep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012);
4 It appears from the hearing record that the DOE offered the parent substantially all of the relief requested in her original and amended due process complaint notices in resolution meetings held on a prior due process complaint (R. 29-37; Exs. IHO-I, IHO-II, IHO-III, SD-3, SD-4, SD-5, SD-7, SD-8, SD-9, P-F, P-G). Upon review of the hearing record, it appears that there were no barriers preventing the parent from accepting, at least in part, the evaluations, change in classification, placement, and additional services offered by the DOE. See A pplication of the New Y ork City Dep’t of Educ., Appeal No. 12-176 (SRO Aug. 28, 2013) (parent accepted all relief offered by the district at resolution session save one disputed service). Although the IDEA does not compel a particular result stemming from the resolution process, a parent’s unreasonable refusal to accept all of his or her requested relief is an equitable consideration to be weighed in fashioning appropriate relief. See 20 U.S.C. § 1415(f)(B)(iv). Cerra v. Paw ling 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.'" W alczak 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. M amaroneck 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 has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see 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.
Carm el 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. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R.
§ 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., 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), aff'd, 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, 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. See 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." See 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." W alczak, 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." See W alczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.
Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; W alczak, 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.'" See Cerra, 427 F.3d at 195 (quoting W alczak, 142 F.3d at 130); see also 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" See M rs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v.
A rlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); W alczak, 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, 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); Patsk in v. B oard 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 C.F.R. § 300.320(a)(1);[8] NYCRR § 200.4(d)(2)(i); Tarlow e v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), 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 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New Y ork City D ep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Appropriateness of Public Programming
The DOE does not contest that it failed to provide the student with a FAPE for the 2011/12, 2012/13 and 2013/14 school years (R. 29-32). The evidence entered into the hearing record also reflects that the CSE failed to provide the student with personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. By the conclusion of his (2012/13), the student had achieved grades ranging from , earned ( ) credits, and had
Exam ( ) (Exs. SD-2 at 1, P-D at 1, P-P). By the year (2013/14), his special education teacher reported that he “ ” (Exs. P-L at 2, P-Q, P-R, P-S, P-T).
C. Adequacy of Evaluations
The parent allege that the CSE failed to properly evaluate the student prior to developing its IEPs for the student for the 2011/12, 2012/13 and 2013/14 school years (Ex. P-A at 6).
A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, and must conduct one at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary, see 34 C.F.R. §§ 300.303(b)(1)-(2); 8 NYCRR § 200.4(b)(4).
A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).
An and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified. See 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
New York State regulations require the CSE to "arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation." 8NYCRR § 200.4(b)(4); see also 20 U.S.C. §
1414(a)(2)(A); 34 C.F.R. § 300.303(a).
The DOE has agreed to conduct updated and /
evaluations of the student (R. 30; Ex. P-F at 1-2). Given the October 2013 CSE’s acknowledgment that the student needs strategies, including , supports and other strategies to address that impede his learning or that of others (Exs. -2 at 2, P-D at 3, P-J, P-K), I will also direct the CSE to conduct a and develop a for the student.6 However, as there is no evidence contained in the hearing record of parental disagreement with the January 16, 2013 psychoeducational evaluation conducted by the CSE (Exs. SD-2, P-D, P-E), see K.B. v Pearl R iv er Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. Jan. 13, 2012); R.L. v. Plainv ille Bd. of Educ., 363 F. Supp. 2d.
222, 234-35 (D. Conn. 2005), I decline to order a psychological reevaluation of the student at this time.
D. Eligibility Classification
The parent asserts that the student’s educational classification should be changed from to (Ex. P-A at 7).7
With respect to disputes regarding a student's particular disability category or classification, federal and State regulations require districts to conduct an evaluation to "gather functional developmental and academic information" about the student to determine whether the student falls into one of the disability categories under the IDEA, as well as to gather information that will enable the student to be "involved in and progress in the general education curriculum." See 34 C.F.R. § 300.304(b)(1);[8] NYCRR § 200.4(b)(1). Courts have given considerably less weight on identifying the underlying theory or root causes of a student's educational deficits and have instead focused on ensuring the parent's equal participation in the process of identifying the academic skill deficits to be addressed though special education and through the formulation of the student's IEP. See Fort Osage R-1 Sch. Dist. v. Sims, 641 F.3d 996, 1004 (8th Cir. 2011)
8 NYCRR § 200.1 .
8 NYCRR § 200.1(zz) . (noting the IDEA's strong preference for identifying the student's specific needs and addressing those needs and that a student's "particular disability diagnosis" in an IEP "will, in many cases, be immaterial" because the IEP is tailored to the student's individual needs); Draper v. A tlanta Indep. Sch. Sys., 480 F. Supp. 2d 1331, 1342 (N.D. Ga. 2007); see also A pplication of the New Y ork City Dep’t of Educ., Appeal No. 13-219 at 19 (SRO Feb. 24, 2014).
As there is no present dispute that the student’s educational classification should be changed from to (R. 30, 36), the CSE will be directed to reclassify the student as one with an .
E. Referral for School Placement
The parent seeks an order directing the CSE to place the student in an appropriate,
, program in a school. Alternatively, if such a program cannot be determined, the parent seeks deferral to the CBST for such a placement (Ex. P-
A at 7).
The IDEA requires that a student’s recommended program be provided in the LRE. See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 111, Gagliardo, 489 F.3d at 105; W alczak, 142 F.3d at 132; Patsk in, 583 F. Supp. 2d at 428.[8] A school district is not obligated to consider removal from the public school to a placement if it is able to provide the student with an appropriate educational program within the public education system. See 8 NYCRR § 200.6(j)(1)(iii) (State funding for private schools is only available if the CSE determines that the student cannot be appropriately educated in a public facility); T.G. v. New Y ork City D ep't of Educ., 2013 WL 5178300, at *19
( .N.Y. Sept. 16, 2013); A .D. v. New Y ork City D ep't of Educ., 2013 WL 1155570, at
*7-*8 ( .N.Y. Mar. 19, 2013); v. New Y ork City D ep't of Educ., 646 F. Supp. 2d 346, 363 (S.D.N. Sch . Dist., 454 F. Supp. 2d 134, 148
(S.D.N.Y. 2006) ("IDEA views private school as a last resort"); Patsk in, 583 F. Supp. 2d at 430-31; see also R.H. v. Plano Indep. Sch. Dist., 607 F.3d 1003, 1014-15 (5th Cir.
2010) (noting that under the IDEA, "removal to a private school placement [is] the exception, not the default . . . [t]he statute was designed primarily to bring disabled students into the public educational system and ensure them a free appropriate public education"). "'[I]f the district can supply the needed services, then the public school is the preferred venue for educating the child.'" T.G., 2013 WL 5178300 at *19, quoting W .S ., 454 F. Supp. 2d at 138.
The Second Circuit applies a two-pronged test for determining whether an IEP places a student in the LRE, considering: (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate. See Newington, 546 F.3d at 119-120; J.S. v. N orth Colonie Sch. Dist., 586 F. Supp. 2d 74, 82 (N.D.N.Y. 2008); Patsk in, 583 F. Supp. 2d at 430; see also Oberti
v. B oard of Educ., 995 F.2d 1204, 1217-1218 (3d Cir. 1993); Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048-1050 (5th Cir. 1989).
The hearing record reflects that as early as March 2013, the student’s recommended that the student be enrolled in a , school with teacher-to-student ratio and a curriculum (Exs. P-B at 5, P-C at 5).
Selection of the student’s educational placement was deferred by the CSE to the CBST which, on October 18, 2013, recommended a New York State approved day or program for the student (Ex. SD-8). The CBST declined a placement for the student on LRE grounds (Ex. SD-9 at 4). In an October 25, 2013
Resolution Agreement to a prior due process complaint, the parties agreed to change the student’s placement to a New York State approved day school (Ex. P-G at 2).
On November 5, 2013, the student was accepted by the for enrollment in one of its programs (Exs. SD-
5, SD-7).9 On November 8, 2013, the parent declined the offered program for the student The at the (Ex. -6). In a January 21, 2014 e-mail to the parent, the student’s special education teacher at the encouraged the parent to reconsider and accept a program for the student as the student was not experiencing educational success in his then-current program (Ex. P-L at 2).
Applying the Newington test to the facts of this case, the hearing record reflects that the student cannot be educated satisfactorily in a classroom with the use of supplemental aids and services. The hearing record also reflects that the CSE has tried to the student to the maximum extant appropriate, but that the student requires more support than can be offered in a setting
(Exs. P-D, P-G, P-J, P-K, P-L at 2, P-P, P-Q, P-R, P-S, P-T). Based on the unrebutted opinion of the student’s , I find that the student’s special education needs require a placement in order to benefit from his educational program
(Exs. P-B at 5, P-C at 5).
Alternatively, in rejecting a placement for the student, the CBST administrator failed to cite any specific educational record of this student supporting placement of the student in a day or program (Ex. -9 at 4). While I understand the CBST’s caution in removing a child from and , the requirement that each child with a disability be placed in the LRE must be balanced against the requirement that each student receive an appropriate education. See Briggs v.
B oard of Educ., 882 F.2d 688, 692 (2d Cir. 1989).
F. Compensatory Additional Services
Due to the prolonged denial of a FAPE to the student, the parent seeks compensatory , and / services (Ex. P-A at 7-8).
Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation act of the Legislature and enumerated in Chapter 566 of the Laws of 1967, as amended. See N.Y. Educ. Law § 4001(8); 8 NYCRR § 105.1(d). These school districts have been established on the grounds of charitable institutions caring for children and youth and serve students who, for unique reasons, cannot be served in a traditional public school system. 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 (2d Cir. 2008); M rs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
State Review Officers also 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. See Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); Student X v . New Y ork City D ep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); B oard of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer 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 a Child with a Disability , Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M .C. v.
Central Reg’l Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem”). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Id. at
526.
The DOE does not contest that it failed to provide the student with a FAPE for the 2011/12, 2012/13 and 2013/14 school years (R. 29-32). The DOE has authorized the student’s receipt of hours of (“ ”)
and hours of compensatory services (Exs. -3, -4). While the parent also seeks hours of compensatory / , I find that the student was properly dismissed from this service in 2011 on the recommendation of his following an evaluation (Ex. SD-11). There is also no evidence contained in the hearing record reflecting any parental disagreement with that decision at the time it was made.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
1. The parent’s claim that the student was denied a free appropriate public education for the 2011/12, 2012/13, and 2013/14 school years is SUSTAINED; and, within thirty (30) days of the date of this Order, the CSE shall request the parent’s informed written consent to conduct the following evaluations: (a) a evaluation; (b) a / evaluation; (c) a ; and (d) a ;
2. Within thirty (30) days of the completion of said evaluations, the CSE shall convene and recommend a change in the student’s educational classification from
( ) to ( );
3. The CSE shall develop an appropriate IEP for the student to address his needs, including the consideration of a
; and
4. The CSE shall recommend that the student be educated in a New York State approved placement and/or defer selection of said placement to the
DOE’s CBST.
Dated: April 9, 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
PARENTS
A. Second Amended Due Process Complaint Notice/Impartial Hearing Request,
4/9/14, 8 pgs.
B. Evaluation, 3/25/13, 5 pgs.
C. Evaluation, 9/4/13, 6 pgs.
D. Individualized Education Program, 10/4/13, 12 pgs.
E. Psychoeducational Evaluation, 1/16/13, 11 pgs.
F. Resolution Agreement, 4/2/13, 2 pgs.
G. Resolution Agreement, /23/13, 3 pgs.
H. Attendance Policy, 1/6/14, 1 pg.
I. E-mail to guardian from , 1/14/14, 1 pg.
J. Principal’s Letter, 1/23/14, 1 pg.
K. Principal’s Letter, 12/9/13, 1 pg.
L. Letter to from , 1/8/14, 2 pgs.
M. , 5/22/08, 3 pgs.
N. Evaluation/ , 05/01/08, 6 pgs.
O. Letter from ( ), 12/20/ , 1 pg.
P. Student Report Card, 6/28/13, 1 pg.
Q. Student Transcript, undated, 1 pg.
R. Student Permanent Record, undated, 2 pgs.
S. Student Report Card, 12/12/13, 1 pg.
T. Individual Student Attendance Record, 1/2/14, 1 pg.
U. Request for Records, 3/11/14, 4 pgs.
DEPARTMENT OF EDUCATION
1. [Reserved]
2. Individualized Education Program (IEP), 10/18/13, 11 pgs.
3. ( ) Approval Letter, undated, 2
pgs.
4. Compensatory Related Services Approval Letter, undated, 2 pgs.
5. Notice - , 12/4/13, 1 pg.
6. Response Form (Parent Decline) - , 11/5/13, 1 pg.
7. Response Form (Acceptance) - , 11/5/13, 1 pg.
8. Checklist, 10/18/13, 4 pgs.
9. Checklist, 10/4/13, 4 pgs.
10. [Reserved]
11. Report, 12/8/11, 2 pgs.
IMPARTIAL HEARING OFFICER
I. Due Process Complaint Notice/Impartial Hearing Request, 12/11/13, 1 pg.
II. Amended Due Process Complaint Notice/Impartial Hearing Request, 3/20/14, 8
pgs.
III. Confirmation of Extension, 2/20/14, 1 pg.
IV. Confirmation of Extension, 6/15/14, 1 pg.
V. Confirmation of Extension, 7/23/14, 1 pg.
VI. Confirmation of Extension, 8/18/14, 1 pg.
VII. Confirmation of Extension, 9/18/14, 1 pg.
VIII. Confirmation of Extension, 10/21/14, 1 pg.
IX. Confirmation of Extension, 11/20/14, 1 pg.
X. Confirmation of Extension, 12/22/14, 1 pg.
XI. Confirmation of Extension, 1/21/15, 1 pg.
XII. Confirmation of Extension, 2/20/15, 1 pg.
XIII. Confirmation of Extension, 3/23/15, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to allow the parties adequate time to present their available witnesses and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and that the reasons for the requested extensions were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 105-107; Exs. IHO-III - IHO-XIII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[8] NYCRR § 200.1(zz)
[5] The term “free appropriate public education” means 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 school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[8] NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v). The burden of proof is on the school district during an impartial hearing, except
[8] NYCRR § 200.1
[8] The LRE requirement applies to placement of a student by a school district in a State-approved nonpublic school. See 8 NYCRR § 200.7(c)(1) (“An application shall be made to the commissioner by the board of education for approval of the placement of a student with a disability in an approved private educational facility which has been determined to be the least restrictive environment for the student.”); see also 8 NYCRR § 200.6(5)(i)(a) (empowering the State Education Department to order corrective actions against school districts, including “review by the district’s committee on special education of all private placements deemed by the department to be inconsistent with the right to placement in the least restrictive environment”).