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STATE UNIVERSITY OF NEW YORK
STATE EDUCATION DEPARTMENT
IMPARTIAL HEARING OFFICER
INTHE MATTER OF and = «on behalf of THEIR
DISABLED CHILD, DECISION OF
Petitioners, THO.
- against —
THE. -_-. ~ J UNION FREE SCHOOL
DISTRICT
Respondent.
PROCEDURAL BACKGROUND
This matter was brought on by a Demand for Due Process dated May 28, 2014. Petitioners’ Counsel invoked applicable State and federal Disabilities Education Act statutes along with the Americans With Disabilities Act, 42 U.S.C. §12131, the Civil Rights Act, 42 U.S.C. §1983 and 1981, the Rehabilitation Act, 29 U.S.C. §504, No Child Left Behind Act, 20 U.S.C. §6301, as well as various case law. Petitioners alleged that the Union Free School District (“District”) engaged in procedural and substantive violations and proposed that the Impartial Hearing Officer (“IHO”) find the following:
e That the District failed to write an appropriate Individualized Educational Program (“IEP”), perform a Functional Behavioral Analysis (“FBA”), and perform a Behavioral Intervention Plan (“BIP”) during the 2012-2013 and 2013-2014 school years; e That the District reimburse the Petitioners for compensatory education as a remedy for the District’s failures during the 2012-2013 school year; e That the ce en! . Was an appropriate placement for the Disabled Child __’. for the 2013-2014 school year; e That the ' is the “pendent placement”; e That the District reimburse Petitioners for tuition for the or the 2013- 2014 school year; e That the District provide transportation to Petitioners to the uw. --. for the 2013-2014 school year; e That the Petitioners were prevailing parties regarding the 2012-2013, 2013-2014 school years; and, e That the Petitioners are entitled to attorney’s fees and costs. [HO Ex. 6.
The District submitted a timely response dated June 9, 2014 to the Petitioners’ Due Process Hearing Demand. [HO Ex 7.
Following the Demand for Due Process and appointment of this IHO, a conference call between attorneys for the parties was held on July 22, 2014. During that conference call it was agreed that the Petitioners would amend their Demand for Due Process by the close of business August 1, 2014, that the District would determine whether or not it would agree to a waiver of Resolution following the Amended Due Process Demand filing and, finally, whether the District would appoint this IHO to also hear allegations raised under §504 of the Rehabilitation Act.
THO Ex. 1
By Due Process Complaint Notice dated July 30, 2014, Petitioners’ attorney filed an Amended Due Process Demand invoking the same statutes and requesting declarations as cited in the initial Due Process Demand but adding claims for the 2014-2015 school year, including tuition reimbursement and transportation claims. Further, Petitioners demanded “money damages for retaliation pursuant to §504 of the Rehabilitation Act and deprivation of ~~ rights as a student with a disability under §504 of the Rehabilitation Act”, and seeking an “Order declaring that .and Parents were retaliated against under the provisions of the IDEA”.
This IHO conducted a second pre-hearing conference call on August 4, 2014. In that conference call it was determined that there was no pendency issue before the [HO and, therefore, no need for a bifurcated hearing and that the District would not waive its rights to a Resolution Session. In light of the discussion, six dates for hearing were scheduled. IHO Ex 3.
By letter dated August 8, 2014, Attorneys for the District responded to the Amended request of the Due Process Hearing. In sum and substance, the District denied that its offerings were inappropriate or that it had violated any of the families’ or student’s procedural or substantive rights as well as denying Petitioners’ entitlement to any of the proposed solutions. District’s Counsel also stated that “to the extent the Parents seek money damages for an alleged violation of §504 of the Rehabilitation Act of 1973, such relief is outside the jurisdiction of an Impartial Hearing Officer to grant.” IHO Ex 9.
The Impartial Hearing began on September 16, 2014 and continued on dates as follows: October 9, 2014, October 10, 2014, October 22, 2014, October 23, 2014, December 2, 2014, December 3, 2014, February 4, 2015, May 20, 2015, June 29, 2015 and July 2, 2015. There were 10 hearing dates and 2 telephonic conferences. In total, the resulting transcript is 2,145 pages long. Admitted into evidence were 9 IHO Exhibits, 45 Joint Exhibits, 31 School District Exhibits and 33 Parents’ Exhibits.'
' Citations are as follows: IHO Exhibits = IHO Ex __; Joint Exhibits =J Ex __, School District Exhibits = SD Ex __; Parents’ Exhibits =P Ex; and Transcript= TR __.
In the Spring of 2015 Counsel for the Parents resigned. Thereafter, the Parents requested a continuance in order to obtain replacement counsel. After an extended search, the Parents were unable to retain counsel and rested their case in a telephone conference on May 20, 2015. On June 29, 2015 the District put on a rebuttal case and the Parents a reply case, pro se. Both parties submitted briefs to this IHO.
FINDING OF FACTS
was born on a . J Ex 10. is a student enrolled in the Union Free School District (“District”) who is classified as an 3tudent. J Ex 9.
According to family, _— suffers from [I is I >: EE and recurring strep infections which causes fe TR 1157. The ‘alleges that BEE syndrome causes discomfort, irritability and pain which manifests itself in crying and pinching. TR 1158, 1159. The yr the District, | testified that the District has never received documentation regarding _'s alleged BE -ondition. TR 92, 1841. Likewise, the ' of the private school in which is placed, aa , testified that was not aware of any conditions regarding strep throat. TR 1606.
Beginning in 2005, when was in Kindergarten, I was placed by the District and educated in the Done eee TR 1159. In July 2011, the family wrote the District’s — _ expressing concern about the quality of the education was receiving in the . %, and renewing an allegedly long-standing request that they be allowed to observe other special education programs within the District as well as the u/s... —-.. in the District. P Ex A. The Parents also requested that the CSE revisit some of the Parents’ related services concerns. P Ex A, TR 1161.
Following the Parents’ letter, on or about August 9, 2011, the District’s Committee on Special Education (“CSE”) met to address the Parents’ concerns and recommended updated testing to determine. | present levels of performance. J Ex 1. The CSE recommended that was to continue in” current placement while they evaluated possible placement in existing in-
District programs. J Ex 1. Thereafter, met with the District’s classroom teacher,
,» The District’s CSE reconvened on September 1, 2011. TR 108-109, JE 2. At the September 1, 2011 CSE meeting, the District recommended that be placed in an in-District
Elementary School, , in ~~, 12:1:1 self-contained class. TR 110, J Ex
2. was also to receive 1:1 Teacher Assistant support for 6 hours per day in the special class and in support of |= mainstream placements. TR 111, J Ex 2. The CSE recommended that a Functional Behavioral Assessment (“FBA”) be conducted by an outside provider, _: |. TR 116.
In September 2011, _ started in the 12:1:1 self-contained class in the _ School with a special education life skills teacher, . TR386. — ; had been at the September 1, 2011 meeting. When began in - “class had the 1:1 Teaching Assistant (“TA”). The TA would assist with instruction. TR 314. During that school year, would engage in mild aggression. TR 401. _ was in contact and consulted with the I and would collect data regarding’ _—. behavior. TR 403-405. testified that I was frequently absent during the winter of 2011-2012 and that behaviors were difficult when did not feel well. TR 414-415.
. served asa ____- TR 869. - performed a FBA and wrote a report dated December 12, 2011. TR 872, J Ex 12. * identified targeted behaviors as mild aggression, elopement, PI arrosed behaviors, vocalizations and crying episodes. TR 882, J Ex 12. Z FBA was provided to the teacher and implemented in” 12:1:1 class. TR 430, 892. _ also recommended that ~ receive home services from wee ~ ,(* — ”) services which were refused by the Parents. TR 899, 117. Apparently, the family denied the home services from as they were more interested in speech, writing and reading assistance for . TR 121, 983. _. never completed a Behavior Intervention Plan (“BIP”) as believed that was to be written by the school staff but also believed that __. FBA encompassed all the provisions necessary for a BIP.
TR 954, 962, 996.
In late November 2011 a District [MMJevaluated .J E10. The found that ° had EE iopairments. TR 626. found delays in adaptive functioning, as well as some significant maladaptive behaviors preventing _. from independent functioning. TR 626. was also found to have aggressive or stimming and physical behaviors. TR 626. Although — was unable to participate in standardized testing, given behavioral difficulties including crying, loud vocalizations and frustrations, the GE believed to be in the extremely Jt cognitive functioning. TR 631, J Ex 10. The i testified that, based on testing, it was unlikely that _ would be able to learn to read. TR 634.
The District?s CSE met on December 19, 2011 to review evaluations performed by the District and the Parents’ request for increased related services. SD Ex 3. Among the evaluations reviewed by the CSE was the FBA performed by | J Ex 3. At that meeting the Parents renewed their request for additional services and confirmed that they did not want the assistance of i: their home. J Ex 3. stated that during the 2011-2012 school year, progressed in . class. TR 450. _ was receiving the Edmark Reading
Approach and. _: Elementary School had set up a sensory room. TR 421, 428. In March of 2012, _ performed an educational evaluation of .JEx19.~° ~~ found that” performed at approximately affMJold level with skills development levels. TR 455, 458, J Ex 19. ~ — stated that early on, » behaviors included vocalizations, licking hands, aggression and inconsistent behavior patterns. TR 452-454. Towards the end of the 2011-2012 school year, ° behaviors were reported to be more in control. TR 459.
A District sub-CSE met on April 10, 2012. J Ex 4. That meeting was an Annual Review and to discuss recommendations for the 2012-2013 school year. J Ex 4. The Special Education Teacher, ee ee: GS21! presented that had made progress in many areas. J Ex 4. _reading skills were reported to be at the ae... and could rote count to 20. J Ex 4. The sub-CSE recommended continuation of the 12:1:1 class along with a 1:1 teaching assistant, end po services. J Ex 4. The Parent, although agreeing that had made progress, expressed significant concerns about lack of functional reading skills. J Ex 4. The Parent unsuccessfully petitioned the sub-CSE for services of a reading specialist. J Ex 4. The Parent also advocated for vices from 4 to 5 times per week. J Ex 4. more Eset
The District’s CSE reconvened on May 21, 2012. J Ex 5. The CSE reviewed a District -v2tu2ticn completed on May 2, 2012. J Exs 5, 18. The evaluation noted that was much more available for testing as compared with attempts to testing in October and November 2011. J Ex 5, 18. performance on a Language Free Cognitive Assessment was in the with the BE pointing out that there was no meaningful difference between , ability to reason using meaningful pictorial information versus geometric figures. J Ex 18. Although the District’s CSE discussed changing classification it remained at that time. J Ex 5. The Parent again advocated for a 1:1 reading specialist, a service the CSE again declined to offer. J Ex 5. The CSE again recommended special class 12:1:1 for 6 hours per day; Parent Mand training 2 times per month, 1 hour per session; <ivicually 3 times per week, 30 minutes per session; Po small group 2 times per week, 30 minutes per session; po GE individually 3 times per week, 30 minutes per session; and, FT time per week in a small group, 30 minutes per session. J Ex 5. The CSE recommended that _ have an aide for 3 hours per day and a TA for 2 hours per day. J Ex 5. The District also recommended Po at home, | time per day, 120 minutes per session. J Ex 5. ' returned to lass for the 2012-2013 school year. TR 459. At the beginning of that school year was becoming more (J. TR 460. The . likewise testified that became J towards staff in the 2012-2013 school year and that as the year went on the{fii i TR 132. left big bruises on and. considered a safety concern after P| in the stomach in early February 2013. TR 461-469. Following theo the stomach, _ went to a doctor and did not believe that could retum to! class. TR 471, 476. Following the J to. was suspended. TR 134.
“' testified that came to the _topick uponor about January 14, 2013 and found "crying hysterically. TR 1205. Later that evening the family found “gouges” on thighs. TR 1205. The testimony was that they took to ’ doctor who called eich declined to follow through. TR 1208. The testified that . reported the incident to the PR informed not to return to school. After that incident, . was not transported on the bus to school. TR 1210. The testified that talked to District officials about switching bus monitors but that did not happen. TR 1219.
The GE incident happened on or about February 5, 2013. TR 323. On the next day, _ drove to school and was met at the entrance of the school by: ~ .-. TR 1222.
They had a discussion in the hallway regarding’ _. escalated behaviors. _ Stated that the ~ ; . did not have people trained mi Pp and that the District would provide home instruction fo: .. TR 326. Shortly thereafter the © _ called the home and told the family that was suspended. TR
1225. The suspension was a 5 day suspension. TR 1226. Apparently a suspension letter arrived at the Parents’ home later that day following the hallway discussion/confrontation. TR 325, 326, J Ex 24.
An agreement followed, between attorneys for the parties, which recommended a change in placement from the © | * ‘to home instruction, 2 hours per day; a: times per week, 30 minutes per session; and, Po
3 times per week, 30 minutes per session. TR 1848, J Ex 25. Additionally, the CSE was to locate an out of District placement for ~ and agreed to send packets to for Education, Lo and‘, , 4 _ 3 Ex 25. Additionally, the agreement was that the record of suspension would be expunged and that a Manifestation Determination would be waived, thereby conceding manifestation in light of the expungement. TR 1848, 1860.
Following the February 5, 2013 incident / never returned to the I and remained on homebound instruction for the remainder of the 2012-2013 and entire 2013-2014 school years. TR 1994.
A CSE meeting was scheduled for February 11, 2013 but cancelled due to a snow day delay. TR 1139. Thereafter, the CSE met on February 20, 2013 at which attorneys for the parties were present. The JEP adopted by the CSE changed the program to home instruction with related services “pending a placement search for a more intensive placement to meet student’s needs following increasing] (iI
CP 0 staf?’ JEx 6 Apparently, the District’s Special Education office sent out referrals to 9 programs and received
7 rejections. TR 138, 139. The acceptances were ata © as (“ — ") program in the" ~ , and the - a . TR 140.
The . testified that the rogram is an intensive language based communications program for students with and without P| TR 781-782. 7 in the program. TR 783. The “~~ program utilizes a behavior management program and also utilizes —. asa iR 785-786.
On or about March 22, 2013 the ~ ind visited theTM — -_ _ .__{ class. TR 1251. A- i -in the — ~-classes program, -met the. at their visit. TR 692-693. ~ testified that’ | ~-became agitated but felt that the program was a good fit for TR 699, 704. - -was accepted into the . program. TR 705, 789. It was felt that would be a good fit into class. TR 792-795.
Apparently there are 2 . program classes in the }
/ - - _... P Exs H, I. At the time of the Petitioners’ visit, there was room in a class taught by 1 but the class taught by had no space. P Ex J. The Parents private evaluator, _ _ Visited the rogram and had discussion with the * personnel about putting in the “downstairs” program ( ; class) where there was an opening. TR 1734. _ _., testified that the downstairs program was not appropriate for —
TR 1738. Furthermore, _ testified that is capable of learning to read. TR 1777.
~ + did, however, testify that the “upstairs program” could be appropriate. TR 1782.
‘ testified that! was told by an employee of ___ _ __ »n their way out of the door, that the . ’ program was inappropriate for . and that should retain counsel or an advocate. TR 1255-1256. No witness was produced that confirmed such statement had been made to .__ - ..... Both . employees testified that there was no indication such a statement was made to — », TR 866, 804.
After Petitioners’ visit to the _ program, the CSE reconvened on May 29, 2013. TR
143. At the time of the CSE meeting ~ ' had been on home instruction since February 2013. J Ex 7. Notes from the meeting indicate that both . and stated, based on their review of referral information, that they had appropriate available programs for' , J Ex 7. A representative from — participated in the CSE meeting by phone and a representative of the was present at the meeting. J Ex
7. The available” __. program was in the ] - a *. JEx 7. The ‘is a public school and believed by the CSE to be the LRE for and, as such recommended the ' 8:1:2 program with i services on an individual basis 3 times per week, 30 minutes per session; services 3
1] times a week, 30 minutes per session; group FI 1 time per week, 30 minutes per session; and, parent counseling and training individually, 2 times per month, 30 minutes per session. All members of the CSE, but for the Parents, agreed with the recommendation. J Ex 7. The IEP does not indicate into which particular classroom will be placed. TR 146. The family was offered a 2 day intake at the but refused that opportunity. TR 1324, 1343.
In addition to any other services‘ received while in District or on home instruction, — received 2 hours per day of special education itinerant teacher (“SEIT”) services at home provided by the District. TR 1259. Notwithstanding the agreement between the parties from the time of — suspension until the summer of 2013’ was not providedfiiifservices. TR 1352. Hi services were resumed in June 2013 and they were received through January 2014. TR 1353. EEE Were offered |} ° after the suspension but the family claimed it was at an inconvenient time. TR 1356. ° did receive Mj services from on or about July 1 through August 15, 2013. Around that time pushed the MN 2 times and thereafter the Parents refused to let the P| back in their home. TR 1239, 1326-27.
The Parents testified that they applied to and = ~—Ss was accepted at 7 vee in: in July 2013. TR 1269. The District received a letter in October 2013 regarding acceptance at began at ‘ - * in July 2014. TR 1269. The Parents desired private transportation. TR 175. The District offered transportation for’ ‘from; home to and from’ ~~ with a bus monitor. TR 175, 1867-1868. Instead, the Parents have chosen to drive to and from . TR 1282, 1286.
The District’s CSE met on May 29, 2013 to recommend a program for: for the 2013-2014 school year. J Ex 7. Representatives from the oe ~~~» participated in the CSE, by phone, and recommended the, : placement. J Ex 7. The CSE believed that the
} program, located in a public middle school, would be in the LRE for “~ and would result in educational benefits { J Ex 7. At the May 29, 2013 meeting the CSE again recommended thei program located atTM s ' . J Ex 7. The Parents did not agree with that recommendation and also stated that they had not received and | | therapy services due to scheduling conflicts between the family and related service providers. J Ex 7. Thereafter, the District received correspondence from the Parents’ attorney dated June 27, 2013 advising the District of the number of hours of Pe: special education services missed by the District. SD Ex 24A. The District’s a -
"_.1 testified that after receipt of the letter from the Parents’ attorney, all missed services were made up. TR 1865-1867.
The District’s CSE reconvened on December13, 2013. J Ex 8. During that CSE meeting the Parents’. ..° © “* TM ~ 1 presented yO Evaluation = had conducted between July and October 2013. TR 1719-1720. _ tested’ ‘when >was 12 years, 7 months old. J Ex 31. During the times that had mete »was not in school. TR 1680. ~ found that ha ith deficits in social communication. TR 1698. : has intellectual disabilities with [MM impairment. TR 1699.« found —_nonverbal IQ to be approximately Jand —_—- verbal comprehension score to be at the PR eve. TR 1701, J Ex3.~° ‘scores on the Vineland Adaptive Behavior scale were in the po of intellectual disability. TR 1705. Likewise, | Peabody Picture Vocabulary Test scores were Jn did not see aggression or disruptive behavior and recommended that the use of visuals be provided during ~ Instruction. TR 1713-1714, J Ex 31. TR reported that __.» was participating in a social group of 3 for 1 hour at the ' ,and that no aggressive incidents had been reported, to date. J Ex 8.
At the December 13, 2013 CSE meeting, the — . ‘described the ~ me
«lassroom and noted that instruction is differentiated for each student. J Ex 8. Students are provided interaction with peers and adults. J Ex 8. Students in th ~~ __,are provided a reading mastery program. J Ex 8.
Au 4 sw of 7 participated in the December 13, 2013 CSE meeting by phone. J Ex 8. ~ °, was described as a small program of about 40 students at the middle school level. J Ex 8. It was a described as a school where a majority of the students are on the P| and range in age from 8-15 years old. JEx 8. Apparently,’ ' told the CSE that some of the students at ©. ~~ have BIPs for issues of work refusal and non-compliance but that t does not accept students with aggressive behaviors. J Ex 8.
Also at the December 13, 2013 CSE meeting, thd who bad
~ been providing services to. reviewed his progress reports through August 2013. J Ex 8.
also stated to the CSE that Sessions had ended in October when had been punched by The District’s CSE at the December 13, 2013 CSE meeting, continued to recommend the _ program ai . a program which the Parents rejected. J Ex 8. At that CSE meeting, the Parents requested that the District place -at< "in i J Ex 8. The CSE stated that it could not consider: eas it was not an approved h _.... ~----— J Ex 8. The Parents’ Attorney, thereafter, informed the District that the Parents might invoke their right to Due Process. J Ex 8. The Parents requested that services resume at home and remained on home instruction through July 2014. J Ex 8,
TR 1235.
The District’s CSE reconvened for an annual review on June 6, 2014. J Ex 9. Once again, a i oo provided an overview of the # —_ » program located in the
- ee J Ex 9. Although a Parent had not visited the drogram since March 2013, at the June 2014 meeting the commented that one of the staff members at “ »had approached at the intake and commented that the program was not appropriate for
.' and that + »should hire an advocate or an attorney. TR 1251, 1255, J Ex 9. The *« __....._ from ___estated to the CSE thate’ was not aware of any such comment. J Ex
9. The CSE continued to recommend thes ~~ »program for the 2014-2015 school year and the Parents rejected that placement and stated that they would seek tuition reimbursement for prospective placement at; me OR J EX 9.
« began attendance at « during the summer of 2014 and had a rocky start. TR 1467. ; _ sis a private language based Special Education School which serves {MJ students. TR 1246. The school utilizes a positive reinforcement behavior system. TR 1432. I} » was accepted into the middle school and the for the middle school testified thats | vas the type of child with which their program works. TR
1426, 1430, 1463. Over the summer of 2014, en worked on: _—_s “sensory overflow”. TR 1481. The # testified that the school had set up a program for... so ‘has to deal with peers, basically gets 1:1 math with project based activities and skills connected science. TR 1489, 1490, 1497, 1500, 1501. It was reported that- has, from __., a very individualized service plan. TR 1505, P Ex JJ. The testified that sobservess coming and going to class but is not in the class but for 5TM:
10 minutes per day. TR 1548-1549. . did testify that: ‘had engaged in some hitting and shoving incidents. TR 1582, 1595. . _slikewise testified thats had only observed being instructed 5 or 6 times for about 5 minutes per time. TR 1601. « can lose reinforces as part of the positive behavioral system but J _.....#does not have a FBA for’ TR 1608, 1618. The Parents have been paying for : '_,, and transporting ~~ to and from that school, since the beginning of July 2014. TR 1995, 1998, P Ex SS.
DISCUSSION
Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) 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 (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” (Walezak 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 “[mJultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not” (R.E., 6947 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]fii]; 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 District herein engaged in extensive procedural inadequacies thereby denying . a
FAPE.
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 [2s 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 Walezak, 142 F.3d at 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]). Herein, appears to have suffered educational regression while in the District’s program.
An appropriate educational program begins with an JEP 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[aJ[2]fil. [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[aj[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).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S.
359, 369-70 [1985]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; Gagliardo, 489 F.3d at 111; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C] [ii]; 34 CFR 300.148.
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 R.E., 694 F.3d at 184-85).
A. Appropriateness of IEPs
Under the IDEA, a CSE may be required to consider special factors in the development of a student’s IEP. Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ., 361 Fed. App’x 156, 160-61, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172; J.A. v. E. Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 [S.D.N.Y. 2009]; M.M. v. New York City Dep’t of Educ., 583 F. Supp. 2d 498, 510 [S.D.N.Y. 2008]; Tarlowe, 2008 WL 2736027, at *8; W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 149-50 [S.D.N.Y. 2006]). To the extent necessary to offer a student an appropriate educational program, an IEP must identify the supplementary aids and services to be provided to the student (20 U_S.C. § 1414[d][1][AJGJ[IV]; 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v][al], [b][3]; Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100, at *1 [S.D.N.Y. Apr. 7, 2011]; Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 [N.D.N.Y. Sept. 29, 2009] [discussing the student’s IEP which appropriately identified program modifications, accommodations, and supplementary aids and services]; P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 380 [S.D.N.Y. 2008]).
In New York State, policy guidance explains that “the IEP must include a statement (under the applicable sections of the IEP) if the student needs a particular device or service (including an intervention, accommodation or other program modification) to address [among other things, a student’s interfering behaviors,}] in order for the student to receive a [FAPE]” (“Guide to Quality Individualized Education Program [IEP] Development and Implementation,” at pp. 22, Office of Special Educ. [Dec. 2010], available at http://www.p12.nysed.gov/specialed/publications/ iepguidance/IEPguideDec2010.pdf). “The behavioral interventions and/or supports should be indicated under the applicable section of the IEP,” and if necessary, “the student’s need for a [BIP] must be documented in the IEP” (id.).
State procedures for considering the special factor of a student’s behavior that impedes his or her learning or that of others may also require that the CSE consider having an FBA conducted and a BIP developed for a student (8 NYCRR 200.4([d]fe][aJ, 200.22[a]-[b]).
If the CSE determines that a BIP is necessary for a student “the [BIP] shall identify: (i) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors. - .; (ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and (iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals (8 NYCRR 200.22[b][4]). Neither the IDEA nor its implementing regulations require that the elements of a student’s BIP be set forth in the student’s IEP (“Student Needs Relative to Special Factors,” Office of Special Educ. [Apr. 2011], available at http:/Avww.pl2.nysed.gov/specialed/formsnotices/IEP/training/QA-411.pdf). However, once a student’s BIP is developed and implemented, “such plan shall be reviewed at least annually by the CSE” (8 NYCRR 200.22[bj[2]). Further, “[t]he implementation of a student’s [BIP] shall include regular progress monitoring of the frequency, duration and intensity of the behavioral interventions at scheduled intervals, as specified in the [BIP] and on the student’s JEP. The results of the progress monitoring shall be documented and reported to the student’s parents and to the CSE ... and shall be considered in any determination to review a student’s [BIP] or IEP” (8 NYCRR 200.22[b][5]).
The SRO recently held:
I find that the failure of the CSE to review the interventions actually used with the student or to develop a revised BIP that was designed to measure and monitor the student’s ageressive behaviors, as well as the student’s response to strategies implemented by the district, or otherwise note appropriate supplementary aids and services, in the JEP resulted in the denial of a FAPE (see R.K. v. New York City Dep’t of Educ., 2011 WL 1131492, at *18-19 [E.D_N_Y. Jan. 21, 2011]; cf. A.C., 553 F.3d at 172, E.M. v. New York City Dep’t of Educ., 2011 WL 1044905, *9 [S.D.N.Y. Mar. 14, 2011]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1217, 1220-21 [3d Cir. 1993]). Accordingly, I find that the district’s failure to comply with State regulations resulted in a substantive deficiency in this instance and deprived the student of educational benefits by failing to sufficiently address the student’s behaviors which impeded his learning. In light of the above, I find that the district failed to implement the 2012-13 [EPs and, in this instance, it was a material deviation from the student’s IEPs that deprived the student of a FAPE for the 2012-13 school year (A.P., 370 Fed. App’x at 205; see Van Duyn, 502 F.3d at 322).
Application of a Student with a Disability, SRO Nos. 13-226 and 13-228. transferred back to the District during the 2011-2012 school year. When the District’s sub-CSE met on April 10, 2012 to discuss an IEP for the upcoming school year, the ae _ ‘and all the service providers presented that! had made progress in many areas. __—rreading skills were reported to be at the MMJlevel and' could rote count to 20. As such, the District recommend continuation in the 12:1:] class along with a 1:1 teaching assistant, oe and Po services. Although the Parent who attended that meeting agreed that , had made progress, expressed significant concerns about | lack of functional reading skills.
The District’s CSE reconvened on May 21, 2012 where again the Parent advocated for a 1:1 reading specialist. Between two CSE meetings a District Psychologist completed an evaluation of: . Thisisthe: | who testified that’ will not be able to learn to read based on test results. TR 634. The District declined to provide additional reading services and, proposed essentially the same program as the prior school year. It is hard to determine if ~ reading issues are cognitively based or a self-fulfilling prophecy by the District. Regardless of .. testing, the District had an obligation to provide” adequate reading services. ~ testified that had the inherent ability to learn to read and the District should have constructed an adequate individualized program to address! _; reading issues as its generalized program was ineffective.
The classroom teacher did note that: s problematic behaviors increased as academic demands increased. IEP for the 2012-2013 school year has 2 study skill goals, 3 reading skill goals, 1 math skill goal, 6 Re goals, 5 social emotional goals, 10 motor skill goals and 2 basic cognition/daily living skill goals. The IEP acknowledges that the student requires a BIP and in the section regarding supplementary aids and services there is a reference that such plan should be administered daily, throughout the school day and across all settings. The District, and especially classroom teacher, were aware of increasing problematic behaviors and assisted in structuring an IEP specifically calling for a BIP.
The District argues that 3 behavior report is the functional equivalent of a BIP as interventions include most, if not all of the regulatory requirements, therefor.
Whether or not it contained all of the requirements of a BIP, notwithstanding that along with other District witnesses testified that no finalized BIP was ever created by the District, seems a moot point in light of the fact that the behavior plan was dated December 12, 2011 andi + behaviors were reported to have significantly decreased during the remainder of the 2011-2012 and 2012-2013 school years. As such,” . .. '" behavior plan was neither effective nor updated, as required, to address ' significantly deteriorating behaviors.
Additionally, behavior progress monitoring does not appear to have happened.
Further, it appears that” I was suspended in violation of | due process rights pursuant to Education Law §3214. The testimony was that brought _—s into school that morning only to be met by the ] ---.-. -- -, . who informed the family that ’ was suspended. Although not within my jurisdiction, that does not comport with the statutory construct for even a 5 day suspension which a | ~ can legitimately invoke. Nevertheless, to suspend an {J youngster, known to be aggressive, with no BIP in place speaks to the clear inadequacy of the IEP for the 2012-2013 school year.
Although home instruction is not an appropriate placement for a language challenged GE student capable of school attendance, as was‘ _, the family appears to have acquiesced to that placement, at least while application was made to alternative placements. Clearly, neither party should have allowed! to be home instructed. _ : is an [fyoungster who needs social interaction, instruction in academic skills and opportunities for language skill growth. It was negligent of both parties to allow’ ’ to be out of a formal school setting for almost a year and a half of schooling.
Testimony as to acceptance into the _. . program for the 2012-2013 school year is somewhat unclear. The District’s Memorandum of Law seems to indicate that was accepted into ~ -..... 3 Class, however, that does not comport with the testimony at the hearing. The BOCES representative testified that, at the time of Petitioners visit to the po program, only the class on the lower level was available. The District seems to have conceded that should have been placed in . Class but there does not appear to have been an opening in that class at the time that the District first proposed the BOCES GE placement. Further. _ testified that the downstairs class was not an appropriate placement for —~ In light of the placement in a BOCES class that nearly everyone concedes was not the proper class and the lack of an updated BIP, should one exist at all, I find the 2012-2013 IEP was inappropriate.
For the 2013-2014 and 2014-2015 school years the District’s CSE again recommends be placed in the BOCES |iblass in the ~ 2 The [J program was described as an intensive language based communication program for students with or without P| The social worker who was part of the initial intake interview testified that, although the GE program had some students with aggressive behaviors, the program never learned that was on home instruction for aggression. TR 751-754. The GE program was described as utilizing a generic behavior management program and there were statements that | would have been a good fit in class. (The record is somewhat unclear as to whether was formally accepted into the GP ogram for the 2013-2014 and 2014-2015 school years, more orless classroom.) Nevertheless, the testimony failed to support that the program was geared toward students with behavioral anomalies such as . The District’s witnesses testified that had been making progress in the District’s program, but for behaviors which resulted in suspension and thereafter home instruction. To the extent that the testimony did not develop or support the notion that the proffered BOCES program was uniquely and explicitly geared to deal with a student, | who had been out of school because of behaviors, it is an inappropriate placement. As such, the District’s IEPs for the 2013-2014 and 2014-2015 school years are, like the 2012-2013 IEP, inappropriate.
B. Compensatory Education
An IHO has broad authority to fashion an equitable remedy. P. v. Newington Bd. of Educ., 546 F3d at 123 [2TM° Cir. 2008]. The central purpose of an award is to provide a remedy for a specific denial of FAPE. See Newington 546 F3d at 123. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1][, 4401[1], 4402[5]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law $§ 3202[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.i[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100. 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 York City Dep’t of Educ., 538 F.3d 106, 109 N.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F. 2d 1071 [2d Cir. 1988]; Cosgrove c. Bd. of Educ., 175 F.
Supp. 2d 375, 387 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]).
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 FAPE (see Mr. and Mrs. P. v. Newington Bd. Ed., 546 F.3d 111, 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]”]; Student X v. New York City Dep’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]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at *12-13 [S.D.N.Y. March 6, 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 become ineligible for instruction by reason of age or graduation (Bd. of Educ.
v. Munoz, 16 A.D.3d 1142 [4 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]; Application of a Student with a Disability, Appeal No. 09-111 [adding summer reading instruction to an additional services award]; Application of the Bd. of Educ., Appeal No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; Application of a Student with a Disability, Appeal No. 09-044 [awarding “make-up” counseling services to remedy the deprivation of such services]; Application of a Student with a Disability, Appeal No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; Application of a Student with a Disability, Appeal No. 08-072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE]; Application of the Bd. of Educ., Appeal No. 08-060 [upholding additional services awards of physical therapy and speech-language therapy]; Application of a Student with a Disability, Appeal 08-035 [awarding ten months of home instruction services as compensatory services]; Application of the Bd. of Educ., Appeal No. 06-074; Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-054).
The purpose of an award of additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M., 758 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. Puvallup Sch, Dist., 31 F. 3d 1489, 1497 [9" Cir. 1994] [holding that “(a)ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA”]; Application of the Dep’t of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10- 052). 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”]; S.A. v. New York City Dep’t of Educ., 2014 WL 1311761, at *7 [E.D.N.Y. Mar. 30, 2014] [noting that compensatory education “serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE”] [internal quotations and citation omitted]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11" 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 [6" 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 [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”]; Puvallup, 31 F.3d at 1497 [finding “ltJhere is no obligation to provide a day-for-day compensation for time missed”]; Application of a Student with a Disability, Appeal No. 13-168; Application of the Dep’t of Educ., Appeal No. 12-135; Application of the Dep’t of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).
The Petitioners demand that the District “reimburse petitioners for compensatory education as a remedy for the District’s failure to provide with an appropriate education during the 2012-2013 and 2013-2014 school years as required under the IDEA” see, Petitioners’ Amended
Complaint. Notwithstanding the demand, the Petitioners did not put on any showing that they expended any monies whatsoever for educational services during the 2012-2013 and 2013-2014 school years. In fact, the testimony was extensive that could only be available for tutorial at certain times of the day, that it was the Parents who declined behavioral support in the home, that it was the Parents who dismissed the MMthereby depriving ofa much needed service for an extended period of time and that it was the Parents who likewise dismissed the . Although the District initially missed a large number of special education and related services immediately following the homebound instruction agreement, those services were made up. Therefore, if there were services that should be compensated for, it is services that did not received, because of — Parents’ actions. To the extent that the Parents did not expend anything to acquire services during the 2012-2013 and 2013-2014 school years and declined a significant number of services proffered by the District, the Petitioners are not entitled to any compensatory education as a remedy for the District’s failure to provide FAPE during the 2012-2013 and 2013-2014 school years.
Cc.
As stated above, in a tuition reimbursement case, when the District does not offer a FAPE Petitioners bear the burden of demonstrating that the placement they found is appropriate. A private school placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school must offer an educational program which meets the student’s special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or develop its own JEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, “the same considerations and criteria that apply in determining whether the [s]chool [district’s] placement is appropriate should be considered in determining the appropriateness of the parents’ placement” (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student’s potential (Frank G., 459 F.3d at 364-65). When determining whether the parents’ unilateral] placement is appropriate, “Tulltimately, the issue tums on” whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Distr., 348 F.3d 513, 522 [6" Cir. 2003] [stating “evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA”]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401 [29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F,3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
iS a private language based special education school serving youngsters. It utilizes a positive reinforcement behavior system. In teaching reading it utilizes the Edmark Reading Program. was accepted at in July 2013 but did not begin attendance there until July 2014. ‘had a rocky start at and has engaged in some aggressive behaviors thereat. Testimony from was that hadaprogram set upsothat dealt with peers. testified that basically received 1:1 math and skills connected science.
stated that had draft goals and a service plan which was the functional equivalent of an IEP.
likewise testified that gets individualized attention but that . has engaged in hitting and shoving.
Even though there was testimony about the overall structure of One and that received individualized attention, there was absolutely no testimony as to how i provides educational instruction specifically designed to meet —_ unique needs. There was no testimony about any academic progress whatsoever that has made at '
- There was no testimony that _ receives a reading program distinct from that offered in the District. There was no testimony about ~ math program aside from receiving it on a 1:1 basis. There was no testimony that receives | | and, more importantly, Po therapy services, certainly, distinct services that needs. There was no testimony that” receives ae. that a provides Parent counseling and training. Additionally, in light of | problematic behaviors at there was no testimony or indication that there is any individualized BIP for . If, for no other reason, as the District’s program was herein deemed inappropriate because of a lack of an appropriate BIP, so must program for — be deemed inappropriate for lack of a unique behavior plan.
In order to meet their burden Petitioners have to develop a record with sufficient information to conclude that the unilateral program was appropriate for specific educational needs. Petitioners herein have not met that burden. While the record contains some testimony and evidence concerning the general program of education offered by oe there is little to no objective evidence of progress. Such a showing is preferable under the Law of the Second Circuit. See Frank G. v Bd. of Educ. of Hyde Park, 459 F.3d at 356, 364, 366 (2"4 Cir. 2006). The majority of the testimony presented by was subjective and did not entail any specific evidence regarding educational progress. In fact, it appears that I was displaying the same educational issues manifest while in the District’s program. Specifically, the behavioral issues which landed i in in the first instance were only being peripherally addressed. There is no evidence of what specific services were actually provided ‘toaddress disabilities. The Plaintiffs herein did not offer sufficient evidence to establish the appropriateness of placement at coe There is no evidence in the record of a particular plan by or objective evidence showing that the services of . . . provided have resulted in progress. All in all, the hearing record lacks sufficient information regarding how provides educational instruction specifically designed to meet . unique needs. Based on the record made by Petitioners, I cannot reach the conclusion that was an appropriate placement for . As such, I am precluded from ordering tuition reimbursement in this matter for monies spent by the family for unilateral placement at for the 2014-2015 school year.
D. Pendency
The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415{j]; Educ. Law §§ 4404(4], 4410[7][c]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Student X v. New York City Dep’t of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. v. O’Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. Jan. 18, 2005]). Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; see Wagner v. Bd. of Educ., 335 F.3d 297, 301 [4"TM Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and “strip schools of the unilateral authority they had traditionally employed to exclude disabled students ... from school” (Honig v. Doe, 484 U.S. 305, 323 [1987]; T.M., 752 F.3d at 170-71; Evans v. Bd. of Educ., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. v. Ambach, 612 F. Supp, 230, 233 | [E.D.N.Y. 1985]). The pendency provision does not mean that a student must remain in a particular site or location (Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751 [2d Cir. 1980]; see T.M., 752 F.3d at 171 [holding that “the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers while his administrative and judicial proceedings are pending. Instead, it guarantees only the same general level and type of services that the disabled child was receiving” ], citing Concerned Parents, 629 F.2d at 756).
Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement (Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase “then current placement” has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced (Murphy v. Bd. of Educ., 86 F. Supp. 2d 354, 359 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]). The United States Department of Education has opined that a student’s then-current placement would “generally be taken to mean current special education and related services provided in accordance with a child’s most current special education and related services provided in accordance with a child’s most recent [IEP]” (Letter to Baugh, 21] IDELR 481 [OSEP 1987]; see Susquenita Sch. Dist. V._Raelee, 96 F.3d 78, 83 [3d Cir. 1996]). However, if there is an agreement between the parties on placement during the proceedings, it need not be reduced to a new JEP, and it can supersede the prior unchallenged IEP as the thencurrent placement (Evans, 921 F. Supp. at 1189 n.3; see Letter to Hampden, 49 IDELR 197 [OSEP 2007]). Moreover, a prior unappealed IHO decision may establish a student’s current educational placement for purposes of pendency (Student X, 2008 WL 4890440 at *23; Letter to Hampden, 49 IDELR 197 [OSEP 2007]).
During a pre-hearing conference the Parents’ attorney agreed that there was no need for an interim pendency determination. Nevertheless, the amended due process demand calls for an Order that be deemed the pendent placement. There is absolutely no foundation for such a demand. The IEP at the time of the initial Due Process Demand recommended the Lene jlacement. Clearly, that was not an IEP representing the last agreed upon placement as the Parents never agreed to that. Pendency, which by definition is the last agreed upon placement was, in this case, either the interim agreement for homebound instruction or the 12:1:1 class at the ~ . Either way, there is absolutely no support for finding that is the pendency placement.
E. Transportation
The Petitioners?’ Due Process Demand requests an order that the District provide transportation to for the 2014-2015 school year. In the first instance, the family looked to a private transportation company to provide trips to and from For whatever reason, that arrangement did not work. However, the testimony did establish that the District did offer to provide transportation to _—to and from .. The Parents reluctance to accept the District’s offer seems to stem from an incident in January 2013. The Parents did provide testimony, and, pictures of bruises that allegedly received after being transported to the * in January 2013. The Parents questioned the adequacy of the District’s transportation services and shortly thereafter, for different reasons, began home instruction and did not receive transportation. Although the Petitioners may still have concerns about the adequacy of District transportation, based upon the injury allegedly received by _, there is no basis upon which to find that the transportation offered by the District to and from during the 2014-2015 school year was inappropriate. The District was willing to put an aide or monitor on that bus and did thereby offer appropriate transportation. As such, I am denying any award for transportation reimbursement for the 2014-2015 school year.
F. Equitable Considerations
The final criterion for a reimbursement award is that the parents’ claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 [“Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”]). The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified and whether the parent provided adequate notice]).
Given my finding that the Petitioners did not establish that was an appropriate program, there is technically no need for an equitable determination. Nevertheless, even if the Parents had established the appropriateness of ~~ . I would have denied or significantly reduced any award to Petitioners for equitable reasons. I find that the statement in the Petitioners’ Amended Due Process Demand regarding the retirement from . ‘ob in order to stay home with ~~ inconsistent with testimony that. retired as a result of an injury. Such discrepancy cannot be explained away as a mere “typoO”.
The Parent’s extended testimony that a person at the told that the placement was inappropriate and that the family should hire an attorney or advocate I find not to be credible.
Tellingly, no such person was ever produced for sworn testimony.
Testimony from the personnel that was difficult at the intake interview and that review of the program was but for a short period is indicia that the Parent did not give the District’s proffered placement appropriate consideration.
The -satimony about alleged conversations with ., regarding” view of the ~ placement did not comport with . ' sworn testimony during the hearing.
Finally, the Petitioners insistence that the representatives of and the | 3 not be present at a CSE meeting when those placements were to be discussed likewise demonstrates lack of cooperation with the District and an unwillingness to reach a reasoned decision on placement.
For all the above cited reasons, if it were necessary to make an equitable determination, my finding would have been a significant, if not a total, reduction in the Petitioners’ tuition reimbursement claim.
G. Rehabilitation Act
A Plaintiff aggrieved by a violation of Section 504 of the Rehabilitation Act may be entitled to compensatory damages. Butler v. South Glens Falls Central Sch. Dist., 106 F. Supp 2d 414, 420 (NDNY 2000). “To recover under the Rehabilitation Act, there must be evidence that: (1) the student is disabled; (2) the student is otherwise qualified to participate in school activities; (3) the school or the board received federal financial assistance; and (4) the student was excluded from participation in programs at, denied the benefits of, or subject to discrimination at, the school on the basis of her disability.” (Schreiber v. East Ramapo Central School Dist., 700 F. Supp 2d 529, 564 [SDNY 2010]); D.C. ex_rel. E.B. v. New York City Dept. of Educ., 950 F.Supp 2d 494, 518 [SDNY 2013]; Conway v. Board of Educ. of Northport-East Northport School Dist., 2014 WL 3828383 [EDNY 2014]).
A section 504 claim for relief involves discrimination based on more than a violation of the IDEA or an JEP. A “plausible discrimination claim may be inferred when a school district acts with gross negligence or reckless indifference in depriving a child of access to a FAPE.” Kalliope R. ex rel. Irene D. v. New York State Dept. of Educ, 827 F.Supp 2d 130, 143 (EDNY 2010)).
“The plaintiff is not required to show personal animosity or ill will. Rather, intentional discrimination may be inferred when a policymaker acted with at least deliberate indifference to the strong likelihood that a violation of federally protected rights will result from the implementation of the challenged policy or custom.” (Butler v. South Glens Falls Cent. School Dist, 106 F. Supp2d 414, 420 [NDNY 2000]).
“Intentional discrimination may be inferred when a defendant takes action to provide a disabled student with fewer services than had previously been deemed necessary, if plaintiffs can show that defendants had no proper or reasonable basis for implementing a policy limiting available services for disabled students, knowing it would result in a failure to adequately implement IEPs established to provide disabled students with an equal opportunity to a [FAPE].
(Conway v. Board of Educ. of Northport-East Northport School Dist., 2014 WL 3828383 [EDNY 2014])
There is nothing in the record that demonstrates that or § family members, were the subjects of discrimination. There is evidence that | may have been injured on the bus, and that was, in all likelihood, inappropriately suspended from school in February 2013. However, the record of that suspension was expunged and the District agreed that the problematic behavior was a manifestation of the child’s disabling condition. Although the District should probably have provided* an in-District program subsequent to a 5 day suspension, the family agreed to the homebound instruction and, in fact, kept the child home for a year and a half. During that entire time the District continued to provide services, when it was allowed to deliver special education and related services as per -IEPs. There was a time when services were missed, but they were made up. More importantly, there was a time services ended but the end of those services was a result of the Petitioner’s actions, not those of the District. There is nothing in the record that demonstrates that or the family were discriminated against in abrogation of their rights under the Rehabilitation Act.
H. Retaliation
Although the Petitioners’ Amended Due Process Demand demands an Order that” and Parents were retaliated against under the provisions of the IDEA, no such record was made. But for the 5 day suspension, the District has always offered services to . There has been a legitimate disagreement as to the appropriateness of the services proffered by the District and the education obtained by the family but there is no showing that the District manifested bad faith, eross indifference or in any way showed an unwillingness to attempt to educate albeit not in its own buildings. Nevertheless, the Parents did not demonstrate that they or their were the victims of retaliation.
CONCLUSION
Although I have found that the District’s IEPs for the 2012-2013, 2013-2014 and 2014-2015 IEPs were not adequately constructed to meet © educational needs, particularly .
behavioral anomalies, all of the remaining demands by the Parents, most importantly their demand for tuition reimbursement, are denied.
So Ordered,
Dated: December 28, 2015 wee .
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the Parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties’ petition for review shall be personally served upon the opposing party 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. (8 NYCRR §279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/ part279home.html
EXHIBITS
PARENTS’ EXHIBITS
A. Exhibit Date Description _ Pages Letter to July 25, 2011 2 pages
B. Email from to!, F Interim / Sick Visits and Photos May 2, 2013 2 pages
I. H Class Profile, 2013-2014 ~ 3 Class Profile, 2014-2015 3 pages
J. Emails between May 7, 2013 3 pages
K. Email from. April 30, 2014 2 pages
L. Email from March 6, 2014 1 page
M. Email from ! March 18, 2014 3 pages
O. Email from October 8, 2014 1 page
Q. P October 20, 2011 Confidential Chart [6] Email from I October 24, 2011
R. Email string; October 28, 2011 2 pages
Ss. Email from October 15, 2011 2 pages
T. Email from ° December 14, 2011 2 pages
U. Email string; I November 17, 2011
x. Email string; ' October 15, 2014 3 pages
Zz. Email string; October 22, 2014 2 pages
CC. Email from — December 7, 2011 1 page
HH. Academic Program I I] Curriculum Vitae for ° 2 pages
KK. JJ November 11,2014 Planning Team Cover Page 21 Progress Note for November 2014 2 pages
NN. MM Curriculum Vitae for. 12 Multi-Disciplinary Evaluation 9 pages
00. Excerpt of Composition Notebook;: 7 February 4, 2013 1 page DOE
PP. Attendance Report for 2012-2013 2 pages
QQ. Notes from" January 23, 2013 1 page
RR. Multi-Disciplinary Evaluation for February 7, 2014 16 pages
SS. Invoices and Payment Receipts May 28, 2014 20 pages
TT. School Transportation Proposal and Non-Cancelled check and sticky 2 pages
UU. Letter from ' 2 pages
1. School District Exhibits: In-Patient Evaluation Report from ) April 22, 2011 4 pages DOE
2. Email from — ~ ~ ] January 14, 2013 DOE
3. Incident Report by l January 5, 2014 DOE
4. Letter ] December 12, 2011 DOE
6. Email String; _ 7 May 29, 2013 30 pages DOE
8. HTA New York; billing September 19, 2013 23 pages DOE
9. HTA,; billing October 13, 2013 7 pages DOE
10. HTA; billing November 27, 2013 9 pages DOE
11. HTA; billing December 13, 2013 12 pages DOE
12. HTA; billing December 21, 2013 11 pages DOE
13. HTA; billing February 25, 2014 13 pages DOE
14. HTA; billing March 14, 2014 10 pages DOE
16. 15 April 4, 2014 HTA; billing 1] HTA,; billing May 20, 2014 11 pages DOE
17. HTA; billing June 13, 2014 11 pages DOE
20. 18 June 26, 2014 HTA; billing 1] 19 Blackboard Connect l Letter; Parent Invitation and Response Form February 5, 2013 DOE
21. Student Schedule 1 page DOE
23. 21A February 5, 2013 Email chain; Ly 1 22 May 14, 2014 Intake Observation Note for I 22A February 11, 2013 Email chain 5 Math Observation ( J May 14, 2014 1 page DOE
24. 23A February 20, 2013 Emails;, IEP Am. form 4 Letter from i 24A June 27, 2013 Letter from | from September 3, 2014 DOE
25. Behavioral Observation Form October 17, 2014 24 pages DOE
26. Internal Progress Note Meeting September 10, 2014 1 page DOE
27. Handwriting Informal Summary in Math = Joint Exhibits: September 14, 2014 1 page DOE
2. Exhibit Date Description _ Pages ] August 9, 2011 IEP 2011-2012 19 IEP 2011-2012 September 1, 2011 20 pages DOE
3. IEP 2011-2012 (corrected 01/26/12) December 19, 2011 20 pages DOE
4. Committee Meeting Info. April 10, 2012 6 pages DOE
5. IEP 2012-2013 May 21, 2012 19 pages DOE
6. IEP 2012-2013 February 20, 2013 19 pages DOE
7. IEP 2013-2014 May 29, 2013 19 pages DOE
8. IEP 2013-2014 December 13, 2013 22 pages DOE
9. IEP 2014-2015 June 6, 2014 19 pages DOE
10. Evaluation, November 30, 2011 6 pages DOE
11. November 201 I Progress Report Card 3 pages DOE
12. Functional Behavior Assessment, December 12, 2011 8 pages DOE
13. es: October 19, 2011 2 pages DOE
14. Evaluation, November 29, 2011 2 pages DOE
15. Evaluation November 28, 2011 1 page DOE
16. September 27,2011 (Evaluation 5 pages DOE
17. Social History Update December 11, 2011 5 pages DOE
18. ENE A cendum, May 2, 2012 5 pages DOE
19. Educational Evaluation, tw 20 November 2011 and March 2, 2012 Progress Report Card,, 2] May 21, 2012 | Evaluation March 26, 2012 DOE
22. Progress Report Goals Objectives ~~ June 22, 2012 DOE
23. Report Card 2012-2013 DOE
24. Letter; February 5, 2013 DOE
25. IEP Amendment Consent Form 26 February 25, 2013 Intake Packet fo) 27 Various Rejection Letters 28 Acceptance Letters from ‘ February 12, 2013 DOE
29. Evaluation, July 16, 2013 DOE
30. July 20, 2013 DOE
31. October 17, 2013 DOE
32. 33 August 5, 2013 valuation June 3, 2013 DOE
34. August 2013 DOE
35. Progress Report, August 9, 2013 DOE
36. December 13, 2013 DOE
37. 38 December 12, 2013 SEIT valuation September 24, 2013 DOE
39. Letter December 5, 2011 DOE
40. Letter 4] March 19, 2012 Letter March 8, 2012 DOE
42. Letter April 2, 2013 DOE
43. Letter * May 7, 2013 DOE
44. Letter May 15, 2013 DOE
45. Letter — Impartial Hearing Officer Exhibits: ] July 23, 2014 letter to the parties May 19, 2013 2 pages DOE
2. Email from Counsel for the School District August 1, 2014 1 page DOE
3. letter to parties August 4, 2014 2 pages DOE
4. letter to parties August 22, 2014 1 page DOE
5. Series of emails between! —__ and parties September 5, 2014 2 pages DOE
6. . Itr to District enclosing DDP Complaint and Addendum, with Proof of Service May 28, 2014 13 pages DOE
7. Itr to - In response to DDP Complaint and Addendum June 9, 2014 4 pages DOE
8. : ltr to District enclosing Amended DDP Complaint and Addendum, with Proof of Service July 30, 2014 15 pages DOE
9. _ /itrto.. in response to Amended DDP Complaint August 8, 2014 4 pages DOE
Footnotes
[130] [citations omi8tted]; 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 LRE (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][]J, 200.116[a][2]; 8 NYCRR 200.1f[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2s Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v.
[6] A Pay Requisition for Substitute Overtime and Special Duties 4