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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
August 8, 2014
September 17, 2014
November 12, 2014
December 12, 2014
May 28, 2015
June 24, 2015
August 18, 2015
August 19, 2015
October 6, 2015
Actual Record Closed Date: November 16, 2015
Hearing Officer: Diane Cohen, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 3, 2014
Attorney for Parents
Mother (T) District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 8, 2014
Attorney for Parents
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 17, 2014
Attorney for Parents
Mother (T) District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 12, 2014
Attorney for Parents
District Representative
Mother
(T) Social Worker — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 12, 2014
Attorney for Parents
District Representative
Mother
(T) Special Education Teacher — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 28, 2015
Attorney for Parents (T) District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 24, 2015
Attorney for Parents
District Representative
Mother
(T) School Psychologist — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 18, 2015
Attorney for Parents
District Representative (T) Mother
(T) Unit Coordinator — DOE
NAMESAND TITLES OF PERSONS WHO APPEARED ON AUGUST 19, 2015
Attorney for Parents
District Representative
(T) Director Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 6, 2015
Attorney for Parents
District Representative
(T) Mother Observer from — Parents
(T) — Parents
On June 24, 2014, I was appointed hearing officer pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), in this matter. I issued a findings of fact and decision on January 23, 2015. The matter was appealed to the State Review Officer. The State Review Officer remanded the matter to me to address the issue of whether the March 2014 IEP offered the student a free appropriate public education (a “FAPE”) (See Application of a Student with a Disability, Appeal No. 15-027).
We convened on dates in May, June, August and October 2015. The parties requested extensions of the decision date to allow for the hearing to be concluded. I granted those requests so that the hearing could be completed, after considering all relevant factors. More details are included in the evidence and transcripts.
ISSUES
Did the March 2014 IEP offer the Student FAPE?
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 FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A ., 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 Y ork City D ep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); M.H. v. New Y ork City D ep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); 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. Mamaroneck Union Free Sch.. Dist., 554 F.3d 247, 253 (2d Cir. 2009)).
The IDEA directs that, in general, a hearing officer’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" (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" (W alczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379).
Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim , 346 F.3d at 379; W alczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting W alczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd.
of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15). The
IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B . v.
Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192).
The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. 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. Bd. of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y.
2008)).
An evaluation shall include a variety of assessment tools and strategies, including information provided by the parent, to gather relevant functional, developmental and academic information about the student that may assist in determining whether the student is a student with a disability and the content of the student’s individualized education program, including information related to enabling the student to participate and progress in the general education curriculum (or for a preschool child, to participate in appropriate activities) (8NYCRR§200.4(b)(1)).
The IDEA provides that in developing an IEP, the CSE is required to consider a variety of assessment tools and strategies to gather relevant functional, developmental and academic information and not use any single measure or assessment as the sole criterion in developing an appropriate educational program (See IDEA §614 (b)(2)). The determination of the educational needs of the child is to be made by a team of qualified professionals and the parent of the child. (See IDEA §614 (b)(4)). In developing an IEP, the IEP team and other qualified professionals, as appropriate, must review classroom based observations in addition to other evaluative data (34 CFR 300.305 (a)(1)(ii)). The Regulations of the New York State Commissioner of Education provide that an observation of the student in the student’s learning environment must be performed to document the student’s academic performance and behavior in the areas of difficulty (8NYCRR§200.4(b)(1)(iv)).
Compensatory Education is an equitable remedy which involves a fact-specific determination to remedy a denial of a free appropriate public education (a “FAPE”). See
State Review Officer decision 13-218, for example. That case and others detail the extensive law on the subject.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404(1)(c); see M.P.G. v.
New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010)).
FINDINGS OF FACTS
The Student is an year, month old boy who has been classified as having . As of February 3, 2014, when he was years and months old, he was highly , had , a , and . He had been developing and and enjoyed and along with the . He , and , with in . He was not achieving progress during sessions (Exh. k, p. 1).
The Student displayed significant deficits with and .
He using . Problems in
: , ,
, , etc. He was able to
, and continued to require
(Exh. j, p. 1).
A psychoeducational evaluation was conducted in January 2013. The evaluator attempted to administer the . He was able to . No was observed. The
Student was s and as such the
. On a , the Student was able to
, and (Exh. h, p. 3).
As of February 3, 2014, the Student
, and . He did not , was not able to , or
(Exh. j, p. 2). He had made steady progress , but his performance highly depended on and his and he continued to present with difficulty . He continued to need and to be able to .
Assessing his skills was challenging. He had a difficult time and he became and exhibited which affected his
(Exh. j, p. 1). At that time he had grown in his ability to
, ,
, . He was slowly improving
in this ability to and had started
. (Exh. j, p. 2).
The Committee on Special Education (the “CSE”) convened on March 14, 2014 to develop an individualized education program (an “IEP”). The Present Levels of Performance and Individual Needs on the IEP were based on information provided by the school (T. 446)1. The Student’s strengths and preferences were based on information provided by the teacher and the Parent (T. 446). The Student’s was based upon the and the reports (T. 447).
information came from the reports and reports (T. 447).
At the time of the IEP meeting, the Student was a year old boy. He was working on a level in ( ) and (See Exh. j, p. 1). He was not able to , or or (Exh. j, p. 2). Although the IEP indicates that testing was done on the , and that the Student was in at the level, it is not clear what date this test was conducted (T. 489, Exh. B, p. 1). Based upon the Educational Progress Report from , dated February 3, 2014 (Exh. J) and the testimony that the Student’s level was level, and that the level was provided by the teacher, I find that the Student was at the level.
The Student had significant deficits with and which affected his , and . He struggled with and and had significant difficulties
(Exh. b, p. 1).
The goals on the IEP were first discussed with the Parent and the teacher and were based on the Student’s level of at the time and included whatever the school and providers felt was appropriate for the Student at that time (T. 448). The IEP includes goals relating to , , ,
,
, , , and ,
, , , and . The IEP does
include working with a (Exh. B, p. 2).
The and goals on the IEP were created for the special education teacher who could address and issues (T. 493).
The team did not conduct a or develop a because the teacher felt that the “ approach” to his was addressing the Student’s needs in the classroom (T. 453). The classroom teacher described the , discussed the ( and ) and told the team how the were addressed in the classroom and whether they were successful (T. 482).
The IEP recommends a class, with times per week for , times per week for , in a time per week for and a school year. are not included on the IEP.
The team did not include because at the time the IEP was developed, the school psychologist/district representative was under the assumption that was part of the program; that the parent was able to discuss all necessary needs with the teachers and the related service providers at school as needed. The Parent and the teacher had a rapport with the teacher at . She believed that was programmatic both at and in the recommended placement in (T. 456, 495-500). In the program, the parents always interact with the teachers and service providers and they provide information regarding what should be done in the in order to continue working on certain goals (T. 456-
457).
The IEP team relied upon the psychological evaluation, a social update, reports from related service providers and teachers. The teacher also attended the meeting (T.
435). The team listened to the Parents’ concerns and thoughts about the type of program the Student needed (T. 438). Based on the Student’s needs, the team felt that the Student needed (T. 440). They felt that a class in a school targets with similar deficiencies and addresses those needs (T. 458-459). They felt that in a class with students and teacher would provide sufficient support (as opposed to a class of children, teacher and as ) (T. 509).
The Student had grown in his ability to
, to , to
, and to . He was slowly improving in his ability to and and had started
. (Exh. j, p. 2).
On May 13, 2014, the Student was offered a placement at at (Exh.
28). is a program. Most of the students in the classes had a diagnosis of . All the teachers had some training in and used it whenever a student required it. Other methodologies used included , (T.
572-576). They have approximately every
weeks. There are on site who can
. They handle students with (T. 577). They use , and and . They set up and with the students. Several teachers are certified
(T. 578). varied in the classes (T. 587).
A psychoeducational evaluation was conducted by , on September 2, 2014, and a report written, dated September 15, 2014 (Exh. v).
Psychological and academic testing was administered. Dr. administered several
. The Student achieved
scores at the grade level in ; and at the level in (Exh. v, p. 4). The Student’s ability to (or
), was in the range and was a relative strength. He demonstrated some use of . He was unable to , but was able to (Exh. v, p. 4).
The CSE convened on October 1, 2014, and deferred the case to CBST for placement in a program with an staffing ratio.
times per week for ; times per week
for , in a ; times per week for ,
; and times per month for were recommended (Exh. r, pp. 9-10). include a for (Exh. r., p. 2).
The IEP includes goals relating to improving skills, and , improving skills, and increasing skills. goals are included relating to developing skills and improving skills (Exh. 21, pp. 5-9).
CONCLUSIONS OF LAW
Did the March 2014 IEP offer the Student a FAPE?
The March 14, 2014 IEP does not include any goals despite the Student’s deficits in . As of the date of the IEP meeting, the Student was on a level although he was nearly years old. The IEP also does not include goals. The failure to include any goals in , which is a fundamental educational need, when a student is grade level renders the recommendation inappropriate. I therefore find that the IEP was not reasonably calculated to provide educational benefits.
Evaluation
The Student is classified as having , and has , and issues which . is not a primary area of difficulty. Rather, his difficulty stems from and .
The IEP notes that the Student had significant deficits with and which affected his , and . He struggled with and and had significant difficulties
(Exh. b, p. 1).
At the time of the IEP meeting in March 2014, the Student was developing and skills and enjoyed and along with the
. He and
. He was growing in his ability to
, ,
,
. He had started
. The teacher conveyed a sufficient amount of information regarding the Student’s level at the time of the IEP meeting to enable the CSE to develop appropriate goals. Unfortunately, the CSE did not develop such goals.
Nevertheless, there was sufficient information and additional comprehensive testing in was not necessary.
A review of evaluations conducted after the IEP meeting in March 2014 as well as the IEP developed at the beginning of the 2014-2015 school year (in October 2014), confirm that sufficient information exists regarding the Student’s needs and that a comprehensive evaluation is still not needed.
A evaluation conducted after the IEP meeting in September 2014, indicates that the Student has a significant characterized by
,
, , and (See Exh. u, p.
1; Exh. r, p. 1).
During the 2014-2015 school year, the Student was attending pursuant to agreement of the parties.
The evidence shows that the Student was making progress in . His was grade level. However, this is due to his difficulties with . These difficulties are addressed in .
There is no reason to suspect that any additional testing would produce greater insights into the Student’s difficulties or that additional testing is necessary to provide an appropriate IEP.
An evaluation is required to gather relevant functional, developmental and academic information about the student that may assist in determining whether the student is a student with a disability and the content of the student’s IEP, including information related to enabling the student to participate and progress in the general education curriculum.
(8NYCRR§200.4(b)(1)).
The Parent is requesting a comprehensive evaluation so that she knows exactly where the Student stands on the level so that she can help him, or obtain help for him (T. 360-361, 369). I find that the psychoeducational evaluation and the updated teacher reports are adequate to provide the Student’s level to the Parent.
An evaluation is not designed to provide specific information related to what the Student is working on in school. The Parent can obtain this information from the teacher and can ask the teacher specifics that will help the Parent work with the Student at home. The Parent has, in fact, spoken to the classroom teacher, who has provided assistance to the Parent (T.
369).
The psychoeducational evaluation conducted at the start of the 2014-2015 school year (Exh. v) sets forth the Student’s abilities in , and . I believe that evaluation is adequate to assess the Student’s ability and together with the other information regarding the Student’s , and and , and the reports from the teachers and providers; provides adequate information to develop an IEP.
I therefore deny the request for a comprehensive evaluation.
Compensatory
Compensatory Education is an equitable remedy which is available to compensate for gross violations of FAPE. In the instant case, the Parents request compensatory education for the failure to recommend and provide . New
York State Regulations of the Commissioner of Education provide that must be provided to parents of children with “for the purpose of
”
8NYCRR§200.13 . means (See 8NYCRR§200.1 ).
I note that any deficiencies in the March 2014 IEP were ameliorated by the October 2014 IEP, which is not at issue in this hearing. Any failure to mandate on the March 2014 was short-lived, as it was addressed in the October 2014 IEP in which was added. The Parents had the right to contest that IEP if they disagreed with it, and the appropriateness of that IEP will not be addressed in this decision. Failure to provide on the IEP is rarely considered a denial of FAPE and rarely necessitates an award of compensatory education. (See A pplication of a Student with a Disability, Appeal No. 15-
033; See Also, A pplication of a Student with a Disability, Appeal No. 14-078 and A pplication of a Student with a Disability, Appeal No. 13-047). In the instant case, any failure was short-lived and would not have had a significant impact on the Student.
I also note that while the March 2014 IEP did not provide for , the program which the Student attended provided opportunities for the
.
The Mother testified that she did not receive during the summer of 2014 (T. 349) or during September, October or the first two weeks of November 2014 (T. 353). She testified that since November 12, 2014, she has been receiving for approximately rather than for as now set forth on the IEP (T. 355). She testified, however, that has an open door policy and that she had the opportunity to come in and speak with the teacher, the social worker and the psychologist. She has been taking advantage of that opportunity since November 2014 (T. 354, 355, 357). The Parent has always been aware of the open door policy (T. 366). The Parent has the opportunity to contact the school for regarding any new that arise (T. 372-373). She also has a telephone number that she can use to call the teacher to ask questions (T. 373). Although the Parent testified that she received less than hours per month of this year, she also testified that she had the opportunity to have longer sessions with the teacher if she so desired (T. 366-367). Thus, she could have received hours per month or more than hours per month if she had made additional appointments or phone calls. The Parents argue that the special education teacher is not qualified to provide . However, I find this unpersuasive. If the special education teacher and the related service providers are qualified to provide services to the Student, they are qualified to provide training to the Parents to support the provision of those services.
The Parent continues to have the opportunity at to contact the teacher, the social worker and the psychologist to receive any additional that she needs. In addition, if the Parents believe that the on the current IEP is inadequate to enable th e Parents to support the implementation of the IEP, the Parents can request a hearing with respect to that IEP.
I therefore deny the request for compensatory
Dated: November 17, 2015
DIANE COHEN, 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 ON JULY 3, 2014
Parents’ Exhibits Date of Exhibit No of Pages
A. Hearing request 6/20/14 6
B. IEP 3/14/14 14
C. IEP 2/4/13 12
D. Letter to Parents from 5/23/13 1
DOCUMENTATION ENTERED INTO RECORD ON NOVEMBER 12, 2014
Parents’ Exhibits Date of Exhibit No. of Pages
E. [Intentionally Omitted]
F. [Intentionally Omitted]
G. 1/25/13 2
H – L. [Intentionally Omitted]
M. Order on Pendency 7/8/14 6
N. Second hearing request 8/15/14 6
O. Due Process Response 8/18/14 3
P. Second Interim Order 8/26/14 4
Q. Interim Order 8/20/14 3
Joint Exhibits Date of Exhibit No. of Pages
h. Psychoeducational Evaluation 1/14/13 4
i. Social History Update 1/14/13 2
j. Educational Progress Report 2/3/14 3
k. Progress Report 2/3/14 3
l. Progress Report 2/3/14 2
m – q. [Intentionally Omitted]
r. IEP 10/1/14 14
s. 9/15/14 5
t. 9/15/14 4
u. evaluation 9/4/14 6
v. Psychoeducational evaluation 9/2/14 9
w. evaluation 9/2/14 5
x. Due process response 6/25/14 4
DOE Exhibits Date of Exhibit No. of Pages
1. Evaluation 1/14/13 3
2-3. [Intentionally omitted]
4. Progress Report 6/15/14 1
5. [Intentionally Omitted]
6. Quarterly Progress Report 6/9/14 1
7. [Intentionally Omitted]
8. progress report 6/2/14 1
9-15. [Intentionally Omitted]
16. Consent to Assess 8/26/14 1
17. Meeting Notice 9/5/14 3
18. Meeting Notice 9/23/14 3
19. [Intentionally Omitted]
20. Meeting Notice 10/9/14 3
21. IEP 10/28/14 15
22. Authorization to Attend 10/28/14 3
23. Prior Written Notice 10/28/14 4
DOCUMENTATION ENTERED INTO RECORD ON DECEMBER 12, 2014
DOE Exhibits Date of Exhibits No. of Pages
24. 10/28/14 IEP – Corrected 12/11/14 16
25. Prior Written Notice with Correction 12/11/14 4
26. Corrected Notice 12/11/14 1
DOCUMENTATION ENTERED INTO RECORD ON JUNE 24, 2015
DOE Exhibits Date of Exhibit No. of Pages
27. Prior Written Notice 5/13/14 4
28. School Location Letter 5/13/14 1
29. Acceptance Letter from 6/21/13 2
DOCUMENTATION ENTERED INTO RECORD ON AUGUST 18, 2015
Parent Exhibits Date of Exhibit No. of Pages
R. Progress Report 6/15/15 6
ADDITIONAL DOCUMENTATION
IHO Exhibits Date of Exhibit No. of Pages
I. Order on Pendency 7/8/14 6
II. Interim Order 8/20/14 3
III. Second Interim Order 8/26/14 4
IV. Emails among IHO and parties 6/25/14-9/16/14 11
V. Emails among IHO and parties 6/25/14-9/17/14 13
VI. Emails among IHO and parties 9/16/14 – 10/8/14 8
VII. Emails among IHO and parties 10/8/14 7
VIII. Email from IHO to parties 10/26/14 1
IX. Emails among IHO and parties 10/8/14 – 1/9/15 8
X. Parent’s Closing Brief 1/16/14 10
XI. DOE’s Post-Hearing Summation 1/16/15 11
XII. Emails among parties and IHO 6/17/15 – 11/14/15 6
Relating to case extensions
XIII. Parent’s Closing Brief 11/13/15 15
XIV. DOE’s Post Hearing Summation 11/15/15 7
Footnotes
[1] The Parents challenge the reliability of this witnesses’ testimony (T. 552). However, I find no reason to discount the credibility of the witness whether due to demeanor (over the telephone) or the content of the testimony. The witness testified that she recalled the meeting because she had a dual role as district representative and school psychologist and because the meeting was longer and more detailed than the October 2014 meetings, because the Parent was dissatisfied and they went through the Student’s in detail (T. 449- 550). not include any goals. While there is a goal relating to (Exh. B, p. 8), this does not target directly. It targets in general (T. 525). The Student had deficits in and (T. 610).