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FINDINGS OF FACT AND DECISION
Case Number: 164182
Student’s Name:
Date of Birth:
District: I I
Hearing Requested By: Parent
Date of Hearing: June 6, 2017
August 30, 2017
October 18, 2017
January 24, 2018
Actual Record Closed Date: February 23, 2018
Hearing Officer: Martin Kehoe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 6, 2017
Law Clerk — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 30, 2017
Attorney (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 18, 2017
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 24, 2018
Attorney — Student
Parent — Student
(Via Telephone) — Student
District Representative — DOE
Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student.
The Parent filed a complaint notice on October 28, 2016 (EX. M) and an amended complaint notice on March 3, 2017 (EX. N) and a hearing was held on January 4, 2017, June 6, 2017, August 30, 2017, October 18, 2017, and January 24, 2018. On October 18th, the District rested its case, and upon motion of the Parent, I ordered an Independent
Evaluation.
Parent’s Position
In the amended complaint notice, the Parent alleged that the District failed to provide the Student a free appropriate public education (FAPE) for the 2015/16 and 2016/17 school years, and is seeking evaluations,
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, a reconvene of the
Committee on Special Education (CSE) to develop an appropriate Individualized Education Program (IEP) and to discuss placement in an appropriate specialized school and deferral to the Central Based Support Team (CBST).
District’s Position
The District rested without presenting evidence or witnesses to defend their IEP (Tr. 50).
Student History
At the time the initial complaint notice was filed, the Student was (EX. H).
The Student’s disability classification is (EX. A, EX. B, EX. I). The Student was out of school following and did not receive home instruction from March 21, 2016 until November 2016 (EX. H). The Student has a diagnosis of
11
(EX. Q). The Student presents with (EX. L).
The at the testified about her evaluation of the Student by affidavit (EX. K).
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Legal Background
The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”).
20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:
- (A) have been provided at public expense, under public supervision and direction, and without charge,
- (B) meet the standards of the state educational agency,
- (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and
- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9). [1]
A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).
The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).
In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.
Analysis
The Parent testified through affidavit that the Student did not make any progress during the 2015/16 school year and regressed (EX. O). She said that after , she requested home instruction, but the District ignored her request, and the Student did not receive any instruction from the time of until he went back to school in November
2016. (EX. O). She further testified that the Student did not receive related services from September 2016 through November 2016 (EX. O). The Parent claims the District failed to fully evaluate the Student during the 2015/16 and 2016/17 school years (EX. O) and that the Parent never received the recommended on the Student’s 2015/16
IEP (EX. O).
The District bore the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the DPC. N.Y.
Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No.
(“SRO No.”) 16-028; 13-200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District).
See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir.
May 20, 2016).
In this case the District rested without introducing evidence and conducted no cross-examination of witnesses. Factual allegations in the complaint notice for which the District bears the burden of proof are deemed admitted if the District fails to address them at the hearing. See SRO No.15-011 (where District conceded and failed to address any allegations, it was deemed to admit deficiencies in IEP); SRO No. 14-179 (same); SRO No. 01-044 (same).
Having found that the District failed to defend against the allegations levied by the Parent, I move to consider the recommendations given from those who evaluated the Student to inform the remedy.
Recommendations
The recommended
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(EX. Q). He also noted that the Student’s
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The at the recommends
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(Ex.
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The evaluator who conducted the Student’s evaluation recommended (EX. L).
In the classroom evaluation by the , the determined that the Student could benefit from (EX. G).
The Parent testified through affidavit, “
”
(EX. O, p. 7).
Remedy: Compensatory Education
The Parent has requested (EX. N, p. 9).
Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and. . . mould each decree to the necessities of the particular case”)
(quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].
In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 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. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]).
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"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th 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 [6th 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, 525 [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"]; Parents of Student W. v.
Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014.
After consideration of the extensive deprivation of education benefits, I find the Student requires a placement consistent with the findings in the Evaluation (Ex. Q). I find the Student also requires further evaluations going forward. This I leave to the discretion of the CSE informed by the instructors at the anticipated placement.
I have reduced the award regarding the remaining requests for compensatory education for three reasons. One, I am confident in the CSE and their ability, guided by the Evaluation (Ex. Q) and the other evaluations developed over time, to make good decisions about the Student’s needs and related services going forward. Two,
I am persuaded by testimony that the Student’s placement in the proper learning environment, called for in my order, will enable the Student to make progress. Three, I recognize there are a finite number of hours per week, and the demands of the Student’s school year along with significant hours of tutoring, may be daunting. Inherent limits of stamina, pace, concentration and the like could easily place an unintended burden on the Student and the family. I attempt to mitigate these unintended consequences with my order.
In conclusion, I issue the following orders:
- A remand to the CSE3 with the following directive: This matter shall be deferred to the CBST with a copy of this order, copies of the evaluations
3 I respect the CSE as an independent, deliberative body with unique experience in education. In this case, however, I am using this order to effectuate the equitable remedy of a deferral to the CBST.
ordered through the proceedings of this case, and any other evaluations it deems to be relevant for determining placement at a state-approved non-public school4, consistent with the findings made in this Decision. Placement shall be effectuated within ninety (90) days of this order.
- The District shall provide a bank of for in this case. The bank of hours shall expire six months from the date of this Decision.
- The District shall provide a bank of
, to be delivered on a basis by a provider of the Parent’s choosing, at an enhanced rate. The bank of hours shall expire two years from the date of this Decision.
- The District shall provide a bank of , to be delivered on a basis by a provider of the Parent’s choosing, at an enhanced rate. The bank of hours shall expire two years from the date of this Decision.
- The District shall provide a bank of
, to be delivered on a basis by a provider of the Parent’s choosing, at an enhanced rate. The bank of hours shall expire two years from the date of this Decision.
- The District shall provide a bank of , to be delivered on a basis by a provider of the Parent’s choosing, at an enhanced rate. The bank of hours shall expire two years from the date of this
Decision.
Dated: March 6, 2018
MARTIN KEHOE, ESQ.
Impartial Hearing Officer
4 My order anticipates a school that is a special education school similar to the program that was identified by the . (Ex. Q) To the extent that the CSE/CBST would like clarification from the , I direct afund to pay
. It appears from the record the CSE may wish to also obtain a evaluation to determine if . (See, Ex. Q. p.13) Additionally, the CSE should consider the appropriateness of
.
MK: n
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A IEP, 5/9/15, 20pp
B IEP, 11/2/15, 21pp
C 7 progress Report, undated, 2pp D , 3/21/16, 1pp
E , 3/21/16, 5pp
F Letter, 10/10/16, 1pp
G , 1/31/17, 1pp
H , 3/1/17, 2pp
I IEP, 3/1/17, 18pp
J , 4/4/17, 17pp
K , 4/28/17, 8pp
L , 6/12/17, 7pp
M Impartial Hearing Request,, 10/28/16, 7pp
N Amended Request for Impartial Hearing, 3/3/17, 9pp
O Affidavit, 11/5/17, 7pp
P Affidavit, 12/22/17, 10pp
Q Evaluation, 12/27/17, 14pp
Footnotes
[1] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).