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FINDINGS OF FACT AND DECISION
Case Number: 164236
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: December 8, 2016
January 20, 2017
January 26, 2017
February 13, 2017
February 14, 2017
March 22, 2017
April 26, 2017
Actual Record Closed Date: July 12, 2017
Hearing Officer: Andrea R. Cohen, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 8, 2016
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 20, 2017
Attorney (Via Telephone) — Student
Attorney (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 26, 2017
Attorney (Via Telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 13, 2017
Attorney — Student
Student
(Via Telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 14, 2017
Attorney — Student
Parents
(Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 22, 2017
Attorney — Student
(Via Telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 26, 2017
Attorney — Student
(Via Telephone) — Student
(Via Telephone) — Student
Attorney — DOE
On November 4, 2016, this Request for a Due Process Hearing (“DPR” or
“Complaint”) against the New York City Department of Education (“DOE”) was filed on behalf of Petitioners, Student (“ ”) through his Parent (“ ”) by their attorney.
Petitioners alleged the DOE failed to provide with a Free and Appropriate Public Education (“FAPE”)1in violation of federal and New York State law. I was appointed as Hearing Officer on November 7, 2016.
An Interim Order (“First Interim Order”) dated December 9, 2016 addressed
Petitioner’s motion regarding ’s commute (attached hereto as IHO Exhibit I).
A second Interim Order dated February 22, 2017 (“Second Interim Order”)
addressed Petitioner’s motion to transferred to , (“ ”)
during the pendency of this matter (attached hereto as IHO Exhibit II).
A third Interim Order, issued April 4, 2017 (incorrectly dated March 4, 2017)
(“Third Interim Order”), addressed a request made by Petitioner during the March 22, 2017, hearing, for an interim order to have the evaluations set forth in the Complaint be commence immediately (attached hereto as IHO Exhibit III).
PROCEDURAL BACKGROUND
See the long, extensively detailed statement as to the background and proceedings in this matter through February 22, 2017, set forth in IHO Exhibit II. This history is briefly noted below:
On November 4, 2016, Petitioner filed this Request for a Due Process Hearing (“DPR” or “Complaint”).
A Pre-Hearing Conference (“PHC”) was held on November 29, 2016.
Petitioner advised, inter alia, that this then student was
.
1 The complaint alleges the DOE failed to, inter alia, appropriately evaluate , failed to provide an appropriate educational plan and placement for Case No. 164236
By Interim Decision and Order dated December 9, 2016 I granted
Petitioner’s subsequent motion to
.
Hearings were held on January 20, 2017, January 26, 2017. Discovery and subsequent extensive discovery disputes were addressed. Hearing set to continue on February 13 and 14.
On February 10, 2017, Petitioner submitted second Motion for Interim
Relief seeking an order to have the student immediately transferred to , (“ ”) during the pendency of this matter.
On Friday afternoon, at 4:00pm, February 10, 2017, by e-mail, the DOE notified this hearing Officer that it had determined it would be willing to commence settlement negotiations with petitioner; that the DOE concedes prong I and that it would not, at the Monday, February 13, hearing, present a defense to Petitioner’s allegation that the DOE failed to provide a FAPE to
On February 13, 2017, the motion was argued and the hearing on the issues commenced. The motion was granted by my Second Interim Order dated February 22, 2017.
On March 22, 2017, hearing on the merits resumed. Additionally, Petitioner moved for a third interim order directing the DOE to immediately authorize the commencement of three of independent educational evaluations
(“IEE’s”) identified in the Complaint.
I issued a Third Interim Order (April 4, 2017) granting the relief sought.
Hearing on the merits concluded on April 26, 2017.
FIRST, SECOND AND THIRD INTERIM ORDERS INCORPORATED HERETO
I incorporate into this document my First Interim Order, Second Interim Order and
Third Interim Order (IHO Exhibit I; IHO Exhibit II; IHO Exhibit III).
The long, extensively detailed provisions as to the background and proceedings, evidence, testimony and applicable law set forth in these three documents will not be duplicated here.
However:
Interim Orders - Findings, Decisions And Orders
The Findings, Decisions and Orders issued in Interim Orders 1, 2, and 3 set forth the facts and history as determined by this Hearing Officer. This material has been reviewed and utilized by this Hearing Officer to form this Final
Decision. Accordingly, they are of immediate relevance to this final decision and have been duplicated and attached hereto as Appendices 1,2, and 3.
SUMMARY OF MATTERS PREVIOUSLY RESOLVED 2 (See interim orders)
was born . At , he was diagnosed with an and received . The DOE placed in the (“ ”) for for the 2015/2016 and 2016/2017 school years. was the only program that the DOE and the Parent could find that would accept His current IEP is essentially similar to his initial IEP.
.
.
Petitioner submitted written motion and brief to . Both parties presented oral argument at hearing.
In December, 2016, I issued the First Interim Order, directing the DOE to . I found Petitioners’ unrebutted allegations and statement of law true and valid and persuasive; the child was suffering significant harm every day; and that (See Interim Orders)
. Additionally, I found the equities to strongly favor the Petitioner and disfavor the DOE. Further significant details are set forth in Appendix 1.
The DOE continued to assert it needed more time to complete its investigation to determine whether or not to defend its IEP. Accordingly, Petitioner continued to prepare to defend the allegations set forth in the DPR.
In February, 2017, the Parent learned of an available placement in and submitted a written Motion to have immediately transferred to . Upon receiving Petitioner’s motion, the DOE advised it would not present a defense to Petitioner’s allegation that the DOE failed to provide a FAPE to No facts had changed or come to light since November. This concession could have been made weeks earlier and the matter could have been heard and resolved weeks earlier.
The motion was argued and testimony and exhibits were produced at the February 13, 2017 hearing. Additionally, Petitioner advised that the DOE had not yet complied with the December 2016 First Interim Order to provide appropriate . The DOE submitted a written brief in opposition on February 15.
I issued the Second Interim Order (February 2017) granting Petitioner’s
Motion to immediately place the child into : I found the current placement, , was not providing the placement program, staffing, classmates, materials or services mandated by the DOE’s most recent IEP; that could provide the placement program and services mandated by the DOE. Additionally, I held this decision to be a pendency determination; i.e., a determination limited to identifying the facility where, during the pendency of this matter, would continue to receive the educational plan set forth in his IEP. (“This is a determination identifying the facility where, during the pendency of this matter, will receive the placement education and services set forth in his IEP.” Second Interim Order page 23).
Additionally, I determined this pendency decision to be within the jurisdiction of an Impartial Hearing Officer. The matter is not resolved; Petitioner has not received the ultimate relief sought, specifically: a determination as to what constitutes an appropriate program for going forward; an appropriate IEP that includes an appropriate program and placement; compensatory services; and declaratory relief.
In March, parent moved for further evaluations. I issued the Third Interim Order granting the relief Petitioner sought. I found, inter alia, that the DOE had never satisfied its continuing obligation to conduct sufficient, appropriate evaluations of to determine the nature and extent of the special education and related services that this student needs to benefit from an education; Petitioner had produced sufficient, uncontroverted evidence and testimony as to ’s significant disabilities and deficits and the appropriateness of the evaluations sought; and that the DOE did not have the sufficient appropriate information to fashion an appropriate IEP. Moreover, I found the DOE’s own arguments regarding equities underscored the large degree to which the equities disfavored the DOE.
MATTERS ADDRESSED IN THIS FINAL DECISION
REMAINING ISSUES
The terms to be included in an appropriate IEP.
Compensatory services.
Whether the DOE violated section 504 and the idea by engaging in predetermination and applying blanket policies.
REMEDIES
Petitioner seeks, inter alia, an Order directing the DOE to:
(a) develop an IEP for that includes the services recommended by the witnesses and evaluations presented at hearing;
(b)compensatory education and services;
(c) Declaratory relief.
WITNESSES
– ; was ’s at from September, 2016, through December, 2016 -
Dr. – ;
; testified by telephone on behalf of Petitioners.
, the who conducted the
Evaluation dated December, 11, 2016, (Exh. P8) testified by phone on
3/22/17 (TR. 537-578).
– ; (Tr. 264; Tr. 263-64) -
Parent “ ”- Testified in person 2/14/17 (TR. 447-488). - Parent testified credibly, and knowledgeably; and was responsive to questions and able to provide additional details and clarification when asked.
TESTIMONY AND EVIDENCE
The DOE has conceded it has failed to provide a FAPE to for the 2016/2017 school year. Furthermore, the DOE has made no assertion or argument as to its position on several of the matters at issue; has submitted no testimony or evidence to support any argument it has made, and no testimony or evidence to rebut the evidence and testimony submitted by Petitioner.
Petitioners have offered sworn testimony by credible witnesses and exhibits to support each element of their arguments.
There are no outstanding objections to Petitioner’s exhibits and they have been entered into the record.
The uncontroverted facts as presented at hearing and in all papers submitted by Petitioners are summarized in the following paragraphs.
has been diagnosed with . Ex. P6-6. His
ability to learn is severely impeded by many deficits, disabilities and behaviors:
(Tr. 447, Ex. P1), a
. P6-3. ( Tr.
546); (Tr. 546); ( Tr. 548-549).
(Tr. 546-547, Ex. P8-2);
. Tr. 548.
When was , he was evaluated by the
. The evaluators diagnosed him with and began to received in the form of . The hours were split between home and center. Tr. 449. While in the program, developed the following skills:
-- all skills he had previously
acquired in . Tr. 454.
When , he transitioned into the CPSE (November
2015) (Tr. 450-52). At the initial CPSE IEP meeting, the Parent shared all her knowledge of ’s condition, the services, and the progress he had been making.
Id. The CPSE team did not recommend continue to receive services. Tr.
450-51; it placed him in (“ ”) on
November 9, 2015. Tr. 450-452. began to regress upon placement at and lost all the above-mentioned skills. Tr. 454.
In early 2016, Parent visited ’s classroom in . She testified that ’s class was very poorly run;
. Tr. 455.
. Tr. 481-83.
Parent had privately evaluated at the
, Tr. 457; see also Ex. P-F
In November 2016, the Parent arranged to have evaluated by Dr.
, (“Dr. ”). Tr. 469, Ex. P-I.
On December 11, Parent had the child undergo an evaluation conducted by (“ ”), . (Exh. P8).
Parent repeatedly advised the DOE of the positive effect had on during the time he received early intervention services; that since he was placed by the DOE in the he had lost those skills and he had gained no new skills.
Additionally, Parent provided the DOE with all the independent evaluations, all of which strongly recommended , as the only program that would enable to take advantage of an education. DOE asserted it had reviewed all relevant information, that was making progress, and made no change in services. Tr. 398, 399; 450-452; 454;455-457; 459-460; 461; 462.
, testified on behalf of regarding, inter alia, the appropriateness of the IEP’s developed by the DOE.
( ; ’s at from
September, 2016, through December, 2016; testified in person 2/14/17 (TR. 317-410
). She testified credibly and knowledgeably about her professional background; her testimony as to her education and professional experience showed her to have the appropriate expertise and competency for testifying in this matter; she was personally familiar with and spoke credibly and knowledgeably about her experience with him; she was responsive to questions and able to provide additional details and clarification when asked.
Her testimony covered ’s
. Ms. testified that the DOE’s IEP’s
and the progress reports in ’s file at misrepresented ’s abilities and misrepresented his progress at ; that the recommendation to and the annual goals were inappropriate as they called for prerequisite skills that did not possess (e.g.:
); and that his functional levels remained unchanged between August 2016 and December of 2016. TR. Tr. 365-66; see also Ex. P3 p. 4; Tr. 366-67; see also Ex. P3.; Tr. 367-68. Tr. 368-70.
In her testimony, Ms. went over each of the goals set forth in ’s IEP. For each goal, Ms. provided a description of the goal, identified the underlying skills needed to achieve the goal, and testified that lacked the specific underlying skills. Tr. 376-787; see also Ex. P3 p. 13.
Ms. identified appropriate academic needs and goals for as:
. Tr. 387-88. Regarding school setting, Ms.
wrote in her report that benefits from and that for most of the school day, he requires
. Id.
At the December 2016 IEP meeting, Ms. also provided an opinion on for and said that the issues that faces and the challenges he needs to overcome to make progress with those issues, such as , cannot be adequately addressed in school. Tr. 399.
Ms. recommended that for to make progress in school, he absolutely needs in the classroom because he needs
. Tr.
399-401.
At the hearings, Parent offered the evaluation reports provided by ; Dr. ; and , ; which were all accepted and marked as exhibits and entered into the record. Parent also produced Dr.
; and , ; as witnesses. Petitioner relies on this testimony and evidence to show ’s levels of functioning and his educational needs, and to identify the education placement and services that must be provided to in order to enable to access, and benefit from, his education.
Parent had privately evaluated at the
(“ ”), a
, founded by . Dr.
is recognized in her field as an expert in
. She is also the of
,
, and the
.
conducted a two-part evaluation on February 8, and March 14, 2016. Tr. 457-58. At the conclusion of the evaluation, Dr.
strongly recommended that receive
if he had any chance of progressing. Tr. 458. Further, Dr. stated that she was not aware of any public school in that offered the types and level of therapy that desperately needs.
Specially, Dr. said that required
Id. Dr. recommended that be enrolled in a program and receive . P6-7. She further recommended that the program should be supervised by a and the goals should be based on his performance on the . P6-7. Dr. recommended in addition to the school program. Ex. P6-7. Dr. recommended that the
“
” Ex. P6-7. She further recommended that the
goals of the program should be interfaced with what he is learning in school.” Id. Dr. recommended that receive
Pet. Exh. H p.7-8.
In November 2016, the Parent arranged to have evaluated by Dr.
, (“Dr. ”). Tr. 469, Ex. P-I.
Dr. (
) testified by telephone on behalf of Petitioners. Dr.
testified credibly and knowledgeably about his specialties and was responsive to questions and able to provide additional details and clarification when asked. His testimony as to his education and professional experience showed him to have the appropriate expertise and competency for testifying in this matter (TR 598-
603). He conducted an evaluation for (TR 603-608)and spoke credibly and knowledgeably about ’s needs, program and progress. (April 26, 2017 Transcript
598-637).
In his report (Petitioners’ Exhibit I, page 1), Dr. ’ noted that
. TR
614-615; 619. . Id.
Dr. ’ evaluation echoed the recommendations made by Dr.
– he also found that
. Id. Dr. further recommended that he undergo an evaluation for . Tr. 470. Parent Exh. B- 5. At the December 2016 IEP meeting, Dr. (participating by phone) went over his evaluation and presented his recommendations that needs . Tr. 472. Parent Exh. B- 6
Dr. ’ relevant testimony is set forth on pages 18-21.
Based on his entire assessment, including the , observations, and interviews, Dr. recommends that to address ’s severe deficits he needs
, , and ’s
should follow the goals Dr. laid out on pages 6 through 9 of Exhibit P-I. Tr. 622-24.
Parent had undergo an evaluation conducted by , on December 11, 2016.
( ) conducted the
Evaluation dated December, 11, 2016, (Exh. P-H)) testified by phone on
3/22/17 (TR. 537-578). He testified credibly and knowledgeably about his professional background; his testimony as to his education and professional experience showed him to have the appropriate expertise and competency for testifying in this matter; he was personally familiar with and spoke credibly and knowledgeably about his experience with him; he was responsive to questions and able to provide additional details and clarification when asked.
Mr. testified that he earned his master’s degree in from ; has been a New York State licensed since 1992 and is certified in the ,
, and
. TR 537.
Mr. conducted an evaluation using several evaluative tools, including the . Exh H-1. Mr.
found that among other deficiencies,
. Additional deficiencies included, but were not limited to,
.
Mr. ’s report, Parent’s Exhibit H, includes very detailed descriptions of ’s severe limitations (p. 3-9).
Mr. ’s testimony confirmed in greater detail, the evidence and testimony set forth in The Second Interim Order, that does not have the skills needed to benefit from the program offered by the DOE. Mr. testified that
. Mr.
’s testimony was supported by the results of the Evaluation he had conducted and that he had set forth in his 10 page Report. (Parent
Exh. H).
Mr. recommended that receive
. Parent Exh. H
The parent produced to testify as to the ability of to provide the education and services that have been recommended by all evaluators.
(
(Tr. 264; Tr. 263-64)) -testified by phone for Petitioner on February 13, 2017
(TR. 262-302), and on April 26, 2017 (TR. 639- 667). She testified credibly and knowledgeably about her professional background and her testimony as to her education and professional experience showed her to have the appropriate expertise and competency for testifying in this matter (TR 263-266). Ms. was personally familiar with and spoke credibly and knowledgeably about her experience with him; she was part of the team that conducted ’s intake assessment
(TR 272-277) and she continues to see him now that he is enrolled in 642).
Ms. spoke credibly and knowledgeably about ’s needs, program and progress. She was responsive to questions and able to provide additional details and clarification when asked.
works for as the . Tr. 264.
As the , she oversees all of ’s clinical services including . Tr. 265-66. Petitioner’s brief , pages 14-17, accurately sets forth Ms.
s testimony as is copied in its entirety below (Ms. is referred to as
).
.
STATEMENT OF APPLICABLE LAW
See the long, extensively detailed Statement of Law, set forth in IHO Exhibit
II. The determination of this motion is based upon the same law set forth therein. The text of the Second Interim Order will not be duplicated here.
STATEMENT OF A DDITIONAL LAW
In the absence of a response, the facts alleged in the petition will be deemed to be true unless found to be inconsistent with the evidence in the record. (8 NYCRR
279.3; SRO No. 01-036; 01-044; 02-039).
Compensatory education and services are equitable remedies intended to “make up for” the denial of a FAPE. P. ex rel. Mr. & Mrs. P v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (citations omitted). “[t]he ultimate award [of compensatory education] 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.” Doe v. E. Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015); P. ex rel. Mr. & Mrs. P v. Newington Bd. of Educ., 546 F.3d at 123. Upholding Reid ex rel. Reid v. D.C., 401 F.3d 516, 524 (D.C. Cir. 2005). The standard for equitable relief is different than the standard for reviewing an IEP prospectively in a tuition case:“[w]hereas ordinary IEPs need only provide “some benefit,” compensatory awards must do more—they must compensate.” Reid, 401 F.3d at 524. The compensatory remedy must be “appropriate in light of the purpose of the Act.” E. Lyme Bd. of Educ, 790 F.3d at 454 (Citing Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, (1985)).
FINDINGS AND DECISION
Upon testimony and exhibits presented to me during the hearings, and upon my subsequent review of the exhibits and transcripts, and my review of all papers submitted by the parties, I find it is far more than reasonable to accept Petitioners’ statements as true. Indeed, it would be unreasonable to not so accept Petitioners’ as true.
I find that the DOE failed to provide with a FAPE for the 2016/2017 school year.3 The testimony of all four professionals, and all evaluations and reports submitted by Petitioners are noteworthy for their consistency: they all identified the same disabilities and deficits; they all found these disabilities and deficits to be severe; they all recommended that be enrolled in programs; and they all opined that such a program would be the only way to give the opportunity to access and benefit from his education. The DOE failed to appropriately evaluate and failed to appropriately consider the numerous evaluations Petitioners had provided. The DOE provided neither the quality nor the quantity of needed. Ms. ’s testimony showed that the program the DOE provided through met none of ’s needs.
I find ’s disabilities and deficiencies to be very extensive and very severe; that his educational needs are extensive; and that he must be provided with the services recommended in order to become able to access and benefit from an education.
I find has long and obviously languished under the program provided by the DOE. Moreover, I find that the DOE long knew, or should have long known that could not and was not able to access the education provided by the DOE; that he could not derive any educational benefit from the program provided by the DOE; and that he had regressed under the program provided by the DOE.
The evidence supports a finding that the DOE’s own records had long and clearly indicated the DOE never had the ability to show that its IEP program and placement was reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364; see also, Gagliardo, 489 F.3d at 112. Parent continually brought ’s deficiencies, regression and lack of progress, and success with to the attention of the DOE, and subsequently commenced this November 2016, complaint. She obtained and submitted numerous evaluations and had Ms.
and Dr. participate in the IEP meetings. The DOE continued to assert that was progressing at the and that no further services were 3 The DOE had placed into a facility, the , that was found to be unable to provide the education and services mandated by the DOE’s own IEP. See the Second Interim Order.
appropriate. Yet, not until February 10, 2017, the eve of hearing when the DOE was expected to commence its case, (present opening remarks; call its witnesses; offer evidence) did the DOE advise it would not defend its IEP. The DOE had no new information since the December IEP meeting.
I find that the DOE had no “objective evidence” that was likely to progress under any IEP proposed for the 2016/2017 school year. Indeed, the record contains objective evidence that should have alerted the DOE that had regressed under its IEP program and placement and that would continue to regress, and make no progress if placed in for the 2016-2017 school year.
I find the DOE lacked sufficient information to create an appropriate IEP. I find the DOE did not conduct sufficient evaluations, and, significantly, did not consider evaluations provided by the parent. Thus, the DOE did not have the relevant functional, developmental, and academic information to determine the nature and extent of the special education and related services that needs and to develop an appropriate IEP.
Significantly, the DOE has still not reviewed ’s records, nor has it developed or offered an appropriate IEP for The burden to find an appropriate placement rests with the DOE. I find the DOE has failed to meet this burden. Indeed, it is likely that neither the DOE nor the Petitioners can find a facility that can provide a FAPE to , aside from . The
DOE had placed into , even though was unable to provide the education and services mandated by the DOE’s own IEP; was the only approved facility the DOE could find that would accept in 2015 and 2016. DOE has still not identified any location for placement of for the 2016/2017 year, nor for the 2017/2018 school year. Parent was unable to identify an appropriate school until the slot opened in .
I find Petitioners’ witnesses and evidence set forth above amply, and in detail, identify and describe ’s disabilities and deficits, his educational needs, and show that placement at that is more than reasonably calculated to enable to receive educational benefits.” Frank G., 459 F.3d at 364; see also, Gagliardo, 489
F.3d at 112.
The DOE argues that “In this case the parents have not met their burden. They have not demonstrated that the placement provides educational instruction specially designed to be meet the unique needs of ” (DOE Closing Brief, page 4). I find this argument without merit on several counts.
As noted above, I have found that has been amply shown to be appropriate. The totality of circumstances strongly support a finding that placement in will reasonably serves ’s needs. Id. The DOE has presented absolutely no evidence or testimony and has not, by cross examination, or in its brief, identified any challenge to the appropriateness of . Where, as here, the record contains substantial evidence and testimony showing a placement to be appropriate, the DOE’s bald challenge does not support a finding that there has not been a demonstration of appropriateness.
Moreover, it is the DOE’s burden to identify an appropriate placement and the DOE has long failed to do so here. Here the DOE placed the child in the only location it could find that would accept him, a location found to be unable deliver the placement education and services set forth in the IEP, and the child was transferred a location that could comply with that IEP. Here, the Motion to Transfer was made while the DOE was still standing by its IEP and its placement. The same IEP program and placement remained in effect after the location was changed to . It is not at all clear that the burden to show to be appropriate had been transferred to
Petitioners.
I find the DOE’s objection to the transfer ordered in the Second Interim Order to be unfounded. The DOE mischaracterizes the transfer as an award of the “ultimate relief sought.” Petitioners did not receive the ultimate relief sought. Specifically,
Petitioners did not obtain: a determination as to what constitutes an appropriate program for going forward; an appropriate IEP that includes an appropriate program and placement; compensatory services; and declaratory relief. The matter was not resolved; hearing continued for two more days; and issues remained to be determined by this final decision.
In its closing brief,[4] the DOE notes that “ … a school district is only required to recommend home services to supplement a school-centered IEP program where there is evidence the deficits manifested by a pupil outside of school interfere and/or prevent said pupil from making meaningful progress in school.”[5] The DOE further notes that “ … the IDEA’s definition of ‘individual education program’ revolves around an individual’s performance within the academic setting.”[6] The DOE notes that “generalization skills need not always be included in, and progress on such skills is not necessary to ensure, a compliant IEP.”[7]
I find the evidence and testimony presented in this matter consistently and strongly support a finding that the deficits manifested by outside of school have long interfered with and prevented from making meaningful progress in school and that they continue to do so. Accordingly, I find that the district is required to provide with the recommended .
I find the Petitioners have supported their demand for an IEP that includes the recommendations of Dr. , Dr. , and Mr. .
I find the Petitioners have supported their demand for the compensatory education and services recommended by Dr. , Dr. , and Mr. , certainly going back the entirety of the 2016/2017 school year.
There has been no showing that these remedies are to be reduced due to equitable considerations relating to the Petitioners’ conduct.
I find the record to contain insufficient evidence or testimony to rule on Petitioners’ argument that the doe violated section 504 and the idea by engaging in predetermination and applying blanket policies.
FINAL ORDER:
NOW THEREFORE, THE FOLLOWING IS ORDERED:
1. The DOE is to develop an IEP for that includes but is not limited to the following services:
a.
;
b. A minimum of
(Dr. and Dr. ’ recommendation);
c.
(Dr. ’s recommendation);
d. ( ’s
recommendation);
e.
( ’s
recommendations);
f.
(Dr. ’s recommendation);
g. (D r. ’s
recommendation);
h.
(as per IHO’s interim
order);
2. Compensatory education comprised of the following:
a.
;
b.
;
c.
; and
d. .
3. None of the relates services (compensatory and/or going forward)
should be limited to particular providers or payment mechanisms (e.g.,
RSAs or P-3s) due to historical shortages in providers that accept the DOE’s vouchers, and given that the should be given every opportunity to make up for the time he has lost without unreasonable cost criteria, and without delay. To that end, all services should be ordered to be provided by “qualified service providers of the Parent’s choosing, at reasonable market rates”;
4. All interim orders are incorporated into this final order. This is a FINAL ORDER; this matter is resolved and is to be closed. Dated: July 31, 2017
ANDREA COHEN, ESQ.
Impartial Hearing Officer AC:
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
STUDENT
A Due process complaint, 11/3/16, seven pages
B IEP, 12/21/16, 21 pages
C IEP, 5/27/16, 26 pages
D progress report, 12/1/16, five pages
E '15/'16 quarterly report, unidentified date, 20 pages
F evaluation, 2/8/16 and 3/14/16, ten pages
G evaluation invoice, 2/8/16 and 3/14/16, one page
H evaluation, 12/11/16, ten pages
I assessment and school observation report, 12/1/16, eight pages
J Classroom observation, 8/17/15, three pages
K Psychological evaluation, 8/11/15, four pages
L evaluation,8/10/15, six pages
DEPARTMENT OF EDUCATION
1 IEP, 10/7/16, 18 pages
2 report, 10/27/16, seven pages
IMPARTIAL HEARING OFFICER
I Memorandum of law in support of Parent's motion for interim relief, Unidentified date, Unspecified number of pages
Footnotes
[4] Closing BriefFor The Department Of Education, Matter #164236, dated 5/30/17, pages 5-6; FOOTNOTES 5, 6, 7, below, taken from the Doe’s Closing Brief:
[5] See New Milford Bd. of Educ. v. C.R., 431 F. App'x 157, 159-60 (3d Cir. 2011); Student X v. New York City Dep't of Educ., No. 07-CV-2316. 2008 WL 4890440, *17-19 (E.D.N.Y. Oct. 30, 2008).
[6] See San Rafael Elem. Sch. Dist. v. Cal. Special Educ. Hearing Office, 482 F. Supp.2d 1152, 1160-1162 (N.D. Cal. 2007).
[7] See Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1151-1152 (10th Cir. 2008); see also Gonzalez v. P.R. Dep't of Educ., 254 F.3d 350, 352-353 (1st Cir. 2001); San Rafael, 482 F. Supp.2d at 1160-1162.