NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 164550
Student’s Name:
Date of Birth:
District: I Hearing Requested By: Parent
Date of Hearing: March 21, 2017
October 6, 2017
October 17, 2017
Actual Record Closed Date: April 2, 2018
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2017
ESQ., Attorney — Student
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 6, 2017
ESQ., Attorney — Student
ESQ., Attorney — Student
Speech Therapist (via telephone) — Student
Neuropsychologist (via telephone) — Student
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 17, 2017
ESQ., Attorney — Student
ESQ., Attorney — Student
Executive Director, (via telephone) — Student
Impartial Hearing Representative — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parent in a due process complaint notice dated November 18, 2016. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education (“FAPE”) during the 2014/15, 2015/16, and 2016/17 school years (Ex. P-A).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
The DOE appointed me to hear this matter on January 27, 2017 following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). In an Interim Order dated March 29, 2017, I directed the DOE to conduct several independent evaluations of the student (Ex. IHO-II). See 8 NYCRR § 200.5(j)(3)(viii). In an Interim Ruling dated September 25, 2017, I found that the parent’s claims concerning the 2012/13 and 2013/14 school years were timebarred (Exs. P-A, IHO-IV). Hearings on the merits of the matter were thereafter held on October 6, 2017 and October 17, 2017.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the November 18, 2016 due process complaint, the student was nine (9) years old and has been diagnosed with: a language disorder (receptive and expressive language delays); an attention deficit hyperactivity disorder (“ADHD”); a specific learning disorder (with impairments in reading, writing and mathematics), and an acute stress disorder (Exs. P-A at 2, P-F at 15). At all relevant times to this hearing, the student has attended instruction at operated by the DOE (Ex. P-A at 3). The student's eligibility for special education and related services as a student with a speech or language impairment is not in dispute in this hearing (Exs. P-A, P-B at 1, P-C at 1, P-D at 1, P-E at 1). See 34 C.F.R. § 300.8(c)(11); 8 NYCRR § 200.1(zz)(11).[3]
The student attended the second grade at during the 2014/15 school year. Using the Developmental Reading Assessment (“DRA”) leveling system, the student was reading books independently at level 3 (Fountas and Pinnell Level C) which correlated to a kindergarten reading level (Ex. P-C at 1).
At a meeting held on May 11, 2015, the CSE convened to develop and IEP for the student for the 2015/16 school year. The CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class in a community school on a ten (10) month basis. The CSE also recommended that the student receive the related services of individual speech/language therapy, three (3) times per week for thirty (30) minutes per session (Ex. P-C at 6-7).
The student attended the third grade at during the 2015/16 school year compliance date were granted (R. 32-33, 133-134, 186-187; Exs. IHO-V - IHO-XIX). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
(Ex. P-A at 3). The student continued to read at a DRA Level 3 (Fountas and Pinnell Level C) which correlated to a kindergarten reading level (Ex. P-B at 1)
On June 14, 2016, the student was administered the Wechsler Intelligence Scale for Children - Fifth Edition (“WISC-V”) in order to assess his intellectual functioning as part of routine reevaluation. The student’s overall IQ was found to be in the Average range (FSIQ - 93). Strengths were noted in the student’s visual spatial, nonverbal reasoning, and processing speed abilities. The student struggled with tasks that measured his verbal comprehension and working memory abilities (Ex. P-I at 5).
On June 15, 2016, the CSE convened to develop an IEP for the student for the 2016/17 school year. The CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class in a community school on a ten (10) month basis. The CSE also recommended that the student receive the related services of individual speech/language therapy, three (3) times per week for thirty (30) minutes per session (Ex. P-B at 10-11).
In her due process complaint, the parent asserts that the student’s IEPs for the 2014/15, 2015/16 and 2016/17 school years were fraught with procedural and substantive errors which denied the student a FAPE (Ex. P-A at 3). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE concedes that it failed to offer and/or provide the student with a FAPE for the 2014/15, 2015/16 and 2016/17 school years (R. 48).
B. The Parent
The DOE failed to offered and/or provide the student with a FAPE for the 2014/15, 2015/16, and 2016/17 school years. The DOE should be ordered to provide the student with compensatory additional services to remedy inadequate programming delivered to the student during the 2014/15, 2015/16, and 2016/17 school years, and transportation for any such services not provided in the home. The parent also seeks the student’s placement in a nonpublic school. Lastly, the parent seeks the presence of a translator at all school meetings and that all educational records be translated into her native language of (R. 49-54; Ex. P-A).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (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, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176,
206-07 (1982).[4]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New 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.'" Walczak 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 Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 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. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that
1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
instruction." See Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137
S. Ct. at 1001. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; 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.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley, 458 U.S. at 192.
The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 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); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see Case No. 164550
34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Denial of FAPE - 2014/15, 2015/16, & 2016/17 School Years
At the hearing, the DOE conceded that it failed to offer and/or provide the student with a FAPE for the 2014/15, 2015/16, and 2016/17 school years (R. 48). Accordingly, I find that the student was denied a FAPE for the school years at issue.
C. Compensatory Additional Services
Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation 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 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); Student X v. New 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); Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Child with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Reg’l Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem”). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hourfor-hour replacement of the time spent without FAPE.” See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Id. at 526.
At the hearing, the DOE failed to offer any evidence in support of its recommended programs for the student for the 2014/15, 2015/16 and 2016/17 school years. Therefore, I find that the student is entitled to compensatory additional services to remedy the denial of FAPE. Using the credible testimony of and
•
I shall apply a qualitative approach in fashioning a compensatory remedy of additional services for the student.
1. One-to-One Instruction
and all recommended that the student receive individualized tutoring to address his severe academic delays (Exs. PF, P-R, P-Q, P-U, P-P, P-S, P-T). specifically recommended intensive individualized tutoring outside of school with a multisensory evidence-based program that focuses on phonics, fluency, and comprehension (Ex. R. 121-122; P-F at 18).
recommended 1200-1400 hours of tutoring to address the student’s needs and catch him up to the fifth grade level (R. 166-168; Exs. P-S, P-T). As such, the DOE will be directed to authorize the student’s receipt of 1400 hours of 1:1 tutoring with a private provider at the market rate. Additionally, the DOE will be directed to reimburse the parent and/or direct pay for the cost of the evaluations it conducted of the student ($990) (R. 169).
2. Speech therapy
Since the student has a severe language disorder; specifically, a communication impairment with deficits in expressive, receptive, metalinguistic and pragmatic language, recommended speech-language therapy, five (5) times per week, three (3) individual sessions and two (2) in a group no larger than three (3) students, for forty-five
(45) minutes per session (Exs. P-U at 4, P-Q at 9-11).
The DOE will be directed to authorize the student’s receipt of 450 hours of speech-language therapy (minus any hours already provided by the DOE during the relevant school years. This calculation is based on 3.75 hours per week for forty (40) weeks per school year multiplied by three (3) school years.
3. Assistive Technology
State regulations expressly provide that assistive technology service constitutes a related service.[5] See 8 NYCRR § 200.1(qq). Under State regulations, an assistive technology device is defined as "any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a student with a disability." See 8 NYCRR § 200.1(e); see also 34 C.F.R. § 300.5. An assistive technology service "means any service that directly assists a student with a disability in the selection, acquisition, or use of any assistive technology device." 8 NYCRR § 200.1(f); see also 34 C.F.R. § 300.6. State regulations also require that that a student's IEP include "any assistive technology device or services needed for the student to benefit from education including the use of such devices in the student's home or in other settings."[8] NYCRR § 200.4(d)(2)(v)(b)(6).
None of the CSE teams which met on this student considered whether the student "requires assistive technology devices and services, including whether the use of schoolpurchased assistive technology devices is required to be used in the student's home or in other settings in order for the student to receive a [FAPE]" (Exs. P-B, P-C, P-D P-E). See Case No. 164550
Exs. P-R at 7-9, P-Q at 11-12, P-U at 4), see Application of the New York City Dep’t of Educ., Appeal No. 14-014 at 9 (SRO March 31, 2014).
4. Transportation to Compensatory Additional Services
As the student would be unable to access the compensatory additional services without transportation, the DOE will be ordered to provide the student with suitable transportation to and from his compensatory additional service providers. See generally, R.B. v. New York City Dep’t of Educ., 713 F. Supp. 2d 235, 242 (S.D.N.Y. 2010) (discussing how the DOE distributes 700,000 MetroCards twice a year to transport students).
D. Referral for Nonpublic School Placement
The parent seeks an Order directing the CSE to recommend a non-public school setting for the student (Ex. P-A at 6).
A school district is not obligated to consider removal from the public school to a nonpublic placement if it is able to provide the student with an appropriate educational program within the public education system. See T.G. v. New York City Dep't of Educ., 2013 WL 5178300, at *19 (S.D.N.Y. Sept. 16, 2013); A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *7-*8 (S.D.N.Y. Mar. 19, 2013); W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 148 (S.D.N.Y. 2006) ("IDEA views private school as a last resort"); see also R.H. v. Plano Indep. Sch. Dist., 607 F.3d 1003, 1014-15 (5th Cir. 2010) (noting that under the IDEA, "removal to a private school placement [is] the exception, not the default . . . [t]he statute was designed primarily to bring disabled students into the public educational system and ensure them a free appropriate public education"); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 363 (S.D.N.Y. 2009); Patskin, 583 F. Supp. 2d at 430-31; see also 8 NYCRR § 200.6(j)(1)(iii) (State funding for private schools is only available if the CSE determines that the student cannot be appropriately educated in a public facility). "'[I]f the district can supply the needed services, then the public school is the preferred venue for educating the child'" T.G., 2013 WL 5178300 at *19, quoting W.S., 454 F. Supp. 2d at 138.
Consistent with the April 2017 recommendation of I find that the student requires placement in a New York State-approved nonpublic school in order to learn (R. 120-124; Ex. P-F at 17). The evidence contained in the hearing record demonstrates that the DOE was unable to provide the student with an appropriate classroom placement. The hearing record contains substantial evidence that the student failed to make adequate progress in his special class programs during the 2014/15, 2015/16 and 2016/17 school years. The student’s reading functioning has never advanced beyond a kindergarten level (Exs. P-B at 15, P-C at 10, P-D at 9, P-E at 9). testified that given the student’s severe dyslexia, an appropriate setting is a nonpublic or private setting that has reading instruction and language instruction integrated throughout the program all day (R. 120-124; Ex. P-F at 17). The student needs a small classroom setting that provides intensive, individualized attention to address his specific needs and one that is designed for students who have language deficits and intellectual capability. Additionally, the student needs a program that can also meet his attention and emotional needs (R. 123).
An order directing a school district to place the student in a nonpublic school must also consider the IDEA's requirement that a student's recommended program be provided in the LRE. See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 111; Gagliardo, 489 F.3d at 105; Walczak, 142 F.3d at 132; Patskin, 583 F. Supp. 2d at 428. The Second Circuit applies a two-pronged test for determining whether an IEP places a student in the LRE, considering: (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate. See Newington, 546 F.3d at 119-20; see also J.S v. N. Colonie, 586 F. Supp. 2d 74, 82 (N.D.N.Y. 2008); Patskin, 583 F. Supp. 2d at 430.
A review of the hearing record reflects that the student was unable to be educated satisfactorily in a special class setting at P.S. 48 during the 2014/15, 2015/16 and 2016/17 school years (Ex. P-N). The CSE has mainstreamed the student to the maximum extent appropriate, but he is in need of greater academic and individualized support and would benefit from a structured setting in which he receive significant aid for his individual needs (Ex. P-F at 17).
E. Parental Participation - Translation Services The parent argues that the DOE failed to provide her with an interpreter at the relevant CSE meetings and failed to provide certain critical documents to her in her native language and that such failures impeded her opportunity to participate in the development of the student’s IEP (Exs. P-A, P-B, P-C, P-D, P-E).
The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child." See 20 U.S.C. § 1415(b)(1). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate. See 34 C.F.R. § 300.322; 8 NYCRR § 200.5(d). In addition, a school district "must take whatever action is necessary to ensure that the parent understands the proceedings of the [CSE] meeting, including arranging for an interpreter for parents [who are hearing impaired] or whose native language is other than English." 34 C.F.R. § 300.322(e); 8 NYCRR § 200.5(d)(5).
In this case, the hearing record reflects that the parent’s native language is other than English (Exs. P-B at 14, P-C at 9), but is unclear of her ability to effectively communicate in English without an interpreter. The evidence in the hearing record indicates that the parent attended the June 2016 CSE meeting without the assistance of an interpreter (Ex. P-B), but no evidence was offered on whether the parent requested an interpreter at the CSE meeting or exhibited any difficulty understanding and participating in the proceedings at the CSE meeting. While in this instance, the June 2016 CSE could have encouraged better parent participation in the development of the student’s IEP by taking appropriate action to ensure that the parent clearly understood the proceedings at the CSE meeting, I decline to order the presence of a interpreter at all future school meetings.
Next, the parent asserts that the DOE failed to provide her with translated copies of critical documents, including the student’s IEP, a procedural safeguards notice and prior written notices (Ex. P-A). In this case, despite having knowledge that the parent’s native language was not English, the hearing record indicates that the DOE did not provide the parent with any documents in her native language, such as a copy of a procedural safeguards notice, see 34 C.F.R. § 300.504(d), citing 34 C.F.R. § 300.503(c); 8 NYCRR § 200.5(f)(2), or a copy of a prior written notice or the results of any assessment of the student, see 34 C.F.R. § 300.503(c); 8 NYCRR §§ 200.4(b)(6)(xii), 200.5(a)(4).
Neither federal not State regulations require that a school district provide parents with a copy of the IEP in their native language. See Letter to Boswell, 49 IDELR 196 (OSEP 2007) (noting that “[t]here is no requirement in IDEA or in its accompanying regulations that all IEP documents must be translated” and that schools are still required to provide parents with full information, in the native language, of all information relevant to activities for which consent is sought); see also 34 C.F.R. § 300.320; 8 NYCRR § 200.4(d)(2). Consequently, I decline to order the DOE to provide the parent with translation of all educationally-related documents of the student.[6]
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
1. The parent’s claim that the student was denied a free appropriate public education for the 2014/15, 2015/16, and 2016/17 school years is SUSTAINED;
2. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of the following compensatory additional services:
a. 1400 hours of compensatory one-to-one tutoring from a private provider at the provider’s market rate;
-
b. reimbursement to the parent, and/or direct payment, of evaluations of the student ($990);
c. assistive technology, in accordance with recommendations in the respective IEEs noted above;
d. 450 hours of compensatory speech/language therapy services from a provider of the parent’s choice at the provider’s market rate; and
e. suitable transportation to and from compensatory additional service providers; and
3. Within thirty (30) days of its receipt of this Order, the DOE shall refer the student’s program to the CBST for placement in a New York State approved nonpublic school;
All other requests for relief are denied. Dated: April 17, 2018
Jeffrey J. Schiro mv
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer JS:mv
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
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 11/18/16, 7 pgs.
B. Individualized Education Program (IEP), 6/15/16, 17 pgs.
C. Individualized Education Program (IEP), 5/11/15, 11 pgs.
D. Individualized Education Program (IEP), 6/21/13, 12 pgs.
E. Individualized Education Program (IEP), 9/24/12, 11 pgs.
F. Bilingual Neuropsychological Evaluation, 4/4/17, 27 pgs.
G. Auditory Processing Evaluation, 7/15/16, 9 pgs.
H. Auditory Evaluation, 7/15/16, 6 pgs.
I. Psychological Evaluation Report, 6/14/16, 5 pgs.
J. Psychoeducational Evaluation Report, 6/18/13, 6 pgs.
K. Speech/Language Evaluation, 12/11/15, 9 pgs.
L. Social History Update, 6/12/13, 2 pgs.
M. Learning Ability Evaluation Summary, 11/1/16, 5 pgs.
N. Report Card, 2015/16, 2 pgs.
O. Letter to School from Parent, 3/7/14, 2 pgs.
P. Teacher Questionnaire, 3/10/17, 3 pgs.
Q. Speech/Language Evaluation, 4/4/17, 18 pgs.
R. Assistive Technology Evaluation, 4/17/17, 9 pgs.
S. Learning Ability Evaluation Summary, 10/9/17, 4 pgs.
T. Recommendations for Instruction, 10/9/17, 1 pg.
U. Affidavit of 10/13/17, 5 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Signed Subpoenas, 2/27/17, 3 pgs.
II. Interim Order, 3/29/17, 1 pg.
III. Signed Subpoena ( 10/4/17, 1 pg.
IV. Interim Ruling on DOE’s Partial Motion to Dismiss, 9/25/17, 1 pg.
V. Confirmation of Extension, 2/1/17, 1 pg.
VI. Confirmation of Extension, 3/3/17, 1 pg.
VII. Confirmation of Extension, 4/3/17, 1 pg.
VIII. Confirmation of Extension, 5/3/17, 1 pg.
IX. Confirmation of Extension, 6/2/17, 1 pg.
X. Confirmation of Extension, 7/2/17, 1 pg.
XI. Confirmation of Extension, 8/1/17, 1 pg.
XII. Confirmation of Extension, 8/31/17, 1 pg.
XIII. Confirmation of Extension, 9/30/17, 1 pg.
XIV. Confirmation of Extension, 10/24/17, 1 pg.
XV. Confirmation of Extension, 11/14/17, 1 pg.
XVI. Confirmation of Extension, 12/29/17, 1 pg.
XVII. Confirmation of Extension, 1/29/18, 1 pg. XVIII. Confirmation of Extension, 2/22/18, 1 pg.
XIX. Confirmation of Extension, 3/30/18, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case
[3] Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(11).
[4] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section
[8] NYCRR § 200.4(d)(3)(v); see also 20 U.S.C. § 1414(d)(3)(B)(v); 34 C.F.R. § 300.324(a)(2)(v); N.Y. Educ. Law § 4401(2)(a). Following its concession that it did not offer the student a FAPE for the 2014/15, 2015/16 and 2016/17 school years, the DOE did not offer any evidence that could have assisted me in identifying an appropriate amount of compensatory services for the student nor did the DOE present any testimony relevant to such a determination. In light of the broad authority I have to fashion equitable relief, see Newington, 546 F.3d at 122-123, the DOE will be directed to provide the student with the assistive technology identified in and independent evaluations to address the student’s delays in reading, writing, note-taking and hearing and to allow him to independently access classroom curriculum (R. 72-87;
[5] While federal regulations do not define an assistive technology service as a related service, see 34 C.F.R. §§ 300.34(c)(1)-(c)(15), federal regulations do require that a CSE, when developing a student's IEP, consider "special factors," which includes whether the child needs assistive technology devices and services," 34 C.F.R. § 300.324(a)(2)(v).
[6] Although not required, providing the parent with a copy of an IEP in her native language would be in keeping with the spirit of the IDEA and is one way to demonstrate that the parent has been “fully informed of the student’s educational program.” See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 15-001 at 10 n.7 (SRO Feb. 25, 2014) quoting Letter to Boswell, 49 IDELR 196.