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FINDINGS OF FACT AND DECISION
Case Number: 165026
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: July 28, 2017
Actual Record Closed Date: December 24, 2017
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 28, 2017
For the Student:
ESQ., Attorney
parent
For the Department of Education:
Impartial Hearing Representative
I. JURI DICTION -OVERVIEW OF ADMINI TRATIVE PROCEDURE
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 January 1, 2017. 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 (“JEP”), which is delegated to a local committee on special education (the “CSE”’) that includes, but is not limited to, parents, teachers, at least one , 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 8§ 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)-(1).
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(4)(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 (“THO”) 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 as “Ex.” 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(G)(3)(v), (vii), (x11). 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(4)(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(4j)(5). The decision of the [HO 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 HI TORY
The DOE appointed me to hear this matter on January 4, 2017. See 8 NYCRR § 200.5(j)(3)G). A hearing on the merits of the matter was thereafter held on July 28, 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).
Il. FACTUAL BACKGROUND
At the time of the January 3, 2017 due process complaint, the student was "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 compliance date were granted (R. 31-32; Exs. IHO-I - IHO-X). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(G)(5). and . For the 2016/17 school year, the student The student's eligibility for special education and related services is not in dispute in this hearing (Ex. P-A). See 34 C.F.R. § 300.8(c)(7); 8 NYCRR §
200.1(zz)(7).°
The student received in the form of / and at . He participated in a program (CPSE) at . He was given his first IEP in at where he was placed in a with related services of ; / , and . He continued the same placement and services at from , although and were terminated. His initial was changed to during this time (Ex. P-Y at 2).
The student continued to attend the for his (2016/17 school year).
. The CSE recommended that the student receive
The CSE also recommended
The student was also allotted
He was also designated to participate in Assessment and had (Exs. P-C at 8, P-Y at 2).
IV. PO ITION OF THE PARTIE
A. The DOE
The DOE conceded that the student was denied a FAPE for the 2014/15, 2015/16 and 2016/17 school years, and that due to a variety of placement issues, he was not in the appropriate placement. The DOE also conceded that the student is entitled to compensatory additional services to remedy the denial of FAPE (R. 27).
B. The Parent
As the student was denied a FAPE for the 2014/15, 2015/16 and 2016/17 school years, he is now entitled to compensatory additional services
V. FINDING OF FACT AND CONCLU ION OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) 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 (b) 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 F rest Grove v. T.A., 557 U.S. 230, 239 (2009); B ard fEduc. f the Hendrick Hudson Cent. Sch. Dist. v. R wley, 458 U.S. 176, 206-07 (1982).[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 ; school, or school education in the State involved; and 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; 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); MLH. 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). 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 JEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. fEduc., 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)Gi); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5G)(4)G1); 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); (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. 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 JHO'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)G). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that 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 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 JEP 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. fEduc., 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. fEduc., 103 F.3d 1114, 1120 (2d Cir. 1997); see also 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)qQ), 300.116(a)(2); 8 NYCRR 8§ 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. f New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board fEduc., 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 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't fEduc., 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)q), (2)G)(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 ret1mbursement 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 fEduc., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. 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 fEduc., 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 fa 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’! 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 hour-for-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. Jd. at 526.
At the hearing, the DOE conceded that the student was denied a FAPE for the 2014/15, 2015/16 and 2016/17 school years. The DOE also conceded that the student is entitled to compensatory additional services to remedy the denial of FAPE. Due to the inappropriate placement, programming, services, and goals, that the student received during the 2014/15, 2015/16 and 2016/17 school years, I find that he was deprived of the ability to access learning in a meaningful way. Using the Affidavit of as a guide, I shall apply a qualitative approach in fashioning a compensatory remedy of additional services for the student.
1.
The student shall receive instruction
The recommended number of hours are based on:
2.
The student shall receive instruction
3, The student shall receive instruction to get him
4.
In order to acquire appropriate in a meaningful way the student shall receive
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDING OF FACT,
ITI
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 U TAINED; and
2. Within thirty (30) days of its receipt of this Order, the DOE shall authorize the student’s receipt of the following compensatory additional services at public expense:
(a) (b)
(c) ; and (d)
Dated: January 9, 2018
JEFFREY J. SCHIRO, ESQ. Impartial Hearing Officer
PLEA E TAKE NOTICE
The parent and/or the New York City Department of Education has aright to obtain areview of this decision by a tate Review Officer of the New York tate Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, ection 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Directions and forms can be found on the Office of tate Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview. html
DOCUMENTATION ENTERED INTO THE RECORD
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 1/3/17, 13 pgs.
B. [Reserved]
C. Individualized Education Program (IEP), 10/21/16, 14 pgs.
D. [Reserved]
E. [Reserved]
F. Individualized Education Program (IEP), 1/17/14, 15 pgs.
G. [Reserved]
H. [Reserved]
I. [Reserved]
J. [Reserved]
K. [Reserved]
L. [Reserved]
M. IEE Request Letter, 12/28/16, 1 pg.
N. Assessment Planning, 11/18/16, 1 pg.
O. [Reserved]
P. Prior Written Notice (PWN) Notice of Recommendation, 11/3/15, 2 pgs.
Q. Reevaluation Notice, 10/9/15, 1 pg.
R. Assessment Planning, 10/9/15, 1 pg.
S. Meeting Notice Committee on Special Education (CSE), 9/25/15, 3 pgs.
T. [Reserved]
U. Meeting Notice Committee on Special Education (CSE), 9/25/15, 3 pgs.
V. Prior Written Notice (PWN) Notice of Recommendation, 9/4/14, 2 pgs.
W. Meeting Notice Committee on Special Education (CSE), 1/6/14, 2 pgs.
X. Evaluation, 3/22/17, 9 pgs.
Y. Evaluation, 3/2/17, 9 pgs.
Z. Evaluation, 1/27/17, 6 pgs.
AA. Evaluation, 1/27/17, 5 pgs. BB. [Reserved]
CC. Annual Review Plan, 1/10/16, 3 pgs.
DD. Progress Report, 1/14/14, 2 pgs.
EE. [Reserved]
FF. [Reserved]
GG. [Reserved]
HH. , 2/29/14, 2 pgs.
I. Affidavit of ; , 7/27/17, 4 pgs.
DEPARTMENT OF EDUCATION
l. [Reserved]
Prior Written Notice (PWN) Notice of Recommendation, 9/4/14, 3 pgs.
FNoYDFe
Prior Written Notice (PWN) Notice of Recommendation, 1/19/15, 3 pgs.
Individualized Education Program (IEP), 1/16/15, 24 pgs.
Teacher Assessment, 2/29/15, 2 pgs.
Prior Written Notice (PWN) Notice of Recommendation, 11/3/15, 3 pgs.
Individualized Education Program (IEP), 10/7/15, 15 pgs.
[Reserved]
[Reserved]
Individualized Education Program (IEP), 6/2/17, 19 pgs.
RNOlrPReFOSRFNrDPeYSy [Reserved]
Report Card, 11/21/17, 1 pg.
Interview - Student, 12/15/16, 1 pg.
Evaluation, 12/15/16, 5 pgs.
Teacher Report, 12/15/16, 2 pgs.
Educational Report, 9/12/16, 6 pgs.
Authorization for Evaluation, 1/6/17, 5 pgs.
[Reserved]
Report Card, 3/31/17, 1 pg.
[Reserved]
[Reserved]
Consent for Reevaluation, 11/7/16, 1 pg.
IMPARTIAL HEARING OFFICER
[. Confirmation of Extension, 3/20/17, 1 pg.
I. Confirmation of Extension, 4/19/17, 1 pg.
Ii. Confirmation of Extension, 5/19/17, 1 pg.
IV. Confirmation of Extension, 6/18/17, 1 pg.
Confirmation of Extension, 7/18/17, 1 pg.
VI. Confirmation of Extension, 8/9/17, 1 pg.
VIL. Confirmation of Extension, 9/18/17, 1 pg.
VIL. Confirmation of Extension, 10/18/17, 1 pg.
IX. Confirmation of Extension, 11/14/17, 1 pg.
Confirmation of Extension, 12/17/17, 1 pg.
Footnotes
[1] ‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted
[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 compliance date were granted (R. 31-32; Exs. IHO-I - IHO-X). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[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 , school, or school education in the State involved; and