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FINDINGS OF FACT AND DECISION
Case Number: 165160
Student’s Name:
Date of Birth:
District:
Hearing Requested By:
Dates of Hearing: 6/21/17 & 6/22/17
Record Close Date: 9/13/17
Hearing Officer: Elizabeth Hill, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 21, 2017
For Petitioner, Attorney
For Respondent, District Representative, — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 22, 2017
For Petitioner, Attorney, Mother, Father,, For Respondent, District Representative, District Representative,
A. INTRODUCTION
On January 13, 2017, the New York City Department of Education (“DOE” or
“Respondent”) appointed me to act as the Impartial Hearing Officer (“IHO”) in this case, which is brought under the federal Individuals with Disabilities Education Act, 20 USC §1400 et seq. ( “IDEA”), by (“Petitioner”) through her mother, (“the
Parent”) The Parent requested this Impartial Hearing by filing a Due Process Complaint (“DPC”)
with the DOE on January 12, 2017. (Ex. A) An Amended Due Process Complaint was filed on
April 2, 2017. (Ex. AAA) Petitioner was represented at the hearing by her attorney, .
Respondent, the DOE, was represented by District Representative .
B. THE CLAIMS
Petitioner is . The Department of Education (“DOE”) has classified her as being “ ”. (Ex. 4) Her claims concern the 2014-2015 school year, her year, the 2015-2016 school year, her year, and the 2016-2017 school year, her year. As to each year, she claims substantive and procedural violations of the IDEA, all of which rest on denial of a free and appropriate public education, or “FAPE”. As relief, she asks: (1) that Respondent fund two independent educational evaluations, (2) that the IEP team reconvene to re-draft the most recent IEP, taking the independent educational evaluations into account, (3) that the Central Based Support Team (“CBST”) place Petitioner in an appropriate private school, (4) for awards of compensatory education for deficits in mandated
, and
, (5) for an award of to compensatory education providers, and (6) attorney’s fees and costs.
Respondent concedes the denial of FAPE during the 2016-2017 school year. (T.68-69)
C. STATEMENT OF FACTS
I adopt here the facts as stated in the Decision, finding them to be credible to the extent indicated in the Decision.
D. DECISION
1. BURDEN OF PROOF AND STANDARD OF PROOF
Under New York law, the burden of proof on an IDEA claim is on Respondent, with the exception of the appropriateness of a private placement in a tuition reimbursement claim. NY Educ. Law § 4404(1)(c). The standard of proof in a civil case such as this one is a preponderance of the evidence, i.e. more than fifty percent.
2. PROCEDURAL VIOLATIONS
a. The June 17, 2014 IEP 1 Team’s Failure to Consider the Evaluation was a Procedural Violation of the IDEA which Denied Petitioner FAPE.
The IDEA requires the IEP team (“Individualized Education Program”) to consider the most recent evaluation of the child. 20 U.S.C. 1414(d)(3)(A)(iii); M .M v. District of Columbia, 607 F.Supp.2d 168, 174 (D.D.C. 2009) Although the June 17, 2014 IEP meeting was ostensibly convened in part to consider the March 14, 2014 Evaluation obtained by
Petitioner, (Ex. 14) (T.106-107) it does not appear that the evaluation was considered.
The June 20, 2014 Prior Written Notice does not list the Evaluation as an evaluation that was under consideration. (Ex. H) In drafting the June 17, 2014 IEP, the IEP team virtually ignored the contents and recommendations of this evaluation. The IEP team was comprised of a special education teacher, a district representative, a , the Parents, and , a . (Ex. 4) Of the four professionals, only
Ms. read the evaluation. (T.191, 334) She acknowledged receipt of the evaluation to the Parent, and told the Parent that some of the scores from the Evaluation had been listed on page one of the then-proposed IEP. (T.335-336) But the contents, diagnoses and recommendations of the evaluation were not discussed at the IEP meeting. (T.332-333, 336)
The chief recommendation of the evaluation was placement in a private school, with a classroom and methodology directed to students like Petitioner, with and disabilities such as . The evaluation condemned the public school placement ultimately prescribed. testified that the prescription of a public
1
IEPs will be identified by the date on the Attendance Page. school classroom was somehow based on the Evaluation. (T.109-110) But the evaluation expressly rejects such a placement.[2]
The final June 17, 2014 IEP prescribes and Ms. testified that this mandate was based on a recommendation of the Evaluation. (T. 110) But she did not testify that this, or any part of the evaluation was reviewed by the team.
The preponderance of the evidence shows the Evaluation was not considered by the IEP team. This is a procedural violation of the IDEA. Procedural violations of the IDEA constitute a denial of a FAPE if they have “impeded the child's right to a [FAPE],…
significantly impeded the parents' opportunity to participate in the decision making process,… or
… caused a deprivation of educational benefits”. R.E. v. New Y ork City Dept. of Educ., 694 F.3d 167 (2d Cir. 2012) (quoting 20 U.S.C.§1415(f)(3)(E)(ii)). Here, the Parent’s right to participate in the IEP meeting was significantly impeded when the evaluation submitted by the Parent was not considered. But a procedural violation alone without a showing that the child’s education was substantively affected, does not establish a failure to provide a FAPE. See, e.g., A .C. v. Bd. of Educ., 553 F.3d 165 (2d Cir. 2009) Petitioner’s education was substantively affected by the IEP team’s failure to consider the Evaluation. It was the sole evidence on the subject of a public and private school placement under consideration by the IEP team. Had they considered it, they would have placed Petitioner in a private school because the evaluation found that a public school classroom was harmful to Petitioner and a private school classroom would be beneficial. Thus, when the IEP team failed to consider the evaluation, particularly the recommendation of a private school, it “significantly impeded the parents' opportunity to participate in the decision making process… “. For these reasons, Respondent denied Petitioner FAPE in the 2014-2015 school year.
b. The October 6, 2015 IEP Team ’s Failure to Consider the Evaluation was a Procedural Violation of the IDEA which Denied Petitioner FAPE.
At the October 6, 2015 IEP meeting, the team remained under the obligation to review the Evaluation as the most recent evaluation. 20 U.S.C. 1414(d)(3)(A)(iii). But neither the Prior Written Notice for the October 6, 2015 IEP, (Ex. G) nor the IEP itself (Ex.5)
make any reference to it. Petitioner’s class room teacher testified that he had seen the evaluation, but that “mostly the information I get is from the IEP and her parents.” (T.305) He did not testify as to when and where he saw the evaluation or his opinion of it. No member of the IEP team testified that the evaluation was reviewed. Accordingly, Respondent does not sustain the burden of proving that the Evaluation was considered at the October 6, 2015 IEP meeting. Failure to consider the evaluation is a procedural violation of the IDEA. 20 U.S.C.
1414(d)(3)(A)(iii); M.M v. District of Colum bia, 607 F.Supp.2d 168, 174 (D.D.C. 2009)
As mentioned above, procedural violations of the IDEA constitute a denial of a FAPE if they have “impeded the child's right to a [FAPE],… significantly impeded the parents' opportunity to participate in the decision making process,… or … caused a deprivation of educational benefits”. R.E. v. New Y ork City Dept. of Educ., 694 F.3d 167 (2d Cir. 2012)
(quoting 20 U.S.C.§1415(f)(3)(E)(ii)). But a procedural violation alone without a showing that the child’s education was substantively affected, does not establish a failure to provide a FAPE.
See, e.g., A .C. v. Bd. of Educ., 553 F.3d 165 (2d Cir. 2009) Here, the Parent’s right to participate in the IEP meeting was significantly impeded because the evaluation submitted by the Parent was not considered. It recommended a private school and concluded that the public school placement ultimately prescribed by the IEP team was harmful. The Evaluation was the only evidence concerning the appropriate type of school before the IEP team. Thus, had it considered the evaluation it would have prescribed a private school. Therefore, when the IEP team failed to consider the evaluation, it “significantly impeded the parents' opportunity to participate in the decision making process… “. R.E., supra. For this reason, Respondent denied Petitioner FAPE in the 2015-2016 school year.
c. The One Month Delay in Rendering the October 6, 2015 IEP Did Not
Deny Petitioner FAPE.
Petitioner complains that the October 6, 2015 IEP was four months late. New York State law requires an annual review. 20 U.S.C. 1414(d)(4)(A)(ii); 8 N.YC.R.R. Sec.200.1(c). The June 17, 2014 IEP states that the “Projected Annual Review” date was June 16, 2015. The October 6, 2015 IEP was rendered four months after the June 16, 2015 Projected Annual Review date, but that is not the end of the inquiry. Petitioner was not prescribed a school year.
Consequently, as a practical matter, delay of the October 6, 2015 IEP affected only one month of Petitioner’s education: September 2015.
As stated above, a procedural violation denies FAPE only where it “impede[s] the child's right to a [FAPE],… significantly impede[s] the parents' opportunity to participate in the decision making process,… or … cause[s] a deprivation of educational benefits”. R.E.,supra.; 20
U.S.C.§1415(f)(3)(E)(ii)). This violation does not meet this standard. There was only one month’s delay, mitigated by the provision of services pursuant to the last IEP. The impact on Petitioner’s education was de minimis. While the courts do not sanction even a de minimis delay in providing an IEP, there is only a denial of FAPE where there is specific evidence of an educational deprivation. C.H. v. Cape Henlogen Sch. Dist., 606 F.3d 59 (3d Cir. 2010) While there is educational deprivation alleged in this case, there is no evidence that it arises from this one-month delay, particularly since there was no significant difference between the prescriptions of the June 17, 2014 and October 6, 2015 IEPs.
3. SUBSTANTIVE VIOLATIONS
The purpose of the IDEA is “to ensure that all children 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.” Bd. of Educ. v. Rowley, 458 U.S. 176, 179-
91 (1982). A "reasonableness" standard governs the provision of special education to eligible students with disabilities. Id. “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”. Endrew F. v. Douglas County School District, 137 S.Ct. 988, 999 (2017)
A child’s progress should be both functional and academic. Id.; 20 USC §§
1414(d)(1)(A)(i)(I)–(IV). The June 17, 2014 and October 6, 2015 IEPs mandated a public school placement with supporting , and . This mandate did not meet the legal standard.
a. The June 17, 2014 IEP Denied Petitioner FAPE.
Whether an IEP provides FAPE is decided on the information available at the time that the IEP was created. R.E. v N ew Y ork City Dep’t of Educ., 694 F.3d 167, 185-86 (2d Cir. 2012), cert. denied, 133 S.Ct. 2802 (2013). Of course, only information in evidence may be considered.[3]
The only documents in evidence which were available to the June 17, 2014 IEP team were an August 15, 2013 Evaluation (Ex. N) and the March 14, 2014
Evaluation, (Ex.14) both of which were submitted by the Parent. (T. 326-
328; 332-333) The accuracy of the evaluations was not challenged.
i. The Evaluation
The Evaluation (Ex. 14) was based on observations, a review of existing records and no fewer than . The made multiple diagnoses, including . (Ex.14-13) Further, she found that Petitioner was . (Ex.14-12) The evaluation expressly finds that Petitioner had been in a classroom with (“ ”) in a public “Community School” since and that Petitioner had been unable to perform in that environment. (Ex.14-1, 12, 13) The chief recommendation of the was that Petitioner be placed in a private school with the capacity to meet her needs, (Ex.14-12, 13) specifically, a classroom in a private school with teachers experienced with children like Petitioner, who have hampered by disabilities such as , and/or . (Ex.14-13) There is no evidence that there was any information before the IEP team which contradicted the findings and recommendations of the evaluation. Yet the IEP team did not refer Petitioner to the CBST for placement in an appropriate private school. (T.132-133, 136)
Instead, they prescribed the same public school classroom in which Petitioner had already stagnated for years. No exhibit or testimony explains why another year with that same placement would have benefitted Petitioner.
testified that the placement was based on the Evaluation, but as stated, the evaluation rejects such a placement. She testified that the placement was also based on input from the classroom teacher, but there is no testimony as to the nature of his input. (T.109-110) Finally, she testified that “ .” (T.110) But there was no testimony as to any basis for these “feelings”.
At the time of the IEP, Petitioner had been in a classroom since – for years -- and had arrived in the Spring of 2015 with . (Ex. 14). In short, all the information available to the IEP team supported a referral to the CBST, not reassignment to a public school classroom. Clearly, continued placement in a classroom was not “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”. For these reasons, Petitioner was denied FAPE during the 2014-2015 school year.
ii. The Evaluation
The preponderance of the evidence establishes that FAPE was denied when the bulk of the recommendations of the August 15, 2013 Evaluation (Ex. N) were not incorporated into the June 17, 2015 IEP. The June 20, 2014 Prior Written Notice (Ex. H)
indicates that this evaluation was considered by the IEP team.
The Evaluation was made by a specializing in at the . (Ex. N-2) She administered . Petitioner scored “ ” in . These results indicate: (1)
, (2) , (3)
, (4)
, and (5)
. (Ex. N-3) The recommended: (1)
, (2)
, (3)
, (4) , (5)
, and (6)
. (Ex. N-4)
The only recommendation implemented by the DOE was the simplest, that . (Exs. 4, N) The ’s remaining recommendations are not addressed in the IEP, including the recommendation of . By not addressing these recommendations, the IEP team determined that Petitioner would continue to learn hampered by . Thus, this IEP was not “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”. For these reasons as well, FAPE was denied in the 2014-2015 school year.
a. The October 6, 2015 IEP Denied Petitioner FAPE.
Again, whether an IEP provides FAPE is decided on the information available to the IEP meeting at the time the IEP was created. R.E., supra. The following documents were available to the October 6, 2015 IEP team:
1. the March 14, 2014 Evaluation (Ex. 14) [4]
2. the August 15, 2013 Evaluation (Ex. N)
3. Petitioner’s report card from the 2014-2015 school year (Ex.16)
4. Petitioner’s classroom report card from the month of September 2015 (Ex. 17)
5. Petitioner’s classroom Progress Report for the month of September 2015 (Ex. R), and
6. a September 17, 2015 Progress Report (Ex. Q) [5]
The evaluations were previously submitted to the IEP team. It stands to reason that the team had access to the report cards and progress reports generated by the DOE and can be charged with knowledge of them. Moreover, Respondent introduced these documents in defense of a substantive violation of IDEA, which might be construed as an admission that the documents were considered at the IEP meeting. As further evidence, Petitioner’s classroom teacher from the 2014-2015 school year testified to his opinion regarding her prospective placement. (T.282)
Considered together, the documents available to the IEP team and the classroom teacher’s opinion did not support a public school placement for the 2015-2016 school year.
As previously stated, the March 14, 2014 Evaluation opined that Petitioner did not belong in a public school classroom; that she had been in such a classroom for years; that as a result of such a placement Petitioner was ; and that Petitioner belonged in a classroom in a private school which specializes in teaching children with Petitioner’s particular profile. (Ex.14-
12) The findings of the Evaluation remain viable today. (T.123) There was no contrary expert report or testimony before the IEP team.
In addition, the preponderance of the other documents considered by the IEP team did not show that Petitioner made progress during the 2014-2015 school year. Although Petitioner’s final 2014-2015 Report Card (Ex. 16) shows her performing
, these grades are contradicted by her classroom Progress Report for September 2015, (Ex. R) which states that she is .
This report was written by the self-same classroom teacher who gave Petitioner at the end of 2014-2015. In addition, the September 2015 evaluation by Petitioner’s states that Petitioner would not be ready for an evaluation by a “ ” for another year. (Ex. Q) Further, the June 17, 2014 IEP gave Petitioner which meant that . (Ex. 4; T. 301-303) And the October 6, 2015 IEP ultimately gave Petitioner . (Ex. 5;
T.303) This indicates that during the 2014-2015 school year. All the documents other than the 2014-2015 report card imply that .
Nevertheless, Petitioner’s classroom teacher told the IEP meeting that Petitioner should continue in a : classroom in public school, because she was “ ”. (T. 282) But he cannot back that up. Taken as accurate, the classroom teacher’s passing 2014-2015 grades would indicate that Petitioner, who is , fully compensated for while placed in the same public school classroom within which she had stagnated for the previous years. In addition, she would have had to complete this feat with little assistance with , virtually no supporting and only 50% of the mandated by the June 17, 2014 IEP, as these services were not provided. See Failure to Implement, below. In light of the other facts, the classroom teacher’s testimony and the 2014-2015 report card are not persuasive.
For these reasons, I find that the October 6, 2015 IEP was not “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”. Accordingly, Petitioner was denied FAPE during the 2015-2016 school year.
4. FAILURES TO IMPLEMENT
a. Respondent Failed to Implement the June 17, 2014 and October 6, 2015
IEPs.
…[A] m aterial failure to implement an IEP violates the IDEA. A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child's IEP… The materiality standard does not require that the child suffer demonstrable educational harm in order to prevail.
However, the child's educational progress, or lack of it, may be probative of whether there has been more than a minor shortfall in the services provided.
V an Duyn ex. rel. V an Duyn v. Baker School Dist. 5J, 502 F.3d 811, 822 (9th Cir. 2007) 6;
A .P. v. Woodstock Bd. of Educ., 2010 WL 1049297 (2d Cir.) (citing V an Duyn); A .S. v. New Y ork City Dept. of Educ., 2011 WL 12882793 at *17 (EDNY) (citing V an Duyn). In addition, failure to implement “related services”, such as those at issue here, may be material. M arcus v. Dept. of Educ., State of Hawaii, 2011 WL 1833207 (D. Hawaii) (deprivation of occupational and speech therapy included in IEP would be material implementation failure)
The V an Duyn court held that a five-hour shortfall in math per week from the eight to ten
6
Houston Independent School Dist. v. Bobby R., 200 F.3d 341 (5th Cir. 2000) and its progeny are not applicable here. The Fifth Circuit evaluates the materiality of a failure to implement looking only at the “substantial or significant provisions of the IEP”. It does not address the situation where, as here, considerable damage is caused by the failure to implement a “related service”. hours required by the IEP was a “material implementation failure”. Id. at 823. A loss of five hours versus the eight to ten required is a loss of 50 to 62% of the mandated amount. On the other hand, a loss of 25% of mandated services is not yet material. R.C. v. Byram Hills School District, 906 F.Supp.2d 259 (SDNY 2012) (reduction of fifteen minutes from required one-hour math period not material failure to implement) Accordingly, under current case law, there is a failure to implement where there is a loss of between 25% and 100% of mandated services
a. Respondent Failed to Implement the June 17, 2014 IEP.
By this standard, Petitioner’s losses during the 2014-2015 school year are material. The
June 6, 2014 IEP covering the 2014-2015 school year provided for
, and .
But Petitioner did not receive of the sessions mandated, a loss of .
Petitioner did not receive 60 of the sessions mandated, a loss of . And
Petitioner did not receive of of the 36 sessions mandated, a loss of All of these losses are material as they are more than minor departures from the mandated services.
Accordingly, Petitioner was denied FAPE.
As set forth above, the evidence does not establish that Petitioner progressed during the 2014-2015 school year. This lack of progress confirms the materiality of the failure to implement. V an Duyn, supra.
b. Respondent Failed to Implement the October 6, 2015 IEP.
The October 6, 2015 IEP covering the 2015-2016 school year made the same provisions regarding related services as the previous IEP. Again, there was a material failure to implement the IEP. Petitioner did not receive of mandated sessions, a loss of In addition, her provider was not certified to . (T.175-176) She did not receive of mandated sessions, a loss of And she did not receive out of mandated sessions, a loss of These losses represent more than minor departures from the services mandated. As set forth above, such losses are material.
Accordingly, FAPE was denied in the 2015-2016 school year.
The evidence of Petitioner’s progress or lack thereof during the 2015-2016 school year is conflicting. Her progress cannot be assessed. Since the burden of proof is on Respondent, we must conclude that there was little progress.
5. RESPONDENT SHALL FUND THE INDEPENDENT EDUCATIONAL
EVALUATIONS.
The Parent is entitled to an independent educational evaluation at public expense where she disagrees with an evaluation performed by the DOE. 34 CFR 502(b)(1); 8 NYCRR
200.5(g)(i). She does not have to provide her reasons. 34 CFR 300.502 (b)(4). By letter dated November 22, 2016 (Ex. W), the Parent expressed her disagreement with the May 20, 2016
Evaluation by the DOE and requested a publicly funded evaluation. By letter dated December 6, 2016, (Ex. U) the Parent expressed her disagreement with a January 7, 2016 Evaluation performed by the DOE and requested a publicly funded evaluation. The DOE did not file a Due Process Complaint contesting the quality of the independent educational evaluations pursuant to 34 CFR
300.502(c)(i) & (ii) and thereby waived its right to contest the requests for funding. Accordingly, the Parent is entitled to public funding for the two private evaluations. The usual and customary fee for a Evaluation is . The usual and customary fee for an Evaluation is . Public funding is not to exceed these amounts.
6. COMPENSATORY EDUCATION
The IDEA empowers courts [and hearing officers] with the broad authority to fashion appropriate relief, considering equitable factors, which will effectuate the purposes of the IDEA.
Sch. Comm. of Town of Burlington v. Dep’t of Educ. of M ass., 471 U.S. 359 (1985) Where a school system fails to provide special education or related services to a disabled student, the student is entitled to compensatory education, "i.e., replacement of educational services the child should have received in the first place." Reid v. District of Columbia, 401 F.3d 516, 518 (D.C.
Cir. 2005). An award of compensatory education “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Id. This standard “carries a qualitative rather than quantitative focus,” and must be applied with
“[f]lexibility rather than rigidity.” Id. at 524. New York State has applied a qualitative approach.
See, e.g., N.Y. SRO Decision No. 13-048 (Sept. 18, 2013); N.Y. SRO Decision No.12-235 (Sept.
3, 2013); N.Y. SRO Decision No. 12-209 (May 3, 2013).
a. The Full IEP Team Shall Meet and Consider All Evaluations.
Petitioner asks that the IEP team be reconvened, following their receipt of Petitioner’s
June 12, 2017 private Evaluation (Ex. BBB) and a new
Evaluation, to reevaluate all aspects of Petitioner’s IEP based on those evaluations. Petitioner is entitled to this relief. 20 U.S.C.A. §1415(i)(2)(C)(iii); 20 U.S.C. 1414(d)(3)(A)(iii); M.M., supra.
However, it should be noted that, aside from referral to the CBST, Petitioner has not requested any specific results for the proposed new IEP.
The Annual Review date on the September 8, 2016 IEP (Ex.6) is June 22, 2017. On June 28, 2017, the IEP team prepared a draft IEP with an implementation date of September 7, 2017.
(IHO Ex.iii) But the Attendance Page reveals that the IEP meeting was not attended by the Parent. Only the IEP team reviews and revises an IEP. 20 USC Sec.1414(d)(4)(A)(i). And the IEP team must include the Parent. 20 USC 1414 (d)(2)(B)(i). Therefore, the IEP is not valid.
Accordingly, the IEP team must meet again and include the Parent. That meeting shall take place within two weeks from the date of this Order so that the Parent may obtain and/or submit updated and Evaluations.
Within two weeks of the IEP meeting, the District Representative shall write a letter to the Parent explaining the integration and/or lack of integration of the recommendations of the and Evaluations.
b. Petitioner is Entitled to an Appropriate Classroom and School.
Petitioner requests that the IEP team refer her case to the CBST for an appropriate private school placement. An Impartial Hearing Officer has the power to grant a private school placement as compensatory education. See, e.g., Burlington, supra. In the case of a Parent’s unilateral placement of their child in a private school, a court may order tuition reimbursement where (a) the balance of the equities weighs in favor of the Petitioner, (b) the school district has denied the child a free, appropriate, public education, (“FAPE”) and (c) the private school is appropriate for the child. Florence County Sch. Dist. Four v. Carter, 510 U.S. 359 (1993); Burlington, supra.; 20 USC §1412(a) (10) (C). Here, Petitioner has shown a denial of FAPE over a three-year period. Instead of making a unilateral placement and seeking reimbursement, she is asking that the CBST find her an appropriate school. The March 14, 2014
Evaluation has defined an appropriate placement as a classroom in a private school which is experienced in teaching children with profiles similar to Petitioner, i.e.
. There is no evidence of any equitable issue that weighs against Petitioner. Thus,
Petitioner is no less deserving of equitable relief than the Petitioner in Burlington. As compensatory education, Petitioner is entitled to placement in a private school meeting the criteria set forth in the March 14, 2014 Evaluation for the current school year and the following two school years. The CBST is to locate that school.
In its Closing Statement, (IHO Ex. i) Respondent argues that an Impartial Hearing Officer does not have the authority to award a private placement. Respondent cites cases in support of the proposition that deference must be paid to the DOE on the content of the IEP. But these cases apply only where there has been a finding that the IEP provides FAPE. “So long as the administrative record provides sufficient support that the substantive contours of the IEP are reasonably calculated to confer educational benefits, … it is not within a Court's purview to upset the programming recommended by the CSE.” E.W .K. ex rel. B.K. v. B oard of Educ. of Chappaqua Cent. School Dist., 884 F.Supp.2d 39 (SDNY 2012) Accordingly, the cases cited by Respondent concern methodology rather than the “substantive contours of the IEP” which are at issue here. Respondent also cites A pplication of a Student with a Disability , Appeal No.15-077
(Oct. 9, 2015). But, to the extent that Respondent relies upon it for the proposition that a Hearing Officer may not order a private placement, such a holding would be contrary to the governing law. In any event, the opinion of a State Review Officer is not binding on an Impartial Hearing Officer. “The decision of the State Review Officer… shall not constitute binding precedent … in any forum whatsoever. 8 NYCRR 279.12.
The evidence shows that Respondent should have relied on the recommendation of a private school, for the 2014-2015 and 2015-2016 school years. Since FAPE was conceded for the 2016-2017 school year, a private school placement is permissible there as well. Accordingly, as compensatory education, Petitioner is entitled to placement for the current school year and next two school years at an appropriate private school. Petitioner has requested that the CBST make that placement, and nothing precludes my ordering the CBST to do so.
c. Petitioner is Entitled to Related Services as Compensatory Education.
By stipulation on the record (T.416-418) the parties agreed that Petitioner did not receive a total of mandated over the 2014-2015, 2015-2016 and 2016-2017 school years. In addition, she did not receive a total of mandated . Finally, she did not receive mandated . Petitioner is entitled to receive all of the outstanding sessions of related services. Petitioner seeks compensation for providers at a rate of per hour, implicitly requesting Related Services Authorizations, but she does not provide evidence supporting this rate.
Exhibit iv, Respondent’s “2010-2011 Rate Schedule for Independent and Preschool
Providers of Related Services for New York City Preschool Students” was submitted in response to my request for evidence of the applicable rates of compensation in this case. Exhibit v,
“Customary hourly rates for providers, and in the New York City area” was submitted by Petitioner in response to the same request. In order to arrive at fair and reasonable rates of compensation, I took the average of the submitted rates, except that I took the higher of the rates for submitted by the DOE, and I took the lower end of a range of rates provided for by Petitioner. The resulting rate for is per hour. The rate for is per hour. And the rate for is per hour. I award the outstanding hours of related services at these rates of compensation.
d.
Petitioner seeks the cost of to any related service provided outside of the home. However, Petitioner did not allege the applicable costs nor offer any evidence of what the cost of such a service would be. So, I am unable to grant this request.
7. ABSTENTION FROM RULING ON ATTORNEY’S FEES CLAIM
The IDEA does not authorize an administrative hearing officer to award attorneys' fees or other costs to a prevailing party; and entitlement, if any, to costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415[i][3][B]; Murphy v. A rlington Cent. Sch. Dist.
Bd. of Educ., 402 F.3d 332 (2d Cir. 2005). Depending on the circumstances of a case, a parent's attorney, the state educational agency or local educational agency may be awarded attorneys' fees by a court. 20 U.S.C. § 1415 (i)(3); 34 C.F.R. § 300.517 (a)(1). Accordingly, I abstain from a decision on this request.
ORDER
1. Respondent shall fund a Evaluation up to a fee of and an Evaluation up to a fee of . Payment shall be made directly to the provider within thirty days of receipt of the invoice.
2. An IEP team will convene within one month of this Order and not sooner than two weeks after this Order to consider the recommendations of the Evaluation and the Evaluation and their effect on all aspects of the IEP covering the 2017- 2018 school year.
3. Within two weeks after the IEP meeting, the IEP team shall provide Petitioner with a written statement of the reasons why any recommendation has been rejected.
4. The CBST, in conjunction with the Parents, shall obtain a private placement meeting the specifications of the March 14, 2014
Evaluation (Ex. 14) within thirty days of this Order.
Petitioner shall be placed for this school year and shall continue in this placement for two more years. This placement shall be funded by
Respondent.
5. Respondent shall provide Petitioner with Related Services Authorizations (“RSA”) covering sessions of at an hourly rate of within thirty days of this Order. These RSAs shall not expire sooner than three years from the date of this Order.
6. Respondent shall provide Petitioner with Related Services Authorizations (“RSA”) covering sessions of at an hourly rate of within thirty days of this Order. These RSAs shall not expire sooner than three years from the date of this Order.
7. Respondent shall provide Petitioner with Related Services Authorizations (“RSA”) covering session of at an hourly rate of within thirty days of this Order. These
RSAs shall not expire sooner than three years from the date of this
Order.
8. The request for the cost of is denied.
9. I abstain from a ruling on attorney’s fees. SO ORDERED: Elizabeth Hill Impartial Hearing Officer DATED: September 12, 2017
Footnotes
[2] “… [T]he term “educational placement” in the [IDEA] regulations “refers only to the general type of educational program in which the child is placed.”” T.Y . v. New Y ork City Dept. of Educ., 584 F.3d 412 (2d Cir. 2009)(citing Concerned Parents v. N.Y . City Bd. of Educ., 629 F.2d 751, 756 (2d Cir.1980)
[3] Exhibit H, the June 20, 2014 Prior Written Notice indicates that the following documents were considered by the IEP team: (1) a March 6, 2014 Evaluation, (2) a February 7, 2014 Evaluation, and (3) a June 11, 2014 Teacher Report. The June 17, 2014 IEP (Ex.4) indicates that a was also available to the IEP team . However, none of these documents were offered in evidence and there was no testimony concerning them. Thus, they cannot be considered in the analysis of the propriety of the IEP team ’s decisions. Indeed, Respondent’s failure to produce these records might give rise to a negative inference as to their content.
[4] All of the documents available to the June 17, 2014 IEP team remained available to the October 6, 2015 IEP team. In addition, the IEP references an August 7, 2014 , presumably related to Petitioner. (Ex. Z) This document is incomprehensible absent explanatory testimony, and there was none. Accordingly, it is not considered in this analysis.
[5] In addition, the October 6, 2015 IEP indicates that an undated (Ex.5-1) was performed, but it is not in evidence. The Prior Written Notice for the October 6, 2015 IEP meeting (Ex. G) indicates that a March 6, 2014 Evaluation and a February 7, 2014 Evaluation were considered, but they are not in evidence. Documents not in evidence may not be considered in this analysis.