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FINDINGS OF FACT AND DECISION
Case Number: 165257
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 24, 2017
June 8, 2017
June 14, 2017
July 5, 2017
April 12, 2018
April 23, 2018
April 26, 2018
April 30, 2018
Actual Record Close Date: August 14, 2018
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSON WHO APPEARED
APRIL 24, 2017
For the Student:
Attorney
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 8, 2017
For the Student:
Attorney
For the Department of Education:
District Representative
(Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 14, 2017
For the Student:
Attorney
For the Department of Education:
District Representative
(Via Telephone)
(Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 5, 2017
For the Student:
Attorney (Via Telephone)
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 12, 2018
For the Student:
Attorney
(Via Telephone)
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 23, 2018
For the Student:
Attorney
(Via Telephone)
Parent (Via Telephone)
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 26, 2018
For the Student:
Attorney
(Via Telephone)
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 30, 2018
For the Student:
Attorney
(Via Telephone)
(Via Telephone)
For the Department of Education:
District Representative
On the amended Due Process Complaint dated January 24, 2017, the matter of the above Student came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1).. Appended to the record are the names of the persons who appeared.
The parents brought this complaint to challenge the Student’s IEP and program for the school years, 2014-2015, 2015-2016, and 2016-2017 school year, alleging a variety of FAPE violations. As a remedy, the parents requested a wide variety of relief, as discussed, infra.
On June 13, 2017, the Impartial Hearing Officer (“THO”) ordered the following independent educational evaluations (“IEEs”): (i) evaluation, (11) evaluation, and (ii1) evaluation. On June 13, 2017, the Impartial Hearing Officer (“THO”) ordered the following independent educational evaluations (“IEEs’’): (1) evaluation, (11) evaluation, and (111) evaluation.
Upon the joint application of the parties, multiple timelines extensions were granted in this case. For each such extension, I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District.
FINDING OF FACT
The Student is a who is classified as
. Tr. 323-4.
. Tr. 326-7.
During the past several school years, the Student has been attending . During the 2014-2015 school year, the Student was in a With
> and . During the 2015-2016 school year, was again in a At the January 2016 IEP meeting, were modified from to . Ex. C. His mandates remained the same. During the 2016-2017 school year, the Student moved into an on a trial basis, and the January, 2017 IEP was subsequently modified to reflect this change. The January 2017 IEP also modified related services; was reduced from to . The mandate remained as , and the mandate remained as
CONCLU_ ION OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
A FAPE is offered to a student when (a) the District 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. _ While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415()(1)(E)(11); 34 C.F.R. Sect. 300.513(a)(2).
A free appropriate public education “must include ‘special education and related services’ tailored to meet the unique needs of a particular child, and be ‘reasonably calculated to enable the child to receive educational benefits.’ ” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (quoting Bd. of Educ. v. Rowley 458 U.S. 176, 207 (1982)) (internal citation omitted). While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(i1); 34 C.F.R. Sect. 300.513(a)(2).
As pointed out by Petitioner, the Department conceded FAPE for a portion of the 2015-2016 school year and aportion of the 2016-2017 school year. In regard to the other time periods, the parents contend that the District failed to properly evaluate the Student in terms of . The Department has a duty to assess students in all areas of suspected disability, including, where appropriate, “social and emotional status,” “academic performance,” “communicative status and motor abilities.” 8 NYCRR Sect.
99 66
200.4(b)(6)(vii). The District also has a duty to review existing evaluation data on the child, including current classroom-based, local or State assessments, classroom based observations, and observations by teachers and related services providers. 34 CFR Sect. 300.305(a)(1)G)-Gii). In New York State, where a student's behavior impedes his or her learning or that of others, the CSE may be required to consider having an FBA conducted and a BIP developed for a student in certain non-disciplinary situations. 8 NYCRR 200.4(d)(3)(1); 8 NYCRR Sect. 200.22(a), (b)). An FBA is defined in State regulations as "the process of determining why a student engages in behaviors that impedes learning and how the student's behavior relates to the environment" and "include[s], but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it." 8 NYCRR Sect. 200.1(r)). According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the student's history of presenting problem behaviors. 8 NYCRR Sect. 200.22(a)(2). An FBA must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a BIP (if required) may be developed "that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement." 8 NYCRR Sect. 200.22(a)(3)).
It is undisputed that
However, no services were added to address , and no full assessment was ever conducted to address . needs in a meaningful way. The Parent asked if (Ex. 13-2, Tr. 80), but was told by the school that this was not necessary (Tr. 342). Moreover, the school never . While there is evidence that there are strategies that may , the Department failed to consider failed to consider or recommend such services, which include
It is noted that courts have held that can be denied a FAPE if they have demonstrated good progress with and the District eliminates that therapy from the IEP. In M.H., a kindergartner was getting
There was a significant amount of evidence in the record that this program was providing the Student with educational benefit, including reports from the and a report from a physician. The Student was recommended for the very same program and the very same educational placement that was recommended here. The parents observed the placement, where it appeared that and the school offered only minimal
After the administrative review, the District Court found for the parents, finding that the program and placement did not provide sufficient . The Circuit affirmed, in a lengthy and meticulously detailed decision, indicating that courts should carefully consider issues relating to methodology. 685 F.3d at 252-253; accord P.K. and T.K. v. New York City Dep’t of Educ., 819 F. Supp.2d 90 (S.D.N.Y. 2011)(where kindergartner needed to gain educational benefit,and District eliminated from IEP, FAPE denial resulted).
Accordingly, I agree with Petitioner that the Department denied the Student a FAPE during the three years in question, and need not address the other issues raised in the Due Process Complaint.
REMEDY
Where Districts have failed to offer students a FAPE, courts have wide discretion to insure that students receive a FAPE going forward. As the Supreme Court has stated:
The statute directs the court to “grant such relief as [it] determines is appropriate.” The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be “appropriate.” Absent other reference, the only possible interpretation is that the relief is to be “appropriate” in light of the purpose of the Act. As already noted, this is principally to provide handicapped children with “a free appropriate public education which emphasizes special education and related services designed to meet their unique needs. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359, 371 (1985).
As relief, Petitioner requests a wide range of relief, including a program that includes , to be provided at an appropriate educational placement approved by the Parent, by at an enhanced rate within the range paid by the DOE’s impartial hearing implementation office; 3 3
; and related service authorizations at the enhanced rate for services that are provided outside of school.
The parent’s proposed program is fair and supported by the record. The Department objected to the request for , but the record indicated that the Student has . The experts for the parent convincingly testified that is an appropriate methodology to address . The Department’s objections to the were based on the misimpression that the parent bears the burden of persuasion. The Department also objected to the , but did not call a witness to support their position on this claim. However, I do agree with the Department that there is no need to order that these services be provided by an independent provider.
Petitioner also requests, as compensatory education: a bank of totaling ; a bank of totaling ; a bank of totaling ; a bank of totaling 5a bank of totalling ; a bank of totaling ; for any services listed above that are not provided in the school or at the home; and Compensatory education is an available option under the Act to make up for denial of a free and appropriate public education. While the Circuit has previously enunciated a “gross violation” standard in this connection, Garro v. State of Connecticut, 23 F.3d 734, 737 (2d Cir. 1994), this standard is at odds with the standards in most jurisdictions. In P. v. Newington Bd. of Educ., 546 F.3d 111 n.13 (2d Cir. 2008), the Circuit signaled that the Garro approach is only applicable where Students are over 21. In so analyzing this issue, the court referenced the seminal compensatory education case of Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). In Reid, the D.C. Circuit explained that compensatory education should be fashioned without a “cookie cutter approach” and that compensatory education must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place. Id., 401 F. 3d at 524; see also Friendship Edison Public Charter School v. Nesbitt, 532 F. Supp. 2d 121, 125 (D.D.C. 2008) (compensatory award must be based on a "'qualitative, fact-intensive' inquiry used to craft an award ‘tailored to the unique needs of the disabled student"). Additionally, there is authority in this jurisdiction for a “quantitative” approach to compensatory education. Application of a Student with a Disability, Appeal No. 14-172 (reducing a quantitatively determined award of additional services based upon evidence in the hearing record demonstrating that the student received some special education services and received some degree of benefit therefrom).
The Student has significant needs. Still, the parent’s calculations would constitute an extremely large award, premised on hour by hour calculations of missed services, and an award need not be based on an hour by hour calculation and such award does not take into account the fact that the Student did receive some education during the school years in question. It is also hard to see how the student could possibly use all these services in view of his already intense academic program during the school day. Accordingly, I agree with the Department that the number of hours, hours, and hours are excessive and should be reduced. Otherwise, I will order the relief as requested by the parent.
ORDER
As a result of the foregoing, I order the following:
1. The Student’s IEP shall be revised for the 2018-2019 school year to contain: a program that includes , to be provided at an appropriate educational placement by at an enhanced rate within the range paid by the DOE’s impartial hearing implementation office; 3 3
:
; and related service authorizations at the enhanced rate for services that are provided outside of school. 2. The Student shall also receive, as compensatory education: a bank of totaling ; a bank of totaling 5 a bank of totaling ; a bank of totaling ; a bank of totalling ; a bank of totaling ; for any services listed above that are not provided in the school or at the home; and an program consistent with the recommendations of . All services shall be used by the end of the 2020-2021 school year.
Dated: August 28, 2018
MICHAEL LAZAN, ESQ.
Impartial Hearing Officer
ML:
PLEA E 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_ 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. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. uch service is made at 100 Church treet, New York, NY 10007 at the Messenger Center.
DOCUMENTATION ENTERED INTO RECORD
STUDENT
A Due process complaint, 1/20/17, 11 pages
B IEP, 1/12/17, 18 pages
C IEP, 1/21/16, 17 pages
D IEP, 3/4/15, 22 pages
E IEP, 3/19/14, 25 pages
F , 1/5/17, three pages
G report, 11/4/16, eight pages
H evaluation, 11/28/16, nine pages
I evaluation, 12/8/16, five pages
J , 6/3/13, nine pages
K , 6/3/13, four pages
L Report card, 4/15, five pages
M Report card, 6/15, two pages
N Report card, 12/14, two pages
O report card, 3/24/17, one page
P Signed subpoenas, 3/28/17, three pages
Q Subpoena response, Various dates, 36 pages
R , 9/10/17, one page
S evaluation, 8/17, 20 pages
T evaluation, 6/19/17, 15 pages
U Affidavit of , unidentified date, two pages
W report, 6/14/17, seven Pages
Y Affidavit of , unidentified date, four pages
DOE
1 Due process complaint, 1/20/17, 11 pages
2 IEP, 1/12/17, 18 pages
3 JEP, 1/21/16, 20 pages
4 IEP, 3/4/15, 22 pages
5 IEP, 3/19/14, 19 pages
6 Notice, 1/11/16, three pages
7 Prior written notice, 3/11/16, four pages
8 Notice, 2/23/15, three pages
9 Prior written notice, 4/1/14, four pages
10 Reevaluation document, 12/2/16, one page
11 Signed consent, 12/20/16, one page
13 , 1/12/17, three pages
14 , 1/22/17, two pages
15 Prior written notice, 1/17/17, four pages
16 RSA , 3/3/16, three pages
17 RSA , 12/1/15, three pages
18 Waiver, 5/23/14, two pages
19 annual review plan, 4/10/13, three pages
20 referral, 10/2/13, two pages
21 referral, 6 2/12/17, two pages