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: 165300
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: February 8, 2017
March 15, 2017
March 22, 2017
April 4, 2017
April 21, 2017
Actual Record Closed Date: May 12, 2017
Hearing Officer: Bruce Olinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 8, 2017
None — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 15, 2017
Advocate (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 22, 2017
Advocate — Student
Parent (Via Telephone) — Student
District Representative — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 4, 2017
Advocate — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 21, 2017
Advocate — Student
Parents
(Via Telephone) — Student
(Via Telephone) — Student
District Representative — DOE
District Representative — DOE
INTRODUCTION
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education laws. The New York City Department of Education will be referred to as District or the DOE and the parents as Parents or CM and the child will be referred to as Student or NC.
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. 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 subsequently appeal 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).
PROCEDURAL HISTORY
This hearing was requested by a Due Process Complaint on January 23, 2017 by , the parent of student (Parent Ex. A). The nature of the complaint to be addressed in this Decision is the determination of the DOE to not provide to to provide as requested by Parent during the IEP meeting of January 11, 2017, said IEP to be implemented effective January 12, 2017. It is noted that, during such IEP meeting, the DOE and Parent agreed on an increase in . It is additionally noted that, also during such IEP meeting, the DOE recommended the removal of the for Student , with the actual IEP dated January 11, 2017 containing no recommendation for such . Although the Parent initially contested such removal of the , and included that claim as part of her Due Process Hearing complaint, she subsequently agreed, both in writing at a subsequent IEP meeting in March, 2017, as well as on the record during the hearing date of March 22, 2017, to such removal of the , stating on the record that the only issue remaining for review was the requested to provide
to Student
The undersigned was appointed as Impartial Hearing Officer on January 25, 2017.
A Pendency Hearing was held on February 8, 2017, with a Decision and Order on Pendency having been issued by the undersigned on February 13, 2017 (IHO Exhibit I).
Thereafter, hearings were held on March 15, 2017, March 22, 2017, April 4, 2017 and April 21, 2017. During all such hearings, the DOE was represented by and , and the Parent was represented by , Advocate, with the undersigned presiding.
During the course of the proceedings, the parties moved to extend the case compliance date in this matter on March 15, 2017 and April 21, 2017 , in order to allow for an examination of all relevant witnesses and documents, and to complete the hearing.
In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (IHO Exhibit II). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
The hearing record was closed effective May 12, 2017, the date of receipt of the closing statements/arguments of both parties.
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).
FACTUAL BACKGROUND
Student is a disabled child who is diagnosed with
.
.
.
.
.
. She also
presents with and receives
to address same, the receipts of which are not at issue for this hearing.
PARENT’S POSITION
The Parents allege that Student has been denied a FAPE for the 2016/17 school year, beginning January 12, 2017, due to the failure of the DOE to provide in the amount of to provide to address ’s specific needs, as requested during the IEP meeting of January 11, 2017. Parent further alleges that since she last received under and requires the reinstitution of such services as a student. Parent further alleges that, due to such denial, has been harmed educationally and seeks, pursuant to the hearing request, such as well as compensatory education to address such denial and to compensate for the non-receipt of same.
DISTRICTS POSITION
The District contends that the January 11, 2017 IEP developed for appropriately and adequately addressed all of ’s educational needs and that, as a result, was offered a FAPE for the current school year.
FINDINGS OF FACTS AND CONCLUSIONS OF LAW
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 Forest Grove v.
T.A ., 557 U.S. 230, 239 (2009); B oard of Educ. of the Hendrick Hudson Cent. Sch. Dist.
v. Rowley, 458 U.S. 176, 206-07 (1982) 1.
1. 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 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (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" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).
Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at
132).
However, in the recent decision of the United States Supreme Court, Endrew F.,
Et A l v. Douglas County School District RE–1, by Certiorari to The United States Court
Of Appeals for the Tenth Circuit, No. 15–827, argued January 11, 2017, and decided March 22, 2017, the Court held that, while Rowley declined “to establish any one test for Case No. 165300 determining the adequacy of educational benefits conferred upon all children covered by the Act”, 458 U. S., at 202, it nevertheless still held that “a substantive standard was “implicit in the Act”. Rowley , 458 U. S., at 193, n. 15. It similarly held that “the statement that the Act did not “guarantee any particular level of education” simply reflects the unobjectionable proposition that the IDEA cannot and does not promise “any particular [educational] outcome.” Id.at 192. Rather, the Court in Endrew held that, “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 circum stances (emphasis added), as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth”. §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all”. The Court in Endrew further stated that “The IDEA demands more.
It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”. And although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created”. Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982).
The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see 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, 486 Fed. App'x 954 [2d Cir. 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F.
Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. 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 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), 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 CFR 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 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).
Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320). The school district must provide special education and related services to a student with a disability in accordance with the student's IEP and must make a good faith effort to assist the student to achieve the annual goals and, if appropriate, short-term instructional objectives or benchmarks listed in the student's IEP. See 8 NYCRR 200.4(e)(7). With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way (T.L. v. New
York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S., 2011 WL 3919040, at *13; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; see A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]). In order to show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimis failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP (see Houston Indep. Sch. Dist., 200 F.3d at 349; see also Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524–25 [3d Cir. 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]). Accordingly, in reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" (A.P., 370 Fed. App'x at 205; see Van Duyn, 502 F.3d at 822 [holding that a "material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled [student] and the services required by the [student's] IEP"]; see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D. D.C. 2007] [holding that where a student missed a 'handful' of speech-language therapy sessions as a result of the therapist's absence or due to the student's fatigue, nevertheless, the student received consistent speech-language therapy in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program]).
NYCRR 200.1 provides:
Definitions: As used in this Part:
(mm) Preschool student with a disability is a preschool child as defined in section
4410(1)(i) of Education Law who is eligible to receive preschool programs and services, is not entitled to attend the public schools of the school district of residence pursuant to section 3202 of the Education Law and who, because of mental, physical, or emotional reasons, has been identified as having a disability and can receive appropriate educational opportunities from special programs and services approved by the department. Eligibility as a preschool student with a disability shall be based on the results of an individual evaluation which is provided in the student's native language, not dependent on a single procedure, and administered by a multidisciplinary team in accordance with all other requirements as described in section 200.4 (b) (1) through (5) of this Part.
NYCRR 200.16 provides:
(a) Eligibility. A preschool student with a disability shall be eligible for special education services and programs pursuant to section 4410 of the Education Law provided that the student has a disability as defined in section 200.1 (mm) of this Part.
(f) Prov ision of services for preschool students with disabilities. (1) Upon receipt of the recommendation of the committee, the board of education shall arrange for the preschool student with a disability to receive such programs and services commencing with the July, September or January starting date for the approved program, unless such services are recommended by the committee less than 30 school days prior to, or after, such appropriate starting date selected for such preschool student, in which case, such services shall be provided as soon as possible following development of the IEP, but no later than 30 school days from the recommendation of the committee and within 60 school days from receipt of consent to evaluate. If the board disagrees with the recommendation of the committee, it shall send the recommendation back to the committee with notice to the parent and the committee including a statement of the board of education's reasons and that the recommendation will be sent back to the committee with notice of the need to schedule a timely meeting to review the board's concerns and to revise the IEP as deemed appropriate.
(2) The board of education shall notify the parent, the commissioner, the appropriate municipality and the preschool program or related services provider selected to provide the services of its approval. If the individualized education program (IEP) includes two or more related services, where possible, the board shall select from the list maintained by the municipality pursuant to section 4410(9) of the Education Law, such related services providers that are employed by a single agency for the provision of such services. The board shall provide each related service provider with a copy of the individualized education program and the name and location of each related service provider. The board shall designate one of the service providers to coordinate the provision of the related services. If the IEP includes special education itinerant services and one or more related services, the special education itinerant service provider shall be responsible for the coordination of such services.
200.6 Continuum of services.
(a) A student with a disability shall be provided with appropriate special education.
(1) Students with disabilities shall be provided special education in the least restrictive environment, as defined in section 200.1(cc) of this Part. To enable students with disabilities to be educated with nondisabled students to the maximum extent appropriate, specially designed instruction and supplementary services may be provided in the regular class, including, as appropriate, providing related services, resource room programs and special class programs within the general education classroom.
(2) A student with a disability shall be provided the special education specified on the student’s IEP to be necessary to meet the student's unique needs.
(3) Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following:
(i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained.
(ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement.
(iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement.
(iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction.
As provided in 8 NYCRR 200.6(e):
Related services shall be recommended by the committee on special education to meet specific needs of a student with a disability as set forth in the individualized education program (IEP).
(1) The frequency, duration and location of each such service shall be in the IEP, based on the individual student's need for the service.
(2) For students with disabilities determined to need speech and language services, the total caseload of such students for teachers providing such services shall not exceed
65.
(3) When a related service is provided to a number of students at the same time, the number of students in the group shall not exceed five students per teacher or specialist except that, in the city school district of the city of New York, the commissioner shall allow a variance of up to 50 percent rounded up to the nearest whole number from the maximum of five students per teacher or specialist.
(4) A student with a disability may be provided with more than one such service in accordance with the need of the student.
(5) Related services may be provided in conjunction with a regular education program or with other special education programs and services.
A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).
COMPENSATORY SERVICES
The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New
York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]. Compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award 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"]; Parents of Student W. v. Puyallup
Sch. Dist., 31F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]; Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10- 052). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; S.A. v. New York City Dep't of Educ., 2014 WL 1311761, at *7 [E.D.N.Y. Mar. 30, 2014] [noting that compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v.
L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's]
educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puyallup, 31 F.3d at 1497 [finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]; Application of a Student with a Disability, Appeal No. 13-168; Application of the Dep't of Educ., Appeal No.12-135; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).
Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a 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 Regional School District, 81 F.3d 389, 297 (3d Cir. 1996) (holding generally that subject to equitable adjustment, the “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.” 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. Reid, supra at 526.
ANALYSIS
The issue to be decided is whether a FAPE was provided to Student for the 2016/17 school year, beginning January 12, 2017, particularly with regard to the DOE’s failure to provide, as part of her IEP, and pursuant to the request of Parent at the January 11, 2017 IEP meeting, for the provision of to address ’s particular needs.
All page numbers in parenthesis shall refer to transcript page numbers.
The DOE presented one witness, , for the
DOE. Ms. has a Bachelor’s degree in , a Master’s degree in , and is licensed as both a as well as a
(p. 38-39). She stated that although she has participated in two separate
IEP meetings concerning , she has never met nor interacted with (p. 39). She testified that in addition to the recommended placement, together with related services of , the CSE team, of which she was a part, rejected the request of
(p. 41-42). She stated that was not recommended because it was represented to her by ’s teachers and related service providers that had made academic progress, that such teachers did not feel it was needed, and the CSE team felt that it was important to keep in the least restrictive environment possible (p. 42; 48). Ms. also testified that Parent was not in agreement with the recommendation that her child not receive the requested
(p. 49-50). She also testified that she believed that Parent had requested the to help with , but could not be absolutely certain
(p. 60-61). Finally, on direct examination, Ms. stated that she does not recall with specifics the exact areas of delays in (p. 62).
On cross examination, Ms. testified that, while she does not recall specific areas of delays in skills in the areas of , she believes that such delays do exist in those areas (p. 62-63). She further testified that she has never observed personally , either in the classroom setting or otherwise (p. 63). When asked whether she recalled Parent raising the issues of , Ms. stated that she could not recall
(p. 62-65).
Testifying on behalf of the student was her Parent, Parent testified that she attended both the initial IEP meeting of January 11, 2017, as well as the second IEP meeting of March 17, 2017, during which time a clarification letter was submitted from one Dr. (whose testimony will be discussed below), and at both meetings requested that her child be given to address (p. 98-99). She further testified that has regressed in numerous areas, including
(p. 106). She stated that she was in agreement with the Educational Progress Report of ’s teacher, dated December 20, 2016, which assessed
(Parent Ex. L, p. 108).
In speaking again about the regression of , Parent testified that her child had previously received services prior to , including , and that the skills she has now were attained during such
(p. 114). But since that time, after the stopped, has regressed in numerous ways. For example, Parent testified that
.
. (p. 114-115). She
testified that the previously provided to
; since the stopped, has regressed in all such areas (p.116). She further testified that for a while she utilized her private insurance to obtain for , but coverage for such services ended around June, 2016 and that, once again, the cessation of these resulted in regressing in the areas of (p. 117). She further testified that the CSE’s recommendation for for the 2017/18 school year is a more restrictive placement (from the present ) because of ’s regression in
(p. 118). She further testified that, based on her observation of versus other children of the same age, school reports, and her professional standing as a , it is her opinion that
(p. 119). For example, testified that
, showing that
.
(p. 120).
On cross examination, agreed with the placement of in a due to ’s need for due to (p. 122-123).
She also agreed with the provision of due to
(p. 123). She agreed with the provision of due to ( ) (p. 123-124). She agreed with the provision of due to
(p. 124-125), and that is an appropriate
technique due to (p.
125-126).
also testified on cross examination that she does not believe the IEP goal to is an appropriate goal for because such goal does not help
(p. 130-131). With respect to the goal for
, Parent stated that not only can not
accomplish that, but the exact same goal appeared on the previous year’s IEP, indicating that has not progressed at all in that area (135-136). She stated that the goals as contained on the IEP were appropriate insofar as , but that renders such goals useless (p. 137-
138), and the goals seeking has not been achieved at all
(p. 141). In summarizing Parent ’s opinion of the goals as contained in the IEP, stated that she does not object to the goals per-se, but rather renders such goals ineffective (p. 142).
Parent testified that she has observed at her public school and that does not receive any at school (p. 147). She again stated that has not had since and, then, for a 6 month period in which her private insurance paid for it. During the time that did receive , she progressed significantly but, after it stopped, showed regression, particularly in the areas of (p. 148). She further testified that she was advised by the school, once began attending, that were no longer required since would receive related services to address her needs, but that has not, in fact, progressed (p.149). When asked how she believed would help at , Parent stated that it would serve to reinforce what she learned in school, as well as help (p. 150). She also stated, upon cross examination, that the acknowledged ’s lack of
(p. 154). Finally, Parent stated that, although had not received since June, 2016, and although she noticed the regression of beginning with the cessation of since such time, she did not request this hearing until 3 months into the school year because she wanted to give the recommended program in the IEP a chance to work. However, upon realizing that was not improving, and that her regressions continued without the , she determined that the IEP without the was inappropriate and requested this hearing (p. 168).
Next to testify for the Parent was , with a
Bachelor’s degree in and a Master’s degree in , who works as a for (p.
185-186). Ms. had previously conducted an educational evaluation of utilizing the , previously entered into the record and identified as Parent Ex. N, which was the result of looking at numerous areas of evaluation, input from the parent, and personal observation
(p.192), and which will be alluded to in her testimony. Ms. testified that she has been conducting such evaluations for the past 8 years and is very familiar with the methodologies used to conduct such evaluations (p. 197). She testified that received a score of due to
(p.192-193), equal to an age-appropriate score for a
(p. 194). She further testified that received a score of in
(
, which score also equated to an age
appropriate score for a (p. 193-194). In the area of , which measures , earned a score of , indicating a
(p. 196). In the areas of
, which measures
, she again earned a score of , indicating that
(p. 196-197). In the area of , which measures , again earned a score of , indicating that
(p. 197). In the area of , again earned a score of , indicating
.
(p. 198). Finally, in the areas of , again earned a score of , indicating
(p. 198-199). She also agreed with the assessment of ’s classroom teacher that
(p. 199 and Parent Ex. L). Ms.
further testified that she observed during and found
(p. 199-203). She confirmed that Parent had advised her that had regressed significantly, having lost the ability to do things that she was able to do prior (p. 204). She testified that it was her belief that required , particularly due to the regression suffered by (p. 205).
On cross examination, Ms. stated that her assessment of via the was the result of her assessment at the time of such evaluation
(December, 2016), and was in no way influenced by Parent ’s claim of regression, nor was it based in any manner on ’s prior to the date of evaluation (p. 212-
213). She further testified that the scoring rubric discussed above for is based on what would be age-appropriate for a ( ’s age), so that her raw scores, which equate to descriptive terms of , are relative to the level that a typical should achieve (p. 214). Finally, Ms. was asked by the DOE if she has a personal opinion as to the accuracy of Parent ’s assertion that has regressed since her terminated in June, 2016. She responded that it was what the Parent said, but that she has no opinion regarding it, as she had never seen prior to the present time (p. 217).
Parent , following the conclusion of the testimony of Ms. , reiterated that underwent significant regression following the termination of in June,
2016 (p. 221).
Finally to testify was Dr. , whose evaluation and follow-up letter of clarification were previously identified and entered into the record as Parent Ex. I and O.
Dr. testified that she is , with
, encompassing numerous areas of disability, including (p. 228). She
testified that met the criteria for
, based on the DSM V criteria; as a result, she determined to be “ ”, or requiring (p. 229). While she agreed with the provision of special education and related services in school, she also believed that required an , specifically , which she describes as , which she believed was needed to
, , and to
. She further testified that all such areas are typical with ’s disability of , areas in which severely suffers
(p.230). Dr. further testified that
. She stated that
, and that she really needed
to work on .
Additionally, Dr. , stated that she needed
in order to , and to
. She further stated that , another
area that needed to improve (p. 230-231). When asked to clarify what she meant by “ ”, Dr. testified that she was basing that on what Parent had related to her with respect to previously, as well as the fact that
(p. 232-234). Dr. further testified that she recommends that receive , or , because extensive research establishes that young children who get may have much better outcomes later on. Specifically, results are best when the child is young and their mind is still able to absorb and learn these things, and that really requires the , more than what she is receiving at school (p. 233-234).
On cross examination, when asked whether she believed it was necessary for to receive such after a full-day instructional program at , Dr.
explained that , , needs to be taught
everything.
. Since is a different environment, as far as is concerned, it's a different setting, and she would not be able to . She would require , with , and ensure that
. Therefore,
Dr. stated that the only way that could would be to receive the (p. 236-237). Dr.
further testified that her recommendation for is intended to address ’s need for , for , and to improve (p.
238). Dr. also sought to clarify her earlier recommendation of what appeared to be “ ”, explaining that the is really centered on , but that the parent should be able to learn, by observation, techniques and strategies utilized by the , so that the parent may continue to utilize the same techniques and strategies in the home after the leaves (p. 242-243).
In order to determine Student’ ’s eligibility for the requested to address her educational needs, attention is called to the recent Supreme Court decision in United States Supreme Court, Endrew F, cited above, which mandates that 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 circum stances (emphasis added). The decision in Endrew F. further directs that the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created, and reiterates the determination in Rowley that advancement from grade to grade does not, in and of itself, establish the provision of a FAPE. Thus, specific attention must be given to the unique circumstance of and her particular needs to address her educational deficits.
In that regard, it is initially noted that the only witness testifying for the DOE, Ms.
, testified that although she was part of the IEP meeting and participated in the recommendation to not provide the requested , she never actually met or interacted with at any time or in any manner, and never personally observed
, either in the classroom setting or otherwise. She also testified that the requested were rejected on the grounds, among others, that such would compromise ’s learning in the least restrictive environment, an argument that is accorded little weight given that such , if granted, would occur in the home; would continue to be educated with her peers in the public school in a manner with the least restriction. Ms.
acknowledged the existence of
, but could not recall or offer specifics in any such areas.
As the DOE maintains the burden of establishing that a FAPE was provided for , based on the testimony of its sole witness, as well as her lack of interaction with and lack of recall as to ’s specific educational deficits, all as noted above, the record fails to establish that such burden was met.
In an effort to determine the appropriate placement for , therefore, in compliance with the mandates of Endrew F., cited above, attention is turned to the testimony of Dr. , board certified in the area of
, including
Dr. testified that evidenced
, based on the standard DSM V criteria, requiring , and that , consistent with the findings of Ms. (testimony noted above). Dr. further testified that regression is very common among , consistent with the testimony of Parent , who testified extensively of ’s regression once were discontinued in June, 2016. Her specific recommendation was for to receive , or , because extensive research establishes that young children , such as , require in addition to what she is receiving at school.
.
. She requires
, in order to learn.
.
In summary, not only has the DOE failed to meet its burden to establish that an appropriate educational program was provided for , thus denying her of a FAPE, but the uncontested and unrefuted testimony of witnesses Ms. , Parent and Dr.
all establish not only , but the need for such service that would, in compliance with Endrew F., address her particular circumstances and educational needs. In light of ’s regression and need for specific learning methodology to address her unique needs, the record credibly establishes the need for as reasonable, under the particular attendant circumstances. The Parent is therefore eligible for , in accordance with the recommendations of Dr. , as noted below, said services to be provided retroactively to January 11, 2017, the date of the IEP meeting when Parent requested such services.
A note on compensatory services: Given the fact that the 2016/17 school year is nearly at an end, all such hours to which is determined eligible under a compensatory award shall be placed in a compensatory service “bank” to be utilized during the remainder of the current school year, as well as during the 2017/18 school year, administered by the service provider as such provider sees fit, in his/her best professional judgment, to best serve the educational needs of and to maximize the benefit of such service to
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS HEREBY ORDERED:
1. The DOE shall amend its IEP for the 2016/17 school year to provide the following:
a)
for the 2016/17 school year.
2. The DOE shall additionally provide, as compensatory services for the 2016/17 school year, an additional , as noted above, calculated for each week of school since January 12, 2017 through the date of compliance with this Order.
3. The DOE shall comply in all respects with this Decision and Order. Dated: May 17, 2017
BRUCE S. OLINGER, ESQ.
Impartial Hearing Officer BO:
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
PARENT
A. Due Process Complaint, dated 1/23/17 (7 pages)
B. Pendency Motion, dated 1/23/17 (3 pages)
C. IEP, dated 1/14/16 (14 pages)
D. Waiver of IEP, dated 01/27/17 (1 page)
E. FNR, dated 1/11/17 (2 pages)
F. Recommended Services, dated 1/11/17 (1 page)
G. Attendance Sheet, dated 1/11/17 (1 page)
H. IEP, dated 1/11/17 (15 pages)
I. Report, dated 1/23/17 (3 pages)
J. , dated 12/6/16 2017 (1 page)
K. , dated 12/20/16 (1 page)
L. Educational Progress Report, dated 12/20/16 (3 pages)
M. Report, dated 12/16/16 (2 pages)
N. , dated 12/16/16 (7 pages)
O. Letter, dated 3/24/17 (1 page)
P. , dated 6/9/15 (6 pages)
Q. , dated 6/16/15 (4 pages)
R. , dated 7/14/15 (6 pages)
S. Parent’s Closing Brief, dated May 12, 2017 (2 pages)
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), dated 1/24/17 (17 pages)
2. Final Notice of Recommendation, dated 1/11/17 (1 page)
3. DOE Closing Brief, dated May 12, 2017 (9 pages)
IMPARTIAL HEARING OFFICER
I. Decision on Pendency, dated February 13, 2017 ( 10 pages)
II. Case Extensions dated 3/15/17 and 4/21/17 (2 pages)