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: 165389
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 22, 2017
April 6, 2017
June 6, 2017
June 9, 2017
Actual Record Closed Date: July 7, 2017
Hearing Officer: Daniel Ajello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 22, 2017
Attorney — Student
Department of Education Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 6, 2017
Attorney — Student
Attorney — Student
Mother — Student
Interpreter — Student
District Representative — DOE
District Representative — DOE
DOE
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 6, 2017
Attorney — Student
Parents
Interpreter — Student
(Via Telephone) — Student
(Via Telephone) — Student
Department of Education Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 9, 2017
Attorney — Student
Parents
(Via Telephone) — Student
Interpreter — Student
Department of Education Representative — DOE
INTRODUCTION
On 03/16/2017, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals w ith Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article89 of the Education Law of the State of New
York.
On 03/22/2017, a pre hearing conference was conducted.
Appended to the record are lists of persons in attendance and the documents received in evidence.
Parent filed a Due Process Complaint (DPC) (Ex A).
DPC (Ex A) included a request for an Interim Order to allow Parent to obtain various Independent Educational Evaluations (IEE). (Ex A 9-10)
Said request was detailed further in Parent Motion Requesting an Interim Order for IEE. (Ex B, IHO Ex III)
BACKGROUND
This matter was instituted by the impartial hearing request dated 02/03/2017. (Ex A)
Parent raises matters related to 2016-2017 school year. (Ex A 1-9)
Parent alleges the Student IEP of03/31/2016 (Ex C) fails to offer a Free and Appropriate Public Education (FAPE) on procedural and substantial grounds. This includes allegations of: failure to appropriately evaluate the Student, failure to respond to a request for Independent Educational Evaluations (IEE) (Ex A 4) and failure to develop appropriate present levels of performance (Ex A 6) nor goals. (Ex A 10)
Parent seeks relief that includes a finding the 03/31/2016 IEP denies the Student a FAPE, production of Student file, various IEEs (Ex A 9-10), a Committee on Special Education (CSE) reconvene, upcoming DOE notices in , placement in a program, compensatory services for , and funding of initial assessment for . (Ex A 10)
Interim Order addressed IEES and those issues have been resolved to the extent of the Order. (IHO Ex III)
Student is a girl who is currently attends a New York City community school in a class. (Ex C-5) Student is diagnosed with
. (Ex Z 21)
Student presents with
. (Ex Z 21)
Student issues include:
. (Ex Q-11, Z-21, P-12, E-1)
IEP, developed for entering , includes:
(Ex C 1); (Ex C 2); (Ex C
5), (Ex C 6); (Ex C 8-9); (Ex C 9).
Student began receiving special education services through early intervention during the 2013-2014 school year, which included
. (Ex D-1)
Student received during the 2014-2015 school year. (Ex D)
The Committee on Special Education (CPSE) placed the Student in a special education class where services continued. (Ex Z-5)
For the 2015-2016 school year, Student attended a special education class and received . (Ex K-1)
In preparation for , the DOE conducted a
, classroom observation and a
. (Ex E, F & I)
The update, dated February 3, 2016, includes the Parent ’s preferred/home language was (Ex E)
IEP meeting was held on 03/31/2017, and IEP produced, which is now the subject of this hearing. (Ex C)
PARENT POSITION
( ), appeared at hearing, and presented the parents’ position.
submitted Closing Brief in support of, and to explain, Parent’s position and relief sought. (Ex DD)
Parent requests various forms of relief, hinging upon the failure, if any, of the DOE to offer a FAPE for the 2016-2017 school year. Relief sought is delineated in Closing Brief. (Ex DD)
Some issues/relief raised are addressed below.
1. Parent requests that the IHO shall find the March 2016 IEP denies the Student a FAPE and the CSE should be ordered to convene to develop a compliant IEP. (Ex DD
17) IHO will review if DOE offered a FAPE through the relative IEP. Any meeting undertaken already is mandated to be “a compliant IEP” so that issue need not be addressed.
2. Parent requests that the IHO shall order the Department conduct an evaluation as recommended by the IEE evaluation. (Ex Q 11) This issue need not be addressed until Parent requests said specific evaluation and allows time for DOE to respond.
3. Parent requests that the IHO shall order the Parent to obtain an independent evaluation based on Dr. ’s referral in order to clarify her . This issue need not be addressed until Parent requests said specific evaluation and allows time for DOE to respond.
4. Parent requests that the IHO shall order the Department to translate documents into the Parent’s native language, . The Parent requests the following documents be translated and provided to the Parent prior to the CSE reconvene:
a. IEE (Ex Z)
b. IEE (Ex Q)
c. IEE (Ex R)
d. IEE (Ex P)
e. IEE (Ex CC)
f. assessment (Ex Y)
g. evaluation if ordered
h. Any Draft of the IEP to be reviewed at the IEP meeting
This issue shall be addressed herein.
5. Parent requests that the IHO shall order the Department to convene a CSE meeting to review the results of the IEEs. This meeting should be held at a time that is convenient for the Parent to attend with a member of the to advocate for the Student’s needs. The Department should also arrange for a trained interpreter to attend the meeting to provide simultaneous interpretation to the Parent. On July 7, 2017, Parent’s counsel received a copy of an IEP from June 28, 2017. Parent’s counsel learned that the Department developed an IEP that recommended a deferral to the Central Based Support Team (CBST) and recommended increased services.
However, this meeting was approximately 15 minutes, did not review the evaluations (parent did not have them in ) and certain recommendations were not included in the IEP. Parent continues to request a reconvene after the evaluations are translated. However, we request the IHO state in the decision that the CSE should not modify its CBST deferral or decrease related services at the new IEP meeting.
Issues related to the recent IEP need to be raised in a separate request. This IEP will only serve to indicate whether or not any issues have been resolved through the IEP itself. Issues related to translation/interpreter shall be addressed herein.
6. Parent requests that the IHO shall order the Student to receive the as Ms. recommended in her report. (Ex R) This issue needs to be addressed at an appropriate IEP meeting.
7. Parent requests that the IHO shall order that the Department to provide future special education documentation to the Parent in including CSE meeting notices, consent forms, PWNs, evaluations, and IEPs.
IHO is not authorized to direct future action in this regard. Current and immediately pending documents would be properly addressed by the IHO.
8. Parent requests that the IHO shall order the program include
.
(Ex Y-11)
This issue shall be addressed herein.
9. Parent requests that the IHO shall order that the Student receive compensatory to remedy the Department’s denial of FAPE. The
Parent requests the following compensatory services:
a.
b.
c.
d. .
This issues shall be addressed herein.
PARENT WITNESS DR.
Dr. ( ) reviewed his professional and educational qualifications and testified as a who completed the Bilingual Evaluation of 05/22/17. (T 133-137, Ex V & Z)
also prepared of 04/20/17 and of
05/16/17. (T 138, Ex AA & BB)
reviewed his evaluation and recommendations. This included: “
.” (T 142)
“
.” (T 143)
Student functions at with . (T 144)
“
.” (T 146)
is recommended for . (T 147)
include: “
.” (T 148)
was asked why the take place more at . “
” (T 148-149)
was referring above to the teacher report and recent IEPs. (T 149)
contends that the current Student setting masks the symptoms. (T 150)
contends the current Student setting is “
” (T 154)
PARENT WITNESS
( ) reviewed hers professional and educational qualifications and testified as a , who completed a Student evaluation. (T 162-163, Ex T & Q)
Recommendations include:
(T 167), (T 167-168) and
. (T 168)
Regarding , as previously recommended: ‘
” (T 169)
In reviewing Student’s current goal: “
” (T 170) “
” (T 171)
contends her recommended goals are more specific “
“ (T 171)
during the evaluation were noted: “
“ (T 174)
PARENT WITNESS
(LF) reviewed her professional and educational qualifications and testified as a ( ) and .
“
” (T 180-183, Ex W)
“
. (T 182-183)
reviewed her Report of the Student. (Ex Y)
noted . notes that
. . (T 185-187, Ex Y 10)
contends that .
(T 188)
recommends be utilized throughout the day to address
. (T 190-191)
Specifically, as compensatory services, recommends to address Student deficits while working to
. notes that
. (T 191, Ex Y 12)
calculates hours contending the Student should have received in order to appropriately address her needs for a school year, thus
. (T 192-193)
also recommends
. (T 194-195 & 198-199, Ex Y 11-12)
Recommendation is made in part due to “ ” (T 193)
“
.” (T 193)
also recommends “
“ (T 193-194)
confirms her understanding that the Student is able to participate in the class as currently structured. (T 195-196)
has not been to the Student’s home, nor has she spoken to any of the Student’s doctors. (T 200)
PARENT WITNESS
( ), Student’s mother provided testimony.
testimony included that she speaks and writes via the use of language
(T 214); a request for he IEP and evaluations to be translated into to facilitated her understanding of the documents, regarding the March 2016 IEP meeting no Case No. 165389 documents were received prior to the meeting, except for the (Ex I) (T 215-
216); did bring her to the meeting, this person does speak English and , no documents were reviewed at the meeting (T 218).
describes the IEP meeting: “
” (T 218)
mentioned her concern for a :“
” (T 219)
Teacher said the Student need a of . (T 220)
were mentioned at the meeting. This included
. (T 221)
“
” (T 222)
asked for a program to be considered. (T 223)
Presently is “
” (T 223-224)
and were not discussed. (T 224)
. .
. (T 224-225)
Discussion of resulted in recommendation. (T 228)
. (T 228)
describes need for Student support in the home: “
” (T 229)
At the IEP meeting the Parent spoke through the . (T 229)
. “
” (T 233)
DEPARTMENT OF EDUCATION POSITION
( ), DOE District Representative, appeared at hearing for the DOE.
submitted Closing Brief summarizing the DOE case presentation and position. (Ex 27)
contends Parent seeks “
” (Ex 27-2)
In support of the DOE position witness testified that the team utilized teacher reports and related service provider progress reports to make the recommendations of the
03/31/2017 IEP (Ex C). Recommendations included that a program in a community school would be most appropriate given the Student’s progress in .
(T 56-60) points to various progress reports. (Ex 22 through 25).
District asserts that “the IEP team should be the only body to make program recommendations for the Student and that the Student’s IEP should not be the result of an impartial hearing order.” (“Deference is paid to the District, not a third party . . . it is not within a Court’s purview to upset the programming recommended by the CSE.”); Lessard
v. Wilton-Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 270 (1st Cir. 2010) (the underlying judgment of those having primary responsibility for formulating a student’s IEP is given considerable weight); Z.D. v. Niskayuna Cent. Sch. Dist., 2009 WL 1748794, *6 (N.D.N.Y. 2009) (deference is given to the school district over the opinion of outside experts). (T 43, Ex 27-3)
DOE did conduct a recent IEP meeting, after the IEEs, on 06/28/2017. (Ex 27-28)
, through submission of 06/28/2017 IEP (Ex 28-29) and within closing brief, the results of the IEP meeting. The IEP team convened “to discuss the evaluations provided as part of this impartial hearing. The team determined that at this time the appropriate recommendation is a deferral to the Central Based Support Team (CBST) for a NYSED-Approved Non-Public School placement. Therefore, the relief sought by the parent’s in this case has been provided through an IEP.” (Ex 27-3)
concludes: “For these reasons, the District respectfully requests that the Hearing Officer, of his own authority, follow the above recommendations to best support (Student) and help her progress to the best of her ability.” (Ex 27-4)
DOE WITNESS
( ) presented her educational and professional background and testified as a DOE . completed the Student’s evaluation, including a classroom evaluation, and social update. (T 48-51, Ex E & F)
Concerning bi-lingual Students: “
” (T 50)
took part in the IEP meeting of 03/31/2016. (T 53)
Recommendation was made considering the preference of the Parent and classroom teacher.
“
” (T 56)
At the IEP meeting the team had service provider and education progress reports and evaluations of 12/10/2015. (T 58-59, Ex 23)
Recommendation was made based upon documents and IEP goals. (T 60)
The team did not feel an was warranted: “
” (T 67)
was asked to review her observation. (T 70, Ex F)
does not recall any discussions that took place at the 03/31/2017 IEP meeting.
(T 74 & 79)
confirmed that an interpreter is provided for a parent whose preferred language is something other than English. (T 76)
testified that the Parent’s was “able to interpret”. (T 76)
DOE WITNESS
( ) presented his educational and professional background and testified as the student’s current DOE . (T 91-92)
identified the Student’s current IEP. (T 93-94, Ex C)
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and
(2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct.
2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A student is offered a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
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. Dep't 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 enabling him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][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]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-
095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; (citations omitted). SRO 12-06.
“[M]ultiple procedural violations[,] [however,] may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 109 (2d Cir. 2016).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington
v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). The burden of proof is on the school district during an impartial hearing. (Educ. Law § 4404[1][c]).
IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203).
DOE OFFER OF FAPE FOR THE 2016-2017 SCHOOL YEAR
For the IEP in question, of 03/31/2016 (Ex C), the DOE had a variety of documents available to consider. This included a Bilingual Evaluation, , Classroom Observation, and previous IEP of 08/26/2015. (Ex D, E, F, I & K)
Each document includes information which does not appear completely consistent with the portrayal of Student educational issues presented at hearing.
Bilingual Evaluation, of 03/11/2014, includes:
(Ex D 1), recommendations include
. (Ex D 5) No evidence was submitted that the additional recommended evaluations were conducted, leaving these issue improperly identified.
IEP of 08/26/2015 includes:
(Ex K 1); (Ex K 4); (Ex K 5); (Ex K 14). No justification is presented as to why the Student was discontinued from the program.
The current IEP includes:
. No are noted for the noted above. (Ex C 1)
No are included in the IEP. (Ex C 2)
Though are not severe, at least as included in the IEP, commenced. Goal includes
. (Ex C 5)
The IEP does not adequately detail, identify, nor address the severity of the Student’s needs.
Parent relayed
, resulting in various Student issues. (T 224-225) At the IEP meeting was initiated to address some of the concerns. (T 228)
was not addressed, and is evidenced to be desperately needed. (T 229) Most pressing is the
. (T 207-209)
includes preferred Language of for the Parent. For
Student:
. is noted as though she “
”. Parent is noted as wanting a program where . (Ex E 1)
This information was largely ignored as it was not included nor addressed in the IEP.
is evidenced as warranted and was not addressed in the
IEP.
Classroom Observation includes and that
. (Ex F 1) This observation is notable for not including any information relative to the Student’s special educational needs. This document stands in contrast with others that all note various concerns about the Student and her educational needs.
(Ex I) includes
. This includes
. (Ex I 8-9)
Evidence shows
. Failure to address these issues and adequately provide prevented the Student from being offered a FAPE for the 2016-2107 school year. This denial resulted in a worsening Student situation as the year progressed.
IEP also failed to include that:
. All as indicated by Parent as testified to, at the IEP meeting.
Parent contacted the Parent in November of 2016, setting forth areas of concern and requesting evaluations. If addressed when requested Student condition may have been addressed at the time, rather than via the hearing process. (Ex B 8)
Failure to properly evaluated the Student for the 2016-2017 weighs against the DOE in properly offering the Student a FAPE.
DOE also acknowledges its failure to provide an interpreter at the IEP meeting as required. confirmed that an interpreter is provided for a parent whose preferred language is something other than English and testified that the Parent’s was “able to interpret”. (T 76)
This reliance on the is inadequate to ensure Parent participation.
I do note that the Parent, as indicated throughout her testimony, appeared to work as well as possible to relay information to the team. However, the result of the inadequate IEP indicates that Parent involvement was not ensured, nor as productive as it should have been considering the Parent’s evidenced knowledge of the Student and her needs.
PARENT RELIEF
Parent requests that the IHO shall order the Department to translate documents into the Parent’s native language, . The Parent requests the following documents be translated and provided to the Parent prior to the CSE reconvene:
a. IEE (Ex Z)
b. IEE (Ex Q)
c. IEE (Ex R)
d. IEE (Ex P)
e. IEE (Ex CC)
f. assessment (Ex Y)
g. evaluation if ordered
h. Any Draft of the IEP to be reviewed at the IEP meeting I note that the Parent does require at least enough information to participate in the IEP process and discussions. Parent submits DOJ Dear Colleague Letter to support the position of having documents translated. (Ex G) I note that this document pertains primarily to the Student’s rights as a Student with Limited English Proficiency (LEP).
(Ex G 1) The Student in question does not fall into this category as addressed in the document. Document does include a section for parents of LEP students. Here it is noted that school districts have an obligation to ensure meaningful communication with LEP parents. (Ex G 37) While the parent is this case does not appear to be a LEP parent. The
District still must ensure meaningful participation of the Parent.
Parent testimony reflects that she made efforts to participate in the IEP meeting, though was wanting for documents in her so as to fully understand and more fully participate.
Reliance, as at the March 2016 meeting, upon the is not sufficient. (T 76)
The IDEA requires communications between the local education agency and the parent to be in the native language of the parent and that interpretation services be provided during CSE meetings, in part to ensure that the parent is able to fully comprehend and participate in the process (20 U.S.C. § 1415[b][4], [d][2]; Educ. Law §
4402[3][b][ii][B]; 34 CFR 300.503[c][1][ii]; 8 NYCRR 200.5[a][4]; see also 20 U.S.C. §
1414[b][1]; 34 CFR 300.322[e]; 300.504[d]; 8 NYCRR 200.4[a][2][iv][b][9][i], [ii]; 8 NYCRR 200.4[b][6][xii]; 8 NYCRR 200.4[g][2][ii]; Marple Newtown Sch. Dist. v.
Rafael N., 2007 WL 82458076, at *5 [E.D. Pa. Aug. 23, 2007] [upholding an administrative decision which required a school district to provide placement process documentation in a language the parent could understand so the parent could participate in a meaningful way]; Application of a Student with a Disability, Appeal No. 13-047).
Although not required to provide parents with a copy of an IEP in their native language, doing so would be in keeping with the spirit of the IDEA and is one way to demonstrate that the parent has been "fully informed of the student's educational program" (Letter to Boswell, 49 IDELR 196 [OSEP 2007]).
I find the DOE is not obligated to translate the requested documents. DOE is obligated to make sure they can be interpreted at any upcoming meeting.
Parent requests that the IHO shall order the Department to convene a CSE meeting to review the results of the IEEs. This meeting should be held at a time that is convenient for the Parent to attend with a member of the to advocate for the Student’s needs. The Department should also arrange for a trained interpreter to attend the meeting to provide simultaneous interpretation to the Parent. On July 7, 2017, Parent’s counsel received a copy of an IEP from June 28, 2017. Parent’s counsel learned that the Department developed an IEP that recommended a deferral to the Central Based Support Team (CBST) and recommended increased services.
However, this meeting was approximately 15 minutes, did not review the evaluations
(parent did not have them in ) and certain recommendations were not included in the IEP. Parent continues to request a reconvene after the evaluations are translated.
However, we request the IHO state in the decision that the CSE should not modify its
CBST deferral or decrease related services at the new IEP meeting. (Ex DD 18)
Issues related to the recent IEP need to be raised in a separate request. This IEP will only serve to indicate whether or not any issues have been resolved through the IEP
itself.
Recent IEP has deferred the case to the Central Based Support Team (CBST). (Ex 29-13)
IEP also has increased services as well as included . (Ex 29 -13&14)
DOE is obligated to provide someone to interpret as indicated above without necessity of IHO Order.
Parent can request an IEP meeting at any time without IHO Order.
Parent requests that the IHO shall order the Student to receive as Ms. recommended in her report. (Ex R) This issue needs to be addressed at an appropriate IEP meeting considering Student current needs and appropriate goals developed.
Parent requests that the IHO shall order that the Department to provide future special education documentation to the Parent in including CSE meeting notices, consent forms, PWNs, evaluations, and IEPs. (Ex DD 19) IHO is not authorized to direct future action in this regard. Obligation of the DOE in this regard is reflected above.
Parent requests that the IHO shall order the program include
.
(Ex Y-11, Ex DD 19)
Parent offers evidence in support to request for . This includes who completed the Bilingual Evaluation of 05/22/17. (Ex V & Z)
Student is evidenced to have “
“ (T 142); and “
” (T 143)
contends that because of the nature of her difficulties the Student needs: “
” (T 146)
recommends . (T 147)
recommendation and are recommended “
”. (Ex Z 22)
Despite various DOE failures the Student is noted to currently function at an . recent evaluation also indicated , and . (T 144, Ex Z 20-21)
notes concerns regarding . “
” (T 148-149)
contends that the current Student setting masks the symptoms. (T 150)
contends the current Student setting is “
” (T 154)
To a certain extend the Student program issues are expected to be addressed by the deferral to CBST by the most recent IEP. (Ex 29)
Student is as indicated by testing. (Ex Z) It is evident that Student and Parent require some degree of service to address . This includes skills related to . The specific service required
Is not evidenced to be one that relies only upon . Student requires services for the Parent as well as
. (T 148-149)
Parent witness also confirmed , noting that,
. At that point . (T 185-187, Ex Y 10)
contends that
. (T 188) I agree with this perspective. However, , which are most restrictive, are not evidenced to be necessary at this time, as other, less restrictive options remain available. This includes the as well as
.
also supports the need for :“
“ (T 193-194)
Additionally, the Student is currently able to participate in the class as currently structured. (T 195-196)
Parent requests that the IHO shall order that the Student receive compensatory to remedy the Department’s denial of FAPE. The
Parent requests the following compensatory services:
a.
b.
c.
d. (Ex DD 18)
It is not disputed that the Student was denied recommended IEP services. Parent attorney presented evidence at hearing which went uncontested that the Student had indeed been denied a level of services during the 2016-2017 school year. This included:
.
(T 209- 211)
The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. A tlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir.
2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student.”); see also Parents of Student W . v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).
In determining a compensatory award, most courts seek to ascertain the child’s needs at the time the relief is sought.10 Reid, 401 F.3d 516; see, e.g., Streck, 2010 WL 4847481, at *2 (Court awarded compensatory education relief that required the school district to “open and maintain for 3 years, an escrow account,” which will be used to pay for student’s reading instruction at Landmark College and assistive technology supports.); Woods v. N orthport Pub. Sch., 487 Fed. Appx. 968, 2012 WL 2612776, at *978-79 (6th Cir. July 5, 2012) (upholding IHO award of 768 hours of compensatory tutoring as “reasonable recover” for a lengthy denial of FAPE; given the student’s age, the “window of opportunity to become usefully literate ha[d] begun to close.”).
The purpose of an award of additional services is to provide an appropriate remedy for a denial of a FAPE (see Newington, 546 F.3d at 123 [holding that 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 [DC 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., 31 F.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"]; 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, 525 [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 ["There is no obligation to provide a day-for-day compensation for time missed"]; 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).
, of 04/13/2017, includes a recommendation for . This is reflected in most current IEP recommendation. (Ex Q & Ex 29-14)
Missed sessions, , as indicated are warranted to ensure Student received mandated services which were not delivered in accordance with the IEP in effect for the 2016-2017 school year.
Evaluation of 05/31/2017, includes a recommendation of . This is reflected in most current IEP recommendation. (Ex CC 3 & Ex 29-14)
Missed sessions, , as indicated are warranted to ensure Student received mandated services which were not delivered in accordance with the IEP in effect for the 2016-2017 school year.
Evaluation of 04/12/2017, includes a recommendation of . This is reflected in most current IEP recommendation. (Ex P 12 & Ex 29-13)
Evidence indicates Student need for , This need is reflected in most current IEP recommendation. are included. (Ex 29-13)
Missed sessions, , as indicated are warranted to ensure Student received mandated services which were not delivered in accordance with the IEP in effect for the 2016-2017 school year.
are requested as compensatory services. I do not find the Student to be entitled to at this time. As indicated above are not found to be warranted at this time.
ORDER
1. The DOE failed to offer the Student a FAPE for the 2016-2017 School Year.
2. DOE shall fund the following services for the Student via Related Service Authorization (RSA). Services shall be allowed to be utilized by the parent for one year from the date of receipt by the Parent of the relative RSA. Each session to be delivered as an individual service.
3. The DOE shall immediately issue necessary forms to the parent to authorize above services.
4. This decision is subject to appeal and review by the State Review Officer. Dated: July 20, 2017
DANIEL AJELLO, ESQ.
Impartial Hearing Officer DA:
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
ENTERED 03/22/2017
A Impartial Hearing Request, 02/03/2017, 11 pages
B Parent Motion Requesting an Interim Order for IEE, 03/21/2017,13 pages
C Individualized education program, 3/31/16, ten pages
ENTERED 04/06/2017
D Bilingual evaluation, 3/11/14, five pages
E , 2/3/16, one page
F Classroom observation, 2/29/16, one page
G DOJ Dear Colleague letter, 1/7/15, 40 pages
H Request for educational records, 8/23/16, two pages
I , 2/3/16, 12 pages
J , Unidentified date, two pages
K Individualized educational program, 8/26/15, 16 pages
ENTERED 06/06/2017
L Letter from physician, 4/19/17, one page
M , 4/7/17, one page
N Excluded
O Excluded
P evaluation, 4/12/17, 13 pages
Q Bilingual evaluation, 4/13/17, 19 pages
R evaluation, 4/17/17, six pages
S Resume of , Current, two pages
T Resume of , Current, three pages
U Resume of , Current, seven pages
V Resume of , Current, four pages
W Resume of , Current, one page
X Student absence note, March and April 2017, two pages
Y , 5/24/17, 12 pages
Z Bilingual evaluation, 5/22/17, 26 pages
AA , 4/20/17, 12 pages
BB , 5/16/17, four pages
CC evaluation, 5/31/17, three pages
ENTERED 06/07/2017
DD Closing Brief, 06/07/2017, 22 pages
DEPARTMENT OF EDUCATION
ENTERED 04/06/2017
1 Attendance record for '16/'17, unidentified date, one page
2 Letter from to , 3/17/17, one page
3 attendance record fom November 2016 to March 2017, unidentified date, eight pages
4 , 3/17/17, three pages
5 progress report, 3/17/17, two pages
6 curriculum based measure for , 2/14/17, two pages
7 progress report, 3/17/17, two pages
8 notes for '16/'17, unidentified date, four pages
9 progress report, 3/15/17, three pages
10 Report card for '16/'17, unidentified date, three pages
11 Monthly classroom updates, '16/'17, unidentified date, six pages
12 Student assessment, '16/'17, unidentified date, 20 pages
13 Student assessments, , '16/'17, unidentified date, pages
14 Excluded
15 Prior written notice, 6/10/16, four pages
16 Prior written notice, 4/2/16, three pages
17 Prior written notice, 3/31/16, three pages
18 An IEP signature page, 3/31/16, 15 pages
19 Excluded
20 Meeting notice, 3/16/16, three pages
21 Consent for assessment, 1/8/16, one page
22 annual progress report, 1/21/16, three pages
23 Educational progress report, 12/10/15, four pages
24 annual progress report, 12/7/15, two pages
25 annual progress report, 12/2/15, three pages
26 , 4/6/15, three pages
ENTERED 07/07/2017
27 Closing Brief, 07/07/2017, 4 pages
28 IEP Attendance Sheet, 06/28/2017, 1 page
29 IEP, 06/28/2017, 20 pages
HEARING OFFICER
ENTERED 03/22/2017
I Notice of Appointment, 03/16/2017, 3 pages
II Notice of Appearance, 02/10/2017, 1 page
ENTERED 04/06/2017
III Interim order pertaining to the independent evaluations, 3/30/17, 7 pages
ENTERED 06/06/2017
IV Subpoena issued to CSE 4/6/17, 1 page
V Compliance date extension, through 5/22/17, 04/07/2017, 3 pages
VI Compliance date extension, through 6/21/17, 05/05/2017, 3 pages
ENTERED 07/07/2017
VII Compliance date extension, through 7/21/17, 06/09/2017, 3 pages