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FINDINGS OF FACT AND DECISION
Case Number: 165488
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: May 2, 2017
May 30, 2017
June 20, 2017
July 24, 2017
Actual Record Closed Date: September 22, 2017
Hearing Officer: Martin J. Kehoe III, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 2, 2017
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 30, 2017
Attorney — Student
Mother — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 20, 2017
Attorney — Student
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 24, 2017
Attorney — Student
(Via Telephone) — Student
District Representative — DOE
Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student.
A pendency hearing was held on May 30, 2017 and I issued a pendency decision. A hearing was held on May 2, 2017; June 20, 2017; July 10, 2017; and July 24, 2017. I issued an interim order for independent evaluations on May 9, 2017 (Ex. OO).
Parent’s Position
In the complaint notice, dated February 16, 2017 (Ex. A), the Parent alleged that the District denied the Student a free, appropriate public education (FAPE) for the 2014/15, 2015/16, and 2016/17 school years. The Parent was seeking independent evaluations, a reconvene of the Committee on Special Education (CSE), compensatory education in District’s Position
During the hearing, the District conceded FAPE and did not defend the (T.P. 46, 49–50). Their position was that the case should be limited to the statute of limitations, which is two years from the filing of the complaint notice. The District did not challenge the amount of compensatory education requested (T.P. 170).
Student History
At the time the complaint notice was filed, the Student was (Ex. N) and attending a class in a District School (Ex. AA). The
Student presents with a , (Ex. PP). The Student was diagnosed with
, , (Ex. NN).
Procedural History
The Student was classified with on June 10, 2014, and was given an IEP and related services (Ex. G). An IEP meeting was held on April 23, 2015, and the CSE Team decided to (Ex. F, Ex. C). The CSE did not conduct a reevaluation prior to and did not recommend support services (Ex. C, Ex. D, Ex. E). The CSE relied on the progress report and a teacher report in making their decision (Ex. C, p. 1). The
Student’s report cards during the 2015/16 and 2016/17 school years showed that the (Ex. AA, Ex. BB, Ex. CC, Ex. DD, Ex. EE). The Parent sent a letter to the Principal, dated January 19, 2017, requesting an independent evaluation and a evaluation (Ex. II). The Principal sent the Parents a , dated February 1, 2017 (Ex. B). The Parent then filed the Complaint Notice on or about February 16, 2017 (Ex. A).
Legal Background
The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”).
20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as 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, or secondary school education in the state involved, and
- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).[1]
A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).
The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).
In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.
Analysis
Because the District has conceded FAPE and agrees that the Student would benefit from and a reexamination of her program, the remaining steps are considering the District’s specific objections and then, with consideration given to the opinions of those who have evaluated the Student, determining an equitable remedy.
First, regarding District objections, I note that the District has requested that the remedy be limited by the statute of limitations:
The IDEA requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged action that forms the basis of the complaint (20 U.S.C. § 1415[b][6][B], [f][3][C]; Educ. Law § 4404[1][a]; 34 CFR 300.511[e]; 8 NYCRR 200.5[j][1][i]; Somoza v. New York City Dep't of Educ., 538 F.3d 106, 114 n.8 [2d Cir. 2008] [noting that the Second Circuit applied the same "knows or has reason to know" standard of IDEA claim accrual both prior to and after codification of the standard by Congress]; M.D. v.
Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir.2003]; G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *17 (S.D.N.Y. Mar. 29, 2013); R.B. v. Dept. of Educ., 2011 W.L. 4375694, at * 2, *4 [Sept. 16, 2011 S.D.N.Y.]). An exception to the timeline to request an impartial hearing applies if a parent was prevented from filing a due process complaint notice due to a "specific misrepresentation" by the district that it had resolved the issues forming the basis for the due process complaint notice or the district withheld information from the parent that the district was required to provide (20 U.S.C. § 1415[f][3][D]; 34 CFR 300.511[f]; 8 NYCRR 200.5[j][1][i]; R.B., 2011 W.L. 4375694, at * 6). (See SRO #12-125)
Critical to my resolution of this issue is the date I find the Parent should have known there was a potential claim. The obvious starting point is the date the CSE
: April 23, 2015 (Ex. F, Ex. C). Next, I look to the date of the Complaint Notice, which is February 16, 2017. Looking back two years from the Complaint Notice,
I find that the actionable period in this case began on February 17, 2015. This starting point precedes the but still precludes the better part of the 2015/2016 school year. Notwithstanding my finding, the Parent has not pursued2 those claims in the Complaint Notice that precede the date of the (See Parent’s Brief, p. 3).[3]
Still, there remains a significant deprivation of educational benefit that is subject to compensatory education. Thus, I will limit myself to the period starting at April 23, 2015.
Second, the District has maintained their position that the appropriate next step is for the CSE to hold an IEP meeting to consider the results of all the new evaluations conducted for the Student through these proceedings, for them to make appropriate recommendations. Regarding this, I certainly prefer, when possible, to defer to the experience and knowledge of the CSE in making these kinds of determinations.
However, in a case in which a CSE has acted contrary to the recommendations of professionals or in which the CSE has failed to act in a timely manner, I find myself with an obligation to intervene.
Compensatory Education
2 While I find the statute of limitations applicable here, it appears from the Parent’s brief that they concede the April 23, 2015 date as the boundary for relief sought.
Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and. . . mould each decree to the necessities of the particular case”)
(quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].
Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387
[N.D.N.Y. 2001].
Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v.
Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see generally R.C. v.
Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]).
Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd.
of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]).
In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific 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 [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., 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"]).
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"]; Parents of Student W. v.
Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014.
Evaluations and Recommendations
The testified about her evaluation of the
Student.[4] In her (Ex. NN), she recommended
She did not think an would be appropriate for the Student because (T.P. 164 – 165).
In addition to her recommendations about placement, the recommended (T.P. 154 – 155). Also see pages 166–168. The District did not challenge the amount of compensatory education requested (T.P. 170).
The found that (Ex. QQ, p. 1) and recommended
(Ex.
QQ, p. 3).
After review of the record, I find the Student requires placement at a state-approved, non-public school and some services to return her to the position she would have been in, had she not been denied a FAPE.
The Parents have also requested
After due consideration of the Student’s considerable abilities and potential in relation to the rigors of her upcoming academic schedule, I find that the demands of her forthcoming nonpublic school, will be sufficient to engage and advance the Student in her studies. I therefore award a more modest amount of hours to be used during scheduled school breaks. Using a qualitative approach, I’m going to reduce the number of compensatory education hours. My rationale for this begins in my assessment that the isolated opinions rendered through these proceedings did not anticipated the Student’s new supports in her new placement. (Tr. p. 167) With this order for a non-public school, I
5 An (Tr. 155)
6 In the evaluation report, the recommended additional related services (Ex. PP).
recognize the inherent remediation that will be part of that appropriate environment for the Student. So I am discounting the recommendations for an , which, standing alone, may be valid. Nevertheless, the opinions, which I credit, support significant additional services. To arrive at this number,
I will take the original recommendations proffered and reduce them by because of the prospective placement at the state approved non-public school. This leaves a bank of . In reconciling the various equities, I have attempted to engage in a qualitative review of the s opinion while applying a quantitative reduction based upon the likely limits of the Student’s stamina, pace and abilities to complete the ambitious programs laid out at the hearing.
With respect to the opinion of the , I leave that undisturbed and apply a strictly quantitative approach in adopting the expert’s opinion7from paragraph twenty-one
(21) of his affidavit and carry forward the services that were terminated at the April 23, 2015 CSE meeting. Add the balance for the 14/15 school year was in each of the two successive school years.
The parents may choose the provider and if
needed, payment is to be at the enhanced rate. Additionally, unlike the with its emphasis on this related service may not be delivered in the non-public school environment and based upon the undisputed affidavit of the the Student requires . These can be scheduled in school or at home and may include weekends and/or holidays.
. However, after two years the student is to be reevaluated and any unused sessions are to be forfeited.
It is therefore ORDERED
7 I do not adopt the additional found in paragraph 22 of exhibit QQ, as that seems superfluous and not well supported.
- The District shall provide a bank of by a provider of the Parent’s choosing, at an enhanced rate. The bank of hours shall expire two years from the date of this Decision.
- The District shall provide a bank of by a provider of the Parent’s choosing, at an enhanced rate. This bank of hours shall expire two years from the date of this Decision.
- The District shall fund
- This matter shall be remanded to the CSE, for deferral to the CBST, to effectuate a placement at a state-approved non-public school for the Student for the 2017/18 school year.
Dated: October 11, 2017
MARTIN J. KEHOE III, ESQ.
Impartial Hearing Officer MK
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 Demand for Due process Hearing, 2/16/16, 14pp
B , 2/1/17, 1pp
C Prior Written Notice, 4/23/15, 3pp
D Recommendations upon declassification, 4/23/15, 1pp
E Request for reevaluation, 4/20/15, 2pp
F Notice of IEP Meeting, 4/20/15, 2pp
G Prior Written notice, 6/18/14, 4pp
H Out
I Out
J Out
K Out
L Out
M Out
N IEP 6/10/14, 12pp
O IEP, 6/10/14, 15pp
P Out
Q Out
R Out
S Out
T Out
U Out
V Out
W Out
X Out
Y Out
Z Out
AA Report Card, 3/8/17, 2pp
BB Report Card, 11/2/16, 2pp
CC Report Card, 6/27/16, 2pp
DD Report Card, 2/6/16, 2pp
EE Report Card, 11/17/15, 2pp
FF Teacher Progress report, 4/21/15, 2pp
GG Student Progress Report, 9/9/14, 2pp
HH Report Card, 6/23/14, 2pp
II Request for Independent Evaluations, 1/19/17, 1pp
JJ Request for Educational records, 12/2/16, 5pp
KK Request for educational records, 12/2/16, 5pp
LL Letter, 8/8/13, 1pp
MM Letter, 8/8/13, 1pp
NN Evaluation, 5/19/17, 25pp
OO Interim Order, 5/9/17, 2pp
PP Evaluation report, 5/23/17, 5pp
QQ Affidavit, 6/17/13, 3pp
Footnotes
[1] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).
[3] Additionally, the causality between the violations and the compensatory remedy was not developed specifically in the record.
[4] She stated that the Student’s scores on the were in the (T.P. 139). The Student (T.P. 140 – 141). (T. P. 142).