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FINDINGS OF FACT AND DECISION
Case Number: 165686
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: November 8, 2017
Actual Record Closed Date: February 10, 2018
Hearing Officer: Michael K. Lambert, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 8, 2017
For the Student
; Attorney for Parent
Parent
For the Department of Education
DOE Representative
INTRODUCTION AND PROCEDURAL HISTORY
The parent initiated the instant hearing by due process complaint dated March 8, 2017 (PE-A). Such due process complaint alleged that the Department of Education (“DOE”) failed to offer Student a free appropriate public education (FAPE) during the 2016-2017 school year by failing to properly evaluate the student, failing to provide certain special education services and failing to use appropriate, scientifically-based methodologies or strategies in the classroom. The relief sought included evaluations, referral to the CBST, the development of an appropriate IEP and certain unspecified compensatory education services.
The parent filed an amended due process complaint on May 22, 2017 (PE-B).
This amended due process complaint alleged a denial of FAPE in the 2017-2018 school year and requested an Order granting a number of independent educational evaluations, deferral to the CBST and unspecified compensatory education services.
An Interim Order (PE-C) was issued on June 28, 2017 directing that the DOE fund an independent evaluation and conduct ;
; and evaluations. These evaluations were thereafter conducted and were admitted into evidence during the instant hearing (see PE-T, PE-Q, PE-R, PE-S and PE-P, respectively).
The parties appeared for hearing on November 8, 2017. At that time, I was advised that the parent’s claims for relief in the form of additional evaluations had been satisfied through the issuance of the Interim Order (T: 13). The DOE did not present any evidence in this hearing (T: 7). The following facts were established solely through evidence presented by the Parent. The Parent offered Parent Exhibits A through V, each of which was admitted without evidence. The first and only witness called in this matter was *s mother.
The remaining issues are decided as set forth herein.
THE HEARING EVIDENCE
is a student who has a medical diagnosis of and who previously attended an , where he reportedly did very well (T: 17). He was thereafter classified by the Committ on Special Education as a student with (PE-V). Such classification does not appear to be in dispute. He started the 2016-2017 school year as a student at , but the parent requested a transfer to another school after a couple of weeks based upon her dissatisfaction with his teacher and the transportation arrangements, the latter of which was causing (T: 15-17). He was consequently transferred to an at (T: 22), where he did not receive any[1]
' until January, 2017 and did not receive any services until May, 2017 (T: 18-19).[2] The lack of these IEP-mandated related services led to that do not appear to have been appropriately addressed, despite requests made by the parent (T: 23-26).
was not recommended to return to for the 2017-2018 school year.
Instead, the CSE recommended that he return to , but ’s parent did not believe such to be appropriate (T: 26-27; PE-V).[3] Moreover, ’s mother was advised at the September 25, 2017 CSE meeting at which was recommended that there was no opening for in that program (PE-V; T: 30-31). She thereafter identified which she identified as a State-approved school for (T: 28-29), as an appropriate school for ’s mother provided written notice to the DOE on approximately October 15, 2017 that she intended to unilaterally place him at . He started at on October 30, 2017 and is reportedly receiving all [EP-mandated services thereat (T: 29), with the exception of (T: 34). received no educational services during the period September — October 30, 2017 (T: 29-30). Little information was provided at the hearing as to the educational program that is receiving at
THE LEGAL STANDARDS
I ’s JEP called for him to receive
Pursuant to the IDEA, all children with disabilities are entitled to a “free appropriate public education” (“FAPE”) which must include “special education and related services” tailored to meet the unique needs of the child and be “reasonably calculated to enable the child to receive educational benefits.” Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 207 (1982); (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Frank G. v. Board of Education, 459 F.3d 356, 371 [2nd Cir. 2006]). A FAPE is offered to a student 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 Central School District, 427 F.3d 186, 192 [2nd Cir.
2005]). The Second Circuit Court of Appeals in Walczak v. Florida Union Free School District, 142 F.3d 119 (2nd Cir. 1998) held that the IDEA does not articulate any specific level of educational benefits that must be provided through an IEP. The Court citing to the Supreme Court ruling in Rowley reiterated that the IDEA does not require the states to maximize the potential of disabled children, but was meant “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside” (at pg. 192). The Second Circuit in Walczak also cited to a D.C. Circuit Court decision by now Supreme Court Justice Ruth Bader Ginsburg which held that because “public resources are not infinite,” federal law “does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child” (Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1583 [D.C. Cir. 1984]). The Third Circuit has held that an appropriate education under the IDEA is one that is “likely to produce progress, not regression” (Cypress-Fairbanks Indep. Sch. Dist. V. Michael F., 118 F.3d 245, 248 [3rd Cir. 1997]; cert enied 522 U.S. 1047 [1998]; Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli v. Carmel Central School District, 2007 WL 465211, at *15). 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 School District, 873 F.2d 563, 567 [2nd Cir. 1989][citations omitted]; see Grim, 346 F.3d at 379). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 [2nd Cir. 1997]; see Rowley, 458 U.S. at 192). The U.S. Supreme Court recently held that an appropriate IEP must be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances (Endrew F. v. Doughas County). Objective factors such as the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress and one important factor in determining educational benefit (Rowley, 458 U.S. at 207, n.28, 203-04; Walczak, 142 F.3d at 130;
Viola v. Arlington Central School District, 414 F. Supp. 2d 366, 382 [S.D.N.Y. 2006]).
The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][S5][A]; 34 C.F.R. §§ 300.114[a][2][1], 300.116[a][2]; 8 NYCRR 200.6[a][1]; see Walczak, 142 F.3d at 132). The LRE is defined as “one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled” (Carlisle Area Sch. V. Scott P., 62 F.3d 520, 535 [3rd Cir. 1995]). The IDEA mandates that all students with disabilities may only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. 1412[a][5][A]; 34 CFR 300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3rd Cir. 1993]; Briggs v. Bd. of Educ., 882 F.2d 688, 691 [2nd Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [Sth Cir. 1989]).
“The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Borough of Clementon Sch. Dist., 995 F.2d 1204
[3 Cir. 1993]). The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes such as language and role modeling with nondisabled peers” (Greer v. Rome City Sch.
Dist., 950 F.2d 688 [11th Cir. 1991).
The Second Circuit Court of Appeals adopted the Oberti LRE test in P. v.
Newington Board of Educ., 546 F.3d 111 (2TM Cir. 2008) requiring the consideration of whether the school has made reasonable efforts to accommodate the child in a regular classroom, the educational benefits to the child with appropriate supplementary aids and services versus a special class and the possible negative effects of the inclusion of the child orthe education of the other students in the class.
Federal district courts have upheld the appropriateness of an IEP “given what the CSE knew about [the child] at the time it was developing the ... IEP” E.S. v. Katonah- Lewisboro School District, 742 F.Supp.2d 417 (S.D.N.Y. 2010). In JR. v. Board of Education of the City of Rye School District, 345 F.Supp.2d 386 (S.D.N.Y. 2004), the Court held that in reviewing the appropriateness of an IEP that:
“This determination is necessarily prospective in nature; we therefore must not engage in Monday-morning quarterbacking guided by our knowledge of
S.R.’s subsequent progress at Eagle Hill, but rather consider the propriety of the IEP with respect to the likelihood that it would benefit S.R. at the time it was devised. See Antonaccio, 281 F.Supp.2d at 724 (noting that this issue has not yet been addressed by the Second Circuit and holding that ‘the ...JEP...must be evaluated at the time the CSE devised the IEP, on June 15, 1999, and the IHO and SRO erred by regarding any information about [the student’s] education after that date’).”
The SRO has consistently considered the IEP “at the time it was formulated” to determine if it was reasonably calculated to enable the student to receive educational benefit (Application of a Student with a Disability, SRO Appeal Nos. 11-154, 09-034, 09- 013).
A board of education may be required to pay for educational services privately obtained by a parent if the educational services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents’ claim. Burlington School Comm v.
Department of Education, 471 U.S. 359 (1985). The fact that the school selected by the parent is not state-approved is not a bar to reimbursement. Florence County School Dist.
Four v. Carter, 510 U.S. 7 (1993).
In terms of the available remedies in cases where a district has failed to meet its obligation to offer an educationally disabled child FAPE, IHO’s have substantial discretion. Since P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008), the courts of the Second Circuit have ceased to limit eligibility for “compensatory education” to those over 21. In P, the Second Circuit ruled that “compensatory education” can be awarded to an elementary school student. Further, even the “gross violation” requirement, which is applicable to a claim for compensatory education by someone over 21 is not clearly established in this Circuit to be applicable to a student under 21. That standard was not relied upon in P.
In S.A. ex rel. M.A.K. v. New York City Dep't of Educ., 12-CV-435 (RMM) (MDG), 2014 WL 1311761 (E.D.N.Y. Mar. 30, 2014), the Court held:
The IDEA allows a hearing officer to fashion an “appropriate remedy, and ...
compensatory education is an available option ... to make up for denial of a [FAPE].” P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008) (affirming compensatory education award for elementary school student); see also Student X v. New York City Dep't of Educ., No. 07
CV 2316, 2008 WL 4890440, at *24 (E.D.N.Y. Oct. 30, 2008) (awarding compensatory education to student younger than twenty-one). Such an award serves “to compensate a student who was actually educated under an inadequate IEP” and “to catch-up the student to where he should have been absent the denial of a FAPE.” Brennan v. Regional Sch. Dist. No. 1 Bd. of Educ., 531 F.Supp.2d 245, 265 (D.Conn.2008). Before awarding compensatory education for a student older than twenty-one, a court must find a gross violation of the student's right to a FAPE; however, whether the same prerequisite exists to awarding compensatory education for a younger student is an open question. See Student X, 2008 WL 4980440, at *24. P. v.
Newington, 512 F.Supp.2d 89, 112 n. 3 (D.Conn.2007) (“The Court disagrees with the defendant's argument that compensatory education is warranted only if there is a ‘gross' violation of the IDEA. The requirement of a gross violation
... has been applied only to cases involving claimants over the age of 21.”), aff'd, 546 F.3d 111 (2d Cir.2008); but see J.A. v. E. Ramapo Cent. Sch. Dist., 603 F.Supp.2d 684, 690 (S.D.N.Y.2009) (finding that five-year-old student was not entitled to compensatory speech therapy, reasoning that parents failed to show gross violation because child “was not excluded from school for any period of time.’’).
Also, Reid ex rel. Reid v. D.C., 401 F.3d 516, 522-26 (D.C. Cir. 2005) seems to stand for the proposition that “compensatory education” can be prospective educational services to compensate for a past deficient program and that a hearing officer, as well as a court, can fashion flexible “compensatory education” relief through the application of “equitable considerations.” Reid is cited by, for example, the Second Circuit in P., 546 F.3d at 123, for the proposition that “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.”
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The hearing evidence supports the conclusion that the DOE failed to offer FAPE in the 2016-2017 school year. The DOE had the burden of proof as to this issue and, by failing to present any evidence in their case-in-chief, they clearly failed to meet their burden. I specifically find that the 2016-2017 IEP was developed upon inadequate evaluations and that the resulting program was, in addition, inappropriately implemented.
is entitled to receive the and services that were called for by his IEP, but not provided. However, I find that there is insufficient evidence to support an order that the DOE fund based upon the denial of FAPE in the 2016-2017 school year, as requested by the parent.
I further find that the DOE failed to offer FAPE in the 2017-2018 school year. Once again, the DOE’s failure to present any evidence mandates this outcome.
The Parent has not requested tuition reimbursement for the unilateral placement at , and the hearing record does not otherwise contain sufficient evidence to grant such relief. However, is entitled to a remedy for the denial of FAPE in the 2017 2018 school year. In terms of relief, I find that entitled to the related services that he would have received in the first semester of the 2017-2018 school year. In addition, I find that it appropriate that the DOE fund a bank of to address the needs identified in the independent evaluation (PE-T).
ORDER
1. The Parent’s request for an Order for adeferral to the CBST is granted.
2. For the 2016-2017 school year, the DOE shall establish a bank of compensatory and to be used at times and with providers selected by the Parent.
3. For the 2017-2018 school year, the DOE shall establish a bank of compensatory services as follows, to be used at times and with providers selected by the Parent:
a
b.
c.
d.
e.
4. The DOE is directed to issue RSA’s at the customary enhanced rates for all of the above-referenced compensatory services. Such services shall be used by June 30, 2019.
5. All other claims set forth in the due process complaint are hereby
dismissed.
Dated: February 28, 2018
MICHAEL K. LAMBERT, ESQ.
Impartial Hearing Officer
PLEASE AKE NO_ ICE
he 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
DOCUMEN A ION EN ERED IN O HE RECORD
Parent Exhibits
A Due Process Complaint, 3/8/17, ten pages
B Amended Due Process Complaint, 5/22/17, 11 pages
C Interim ORDER, 6/28/17, three pages
D Evaluation, 6/27/12, six 14 pages
E Educational Update, 10/20/15, two pages
F , 17 2/26/16, three pages
G Report, 3/8/16, five pages
H Quarterly Progress Report, 3/2016, three pages
— IEP, 3/29/16, 22 pages
J Evaluation, 4/22/16, five pages
K , 6/23/16, 15 pages
L Letter from , 6/30/16, one page
M Quarterly Progress Report, 6/2016, 15 pages
N Related Service Agreement Notice, 10/2016, one page
O Draft IEP, 3/27/17, 18 pages
P Evaluation, 7/13/17, nine pages
Q Report, 7/20/17, four pages
R Evaluation, 7/27/17, ten pages
S Evaluation, 7/27/17, six pages
T Evaluation, 8/10/17, 20 pages
U Due Process Response, 3/13/17, three pages
V IEP, 9/25/17, 18 pages
DOE Exhibits:
None
IHO Exhibits:
None
Footnotes
[1] CJ’s IEP called for him to receive (T: 18).
[2] s mother was given RSA’s, but she was unable to locate providers (T: 19-22).
[3] Counsel for the parent confirmed at the hearing that there were no claims being raised with respect to the 2017 ESP program (T: 28).