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: 165716
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 21, 2017
May 8, 2017
Actual Record Closed Date: June 5, 2017
Hearing Officer: Daniel Ajello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 21, 2017
Attorney — Student
District Representative — DOE
(Via Telephone) — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 8, 2017
(Via Telephone) — Student
Parents
(Via Telephone) — Student
District Representative — DOE
INTRODUCTION
On 03/15/2017, 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 with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New
York.
Appended to the record are lists of persons in attendance and the documents received in evidence.
I note Exhibit F & L are duplicates. I will refer to F throughout the decision.
BACKGROUND
This matter was instituted by an impartial hearing request dated 03/13/2017 (IHO Ex III), as amended by Amended due process complaint, dated 3/13/17. (Ex A)
Parent alleges various DOE failures in providing a Free and Appropriate Public Education (FAPE) for the 2016-2017 School Year. (Ex A 1)
Parent seeks several forms of relief. Those to be addressed by the IHO include: a finding the DOE failed to provide the Student a FAPE, DOE must provide (Ex A 5), independent evaluations which include , specification of services on an IEP, compensatory education of , , related services, for time FAPE was not provided, enhanced rate for service “as necessary“. Ex
A 6)(Ex A 6).
Student’s most recent IEP, of 01/05/2017, includes: disability classification of
(Ex B 1-2),
, (Ex B 2), (Ex B 3), (Ex B 3), (Ex B
4), goals related to goals (Ex B 6), goals (Ex B
7), goals (Ex B 8), goal (Ex B 9),
, (Ex B 9), (Ex B 11) , (Ex B 12) (Ex B
14), and (Ex B 15).
PARENT POSITION
Parent Attorney contends the Student has been denied a FAPE and is entitled to each form of requested relief. Allegations include the Student has been denied the mandated . (T 12-14)
PARENT WITNESS
( ) reviewed her professional and educational qualifications and testified as the Student’s . confirmed she is the Student‘s current and has been for the 2016 school year. (T 132-134)
. (T 8)
PARENT WITNESS
( ) reviewed his professional and educational qualifications and testified as a . (T11-13)
completed observation and report. (T 140-141, Ex H)
notes , and
. Student . (T 141-142)
concluded the Student has based upon Parent report and classroom observation. (T 167)
assessed the Student and concluded the Student requires to and . (T 149)
“
” (T 150)
. (T 149-150)
are recommended. “
“ (T 150-151)
Student should remain in current classroom though academic progress would be limited. (T 151-152)
School needs to provide more support for the . “
.” (T 158)
PARENT WITNESS
( ), Student’s mother provided testimony.
Testimony included, Student is , attending , previously attended the , diagnosed with at (T 177), confirmed (T 178); diagnosed with a
(T 179);
(T 181);
(T 182);
(T 183); at or
Student received (T 186); were delivered
from beginning of 2016, working on (T 187); Student benefited from the , he and improved. (T 188)
. This had improved with the . (T 188-189)
Report of Dr. (Ex F) was provided to the DOE at the IEP. (T 189)
Some reports were provided to Parent at that meeting. (T 190)
was discussed, but there would be a different meeting for that. (T 192)
and were not discussed at the
01/05/2017 IEP meeting. (T 194)
services ended in August 2016. (T 197)
has not met the Student’s . (T 198)
Parent obtained an updated report from Dr. . (T 199, Ex G)
Parent was concerned that services has stopped. (T 200)
Without the Parent contends : “
.” (T 201)
At meeting of 01/05/2017 was discussed and the DOE did not feel it was needed since Student needs were addressed at school. (T 202)
believes the Student requires services. Regression is noted without the services. (T 205-2016)
believes the Student could not function in a without
. (T 207)
Regarding the Student’s are concerned and involved with the situation. (T 210-212)
. (T 214)
DEPARTMENT OF EDUCATION POSITION
DOE contends the Student was not denied a FAPE, the current Student program is appropriate
(T 8-9), Student is not entitled to any additional services (T 9 & 11), and evaluations are not warranted at this time, (T 10)
DOE WITNESS
( ). reviewed her professional and educational qualifications and testified as for . “
. (T 18-19)
Student is in one of the classes referred to above, at . (T 19)
participated in the Student’s IEP, of 05/27/2016. (T 20, Ex C)
reviewed Student strengths and weaknesses as indicated in the IEP. (T 20-21, Ex C)
At the meeting noted: Parent desire for a program, was approached, in the end recommendation was made for “
.” (T 22)
Classroom teacher felt the was not a match for the Student. (T 26)
Various Student evaluations and documents created prior to the IEP meeting were reviewed and considered at the meeting. This included . (T 25, Ex F)
indicated reliance upon the reports of the Student‘s .
“
.” (T 48, Ex 3)
testified as to the Student’s disability: “
.” (T 26)
Based upon the reports Student was classified, at the IEP meeting, as . He presented with , which required specialized support and services. (TR. 26-27)
Recommendation was made for a program in a in a with related services. (T 28, Ex C 12)
Class placement was made to a class with a teacher who had experience working with , as well as . (TR.
28-29).
Recommended for
. (T 29-30, Ex C 12)
“
.” (T 32)
Student class currently only has students, .
(T 34)
Parent was concerned about (T 35) and sought continuation of the previously recommended services. (T 47)
advised the Parent that services are not provided at “this stage”. (T 36)
added the service was not something that could be done during the school day.
(T 46)
Parent was the only one at the IEP meeting who felt was necessary for the Student. (T 37)
at the IEP meeting felt services were not appropriate. (T 55)
The Parent requested a reevaluation and continued to be concerned about services. This resulted in another IEP meeting of 01/05/2017. (T 39, Ex B)
The team discussed Student progress in class and classroom observation. (T 39, Ex 2)
The team believed the Student was making appropriate progress,
. (T 41-43, Ex B 11)
Parent remained concerned about and the team pointed out various outside of school supports. (T 42)
“
.” (T 72)
has observed the Student in class this school year. Student has made progress with and , which was not observed while he was in . Student is currently in an appropriate program to meet Student needs. (T 43-44)
Student does not require to make further
progress. (T 44)
was aware that the Student had previously been recommended to receive
. (T 45)
was asked about Student diagnosis. “
.” (T 50-51)
was aware of the diagnosis. (T 52)
was not recommended on neither IEP though it was “made available”. (T 58)
Related services continued from the program. discussed the services with the at . (T 59)
does not recall a discussion regarding a
( ) (T 62) nor . (T 64)
issues were discussed at the 01/05/2017 EP meeting. Classroom teacher explained and they were addressed. (T 78)
DOE WITNESS
( ) reviewed his professional and educational qualifications and testified as the Student’s current teacher. is a and has received a post-graduate certificate in and studied for a post-graduate diploma for the mandatory qualifications for
. (T 82-84)
description of the Student includes:
(T 85);
. (T 86)
Student displays and . (T 86)
Due to Student ,
. Student “
.” (T 86)
Student is noted as
.
“
.” (T 87)
Student is provided to
. (T 88) “
.” (T 88)
participated in the 01/05/2017 IEP meeting and had gathered Student information. (T 90)
Student has demonstrated progress: through the use of assessments, specifically in
(T 93);
. (T 91-92)
Student progress is noted in . (T 91)
agrees with the current Student recommendation. “
.” (T 93)
Student receives , including . (T 94)
Regarding :“
.” (T 95)
Student could benefit greatly from
. “
.” (T 95)
is aware of the diagnosis but does not believe is necessary for the Student. (T 95-96)
diagnosis was discussed at the IEP meeting of 01/05/2017 and support would be delivered in the classroom. (T 112)
is displayed in class by the Student. “
.” (T 96) Strategies are employed to address . (T 97)
( ) is not required for the Student. (T 101)
frequently communicates with related service providers who have noted Student progress in all areas, specifically in and and . (T 98)
testified that at no point has any provider indicated that the Student requires an increase in services nor support. (T 99)
developed goals for the 01/05/2017 IEP meeting and Student is making progress towards meeting those goals. (100)
did notice that the 05/27/2016 IEP did not contain goals. (T 102, Ex C)
In September, “
” (T 103)
Student goals were in place in September, but were not written down. (T 103)
has not seen and . (T 106-107)
Student does . Though there has never been “ ”. (T 107)
. This has been discussed with the parents though it is not addressed at school. (T 108 & 120)
There is no actual plan though states: “
.” (T 121)
are addressed at school. (T 109)
Student would benefit from a: “
. ” (T 110)
In September 2016 Student was receiving
. In January they were each reduced to . (T 116)
Student has received his this school year. (T 120)
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 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; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't.
of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June
10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida
Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).
While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v.
Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent.
Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).
Under the IDEA, if procedural violations are 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]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
The IDEA directs that, in general, an IHO'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). 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). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130]
[citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). 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, 2012 WL 4946429 [2d Cir. Oct. 18, 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. 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 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]; 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).
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]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).
"Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR
300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).
DOE 2016-2017 FAPE
DOE presented two witnesses. Each are found to be credible in their respective testimony.
and testimony is reflected hereinabove.
testimony included attendance at the Student IEP meetings (Ex B & C), and an understanding of the Student’s special education needs. (T 20-21, Ex C)
Student’s current teacher, , who appeared at the 01/05/2017, evidenced an understanding of the Student’s special education needs (T 85-86) and delivers
. (T 94)
testified to discussions regarding the Student needs, services to be delivered and Parent concerns. Review of Student documents and discussion prior to and at each IEP meeting resulted in the placement in a at . (T 22, 25-26, 48, Ex F & Ex 3)
Resulting placement addressed
. Other programs, such as the were considered, but found to not proper for the Student, by the IEP team. (T 26) Current teacher agrees with the current Student recommendation. (T 93)
Based upon the reports, and discussions at the IEP meeting, Student was classified, as , and appropriate were recommended for
. (T 28-30, Ex C 12)
Placement was calculated to be in
. (TR.
28-29).
presently delivers appropriate special education services to the Student, including . (T 86-88)
notes that
. (T 87)
also indicates
. It also reflects appropriateness of the current Student placement where
. (Ex 2)
Testimony included that Student was making progress and with related services. (T 43-44, 91-93 & 100)
did notice that the 05/27/2016 IEP did not contain goals. (T 102, Ex
C), Goals were in place but had to be written down, created them and they were then included in the 01/05/2017 IEP. (T 103)
Discussions took place to some degree at each IEP meeting regarding services. Parent concerns were noted (T 35, 36 & 47), IEP team was aware of Case No. 165716 diagnosis and previous services delivered to the Student. (T 45 & 52)
Ultimately at each IEP meeting the team felt the IEP would address Student needs.
(T 72)
testified regarding that: “
.” (T 95-96)
Regarding : is aware of and addresses them within the structured classroom “ .”
(T 96); ,
(T 107); has not seen (T 106-
107); strategies are employed to address (T 97); and
. (T 86)
was not recommended on neither IEP though it was “made available”. (T 58) may benefit the Student.
notes that the Student could benefit greatly from . To that end has “
.” (T 95)
Related services continued from the program. discussed the services with the at . (T 59) Goals appear in each IEP relative to relative services. (Ex B & C)
. (T 108 & 120)
There is no plan though and
. (T 121)
are addressed at school. (T 109)
notes the Student would benefit from a: “
” (T 110)
Regarding related services some confusion exists. In September 2016 Student was receiving . In January they were each reduced to . (T 116) IEPs actually both have . (Ex B 11 & C 12-13)
Parent alleges Student has not received services this year. Student testified she has been delivering services to the Student for the 2016- 2017 school year. (T 132-134) She also is involved in .
(T 138)
Parent witnesses did not evidence a failure of the DOE to offer a FAPE.
Parent also did not evidence a need for Student .
concluded the Student has based upon Parent report and classroom observation (T 167) and concluded: the Student requires
(T 149) and an is needed with , . (T 149-150)
As indicated above and throughout the DOE testimony the have been identified and are being addressed in the classroom. An is not evidenced to be required at this time. has not seen any (T 106-107); strategies are employed to address (T 97); and
. (T 86)
does testify that the “
.“ (T 150-151)
does support the current Student placement, though he notes, progress would be limited. (T 151-152) Exactly how progress would be limited is not evidenced.
of Dr. , of 10/21/2015, includes:
. (Ex F 3) Recommendation is made for a review of CSE services and goals as well as service be delivered by someone experienced in . (Ex F 4)
Though is not actually diagnosed in the report, is a service provider experienced in . (T 82-84)
Updated evaluation of Dr. continues to reflect . (Ex G 3)
This evaluation recommends .
This recommendation does not take into account the Student’s then current program and services delivered to address Student needs. I note that it also does not recommend any service to specifically address . (Ex G 4)
CPSE IEP includes a letter, dated 03/23/2016, authorizing
. (Ex M 14)
CPSE IEP, of 11/02/2015, includes . (Ex N 1)
No evidence is presented to indicate services were actually delivered.
Nor is any evidence presented which indicates the effectiveness of , if indeed delivered, for the Student.
for includes that the Student
receives . (Ex 3-1)
No information is provided regarding the actual services. (Ex 3)
A recent setback in is noted relative to recent “ ”. Improvement is noted as “
”/ (Ex 3-7)
This comports with the testimony of who includes in his description of the
Student:
(T
85); . (T 86) Presently the has benefited the Student so that
. (T 86)
I find the IEPs and resulting placement offered the student a FAPE for the 2016-
20170 school year.
COMPENSATORY EDUCATION SERVICES
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).
In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).
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.).
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).
DOE has offered the Student a FAPE for the 2016-2017 school year. Therefore no claim exists for compensatory education.
A district is required to conduct an FBA in an initial evaluation for students who engage in behaviors that impede their learning or that of other students (8 NYCRR
200.4[b][1][v]). To the extent the district asserts that the student's behaviors were appropriately managed with general behavioral interventions, a CSE must consider the development of a BIP for students who engage in behaviors that impede learning "despite consistently implemented general school-wide or classroom-wide interventions"; however, the obligation to conduct an FBA as part of an initial evaluation is not so limited (compare 8 NYCRR 200.4[b][1][v], with 200.22[b][1]). State regulation defines an FBA as "the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment" and includes, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. (8 NYCRR 200.1[r]).
The Second Circuit has indicated that, when required, "[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors" (R.E., 694 F.3d at 190; see
L.O. v. New York City Dep't of Educ., 822 F.3d 95, 112-13 [2d Cir. 2016]). The Court also noted that "[t]he failure to conduct an FBA will not always rise to the level of a denial of a FAPE," but that in such instances substantive review is impaired because it is impossible to know what information an FBA would have provided, and particular care must be taken to determine whether the CSE had sufficient information to appropriately address the student's problem behaviors (R.E., 694 F.3d at 190).
Parent witness, , concluded the based upon Parent report and classroom observation (T 167) and concluded: the Student requires to and (T 149) and an is needed with ,
. (T 149-150)
As indicated above and throughout the DOE testimony the have been identified and are being addressed in the classroom. An is not evidenced to be required at this time. has not seen any (T 106-107); strategies are employed to address (T 97); and
. (T 86)
Parent alleges a failure of the DOE to offer a FAPE, in part due to lack of
.
Parent counseling and training means “assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education program.” (8 NYCRR 200.1 (kk) )
Additionally: “Provision shall be made for parent counseling and training as defined in section 200.1 (kk) of this Part for the purpose of enabling parents to perform appropriate follow-up intervention activities at home.” (8 NYCRR 200.13 (d))
Though not specifically included in the IEP the DOE has made efforts to provide some degree of . DOE testified was not recommended on neither IEP though it was “made available”. (T 58)
Parent has some understanding of her child’s needs, as testified to Student’s educational history, IEP meetings and her request for to continue. (177-188) Parent did at one time receive some type of . (Ex 3-1)
While remains an issue Parent appears to be addressing continuously with (T 183 & 210-212) and school continues to address somewhat through . (T 121 & 138)
Parent does appear to need to address
Student special education needs.
For example,
. (T 198)
testified that Student would benefit from a: “
” (T 110)
has “
.” (T 95)
Whether or not the Parent has engaged any of the suggestions from was not evidenced.
Parties must engage with each other to identify any desired, or required beyond the informal services offered thus far.
ORDER
1. The DOE offered the Student a FAPE for the 2016-2017 school year.
2. Parent claims are dismissed.
3. This decision is subject to appeal and review by the State Review Officer. Dated: June 9, 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 04/21/2017
A Amended Due Process Complaint, 3/13/17, seven pages
B IEP, 1/5/17, 18 pages
C IEP, 5/27/16, 20 pages
D Prior Written Notice, 9/2/16, four pages
E Prior Written Notice, 1/5/17, four pages
F , 10/21/15, four pages
G , 12/15/16, four pages
H School Observation Report, 3/20/17, four pages
I Assessment Report, 3/20/17, five pages
J Report, December 2016, four pages
K Doctor's Letter Regarding Diagnosis, 10/30/15, one page
L , 10/21/15, four pages
ENTERED 05/08/2017
M CPSE IEP and attachments, 3/28/16 and various, 14 pages
N CPSE IEP, 11/2/15, 13 pages
DEPARTMENT OF EDUCATION
ENTERED 04/21/2017
1 Withdrawn
2 , 3/15/16, two pages
3 , 2/22/16, eight pages
HEARING OFFICER
ENTERED 04/21/2017
I Notice of Appointment, 3/15/17, three pages
II Notice of Appearance of , 3/20/17, one page
III Due Process Complaint, 3/13/17, seven pages
ENTERED 05/08/2017
IV Subpoena to for the Student, 4/25/17, one page
ENTERED 06/05/2017
V Parent Closing Memorandum, 06/04/2017 11 pages
VI DOE Closing Brief, 06/05/2017, 11 pages
VII Extension of Compliance Date, 05/08/2017, three pages