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FINDINGS OF FACT AND DECISION
Case Number: 165839
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: June 13, 2017
Actual Record Closed Date: June 23, 2017
Hearing Officer: Mary Noe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 13, 2017
Attorney — Student
Parents
(Via Telephone) — Student
District Representative — DOE
(Via Telephone) — DOE
(Via Telephone) — DOE
The parent through their attorney requested a hearing on March 28, 2017. I was appointed on May 3, 2017. On May 5th, I scheduled a hearing for June 6, 2017. The parent requested an adjournment because she was unavailable. I then scheduled a hearing on June 13, 2017. The parent is represented by of . The district was represented by . Neither party extended the compliance date. The transcript was received on June 21, 2017. The parties’ submission were received on Friday, June 23 at 5:00 p.m. I am submitting this decision to the IHO on June 26, 2017.
BACKGROUND
The student is a ( ), classified as attending a an at .(T. 6)
During the school year 2014-2015 the student attended a parochial school. The request for evaluation was received by Department of Education on July 8, 2015. (Exh. 5-1) The parent signed the consent for evaluation on August 11, 2015. (Exh. 6-1)
The parent is challenging the IEPs dated October 7, 2015 and September 30, 2016. (Exh. A) The parent requests hours of compensatory services,
; reimbursement for ; reimbursement for ; ; reconvene of IEP. (Exh. A-8,9)
The parent is withdrawing requests numbered 7 and 8. (T. 54)
The IEP dated October 7, 2015 recommended the following: ;
;
;
. (Exh. 8)
Additionally there are such as .
(Exh. 8-2)
The IEP dated September 30, 2016 recommends the same program and as the IEP of October 7. 2015. (Exh. 10)
EVALUATIONS
The parent obtained a Evaluation Report dated April 27, 2015 from dated April 27, 2015 which was presented to the IEP team. The listed reason for referral is the student’s parochial teacher reported
. Also the parents
stated .
(Exh. 3-1)
The student performed on the
.
.
. The student’s performance is interrelated with . There is no suspicion of a . Her performance on is . The student meets DSM-5 criteria for . (Exh. 3) The recommendations are 1. Student’s teacher’s receive a report; 2. This report should be shared with CSE; 3. ; 4. “
” 5.
. The student’s
teachers utilized New York State approved assessment “Adapted from U.S. 6. 7. “
8. “ ” 9.
“ ” (Exh. 3-15) 10.
“ .” (Exh. 3-15) 11. “
” (Exh. 3-
15); 12. “ ” (Exh. 3-15); 13.
“
” (Exh. 3-15); 14. “
” (Exh.3-15); 15. “
” (Exh. 3-15)
A Report dated July 8, 2015 was before the CSE which reviews the evaluation. The doctor observed the student in his office and found . During screening tasks,
.
. The doctor recommends
. (Exh. 4)
A classroom observation was completed on October 6, 2015.
. She struggles with . She
requires .
.
. (Exh. 7)
A evaluation was completed on August 11, 2015. The parents submitted to the evaluator the evaluation. (Exh. 3) No school reports were submitted. (Exh. D)
Report card dated 2015/16 indicates that the student is
. The student
. The student is
. (Exh. E)
TESTIMONY
The parent testified that she wanted an “overall evaluation.” (T. 197)
The parent’s affidavit states that when the student entered (September
2015) she requested that
. By October 6, 201[8] the student exhibited that she had in the 2014- 2015 school year, such as . The parent states that at the IEP meeting there was little input from the student’s classroom teachers. The parent testified that the student needs . (T. 190)
The parent stated at the IEP meeting that the IEP team did not discuss the class. (T. 192) The parent requested that . The IEP team responded that . (T. 193-194)
The parent voiced concerns about the student’s , request
. In the , the student
.
.
. Ms. and Ms.
repeatedly contacted the parent to discuss her daughter’s via email. (Exh. I)
The parent’s primary concern is “
” (T. 207)
, the student’s teacher testified by her affidavit that the student entered her class with in the Fall 2015. (Exh. 14, T. 35) At the IEP meeting, Ms. stated the parent agreed with the recommendation and did not request further evaluations. (T. 55)
Ms. testified that . (T. 40-41) The student was given . She had individual conferences with both teachers in the classroom. The student was provided with , . The teacher provided . (T. 40-41) The student also received
. (T. 72)
The student’s was . Ms. addressed this by
. (T. 41)
Ms. stated the student did not receive any . She did receive . (T. 46)
The student made academic progress in . In June
2016the student was as compared to in September. In April 2016, the student assessment. She received assessment in February 2016 and assessment in May 2016. The student’s progress is typical for a student in an . (Exh. 14)
, the student’s teacher testified by her affidavit that the student entered at a ( ).
She was a in in September.
The student’s was appropriate. Ms. testified “
” (T. 94)
.
. .
.
.
. (T. 100-101)
In the beginning of July the student is ( ). In in February she is at . The student’s progress was assessed through informal observations during lessons and small group work. Ms. testified that the student has made progress. (T. 142)
Ms. stated at the parent-teacher conference the parent was concerned about the
. (Exh. 15)
DISCUSSION
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 111, 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]"]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *23 [E.D.N.Y. Oct.
30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; 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 [S.D.N.Y. July 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 a Student with a Disability, Appeal No. 09-111 [adding summer reading instruction to an additional services award]; Application of the Bd. of Educ., Appeal No.
09-054 [awarding additional instructional services to remedy a deprivation of instruction]; Application of a Student with a Disability, Appeal No. 09-044 [awarding "make-up" counseling services to remedy the deprivation of such services]; Application of a Student with a Disability, Appeal No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]).
The purpose of an award of additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M., 758 F.3d at451; Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a den ial of a FAPE]. An award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; S.A. v.
Ne w York City Dep't of Educ., 2014 WL 1311761, at *7 [E.D.N.Y. Mar. 30. 2014]
[noting that compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]
If the IEP failed to offer the student a FAPE because it is not an IEP that is likely to produce progress, not regression, it does not afford the student with an opportunity greater than mere trivial advancement and is not reasonably calculated to provide some meaningful benefit (see Rowley, 458 U.S. at 192; Cerra, 427 F.3d at 195, T.P., 554 F.3d at 254; Newington, 546 F.3d at 118-19; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir.1997]).
I find no denial of FAPE for the school years 2015-2016 and 2016-2017 because of the following reasons.
1) Ms. testified that in September 2015 the student was at a . (T. 24) Students are tested four times a year. This student was tested more than four times a year. (T. 28) This student made progress that was documented by assessments testing. Similarly Ms. testified as the the measurable progress the student has made. (Exh. 14, 15)
2) The IDEA provides in relevant part that an initial evaluation is to take place within 60 calendar days from the date that consent is received from the parent (20 U.S.C. §1414[a][1][C][i][I]). In this case, evaluations were completed within that sixty day period.
The parent consented to evaluations on August 11, 2015. The date of the IEP meeting was October 7, 2015.
3) Plaintiff alleges the following violations of the IDEA in the complaint:
A. “it failed to reference any other evaluations” (Exh. A-4)
The Evaluation/ ( Exh. 3)
does not recommend additional evaluations. The parent testified she did not request additional evaluations (T. 197) The Report (Exh. 4) does not recommend additional evaluations.
A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation. (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]).
B. “The DOE failed to adequately capture or comprehend [the student’s] special education needs.” (Exh. A-4)
IEP dated October 7, 2015:
The IEP provides a list of twelve scores received on testing memorialized in the Evaluation (Exh. 8-1). The IEP lists additional results from the testing listed under . In the school year 2014-2015, the student attended a parochial school and therefore the DOE would only have available the school records provided by the parent. There is no evidence the parent provided additional information.
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; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; 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]).
I find inadequate evidence to support the parent’s allegation as to the IEP dated October 7, 2015 did not document the student’s special needs as specified in the evaluation.
IEP dated September 30, 2016
The IEP provides Assessment Levels from
Assessment dated September 2016. The IEP also provides from the student’s in
.
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]
I find inadequate evidence to support the parent’s allegation that the IEP dated September 30, 2016 did not provide updated educational assessment information.
C. “DOE flatly ignored the recommendations provided within the final report.” (Evaluation)
Recommendations: (Exh. 3-14)
1. Student’s teacher’s receive a report. Affidavit of (Exh. 14) “During the [IEP] meeting evaluation results and student work were reviewed.”
2. This report should be shared with CSE. IEP dated 10/7/18 (Exh. 8) lists evaluation results.
3. . A. (Exh. 14) “”
” B. Affidvit of (Exh. 15) “
” C. IEP 9/30/16 (Exh. 10-8) “
” D. IEP 10/7/15 (Exh. 8-10) “
”
“it is recommended that a be created….” (Exh. 3-14)
Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also R.E., 694 F.3d at 190-91; A.C., 553 F.3d 165 at 172).
Both teachers testified that
(T40-41, 72, 94) The are a consequence of her disability,
.(Exh. 3-13)
. The IEP “ ” address ex.
(Exh. 8-2) The student does not have
4. “ ”
Both IEPs include “ ” (Exhs. 8-2, 10-2). Additional the teachers testified about . (T. 72, 100-101, 142)
5.
.
The student’s teachers utilized New York State approved assessment “ ” (Exhs. 12, 13)
I find the teachers’ methodology was successful based on the student’s assessment scores.
(Exh. 12,13)
6. 7. “… ….”
“ ….”(Exh.3-14)
Both IEPS “ ” specify: “
” (Exh. 8-2, 10-2)
8. “ ”
Both IEPS “ ” specify “
” (Exh. 8-2, 10-2)
9. “ .” (Exh. 3-15)
No evidence presented.
10. “… .” (Exh. 3-[15]
Both IEPs “ ” specify “
” (Exh. 8-2, 10-2) Under “ ” the student receives
“ .” (Exh.8-10, 10-8) Ms. testified the student receives (T. 28)
11. “
….” (Exh. 3-15)
No evidence presented that parent provided .
12. “ ….” (Exh. 3-15)
The teacher’s methodology has been successful with this student. (Exh. 14, 15, T. 25-26, 27-28, 44-45, 47-50, 73,114-115, 119-120, 123-124)
13. “
.” (Exh. 3-15)
New York State Assessment and guidelines provide the criteria for
. (T. 24, 63-64, 105, 137-138)
14. “ ……” (Exh.315) Both IEPs “ ” specify “
” (Exh. 8-2, 10-2)
Ms. testified . (T. 100-101)
4. “Assuredly, the DOE will point to its extensive list of as evidence of her IEP’s competence; nevertheless, this only further demonstrated her need for .[emphasis added]. (Exh. A-4)
The parent relief request is for compensatory services. There is no request in the complaint or at the hearing for a change of program. There was no evidence presented as to a different program.
5. “In addition, the DOE failed to provide [the student] with any related services, though many of her needs were readily apparent.” (Exh. A-5)
The parent obtained Evaluation and Report that found no need to address related services. (Exh. 3, 4)
6. “Similarly, [the student’s} annual goals also failed to accurately address her special education needs. Noth only were their criterions of measurement, methods, and schedules of progress erroneous, but they lacked any basis for their application.” (Exh. A-
5) The plaintiff advances the same argument in her post-hearing submission.
An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 CFR
300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 CFR 300.320[a][3]).
Under the IDEA and State and federal regulations, a determination of the appropriateness of a particular set of annual goals and short-term objectives for a student turns not upon their suitability within a particular classroom setting or student teacher ratio, but rather whether said goals and objectives are consistent with and relate to the needs and abilities of the student (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 CFR
300.320[a][2][i];8 NYCRR 200.4[d][2][iii]).
In this case, both IEPs contains annual goals target the student's needs in the areas of , , and . (Exhs. 8-3 – 8-8; 10-3 – 10-6)
Ms. testified tracked the student’s goals in with conference notes, formal and informal assessments and writing on demand. (T. 21) IEP progress reports were created and sent to the parent. (T. 22)
The IEP goals for the 2015-2016 school year state that even though . Ms.
did not know why “ ” was included in the goal. (T. 60-61)
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; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]. 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])
This procedural defect did not impede the student’s ability to learn. The incorrect was written in the IEP but the student was taught at the appropriate .
Ms. testified that the IEP 2016-2017 goals were created by the IEP team based on the student’s strengths and weaknesses. (T. 103) Ms. stated that the goal that states that , is because the IEP team is encouraged to use the language of the common core when write goals. (T. 112-113)
7. “
” (Exh. A-5)
The parent did not request this relief in their complaint nor provide evidence to support this statement.
8. Plaintiff in her summary submission alleges “
.”
In the IEP dated October7, 2015, under the categories of “ ” a list of the student’s provides the necessary information to create a valid IEP. (Exh. 8)
In the IEP dated September 30, 2016, I find similar information regarding the student’s . (Exh. 10)
Based on the evidence provided I find the plaintiff’s allegation without merit.
Plaintiff in her post-hearing submission argues that “
.”
9. The plaintiff fails to provide one example of retrospective testimony in her submission to substantiate this claim.
I have reviewed all of the plaintiff’s claims and find them to be unsubstantiated or without merit. Based on the testimony and evidence presented the parent’s request for compensatory education is denied. Dated: June 27, 2017
MARY NOE, ESQ.
Impartial Hearing Officer MN:
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 Impartial Hearing Request, 3/28/17, 9 pages
B Letter Requesting Documentation, 2/2/17, 1 page
C , 2/11/15, 2 pages
D , 8/11/15, 2 pages
E Report Card, 2015-2016, 2 pages
F Report Card 2016-2017, 2 pages
G , 3/9/17, 54 pages
H Affidavit, 6/9/17, 9 pages
I Parent Affidavit, 6/8/17, 5 pages
J Opening Statement, 6/9/17, 4 pages
DEPARTMENT OF EDUCATION
2 Due Process Response, 4/6/17, 3 pages
3
, 5/7/15, 27 pages
4 Report, 7/8/15, 2 pages
5 Parent Request for Evaluations, 6/19/15, 1 page
6 Parent Consent for Evaluations, 8/11/15, 1 page
7 Classroom Observation Report, 10/5/15, 2 pages
8 Individualized Education Plan, 10/7/15, 15 pages
9 Prior Written Notice, 10/27/15, 4 pages
10 Individualized Education Plan, 9/30/16, 12 pages
11 Prior Written Notice, 10/5/16, 4 pages
12 Assessment for , 1/30/16 & 6/16/16,
11 pages
13 Assessment for , 4/24/17, 7 pages
14 Affidavit, 6/6/17, 4 pages
15 Affidavit, 7/7/17, 3 pages
Footnotes
[15] “… ….” (Exh. 3-15)