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: 165867
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: May 10, 2017
May 17, 2017
May 31, 2017
Actual Record Closed Date: June 26, 2017
Hearing Officer: Daniel Ajello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 10, 2017
Attorney — Student
Representative for the — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 17, 2017
Attorney — Student
Parents
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 31, 2017
Attorney — Student
(Via Telephone) — Student
Student
(Via Telephone) — Student
(Via Telephone) — Student
Impartial Hearing Representative — DOE
INTRODUCTION
On 04/03/2017, 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) (1).
Appointment was under case number 165867. Due Process Complaint (DPC), dated 03/31/2017, was filed by the Parent, via Attorney. DPC alleges a denial of a Free and Appropriate Public Education (FAPE) for the 2014-2015, 2015-2016 & 2016-2017 school years. (Ex A)
Parent seeks relief that includes a Committee on Special Education (CSE) referral to the Central Based Support Team (CBST) to identify an appropriate placement, mandated evaluations to be completed, a reconvene of the CSE once evaluations are received, and various compensatory services. (Ex A 16-17)
On 04/18/2017 IHO received appointment under case number 166001. This case is for a DPC dated 04/18/2017. (Ex B) This DPC alleges DOE failures relative to Student evaluations, or lack thereof. (Ex B) Relief sought includes payment for independent evaluations. (Ex B 6)
Matters were consolidated by Order of 04/20/2017. (IHO Ex IV)
A hearing was conducted and appearances made by the parties as indicated herein.
Appended to the record are lists of persons in attendance and the documents received in evidence.
Hearing commenced on 05/10/2017.
BACKGROUND
Student IEPs track educational history of the Student as indicated below on IEP informational chart.
Student is currently in and has made no progress since at least 2013, as indicated above.
Recent evaluations entered into evidence also shows
. (Ex BBB & CCC)
THE PARENT’S POSITION
( ) presented the Parent’s position at the hearing of
05/10/2017.
( ) presented the Parent ’s position at hearing of
05/17/2017 and 05/31/2017.
PARENT WITNESS
( ), Student’s mother provided testimony at hearing of
05/17/2017.
describes her child as: “
” (T 36); “
”, diagnosis of in (T 37); there was an
IEP in , for entering , (T 38-39); IEP at the time included , to which Parent disagreed, no evaluations were provided, progress was not discussed (T 42); Parent did not feel it (IEP) was appropriate, he was not progressing and had the same issues, Parent expressed her concerns and requested (T 43); team felt the placement was appropriate, Parent was not aware of any specific instruction to address (T 44).
At the time understood the Student to be in a class with
. (T 44-45)
At the time there was no discussion of . Parent
believed these were necessary. Each September the teachers advised her the Student did not remember what he was taught before. They (Teachers) believed h\be belonged in a . (T 45-46)
states that progress was not made in and no progress reports were received. (T 46-47)
To address Student : “
…” (T 54)
This program was for . (T 55)
Student was unable to . (T 54)
Parent believes a evaluation is needed: “
.” (T 56)
Parent requested an evaluation, but services were denied.
(T 56)
Student . (T 56-57 & 75)
has been discussed at the current school (T 58), but not at CSE meetings. (T 59)
believes the Student needs . (T 60)
has not received any and it has not been discussed. (T 60)
believes she could use . (T 61)
Moving forward: “…
.” (T 61)
believes the Student needs in order to catch up. (T 64-65)
Parent has visited placements. Those recommended for the Student were for those with “ ”. (T 62) does not believe this would be appropriate for her child. (T 63)
requested an independent evaluation. (T 65)
DOE did contact the Parent regarding a evaluation which she authorized on 03/24/2017. (T 67-68, Ex 1 & 3)
No one contacted the Parent about a evaluation. (T 68)
requested an independent evaluation. (T 69)
Parent had an independent evaluation completed by Dr. . (T 70)
PARENT WITNESS
( ), set forth her professional and educational background and testified a and
( ). is an
. (T 88-90)
evaluated and prepared a report for the Student. (Ex CCC)
set forth her recommendations for the Student: needs a program, a , , , or . (T 95)
is described as: “
.” (T 96)
The Student needs a referral to CBST because there are only “one or two programs” where the DOE provides and “they’re full” (T 98). Dr.
testified that she is aware that they are full because she has “ ” in her practice and “we check allthe time.” (T 107)
believes the Student could not make progress without an program (T 99) for (T 100 & 105-106 ) as well as . (T 97 & 109)
is needed to address . (T 104)
has been recommended for the Student. (T 104)
Student has a . Student is
. “
” (T 104-105)
Student needs a class” “…
.” (T 97)
Student has a . “
.” (T 106)
services should have been provided in prior school years. (T 100)
believes an evaluation is needed for the Student. (T 101-102)
Student needs an program and is recommended. (T 104)
Student is not presently receiving . (T 108)
Student “
.” (T 139, EEE-8).
PARENT WITNESS
( ) set forth his educational and professional experience and testified as a . (T 114-115)
evaluated the Student, (T 115, Ex FFF)
Student has profound deficits which affect (T 116) and
. (T 118)
reviewed previous evaluations which he felt were not “sufficiently detailed”. (T 119)
IEP goals reviewed were not sufficiently detailed. (T 121)
referred the Student for an evaluation by an . (T 124)
recommendation includes: “…
.’ (T 127)
recommends compensatory services: “
.” (T 128)
believes these services should have been provided for the current school year.
(T 128)
Compensatory services wishful be able to bring him up to meet the goals drafted in his evaluation. (T 129)
The are minimally required for the Student.
(T 132-133)
Ideally the Student would receive . (T 134)
evaluation cost (T 129) which has not yet been paid. (T 130)
is available to provide services to the Student. (T 131)
reviewed Student documents and believes that, currently, the Student is making very limited progress. (T 137)
PARENT WITNESS
( ) set forth her educational and professional experience and testified as a and . (T 139-142)
conducted an educational review for the Student. (T 142)
Review showed that the Student: “…
“ (T 143)
include: “…
.” (T 144)
To address a ( ) is needed. Though
one was conducted it was not done properly. “
.” (T 144-145)
A proper educational program would include a ( )
and an program. (T 146-147)
Student requires a the high level of support of an program, that can be found only in nonpublic placement. (T 149).
testifies that it is evident the Student cannot make educational progress without the program for . (T 149, 159-161)
Student requires , a , and
. (T 149-150)
can provide services to the Student at a rate of per hour. (T 158)
does not believe the Student needs a evaluation, instead he needs to commence the program. (T 160-161)
believes should have been provided to the Student for the current and past school year. (T 161-162)
recommends hours of services. “…
.” (T 156)
These hours include . (T 168)
Hours recommended also assume the Student will be in an program during the school day. (T 169-171)
DEPARTMENT OF EDUCATION POSITION
( ), DOE Representative, presented the DOE position.
advised the IHO at hearing that the DOE was “not putting on a case”. (T 8-9)
confirmed the DOE was conceding it had not offered a FAPE for the applicable two years under consideration by the IHO. (T 8, Ex VII - 1)
DOE was also in the process of completing various assessments with the
Student. (T 9)
DOE would like to conduct another IEP meeting upon completion of the pending evaluations. (T 14, Ex VII - 1)
DOE submitted a Closing Statement summarizing its position.
The relief sought is as follows:
1) CBST deferral
2) A evaluation, independent evaluation by for an independent evaluation, and
3) compensatory for 14-15, 15-16, and 16-17
The District conceded FAPE for the 14-15, 15-16, 16-17 school years bearing in mind that the statute of limitations of 2 years sets making claims prior to 4/4/2015.
On relief # 1, CBST deferral for placement, it is the District’s position that the CSE should be allowed to reconvene and make a recommendation upon receipt of all recent evaluations.
On relief #2, independent evaluation. Parent filed an impartial 166001 (which was consolidated into 165867) dated 4/18/2017. Parent alleged that a fax was sent to DOE on April 4, 2017. The parent produced no Case No. 165867 evidence of the letter being delivered to the DOE. The DOE was closed for Spring
Break April 10-18. On 4/17/2017 Parent got a evaluation done independently by Dr for . The 166001 due process complaint asks that a evaluation with Dr. be ordered, yet at the time of filing, the parent has already done the evaluation (See parent exhibit GGG), despite the District having created no unnecessary delay in completion of the requested evaluation.
In regards to compensatory , parent gave no testimony regarding missed sessions and parent presented no evidence of missed services.
The District conducted a evaluation of (Student) on 6/2/17 within the required compliance time. Any compensatory relief, the District believes should be offered at the DOE Rate. (IHO Ex VII 1-2)
The DOE that it can call for an IEP meeting at anytime to review the Student evaluations, and make an appropriate recommendation. DOE should not rely on the hearing process to conduct IEP meetings. DOE has conceded a FAPE has not and is not currently being offered the Student. DOE has not taken any meaningful action to correct the denial of FAPE.
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., 2010 WL 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]).
The parent bears the burden of proof concerning the appropriateness of their unilateral placement.
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F. Supp. 2d at 419). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364, quoting Rowley, 458 U.S. at 207 [identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-
65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115, citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010])
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-
65).
Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373
F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y.
2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167
F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-
079; Application of the Dep’t of Educ., Appeal No. 07-032).
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided
While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement 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 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).
DOE OFFER OF FAPE and DEFERRAL TO CBST
DOE conceded that it has not offered the Student a FAPE for the past two school years. Instead of correcting any deficiency in its delivery of FAPE the DOE asserts another CSE meeting should be conducted to review additional evaluations. (T 8, Ex VII -1)
Looking forward, it would be improper to Order the case to be deferred to the CBST for non-public school placement, while ordering current evaluations to be reviewed by the CSE team. Such an Order would violate the proper process and conduct of the CSE team. When determining an appropriate placement on the educational continuum, a CSE should first determine the extent to which the student can be educated with nondisabled peers in a public school setting before considering a more restrictive nonpublic school option (see E.F. v New York City Dept. of Educ., 2013 WL 4495676, at *15[E.D.N.Y. Aug. 19, 2013] [explaining that "under the law, once [the district] determined that [the public school setting] was the least restrictive environment in which [the student] could be educated, it was not obligated to consider a more restrictive environment, such as [the nonpublic school]; A.D. v. New York City Dep't of Case No. 165867
Educ., 2013 WL 1155570, at *8 [finding that "[o]nce the CSE determined that [public school setting] would be appropriate for the [s]tudent, it had identified the least restrictive environment that could meet the [s]tudent's needs and did not need to inquire into more restrictive options such as nonpublic programs"]).
However, looking at the current school year, it is evidenced that a non-public school placement would have been and is appropriate for the Student.
Testimony relative to a proper placement for the Student is found to be credible and was not contested by the DOE. This included Parent testimony of Student struggles over his academic years (T 46-47) and attempted efforts to assist the Student which were unsuccessful. (T 53-T 54)
Parent advocated for the child seeking evaluations and input on Student needs. (T 56-58, 60-61 & 75)
Parent thoughtfully expressed her position on what the Student needs as an appropriate program. “…
…” (T 61)
believes the Student needs services in order to catch up. (T 64-65)
Parent has visited placements and not found them to be appropriate for her child. (T 62-63)
, evaluated and prepared a report for the Student (Ex CCC) and recommended services and program for the Student to address needs. This included a program, a ,
, , or (T 95) ; a referral to CBST because there are only “one or two programs” where the DOE provides and “they’re full” (T 98); Student could not make progress without an program (T 99) for and (T 100 & 105-
106 ) as well as (T 97 & 109); Student needs a class” “…
.” (T 97)
conducted an educational review for the Student (T 142), reviewed Student areas of deficit (T 143), as well as (T144).
Recommendations included: an ,a and an program (T 146-147) ; a the support of an program, that can be found only in nonpublic placement (T 149).; contends the Student cannot make educational progress without the program for (T 149, 159-161); requires , a , and . (T 149-150)
I find the Student FAPE for the 2016-2017 school year to be a program, with . as indicated above.
I note that this shall serve as an Ordered Placement for Pendency purposes unless an agreed upon IEP is developed.
I find that the DOE failed to offer the Student a FAPE for the current and past school years. Calculating backwards from the date of the hearing request of, 03/18/2017,
This includes the 2016-2017, 2015-2016 and part of the 2014/2015 school years.
COMPENSATORY 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).
Presently, the student is not appropriately placed.
It has already been determined that the Student was denied a FAPE for current and past school years.
Evidence from Parent is not contested in any way as to compensate the Student for the DOE failure.
Evidence does show that part of the DOE failure included not delivering needed services over the years. Specifically a failure to provide , or like services of
.
Student is evidenced to be as indicated in Student IEPs and evaluations. Ex C, D, E, F, G, H, CCC, & EEE)
Parent witnesses provide testimony regarding services required for the Student to progress and make up for past years of FAPE denial. Testimony is found to be credible.
Testimony was also not contested by the DOE.
Testimony included: “he should have been receiving for “more than the last couple” of school years. (T 100) and that the Student should have been getting in his educational program during the current school year, as well as the preceding school years. (T 161-162).
report includes that the Student requires hours of
(EEE-9). concurs with the recommendation for compensatory education (T 111).
Testimony is consistent that the Student could not make progress without an program (T 99) for and (T 100 & 105-106 ) as well as
. (T 97 & 109)
Student has a . “
.” (T 106)
testified that the Student requires , a , and
. (T 149-150)
can provide services to the Student at a rate of per hour. (T 158)
does not believe the Student needs a evaluation, instead he needs to commence the program. (T 160-161)
recommends hours of services. “…
.” (T 156)
These hours include . (T 168)
Hours recommended also assume the Student will be in an program during the school day. (T 169-171)
I find compensatory services warranted to enable the Student the opportunity to make up for denial of FAPE for the school years in question.
Parent also seeks compensatory services.
, a licensed , testified as to the Student’s needs for services and DOE failure to provide appropriate services.
Student IEPs all include as
. (Ex. C, D, E, F, G, H)
Goals include , ,
(C 8-12). Goals are duplicated over the course of several of the Student’s IEPS. (D 8-11, E 8-10, F 8-11)
NO evidence is offered by the DOE as to why goals were not met, nor changed.
confirmed the Student has a (T 114 & 116, FFF-
4).
testifies that the is going to make it “
…” (T 118)
did not find the DOE services offered by the DOE to service the Student’s needs. (T
121-122).
provides goals and reports that the Student requires at least
. “
.’ (T 127)
recommends compensatory services: “
.” (T 128)
believes these services should have been provided for the current school year.
(T 128)
Compensatory services wishful be able to bring him up to meet the goals drafted in his evaluation. (T 129)
The are minimally required for the Student.
(T 132-133)
DOE does not contest testimony nor does it provide any indication of appropriateness of DOE offered services.
evaluation cost (T 129) which has not yet been paid. (T 130)
is available to provide services to the Student. (T 131)
I find the Student is entitled to compensatory services.
INDEPENDENT EDUCATIONAL EVALUATIONS
The IDEA and State and federal regulations guarantee parents the right to obtain an IEE (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]). IEEs are defined by State regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 200.1[z]; see 34 CFR 300.502[a][3][i]). In addition to having an IEE considered by the CSE, parents have the right to have one IEE conducted at public expense if the parent disagrees
Additionally, an IHO is vested with the authority to direct that a student be evaluated at district expense (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]).
IHOs are "granted broad authority in their handling of the hearing process and to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA" (Warren Consolidated Schs., 106 LRP 70659 [LEA MI 2000]).
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]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things, the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see E.A.M. v. New York City Dep't of Educ., 2012 WL 4571794, at *9- *10 [S.D.N.Y.
Sept. 29, 2012]; S.F. v. New York City Dep't of Educ., 2011 WL 5419847, at *12 [S.D.N.Y. Nov. 9, 2011]; Letter to Clarke, 48 IDELR 77 [OSEP 2007]). In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C.
§ 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).
Presently evidence indicates additional Student testing is necessary.
reports that the Student requires an evaluation to determine if he will benefit from an because “c
” to determine if an is appropriate. (CCC-3, T 101-102) testified that the Student presents with a “ ” and testing results indicate that he has “ ” (FFF-4). concurs that the Student requires an evaluation (T 123-124)
testified that a for the Student is a “good idea” (T 96) and that his “ .” (T 99) ’s report indicates that a must be conducted and that he presents with “
(T 143-144, 148-149, EEE-9)
Currently the Student is not yet properly placed.
I find that any request for an should be made once the Student is placed appropriately so that any assessment can be utilized properly.
Request for evaluation is denied. Evidence already has established a program necessary for the Student. Additionally, does not believe the Student needs a evaluation, instead he needs to commence the program. (T 160-161)
Parent obtained private Evaluation. On 04/06/2017, the Parent requested an independent evaluation with , on April.
(ZZ)
DOE did not initiate a hearing to establish that its own evaluations are appropriate (8 NYCRR 200.5(g)(iv)).
DOE contends this relief should be denied since Parent was in process of obtaining the evaluation simultaneously with DOE request. (IHO Ex VII 1-2)
However, this in no way allows the DOE to ignore the request. DOE could have responded and in that way counter the Parent request.
Parent obtained the requested independent evaluation on April 17, 2017. (Ex BBB
& as revised FFF). The cost of the
I find the cost of (GGG) is to be funded by the DOE.
Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch.
Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).
Parent seeks relative to allow access to any awarded compensatory services.
DOE shall provide Student and Parent with
.
EQUITABLE CONSIDERATIONS
I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the requested meeting, participated in requested evaluation and communicated her concerns to the DOE. (Ex UU, A & B)
In no way did the Parent thwart any effort by the DOE to offer the Student a
FAPE.
ORDER
1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2016-2017, 2015-2016 and part of the 2014-2015 school year.
2. For the 2016-2017 school year Student FAPE included deferral to CBST for a non-public school placement in an program. I note that this program and placement must be written and offered by the DOE to the Student through a deferral to CBST, unless an agreed upon IEP has been issued prior to this Order.
3. The DOE shall consider all updated reports and evaluations of the Student at any IEP meeting regarding Student Program for the 2017-2018 school year. This includes, but is not limited to this Order and:
evaluation of 11/12/16; evaluation of 4/17/17; report of 1/3/17; report of 5/21/17 and evaluation report of 4/17/17.
4. DOE shall authorize Student to receive hours of at a rate of up to
Per hour session. Student shall have from the date of this Order until June 30th, 2019 to utilize said hours of service.
5. DOE shall authorize Student to receive hours of . DOE shall enable parent to receive services via a related service authorization (RSA). Student shall have from the date of this Order until June 30th, 2019 to utilize said hours of service.
6. DOE shall conduct, or authorize Parent to obtain, an independent evaluation.
7. DOE shall pay for Evaluation provided by in the amount of .
8. DOE shall provide Student and Parent with
.
9. DOE shall provide parent with any required documentation to allow for delivery of above services / evaluations within ten days of the date of this order.
10. This decision is subject to appeal and review by the State Review Officer. Dated: July 7, 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 05/10/2017
A Due Process Complaint, 03/31/2017, 18 pages
B Due Process Complaint, 04/18/2017, 7 pages
C IEP, 8/8/16, 28 pages
D IEP, 2/23/16, 24 pages
E IEP, 12/11/15, 22 pages
F IEP, 11/3/15, 26 pages
G IEP, 5/5/15, 18 pages
H IEP, 5/13/13, 16 pages
I Through Y Excluded Irrelevant
Z , 11/2/15, seven pages
AA , 10/28/15, two pages
BB review plan, 10/23/15, three pages
CC , 5/19/15, 5 pages
DD , 5/19/15, four pages
EE review plan, 4/22/15, three pages
FF review plan, 4/15/15, three pages
GG , 5/19/14, five pages
HH , 5/5/14, four pages
II review plan, 5/8/13, two pages
JJ review plan, 2/20/12, three pages
KK School assessment, 3/7/12, one page
LL review plan, 3/7/12, three pages
MM , 11/16/11, three pages
NN '15/'16 report card, 11/2/16, two pages
OO '15/'16 portfolio, Unidentified date, two pages
PP Portfolio, 11/2/16, 1 page
QQ progress report, undated, two pages
RR progress report, undated, two pages
SS progress report, undated, three pages
TT Independent evaluation response, 1/31/17, one page
UU Request for independent evaluation, 1/23/17, one page
VV evaluation referral, 12/17/15, seven pages
WW Letter from , 10/28/15, one page
XX Excluded Duplicate
YY Excluded Duplicate
ZZ Request for independent evaluation, 4/6/17, one page
AAA , 11/12/16, five pages
ENTERED 05/17/2017
BBB , 4/17/17, six pages
CCC report, 1/3/17, three pages
ENTERED 05/31/2017
DDD Due Process Request, 4/5/17, four pages
EEE report, 5/21/17, nine pages
FFF report, 4/17/17, six pages
GGG Invoice, 4/19/17, one page
DEPARTMENT OF EDUCATION
ENTERED 05/10/2017
1 Consent to evaluate, 2/17/17, one page
2 Consent to evaluate, 9/11/15, one page
3 Parent authorization, 2/9/17, one page
IMPARTIAL HEARING OFFICER
ENTERED 05/10/2017
I Notice of IHO Appointment, 04/03/2017, 3 PAGES II Notice of Appearance, 04/04/2017, 1 page III Notice of Appearance, 04/19/2017, 1 page IV Order on consolidation, 4/20/2017, 4 pages
ENTERED 06/26/2017
V Grant of Request for Extension of Time, 05/31/2017, 3 pages
VI Parent’s Closing Brief, 06/26/2017, 10 pages
VII DOE Closing Statement, 06/26/2017, 2 pages