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FINDINGS OF FACT AND DECISION
Case Number: 166485
Student’s Name:
Date of Birth:
District: LJ Hearing Requested By: Parent
Date of Hearing: September 7, 2017
September 15, 2017
September 19, 2017
Actual Record Closed Date: December 1, 2017
Hearing Officer: Michael K. Lambert, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 7, 2017
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 15, 2017
Attorney — Student
Student
Parents
Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 19, 2017
Attorney — Student
(Via Telephone) — Student
District Representative — DOE
INTRODUCTION AND PROCEDURAL HISTORY
By complaint letter dated June 15, 2017, the parents of student , through counsel, filed a due process hearing request through which numerous challenges were made to the manner in which the Department of Education (“DOE”) discharged its obligation to offer FAPE to during the 2016-2017 and 2017-2018 school years.
Although the challenges are many, this dispute can be boiled down to the following claims:
1. The DOE failed to properly evaluate in all areas of suspected disability;
2. The IEP’s developed by the DOE were procedurally and substantively inappropriate; and
3. The IEP’s were improperly implemented.
This is the second hearing that I have heard and decided regarding In deciding the issues before me in connection with this hearing, I have considered as background information the facts presented during the course of the prior hearing, which are briefly summarized in PE-B.
Hearings were conducted on September 7, September 15 and September 19, 2017.
The DOE presented no evidence. The Parent offered numerous documents as well as testimony from the mother and two private evaluators. The Parent submitted a Post- Hearing brief. The DOE waived their opportunity to do so.
The above issues are hereby decided as set forth herein.
THE HEARING EVIDENCE
is almost and is in at the
(“ ”) (T: 88). She is in a class of ; each grade at has approximately students (T: 134). This school is attended only by students with disabilities (T: 122). 7 is working toward earning an in June 2018 (PE-LLL at 97; T: 89).
(PE-B).
has complex medical needs, including a diagnosis of
, .
(PE-GG; PE-LLL at 6).
(PE-Q; PE-LLL at 49). . (PE-
LLL at 11). (PE-LLL at 57).
~n- -,77
(PE-M; PE-O).
(PE-LLL at 7).
(PE-LLL at 50, 122).
(PE-LLL at 57).
(PE-LLL at 55-56).
(PE-LLL at 57).
As a result of ,
(SD-B).
(PE-LLL at 66). (PE-
LLL at 49).
.
(PE-GG; PE-LLL at 6, 8, 48-49).
_J (T: 85).
(T: 84).
(T: 86).
(T: 86-87).
(T: 84).
(T: 85).
On September 15, 2017, the Parent testified that since her last testimony on March 23, 2016 in the prior action (LLL),1
(T: 82). testified in the earlier action, that,
(T: LLL at 51).
(PE-KKK at 6).
nn ~ -
.
(PE-B; PE-GG).
.
.
THE LEGAL STANDARDS
Pursuant to the IDEA, all children with disabilities are entitled to a “free appropriate public education” (“FAPE”) which must include “special education and related services” tailored to meet the unique needs of the child and be “reasonably calculated to enable the child to receive educational benefits.” Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 207 (1982); (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Frank G. v.
Board of Education, 459 F.3d 356, 371 [2nd Cir. 2006]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Central School District, 427 F.3d 186, 192 [2nd Cir.
2005]). The Second Circuit Court of Appeals in Walczak v. Florida Union Free School District, 142 F.3d 119 (2nd Cir. 1998) held that the IDEA does not articulate any specific level of educational benefits that must be provided through an IEP. The Court citing to IHO case number 156739.
the Supreme Court ruling in Rowley reiterated that the IDEA does not require the states to maximize the potential of disabled children, but was meant “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside” (at pg. 192). The Second Circuit in Walczak also cites to a D.C. Circuit Court decision by now Supreme Court Justice Ruth Bader Ginsburg which held that because “public resources are not infinite,” federal law “does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child” (Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1583 [D.C. Cir. 1984]). The Third Circuit has held that an appropriate education under the IDEA is one that is “likely to produce progress, not regression” (Cypress-Fairbanks Indep. Sch. Dist. V. Michael F., 118 F.3d 245, 248 [3rd Cir. 1997]; cert denied 522 U.S. 1047 [1998]; Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli v. Carmel Central School District, 2007 WL 465211, at *15). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 [2nd Cir. 1989][citations omitted]; see Grim, 346 F.3d at 379). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 [2nd Cir. 1997]; see Rowley, 458 U.S. at 192). Objective factors such as the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress and one important factor in determining educational benefit (Rowley, 458 U.S.
at 207, n.28, 203-04; Walczak, 142 F.3d at 130; Viola v. Arlington Central School District, 414 F. Supp. 2d 366, 382 [S.D.N.Y. 2006]).
The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; see Walczak, 142 F.3d at 132). The LRE is defined as “one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled” (Carlisle Area Sch. V. Scott P., 62 F.3d 520, 535 [3rd Cir. 1995]). The IDEA mandates that all students with disabilities may only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. 1412[a][5][A]; 34 CFR
300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3rd Cir. 1993]; Briggs v.
Bd. of Educ., 882 F.2d 688, 691 [2nd Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]).
“The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Borough of Clementon Sch. Dist., 995 F.2d 1204
[3rd Cir. 1993]). The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes such as language and role modeling with nondisabled peers” (Greer v. Rome City Sch.
Dist., 950 F.2d 688 [11th Cir. 1991]).
The Second Circuit Court of Appeals adopted the Oberti LRE test in P. v.
Newington Board of Educ., 546 F.3d 111 (2nd Cir. 2008) requiring the consideration of whether the school has made reasonable efforts to accommodate the child in a regular classroom, the educational benefits to the child with appropriate supplementary aids and services versus a special class and the possible negative effects of the inclusion of the child on the education of the other students in the class.
Federal district courts have upheld the appropriateness of an IEP “given what the CSE knew about [the child] at the time it was developing the … IEP” E.S. v. Katonah- Lewisboro School District, 742 F.Supp.2d 417 (S.D.N.Y. 2010). In J.R. v. Board of Education of the City of Rye School District, 345 F.Supp.2d 386 (S.D.N.Y. 2004), the Court held that in reviewing the appropriateness of an IEP that:
“This determination is necessarily prospective in nature; we therefore must not engage in Monday-morning quarterbacking guided by our knowledge of
S.R.’s subsequent progress at Eagle Hill, but rather consider the propriety of the IEP with respect to the likelihood that it would benefit S.R. at the time it was devised. See Antonaccio, 281 F.Supp.2d at 724 (noting that this issue has not yet been addressed by the Second Circuit and holding that ‘the …IEP…must be evaluated at the time the CSE devised the IEP, on June 15, 1999, and the IHO and SRO erred by regarding any information about [the student’s] education after that date’).”
The SRO has consistently considered the IEP “at the time it was formulated” to determine if it was reasonably calculated to enable the student to receive educational benefit (Application of a Student with a Disability, SRO Appeal Nos. 11-154, 09-034, 09-
013).
In terms of the available remedies in cases where a district has failed to meet its obligation to offer an educationally disabled child FAPE, IHO’s have substantial discretion. Since P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008), the courts of the Second Circuit have ceased to limit eligibility for “compensatory education” to those over 21. In P, the Second Circuit ruled that “compensatory education” can be awarded to an elementary school student. Further, even the “gross violation” requirement, which is applicable to a claim for compensatory education by someone over 21 is not clearly established in this Circuit to be applicable to a student under 21. That standard was not relied upon in P.
In S.A. ex rel. M.A.K. v. New York City Dep't of Educ., 12-CV-435 (RMM)
(MDG), 2014 WL 1311761 (E.D.N.Y. Mar. 30, 2014), the Court held:
The IDEA allows a hearing officer to fashion an “appropriate remedy, and ...
compensatory education is an available option ... to make up for denial of a [FAPE].” P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008) (affirming compensatory education award for elementary school student); see also Student X v. New York City Dep't of Educ., No. 07
CV 2316, 2008 WL 4890440, at *24 (E.D.N.Y. Oct. 30, 2008) (awarding compensatory education to student younger than twenty-one). Such an award serves “to compensate a student who was actually educated under an inadequate IEP” and “to catch-up the student to where he should have been absent the denial of a FAPE.” Brennan v. Regional Sch. Dist. No. 1 Bd. of Educ., 531 F.Supp.2d 245, 265 (D.Conn.2008). Before awarding compensatory education for a student older than twenty-one, a court must find a gross violation of the student's right to a FAPE; however, whether the same prerequisite exists to awarding compensatory education for a younger student is an open question. See Student X, 2008 WL 4980440, at *24. P. v.
Newington, 512 F.Supp.2d 89, 112 n. 3 (D.Conn.2007) (“The Court disagrees with the defendant's argument that compensatory education is warranted only if there is a ‘gross' violation of the IDEA. The requirement of a gross violation
... has been applied only to cases involving claimants over the age of 21.”), aff'd, 546 F.3d 111 (2d Cir.2008); but see J.A. v. E. Ramapo Cent. Sch. Dist., 603 F.Supp.2d 684, 690 (S.D.N.Y.2009) (finding that five-year-old student was not entitled to compensatory speech therapy, reasoning that parents failed to show gross violation because child “was not excluded from school for any period of time.”).
Also, Reid ex rel. Reid v. D.C., 401 F.3d 516, 522-26 (D.C. Cir. 2005) seems to stand for the proposition that “compensatory education” can be prospective educational services to compensate for a past deficient program and that a hearing officer, as well as a court, can fashion flexible “compensatory education” relief through the application of “equitable considerations.” Reid is cited by, for example, the Second Circuit in P., 546 F.3d at 123, for the proposition that “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.”
FINDINGS OF FACT AND CONCLUSIONS OF LAW
_J is a student who has .
She has been able, with a great deal of support, to work towards
. In spite of her progress towards
and (PE-PPP), the parent
maintains that the DOE, through the , is not appropriately preparing _J from an academic perspective for college. I do not believe that the record supports this conclusion. is a State-approved school with certified teaching staff. It is clear that _J were modified in light of . I find nothing inappropriate about such modifications under the facts of this case. Further, although I recognize that may not be optimal, I find that her qualifications in meeting ’s needs made her appropriate for i Although testimony was provided by the parent, student, Dr.
and Dr. that the academic standards at were less rigorous than at other public schools, I find that there is no credible basis in the record for reaching the conclusion that, to the extent that the academic standards at were materially different from that of any other public (which I do not find), such undefined differences warranted any relief in this case. Accordingly, although I believe that would be beneficial to , I must deny the parent’s request that the DOE provide additional in the areas of . Moreover, although L ’s performance on the April, 2017 may have been lower than what the parent had hoped for, such disappointment does not necessarily translate to an entitlement to and/or other supports to prepare her for the that are not generally provided to other students.
Although 7 unquestionably has many medical needs that have needed to be supported and will continue to need to be supported as she moves on to the next chapter of her life, it does not follow that the DOE necessarily has the responsibility to address these issues as part of its provision of FAPE to her. However, what the DOE clearly does have an obligation to do is to provide , including providing and her parents with . This obligation, which exists for all IDEA-classified students, is of particular importance for students with varied and complex medical needs like that of There is virtually no evidence in the hearing record that the DOE has conducted any meaningful or provided any meaningful
. Its failure to do so under the facts of this case resulted in a denial of FAPE during the 2016-2017 and 2017-2018 school years.
I did not place much weight on the testimony of Dr. , the assessment that he conducted or the conclusions that he reached. He did not appear to be very familiar with the assessments that he administered and did not have a strong recollection of how performed on such assessments. His descriptions of both were vague and lacked focus. I further find that his testimony concerning the academic rigor of as compared to other high schools lacked an adequate foundation to be afforded any weight.
Further, his testimony concerning the manner in which delivered to its students was vague and added nothing of value to the hearing record. I did consider Dr. ’s report, along with the other evidence in the hearing record, as demonstrating that was a student who . The fact that she is on a part to do so is a tribute to the work done by the staff supporting her and, even more notably, to the hard work and determination of a remarkable young woman.
The hearing record is clear that i would benefit from and that, in fact, that the absence of appropriate rose to the level of denying _J FAPE. The hearing record supports Dr. _J’s conclusion that _J “lacks the support she needs for FAPE” (PE-F-
13). This conclusion should have been readily apparent well-before the December 12, 2016 evaluation (PE-F). Although there is no current IEP in evidence to document provided to _J, a number of are listed in PE-F-5. The hearing record also supports Dr. ’s conclusion that ’s intensive needs required appropriate (PE-F-13). However, in this regard, I reject Dr. ’s recommendation for the provision of . While the may be “best” for L_, I find it unimaginable that appropriate to serve this purpose is not available. To the extent that the has further capabilities beyond what is currently available through , I find that such capabilities, although perhaps desirable, are not necessary in order for to receive
FAPE.
For reasons that are not clear, the DOE did not schedule a meeting to review the findings and recommendations contained in PE-F. Consequently, continued to be denied the use of appropriate . This resulted in the denial of FAPE to for the second half of the 2016-2017 school year. It is also apparent to me that an evaluation should have been conducted prior to PE-F. I accept Dr.
’s conclusion that the DOE’s failure to do so was an omission that constituted a denial of FAPE for which compensatory education services are warranted (PE-F-13).
I make no findings and am granting no relief with respect to any claims regarding . Such claims are, in my view, too speculative to warrant either specific findings or the fashioning of particular relief.
I find that there is an insufficient basis to find that the failure to provide in connection with the testified to by violated Section 504. There was no evidence that was provided to any other student in connection with such . However, I will direct that, to the extent that is provided to other students in connection with such , appropriate must be provided to _J if she wishes to participate in such.
I find no basis in the hearing record for directing that compensatory be provided, other than any such services that may be needed to implement the portion of the order set forth herein.
ORDER
I hereby direct as follows:
1. That the DOE fund I
_ L j ~ _ L _ ~ - ~ ~, to include L _ ~ - -
. Such may be provided at a time and location mutually agreed upon by the parent and consultant. To the extent deemed appropriate by the Parent, this time may be used, in part, for .
2. The DOE is directed to provide the following during the balance of the 2017-2018
school year:
a. ;
b. ;
- - - -
c. - - - -
;
d. ;
e.
11 11 11
; and
3
for the purposes of
11 11 11
. To the extent deemed
appropriate by the Parent, such may include and/or relating to
.
4 All such shall be made available to within 30 calendar days of the date of this order.
5 The DOE is directed to provide
described in paragraph 2. Such shall be identified by Dr. or, if not, by the parent and shall be made available to within 30 calendar days of the date of this order.
6. The DOE is directed to provide the following during the balance of the 2017-2018 school year:
a. ;
b.
.
7. All such shall be made available to L_ within 30 calendar days of the date of this order.
8 The DOE shall continue to provide the described in paragraphs 2.a-e, paragraph 3 and paragraph 4.a-c, above, for the period July 1, 2018 - June 30, 2019 as compensatory services based upon the failure on the part of the DOE to conduct appropriate (if any) and the failure to evaluate L_ for appropriate or to provide appropriate during the period July 1, 2015 through the date of this Order. In addition, the DOE shall offer during this time period for the purpose of . To the extent deemed appropriate by the DOE,
__ c=--~--~
9
described in paragraph 2.e may be transferred to The DOE is directed to provide appropriate
= at or before June 30, 2019.
to to the extent that is provided to other students attending such .
10 The DOE is directed to meet within 30 school days of the date of this order to incorporate the above items into ’s IEP and to address any further as the CSE may deem appropriate.
11 All other claims set forth in the due process complaint are hereby dismissed.
Dated: February 28, 2018
MICHAEL K. LAMBERT, ESQ.
Impartial Hearing Officer
MKL:
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 Due Process Complaint, 6/15/17, 22 pages
B Finding of Fact and Decision, Case number 156739, 8/10/16, 13 pages
C Order on Pendency, Case Number 156739, 8/18/15, five pages
D Amended Order On Pendency, 10/5/15, seven pages
E IEP, 6/11/14, 14 pages
F , 12/12/16, 19 pages
G , 12/17, 21 pages
H Withdrawn
I Withdrawn
J Withdrawn
K Withdrawn
L Withdrawn
M Annual Report, 4/23/15, two pages
N Withdrawn
O , 12/15/14, two pages
P Withdrawn
Q reevaluation 9 (received by parent), 4/27/15, five pages
R Withdrawn
S Withdrawn
T Withdrawn
U Withdrawn
V Withdrawn
W Withdrawn
X Withdrawn
Y NYSED letter, DeLorenzo, Rello-Anselmi, 7/27/12, two pages
Z NYSED Special Education Field Advisory to New York City Impartial
Hearing Office, 9/12, one page
AA Withdrawn
BB Withdrawn
CC Withdrawn
DD Withdrawn
EE Withdrawn
FF Withdrawn
GG , 5/13/14, three pages
HH Email, , 8/11/15, one page
II Email, , 8/18/15, one page
JJ Letter, , 6/19/15, one page
KK Withdrawn
LL Withdrawn
MM Email, , Various, eight pages
NN , 7/31/15, one page
OO Withdrawn
PP Withdrawn
QQ Withdrawn
RR Withdrawn
SS , 20 2014, eight pages
TT Withdrawn
UU Withdrawn
VV Withdrawn
WW Withdrawn
XX Withdrawn
YY Withdrawn
ZZ Withdrawn
AAA Withdrawn
BBB Withdrawn
CCC Withdrawn
DDD Withdrawn
EEE Withdrawn
FFF Student Observation, 9 6/5/15, three pages
GGG IEP, 5/4/15, 12 pages
HHH Withdrawn
III Withdrawn
JJJ Withdrawn
KKK Excerpt, Transcript Case Number 156739, testimony , 9/16/15,
21 pages
LLL Excerpts, Transcript Case Number 156739, testimony , 9/16/15,
3/23/16, 122 pages
MMM Gmail Correspondence, , 2/3/17, two pages
NNN , 2016/2017, one page
OOO Due Process Response, 7/6/17, two pages
DEPARTMENT OF EDUCATION
1 2016/2017 IEP, 7/27/16, 17 pages