New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 166971

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 17, 2017

December 22, 2017

January 23, 2018

Actual Record Closed Date: May 17, 2018

Hearing Officer: Jeffrey Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 17, 2017

ESQ., Attorney (via telephone) — Student

District Representative, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 22, 2017

ESQ., Attorney — Student

Parents

Special Education Teacher, (via telephone) — Student

District Representative, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 23, 2018

ESQ., Attorney — Student

Ph.D., BCBA (via telephone) — Student

District Representative, — DOE

I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parents in a due process complaint notice dated June 30, 2017. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education for the 2017/18 school year (Ex. P-A).^[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).

The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).

II. PROCEDURAL HISTORY

The DOE appointed me to hear this matter on July 6, 2017. See 8 NYCRR § 200.5(j)(3)(i). At a hearing held on August 17, 2017, the parents moved for an interim order on pendency. The DOE did not oppose the parents’ motion (R. 6-7; Ex. P-A at 8, P-B). In an Interim Order on Pendency dated October 17, 2017, I directed the DOE to: maintain the student in an 8:1+1 special class with 1:1 TA support; individual speech/language therapy with a PROMPT trained therapist, five (5) times per week for thirty (30) minutes per session; individual physical and occupational therapy, each three

(3) times per week for thirty (30) minutes per session; ten (10) hours per week for homebased SETSS; and specialized transportation with limited time travel of no more than sixty (60) minutes (R. 7-9; Ex. P-C at 5). See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m).

Hearings on the merits of this matter was thereafter held on December 22, 2017 and January 23, 2018.^[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

III. FACTUAL BACKGROUND

At the time of the June 30, 2017 due process complaint, the student was nine (9) years old and has been diagnosed with syndrome, also known as . Signs and symptoms of this diagnosis include developmental delays and learning disabilities as well as feeding difficulties (Ex P-A at 2). For the 2017/18 school year, the student attends instruction at P.S. (Ex. P-A at 1). The student's current eligibility for special education and related services as a student with multiple disabilities is not in dispute in this hearing (Exs. P-A, P-F at 1). See 34 C.F.R. §

300.8(c)(8); 8 NYCRR § 200.1(zz)(8).^[3]

While the student is ambulatory, she is dependent on others for most activities of daily living. She is unable to follow complex classroom routines or teacher instructions. She requires maximal directing cues to follow any simple direction. She has difficulty navigating through school safely. . She is unable to draw a straight line. She still wears diapers and requires help with toileting. She demonstrates profound delays in gross motor skills (Ex. P-A at 2).

The student is frequently sick which necessitates missing school. She also suffers from frequent nosebleeds. She experiences recurrent infections caused by problems with her immune system associated with . She has had ongoing difficulties with feeding and has previously been fed through a (Ex. P-A at 2).

At a meeting held on March 31, 2017, the DOE’s Committee on Special Education (the “CSE”) developed an individualized education program (“IEP”) for the student for the 2017/18 school year. The CSE recommended that the student receive the majority of her instruction in 8:1+1 special class on a twelve (12) month basis in a specialized ( ) school. The CSE also recommended that the student receive related services of: specialized transportation (i.e., air conditioned mini bus with limited time travel of nor more than sixty (60) minutes); individual occupational therapy, three

(2) times per week for thirty (30) minutes per session; daily ABA therapy; ten (10) hours per week of home-based special education teacher support services (“SETSS”); parent counseling and training, one time per month for ninety (90) minutes per session; individual physical therapy, two (2) times per week for thirty (30) minutes per session; individual speech/language therapy, four (4) times per week for thirty (30) minutes per session; and group (2:1) speech/language therapy, one time per week for thirty (30) minutes per session (Ex. P-F at 17-18, 201-21).

In their June 30, 2017 due process complaint, the parents objected to the CSE’s proposed program for the student on a number of procedural and substantive grounds (Ex. P-A at 6-7). This hearing ensued.

IV. POSITIONS OF THE PARTIES

A. The DOE

The DOE declined to make any presentation of evidence at the hearing in this matter other than to concede that it failed to offer the student a free appropriate public education in the least restrictive environment for the 2017/18 school year (R. 19, 103).

B. The Parents

--

Given the DOE’s concession of FAPE, the hearing officer should rely on the credible and unrebutted testimony of Ms. Dr. and the student’s parent to conclude that the student is entitled to the following program components: a twelve (12) month school year; placement in a barrier-free, 8:1+1 special class, with full-day 1:1 support and instruction from a Level II or Level III teaching assistant or teacher, with training and experience with ABA and other appropriate strategies; individual speech-language therapy with a PROMPT trained therapist, five (5) times per week for thirty (30) minutes per session; individual physical and occupational therapies, each three (3) times per week for thirty (30) minutes per session; ten (10) hours per week for home-based SETSS instruction; and specialized transportation with limited time travel of no more than sixty (60) minutes (Ex. P-A at 9).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“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 (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176,

206-07 (1982).^[4]

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. See 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 has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see 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. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 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. See 20

1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

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." See 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." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See 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.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also 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" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also 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. Board 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 C.F.R. § 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), 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 C.F.R. §§ 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 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

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. See N.Y. Educ. Law § 4404(1)(c); see also 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).

C. Proposed Public Program

At the hearing, the DOE conceded that it failed to offer the student a FAPE for the 2017/18 school year (R. 19, 103). Accordingly, I find in the parents’ favor on that issue.

D. Compensatory Additional Services

Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).

State Review Officers also 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. See Newington, 546 F.3d at 123 (stating "[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"); 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); Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer 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 Child with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).

Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Reg’l Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem”). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hourfor-hour replacement of the time spent without FAPE.” See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Id. at 526.

As noted above, the DOE conceded that it failed to develop an appropriate IEP for the student for the 2017/18 school year and the absence of an appropriate IEP denied the student a FAPE. Therefore, I find that the student is entitled to compensatory additional services to remedy the denial of FAPE. Using the credible testimony offered by Dr.

Ms.

-- and the student’s parent, I shall apply a qualitative approach in fashioning a remedy of additional services for the student.

-

1. 1:1 ABA Support & Instruction In-School

Ms. a New York State certified teacher in special education and general education, credibly testified at the hearing that the needs one-to-one individualized ABA instruction in order to make appropriate progress in the classroom (R. 47, 50). Ms. provides the student with one-to-one ABA instruction in school seven (7) hours per day, five (5) days per week (R. 33, 56). Ms. instruction of the student in school focuses on: “errorless learning,” appropriate behavior, motor skills, social skills, and safety awareness (R. 36-38, 96). Ms. stated that the student has made “incredible progress” in these need areas as a result of her ABA instruction in school (R. 31, 39-40, 45-46; Ex. P-D).

2. Home-Based SETSS

Dr. a BCBA-D and New York State certified teacher in special education and general education, credibly testified that the student needs ten (10) hours per week of home-based SETSS in order to improve her feeding skills, toileting, play skills, and safety awareness (R. 98-99). The student’s SETSS instruction, Ms.

monitors the student’s progress via daily session notes and data collections systems

(R. 97). Dr. stated that the student improved significantly since the onset of SETSS, when she presented as nonverbal, impulsive and unable to use a toilet even with adult assistance (R. 90-91).

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,

IT IS

HEREBY ORDERED THAT:

The parents’ claim that the student was denied a free appropriate public education (FAPE) for the 2017/18 school year is SUSTAINED; and

Within thirty (30) days of the date of this Order, the DOE shall provide the student with an individualized education program (IEP) containing the following program

components:

(1) a twelve (12) month school year;

(2) placement in a barrier-free, 8:1+1 special class, with full-day 1:1 support and instruction from a Level II or Level III teaching assistant or teacher, with training and experience with ABA and other appropriate strategies;

(3) individual speech-language therapy with a PROMPT trained therapist, five (5) times per week for thirty (30) minutes per session;

(4) individual physical and occupational therapies, each three (3) times per week for thirty (30) minutes per session;

(5) ten (10) hours per week for home-based SETSS instruction; and

(6) specialized transportation with limited time travel of no more than sixty (60) minutes. Dated: June 7, 2018

Jeffrey J. Schiro mv

JEFFREY J. SCHIRO, ESQ.

Impartial Hearing Officer JS:mv

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. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD

PARENTS

A. Due Process Complaint Notice/Impartial Hearing Request, 6/30/17, 10 pgs.

B. Findings of Fact & Decision (Case No. 161387), IHO Brenda F. White, 6/12/17, 9

pgs.

C. Interim Order on Pendency ( ), IHO Jeffrey J. Schiro, 10/17/17, 5 pgs. (double sided)

D. Student Progress Report, 12/8/17, 4 pgs.

E. Student Progress Report, 12/10/17, 2 pgs.

F. Individualized Education Program (IEP), 3/31/7, 12 pgs. (double sided)

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I. Confirmation of Extension, 9/14/17, 1 pg.

II. Confirmation of Extension, 10/9/17, 1 pg.

III. Confirmation of Extension, 11/6/17, 1 pg.

IV. Confirmation of Extension, 12/13/17, 1 pg.

V. Confirmation of Extension, 1/8/18, 1 pg.

VI. Confirmation of Extension, 2/12/18, 1 pg.

VII. Confirmation of Extension, 3/9/18, 1 pg.

VIII. Confirmation of Extension, 4/9/18, 1 pg.

IX. Confirmation of Extension, 5/7/18, 1 pg.

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”

[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 10-11, 73-74, 104-105; Exs. IHO-I - IHO-IX). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

[3] Multiple disabilities means concomitant impairments (such as intellectual disability-blindness, intellectual disabilities-orthopedic impairment, etc.), the combination of which causes such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf-blindness. 8 NYCRR § 200.1(zz)(8).

[4] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section