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FINDINGS OF FACT & DECISION
Case Number: 166973
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 16, 2018
Actual Record Close Date: June 4, 2019
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 16, 2018
For the Student:
Attorney
special Education Teacher, (via telephone)
Principal, (via telephone)
For the Department of Education:
District Representative
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 parent 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 (“FAPE”) during 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 8§ 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 8§ 200.5(h)-(1).
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.E.R. 8§
‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.” 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. §§ 300.52 1(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(Vv), (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)G). In a due process response dated July 18, 2017, the DOE denied each and every allegation contained in the parent’s due process complaint (Ex. P-B at 1). See 8 NYCRR §
200.5(i)(4). A hearing on the merits of the matter was thereafter held on March 16, 2018.”
“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 in order to allow for 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).
Hit. FACTUAL BACKGROUND
At the time of the June 30, 2017 due process complaint, the student was and has been diagnosed with cerebral palsy and cortical visual impairment (Ex. P-A). The student has attended the since September 2016 which has been approved by the Commissioner of Education as a school with which public school districts may contract to provide special education and related services to student with disabilities. See 8 NYCRR 8§
200.1(d), 200.7. The student's eligibility for special education and related services as a student with multiple disabilities is not in dispute in this hearing (Exs. P-A, P-E at 1, P-F at 1). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).[3]
The student is considered legally blind and displays low muscle tone in the oral motor area, causing excessive drooling and open mouth posture. As of spring 2016, the student’s receptive and expressive language was at a twenty-four (24) month level and all language skills were significantly delayed. In terms of self-management or daily living skills, the student will request to use the bathroom, but needs support to wash his hands and dress. He can feed himself finger foods and drink from a straw, but had difficulty drinking from an open cup. The student relies on his parents and adults working with him to dress and feed him. The student is not yet adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s 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. 135-136; Exs. IHO-I - IHO-XXII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5G)(5).
3 Multiple disabilities means concomitant impairments (such as intellectual disability-blindness, intellectual disability-orthopedic impairment, etc.), the combination of which cause 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). toilet trained and wears a diaper throughout the school day (Ex. P-A at 2-3).
The parties’ familiarity with the student’s educational history prior to the 2017/18 school year, as detailed in the due process complaint and the undersigned’s Findings of Fact and Decision in Case No. 162154 (Exs. P-A at 4-6, P-D), is assumed and will not be restated here.
On June 5, 2017, the CSE convened to develop an IEP for the student for the 2017/18 school year. The CSE recommended that the student receive the majority of his instruction in a 12:1+(3:1) special class in a on a twelve (12) month basis. The CSE also recommended that the student receive related services of: specialized transportation (i.e., lift bus, door-to-door busing, walking aids); individual occupational therapy, two (2) times per week for thirty (30) minutes per session; individual physical therapy, three (3) times per week for thirty (30) minutes per session; individual speech/language therapy, three (3) times per week for thirty (30) minutes per session; and individual vision education services, five (5) times per week for thirty (30) minutes per session (Exs. P-A at 6-7, P-E at 10). The June 2017 IEP offers the student the same program that the DOE conceded deprived him a FAPE in the 2016/17 school year (Ex. P-A at 6, P-D at 6).
On or about June 19, 2017, the DOE sent the IEP and a school location letter to the parent. In the school location letter, the DOE indicated that the student’s recommended program would be implemented at (Ex. P-G).
The parent objected to the June 2017 IEP on a number of procedural and substantive grounds (Ex. P-A at 8-10). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE does not contest the allegation that it failed to offer and/or provide the student with a FAPE for the 2017/18 school year (R. 10, 23-24).
B. The Parent
The DOE failed to offer and/or provide the student with a FAPE for the 2017/18 school years. The DOE should be ordered to place the student at the , a New York State-approved nonpublic school. The DOE should also be ordered to provide the student with compensatory additional services to remedy any related services owed under pendency and/or missed due to an absence of adequate specialized transportation for the student to the (which occurred through no fault of the student or the parent). The parent also seeks prospective pendency and transportation services. Lastly, the parent seeks the presence of a translator at all school meetings and that all educational records be translated into her native language of (R. 24-26; Ex. P-A).[4]
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).[5]
*Claims for compensatory vision education services, assistive technology and orientation and mobility services for the 2017/18 school year were withdrawn, as independent educational evaluations ordered in the undersigned’s Findings of Fact and Decision in Case No. 162154 had not yet been completed (Ex. P-D at 22).
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); RE. 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); MH. 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).
"TA |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]Jultiple 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, .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 (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 1414(d) 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)Gi); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)Gi); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; MH, 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); ELH. 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 U.S.C. § 1415(f)(3)(E)G). 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 ofthis title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. 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)G), 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)(1), (2)()(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).
B. Denial of FAPE - 2017/18 School Year
At the hearing, the DOE declined to present a case, thereby conceded that it failed to offer and/or provide the student with a FAPE for the 2017/18 school year (R. 10, 23-24).
Accordingly, I find that the student was denied a FAPE for the 2017/18 school year.
C. Nonpublic School Placement
The parent seeks an Order directing the DOE to place the student at the (Ex. P-A). A school district is not obligated to consider removal from the public school to a nonpublic placement if it is able to provide the student with an appropriate educational program within the public education system. See T.G. v. New York City Dep't of Educ., 2013 WL
5178300, at *19 (S.D.N.Y. Sept. 16, 2013); A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *7-*8 (S.D.N.Y. Mar. 19, 2013); W.S. v. Rve City Sch. Dist., 454 F. Supp. 2d 134, 148 (S.D.N.Y. 2006) ("IDEA views private school as a last resort"); see also R.H. v. Plano Indep. Sch. Dist., 607 F.3d 1003, 1014-15 (Sth Cir. 2010) (noting that under the IDEA, "removal to a private school placement [is] the exception, not the default . . . [t]he statute was designed primarily to bring disabled students into the public educational system and ensure them a free appropriate public education"); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 363 (S.D.N.Y. 2009); Patskin, 583 F. Supp. 2d at 430-31; see also 8 NYCRR § 200.6(j)(1)(ii1) (State funding for private schools is only available if the CSE determines that the student cannot be appropriately educated in a public facility). "'[I]f the district can supply the needed services, then the public school is the preferred venue for educating the child" 7.G., 2013 WL 5178300 at *19, quoting W.S., 454 F. Supp. 2d at 138.
I find that the student required placement in a New York State-approved nonpublic school during the 2017/18 school year in order to learn. Ms. testified under oath at the hearing that she is the Principal of the and has served in that capacity since August 2016 (R. 94). The is a New York State-approved nonpublic school for students with multiple disabilities including visual impairment or blindness aged five through twenty-one (R. 104). The school is part of (R. 98-99).
During the 2017/18 school year, the serviced students in classrooms (R. 98). Classrooms were arranged by age and abilities so that students would work on compatible goals (R. 104-105). There was an educational program for the visually impaired, occupational therapy, speech-language therapy, physical therapy, orientation and mobility, adaptive physical education, music therapy and art therapy (R. 98-99). Different methods were utilized to teach the students how to communicate, including augmentative communication devices, switches and tactile cues (R.99-100). Tactile cues, which are used by all students, were made out of light cardboard and were implanted with an object to signify something such as a “ves,” or “no” or a part of their schedule (R. 100-101). Underneath the tactile cues will often be braille so that the student can have exposure to the word in braille (R. 101).
All teachers at the have a master’s in special education, and many of the teachers are certified as a TVI or have severe and multiple disabilities certification (R. 107).
Teachers attend a variety of training courses, including courses in behavior management, seizures and cortical visual impairment (R. 108-109). Further, the teachers are taught to use a multisensory approach and create lesson plans that are geared toward the specific needs of each child (R. 109-110). During the 2017/18 school year, the employed 2.5 speech language pathologists and 1.5 occupational therapists (R. 123-124).
Ms. testified under oath at the hearing that she has been the student’s teacher since he arrived at the in September 2016 (R. 30, 35). During the 2017/18 school year, the student received instruction in a classroom of six (6) students, with one teacher, two (2) teaching assistants, one of whom speaks (R. 115, 118). The students in Ms.
’s class ranged in age from ; all of whom had severe multiple disabilities and visual impairments or blindness (R. 30, 42, 47-48). At the , the student received related services of physical therapy, occupational therapy and speech/language therapy twice each week for thirty (30) minutes per session (R. 55, 85-86).
Ms. ’s classroom was set up in a way to promote independence of students with visual impairments. There was not a lot of clutter, and objects were always kept in the same place. All items in the room were set in Braille, and tangible cues were used so that children could find their own cubbies, chairs and items that belong to them (R. 67). A tangible cue system was utilized so that students could know the schedule of the day through objects and feel what was next (R. 67-68).
According to Ms. , the student continued to make progress through the 2017/18 school year. The student progressed in his daily living skills and independence. The student became capable of toileting on his own. While at one time, he required hand-over-hand or handunder-hand to complete tasks, during the 2017/18 school year, he needed only supervision and prompting for many tasks. The student also demonstrated an increased ability to feed himself independently. The student’s language development progressed and he became more articulate.
The student’s oral motor skills improved, and drooled less (R. 40-41).
An order directing a school district to place the student in a nonpublic school must also consider the IDEA's requirement that a student's recommended program be provided in the 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); Newington, 546 F.3d at 111; Gagliardo, 489 F.3d at 105; Walczak, 142 F.3d at 132; Patskin, 583 F. Supp. 2d at 428. The Second Circuit applies a two-pronged test for determining whether an IEP places a student in the LRE, considering: (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate. See Newington, 546 F.3d at 119-20; see also J.S v. N.
Colonie, 586 F. Supp. 2d 74, 82 (N.D.N.Y. 2008); Patskin, 583 F. Supp. 2d at 430.
Based on the credible testimony of Ms. and Ms. , I find that the was the least restrictive environment in which the student can receive an appropriate education during the 2017/18 school year. Ms. disagreed with the statement in the 2017 IEP that an approved day school would be too restrictive for the student because he greatly benefited from a program, like the one at the , designed for students with a visual impairment (R.
120-121). Ms. noted that the CSE’s proposed placement of the student in a program would afford him very limited access to non-disabled students (R. 126, 130). Ms.
concurred that the student would not likely have done well in a class of twelve (12) students and five (5) adults that was not adapted for children with visual impairments (R. 72).
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., MC. 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 hour-for-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. Jd. at 526.
At the hearing, the DOE failed to offer any evidence in support of its recommended programs for the student for the 2017/18 school year. The DOE also failed to develop the hearing record to establish the appropriate amount of relief needed to remediate its failure to provide the student with FAPE for the 2017/8 school year. Cf Application of the New York City Dep’t of Educ. (Appeal No. 14-014) at 9 (SRO March 31, 2014). As the student here missed instruction at the , and also missed related services, due to actions or omissions of the DOE, I find that the student is entitled to compensatory additional services. I shall apply a quantitative approach in fashioning a compensatory remedy of additional services for the student.
1. Missed Instruction — Busing Delays
The student missed the first seven (7) days of school in September 2017 as the DOE failed to provide him with required transportation, to the (R. 37-38; Ex. P-S). Asa result, the student was denied instruction for those days. The DOE will be directed to authorize the student’s receipt of thirty-five (35) hours of one-to-one instruction for the seven (7) days of missed school from a qualified instructor of the parent’s choosing at an enhanced market rate.
This calculation is based on the requirement that elementary-aged students need to receive at least five (5) hours of instruction per day. See 8 NYCRR § 175.5.
2. Missed Related Services — SLT & PT
From July 1, 2017 through December 13, 2017 (the date of the FOFD in
162154), the DOE was directed by IHO Gerstein to provide the student with speech/language therapy and physical therapy, each at a frequency of three (3) times per week for thirty (30)
minutes per session, on a pendency basis (Exs. P-D, P-T). The student, however, was only provided with one session per week of each of those services during the 2017/18 school year (R.
26). The DOE offered no evidence at the hearing demonstrating that it made any attempt to cure those missed services. Consequently, the DOE will be directed to authorize the student’s receipt of twenty-three (23) hours of each service (i.e., speech/language therapy and physical therapy), from providers of the parent’s choosing at an enhanced market rate.
3. Transportation to and from Compensatory Additional Services
As the student would be unable to access the compensatory additional services without transportation, the DOE will be ordered to provide the student with suitable transportation to and from his compensatory additional service providers. See generally, R.B. v. New York City Dep’t of Educ., 713 F. Supp. 2d 235, 242 (S.D.N.Y. 2010) (discussing how the DOE distributes
700,000 MetroCards twice a year to transport students).
E. Parental Participation - Translation Services The parent asserts that the DOE failed to provide her with an interpreter at the June 2017 CSE meeting and failed to provide certain critical documents to her in her native language and that such failures impeded her opportunity to participate in the development of the student’s IEP (Exs. P-A, P-E, P-V).
The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child." See 20 U.S.C. § 1415(b)(1). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate. See 34 C.F.R. §
300.322; 8 NYCRR § 200.5(d). In addition, a school district "must take whatever action is necessary to ensure that the parent understands the proceedings of the [CSE] meeting, including arranging for an interpreter for parents [who are hearing impaired] or whose native language is other than English." 34 C.F.R. § 300.322(e); 8 NYCRR § 200.5(d)(5).
In this case, the hearing record reflects that the parent’s native language is other than English (Exs. P-A, P-V), but is unclear of her ability to effectively communicate in English without an interpreter. The evidence in the hearing record indicates that the parent attended the June 2017 CSE meeting (Ex. P-E at 18), without the assistance of an interpreter (Ex. P-V at 2), but no evidence was offered on whether the parent requested an interpreter at the CSE meeting or exhibited any difficulty understanding and participating in the proceedings at the CSE meeting. While in this instance, the June 2017 CSE could have encouraged better parent participation in the development of the student’s IEP by taking appropriate action to ensure that the parent clearly understood the proceedings at the CSE meeting, I decline to order the presence of a interpreter at all future school meetings.
Next, the parent asserts that the DOE failed to provide her with translated copies of critical documents, including the student’s IEP, a procedural safeguards notice and prior written notices (Exs. P-A, P-V at 2). In this case, despite having knowledge that the parent’s native language was not English, the hearing record indicates that the DOE did not provide the parent with any documents in her native language, such as a copy of a procedural safeguards notice, see 34 C.F.R. § 300.504(d), citing 34 C.F.R. § 300.503(c); 8 NYCRR § 200.5(f)(2), or a copy of a prior written notice or the results of any assessment of the student (Exs. P-P, P-R), see 34 C.F.R.
§ 300.503(c); 8 NYCRR §§ 200.4(b)(6)(x11), 200.5(a)(4).
Neither federal not State regulations, however, require that a school district provide parents with a copy of the IEP in their native language. See Letter to Boswell, 49 IDELR 196 (OSEP 2007) (noting that “[t]here is no requirement in IDEA or in its accompanying regulations that all IEP documents must be translated” and that schools are still required to provide parents with full information, in the native language, of all information relevant to activities for which consent is sought); see also 34 C.F.R. § 300.320; 8 NYCRR § 200.4(d)(2). Consequently, I decline to order the DOE to provide the parent with translation of all educationally-related documents of the student.°®
° Although not required, providing the parent with a copy of an IEP in her native language would be in keeping with the spirit of the IDEA and is one way to demonstrate that the parent has been “fully informed of the student’s educational program.” See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 15-001 at 10 n.7 (SRO Feb. 25, 2014) quoting Letter to Boswell, 49 IDELR 196.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
1. The parent’s claim that the student was denied a free appropriate public education for the 2017/18 school year is SUSTAINED;
2. Within thirty (30) days of this Order, the DOE shall place the student in the , a New York State-approved nonpublic school, on a twelve (12) month basis with related services of:
a. specialized door-to-door transportation (including a lift bus with walking aids);
b. individual (bilingual - ) speech/language therapy, three (3) times per week for thirty (30) minutes per session;
c. individual occupational therapy, three (3) times per week for thirty (30) minutes per session; and
d. individual physical therapy, three (3) times per week for thirty (30) minutes per session;
3. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of the following compensatory additional services:
a. 35 hours of compensatory one-to-one instruction from any New York State certified-special education teacher, reading specialist, ABA-SETSS provider or other qualified provider of the parent’s choice at an enhanced rate;
b. 23 hours of individual physical therapy from a provider of the parent’s choice at an enhanced rate;
c. 23 hours of individual (bilingual - ) speech/language therapy services from a provider of the parent’s choice at an enhanced rate; and
d. suitable transportation to and from compensatory additional service providers
All other requests for relief are denied.
Dated: June 13, 2019
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 40 days of the date of this decision, the parent and/or the public school district has a right to appeal the decision to the State Review Officer ("SRO") of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 6/30/17, 13 pgs.
B. Due Process Response, 7/18/17, 3 pgs.
C. Order
on Consolidation (Case Nos. 166973 & 162154) IHO Jeffrey J. Schiro, 12/4/17, 4 pgs.
D. Findings of Fact
& Decision (Case No. 162154) IHO Jeffrey J. Schiro, 12/13/17, 25 pgs.
E. Individualized Education Program (IEP), 6/5/17, 18 pgs.
F. Individualized Education Program (IEP), 4/29/16, 17 pgs.
G. School Location Letter, 6/19/17, 1 pg.
H. Letter from i, 9/6/15, 1 pg.
I. Acceptance Letter w/ attachments, 3/24/16, 15 pgs.
J. Annual Report — Educational, 2/22/7, 4 pgs.
K. Annual Progress Report — Speech/Language, 2/24/17, 2 pgs.
L. Annual Progress Report — Occupational Therapy, 2/29/17, 2 pgs.
M. Emails b/w counsel regarding transportation, 9/2017, 3 pgs.
N. Annual Report — Educational, 3/6/18, 7 pgs.
O. Annual Progress Report — Adaptive Physical Education, 2/26/18, 2 pgs.
P. Annual Progress Report — Speech/Language, 2/27/18, 3 pgs.
Q. Annual Progress Report — Physical Therapy, 2/16/18, 2 pgs.
R. Annual Progress Report — Occupational Therapy, 2/23/18, 3 pgs.
S. Attendance Log, 2017/18, 2 pgs.
T. Order
on Pendency (Case No. 162154) IHO Ralph Gerstein, 9/9/16, 4 pgs.
U. RSAs for Pendency Services, undated, 3 pgs.
V. Affidavit of 3 (mother), 3/27/18, 3 pgs.
DEPARTMENT OF EDUCATION
[Reserved]
PADNAMBWNS
[Reserved] [Reserved] [Reserved] [Reserved]
Annual Review Goals (Speech/Language), 2018/18, 2 pgs.
2 pgs.
Annual Review Goals (Occupational Therapy), 2017/18, 2 pgs. [Reserved]
—(=O—W©Nre"
Annual Progress Report — Adaptive Physical Education, 2/23/17, 1 pg. [Reserved]
Bilingual Psychological Evaluation, 5/5/14, 6 pgs.
Bilingual Educational Evaluation, 5/5/14, 4 pgs.
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 9/11/17, 1 pg.
II. Confirmation of Extension, 10/9/17, 1 pg.
Ill. Confirmation of Extension, 11/6/17, 1 pg.
IV. Confirmation of Extension, 12/11/17, 1 pg.
V. Confirmation of Extension, 1/8/18, 1 pg.
VI. Confirmation of Extension, 2/5/18, 1 pg.
VI. Confirmation of Extension, 3/1/18, 1 pg.
VII. Confirmation of Extension, 4/9/18, 1 pg.
IX. Confirmation of Extension, 5/7/18, 1 pg.
X. Confirmation of Extension, 6/15/18, | pg.
XI. Confirmation of Extension, 7/5/18, 1 pg.
XI. Confirmation of Extension, 8/10/18, 1 pg.
XII. Confirmation of Extension, 9/10/18, 1 pg.
XIV. Confirmation of Extension, 10/9/18, 1 pg.
XV. Confirmation of Extension, 11/8/18, 1 pg.
XVI. Confirmation of Extension, 12/8/18, 1 pg.
XVII. Confirmation of Extension, 1/7/19, 1 pg. XVIII. Confirmation of Extension, 2/6/19, 1 pg.
XIX. Confirmation of Extension, 3/8/19, 1 pg.
XX. Confirmation of Extension, 4/7/19, 1 pg.
XXI. Confirmation of Extension, 5/7/19, 1 pg.
XXII. Confirmation of Extension, 6/3/19, 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 in order to allow for
[3] Multiple disabilities means concomitant impairments (such as intellectual disability-blindness, intellectual disability-orthopedic impairment, etc.), the combination of which cause 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] Claims for compensatory vision ed cation services, assistive technology and orientation and mobility services for the 2017/18 school year were withdrawn, as independent ed cational eval ations ordered in the ndersigned’s Findings of Fact and Decision in Case No. 162154 had not yet been completed (Ex. P-D at 22). [Reserved]
[5] The term “free appropriate public education” means special education and related services that —
[6] Altho gh not req ired, providing the parent with a copy of an IEP in her native lang age wo ld be in keeping with the spirit of the IDEA and is one way to demonstrate that the parent has been “fully nformed of the student’s educat onal program.” See App ication of a Student with a Disabi ity (New York City Dep’t of Educ.), Appeal No. 15-001 at 10 n.7 (SRO Feb. 25, 2014) quoting Letter to Boswe , 49 IDELR 196.
[7] Annual Progress Report — Physical Therapy, 2/29/17,
[13] Biling al Ed cational Eval ation, 5/5/14, 4 pgs.