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FINDINGS OF FACT AND DECISION
Case Number: 167878
Student’s Name:
Date of Birth:
District: LJ Hearing Requested By: Parent
Date of Hearing: January 26, 2018
Actual Record Closed Date: February 14, 2018
Hearing Officer: Michael K. Lambert, Esq. Case No. 167878
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 26, 2018
ESQ., Attorney — Student
Parents
Student
Director (Via Telephone) — Student
Student
District Representative — DOE
INTRODUCTION AND PROCEDURAL HISTORY
The parent initiated the instant hearing by due process complaint dated August 8, 2017 (PE-A). Such due process complaint alleged that the Department of Education (“DOE”) failed to offer Student a free appropriate public education (FAPE) during the 2015-2016, 2016-2017 and 2017-2018 school years by failing to properly evaluate the student, developing the challenged IEPs with improperly constituted CSE’s, predetermining recommendations, recommending inappropriate programs and services, including , and otherwise failing to comply with certain procedural requirements. In terms of relief, the parents were seeking findings that the DOE failed to offer FAPE during the years at issue, independent , and evaluations, and of compensatory to be delivered by at the rate
of .1
The parties appeared for hearing on January 26, 2018. The DOE offered no evidence during the course of the hearing, wither in the form of documents or witness testimony. The Parent called two witnesses in her case in chief – and and offered, without objection, Parent Exhibits A – O. The Parent submitted a post-hearing brief (IHO-II), as well as a supplemental exhibit relating to school attendance (IHO-I). The DOE provided no post-hearing submissions.
The issues are decided as set forth herein.
THE HEARING EVIDENCE
is a student who has been classified by the CSE as having an (T: 13; PE-H; PE-I; PE-L). His classification does not appear to be in dispute. He was not, , but previously attended the (T: 13-14; T: 16-17; PE-O).
l (T: 24-26; T: 14-25; IHO-I). LJ also has
All other claims for relief were withdrawn on the first day of the hearing (T: 6).
-n -n n
(T: 13-14; PE-O).
testimony,
. His testimony also demonstrated
that the DOE’s efforts to provide instruction for him during those frequent times , or to accommodate his needs while he was in school, were inconsistent and ineffective.
The Parent’s second witness was . identified herself as the founder and director of , an organization that specializes in providing instruction to students (T: 35). testified that she i on May 8, 2017 in the areas reviewed records and tested
- ~ L J L _ J _JLJ _ - ~ L _ J ~ _ _J __J _
-~~~_JLJ_~_LLJ_~_U_J_L
(T: 39-44). However, notwithstanding n otherwise impressive credentials, I did not place much weight on her testing results in that she, who admittedly spoke no , administered assessments, by herself, to a student who spoke little, (T: 53-55). As a result of her assessment of , recommended that he be provided with of (T: 45).
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
_J testified during this hearing with the assistance of a .
calculated to enable the child to receive educational benefits.” Board o Education o the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 207 (1982); (20 U.S.C. § 1400[d][1][A]; Scha er v. Weast, 126 S. Ct. 528, 531 [2005]; Frank G. v. Board o 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 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 cited 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” (Lunce ord v. District o
Columbia Bd. o 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. Mil ord Board o Education, 103 F.3d 1114, 1120 [2nd Cir. 1997]; see Rowley, 458 U.S. at 192). The U.S. Supreme Court recently held that an appropriate IEP must be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances (Endrew F. v. Doughas County). 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. o Educ., 995 F.2d 1204, 1213 [3rd Cir. 1993]; Briggs v. Bd.
o Educ., 882 F.2d 688, 691 [2nd Cir. 1989]; Daniel R.R. v. State Bd. o 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 o 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 o
Education o the City o 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 o 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. o 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 o 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. o 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 o 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. o 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.”), a '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
The hearing evidence supports the conclusion that the DOE failed to offer L_
FAPE in each of the years at issue in this case. The DOE had the burden of proof as to this issue and, by failing to present any evidence in their case-in-chief, they clearly failed to meet that burden. I specifically find that each of the IEP’s during the years at issue were developed with inadequate and inappropriate evaluations. In addition, I find that the DOE failed to respond appropriately when prevented him and which adversely affected his ability to meaningfully participate in school. While I was not impressed with the manner in which purported to determine levels in the academic areas that she assessed, I am nonetheless convinced that compensatory in the amount of is an appropriate remedy in this case.
ORDER
1. That the DOE fund independent , and evaluations by evaluators of the Parent’s choosing at market rates;
2. That the CSE meet within 30 calendar days of receiving each of the above independent educational evaluations for the purpose of developing an appropriate IEP, to include an appropriate transition plan; and
3. That the DOE fund of compensatory academic to be provided by a New York State certified teacher in _ L _ at an hourly rate not to exceed L_J.
Such shall be exhausted by December 31, 2019.
4. All other claims set forth in the due process complaint are hereby dismissed. Dated: March 1, 2018
MICHAEL K. LAMBERT, ESQ.
Impartial Hearing Officer
PLEASE AKE NO ICE
he 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
DOCUMEN A ION EN ERED IN O HE RECORD
Parent Exhibits
A Due process request, 8/8/17, 13 pages
B Request for , 9/24/2014, two pages
C evaluation report, 10/7/14, six pages
D student interview, 10/7/2014, one page
E evaluation, 10/12/14, ten pages
F Parent letter, 10/24/14, one page
G Classroom observation, 12/5/14, one page
H IEP, 1/6/15, 13 pages
I IEP, 10/7/15, 13 pages
J Consent for initial provision of services, 10/14/15, one page
K information, 10/30/14, two pages
L IEP, 10/27/16, 12 pages
M letter, 5/9/17, one page
N note, 1/18/18, seven pages
O Transcript, 9/29/17, one page
DOE Exhibits:
None
IHO Exhibits:
I. Records (3 pages)
II. 2/2/18 Closing Memo Submitted (8 pages)