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FINDINGS OF FACT & DECISION
Case Number: 171765
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: February 11, 2019
Actual Record Close Date: August 11, 2019
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 11, 2019
For the Student:
Attorney
Attorney
parent
Physician (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 January 2, 2018. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) denied the student a free appropriate public education (“FAPE”’) by failing to recommend and provide him with an appropriate 1:1 nurse in school on his bus 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 (“JEP”), 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)-(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
‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.” 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 §§ 200.5G)(3)(v), (vii), (xil).
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
In an Interim Order on Pendency, dated March 1, 2018, Impartial Hearing Officer Brenda Farrow White ordered the DOE, inter alia, to provide the student with a full time nurse at school on his bus (Ex. IHO-I at 3). On April 30, 2018, the DOE appointed the undersigned to serve as the hearing officer in this matter. See 8 NYCRR § 200.5(j)(3)G). On September 26, 2018, a pre-hearing conference with the parties was held to clarify the hearing issues and set a date for the hearing (R. 21-26). See 8 NYCRR § 200.5(j)(3)(xi). A hearing on the merits of the matter was thereafter held on February 11, 2019.* 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).
Il. FACTUAL BACKGROUND
At the time of the January 2, 2018 due process complaint, the student was and has been diagnosed with a number of disabilities including . The student eats via a G-Tube and is susceptible to respiratory distress and bouts of aspiration pneumonia.
The student also has hypoplasia of the Corpus Callosum which, among other things, negatively affects his ability to coordinate both sides of his body and causes difficulty with balance and walking long distances (Ex. P-A at 1-2). The student's eligibility for special education and related services as a student with autism is not in dispute in this hearing (Exs. P-A, P-B at 1, P-C at 1).
See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1)2[3]
“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 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. 143-145; Exs. IHOIl] - IHO-XVII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5()(5). > 4utism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an On October 28, 2014, the CSE convened to develop an IEP for the student through October 2015. The CSE recommended that the student receive the majority of his instruction in a 6:1+1 special class in a specialized ( ) school on a twelve (12) month basis. The CSE also recommended that the student receive related services of: specialized transportation; individual counseling, two (2) times per week for thirty (30) minutes per session; individual occupational therapy, three (3) times per week for thirty (30) minutes per session; a full-time 1:1 nurse at school and on the bus; group parent counseling and training, three (3) times per year for sixty (60) minutes per session; individual physical therapy, three (3) times per week for thirty (30) minutes per session; individual speech and language therapy, two (2) times per week for thirty (30) minutes per session; group speech and language therapy, three (3) times per week for thirty (30) minutes per session; and assistive technology (Ex. P-B at 12-13).
On October 19, 2015, the CSE convened to develop an IEP for the student through October 2016. The CSE recommended that the student receive the majority of his instruction in a 6:1+1 special class in a specialized ( ) school on a twelve (12) month basis. The CSE also recommended that the student receive related services of: specialized transportation; individual counseling, one time per week for thirty (30) minutes per session; group (2:1) counseling, one time per week for thirty (30) minutes per session; individual occupational therapy, three (3) times per week for thirty (30) minutes per session; a full-time 1:1 nurse at school and on the bus; group parent counseling and training, three (3) times per year for sixty (60) emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied. 8 minutes per session; individual physical therapy, two (2) times per week for thirty (30) minutes per session; individual speech and language therapy, one time per week for thirty (30) minutes per session; group speech and language therapy, three (3) times per week for thirty (30) minutes per session; and assistive technology (Ex. P-C at 16-17).
The CSE did not develop an IEP for the student for the 2016/17 school year. On April 7, 2017, the CSE created an IEP for the student for the 2017/18 school year and, without any medical support, removed the recommendation for a 1:1 nurse at school and on the bus (Ex. P-A at 4). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
While the student received 1:1 nursing services following [HO White’s March 1, 2018
Pendency Order, DOE acknowledged that there was a gap in that service, and consequently the student’s ability to attend school, from January 2018 through March 2018. The DOE asserts that the parent is required to request school-based nursing services on an annual basis (R. 39-41).
B. The Parents
The student can only attend school when accompanied by a full-time 1:1 nurse, both in school and on the bus. The hearing was triggered by the CSE’s refusal to recommended full-time 1:1 nursing services as it had done in previous years. The student missed approximately three (3)
months of instruction between the time of the filing of the complaint and the prior IHO’s
Pendency Order. The parent seeks an Order to amend the student’s IEP to include 1:1 nursing services at school and on the bus. The parent also seeks compensatory additional services to NYCRR§ 200.1(zz)(1). remedy missed instruction and related services.
The CSE has also failed to fully evaluate the student’s special education needs for years.
The student is long past due for a comprehensive reevaluation. As relief, the parent seeks authorization for several independent educational evaluations of the student at public expense (R.
41-47; Ex. P-A).
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
“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 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. 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]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; 4.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)(G); 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; 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 JHO'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 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)(), 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)(); 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)G)(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; MP.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. School Nurse Services
School health services and school nurse services are health services designed to enable a child to recetve a FAPE. School nurse services “are services provided by a qualified school nurse.” 34 C.F.R. § 300.34(c)(13).
In Independent School District v. Tatro, 468 U.S. 883 (1984), the United States Supreme Court found that clean intermittent catheterization at school may be a related service, if it does not require constant monitoring, and if it can be provided by properly trained school personnel.
In doing so, the Court established a three-pronged test that requires: (1) the child to be entitled to special education services under the IDEA; (2) in need of the services to participate in an appropriate educational program; and (3) that the services be such that a properly trained school staff member be capable of delivering them.
The Supreme Court revisited the question of school health and nursing services in Cedar
Rapids Community School District v. Garrett F., 526 U.S. 66 (1999). There the Court reaffirmed the guiding principle that supportive services required for a student to attend school that can be provided by a nurse or qualified layperson are required under the IDEA.
Based on the documentary evidence and testimony, I conclude that the DOE denied the student a FAPE by failing to recommend full-time 1:1 nursing services for him in school and on the bus. The evidence contained in the hearing record establishes that in order to attend school, the student requires full-time 1:1 nursing services (R. 136-137). The student’s medical conditions make him susceptible to a number of health risks including choking, vomiting, aspirating, respiratory distress, pneumonia, and malnourishment. The student takes several medications both in and out of school, many of which need to be crushed and delivered via his G-Tube (R. 73-79). The student is also at risk of having his G-Tube become dislodged which could require surgery to replace if not handled appropriately (R. 68-69). His various conditions also can have similar symptoms and he requires constant monitoring to assess the cause of his health problem and deliver the correct intervention (R. 128).
At the hearing, the parent and , the student’s pediatrician, both testified that the student requires a full-time 1:1 nurse in school and on the bus (R. 87-91, 136-137). Dr.
testified that the student’s conditions are “complex” and require someone with medical training to assist him in school (R. 124). She further testified that because of the dangers associated with the student’s conditions, it is important to recognize signs of trouble “as early as possible” and that can only be done by someone with “broad medical knowledge to distinguish between what exactly is going on in these moments” (R. 132-133). Prior to the 2017/18 school year, the student received a nurse at school and on the bus, as recommended on his IEP (Exs.
P-B at 12, P-C at 16).
The parent requested full-time 1:1 nursing services for the student for the 2017/18 school year at an IEP meeting held in April 2017 (R. 87-91). As the testimony and documents demonstrate, prior to the IEP meeting, the parent submitted numerous forms to the DOE describing the student’s medical conditions and recommending full-time 1:1 nursing services (Exs. P-D, P-E, P-F, P-G, P-H, P-I, P-J, P-K, P-L, P-M, P-N, P-O). Nevertheless, the CSE failed to recommend full-time 1:1 nursing services for the student in school and on the bus.
C. 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.
The student did not have a full-time 1:1 nurse in school or on the bus from January 2, 2018 through March 28, 2018, after which time the DOE began implementing the March 1, 2018 pendency order. As a result, the student could not attend school and missed hundreds of hours of academic instruction and related services (R. 97). I therefore find that the DOE denied the student a FAPE by failing to provide him with any academic instruction or related services from January through March of 2018, as he was unable to attend school due to the DOE’s failure to provide him with the nursing services he required (Exs. P-D, P-E, P-F, P-G, P-H, P-I, P-J, P-K, P-L, P-M, P-N, P-O).
The student is entitled to compensatory additional services to remedy the denial of FAPE and I shall apply a quantitative approach in fashioning a remedy of additional services for the student. To remedy the denial of FAPE, the DOE will be directed to authorize the student receipt of the following compensatory additional from providers of the parent’s choosing at the providers’ customary rates: (a) 300 hours of academic instruction; (b) 12 hours of counseling; (c)
18 hours of occupational therapy; (d) 12 hours of physical therapy; and (e) 24 hours of speech and language therapy. The calculation of compensatory instruction is based on the number of school days missed and the mandated 5.5 hours of academic instruction per day. See 8 NYCRR § 175.5. The calculation of compensatory related services is based on the services the student was receiving during the 2017/18 school year. During the 2017/18 school year, the student received the same level of related services as he did in the October 2015 TEP (Ex. P-C).
C. Independent Educational Evaluations (IEEs)
A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a school district need not conduct a reevaluation more frequently than once per year unless the parent and the school district otherwise agree and at least once every three years unless the school district and the parent agree in writing that such a reevaluation is unnecessary, see 8 NYCRR § 200.4(b)(4); see also 34 C.F.R. §§ 300.303(b)(1)-(2). Pursuant to State regulation, a reevaluation of a student with a disability must be conducted by a multidisciplinary team or group that includes at least one teacher or specialist with knowledge in the area of the student's disability. See 8 NYCRR § 200.4(b)(4).
The reevaluation "shall be sufficient to determine the student's individual needs, educational progress and achievement, the student's ability to participate in instructional programs in regular education and the student's continuing eligibility for special education." 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things, the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. §
300.304(b)(1)(41); Letter to Clarke, 48 IDELR 77 (OSEP 2007). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. See 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services' needs, whether or not commonly linked to the disability category in which the student has been classified. See 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
The IDEA and State and federal regulations guarantee parents the right to obtain an IEE, see 20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.502; 8 NYCRR § 200.5(g), which is defined by State regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student," 8 NYCRR § 200.1(z); see also 34 C.F.R. §
300.502(a)(3)(i).
Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the school district and requests that an IEE be conducted at public expense. See 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); K.B., 2012 WL 234392, at *5 (noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"); R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-
35 (D. Conn. 2005) (finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense). Informal guidance from the United States Department of Education's Office of Special Education Programs indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area. See Letter to Baus, 65 IDELR 81 (OSEP 2015).
If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either ensure that an IEE is provided at public expense or initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See 34 C.F.R. §§ 300.502(b)(2)(i)-(11); 8 NYCRR § 200.5(g)(1)(iv). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense. See 34 C.F.R. § 300.502(b)(3); 8 NYCRR § 200.5(g)(1)(v). However, both federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees." 34 C.F.R. § 300.502(b)(5); 8 NYCRR § 200.5(g)(1).
I conclude that the DOE denied the student a FAPE by failing to conduct a full reevaluation as required by the IDEA. The student was due for a reevaluation in November 2016 but the CSE did not conduct a full special education reevaluation of his needs at that time (R. 98-99). The CSE only conducted a classroom observation but did not conduct testing of the student’s cognitive, academic, behavioral, speech and language, physical therapy, occupational therapy or assistive technology needs (R. 98-100). Additionally, the CSE has not conducted testing in those areas since that time. Consequently, the DOE will be directed to authorize the student’s receipt of the following independent educational evaluations from providers of the parent’s choosing at each provider’s customary rate: (a) occupational therapy; (b) speech and language therapy; (c) physical therapy; and (d) assistive technology.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
The parent’s claim that the student was denied a free appropriate public education during the 2017/18 school year is SUSTAINED; and The DOE shall immediately provide or pay for the student to receive a 1:1 nurse to provide full-time support during the school day and during transportation to and from school; Within thirty (30) days of the date of this Order, the CSE shall revise the student’s IEP to include a 1:1 nurse to provide full-time support during the school day and on the bus in the program recommendations of the IEP for at least one calendar year from such meeting; Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of the following compensatory instruction and related services from providers of the parent’s choosing at the providers’ customary rates: a. 300 hours of academic instruction;
b. 12 hours of counseling;
c. 18 hours of occupational therapy;
d. 12 hours of physical therapy; and
e. 24 hours of speech/language therapy; The DOE shall assist the parent in finding providers who are able to provide the ordered compensatory instruction and related services either in the home or at the provider’s location within two (2) miles of the student’s home; The DOE shall provide or pay for transportation for the student and his parent to travel to and from the compensatory services should they occur outside of the home; Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of the following independent educational evaluations at public expense to be conducted by providers of the parent’s choosing at each provider’s customary rate:
a. Occupational Therapy;
b. Speech-Language Therapy;
c. Physical Therapy; and
d. Assistive Technology; and The DOE shall provide or pay for transportation for the student and his parent to travel to and from the ordered evaluations.
Dated: August 25, 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
Due Process Complaint Notice/Impartial Hearing Request, 1/2/18, 7 pgs.
TOaAZmMTEmoaZwSUT
Individualized Education Program (IEP), 10/28/14, 18 pgs.
Individualized Education Program (IEP), 10/19/15, 24 pgs.
Assessment Planning & Consent, 11/17/16, 3 pgs.
Medication Administration Form & Consent, 10/31/16 — 11/14/16, 2 pgs.
HIPAA Release, 11/6/16, 1 pg.
Request for Provision of Medically Prescribed Treatment, 11/14/16, 2 pgs.
Asthma Medication Administration Form, 11/14/16, 2 pgs.
Request for Medical Accommodations, 2/2/17, 1 pg.
HIPAA Release, 2/3/17, 1 pg.
Letter from 3/3/17, 2 pgs.
Request for Medical Accommodations, 3/3/17, 1 pg. . Request for Provision of Medically Prescribed Treatment, 3/8/17, 1 pg.
Medication Administration Form & Consent, 4/4/17 — 4/28/17, 2 pgs.
HIPAA Form, 4/13/17, 1 pg.
DEPARTMENT OF EDUCATION - none
IMPARTIAL HEARING OFFICER
I. Order
on Pendency (Case No. 171765) [HO Brenda Farrow White, 3/1/18, 4 pgs.
II. Signed Subpoena, 9/26/18, 2 pgs.
III. Confirmation of Extension, 5/7/18, 1 pg.
IV. Confirmation of Extension, 6/19/18, 1 pg.
V. Confirmation of Extension, 7/18/18, 1 pg.
VI. Confirmation of Extension, 8/17/18, 1 pg.
VI. Confirmation of Extension, 9/16/18, 1 pg.
VII. Confirmation of Extension, 10/12/18, 1 pg.
IX. Confirmation of Extension, 11/15/18, 1 pg.
X. Confirmation of Extension, 12/14/18, 1 pg.
XI. Confirmation of Extension, 1/14/19, 1 pg.
XI. Confirmation of Extension, 2/13/19, 1 pg.
XII. Confirmation of Extension, 3/15/19, 1 pg.
XIV. Confirmation of Extension, 5/1/19, 1 pg.
XV. Confirmation of Extension, 6/1/19, 1 pg.
XVI. Confirmation of Extension, 6/9/19, 1 pg.
XVII. Confirmation of Extension, 6/18/19, | pg. XVIII. Confirmation of Extension, 8/10/19, 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 to allow for 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. 143-145; Exs. IHO- Il] - IHO-XVII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5()(5).
[3] Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student an
[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 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.