NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT & DECISION
Case Number: 173944
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearings: April 1, 2019
Actual Record Close Date: May 10, 2019
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 1, 2019
For the Student:
ESQ., Attorney
Director, (via telephone)
For the Department of Education:
Impartial Hearing 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 guardian in a due process complaint notice dated July 9, 2018. The attorneys for the student and guardian then filed an Amended Due Process Complaint on July 16, 2018. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education for the 2016/17, 2017/18 and 2018/19 school years (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 as “Ex.” suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”’) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C.
§§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(G)(3)(v), (vii), (xii).
The THO 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(G)(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).
Il. PROCEDURAL HISTORY
The DOE appointed me to hear this matter on July 16, 2018. See 8 NYCRR §
200.5(4)(3)(i). The parties entered into a partial resolution agreement on July 26, 2018, which provided the student with an independent neuropsychological evaluation performed by , Ph.D. and upon completion of the evaluation, the CSE would reconvene to consider appropriate placement and supports (Ex. SD-1). See 8 NYCRR § 200.5G)(2)Gv). On November 15, 2018 the CSE held a meeting and the student was classified as having an other health impairment (“OHI”). The CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class in a New York State-approved nonpublic day school (Ex.
SD-3). A hearing on the merits of this matter was thereafter held on April 1, 2019.7 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()(5)(v).
Hl. FACTUAL BACKGROUND
At the time of the July 16, 2018 amended due process complaint, the student was and had been diagnosed with: Attention Deficit Hyperactive Disorder, Auditory Processing Disorder, Receptive Language Disorder, Specific Reading Disorder, Mathematics Disorder and Disorder of Written Expression (Ex. P-A, P-GG at 18). During the 2017/18 school year, the student was in the in a general education classroom at , located in Brooklyn (Ex. P-A at 1). The student's eligibility for special education and related services as a student with OHI is not in dispute in this hearing (Exs. P-A, SD-3 at 1). See
34 C.F.R. § 300.8(c)(11); 8 NYCRR§ 200.1(zz)(10).[3]
C.F.R. § 300.515(c); 8 NYCRR § 200.5()(5).
On May 19, 2009, before the start of the student’s first grade year, the DOE conducted an initial Psychoeducational Evaluation. The student’s intellectual functioning fell in the upper limits of the Low Average range of functioning as measured by the Wechsler Pre-School and Primary Scale of Intelligence-III (SWPPSI-II’). Academically, according to the Wechsler Individual Achievement Test- I] (WIAT-II), the student’s performance in reading and spelling were grade appropriate but he experienced delays in math and vocabulary. During testing the student was described as highly distracted and fidgety and the evaluator noted that the student required firm structure given his short attention span and need to be refocused to the task at hand. The evaluator recommended that the student be placed in a full time structured setting with additional adult support to address his academic and management needs as well as small group counseling to help.
The CSE convened on June 2, 2009 and the student was classified as having an Emotional Disturbance. The CSE created an IEP for the student for the 2009/10 school year, the student’s first grade year. The CSE recommendeda full time 12:1+1 special class with the related service of group (5:1) counseling, one time per week for thirty (30) minutes per session. The CSE also developed a behavioral intervention plan (“BIP”) for the student.4 The IEP indicated that the student was required to meet standard promotional criteria (Ex. P-A at 2, P-G).
due to chronic or acute health problems, including, but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or Tourette syndrome, which adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz).
+ Behavioral intervention plan means a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problems behavior occurs and intervention strategies that include positive behavioral supports and services to address
After the student’s first grade year, the CSE reconvened and developed an IEP for the student for the 2010/11 school year. During that year, the student attended ina
12:1+1 special class and received counseling. Throughout that school year, he continued to get up out of his seat, was easily distracted, and often disengaged from classroom tasks when he felt overwhelmed. As a result, he continued to have difficulty grasping classroom concepts, particularly in math (Ex. P-A at 2-3).
On June 8, 2011, the CSE reconvened to develop an IEP for the student for the 2011/12 school year, the student’s . The student was described to have a Low Average learning rate and the team again noted that he was easily distracted and required a great deal of verbal cues and prompting. The CSE recommended a 12:1+1 special class and group (5:1) counseling, one time per week for thirty (30) minutes per session (Ex. P-A at 3, P-F).
In May of 2012, the DOE conducted a psychological update of the student. The evaluator described the student as compliant and eager to relate but when frustrated exhibited impulsive behaviors, defensiveness, and quick responses. According to the Wechsler Abbreviated Scale of Intelligence (““WAST?’), he tested in the Average range for vocabulary fund/word knowledge and the Borderline range for non-verbal geometric reasoning. According to the Woodcock-Johnson
II, the student demonstrated a Low Average to Average range of academics. Specifically, the student scored in the Average range for word identification and word attack skills, the upper end of the Low Average range for reading comprehension, and the Low Average range for math (Exs.
P-A at 3, P-V).
On May 24, 2012, the CSE reconvened to develop an IEP for the student for the 2012/13 school year, his year. In math and reading comprehension, the student was considered to be at a level. He was reported to have attention deficits which required constant redirection. The CSE continued the 12:1+1 special class recommendation and also continued the group counseling mandate, one time per week for thirty (30) minutes per session, along with a BIP (Exs. P-A at 3-4, P-E).
On June 23, 2013, the CSE reconvened to develop an IEP for the 2013/14 school year, the student’s year. The JEP indicated that the student did not meet the math promotional criteria for the previous 2012/13 school year. He continued to struggle with remaining seated in class which the team noted interfered with his academics. The student was placed in a 12:1+1 program which included computer, gym, and art in addition to ELA, math, social studies, and science (Ex. P-A at 4, P-D).
On June 11, 2014, the CSE reconvened to develop an IEP for the 2014/015 school year, the student’s year. He still was reported to have a short attention span, which made it difficult to stay on task and grasp concepts. Academically, according to the IEP, he was performing at grade level for ELA and was just “approaching grade level” for writing. The student continued to struggle in math and was reported to be on a fourth grade level. According to the IEP, the student’s behavioral issues and attention deficits continued to interfere with his academics. The CSE continued the 12:1+1 special class recommendation for computer, music, art, ELA, math, social studies, and science (Exs. P-A at 4, P-C).
On May 19, 2015, the DOE conducted a psychological evaluation. The evaluator noted that the student, although cooperative, was distracted even in the one to one setting and required prompting to focus. According to the Wechsler Abbreviated Scale of Intelligence-Second Edition (“WASI-II’) he was functioning within the Average range of intelligence, with a Full Scale IQ of
95. According to the Wechsler Individual Achievement Test- Third Edition (WIAT-III), in math, the student scored in the Below Average range in three out of the five testing areas which included numerical operations, math fluency- addition, and math fluency-subtraction. He showed weakness when adding and subtracting three digit numbers, multiplying single digit numbers, solving long division, order of operations, adding fractions, and regrouping; and had difficulty telling time on an analog clock, identifying place value, using single-operation time word problems, solving mean, median and mode among numerous other concepts (Exs. P-A at 4-5, PU).
On June 28, 2015, the CSE determined that the student was no longer eligible for special education services (Exs. P-A at 5-6, P-K).
During the 2016/17 school year, his year, the parent met with the school principal and student’s teacher in an effort to address her son’s academic performance. After this meeting, the student was moved to an Integrated Co-Teaching (“ICT”) classroom, however, he still struggled academically, had issues with attention, and was not grasping classwork (Ex. P-A at 6).
During the 2017/18 school year, the student attended and continued to struggle academically and behaviorally. During this time, the student’s frustration continued to increase and his academic performance continued to fall below grade level, failing math and Spanish class (Ex. P-A at 6-7).
On May 25, 2018 the parent sent the DOEa letter disagreeing with its evaluation and requesting a comprehensive independent evaluation of the student. Specifically, the Parent requested an independent neuropsychological evaluation by Dr. , a licensed psychologist (Exs. P-A at 7, P-I). The DOE informed the parent of her right to have her son reevaluated for special education services and the parent immediately provided consent to evaluate (Ex. P-A at 7).
On June 21, 2018, the CSE convened to determine the student’s eligibility for special education services. According to the IEP, on the WISC-V, the student scored in the Average range on the Verbal Comprehension Index and the Processing Speed Index, the Low Average range on the Visual Spatial Index and the Working Memory Index, and the Very Low range on the Fluid Reasoning Index and Full-Scale IQ. On the WJ-IV, he demonstrated a strength in his
Average Broad Reading skills and a relative weakness in his Low Average Broad Math abilities.
According to this IEP the student was failing two classes, Algebra and Spanish and his teachers reported that he could not stay focused which caused him to not understand tasks. He reportedly often slept, talked, or did not participate in class discussions. Three of the student’s teachers and his mother responded to the Connor’s-Wells’ behavior rating scales and their scores revealed that his behavior met the criteria for Hyperactive/Inattentive Type AD/HD and AD/HD Combined
Type. The CSE classified the student as OHI and recommended ICT services with no related services. The DOE also recommended an individual paraprofessional (Exs. P-A at 8, P-B).
In Dr. ’s September 2018 neuropsychological evaluation report, the student presented with marked difficulties in attention and executive functioning skills and was three to four years below grade level in reading and four to five below grade level in math. He was also diagnosed with Attention Deficit Hyperactive Disorder, Auditory Processing Disorder, Receptive Language Disorder, Specific Reading Disorder, Mathematics Disorder and Disorder of Written Expression (Ex. P-N at 18).
The student’s cognitive ability was Mildly Impaired ( ). His non-verbal reasoning was in the Average range ) and a relative strength for him his conceptual and quantitative reasoning was Mildly
Impaired ) (Ex. P-N at 16).
The student’s Short-Term and Long-Term memory were in the Low Average to Average range ( ). His ability to process information quickly was in the Average range ( ) with one exception, which was Moderately Impaired ( ). Overall, the student had difficulty quickly and accurately completing challenging tasks and inhibiting an automatic behavior, an indication of impulsivity, which, according to Dr. , along with descriptions of his inattention and restlessness is consistent with a diagnosis of Attention Deficit Hyperactivity Disorder (Ex. P-N at 16-17).
The student’s Broad Reading was in the average range ( ), but the scores that generated the overall score were inconsistent. On reading unfamiliar words the student was almost four years below grade level, and reading familiar words he was over two years below grade level. His ability to comprehend what he read was at a 4 grade level ( ), which is over four grades below grade level and Mildly Impaired based on a low RPI score ( ). According to Dr. , his ability to read quickly and accurately was inconsistent; and overall, reading would be difficult for him since he is three to four years below grade level on decoding unfamiliar words, reading aloud and comprehending what he read. Dr. wrote that these findings were consistent with a Specific Reading Disorder (Ex. P-N at 17).
The student’s Broad Mathematics was at a 5" grade level (5.1 GE), four years below grade level, and Mildly Impaired based on low RPI score ( ). His ability to calculate was at a 5" grade level, four years below grade level, and Mildly Impaired based on a low RPI score ( ). His math reasoning was at a 3“ grade level, 5 years below grade level and Mildly Impaired based on low RPI score ( ). Dr. found that mathematics would be very hard for him since he is four years below grade level in calculation, over five years below grade level in math reasoning and three years below grade level in math fluency; and these findings are consistent with a Mathematics Disorder (Ex. P-N at 17-18).
His Broad Written Language was at a 5" grade level ( ), four years below grade level, and in the Low Average range ( ). Spelling and Sentence
Writing Fluency were at a 6" and 7" grade level, three years below grade level and in the Average Range ( ). His Writing Samples Test was at a 4" grade level, 5 years below grade level and Mildly Impaired based on RPI score ( ). The student’s Basic Writing Skills were at a 2TM grade level ( ), over 6 years below grade level, and Moderately Impaired.
According to Dr. , these findings are consistent with a Disorder of Written Expression (Ex. P-N at 18).
Based on her findings, Dr. recommended, among other things, that the student “required a small structured classroom (12:1) that provides a quiet environment, free from distraction and with expertise to provide support for a child with Attention Deficit Hyperactive
Disorder, Auditory Processing Disorder, Receptive Language Disorder, Specific Reading Disorder, Mathematics Disorder and Disorder of Written Expression. He requires a nonpublic school to obtain the services he needs” (Ex. P-N at 18-19).
The CSE reconvened on November 15, 2018 to develop an IEP for the student for the 2018/19 school year. The student was classified as OHI and the DOE recommended a Special Class (12:1+1) for all subjects ata NYSED Approved Non Public School — Day. For related services, the CSE recommended individual counseling, once a week for thirty (30) minutes per session, and group (5:1) speech-language therapy, once a week for thirty (30) minutes per session (Ex. SD-3 at 7-10).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE rested on its submitted evidence at the hearing, which were submitted “not for the purposes of defense, but just for the purpose of completing the record” (R. 14-16).
B. The Guardian
The DOE failed to provide the student with a FAPE for the 2016/17, 2017/18 and 2018/19, school years. The student is entitled to compensatory additional services (i.e., tutoring) to address the denial of FAPE (R-19, Ex. P-A at 14).
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]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.
See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); 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 JEP 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)(1i1); 34 C.F.R. § 300.513(a)(2); 8 NYCRR §
200.5(4)(4)(4i); 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), affd, 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 [HO'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(f1)(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." Walezak, 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)Q@), 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 JEP 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)(), (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. Proposed Public Program
The DOE failed to establish that its recommended placement was appropriate or could mect the student’s needs. The DOE also failed to provide any basis upon which the CSE team could have reasonably relied to justify its recommendations as appropriate.
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 Bad. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA).
Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Child with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Reg’ 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.
As noted above, the CSE failed to develop appropriate IEPs for the student for the 2016/17, 2017/18 and 2018/19 school years and the absence of an appropriate IEPs denied the student a FAPE. Therefore, I find that the student is entitled to compensatory additional services to remedy the denial of FAPE. Using the credible testimony offered by Ms. I shall apply a qualitative approach in fashioning a remedy of additional services for the student.
On October 12, 2017, the student participated in a comprehensive educational evaluation at the (“ ””) to determine his then-present levels of performance.
On the Slosson Visual-Motor Performance Test the student’s scaled score of seventy-seven was Below the Average range. On the Slosson Oral Reading Test, the student demonstrated a mastery of sight word recognition only at a fourth grade level. The student’s comprehension was assessed by means of the Burns and Roe Informal Reading Inventory. He was asked to read three passages aloud, one each at fifth grade, sixth grade, and seventh grade levels. After reading each passage, the examiner asked questions, to which the student responded orally. The student did not get a passing score on any passage, and scored just 20% on the seventh grade level passage. Ona multiple-choice test of comprehension, the California Achievement Test's reading comprehension subtest, he achieved a grade equivalency of 10.1, placing him in the 55th percentile nationally.
The student produced a writing sample that was consistent with what one might expect to see as a first draft from a student in fourth grade. On the Math Placement Exam, the student demonstrated mastery of just two of the tested skills, failing to demonstrate mastery of others that should have been mastered by the end of first grade such as basic addition and subtraction, telling time, place value, multiplication, division, fractions, decimals, introductory geometry, and algebra (Exs. P-A at 7, P-R, P-T).
After this extensive assessment, the created an individualized program to address the student’s academic deficits and recommended that he receive a total of 860 hours of one-to-one make-up tutoring to compensate the for the denial of a FAPE (R. 43; Ex. R-T). The DOE will be directed to authorize the student’s receipt of 860 hours of one-to-one tutoring at a rate not to exceed $105 per hour. The DOE will also be directed to directly pay the $295 for the cost of diagnostic testing and $100 for ’s standard registration. Lastly, as the student would be unable to access the additional services without transportation, the DOE will be directed to provide the student and guardian with MetroCards so that the student can safely attend the (R. 47-48, Ex. P-A at 14). 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).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
The guardian’s claim that the student was denied a free appropriate public education (FAPE) for the 2016/17, 2017/18 and 2018/19, school years is SUSTAINED; The guardian’s claim for compensatory additional services for the student is GRANTED; and within thirty (30) days of its receipt of this Order the DOE shall authorize the student’s receipt of 860 hours of one-to-one tutoring at public expense, which shall be scheduled at the guardian’s discretion, and provided by ., d/b/a/ , at a rate not to exceed $105 per hour.
Within thirty (30) days of the date of this Order, the DOE shall also directly pay ., d/b/a/ , $295 for the cost of diagnostic testing and $100 for the center’s standard registration fee; and Within thirty (30) days of the date of this Order, the DOE shall provide the student with transportation to and from compensatory additional services delivered at ., d/b/a/ , Which the DOE may fulfill by providing the student and guardian with prepaid MetroCards.
Dated: May 17, 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 Hearing Request, 7/16/18, 15 pgs.
ATCMPOAVEKSOMZPEOMT
Individualized Education Program (IEP), 6/12/18, 16 pages.
Individualized Education Program (IEP), 6/11/14, 9 pages.
Individualized Education Program (IEP), 6/23/13, 9 pages.
Individualized Education Program (IEP), 5/24/12, 10 pages.
Individualized Education Program (IEP), 6/8/11, 10 pages.
Individualized Education Program (IEP), 2/20/09, 13 pages.
Consent for Initial Provision of Services, 6/25/18, 1 page.
IEE Request Letter, 5/25/18, 1 page.
Prior Written Notice, 6/5/15, 3 pages.
Declassification, 5/21/15, 2 pages.
Mandated Three Year Reevaluation, 5/8/15, 2 pages.
Assessment Planning, 5/11/15, 1 page.
Neuropsychological Evaluation, 9/1/18, 26 pages.
Speech Language Evaluation, 8/10/18, 6 pages.
Functional Behavior Assessment 6/21/18, 8 pages
Behavior Intervention Plan, 6/21/18, 8 pages.
Student Academic Testing Results, 10/12/17, 3 pages.
Student Program Map, 10/12/17, 3 pages.
Student Testing Packet, 10/12/17, 46 pages.
Psychological & Educational Report, 5/19/15, 6 pages.
Psychological Update, 5/10/12, 2 pages.
Psychological Evaluation, 5/20/09, 7 pages.
Report Card MP 1, 2017-2018 1 page.
DEPARTMENT OF EDUCATION
1. Partial Resolution Agreement, 7/26/18, 1 page.
2. Meeting Notice, 11/1/18, 3 pages
3. Defer to CBST IEP, 11/15/18, 13 pages
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 9/9/18, 1 pg.
II. Confirmation of Extension, 10/9/18, 1 pg.
II. Confirmation of Extension, 11/8/18, 1 pg.
IV. Confirmation of Extension, 12/8/18, 1 pg.
V. Confirmation of Extension, 1/7/19, 1 pg.
VI. Confirmation of Extension, 2/6/19, 1 pg.
VIL. Confirmation of Extension, 3/8/19, 1 pg.
VIL. Confirmation of Extension, 4/7/19, 1 pg.
IX. Confirmation of Extension, 5/7/19, 1 pg.
Other Health Impairment means having limited strength, vitality or alertness, including heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is the behavior. 8 NYCRR § 200.1(mmm).
Footnotes
[1] ‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted
[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 guardian’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. 51-52; Exs. IHO-I — IHO-IX). See 34
[3] Other Hea th Impairment means having limited strength, vitality or alertness, incl ding heightened alertness to environmental stim li, that res lts in limited alertness with respect to the ed cational environment, that is
[4] Behaviora intervention plan means a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problems behavior occurs and intervention strategies that include positive behavioral supports and services to address
[5] 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.