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In the Matter of the Impartial Hearing of [REDACTED], IHRS Case No. 515828
Petitioner,
-against-
[REDACTED] CITY SCHOOL DISTRICT,
Respondent.
A Hearing Under the Individuals with Disabilities Education Improvement Act, 20 United States Code Section 1415, and New York State Education Law, Article 89, Section 4404 X
FINDINGS OF FACT AND DECISION
Mindy G. Wolman,
Impartial Hearing Officer
Law Office of Mindy Wolman
221-59 59th Avenue, Second Floor
Bayside, New York 11364
(718) 279-3142 Matter of [REDACTED] v. [REDACTED] City School District
On July 25, 2018, A.E., the parent (the “Parent”) of [REDACTED] ( the “Student”), filed a due process complaint (the “DPC”) ( IHO Exh. I) against the [REDACTED] City School District (the “District” or “ [REDACTED] ”) under the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. §1415 and §4404 of the New York State Education Law (“Case One”). Case One was filed under IHRS1 Case No. 515828. I was appointed as Impartial Hearing Officer (“IHO”) in Case One on July 27, 2018.
By motion dated November 27, 2018, the District sought dismissal of any claims relating the 2018-2019 school year (IHO Ex. IV). The Parent opposed that motion (IHO Ex. V). On December 4, 2018, I issued an order denying the District’s motion to dismiss the Parent’s 20182019 claims in Case One (IHO Ex. VI).That order limited the scope of the hearing in Case One to the four corners of the DPC.
The Parent filed the new due process complaint against the District under IHRS case number 522949 (“Case Two”) on February 7, 2019 (IHO Ex. VII). I was appointed as impartial hearing officer (“IHO”) in that proceeding on February 11, 2019. I issued an order denying consolidation of the two cases on February 20, 2019 (IHO Ex. VII). The within decision pertains only to the claims and issues raised in Case One.
A pre-hearing conference was held on October 17, 2018 (IHO Ex. II) and substantive hearings went forward on December 12, 2018, February 7, 2019, February 25, 2019, and March 6, 2019.
Lists of the persons who appeared at the hearings and the documentary evidence submitted are appended to this Order. The compliance date for issuing a decision in this proceeding has been extended (IHO Exs. I and IX).
BACKGROUND AND POSITIONS OF THE PARTIES
[REDACTED] is a [REDACTED] year old female student who is classified as a student with a disability having an emotional disturbance (D. Ex. 21). Her classification and eligibility for special education supports and services is not in dispute. The Student is diagnosed with attention deficit hyperactivity disorder (“ADHD”), Adjustment Disorder with Anxiety,
IHRS refers to the New York State Education Department Impartial Hearing Reporting System. Matter of [REDACTED] v. [REDACTED] City School District
Oppositional Defiance Disorder, and Trichotillimania (a condition in which she pulls out her hair due to anxiety). Her cognitive functioning is in the average range. The Student’s behavioral and emotional issues substantially interfere with her ability to function in a school environment.
The Student attended District schools from kindergrarten through fifth grade (the 20152016 school year). She was previously classified under the “other health impairment” disability classification. The Parent placed her in a residential facility, the [REDACTED] (“ [REDACTED] ”) for the 2016-2017 school year. [REDACTED] is located in [REDACTED] , New York. As such, the [REDACTED] Union Free School District (“ [REDACTED] ”) was responsible for preparing her Individualized Education Program (“IEP”) and for providing the Student’s special education services for that year. While in [REDACTED] , the Student was in a therapeutic support program (“TSP”) in which she was in general education classes with a daily TSP study skills class (12:1+(3:1)), weekly consultant teacher services for math, ELA (English Language Arts), Science, and Social Studies, bi-weekly consultant teacher services for specials, weekly group and individual counseling, and a 1:1 aide for six hours per day. [REDACTED] prepared an IEP for the 2017-2018 school year which included the foregoing services (D. Ex. 12, at 4-16).
On August 23, 2017, the Parent re-enrolled the Student in [REDACTED] . By that point, [REDACTED] ’s 2017-2018 staffing and classes had been set, and it did not have a program identical to the Student’s [REDACTED] program. [REDACTED] ’s Assistant Director of Special Education prepared an “Interim Program Agreement” which provided for the following program for the Student: 12:1:2 special class with counseling as a related service (D. Ex. 12). The Student was placed in a 12:1:2 special class at the District’s [REDACTED] Middle School (“ [REDACTED] ). The District’s Committee on Special Education (“CSE”) convened a meeting on October 3, 2017, at which time it prepared an IEP which recommended placement in 12:1+2 special classes for Math, ELA, Social Studies, and Science, weekly group counseling, and weekly individual counseling (D. Ex. 14). The District continued the Student’s placement in the 12:1+2 class at [REDACTED] .
The Student has had multiple psychiatric hospitalizations. The Student was sexually assaulted by another student at [REDACTED] on April 16, 2018. On April 17, 2018 she was Matter of [REDACTED] v. [REDACTED] City School District admitted to [REDACTED] Medical Center (“ [REDACTED] ”). She was discharged on or about April 23, 2018 (District Ex. 19 at 2). She did not return to [REDACTED] after her discharge from [REDACTED] . On or about May 5, 2018, the Student was admitted to [REDACTED] Hospital (“ [REDACTED] ”). She remained at [REDACTED] for about ten days (Tr. 689).
The CSE reconvened on May 7, 2018, and prepared an IEP which continued the Students counseling services but changed her special class recommendation to an 8:1+2 special class (D. Ex. 21). The District offered the Student placement in an 8:1+2 at [REDACTED] . The Student did not return to [REDACTED] at any time during the 2017-2018 school year. She received home instruction services for a portion of the time between her discharge from [REDACTED] and the end of the 2017-2018 school year. She received educational instruction at [REDACTED] , which was funded by the District.
As of the July 25, 2018 filing date of the DPC, the District had not prepared a new IEP for the 2018-2019 school year. A 2018-2019 IEP was subsequently prepared as a result of a CSE meeting held on August 24, 2018 (D. Ex. 23). However, the appropriateness of that IEP is beyond the scope of this proceeding because it was prepared after the filing date of the DPC. As such, it is outside the four corners of the DPC.
The Parent maintains that the District failed to provide the Student with a free appropriate public education (“FAPE”) for the 2017-2018 and 2018-2019 school years. She maintains that the District never offered the Student the TSP program that she required, that it did not provide an appropriate program upon her enrollment in the District at the beginning of the 2017-2018 school year, that the District’s Behavior Intervention Plan (“BIP”) was not appropriate, that the District violated the Student’s right to be educated in the least restrictive environment (“LRE”), that the CSE did not consider appropriate evaluations or appropriately evaluate the Student, that the October 3, 2017 and May 7, 2018 IEPs were inappropriate, and that the District failed to offer the Student a program for the 2018-2019 school year. The Parent also asserts that the District did not appropriately evaluate the Student. The Parent seeks an independent educational evaluation (“IEE”) consisting of a neuropsychologicial evaluation, functional behavioral assessment, psychiatric evaluation, and functional vocational assessment, one thousand (1,000) hours of compensatory one-to-one academic tutoring with transportation costs paid by the District, two Matter of [REDACTED] v. [REDACTED] City School District hundred (200) hours of compensatory 1:1 psychological counseling services with transportation costs paid by the District, an order directing the CSE to reconvene and recommend an appropriate out-of-district therapeutic program and for the purpose of adding a safety plan or anti-bullying plan to the Student’s IEP (IHO Ex. XI at 25-26).
The District maintains that the Interim Program Agreement was appropriate as a comparable services plan (“CSP”) at the time of the Student’s enrollment in the District in light of the fact that its classes and staffing had been set by that time (it was only a couple of weeks before school began) and it did not have the program that had been recommended in the Student’s [REDACTED] IEP. It maintains that it did not have available certified special education teachers to push into each of the Students core classes once per week, and that there was no time to adjust programs and staffing levels prior to the start of school. It asserts that the most comparable program that it had was the 12:1+2 special class in the [REDACTED] emotional support program. The District also asserts that its CSE relied on appropriate and sufficient evaluations, that the IEPs prepared by its CSE (the October 3, 2017 and the May 7, 2018 IEPs) were appropriate, and that [REDACTED] provided the program and therapeutic supports that the Student required. It maintains that the [REDACTED] program was the equivalent of a therapeutic support program, and that the Student received an extremely high level of emotional support at [REDACTED] . The District asserts that it provided the Student with a program and placement that offered the Student the opportunity to make meaningful progress in the LRE. The District takes the position that a 1:1 aide was not necessary due to the staff to student ratio in the Student’s special class.
The District also maintains that the Parent’s assertions were not supported by evidence at the hearing, that there was no need for additional evaluations of the Student, and that the District was prevented from delivering services by events beyond the District’s control. The District asserts that the sexual assault allegations are not relevant to the adequacy of the IEP. In addition, the District maintains that any allegations regarding the 2018-2019 school year were premature. The District requests that the Parent’s requests for relief be denied in their entirety.
Both parties submitted documentary evidence packages in this proceeding. The bulk of the documentary evidence was submitted by the district. The District presented the testimony of Matter of [REDACTED] v. [REDACTED] City School District its Assistant Director of Special Education, a school psychologist from [REDACTED] , a school social worker from [REDACTED] , and the principal of [REDACTED] . The Parent testified at the hearing and also presented the testimony of a social worker from the Westchester Jewish Community Services Family Health Clinic (“WJCS”). WJCS had provided the Student with outpatient individual therapy starting in October of 2013 (Parent Ex. C). Both parties made opening statements at the hearing and submitted post-hearing briefs (IHO Exs. X and XI ).
FINDINGS OF FACT AND DECISION
The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000). School districts are also required to provide the program and services set forth on a student’s IEP.
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement ( NYS Educ. Law § 4404(1)(c)). Since this proceeding does not involve a unilateral placement, the District has the burden of proof on all IDEA issues.
The Parent’s 2017-2018 claims in this proceeding pertain to three discrete time periods: Matter of [REDACTED] v. [REDACTED] City School District the beginning of the school year through the October 3, 2017 IEP, the implementation of that IEP through the April 16, 2018 incident, and the program and services provided after that incident (which includes the May 7, 2018 IEP) through the end of the 2017-2018 school year. The Parent also raised a 2018-2019 school year claim in which she asserts that there was a FAPE deprivation based upon the lack of an IEP for the 2018-2019 school year. Even though there are over-arching claims that cover the entire time period at issue here (e.g., evaluations, the level of instructional support, the emotional/behavioral support provided, the lack of a 1:1 aide, etc.), the time periods each need to be examined separately. September 6, 2017 through October 3, 2017
When a student enters a school district with an IEP from another school district, the new school district in which the student is enrolled must develop and implement a comparable service plan (a district must provide services that are comparable to the services recommended in the existing IEP) until such time as the district’s CSE can develop its own IEP. At the time that the Student entered the District in September of 2017, her IEP from [REDACTED] recommended a daily special class (TSP Study Skills), consultant teacher services for one period per week for each of her core classes (math, ELA, Science, Social Studies), consultant teacher services for one period per week for “Specials,” consultant teacher services once every-other week for Physical Education, one session per week of group counseling, one session per week of individual counseling, and a 1:1 aide for 6 hours per day (District Ex. 12 at 4-16). The consultant teacher services were identified as direct and indirect. The IEP also indicated that the Student “requires access to the TSP classroom (flexible setting) as needed throughout the school day to support emotional/behavioral regulation throughout the school” (District Ex. 12 at 13). The reason cited for Student’s need for a 1:1 aide was that the Student “requires consistent supervision and support to manage social-emotional and behavioral needs across school settings”) (Id.)
The District developed and implemented an “Interim Program Agreement” (the “IPA”) to serve as a comparable service plan. The District’s IPA included a 12:1:2 special class with counseling as a related service (District Ex. 12 at 1). The District maintains that it could not implement the [REDACTED] IEP as written in light of the staffing and programs available as of September of 2017. It argues that the [REDACTED] 12:2+2 emotional support program was Matter of [REDACTED] v. [REDACTED] City School District the District’s most comparable program that it could offer in September of 2017. In September of 2017 there were only two students in the 12:1:2 special class (including the Student). The class size never increased over six students during the 2017-2018 school year. In light of the high level of adult support in the 12:1:2 class, the District maintains that a 1:1 aide was not necessary. The Parent maintains that the class was too restrictive, that the Student required a 1:1 aide, and that the District did not provide the daily study skills class that had been in the [REDACTED] IEP.
Based on the testimony of the District’s witnesses at the hearing, I find that the IPA did provide the Student with comparable services with respect to the daily study skills class. The Student had a had a special education teacher and small class setting for most of her school day, and study skills were part of the curriculum. That being said, I cannot find that the IPA constituted a comparable service plan. It did not provide a program and services comparable to the [REDACTED] IEP. The program was much too restrictive. The bulk of the Student’s program in the [REDACTED] IEP was in a general education setting with special education teacher support for one period per week for each subject. This was supplemented by a daily small class for study skills. Going from that to a full-time 12:1:2 class was a change to a highly restrictive environment. In addition, any comparable service plan would have required a 1:1 aide. The teaching assistants in the 12:1:2 class were not a substitute for an aide. Per the [REDACTED] IEP, the Student required a 1:1 aide because she required “consistent supervision and support to manage social-emotional and behavioral needs across school settings” (District Ex. 12) (emphasis added). Having teaching assistants in the 12:1+2 classroom for half of the Student’s school day was not the equivalent of a 1:1 aide during the entire school day (across all school settings). The IPA did not provide for consistent supervision across all school settings. The October 3, 2017 IEP
By the time of the October 3, 2017 CSE meeting, CSE had the benefit of knowing how the Student performed in the 12:1:2 program in which she had been placed. By all accounts, she adapted well to the program and was beginning to make progress. The CSE had adequate and current evaluations as of the meeting date. The evaluations available to the CSE included a May 2017 triennial evaluation (District Exhibit C) and a June 2017 psychological evaluation (District Matter of [REDACTED] v. [REDACTED] City School District Ex. D). The District also had a 2015 psycho-educational evaluation (District Ex. 5) for comparison purposes, and a November 2016 functional behavioral assessment (“FBA”)(District Ex. 8). Although it might have made sense to perform an updated FBA at that time, it was not critical to do so. The lack of a new FBA did not rise to the level of a FAPE deprivation.
The Parent’s key challenge to the October 3, 2017 IEP included allegations regarding insufficient supervision and insufficient emotional/behavioral support for the Student. The Parent also asserted that the IEP did not provide for sufficient academic support, and that the CSE should have pursued an out-of-district placement in [REDACTED] . The Parent also alleges that [REDACTED] provided insufficient therapeutic and behavioral support.
There was no evidence to suggest that the Parent had any interest in pursuing an out-ofdistrict placement in [REDACTED] . In fact, some of the Student’s behavioral issues had been worse during the prior year in [REDACTED] than had been observed during September of 2017 at [REDACTED] . The Student had been engaging in aggressive behavior during the prior school year. That behavior was not observed at [REDACTED] . As such, sending the Student back to [REDACTED] (assuming that arrangements for an out-of-district placement could have been arranged) would not have been appropriate.
With the exception of the reduction in aggressive behavior, the Student’s need for appropriate academic and social/emotional/behavioral support had not changed. The October 2017 IEP included appropriate academic support, and the testimony of the District’s witnesses at the hearing established that [REDACTED] staff had provided the Student with substantial social, emotional, and behavioral support. While it might not have been identical to the TSP program that the Student had been in during the prior year, the [REDACTED] program provided a high level of therapeutic, behavioral, and emotional support. However, the IEP did not provide for a full-time 1:1 aide. The Student required those services due to her elopement behavior, and her other social/emotion/behavioral and dysregulation issues. The additional teacher assistant support in her IEP was limited to ELA, Math, Social Studies, and Science classes, for a total of a little less than three hours per day (District Ex. 14). It was no substitute for a full-time 1:1 aide who would have been able to be with, monitor, and provide the Student with the level of supervision that she required. While I realize that it would likely have been Matter of [REDACTED] v. [REDACTED] City School District difficult for an aide to be with the Student all of the time due to her elopement issues (and the speed with which she would run away when she eloped),[2] the aide should none-the-less have been part of her IEP. Based on the lack of a 1:1 aide, I find that the District did not provide the Student with a FAPE during the period of time in which the October 3, 2017 IEP was in place. April through June of 2018
The Student was out of school from April 18, 2018 through the end of the 2017-2018 school year. The Student was admitted to the [REDACTED] Center Behavioral Health Center (the “ [REDACTED] ”) on April 17, 2018 and remained there until April 24, 2018. The Student was also hospitalized at [REDACTED] Hospital (“ [REDACTED] ”) at some point in May of 2018. The District paid [REDACTED] staff members to provide instruction to the Student. The District began to provide home instruction services at some point after the Student’s discharge from [REDACTED] . It took awhile to make arrangements for home instruction services due to scheduling issues. The Student was accompanying the Parent to work, and was available for home instruction only during a limited window of time during the day.
The CSE convened a meeting on May 7, 2018 and prepared an IEP that provided for an 8:1+2 special class for one period per day each for Math, ELA, Social Studies, and Science, group counseling, and individual counseling. It did not include the services of a 1:1 aide, as the CSE was of the view that the support staff in the 8:1+2 class was sufficient without a 1:1 aide. The Discharge Summary from [REDACTED] had recommended placement in an IDT ( an Intensive Day Treatment Center), and the District sent applications to two different IDTs.3 It was intended that the Student receive services pursuant to the May 7, 2018 IEP until the District could place her in an IDT. [REDACTED] was identified as the placement for the recommended 8:1+2 program. The Parent declined to return the Student to [REDACTED] due to concerns about the adverse impact it would have on the Student to return to the school after the April 2018 sexual assault. In addition the Parent was concerned about the lack of a 1:1 aide.
Matter of [REDACTED] v. [REDACTED] City School District
In developing the May 7, 2018 IEP, the CSE had obtained and considered additional evaluative material. These documents included a Social History Update, a BIP Review/Modification, an Annual Review Counseling/Behavior Progress Summary, a Psychological Services Classroom Observation, and the Patient Aftercare/Discharge Summary from [REDACTED] (District Exs. 15, 16, 17, 18, 19, and 20). The CSE had considered appropriate and sufficient evaluations at the May 7, 2018 IEP meeting. There was no need for a new psycho-educational evaluation, as it had a psycho-educational evaluation and a psychological evaluation from May and June 2017 (District Exs. 9 and 10). Those evaluations were less than a year old. There is no evidence to suggest that additional testing was required as of May 7, 2018.
The District appropriately sent out packets in an effort to find an IDT placement for the Student, as [REDACTED] had recommended that type of placement post-discharge and all parties agreed it would have been an appropriate placement for the Student at that time. However, the May 7, 2018 IEP and the [REDACTED] placement, which constituted the CSE’s recommendation for the Student’s program pending placement in an IDT, was not appropriate. The Student required a 1:1 aide, and returning to [REDACTED] after the April 2018 sexual assault would not have been appropriate for the Student.
Instead, the District wound up providing the Student with two hours per day of home instruction services. Two hours per day of home instruction was an appropriate level of instruction. Any services that were not provided due to conflicts with the Parent’s work schedule and the Student’s limited availability for instruction prior to mid-May of 2018 cannot be attributed to the District as a failure to provide services or a FAPE deprivation.
The Student’s IEP also mandated counseling. This services were a critical component of the Student’s special education program and should have been included as part of the Student’s home instruction program. The Student was not provided with home instruction services during any portion of the time that she was on home instruction. The District’s failure to provide the Student with counseling services as part of her home instruction services constituted a FAPE deprivation. 2018-2019 School Year Matter of [REDACTED] v. [REDACTED] City School District
As of the filing of the DPC, the 2017-2018 school year had already ended, and the District had not yet prepared an IEP. As such, a FAPE for the 2018-2019 at school year had not been offered as of the filing date of the DPC. Although the better practice would have been to prepare the 2018-2019 IEP prior to the end of the 2017-2018 school year, the CSE’s failure to do so did not constitute a FAPE deprivation for the 2018-2019 school year. The District prepared an IEP for that year on August 24, 2018 (prior to the first day of the school for the 2018-2019 ten month school year). However, the appropriateness of that IEP is beyond the scope of the July 19, 2018 DPC. At some point while this case was pending, the Student began attending an out-ofdistrict program in the [REDACTED] Union Free School District (“ [REDACTED] ”). The issue of whether or not that placement is providing the Student with a FAPE is likewise beyond the scope of the DPC filed in this proceeding.4 Requested Remedy
The Parent seeks an IEE, compensatory services, a CSE reconvene, and placement in an out-of-district therapeutic program.
An IEE is “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). “If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense,” 8 NYCRR § 200.5(g)(1). If an IEE at public expense is requested by parents, “the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria” 8 NYCRR § 200.5(g)(1)(iv).
The IEE sought by the Parent consists of a neuropsychologicial evaluation, functional behavioral assessment, psychiatric evaluation, and functional vocational assessment The underlying basis of the request for the IEE was that the District’s “longstanding failure to fully evaluate [Student] stymied the development of appropriate IEP,” that it is “likely that the lack of The appropriateness of the [REDACTED] program was raised in the DPC in Case Two (which is still pending). Matter of [REDACTED] v. [REDACTED] City School District thorough evaluations has contributed to or even caused the many rejections from out-of-district programs applied to,” that the IHO has broad authority to order equitable relief, and that the DPC “functioned as a request for IEEs” (IHO Ex. XI at 24-25). The District maintains that there was no need for additional evaluations as the CSE had the benefit of [REDACTED] ’s recent evaluations as of its initial 2017-2018 recommendations and that evaluations at the end of the school year (prior to the May 2018 meeting) “would not have yielded accurate results as the student was in crisis” (IHO Ex. X at 23).
In support of the contention that “a school district must act on a request for an IEE imbedded in a DPC,” the Parent cites a 2008 State Review Officer (“SRO”) opinion (Application of a Student with a Disability Appeal No. 08-087). The Parent notes that the District neither authorized the IEE nor commenced a proceeding in opposition to the Parent’s request (IHO Ex. XI at 25). I note, however, that SRO decisions are not binding legal precedent. The regulations specifically provide that SRO decisions “shall be binding upon the parties and the State Education Department with respect to the provision of special education to the student with a disability involved, but shall not constitute binding precedent in any judicial action or proceeding or administrative appeal in any forum whatsoever” (8 NYCRR section 279.12(a)). I must therefore reject the Parent’s contention that an SRO decision that is more than a decade old constitutes binding legal precedent in this proceeding. Even if it did, I would not be persuaded that the extensive IEE requested by the Parent is appropriate. I also reject the Parent’s contention that the asserted lack of appropriate evaluations prevented the development of an appropriate IEP and caused “many rejections” from out-of-district programs. The October 2017 IEP was inappropriate primarily because the CSE failed to include the 1:1 aide support required by the Student. I did not find that the IEP was inappropriate due to the lack of appropriate evaluations. Moreover, the Student was rejected by two out-of-district programs, which does not rise to the “many” cited by the Parent. The term “many” implies much more than two. In addition, there is nothing in the Record to suggest that either of the IDT rejections was related to the lack of evaluations. One of the IDT programs, [REDACTED] BOCES, specifically rejected the Student “based on her behavior [because] they felt that she does meet the profile of the fragile students that they work with” (Parent Ex. B, audio-recording of 5/7/18 CSE Meeting, Part I). Clearly, that Matter of [REDACTED] v. [REDACTED] City School District rejection was not based on insufficient evaluations. The Hearing Record does not set forth the reason for [REDACTED] BOCES’ rejection of the District’s application for the Student’s admission. There is no basis for assuming that it was related to the insufficiency of recent evaluations. As of the time of the IDT applications, the CSE had evaluations that were less than a year old, as well as the recommendations and discharge summary from the Student’s April 2018 psychiatric hospitalization.
The Parent requests compensatory education or compensatory services for the District’s failure to provide the Student with a FAPE during the 2017-2018 school year. A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE (see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. Compensatory education may be awarded to students under the age of twenty-one (see Student X. v. New York City Dep't of Educ., 2008 WL 4890440,[E.D.N.Y. Oct. 30, 2008]. An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA (P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008)).
A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). This type of award is often calculated on a “hour for hour” basis. Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits). Since the Student experienced a lengthy FAPE deprivation during the 2018-2019 school year, she is entitled to a compensatory award.
It is not possible to fashion a qualitative award in this case (for the 1:1 tutoring compensatory claim) because the Hearing Record is devoid of the evidence that I would need to Matter of [REDACTED] v. [REDACTED] City School District determine a compensatory award that would be “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place” (see P. v. Newington, 546 F.3d 111, 123). As such, I must fashion a quantitative award for that aspect of the requested compensatory services request.
There are actually two components to the compensatory award requested by the Parent. She requests two hundred (200) hours of compensatory 1:1 psychological counseling, and one thousand (1,000) hours of compensatory 1:1 academic tutoring, with all transportation costs for both services to be paid by the District (IHO Ex. at 25).
The Student received her counseling services and extensive additional social/emotional/ behavioral support at [REDACTED] while she was attending the school. There is thus no basis for a compensatory counseling award for that period of time. The Student should have continued to receive counseling services when she was placed on home instruction in May of 2018. Since the Student was only receiving services in the home, group counseling services would not have been feasible. Any services provided in the home would have to have been provided on an individual basis. It would not have been possible to provide group counseling in that setting. Since the Student was entitled to two sessions of counseling a week (one group, and one individual), and the only type of counseling services that could have been provided in the home were individual counseling services, the District should have provided the Student with two sessions per week of individual counseling during the time that she as not in school from April 18, 2018 through the end of the school year. The District could not (and indeed should not) have provided the Student with counseling during the two psychiatric hospitalizations during that period. There were about eight weeks of school after April 18, 21018 and the Student was hospitalized for about two weeks of that time. For another two weeks or so, the Student was unavailable due to the Parent’s scheduling issues and the Student’s very limited availability for instruction and services. Based on those factors, the District should have been providing the Student with two sessions per week of counseling services for four of the eight weeks after April 18, 2018. I will therefore direct the District to provide the Student with eight sessions of compensatory counseling services.
The Parent is seeking 1,000 hours of 1:1 academic tutoring as a compensatory award. It is Matter of [REDACTED] v. [REDACTED] City School District not clear as to how the Parent arrived at that number.
During the period September 2017 through mid-April of 2018, the primary aspect of the Student’s FAPE deprivation was the lack of a 1:1 aide. This rendered the Student “unable to benefit from instruction” on a regular basis (primarily when she eloped from the classroom). That being said, when she was in class she received small group and individualized instruction in a 12:1+2 class that never had more than six students (initially, there were only two students in the class). During the period of mid April through June of 2018, the Student was hospitalized for portions of the time. She received instruction during one of the hospitalizations, and was entitled to receive home instruction for remainder of the time. The Student’s home instruction program consisted of two hours per day of home instruction.
It is impossible to tell, based on the Hearing Record before me, exactly how much instructional time the Student missed due to the lack of a 1:1 aide. It is not even clear that she missed instructional time every day. The 1,000 hours requested by the Parent is excessive and unsupported by the evidence. A more reasonable award would be one hour per day for each day from September 2017 through mid-April 2018 (which is about 30 weeks). This comes out to a total of one hundred and fifty (150) hours (one hour per day x five days per week x 30 weeks).
During the time period after mid-April through June of 2018, the Student did not attend [REDACTED] . The District supplied two hours per day of home instruction for a portion of time in May and June of 2018, although the provision of the services was delayed by scheduling difficulties. She was hospitalized twice during that period. The first hospitalization was of a relatively short duration and there would have been no need provide instructional services during that time. The Student’s second hospitalization during that time period was at [REDACTED] . According the Parent, the Student was hospitalized at [REDACTED] for about ten days (Tr. 689). The District paid [REDACTED] staff to provide instruction to the Student while she was hospitalized at [REDACTED] . The Student began to reach home instruction in late May of 2018 (Tr. 684). The District provided two hours per day of home instruction from the time of the Student’s discharge from [REDACTED] through the end of the school year (Tr. 690).
It is clear from the testimony of the various witnesses at the hearing, and from my review of the audio recording of the May 7, 2018 CSE meeting, that the reason for the delay the Matter of [REDACTED] v. [REDACTED] City School District implementation of home instructions after the Student’s release from [REDACTED] in April of 2018 was due to scheduling issues of the Student and Parent. It also appears that, at least initially, the Parent refused home instruction services. During the course of the May 7, 2018 CSE meeting, one of the District members had stated that it was her understanding that home instruction had been approved to begin as of that day. In response to the inquiry about whether the home instructions were starting, the Parent replied “I’m not agreeing to anything until you guys agree to what I want, what’s good for her” (Parent Ex. B, audio-recording of May 7, 2018 CSE meeting, Part I). The District cannot be faulted for not providing services during a time in which the Parent was refusing to the send the Student to school and was also refusing to accept home instruction. The District had made prompt applications to IDT programs, and could not be held responsible for the time it took for the programs to make their determinations regarding the applications, or for the Student’s rejection by both programs. Although the Parent was correct in her assertion that it was not reasonable or appropriate to send the Student back to [REDACTED] at that time, the delay in the Student’s receipt of instructional services was not due to the District’s failure to take appropriate measures to seek an appropriate IDT placement or its failure to initiate an interim program of home instruction in a timely manner. Once the Parent agreed to the services (which was when it became clear that no IDT program was immediately available), the District began to provide the services promptly and continued to provide them through the end of the school year. As such, I decline to award any compensatory 1:1 tutoring for the period mid-April through June of 2018.
As such, the total compensatory award that I am awarding herein is one hundred and fiftyhours of 1:1 tutoring and eight sessions of compensatory counseling.
The remaining issue in this proceeding is the Parent’s request for a CSE reconvene and a new program and placement. The Parent seeks an order directing the CSE to reconvene and recommend an appropriate out-of-district therapeutic program, and for the purpose of adding a safety plan or anti-bullying plan to the Student’s IEP (IHO Ex. XI at 25-26). As of the filing date of the CSE had not yet made program or placement recommendations for the 2018-2019 school year. The Student’s existing IEP would not have been appropriate. The District had not been able to identify an IDT program that would accept the Student. Based on the Student’s needs, the lack Matter of [REDACTED] v. [REDACTED] City School District of an appropriate District program, and the lack of an appropriate IDT program, it appears that the only appropriate program for the Student is an out-of-district program. The CSE will therefore need to reconvene to develop an IEP for such a program. At this juncture, the CSE needs to obtain and consider new evaluations (the most recent evaluations appear to be from 2017, and the Student’s needs have changed markedly since that time). In addition, based on the Student’s current needs and functioning, the CSE will need to consider whether or not a safety plan or anti-bullying plan is a necessary component of the Student’s IEP.
I note that as of the final hearing date in this case, the Student was enrolled in and attending an out-of-district program at [REDACTED] . I make no findings herein as to whether or not the [REDACTED] program is an appropriate program for the Student.
ORDER
IT IS HEREBY ORDERED that District is directed to provide the Student with the following compensatory services by duly licensed providers chosen by the Parent: one hundred and fifty (150) hours of 1:1 tutoring and eight (8) sessions of 1:1 counseling; and it is further
ORDERED that the District is directed to reimburse the Parent for the cost of any reasonable transportation costs incurred in taking the Student to and from the aforementioned compensatory service sessions; and it is further
ORDERED that the District’s CSE is directed to perform a comprehensive reevaluation of the Student and to convene a CSE meeting to consider the results of those evaluations, to consider whether the Student’s IEP needs to have a safety plan or anti-bullying plan, and to recommend an appropriate out-of-district program for the Student; and it is further
ORDERED that the District is directed to place the Student in an appropriate outof-district program.
Dated: May 29, 2019
MINDY G. WOLMAN
Impartial Hearing Officer Matter of [REDACTED] v. [REDACTED] City School District
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 17, 2018
For the Parent
REDACTED
, Esq. Attorney
(By Telephone)
For the Department of Education
REDACTED
, Esq. Attorney
(By Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 12, 2018
For the Parent
REDACTED
, Esq. Attorney
A.E. Parent
For the Department of Education
REDACTED
, Esq. Attorney
REDACTED
Director of Student Services
REDACTED
* Assistant Director of Special Education
REDACTED
* School Psychologist
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 7, 2019
For the Parent
REDACTED
, Esq. Attorney
RED
ACT
. Parent For theED
Department of Education
REDACTED
, Esq. Attorney
Dr. REDACTED Director of Student Services
REDACTED
* Social Worker
REDACTED
* Principal
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 25, 2019
For the Parent
REDACTED
, Esq. Attorney
RED
ACT
.* Parent For theED
Department of Education
REDACTED
, Esq. Attorney
Dr. REDACTED Director of Student Services
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 6, 2019
For the Parent
REDACTED
, Esq. Attorney
RED
ACT
. Parent
REDACTED
ED * Social Worker
(By Telephone)
For the Department of Education
Matter of [REDACTED] v. [REDACTED] City School District
REDACTED
, Esq. Attorney
Dr. REDACTED Director of Student Services
* Testified at Hearing
DOCUMENTS SUBMITTED
District Exhibits
1. Due Process Complaint Notice, 7/19/18, 17 pp.
2. Response to Parent’s Demand for Due Process, 8/17/18, 8 pp.
3. Speech-Language Evaluation, 3/14/13, 7 pp.
4. 2015-2016 IEP, 1/28/15, 12 pp.
5. Psycho-educational Evaluation, 8/3/15-10/9/15, 19 pp.
6. 2016-2017 IEP, 3/31/16, 12 pp.
7. Abbott House Letter and Notification, 9/26/16, 3 pp.
8. Functional Behavioral Assessment, 11/11/16 5 pp.
9. Confidential Triennial Evaluation, 5/22/17, 4 pp.
10. Psychological Evaluation, 6/9/17, 15 pp.
REDACTED
11. Admission and Enrollment Documents, 8/21/17, 32 pp.
12. Interim Program Agreement and 2018-2019 IEP dated 6/9, 7/28, and 8/23/17, 16 pp.
13. CSE Transportation Request, 8/23/18, 4 pp.
14. 2017-2018 IEP, 10/3/17, 11 pp.
15. Social History Update, 10/6/17, 2 pp.
16. BIP Review/Modification, 11/30/17 and 12/7/17, 8 pp.
17. Annual Review Counseling/Behavior Progress Summary, 2/8/18, 2 pp.
18. Psychological Services Classroom Observation, 3/28/18, 3 pp.
19. Patient Aftercare and D/C Summary, 4/24/18, 12 pp.
20. Discharge Summary and Recommendations, 4/14/18, 11 pp.
21. 2017-2018 IEP, 5/7/18, 12 pp.
REDACTED
22. Middle School Report Card, 7/26/18, 1 pp.
23. 2018-2019 IEP, 8/24/18, 14 pp.
24. Social Worker Records, various dates, 73 pp.
25. Safety Pass, undated, 1 p.
26. Email from REDACTED , 4/16/18, 1 p.
Parent Exhibits
A. Daily Conduct Sheets and BIP data sheets, 2017-2018, 36 pp.
B. Audio-recordings of 5/7/18 and 8/24/18 CSE meetings and 4/16/18 voicemail, 1 USB
drive
C. Letter from REDACTED Health Clinic, 5/1/18, 1 p. Matter of [REDACTED] v. [REDACTED] City School District
Impartial Hearing Officer Exhibits
I. Due Process Complaint, 7/19/18, 17 pp.
II. Pre-Hearing Conference Summary, 10/17/18, 1 p.
III. Email re Status Conference, 11/14/18, 1 p.
IV. Motion to Dismiss, 11/27/18, 2 pp.
V. Letter Brief (Response to Motion to Dismiss), 11/30/18, 5 pp.
VI. Order Denying Motion to Dismiss, 12/4/18, 9 pp.
VII. Due Process Complaint (including Appendix), 2/6/19, 26 pp.
VIII. Order Denying Consolidation, 2/20/19, 6 pp.
IX. Emails from IHO re Compliance Date Extensions, 11/14/18, 12/12/18, 1/16/19, 3/5/19,
3/10/19, and 5/6/19, 6 pp.
X. Post Hearing Brief on Behalf of Respondent, 4/19/19, 31 pp. (including cover page)
XI. Parent’s Closing Brief, undated, 28 pp. (including cover page and table of contents)
NOTICE OF RIGHT TO APPEAL
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 a 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 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.
Footnotes
[2] Per the testimony at the hearing and the discussion during the May 7, 2018 CSE meeting (Parent Ex. B), it is clear that when the Student eloped she frequently moved too fast to be followed. The Student was not accepted at either of the IDT programs.