NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
UNIVERSITY OF THE STATE OF NEW YORK
THE STATE EDUCATION DEPARTMENT
In the matter of Student R ,
E
D
Petitioners,
A
C
-against- T
E
D
RED Union Free School District
ACT
ED
Respondent. x
FINDINGS OF FACT AND DECISION
Date of Birth: REDA
CTED
Hearing Requested By: Parent
Dates of Hearing: January 15, 2019
January 17, 2019
January 22, 2019
March 14, 2019
March 19, 2019
May 13, 2019
May 14, 2019
June 6, 2019
Record Close Date: September 25, 2019
Hearing Officer: Linda Agoston, Esq.
Linda Agoston
REDACTED
REDACTED
pg. 1
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 15, 2019
Attorney — Parents
Parents
Parents
Attorney — District
Director of Special Education — District
Dean of Students — District
Health Teacher — District
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 17, 2019
Attorney — Parents
Parents
Parents
Attorney — District
Director of Special Education — District
Secondary CSE Chairperson — District
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 22, 2019
Attorney — Parents
Parents
Parents
Attorney — District
Director of Special Education — District
r Special Education Teacher — District
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 14, 2019
Attorney — Parents
Parents
Parents
Attorney — District
Director of Special Education pg. 2 — District
Special Education Teacher — District
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 19, 2019
Attorney — Parents
Parents
Parents
Attorney — District
Director of Special Education — District
Special Education Teacher — District
NAMES AND TITLES OF PERSONS WHO APPEARED MAY 13, 2019
Attorney — Parents
Parents
Parents
Director of REDACTED REDACTED Autism and Communication Disorders — Parents
Attorney — District
Director of Special Education — District
NAMES AND TITLES OF PERSONS WHO APPEARED MAY 14, 2019
Attorney — Parents
Parents
Parents
Attorney — District
Director of Special Education — District
NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 6, 2019
Attorney — Parents
Parents
Parents
Attorney — District
Director of Special Education pg. 3 — District
On September 7, 2018, the parents of REDAC ] (hereinafter "student R ") filed a
TED E
request for an impartial hearing in accordance with Individuals with DDisabilities
A Education Improvement Act ("IDEIA"), 20 U.S.C. §1415, and Article CT89 of the Education Law of the State of New York, regarding the special education EDprogram of student R . Claims arising under Section 504 of the Rehabilitation Act of 1973 were also
E assertedD (Exh.1). I was appointed on September 7, 2019 to hear this matter (IHO Exh. I).
A HearingsCT were held on January 15, 2019, January 17, 2019, January 22, 2019, March 14,
E 2019, March
D
19, 2019, May 13, 2019, May 14, 2019 and June 6, 2019 at the REDACTED REDACTED School District (hereinafter "the District").
On September 7, 2018, the parents requested that student R receive a satisfactory
E passing grade on an amended transcript (Exh. II at 14) and withdrew
D that request as
A student received an in 2018 (Exh. 102;106; Tr. at 1712-1714).CT The parents requested
RE
DA
E and appropriate
CT individualized education program ("IEP") and withdrew
D that request as
ED student R graduated (Tr. 1712-1714).
E
The parents claim that student R was denied a free appropriate public education
D
A E
C
("FAPE")T
in the 2016-2017, 2016-2017D and 2018-2019 school years and that the
A
E CR
violations
D of the IDEIA entitled studentT to receive compensation for the following
E
ED
The District denies that it failedD to provide a FAPE in the 2016-2017, 2016-2017
A
C and 2018-2019 school years (Exh. III; Tr.
T
at 20-25).
E
The parties submitted their post-hearing
D
memoranda (closing statements and legal references) on September 12, 2019, and on September 19, 2019, submitted responses. The record close date was September 25, 2019, the date I received the responses.
The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than the consequences of any delay in the resolution of the matter. Accordingly, the requests for extensions of the compliance dates were granted. The current record close date is September 25, 2019 and the compliance date for issuing a decision is October 9, 2019.
Appended to the record are lists of persons in attendance and of documents submitted into evidence.
pg. 4
BACKGROUND
Student R , an, who completed at the District High School and received a Regents
E Diploma Tr. at 1675;
D Exh. 106).
A
On JulyCT 24, 2015 and August 14, 2015, a research evaluation was conducted by
E the REDACTED D College of Medicine by REDACTED , Ph.D., as part of a research project investigating multisensory instruction in children and adolescents with and the educational history indicated that student R (Exh. 80 at 2). The educational history
E indicated that student R (Id.). Dr. REDA stated
D that student's (Exh. 80 at 3). His (Exh. 80
E CTED A
at 4). Dr. REDA reported
D his current levels CTThe results of the (Exh. 80 at 6). Dr. REDA
CTED A CTED
C E noted that student R (Exh.
T
80 at 7). Dr. REDA
D
noted that student R . Dr. REDA used the.
E CTED E CTED
D ER 's was (Exh. 80 at 10). Dr. REDA concluded She noted that student D that (Exh. 80 at 11).
A D A
E CTED
C C Dr. REDA reportedT that while (Id.) She recommended transitions
D
T
skills training "to
CTED A
E function independently
D
C
T
in and out of the community" (Exh. 80 atED12). Dr. REDA further
CTED
recommended (Exh. 80EDat 13).
The transcript for the 2015-2016 (Exh. 8).
On June 21, 2016, at the ("IEP") for the (Exh.[1] at 6).
The IEP required that student R " (Exh.[1] at 4). Student R was to receive testing
E E accommodations of extended time (2.0)
D due to attention and processing
D issues and an
A A
C C alternate location for test so that the tests
T
start in the classroom and
T
if necessary "may be
E E completed in an alternative setting" (Exh.
D
On March 22, 2017, (Exh. OO at 1).
On April 25, 2017, the parent e-mailed
On May 8, 2017, the CSE developed an IEP that (Exh. 2 at 7).
The May 8, 2017 IEP's special alerts section (Id.).
The IEP's comments section indicated that the (Id.).
The academic achievement section (Id.). The writing comments (Id.). Student RE s
D " (Id.). The writing comments recommended that (Id.). The mathematics comments A
CT
ED
The study skills section indicated that student RE (Exh. 2 at 4). The (Id.).
DA
The development and functional needs of student
CT X "(Id.).
ED
The social development section of the IEP indicated that student (Id.).
The managements need mandated (Exh. 2 at 5). The needs in the general environment section indicated that student R had " (Id.). The measurable post-secondary
E goals indicated that Student R was D
E A
D indicated that Cstudent (Id.).
The transitional needs
A T
C
The testing accommodations
T
(Exh. 2ED at 7). The coordinated set of transition (Exh. 2 at 8). The IEP contained ED4 (Exh. 2 at 6). The writing goal (Id.). The IEP contained a social / emotional goal that student (Id).
conducted on student R by REDACTED , Pediatric and Adult Neuropsychologist
E dated September 18, 2017, when
D he was entering (Exh. 35). Dr. REDA used (Exh. 35 at 7).
A CTED
C She reported significant discrepancies
T
between the WAIS index scores from very
E superior visuo-perceptual reasoning
D skills to high average linguistic skills to average working memory and processing speed (Exh. 35 at 9). She used the Wide Range Assessment of Memory and Learning-2 test and (Exh. 35 at 12). She used The Trail Making Test (Exh. 35 at 10).
Dr. REDA used the Beery Buktenica Development Test of Visual Motor
CTED
Integration and indicated (Exh. 35 at 11). Dr. REDA used to assess student X's Exh. 35 at
CTED
16). The parents (Id.). The (Exh. 35 at 13).
Dr. REDA reported the prior diagnosis (Exh. 35 at 17). She diagnosed student R
CTED E
(Exh. 35 at 19) She diagnosed (Exh. 35 at 20) (Exh. 35 at 20). She lastly found that
D
A
C student R exhibited problems (Exh. 35 at 21). T
E
E
The
D transcript for the 2016-2017 school year D
A
C
On
T
September 27, 2017, the parent attached with the neuropsychological
E
D
pg. 6 evaluation (Exh. 28) by email to the secondary Chairperson (2nd Chair) of the CSE.
On September 29, 2017, the notes, IEP meeting indicated that the parents, REDA
CTED
REDACTE , the Psychologist, and the 2nd Chair participated (Exh. 29). The notes further D indicated that (Exh. 29 at 2) and requested that student R receive more time with the LRC
E and his teachers (Exh. 29 at 1). The notes indicated f D (Id.).
A
On September 29, 2017, the CSE developedCT another IEP (Exh. 3 at 1). The
E coordinated set of transition activities (Exh. 3 at 9). TheD IEP indicated that the purpose of (Exh. 3 at 1). The IEP (Exh. 3 at 4). The IEP added an (Exh. 3 at 5). The IEP repeated the May 7, 2018 IEP measurable post-secondary goals, education, employment, independent living skills and transition needs (Exh. 3 at 6).
The IEP study skills goals (Exh. 3 at 7). The IEP (Id.). The IEP again mandated preferential seating in view of the teacher and refocusing and redirection if required to attend to classroom activities (Exh. 3 at 8) and again mandated (Exh. 3 at 9). The IEP included a coordinated set of transitional activities (Exh. 3 at 10). The community experiences (Id.). The development of employment gave (Id.).
On October 1, 2017, the parent (Exh. 30 at 3).
On October 2, 2017, the parent (Exh. 30 at 2).
On October 2, 2017, the (Exh. 30 at 3).
On October 4, 2017, the 2nd Chair e-mailed the parent to discuss her concerns and to explain that the study skills goal focused on EF including time management, breaking down tasks to smaller components, use of daily planner and self-advocacy as recommended in the neuropsychological evaluation (Exh. 30 at 4). She encouraged the parent to contact Dr. REDACT to discuss the EF group, ("EFG") an "intensive 8-week
ED intervention designed to support student with EF concerns similar to [student R ]" (Exh.
E 30 at 4). She reminded the parent that the team included a plan to monitor student
D RE s
A D
C progress and that the teachers use Google classroom and that she could utilize it
T
to A
make
CT
E ED
sure that student R completed his assignments and that it could serve "to increase
D his
E independence as Dwell as home/school communication" and indicated that the LRC
A teacher requested CTto be "cc" on the student X's emails to his teachers as a strategy to
E progress towards his
D
goal (Id.).
On October 10, 2017, the parent (Exh. 31 at 4).
On October 13, 2017, (Exh. 31 at 6).
pg. 7
On November 6, 2017, the (Exh. 32 at 4).
On November 7, 2017, the CSE developed another IEP for the 2017-2018 school year and was (Id.).
The IEP (Id.).
(Exh. 4 at10).
The IEP (Exh. 4 at 9).
On November 14, 2017, (Exh. 14).
On November 21, 2017, (Exh. KK at 1).
On December 1, 2017, .33 at 1).
On December 17, 2017,
On December 19, 2017, (Exh. JJ at 4).
On December 21, 2017, the (Exh. JJ at 1).
On December 21, 2017, the (Exhs. 34 at 1-2; JJ at 2-3).
On January 12, 2018 (Exh. A).
On January 16, 2018,
On January 22, 2018, (Exh. 35).
On January 22, 2018, (Exh. 5 at 5).
The IEP (Exh. 5 at 8).
The (Id.).
On January 24, 2018, the (Exh. 36 at 7).
On January 25, 2018, the (Exh. 36 at 4).
On January 29, 2018, (Exh. 38 at 10-12).
On January 29, 2018, (Exh. 37 at 2).
On January 30, 2018, (Exh. 37 at 1).
On January 31, 2018, (Exh. 38 at 2).
On February 1, 2018, (Exh. 38 at 1).
On February 1, 2018, (Exh. 38 at 2).
On February 2, 2018, (Exh. 17 at 3).
On February 2, 2018 (Exh. 39 at 1).
On February 4, 2018 (Exh. 39 at 9-10).
On February 5, 2018 (Exh. 40 at 1).
pg. 8
On February 6, 2018, (Exh. 41 at 4).
On February 10, 2018, the (Exh. 42).
On February 11, 2018, (Exh. 43 at 1).
On February 12, 2018, (Exh. 44 at 1).
On March 1, 2018, (Exh. at 45 at 2).
On March 2, 2018, (Exh. B).
On March 5 to 13, 2018 (Exh. Y at 2).
On March 5 to 12, 2018, (Exh. BB at 2).
On March 5, to 15, 2018, (Exh. CC at 2).
On March 13, 2018, (Exh. 46).
On March 15, 2018, (Exh. 47 at 2).
On March 23, 2018, (Exh. 50 at 2)
On March 28, 2018, (Exh. 53).
On April 11, 2018, (Exh. 48).
On April 13, 2018, the (Exh. 18).
On April 14, 2018, REDACTED , School Psychologist, Psy.D., a NYS licensed Clinical and School Psychologist, (Exh. 77).
On April 17, 2018, (Exh. 51 at 1).
On April 27, 2018 (Exh. 49 at 1).
On April 27, 2018, (Id.).
On May 10, 2018, (Exh. EE at 1).
On May 30, 2018, the CSE developed an IEP (Exh. 6 at10).
The (Id.).
(Exh. 6 at 8).
(Exh. 11).
The Classroom Summary for 11th grade (Exh. 69).
On June 18, 2018, the (Exh. 19).
On July 19, 2018, (Exh. 54).
On August 1, 2018, the CSE notes indicated (Exh. 55).
On August 1, 2018 the CSE developed another IEP for the 2018-2019 school year (Exh. 7 at 2).
The August 1, 2018 IEP
pg. 9
(Exh.7 at 10). (Id.).
The IEP reported (Exh 7 at 9).
The 2018-2019 report card
On August 22, 2018 (Exh. 56 at 3).
On August 31, 2018, (Exh. 56 at 3).
On October 27, 2018, (Exh. 56).
On October 30, 2018, (Exh. 57).
On November 9, 2018, (Exh. 15).
The 2018-2019 report card (Exh. 106).
POSITIONS OF THE PARTIES
The parents claimed that student R was denied a FAPE in the 2016-2017, 2017-
E 2018 and 2018-2019 school years. The Dparents also claimed that the District violated
A Section 504 of the Rehabilitation Act ofCT1973 (Exh II at 1). The parents claim that the
E IEPs (Exh. II at 9). The parents, D
The District denied that it failed to provide a FAPE in the school years claimed and denies violation of Section 504 (Exh. III) and asserted that the affirmative defense of the Statute of Limitations ("SOL") to time bar the claim for the 2016-2017 school year.
THE DISTRICT’S CASE
The District's case was presented in the testimony, Dean of Students, , 2nd Chair, , LRC Teacher, Social Studies Teacher, , Director of Student Services.
Dean of Students, a holder of multiple licenses and certifications in NYS as school counselor, administrator and employed by the District for 4 years, testified that students needed 22 credits to graduate with a Regents diploma and needed to pass 5 Regents (Tr. at 30). She reviewed student R 's transcript (Exh. 8) and stated that student R
E E (Tr. at 1677). D D
A A
C C
T T
On cross the Dean stressed that her
E role with student
R was to transition him out
E
E
D D of high school (Tr. at 56). (Tr. at 78). D
A
C
T
E
D pg. 10
employed in the District as 2nd chair since September 2017 and worked in the field of education in various districts in NY in the Middle School and High School (Tr. at 183). She recalled that she participated in the September 29, 2017 IEP meeting (Exh. 3) as chair and that the purpose of the meeting was to review the independent Neuropsychological evaluation from Dr. REDA (Exh. 28 at 8)
CTED
She recalled that she reviewed the final version of the neuropsychological evaluation (Exh. 35)
Regarding Dr. REDA 's report's recommendation regarding time management (Exh.
CTED
35 at 21), the 2nd chair opined.
, the LRC teacher, a holder of 2 professional licenses as a generalist 5 to 9 with a special education endorsement and as a special education teacher for social studies grades 9-12, employed by the District for 11 years testified
Social Studies teacher, a holder of a NYS teaching license and a NYS administrator's license to teach social studies grades 7-12, employed by the District for 23 years testified that he was the chair of the social studies department for 12 years (Tr. at 980).
Director of Special Education and Student Services, a holder of a NYS special education license to teacher for grades K through 12, and a NYS license to teach social studies grades 7-12 and a school district administrator's license, testified that he taught social studies grades 9-12 for 7 years and was in his current position for 5 years (Tr. at 1007). He explained that his job responsibilities included overseeing the programs, the special education, school nurses, guidance counselors, psychologists and related service providers (Id
THE PARENTS' CASE
The parent, Dr. REDA and Dr. REDA , testified in support of the parents' claim for.
CTED CTED
REDACTED , Ph.D., a
The parent described
REDACTED , a holder of a Ph.D. in clinical neuropsychology and licensed in NY and CT and a certified neuropsychology, health psychology and clinical psychology and pg. 11 affiliated with Mount Sinai and Stanford Hospital and in private practice for 15 years (Tr. at 1400-1403). She stated that her practice was primarily focused on evaluating
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student, but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]). (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances…." and "a student offered an educational program providing 'merely more than de minimis progress' from year to year can hardly be said to have been offered an education at all" (Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 [March 22, 2017]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
A FAPE includes special education and related services designed to meet the pg. 12 student's unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. 34 C.F.R. § 300.320(a)(1), (a)(4); 8 NYCRR 200.4(d)(2)(i), (iii), (v). The District must establish that it appropriately ascertained the child’s educational needs and prepared an IEP in accordance with the procedural and substantive requirements of federal and New York State Regulations.
To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The Second Circuit further observed that the IDEA is not intended to "secure the best education money can buy" or "guarantee any particular level of education"(Walczakv. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted).
In Application of the New York City Dept. of Educ., Appeal No.12-087, the SRO held that an "appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performancesee34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i];Tarlowe v. Dep't of pg. 13 Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "'results of the initial evaluation or most recent evaluation'" of the student, as well as the "'academic, developmental, and functional needs'" of the student], 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 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9)." The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education N.Y. Educ. Law §4404[1][c].
The Parents asserted that the 2016-2017 IEP, the 2017-2018 IEPs and the 20172019 IEP were procedurally and substantively defective (Exh. II at 9-12).
The District asserted that the claims for reimbursement and compensatory relief requested for the parents' claims were time barred by the applicable SOL (Exh. III at 2), and that only the 2017-2018 and 2018-2019 school year claims were clearly covered in this action as falling within the 2-year SOL as set forth in the IDEA under 20 U.S.C.§1415(f)(3)(c). The District argued that the "IDEA claim accrues on the date that a plaintiff or his parent ‘knew or should have known about the alleged action that forms the basis of the complaint. Somoza v. New York City Dep't of Educ. 538 F.3d 106, 114 (2d Cir. 2008), quoting 20 U.S.C. § 1415(b)(6)(B)"(Exh. XXIII at 28). The District asserted that pursuant to the applicable SOL consideration of claims and relief for the period prior to the 2017-2018 and the 2018-2019 school year was time bared as he raised the affirmative defense in his answer (Exh. III at 2; Tr. at 1683).
The parents' attorney
Accordingly, I find that that 2-year SOL does not bar a find that a deprivation of FAPE occurred over the course of 3 years and I find the parent is entitled to use of the requested services for 3 years if I find that no FAPE existed years for 3 years.
pg. 14
Under the IDEA, if a procedural violation is 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ. 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; 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]); Bd. of Educ. v. Schaefer, 923 N.Y.S.2d 579, 56 IDELR ¶ 234 (App. Div. 2011.)
The parents asserted that: "'To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.' Endrew F., 137 S. Ct. at 999. To comply with this standard, an IEP 'must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential and individual abilities.' Ridley Sch. Dist. v. M.R., 680 F.3d 260, 269 (3d Cir. 2012) (internal citations omitted). To that end, each IEP must be 'constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth.' Endrew F., 137 S.Ct. at 999 (quoting 20 U.S.C. §§1414(d)(1)(A)(i)(I)-(IV), (d)(3)(A)(i)- (iv))"(Exh. XXII at 29-30).
I find that there was no dispute that the parents were not provided with as the District acknowledged same (Exh. XXIII at 28). However, I find that the parents' attorney did not assert the claim of late receipt for any other reason than in the post-hearing brief except to toll the SOL. Claims concerning the sufficiency of the evaluations and failure to consider recent data
The parents asserted that the IEP was not
The parents' attorney argued that the District conduct sufficient evaluation of its own and did not consider Dr. REDA and Dr. REDACT s 2017 neuropsychological evaluation
CTED ED
the parents obtain in September 2017 (Exh. XXII at 29-30). I find this claim does not apply Claims concerning inappropriate or insufficient annual goals and lack of progress
I find that testimony adduced at the hearing established that the LRC teacher who was responsible for some of the goals on the 2016-2017 IEP such as to utilize a pg. 15 The District argued " (Exh. XXIII at 49).
I credit the testimony of the (Tr. at 461).
However, I find that the goals were essentially repeated in every IEP with minor changes in the 2017-2018 school year (Exhs. 2 at 6;3 at 7; 4 at 8; 5 at 8; 6 at 7). I find these goals were repeated in every IEP in the 2018-2019 school year (Exhs. 6 at 7; 7 at 9). I find that there was inconsistent testimony to regarding the charting of progress of the goals each IEP in the 2017-2018 and 2018-2019 schools indicated a lack of progress.
2017-2018 Procedural claim concerning failure to perform sufficient evaluations
I find that the CSE relied on sufficient current evaluative data, including information from multiple documentary sources from student R 's teachers, including the
E LRC special education teacher and general education teacher,
D psychologist and the
A
C parents when it developed the T
I find that the CSE considered sufficient evaluations to EDdevelop the IEP. Procedural claim concerning inappropriate or insufficient goals and lack of progress
The parents asserted that student R did not progress
E
I find that the IEPs in the 2017-2018
D school year lacked the criteria to measure
A progress. I further find that that annualCT goals should not require more than one school
E year to accomplish. 34 CFR 300.320(a)(2)(i).
D I find that the lack of measurable goals and the lack of progress resulted in deficient IEPs for the 2017-2018 school year. Procedural claim regarding failure to include research-based service
I find that 34 CFR 300.320(a)(4) requires that a student's services being based on peer-review research to the extent practicable. I find that the parents failed to establish that the District did not consider peer-reviewed research to determine the appropriate amount of services.
However, I find the IEPs in the 2017-2018 goals were repeated in every IEP in the 2017-2018 and the 2018-2019 school year (Exhs. 6 at 7; 7 at 9). I find the fact that the goals were repeated across multiple IEPs was a sign of a lack of progress. I find that the IEPs in the 2017-2018 school year lacked the criteria to measure progress.
I find that the parent Claim regarding the deprivation of meaningful participation for the parents
I find that the parents presented no testimony or evidence to establish that any pg. 16 procedural inadequacy or that they were impeded in their participation of in the decisionmaking process in
I find these goals were repeated in every IEP in the 2017-2018 and the 2018-2019 school year (Exhs. 6 at 7; 7 at 9). I find the fact that the goals were repeated across multiple IEPs was a sign of a lack of progress. I find that the IEPs in the 2017-2018 school year lacked sufficient criteria to measure progress. 2018-2019 Procedural claim concerning inappropriate or insufficient goals and lack of progress August 1, 2018 IEP Procedural claim concerning failure to perform sufficient evaluations and did not consider the most recent evaluative data
Because I find that there was no PCAT for the 2016-2017, 2017-2018 and 20182019 school years and because I find that the goals to meet with teachers and use a planner were repeated each year and progress towards the goals was inconsistent there was a deprivation of a FAPE for the 2016-2017, 2017-2018 and 2018-2019 school years.
I find the lack of PCAT and the repeated goals and lack of measurable progress towards the goals for 3 years was, aggregated, a gross violation.
Accordingly, I further find that the parents established there was a gross violation of the IDEA for a substantial period of time for the 2016-2017, 2017-2018, and 20182019 school years. Compensatory Education
It is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir. 2008) Further, "[i]f the student has become ineligible for special education by reason of age or graduation, compensatory education 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 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]).'Appeal No. 11-027"…[C]ompensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997])."Appeal No. 11-027.
pg. 17
I now must consider if the requests for reimbursement and compensatory services is reasonable. In Application of the New York City Dept. of Educ., Appeal No. 01-094, the SRO "denied petitioners' request for reimbursement for the cost of the their son's tutoring as ... they failed to adduce adequate evidence of the necessary for or appropriateness of such service Parent Counseling and Training ("PCAT")
Based on my foregoing findings I find that the parents established that they were entitled to 1 hour per month of PCAT for 3 years (totaling 36 hours) at a rate not to exceed $200 per hour.
ORDER
I find there was there was failure to provide FAPE for the 2016-2017, 2017-2018 and 2018-2019 school years. The parents' request for compensatory CBT, SLT, social skills training and EF coaching is denied. The parents' request for any reimbursement is denied. The District is ordered to provide mandatory PCAT for 1 hour per month for 36 months at the rate not to exceed $200 per hour.
Dated: October 7, 2019
_____________________________
LINDA AGOSTON, ESQ.
Impartial Hearing Officer
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 15, 2019
1 IEP, 6/21/16, 9 pp District
2 IEP, 5/8/17, 11pp. District
3 IEP, 9/29/17, 11pp. District
4 IEP, 11/6/19, 11 pp. District
5 IEP, 1/22/18, 11 pp. District
6 IEP, 5/30/18, 12 pp. District
7 IEP, 8/1/18, 13 pp. District
8 High School Transcript, undated 1 p. District
9 Test Score Details, 9/7/18, 1 p. District
10 Report Card 2016-2017, Grade 10 (Quarter 4), 2 pp. District
11 Report Card 2017-2018, Grade 11, (Quarter 4), 2 pp. District
12 Report Card 2018-2019 Grade 12 (Quarter 1), lp.
13 E-Mail Thread from 9/5/17, 1 p. District
14 E-Mail, 11/14/17, 3 pp. District
15 E-Mail, 11/9/18, 3 pp. District
pg. 18
16 E-Mail Thread, 1/31/18, 2 pp. District
17 E-Mail Thread Parent, 2/5/18, 4 pp. District
18 E-Mail from, 4/13/18, 1 p. District
19 E-Mail Thread 6/6/18, 1 p. District
20 Student Schedule 2016-2017, Grade 10, 3 pp. District
21 Student Schedule 2017-2018, Grade 11, 2 pp. District
22 Student Schedule 2018-2019, Grade 12, 3 pp. District
23 Student Daily Attendance Detail Grade 10, 1 p. District
24 Student Daily Attendance Detail, Grade11, 1 p. District
25 Student Daily Attendance Detail, Grade 12, 1 p. District
26 Student's, 12/21/18, 1 p. District
27 Student's, undated 1 p. District
28 E-Mail w/ Evaluation,
9/27/19, 29 pp. District
29 Notes from CSE meeting 2 pp. District
30 E-Mail Thread w/ Letter,
10/4/17, 5 pp. District
31 E-Mail Thread
with attached letter, 10/13/17, 6 pp. District
32 Notes from CSE Meeting 11/22/17, 5 pp. District
33 E-Mail Thread from, 12/5/17, 2 pp. District
34 E-Mail Thread from, 12/21/17, 5 pp District
35 E-Mail Thread from w/ attached
Evaluation, 1/22/18, 24 pp. District
36 E-mail from Assessments,
1/25/18. 8 pp. District
37 E-mail thread, 1/30/18, 4 pp. District
38 E-mail thread with attached
Assessments, 2/1/18, 12 pp. District
39 E-mail thread with attached
Parent Interview, 2/4/18, 12pp. District
40 E-mail from, 2/5/18, 11 pp. District
41 Notes 2/6/18, 15 pp. District
42 E-mail
2/10/18, 2 pp. District
43 E-mail thread Discussion
Topics, 2/11/18, 3 pp. District
44 E-mail thread, 2/12/18, 5 pp. District
45 E-mail from,
3/1/18, 3 pp. District
46 E-mail from, 3/13/18, 1 p. District
47 E-mail thread,
3/16/18, 2 pp. District
48 E-mail, 4/11/18, 1 p. District
49 E-mail thread, 4/27/18, 4 pp. District
50 E-mail Request, 3/23/18, 2 pp. District
51 E-mail from Prior Written Notice, 4/17/18, 4 pp. District pg. 19
52 E-mail from, 4/17/18, 1 p. District
53 Prior Written Notice, 3/28/18, 3 pp. District
54 E-mail,
7/19/18, 1 p. District
55 Notes from CSE Meeting 8/1/18, 2 p. District
56 E-mail thread, 10/27/18, 4 pp. District
57 E-mail from 10/30/18, 1 p. District
58 E-mail, 11/8/18, 2 pp. District
59 E-mail, 11/9/18, 4 pp. District
60 E-mail 1/21/18, 8 pp. District
61 E-mail
11/21/18, 8 pp. District
62 E-mail , 70 pp. District
63 E-mail 12/20/18, 9 pp. District
64 E-mail , 2/8/17, 1 p. District
65 E-mail , 4/26/17, 4 pp. District
66 E-mail , 3/28/17, 1 p. District
67 E-mail 4/28/17, 8 pp. District
68 Educational Evaluation District
69 Triennial Educational Evaluation 1p. District
70 Progress Report for IEP Goals 2016-2017, 2pp. District
71 Progress Report for IEP Goals 2017-2018, 2pp. District
72 Progress Report for IEP Goals 2018-2019, 3pp. District
73 . (ID only) District
74 . (ID only) District
75 . (ID only) District
76 Student Goals, September 2017-May 2018, 20 pp. District
77 E-mail, 4/14/18, 2 pp. District
78 6/22/18, 13 pp. District
79 Case Notes, October 2017-January 2018, 34 pp. District
80 Research Evaluation by Albert Einstein College of Medicine,
8/14/15, 17 pp. District
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 17, 2019
81 7/24 and 8/14/15, 18 pp. District
82A . (ID Only) District
83 . (ID Only) District
84 6, 2pp. (ID only) District
85 , 11/16, 4pp. (ID) District
86 - 1/17, 3pp. (ID) District
87 , 1/17, 2pp. (ID only) District
88 , 1/17, 4pp. (ID) District
89 2/17, 2pp. (ID only) District
90 , 3/17, 3pp. (ID only) District
91 , 5/17, 6pp. (ID only) District
92 , 5/17, 3pp. (ID) District
pg. 20
93 . (ID only) District
94 Communication Summary and Emails, 30 pp. District
95 Email thread from , 3/1/17, 1 p. District
96 Email thread from , 3/9/17, 1 p. District
97 Email thread from , 3/16/17,1 p. District
98 Email thread , 4/25/17, 2 pp. District
99 Email thread , 5/1/17, 1 p. District
100 Student Schedule - Notes, 2018-2019, 1 p. District
I Appointment Letter, 9/7/18, 1 p. IHO
II Demand for Due Process, 9/7/18, 15 pp. IHO
III Response to the Demand for Due Process, 9/17/18, 5 pp. IHO
IV Decision on Extension, 10/23/18, 1 p. IHO
V Decision on Extension, 12/20/18, 1 p. IHO
VI Decision on Extension, 1/17/19, 1 p. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 22, 2019
73 , 9/16-8/17, 11 pp. District
74 , 9/17-8/18, 21 pp. District
75 , 9/17-12/17, 30 pp. District
82 , 2016-2017, 5 pp. District
83 ,11/16, 2pp. District
84 , 11/16, 2pp. District
85 , 11/16, 4pp. District
86 , 1/17, 3pp. District
87 , 1/17, 2pp. District
88 t, 1/17, 4pp. District
89 2/17, 2pp. District
90 3/17, 3pp. District
91 , 5/17, 6pp. District
92 , 5/17, 3pp. District
VII Supoena Duces Tecum, 1/22/19, 2 pp. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 14, 2019
VIII Decision on Extension, 2/11/19, 1 p. IHO
IX Decision on Extension, 3/14/19, 1 p. IHO
101 Student Goals (2018-2019), 28 pp. District
102 SY 2018-2019 Grade (Q2), l p. District
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 19, 2019
93 2017-2018, 10 pp. District
103 Letter , 5/18/17, 2 pp. District
104 Progress Report for IEP Goals 2018-2019, 3pp. District
X Supoena Duces Tecum , 3/8/19, 2 pp. IHO
XI Supoena Duces Tecum , 3/9/19, 2 pp. IHO
pg. 21
XII Supoena Duces Tecum to Sejal K. Vyas, Ph.D., 3/8/19, 2 pp. IHO
XIII Supoena Duces Tecum to Michelle Dunn, Ph.D., 3/82/19, 2 pp. IHO
XIV Supoena Duces Tecum , 3/19/19, 2 pp. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 13, 2019
A E-mails to/from, 1/12/18-1/16/18, 1 p. Parents
B E-mails to/from 3/1/18 -3/2/18, 1 p. Parents
C CV of REDACTED , Ph.D., various dates, 7 pp. Parents
D E-mail from , 2/11/19, 1 p. Parents
E Assessment, 3/14/19, 11 pp. Parents
F REDACTE Research Evaluation, 8/14/15, 17 pp. Parents
D
G REDACTED Research Evaluation, 6/26/13, 11 pp. Parents
H CV OF , BCBA, various dates, 9 pp. Parents
I REDACTED Summary of Research, 10/16/07, 9 pp. Parents
J High School Student Handbook, 2017/2018, 43 pp. Parents
K Invoices, , 11/27, 1/31/19, 2 pp. Parents
L Invoices, , 2/4/19-2/28/19, 2 pp. Parents
M Invoices, REDACTED Ph.D., 10/18-3/3/19, 2 pp. Parents
N Invoice, , 2/19, 1 p. Parents
O Invoice, , 3/19, 1 p. Parents
P Invoice , 3/19, 2 pp. Parents
Q Invoice, 4/19, 1 p. Parents
R Invoice,, 3/18-5/18, 2pp. Parents
S Invoices, 4/18-12/18, 9 pp. Parents
T Invoices, 1/19, 1 p. Parents
U Invoices REDACTED , Ph.D., 9/18-1/19, 3 pp. Parents
V 3/16/19, 21 pp. Parents
W E-mails To All Parents, 3/6/18, 1 p. Parents
X E-mails , 3/12/18, 2 pp. Parents
Y E-mails , 3/12/18-3/14/18. 2 pp. Parents
Z E-mails , 3/12/18, 2 pp. Parents
AA E-mail To All Parents, 3/8/18, 1 p. Parents
BB E-mails, 3/5/18, 3 pp. Parents
CC E-mails, 3/5/18, 3 pp. Parents
DD E-mail to all Parents, 3/20/18, 1 p. Parents
EE E-mail l, 5/10/18, 1 p. Parents
FF E-mail , 10/11/17, 1 p. Parents
GG E-mail to all Parents, 1/3/18, 1 p. Parents
HH E-mail from Public School to all Parents, 5/30/ 18,1 p. Parents
II 2018-2019 CSE Recordings (ID only) Parents
JJ E-mail , 12/17/17-12/21/17, 7 pp. Parents
XVII Decision on Extension, 5/13/19, 1 p. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 6, 2019
pg. 22
F withdrawn (duplicate of Exh. 80) Parents
W withdrawn Parents
II withdrawn Parents
KK E-mails, 11/22/16, 1 p. Parents
LL E-mails,11/23/16, 2 pp. Parents
MM E-mails to/from Parent/District Staff, 3/2/17-3/13/17, 7 pp. Parents
NN E-mails to/from Parents
OO E-mails to/from , 3/13/17-3/23/17, 4 pp. Parents
PP E-mails to/from , 5/31/17, 1p. Parents
QQ E-mails to/from , 4/26/17, 1 p. Parents
RR E-mails to/from Public Schools/Parent, 3/6/18, 1 p. Parents
105 E-mails, various, 45 pp. (noted 44 pp. in error on the transcript) District
106 2018-2019 Student Report Card, 1 p. District
XVIII Decision on Extension, 6/6/19, 1 p IHO
POST HEARING SUBMISSIONS
SS E-mail from , 9/6/16, 3 pp. Parents
TT E-mail from , 9/7/16, 1 p. Parents
XIX Decision on Extension, 7/3/19, 1 p. IHO
XX Decision on Extension, 8/7/19, 1 p. IHO
XXI Decision on Extension, 9/12/119, 1p. IHO
XXII Parents' brief, 9/12/19, 50 pp. IHO
XXIII District's brief, 9/12/19, 54 pp. IHO
XXIV Parents' reply, 9/19/19, 4 pp. IHO
XXV District's reply, 9/19/19, 4 pp. IHO
pg. 23
Footnotes
[1] at 7). The coordinated D set of transition (Exh.
[1] at 8). The transition (Exh. 1 at 5-6). The IEP contained (Exh. 1 at 6). The IEP contained a (Id.). The IEP did not consider student (Id). On November 1, 2016, the parent e-mailed the (Exh. LL at 2). On November 23, 2016, the (LL at 1). On February 2, 2017, the teacher found that his written skills on a timed subtest (Exh. 68 at 6). The LRC teacher further noted that student (Id.) On March 2, 2017, the (Exh. MM at 7). On March 8, 2017, the Health Teacher (Exh. MM at 5). On March 10, 2017, the (Exh. MM at 3). On March 13, 2017, the parent e-mailed (Exh. MM at 1). On March 13, 2017, the parent e-mailed the English teacher to confirm the assignments her son was missing (Exh. NN at 1). pg. 5