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FINDINGS OF FACT & DECISION
Case Number: 182414
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 1, 2019
Actual Record Close Date: June 18, 2020
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 1, 2019
For the Student:
ESQ., Attorney
parent
speech/Language Pathologist (via telephone)
For the Department of Education:
District Representative (CSE)
CPSE Representative (via telephone)
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 attorney for the student and the parent in a due process complaint notice dated April 8, 2019. 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 (“FAPE”) for the 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 (“IEP”), 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 8§ 200.5(h)-(1).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ as “Ex.” 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”’) typically conducts a trialtype 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), (xil).
The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5q)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).. The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1).
A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
Il. PROCEDURAL HISTORY
The DOE appointed the undersigned to serve as the [HO in this matter on April 9, 2019.
See 8 NYCRR § 200.5(G)(3)@). In an Interim Order on Pendency dated May 5, 2019, the undersigned directed the DOE to authorize the student’s receipt of individual speech and language and occupational therapies from providers of the parent’s choosing at a rate not to exceed $150 per hour (Ex. IHO-II at 7-8). See 20 U.S.C. § 1415(); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). A hearing on the merits of the matter was held on August 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(j)(5)(V).
Hil. FACTUAL BACKGROUND
At the time of the April 8, 2019 due process complaint, the student was ( ) years old and has been diagnosed with muscle myopathy which causes significant muscle weaknesses affecting her breathing, swallowing, and motor activities. The student is also tracheostomy and gastronomy dependent (Ex. P-A at 1-2). The student began the 2018/19 school year in an early childhood program selected by her parent (Ex. P-B at 1). The student's eligibility for special education and related services during the 2017/18 and 2018/19 school years as a preschool student with a disability is not in dispute in this hearing (Exs. P-A, P-B at 1, SD-1 at 1). See
8 NYCRR § 200.1(mm).[3]
The student received speech therapy, occupational therapy and physical therapy through early intervention during the 2016/17 school year (Exs. SD-2 at 2, SD-3 at 1, SD-4 at 1, SD-5 at 1). The student participated in an initial evaluation to determine eligibility for preschool special
C.F.R. § 300.515(c); 8 NYCRR § 200.5G)(5).
education services in February 2017. As part of a psychological evaluation, the student’s cognitive abilities were assessed using the Stanford-Binet Intelligence Scales for Early Childhood
— Fifth Edition (“Early SB-5”’). The student’s Full Scale IQ of 54 was classified in the Deficient range of intelligence, with Deficient verbal (Verbal IQ = 56) and nonverbal abilities (Nonverbal
IQ = 56). On the Vineland Adaptive Behavior Scales — III, the student’s overall adaptive functioning (or personal and social sufficiency) was within the Low level. She scored in the Low range in receptive and expressive language areas, the daily living area, the socialization area, and fine and gross motor areas (Ex. SD-3 at 3-6).
During a February 16, 2017 speech and language evaluation, an assessment was attempted through use of subtests of the Preschool Language — Fifth Edition (“PLS-5”’), but formal testing was not completed. From informal clinical opinion, parental repot, and information from the New York State Department of Health, the evaluator concluded that the student presented with overall delays in expressive and receptive language skills indicative of a mixed receptive/expressive language disorder (Ex. SD-4 at 5).
The student also participated in occupational and physical therapy evaluations in February 2017. During an administration of the Peabody Developmental Motor Scales — 2 (“PDMS-2”), the student achieved a fine motor quotient score of 58, which was indicative of a significant fine motor delay (Ex. SD-5 at 3-4). Similarly, the student earned a gross motor quotient score of 45, indicating that she was completely dependent for all activities and mobility (Ex. SD-6 at 3).
At a meeting held on March 16, 2017, the DOE’s Committee on Preschool Special Education (the “CPSE”’) determined that the student was eligible for preschool special education services. For the 2017/18 school year, the CPSE recommended that the student receive special requirements as described in section 200.4(b)(1) through (5) of this Part. 8 NYCRR § 200.1(mm). education itinerant teacher (“SEIT”) services, five (5) hours per week, at home. The CPSE also recommended that the student receive related services of: individual speech/language therapy, four (4) times per week for thirty (30) minutes per session; individual occupational therapy, five (5) times per week for forty-five (45) minutes per session; and individual physical therapy, four (4) times per week for thirty (30) minutes per session (Ex. SD-1 at 1). The parent testified that the student did not receive all of the recommended SEIT and related services recommended for her during the 2017/18 school year (R. 55-57).
On July 23, 2018, the CPSE reconvened to develop an IEP for the student for the 2018/19 school year. The CPSE recommended that the student receive the majority of her instruction in a 12:1+3 special class at the (“ ”) in . The CPSE also recommended that the student receive related services of: specialized transportation; individual speech and language therapy, three (3) times per week for thirty (30) minutes per session; individual occupational therapy, three (3) times per week for thirty (30) minutes per session; individual physical therapy, three (3) times per week for thirty (30) minutes per session; and nursing services on the bus and in school (funded by ) (Ex. P-B at 1). The student’s nurse was responsible for monitoring her oxygen levels and heart rate and changing her breathing tube when necessary (R. 61). The parent accepted the recommended placement and the student attended the between September 5, 2018 through approximately December 2018 (R. 60, 63; Ex. P-A at 2).
The nursing services provided through , however, became unavailable, resulting in the student’s inability to continue to attend (R. 61-62). The parent initially waited for another nurse to be assigned to the student through , but a new nurse was never assigned (R. 63). The CPSE also did not replace the nursing services formerly provided through in order to enable the student to continue attending the (R. 24-28, 64-65).
On or about February 14, 2019, CPSE reconvened in order to revise the student’s program in light of her inability to continue attending the . The CPSE recommended that the student receive ten (10) hours per week of SEIT services, along with individual physical therapy, five (5) times per week for sixty (60) minutes per session. All other services were discontinued. The parent objects to the denial of recommended services for the student during the 2017/18 and 2018/19 school years and asserts that the February 2019 revisions to the student’s IEP denied her a FAPE on both procedural and substantive grounds (Ex. P-A at 2). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The CSPE recommended appropriate educational services for the student during the 2017/18 and 2018/19 school years. Around December 2018, the student’s school and transportation nurse(s) (supplied through ) became unavailable. The CSPE offered to seek approval from the Office of School Health to provide the student with nursing services on the bus and at school, but the parent declined. In the absence of a -funded nurse, the parent requested that all instruction and related services be provided at the student’s home. Due to a shortage of available service providers, the CPSE was only able to recommend SEIT and physical therapy for the student for the balance of the 2018/19 school year.
B. The Parent
The DOE denied the student a FAPE during both the 2017/18 and 2018/19 school years.
The student was denied recommended services during both the 2017/18 and 2018/19 school years. The February 2019 revisions to the student’s preschool IEP were not based on the student’s needs, but administrative convenience. The student is entitled to compensatory additional services to remedy the denial of FAPE during the 2017/18 and 2018/19 school years.
In order to prevent similar instruction and service interruptions in the future, the DOE should be directed to provide the student with nursing services at school and on her bus (Ex. P-A).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (1) to ensure that students with disabilities have available to them a 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 (2) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982)."[4]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.
See Rowley, 458 U.S. at 206-07; 7.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); RE. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert.
denied 2013 WL 1418840 (U.S. June 10, 2013); MH. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
{A ]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). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an JEP is to set out a plan for pursuing academic and functional advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-1,580 U.S. _, 137 S. Ct. 988, 999 2017). 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; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 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)(i); 34 CFR § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)Gi); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; 4.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); ELH. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F.
Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
The IDEA directs that, in general, an [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(f)(3)(E)(i). 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. The "IDEA, [however,] does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. 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 Endrew F., 137 S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); 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)(i); 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)(4), (2)()(A); 8 NYCRR § 200.4(d)(2)(ii1), 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).
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. Implementation of Student’s IEPs — 2017/18 & 2018/19 School Years The parent asserts that the DOE failed to implement the student’s IEPs during the 2017/18 and 2018/19 school years (Ex. P-A).
Once a parent consents to a school district's provision of special education services, such services must be provided by the school district in conformity with the student's IEP. See 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d); see also 20 U.S.C. § 1414(d); 34 C.F.R. § 300.320. With regard to the implementation of a student's IEP, a denial of a FAPE occurs if there was more than a de minimis failure to implement all elements of the IEP, and instead, the school district failed to implement substantial or significant provisions of the IEP. See Houston Indep.
Sch. Dist. v. Bobby R., 200 F.3d 341 at 349 (Sth Cir. 2000); Fisher v. Stafford Township Bd. of Educ., 289 Fed. Appx. 520, 524 (3d Cir. Aug. 14, 2008); Couture v. Bd. of Educ. of Albuquerque Pub. Schs., 535 F.3d 1243 (10th Cir. 2008); Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 (8th Cir. 2003). Accordingly, in reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial or "material." See A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 (2d Cir. Mar. 23, 2010); Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 (9th Cir. 2007); Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73, 75-76 (D.D.C. 2007).
The evidence contained in the hearing record demonstrates that the DOE failed to implement substantial and significant provisions of the student’s preschool IEPs during the 2017/18 and 2018/18 school years which denied the student a FAPE for both school years.
For the 2017/18 school year, the CPSE recommended that the student receive SEIT services, five (5) hours per week, at home. The CPSE also recommended that the student receive related services of: individual speech/language therapy, four (4) times per week for thirty (30) minutes per session; individual occupational therapy, five (5) times per week for forty-five (45) minutes per session; and individual physical therapy, four (4) times per week for thirty (30) minutes per session (Ex. SD-1 at 1). The parent credibly testified, however, that the student had her SEIT only “briefly, just for a few months” (R. 55). The student received occupational therapy for only two-to-three months between September and November (R. 56). The parent also testified that, “we had physical therapy for a brief moment” and “we did not have any speech therapy that year” (R. 57). The DOE offered no evidence into the hearing record which refuted the parent’s claims.
For the 2018/19 school year, the CPSE recommended that the student receive the majority of her instruction in a 12:1+3 special class at a center-based program in . The CPSE also recommended that the student receive related services of: specialized transportation; individual speech and language therapy, three (3) times per week for thirty (30) minutes per session; individual occupational therapy, three (3) times per week for thirty (30) minutes per session; individual physical therapy, three (3) times per week for thirty (30) minutes per session; and nursing services on the bus and in school (funded by ) (Ex. P-B at 1). The student’s nurse was responsible for monitoring her oxygen levels and heart rate and changing her breathing tube when necessary (R. 61). The parent accepted the recommended placement and the student attended the center-based program between September 5, 2018 through approximately December 2018 (R. 60, 63; Ex. P-A at 2).
Ms. , aCPSE administrator, initially testified that in or around December 2018, “the special class situation was not working out due to some medical needs that [the student] was having. So we decided to remove [the student] from the program” (R. 17). Later, however, Ms.
clarified that the “medical needs” the student was having was that her registered nurse and/or transportation nurse became unavailable (R. 28, 61-62). Initially, the parent waited for her agency to supply the student with another nurse (R. 63). Ms. offered to seek approval from the Office of School Health to provide the student with nursing services on the bus and at school, but the parent declined (R. 24-28, 64-65). Notwithstanding the parent’s apparent reluctance to initiate an application for a DOE-sponsored nurse after the student’s funded nurse became unavailable, it was incumbent on the CPSE to secure a nurse for the student after having determined, unequivocally, in July 2018 that the student’s “medical needs require daily nursing services” (Ex. P-B at 5).
On or about February 14, 2019, CPSE reconvened in order to revise the student’s program in light of her inability to continue attending her center-based program. The CPSE recommended that the student receive ten (10) hours per week of SEIT services, along with individual physical therapy, five (5) times per week for sixty (60) minutes per session. Ms. acknowledged that once the student became homebound, the CPSE was unable to secure speech and occupational therapy providers who were willing to go into the student’s home (R. 18).
C. Compensatory Additional Services
The parent seeks an Order directing the DOE to authorize the student’s receipt of compensatory additional services to remedy the denial of FAPE during the 2017/18 and 2018/19 school years.
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., MC. 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.
Given my earlier finding that the DOE denied the student a FAPE for the 2017/18 and 2018/19 school years, I now conclude that the student is entitled to compensatory additional services to remedy the denial of FAPE and will use the qualitative approach in fashioning an appropriate remedy.
1. SEIT Services
Although the CPSE recommended that the student receive five (5) hours per week of SEIT services during the 2017/18 school year (Ex. SD-1 at 1), the parent testified that the student had her SEIT only “briefly, just for a few months” of her twelve-month program (R. 55). Regarding the 2018/19 school year, the student missed approximately two (2) months of instruction, following the abrupt exit of her -funded nurse in December 2018, before the CPSE’s revised mandate of ten (10) hours per week of SEIT services came on-line.
To remedy the denial of SEIT services during the 2017/18 and 2018/19 school year, the DOE will be directed to authorize the student’s receipt of 280 hours of SEIT services from a provider of the parent’s choosing at an enhanced rate. During the 2017/18 school year, the student missed 200 hours of SEIT instruction, which has been calculated by multiplying forty (40)
weeks of missed instruction by the March 2017 IEP mandate of five (5) hours per week of SEIT services. During the 2018/19 school year, the student missed eighty (80) hours of SEIT instruction, which has been calculated by multiplying eight (8) weeks (January - February 2018) of missed instruction by the CPSE’s revised (February 2019) mandate of ten (10) hours per week of SEIT services.
2. Speech/Language Services
For the 2017/18 school year, the CPSE recommended that the student receive individual speech/language therapy, four (4) times per week for thirty (30) minutes per session (Ex. SD-1 at 1). The parent credibly testified, however, that the student “did not have any speech therapy that year” (R. 57). For the 2018/19 school year, the CPSE recommended that the student receive individual speech/language therapy, three (3) times per week for thirty (30) minutes per session (Ex. P-B at 1). When the CPSE reconvened on February 14, 2019 to revise the student’s program, it removed the speech/language therapy mandate, not due to the student’s needs, but because it was unable to find a provider for the student (R. 18).
To remedy the denial of speech/language therapy services during the 2017/18 and 2018/19 school year, the DOE will be directed to authorize the student’s receipt of 116 hours of speech/language therapy services from a provider of the parent’s choosing at an enhanced rate.
During the 2017/18 school year, the student missed ninety-two (92) hours of speech and language therapy, which has been calculated by multiplying the student’s March 2017 IEP mandate of four (4) sessions per week for thirty (30) minutes per session (i.e., two (2) hours per week) by a fortysix (46) week twelve-month school year. During the 2018/19 school year, the student missed twenty-four (24) hours of speech and language therapy, which has been calculated by multiplying the student’s July 2018 IEP mandate of three (3) sessions per week for thirty (30) minutes per session (i.e., ninety (90) minutes per week) by sixteen (16) weeks (i.e., March through June 2019) of missed therapy services.
3. Occupational Therapy
For the 2017/18 school year, the CPSE recommended that the student receive individual occupational therapy, five (5) times per week for forty-five (45) minutes per session (Ex. SD-1 at 1). The parent credibly testified, however, that the student received occupational therapy for only two-to-three months between September and November (R. 56). For the 2018/19 school year, the CPSE recommended that the student received individual occupational therapy, three (3) times per week for thirty (30) minutes per session (Ex. P-B at 1). When the CPSE reconvened on February 14, 2019 to revise the student’s program, it removed the occupational therapy mandate, not due to the student’s needs, but because it was unable to find a provider for the student (R. 18).
To remedy the denial of occupational therapy services during the 2017/18 and 2018/19 school year, the DOE will be directed to authorize the student’s receipt of 129 hours of occupational therapy services from a provider of the parent’s choosing at an enhanced rate.
During the 2017/18 school year, the student missed 105 hours of occupational therapy, which has been calculated by multiplying the student’s March 2017 IEP mandate of five (5) sessions per week for forty-five (45) minutes per session (i.e., 3.75 hours per week) by a twenty-eight (28) weeks (i.e., December through June 2018) of missed therapy services. During the 2018/19 school year, the student missed twenty-four (24) hours of occupational therapy, which has been calculated by multiplying the student’s July 2018 IEP mandate of three (3) sessions per week for thirty (30) minutes per session (i.e., 1.5 hours per week) by sixteen (16) weeks (i.e., March through June 2019) of missed therapy services.
4. Physical Therapy
For the 2017/18 school year, the CPSE recommended that the student receive individual physical therapy, four (4) times per week for thirty (30) minutes per session (Ex. SD-1 at 1). The parent testified, however, that “we had physical therapy for a brief moment” that year (R. 57).
For the 2018/19 school year, the CPSE recommended that the student receive individual physical therapy, three (3) times per week for thirty (30) minutes per session (Ex. P-B at 1). The student received physical therapy as part of a center-based program through December 2018. Physical therapy serviced did not resume until after a meeting on February 14, 2019, where the CPSE recommended that the student receive individual physical therapy, five (5) times per week for sixty (60) minutes per session (Ex. P-D).
To remedy the denial of physical therapy services during the 2017/18 and 2018/19 school year, the DOE will be directed to authorize the student’s receipt of 104 hours of physical therapy services from a provider of the parent’s choosing at an enhanced rate. During the 2017/18 school year, the student missed ninety-two (92) hours of physical therapy, which has been calculated by multiplying the student’s March 2017 IEP mandate of four (4) sessions per week for thirty (30) minutes per session (i.e., two (2) hours per week) by a forty-six (46) week twelve-month school year. During the 2018/19 school year, the student missed twelve (12) hours of physical therapy, which has been calculated by multiplying the student’s July 2018 IEP mandate of three (3) sessions per week for thirty (30) minutes per session (i.e., 1.5 hours per week) by eight (8) weeks (i.e., January through February 2019) of missed therapy services.
D. Nursing Services
The parent seeks an Order directing the DOE to provide the student with nursing services at school and on her bus (R. 70; Ex. P-A).
School districts are “responsible for providing services necessary to maintain the health and safety of a child while the child is in school, with breathing, nutrition, and other bodily functions (e.g., nursing services, suctioning a tracheotomy, urinary catheterization) if these services can be provided by someone who has been trained to provide the service and are not the type of services that can only be provided by a licensed physician.” Cedar Rapids Cmty. Sch. Dist. v. Garret F., 526 U.S. 66 (1999). School health services are “services that may be provided by a qualified school nurse or other qualified person.” See 34 C.F.R. § 300.34(c)(13).
Related services under the IDEA include school nurse services. See 34 C.F.R. § 300.34.
School nurse services “are services provided by a qualified school nurse.” See 34 C.F.R. §
300.34(c)(13). A child must be provided school nurse services if the student needs the services to receive a FAPE, as indicated in the child’s IEP or Section 504 plan. See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46,574 (2006); see also E.LLH. &
R.H. v. Fair Lawn Bd. of Educ., 72 YDELR 263 (3d Cir. 2018); cf North Bend Sch. Dist., 70
IDELR 139 (SEA OR 2017).
Students who are medically fragile may require a full-time nurse on a one-to-one basis.
See School Dist. of Philadelphia, 12 ECLPR 5 (SEA PA 2014). A medically fragile student means a student with extreme medical needs that require specific procedures to be provided or available during the day in order for the student to attend school. See 71 Fed. Reg. 46,574 (2006).
Whena student has a disability that makes him medically fragile, school districts have an obligation to accommodate him not only in the classroom, but also during transportation to and from school. See Garret F., 526 U.S. at 66; Elizabeth Bd. of Educ., 66 IDELR 237 (SEA NJ
2015); Oconee County Sch. Dist. v. A.B., 65 IDELR 297 (M.D. Ga. 2015).
The evidence contained in the hearing record establishes that the student needs school and transportation nursing services to receive a FAPE. In describing the student’s management needs, the March 2017 CPSE noted that: [The student requires daily nursing services at home. At birth, [the student] was diagnosed with muscle myopathy which has caused significant muscle weakness affecting her breathing, swallowing, and motor activities. [The student] requires a feeding tube daily. [The student] received saline treatments 3X per day to prevent dryness. She requires continuous pulse oximetry. [The student] also requires nebulizer treatments every 4-6 hours and chest therapy 3X per day. [The student] requires mechanical ventilation at night (Ex. SD-1 at 6).
Similarly, the July 2018 CPSE noted that the student was “tracheostomy and gastronomy dependent” and that her “medical needs require daily nursing services” (Ex. P-B at 5). As of the July 2018 CPSE meeting, the student’s registered nurse and transportation nurse(s) were provided by (Ex. P-B at 5). After the student lost her -funded nurse around December 2018, Ms. offered to seek approval from the DOE’s Office of School Health to provide the student with nursing services on at school and on her bus, but the parent declined (R. 24-28).
At the hearing, however, the parent consented to services of a DOE-sponsored school nursing services for the student (R. 64-65). The DOE will therefore be directed to provide the student with nursing services at school and on her bus.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
The parent’s claim that the student was denied a free appropriate public education (FAPE) for the 2017/18 and 2018/19 school years is SUSTAINED; Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of the following compensatory additional services:
1. 280 hours of SEIT services from a provider of the parent’s choosing at an enhanced rate;
2. 116 hours of speech/language therapy services from a provider of the parent’s choosing at an enhanced rate;
3. 129 hours of occupational therapy services from a provider of the parent’s choosing at an enhanced rate; and
4. 104 hours of physical therapy services from a provider of the parent’s choosing at an enhanced rate; and Within thirty (30) days of the date of this Order, the DOE shall amend the student’s IEP to include school and transportation nursing services.
Dated: June 23, 2020
/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
A. Due Process Complaint Notice/Impartial Hearing Request, 4/8/19, 3 pgs.
B. Preschool Individualized Education Program (IEP), 7/23/18, 16 pgs.
Speech/Language Evaluation, 6/25/19, 7 pgs.
a7HO
Notice of Eligibility for Partial Services, 2/14/19, 1 pg.
Individualized Education Program (IEP), 5/6/19, 18 pgs.
Prior Written Notice (Notice of Recommendation), 5/9/19, 3 pgs.
DEPARTMENT OF EDUCATION
Preschool Individualized Education Program (IEP), 3/16/17, 15 pgs.
RAWNWT
Social History, 2/1/17, 3 pgs.
Psychological Evaluation, 2/1/17, 7 pgs.
Speech/Language Evaluation, 2/16/17, 5 pgs.
Occupational Therapy Evaluation & Observation, 2/16/17, 5 pgs.
Physical Therapy Evaluation, 2/6/17, 3 pgs.
IMPARTIAL HEARING OFFICER
I. Order
on Consolidation (Case Nos. 182414 & ), 5/2/19, 4 pgs.
I. Interim Order on Pendency (Case No. 182414), 5/5/19, 10 pgs.
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 parents’ 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. 78-79). See 34
[3] 3Preschool student with a disability is a preschool child as defined in section 4410(1)() of the Education Law who is eligible to receive preschool programs and services, is not entitled to attend the public schools of the school district of residence pursuant to section 3202 of the Education Law and who, because of mental, physical, or emotional reasons, has been identified as having a disability and can receive appropriate educational opportunities from special programs and services approved by the department. Eligibility as a preschool student with a disability shall be based on the results of an individual evaluation which is provided in the student’s native language, not dependent on a single procedure and administered by a multidisciplinary team in accordance with all other
[4] “The term “free appropriate public education” means special education and related services that — (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[8] 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