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FINDINGS OF FACT AND DECISION
Case Number: 145198
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 13, 2014
March 14, 2014
May 31, 2016
July 18, 2016
August 9, 2016
September 14, 2016
Actual Record Closed Date: November 15, 2016
Hearing Officer: Michael K. Lambert, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 13, 2014
Attorney for Parents — Student
Attorney for DOE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 14, 2014
Attorney for Parents — Student
Attorney for DOE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 31, 2016
Attorney for Parents — Student
Attorney for DOE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 18, 2016
Attorney for Parents — Student
Attorney for DOE — DOE
DOE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 9, 2016
Attorney for Parents — Student
Parents
Attorney for DOE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 14, 2016
Attorney for Parents — Student
Attorney for DOE — DOE
INTRODUCTION AND PROCEDURAL HISTORY
This case exemplifies much of what is wrong, and much of what is right, with
IDEA. is a student with (T: 430-431). She has a number of , but presents with
, including
. Over a period of many years, the parents and the Department of Education (“DOE”), while largely in agreement as to the child’s strengths and weaknesses, have had an ongoing disagreement as to how her needs should appropriately be met. Throughout that time-period, the parents have consistently sought to have ’s needs met in a less restrictive environment than has been recommended by the DOE.
The matter before me began in the 2012-2013 school year, although this dispute had been ongoing since at least the 2008-2009 school year. Three different due process complaints (PE-A; PE-RR and PE-SS) have advanced issues that appear to be similar in their theme – how to support in an educational environment that is far less restrictive than recommended by the DOE’s CSE. The school years at issue include the 2012-2013, 2013-2014, 2014-2015 and 2015-2016 school years. An almost unimaginable amount of energy has been expended by the parents and their capable counsel in advocating for a highly supported placement in a setting far less restrictive than recommended by the DOE’s CSE.[1] At least three different hearing officers have been assigned to decide this matter, with at least two of them recusing themselves for various reasons after becoming actively engaged in the case, and many others recusing themselves after less involvement.
Throughout that time period, has, by virtue of various pendency orders, been educated in an environment that is far closer to that desired by the parents than had been recommended by the DOE. She has reportedly made gains, although perhaps not as many gains as may have been desired by her parents.
The issues identified in the three due process complaints are hereby decided as set forth herein.
THE HEARING EVIDENCE
The hearing in this matter took place over 6 days, with many additional phone conferences being held in between. Hundreds of pages of exhibits were offered and admitted into evidence. It is undisputed that the recommendations made by the CSE during the time-period covered by the three due process complaints failed to offer a FAPE during that time period. The DOE acknowledged as much. Yet, notwithstanding this rather clear admission, the issue of what to do about it is not nearly as clear. As indicated above, the DOE has provided with a significant amount of support during the time-period covered by the issues before me. This support was the result of hard-fought legal battles waged by and on behalf of the parents and student and cannot be ignored in fashioning a remedy for the acknowledged denial of FAPE during the years at issue. I find that the hearing issues before me are really quite narrow. Specifically, can this child’s needs be appropriately met in an educational environment like that which has and is sought by the parents? If so, what, if any, additional steps can be taken, whether in the form of compensatory education services or otherwise, to further the goal of receiving appropriate educational services in that least restrictive environment? My decision, and the remedy set forth herein, is focused upon these questions.
THE LEGAL STANDARDS
Pursuant to the IDEA, all children with disabilities are entitled to a “free appropriate public education” (“FAPE”) which must include “special education and related services” tailored to meet the unique needs of the child and be “reasonably calculated to enable the child to receive educational benefits.” B oard of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 207 (1982); (20 U.S.C. § 1400[d][1][A]; Schaffer v. W east, 126 S. Ct. 528, 531 [2005]; Frank G. v. B oard of Education, 459 F.3d 356, 371 [2nd Cir. 2006]). 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 (Rowley, 458 U.S. at 206-
07; Cerra v. Paw ling Central School District, 427 F.3d 186, 192 [2nd Cir. 2005]). The
Second Circuit Court of Appeals in W alczak v. Florida Union Free School District, 142 F.3d 119 (2nd Cir. 1998) held that the IDEA does not articulate any specific level of educational benefits that must be provided through an IEP. The Court citing to the Supreme Court ruling in Rowley reiterated that the IDEA does not require the states to maximize the potential of disabled children, but was meant “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside” (at pg. 192). The Second Circuit in W alczak also cites to a D.C. Circuit Court decision by now Supreme Court Justice Ruth Bader Ginsburg which held that because “public resources are not infinite,” federal law “does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child” (Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1583 [D.C. Cir. 1984]). The Third Circuit has held that an appropriate education under the IDEA is one that is “likely to produce progress, not regression” (Cypress-Fairbanks Indep. Sch. Dist. V . Michael F., 118 F.3d 245, 248 [3rd Cir. 1997]; cert denied 522 U.S. 1047 [1998]; Cerra, 427 F.3d at 195, quoting W alczak, 142 F.3d at 130 [citations omitted]; see Perricelli v. Carmel Central School District, 2007 WL 465211, at *15). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (W alczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 [2nd Cir. 1989][citations omitted]; see Grim , 346 F.3d at 379). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford B oard of Education, 103 F.3d 1114, 1120 [2nd Cir. 1997]; see Rowley, 458 U.S. at 192). Objective factors such as the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress and one important factor in determining educational benefit (Rowley, 458 U.S. at 207, n.28, 203-04; W alczak, 142 F.3d at 130; V iola v. A rlington Central School District, 414 F. Supp. 2d 366, 382 [S.D.N.Y. 2006]).
The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; see W alczak, 142 F.3d at 132). The LRE is defined as “one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled” (Carlisle A rea Sch. V . Scott P., 62 F.3d 520, 535 [3rd Cir. 1995]). The IDEA mandates that all students with disabilities may only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. 1412[a][5][A]; 34 CFR
300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3rd Cir. 1993]; Briggs v. Bd.
of Educ., 882 F.2d 688, 691 [2nd Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]).
“The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Borough of Clementon Sch. Dist., 995 F.2d 1204
rd
[3 Cir. 1993]). The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes such as language and role modeling with nondisabled peers” (Greer v. Rome City Sch.
Dist., 950 F.2d 688 [11th Cir. 1991]).
The Second Circuit Court of Appeals adopted the Oberti LRE test in P. v.
Newington B oard of Educ., 546 F.3d 111 (2nd Cir. 2008) requiring the consideration of whether the school has made reasonable efforts to accommodate the child in a regular classroom, the educational benefits to the child with appropriate supplementary aids and services versus a special class and the possible negative effects of the inclusion of the child on the education of the other students in the class.
Federal district courts have upheld the appropriateness of an IEP “given what the CSE knew about [the child] at the time it was developing the … IEP” E.S . v. K atonahLewisboro School District, 742 F.Supp.2d 417 (S.D.N.Y. 2010). In J.R . v. B oard of Case No. 145198
Education of the City of Rye School D istrict, 345 F.Supp.2d 386 (S.D.N.Y. 2004), the Court held that in reviewing the appropriateness of an IEP that:
“This determination is necessarily prospective in nature; we therefore must not engage in Monday-morning quarterbacking guided by our knowledge of S.R.’s subsequent progress at Eagle Hill, but rather consider the propriety of the IEP with respect to the likelihood that it would benefit S.R. at the time it was devised. See
A ntonaccio, 281 F.Supp.2d at 724 (noting that this issue has not yet been addressed by the Second Circuit and holding that ‘the …IEP…must be evaluated at the time the CSE devised the IEP, on June 15, 1999, and the IHO and SRO erred by regarding any information about [the student’s] education after that date’).”
The SRO has consistently considered the IEP “at the time it was formulated” to determine if it was reasonably calculated to enable the student to receive educational benefit
(A pplication of a Student with a Disability, SRO Appeal Nos. 11-154, 09-034, 09-013).
In terms of the available remedies in cases where a district has failed to meet its obligation to offer an educationally disabled child FAPE, IHO’s have substantial discretion. Since P. ex rel. M r. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008), the courts of the Second Circuit have ceased to limit eligibility for “compensatory education” to those over 21. In P, the Second Circuit ruled that “compensatory education” can be awarded to an elementary school student. Further, even the “gross violation” requirement, which is applicable to a claim for compensatory education by someone over 21 is not clearly established in this Circuit to be applicable to a student under 21. That standard was not relied upon in P.
In S.A . ex rel. M .A .K. v. New Y ork City D ep't of Educ., 12-CV-435 (RMM)
(MDG), 2014 WL 1311761 (E.D.N.Y. Mar. 30, 2014), the Court held:
The IDEA allows a hearing officer to fashion an “appropriate remedy, and ...
compensatory education is an available option ... to make up for denial of a [FAPE].” P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008) (affirming compensatory education award for elementary school student); see also Student X v. New Y ork City D ep't of Educ., No. 07
CV 2316, 2008 WL 4890440, at *24 (E.D.N.Y. Oct. 30, 2008) (awarding compensatory education to student younger than twenty-one). Such an award serves “to compensate a student who was actually educated under an inadequate IEP” and “to catch-up the student to where he should have been absent the denial of a FAPE.” B rennan v. Regional Sch. Dist. No. 1 Bd. of Educ., 531 F.Supp.2d 245, 265 (D.Conn.2008). Before awarding compensatory education for a student older than twenty-one, a court must find a gross violation of the student's right to a FAPE; however, whether the same prerequisite exists to awarding compensatory education for a younger student is an open question. See Student X, 2008 WL 4980440, at *24. P. v.
Newington, 512 F.Supp.2d 89, 112 n. 3 (D. Conn.2007) (“The Court disagrees with the defendant's argument that compensatory education is warranted only if there is a ‘gross' violation of the IDEA. The requirement of a gross violation
... has been applied only to cases involving claimants over the a ge of 21.”), aff'd, 546 F.3d 111 (2d Cir.2008); but see J.A . v. E. Ramapo Cent. Sch. Dist., 603 F.Supp.2d 684, 690 (S.D.N.Y.2009) (finding that five-year-old student was not entitled to compensatory speech therapy, reasoning that parents failed to show gross violation because child “was not excluded from school for any period of time.”).
Also, Reid ex rel. Reid v. D.C., 401 F.3d 516, 522-26 (D.C. Cir. 2005) seems to stand for the proposition that “compensatory education” can be prospective educational services to compensate for a past deficient program and that a hearing officer, as well as a court, can fashion flexible “compensatory education” relief through the application of “equitable considerations.” Reid is cited by, for example, the Second Circuit in P., 546 F.3d at 123, for the proposition that “[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.”
It is well-settled that the dispute between the parties must at all stages be “real and live” and not “academic” or it risks becoming moot (see Lillbask v. State of Conn. Dep’t of Educ., 397 F.3d 77, 84 [2d Cir. 2005]; Patsk in v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]; J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4
[W.D.N.Y. Sept. 30, 2008]; see also Chenier v. R ichard W ., 82 N.Y.2d 830, 832 (1993); Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 [1980]; A pplication of the Dep't of Educ., Appeal No. 10-066; A pplication of a Student with a Disability , Appeal No. 10-064;
A pplication of a Student with a Disability , Appeal No. 09-077; A pplication of a Student with a Disability , Appeal No. 09-065; A pplication of a Student with a Disability , Appeal No. 08-104; A pplication of the Dep't of Educ., Appeal No. 08-044; A pplication of a Child with a Disability , Appeal No. 07-139; A pplication of a Child with a Disability , Appeal No. 07-085; A pplication of a Child with a Disability, Appeal No. 07-077). In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., A pplication of the Bd. of Educ., Appeal No.
06-044; A pplication of the Bd. of Educ., Appeal No. 05-058; A pplication of a Child with a Disability , Appeal No. 04-027; A pplication of a Child with a Disability, Appeal No. 00-
037; A pplication of the Bd. of Educ., Appeal No. 00-016; A pplication of a Child with a Disability, Appeal No. 96-37). Administrative decisions rendered in cases concerning such issues arising out of school years that have since expired may no longer appropriately address the current needs of the student (see Daniel R.R. v. El Paso Indep.
Sch. Dist., 874 F.2d 1036, 1040 [5th Cir. 1989]; M.S. v. New Y ork City Dept. of Educ., 2010 WL 3377667, at *9 [E.D.N.Y. Aug. 25, 2010]; A pplication of a Child with a Disability , Appeal No. 07-139; A pplication of the Bd. of Educ., Appeal No. 07-028;
A pplication of a Child with a Disability , Appeal No. 06-070; A pplication of a Child with a Disability , Appeal No. 04-007).
An exception to the above rule relating the mootness of claims such as this provides that a claim may not be moot in such circumstances if the conduct complained of is "capable of repetition, yet evading review" (see Honig v. Doe, 484 U.S. 305, 318-23
[1988]; Lillbask, 397 F.3d at 84-85; Daniel R.R., 874 F.2d at 1040; A pplication of a Child with a Disability , Appeal No. 04-038). The exception applies only in limited situations
(City of Los A ngeles v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed
(K naust v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]). First, it must be apparent that "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration" (Murphy v. Hunt, 455 U.S. 478, 482 [1982]; see K naust, 157 F.3d at 88; A pplication of a Child with a Disability , Appeal No. 07-139). Second, controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again (W einstein v.
B radford, 423 U.S. 147, 149 [1975]; see Hearst Corp., 50 N.Y.2d at 714-15; A pplication of a Child with a Disability , Appeal No. 07-139). To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Murphy, 455 U.S. at 482; Russman v. Bd. of Educ., 260 F.3d 114, 120 [2d Cir. 2001]; A pplication of a Child with a Disability , Appeal No. 07-139). Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence (Russman, 260 F.3d at 120; M.S., 2010 WL
3377667, at *9 [noting that each year a new determination is made based on a student's continuing development]; J.N. v. Depew Union Free School Dist., 2008 WL 4501940, at *4 [W.D.N.Y. Sept. 30, 2008]; A pplication of a Child with a Disability , Appeal No. 07-
139). Mootness may be raised at any stage of litigation (In re Kurtzman, 194 F.3d 54, 58
[2d Cir. 1999]; A pplication of a Child with a Disability , Appeal No. 07-139).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I need not decide whether ’s needs can be appropriately met in an .
The facts of this matter suggest that, with a great deal of effort, she has made progress in that setting. However, I find that the specific issues raised in the various due process complaints have, due to the passage of time, largely been rendered moot. I do not find that any of the exceptions are applicable. I find that no productive purpose would be served by individually deciding the specific issues that have been advanced in the three due process complaints. Further, I find that no meaningful, specific relief can be fashioned at this time for alleged shortcomings in the manner in which the DOE offered FAPE during the past 5 years. I find, however, that, as a general proposition, the DOE’s acknowledged denial of FAPE during this period warrants compensatory services as set forth herein. I find that the claim set forth in the DOE’s Closing Brief that there has been no denial of FAPE is technically incorrect, although practically plausible. I further find that the nature and extent of the compensatory services that are appropriate must take into account the extensive services that the DOE had provided in accordance with the 1st and nd
2 pendency orders. The compensatory services set forth herein are designed to support this child’s educational program going forward in a manner that will hopefully serve to end, or at least slow, the cycle of litigation that had clearly distracted the parties from developing and implementing an educational program that can meaningfully and appropriately meet this child’s significant needs in the least restrictive environment.
They are expressly NOT intended to be supplemental to the services provided as part of the previously-issued pendency orders.
ORDER
1. That the CSE develop IEPs for the balance of the 2016-2017 and the 2017- 2018 school years calling for, at a minimum, the supports identified herein.
2. That be placed in a for the balance of the 2016-2017 and the entirety of the 2017-2018
school year.
3. That
.
. Advance planning must be conducted for each of these situations.
4. That, for the balance of the 2016-2017 school year and the entirety of the 2017-2018 school year, receive . Such may be provided by a provider jointly selected by the parents and the DOE or, if no agreement can be reached, by the parents, and shall include . The hourly rate for such shall not exceed .
5. That the DOE directly provide or fund
for for the balance of the 2016-2017 school year and for the 2017-2018 school year. The hourly rate for such service shall not exceed .
6. That Related Service Authorizations be issued for Case No. 145198
, or such other frequencies
as may be agreed to by the parties. To the extent that the DOE does not offer , the DOE shall reimburse the parents for .
7. That provisions be made for
.
8. That the DOE directly provide or fund
during the period July – August, 2017.
9. That the DOE
.
.
10. That the CSE develop an individualized plan
.
11. That the DOE
.
12. That the CSE shall meet within 30 days of this Order to plan for the implementation of the various supports identified herein.
13. All other claims set forth in the due process complaints are hereby dismissed. Dated: January 20, 2017
MICHAEL K. LAMBERT, ESQ.
Impartial Hearing Officer MKL:
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
Parent Exhibits:
A. Impartial Hearing Request w/ fax confirmation 07/01/2013 (20 pages)
B. Due Process Response 07/08/2013 (3 pages)
C. WITHDRAWN
D. 139248 - Order on Pendency 07/19/2012 (6 pages)
E. WITHDRAWN
F. WITHDRAWN
G. WITHDRAWN
H. Impartial Hearing Request 10/31/2011 (15 pages)
I. Individualized Education Program 06/19/2013 (23 pages)
J. Individualized Education Program 05/17/2013 (26 pages)
K. K Individualized Education Program (updated) 05/23/2012 (38 pages)
L. OMITTED
M. 07/15/2013 (8 pages)
N. 07/24/2013 (19 pages)
O. 07/28/2012 (19 pages)
P. 05/13/2010 (3 pages)
Q. 04/24/2009 (16 pages)
R. 01/31/2008 (9 pages)
S. WITHDRAWN
T. 06/19/2013 (29 pages)
U. Progress Report 05/08/2013 (4 pages)
V. Progress Report 04/25/2013 (4 pages)
W. 2011-2012 (12 pages)
X. Progress Report 04/13/2010 (4 pages)
Y. OMITTED
Z. E-mail to from 06/20/2013 (2 pages)
AA. Letter to IEP Team from 05/17/2013 (5 pages)
BB. Letter to from 02/06/2013 (3 pages)
CC. Waiver of IEP Meeting to Amend IEP 01/28/2013 (2 pages)
DD. 117192 - /20/2008 (7 pages)
EE. Educational Progress Report 12/10/2007 (7 pages)
FF. Individualized Education Program (with Notice) 09/04/2013 / 09/24/2013
(30 pages)
GG. Reports 09/2013 (8 pages)
HH. Reports 10/2013 (10 pages)
II. Reports 11/2013 (10 pages)
JJ. Reports 12/2013 (8 pages)
KK. Reports 01/2014 (8 pages)
LL. Reports 02/2014 (8 pages)
MM. OMITTED
NN. OMITTED
OO. 2012-2013 (2 pages)
PP. Notices of Recusals 2013-2014 (18 pages)
QQ. 2012-2013 (13 pages)
RR. Amended Due Process Complaint 09/01/2014 (29 pages)
SS. Amended Due Process Complaint 11/23/2015 (26 pages)
TT. Objections and Concerns with Draft IEP – with Gmail Correspondence
2013-2014 (8 pages)
UU. 2013-2014 (7 pages)
VV. SESIS Log Excerpt 2013-2014 (2 pages)
WW. Student Progress Reports Various Dates (8 pages)
XX. 2014/2015 SY (47 pages)
YY. Summer 2015(5 pages)
ZZ. 2015/2016 (23 pages)
AAA. Summer (7 pages)
DOE Exhibits:
1. None
IHO Exhibits:
I. None
Footnotes
[1] There have been numerous references during the course of the instant hearing to a pending class action lawsuit involving While I have no doubt as to the potential importance of this litigation in resolving issues that clearly need resolution in connection with the provision of appropriate special education programs and services to the educationally disabled students residing in New York City, I have not considered this pending litigation for any purpose in deciding the much more limited matters before me.