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FINDINGS OF FACT AND DECISION
Case Number: 160643
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 10, 2016
December 7, 2016
January 6, 2017
January 25, 2017
February 2, 2017
Actual Record Closed Date: May 24, 2017
Hearing Officer: Michael S. Lazan, Esq.
Corrected
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 10, 2016
Attorney — Student
Attorney — Student
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 7, 2016
Attorney — Student
Parents
District Representative — DOE
District Representative — DOE
District Representative — DOE
(Via Telephone) — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 6, 2017
For the Student:
NONE
For the Department of Education:
, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 25, 2017
Attorney — Student
Parents
(Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 2, 2017
Attorney — Student
Parents
(Via Telephone) — Student
District Representative — DOE
On June 2, 2016, this Due Process Complaint was filed pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. I was appointed after the recusal of other hearing officer(s) on December 20, 2016.
The parents requested a hearing alleging that the Student was denied a FAPE from the 2013-2014 school year to the 2016-2017 school year, alleging that the program and placement for the four years was and is inappropriate. At the hearing, the parents indicated that they were only seeking a ruling for the two years prior to filing. (Tr. @
242) The parents request a wide variety of relief, including an appropriate location of services, a compensatory education award, and evaluations.
An interim order was issued on March 10, 2017, to implement the oral order of a prior IHO with respect to reimbursement for an evaluation.
Upon the joint application of the parties, multiple timelines extensions were granted in this case. For each such extension, I reviewed the factors in 8 NYCRR Sect.
200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District.
FINDINGS OF FACT
The Student is a who .
He is eligible for services as a student with . He was determined to be eligible for special education in the year 2012 and is diagnosed with . His has suffered accordingly. (274-276)
For the 2012-2013 and 2013-2014 years, he was assigned to a program in , with the location of services at . In June, 2014, after , he was recommended for a , with related services. In 2014, he moved to , where he remains to this day with the same recommendation.
Given the student’s issues, the Student’s
and recommended for the 2015-2016 school year. The
Student was for the 2014-2015, 2015-2016, and 2016-2017 school years, and was provided at times during this period. (DOE Exhs. 31, 32)
In April, 2016, another recommendation for a was issued by a Dr.
. (Exh. TT)
The Student did for the 2016-2017 school year, though was inconsistent. (114-115)
. (69) and are also typically used at the school, but no other more individualized interventions were tried. (137, 194-195)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of
2007.
Parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the IEP creates considerable reliance interests for the parents. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012)
A FAPE is offered to a student when (a) the District 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. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect.
300.513(a)(2).
A free appropriate public education “must include ‘special education and related services' tailored to meet the unique needs of a particular child, and be ‘reasonably calculated to enable the child to receive educational benefits.’ ” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted). While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C.
Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
In the Due Process Complaint, the parent contended that the Student did not receive sufficient intervention in regard to his attendance issues. Respondent has an “affirmative duty” to address a Student’s truancy where the truancy is linked to student disability. Lexington County Sch. Dist. One v. Frazier, 57 IDELR 190 (D.S.C.
2011)(SRO's ruling that District failed to assess Student's truancy issue upheld by District Court); Springfield School Committee v. Doe, 623 F.Supp.2d 150 (D. Mass
2009)(“behavior management services” fall within the scope of IDEA); cf. R.B. v.
Mastery Charter School, 762 F. Supp.2d 745 (E.D. Pa 2010)(District had duty to respond to absences through educational intervention); Independent Sch. Dist. No. 284, Wayzata
Area Sch. v. A.C., 258 F.2d 769 (8th Cir. 2001)(neuropsychological assessment conducted of truant student; assessment was relied upon by the court to determine appropriate educational program for Student).
Here, there is no question that the Student’s disability affected and still affects
. His disability is connected to , and
. Accordingly, it was the District’s duty to address those issues by identifying the reasons behind the problem and implementing a personalized plan to . However, the school witnesses indicated that the school provides services to Students with issues.
. The record suggests that the
Student began to receive these services in 2014. No individualized services were offered, and no conducted on behalf of the Student.
In New York State, where a student's behavior impedes his or her learning or that of others, the CSE may be required to consider having an FBA conducted and a BIP developed for a student in certain non-disciplinary situations. 8 NYCRR 200.4(d)(3)(I); 8 NYCRR Sect. 200.22(a), (b)). An FBA is defined in State regulations as "the process of determining why a student engages in behaviors that impedes learning and how the student's behavior relates to the environment" and "include[s], but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it." 8 NYCRR Sect. 200.1(r)). According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the student's history of presenting problem behaviors. 8 NYCRR Sect. 200.22(a)(2). An FBA must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a BIP (if required) may be developed "that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement." 8 NYCRR Sect. 200.22(a)(3)).
I find that the district should have completed an to determine in or about the 2014-2015 school year. are not a necessarily reasonable fix for , and cannot be very effective if . It
was vital here to do an individualized analysis that resulted in new, specific interventions that were tailored to the Student, whether through a or a detailed IEP.
Instead, the Student for the past two school years.
Since the issue is a function of the Student’s disability, I agree with the parents that the Student was denied a FAPE for the 2014-2015 and 2015-2016 school years.
Accordingly, I need not address the other issues raised in the Due Process Complaint.
RELIEF
Petitioner seeks: 1) an appropriate placement at a , or a referral to the Central-based support team to find a ; 2) compensatory , in an amount that that is not specified, through
’s agency, , at a rate of per hour; 3) compensatory therapy services totaling hours; 4) compensatory totaling hours; 5) an and , as conducted by ,a , as her usual rate of ( ) and ( ); 6) a ; and
7) a reconvened CSE meeting upon completion of all evaluations to develop a new IEP.
Where Districts have failed to offer students a FAPE, courts have wide discretion to insure that students receive a FAPE going forward. As the Supreme Court has stated:
The statute directs the court to “grant such relief as [it]
determines is appropriate.” The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be “appropriate.” Absent other reference, the only possible interpretation is that the relief is to be “appropriate” in light of the purpose of the Act. As already noted, this is principally to provide handicapped children with “a free appropriate public education which emphasizes special education and related services designed to meet their unique needs. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471
U.S. 359, 371 (1985).
1. Placement.
Where Districts have failed to offer students a FAPE, courts have ordered that schools be paid for education. A hearing officer or a court may simply order a student to attend a particular private placement in the future if it is appropriate to insure that a Student receives a FAPE. Branham ex rel Branham v. District of Columbia, 427 F.3d 7 (D.C. Cir. 2005); Application of a Student with a Disability, Appeal No. 08-103 n.9.
However, the New York State Review Office has warned against ordering prospective placements prematurely, before all public options are exhausted. Application of a Student with a Disability, Appeal No. 15-077 (Oct. 9, 2015).
Here the parents are seeking a certain kind of placement, but they have not insisted on a private one. It is certainly within a hearing officer’s power to direct a CSE to create a new IEP for a Student that contains certain elements. The parents are asking for a “ ” , which I will interpret as a request for a school with and . There is no dispute that the Student needs this kind of setting. They also request a school with . This, too, is a reasonable request that has not been disputed. Accordingly, I will order that the Student attend a placement that has
.
The parents also ask, in the alternative, for a non-public school that is , but I need not distinguish between public and private in this order. As long as a school is
, with , with
, and is considered “ ,” the
Department will meet its mandate.
2. Compensatory Education.
The parents are seeking compensatory , , and
.
Compensatory education is an available option under the Act to make up for denial of a free and appropriate public education. While the Circuit has previously enunciated a “gross violation” standard in this connection, Garro v. State of Connecticut, 23 F.3d 734, 737 (2d Cir. 1994), this standard is at odds with the standards in most jurisdictions. In P. v. Newington Bd. of Educ., 546 F.3d 111 n.13 (2d Cir. 2008), the Circuit signaled that the Garro approach is only applicable where Students are over 21. In so analyzing this issue, the court referenced the seminal compensatory education case of Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). In Reid, the D.C.
Circuit explained that compensatory education should be fashioned without a “cookie cutter approach” and that compensatory education must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place. Id., 401 F. 3d at 524; see also Friendship Edison Public Charter School v. Nesbitt, 532 F. Supp. 2d 121, 125 (D.D.C. 2008) (compensatory award must be based on a "'qualitative, fact-intensive' inquiry used to craft an award 'tailored to the unique needs of the disabled student").
Given that the Student was denied a FAPE over two full years of instruction, the parents are seeking hours of , as calculated by Ms. , to . (Tr. @ 334) This, however, is not the standard in the caselaw.
The compensatory award is supposed to be based on the amount of progress the Student should have made during the period of FAPE denial. Under the circumstances, I will exercise my discretion and reduce the number of hours to hours, to be used by the end of the 2017-2018 school year. The parents are seeking the services of Ms.
for these hours, but I see no reason why a is necessary in a case like this.
The Department will have discretion on how it wants to deliver those services as long as they are delivered by a
.
3. .
The parents reasonably request that Ms. create a new for this Student. Ms. ’s testimony suggests that she is capable of producing a detailed series of reports that pinpoint exactly why . She is also capable of proving a plan recommended new, individualized approaches to address the . The Department argued that it is willing to create its own when the
, but
.
4. Assessment.
The parents seek a assessment, but I have not based my finding of FAPE denial on the lack of such an assessment. Moreover, the parents do not really explain why this request is justified. It is accordingly denied.
ORDER
As a result of the foregoing, I order the following:
1. The Student shall be placed in a school is , with , and and is considered
“ ;”
2. The Student is hereby awarded hours of compensatory , to be provided by a certified ;
3. The Student is hereby awarded hours of , to be provided by a duly licensed as chosen by the Department;
4. The Student is hereby awarded hours of , by an individual with appropriate professional credentials as a , or , as chosen by the Department;
5. The above hours shall be used by June 30, 2018;
6. The Department shall pay for an and by , at her usual and customary rate.
Dated: June 7, 2017 Corrected Date: June 8, 2017
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer MSL;
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Demand for Due Process Hearing, 14 pages
B IEP, 1/14/2016, 12 pages
C IEP, 4/16/2015, 13 pages
D IEP, 12/23/2014, 14 pages
E IEP, 6/3/2014, 16 pages
F IEP, 6/4/2013, 11 pages
G IEP, 7/19/2012, 12 pages
H Prior Written Notice, 1/21/2016, four pages
I Prior Written Notice, 4/23/2015, four pages
J CSE Meeting Notice, 4/2/2015, two pages
K Report, four pages
L , two pages
M , three pages
N Evaluation, seven pages
O Final , nine pages
P Drafted , nine pages
Q , four pages
R , eight pages
S , three pages
T , two pages
U , two pages
V Teacher Report, two pages
W Teacher Report, two pages
X , two pages
Y Report for Marking Period Three, Term One, one page
Z Report Card Marking Period One, Term One, one page
AA Progress Report, one page
BB Report Card Marking Period Three, Term Two, one page
CC Teacher Report, two pages
DD Student Permanent Record, one page
EE Student Permanent Record, one page
FF Permanent Record, one page
GG Student Transcript, one page
HH Parent's Request for Independent Evaluation, one page
II Email from Parent regarding IEP disagreement, one page
JJ Request for Educational Records, one page
KK Request for School Placement Reevaluation, one page
LL Parent's Consent to Assessments, one page
MM Parent's Request for Evaluation, one page
NN Request for School Placement, one page
OO Request for School Placement Reevaluation, 8/7/2015, one page
PP Request for School Placement Evaluation, one page
QQ Parent's Request for Independent , one page
RR Invoice, one page
SS Academic Record Review and Recommendation, 10/23/2016, seven pages
TT , 27 Pages
UU , three 12 pages
VV , three pages
WW , one
XX , one page
YY , two pages
ZZ Second Due Process Complaint, 11/18/16
DEPARTMENT OF EDUCATION
1 Due Process Complaint, 14 pages
2 IEP, 1/14/2016, 11 pages
3 IEP, 10/25/2016, 16 pages
4 Teacher Report from , 10/25/2016, three pages
5 Teacher Report for three pages
6 Student Progress Report - , two pages
7 Student Progress Report - , two pages
8 Consent for Assessment, one page
9 , two pages
10 Student Payment of Record, two pages
11 Meeting Notice, three pages
12 Teacher Report, three pages
13 IEP Amendment Notice, two pages
14 Meeting Notice, three pages
15 Report from Dr. , 27 pages
16 Prior Written Notice
17 Assessment Planning Pages, Reevaluation Referral,
, two pages
18 , two pages
19 Parent Request for Evaluation, one page
20 Consent for Additional Assessment, one page
21 Assessment Planning, Reevaluation Referral, ,
, two pages
22 , 10/27/2015, two pages
23 Doctor's Note, one page
24 Student Permanent Record, 10/28/2015, one page
25 Student Report Card, period 1, one page
26 Student Transcript, one page
27 Teacher Progress Report - , two pages
28 Teacher Progress Report - , two pages
29 Teacher Progress Report - , two pages
30 , two pages
31 , 2015/2016, four pages
32 , 2016/2017, two pages
33 Student Permanent Record, one page
34 , one page
35 , one page
36 , one page
37 , 4/7/2016, one page
38 , 3/31/2016, one page
39 Report, one page
40 Referral Form, one page
41 Outreach Report Record, one page
42 Student Progress Report, two pages
43 , , 21 pages
44 , , 12 pages