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FINDINGS OF FACT AND DECISION
Case Number: 160732
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 29, 2016
October 31, 2016
November 17, 2016
Actual Record Closed Date: January 5, 2017
Hearing Officer: Gary D. Peters, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 29, 2016
Attorney — Parents
Mother DOE Designee Dep’t. of Education — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 31, 2016
Attorney — Parents
Mother DOE Designee Dep’t. of Education — Parents
Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 17, 2016
Attorney — Parents
DOE Designee Dep’t. of Education — Parents
INTRODUCTION
On the above dates, I conducted a hearing, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing . The hearing was conducted at the impartial hearing office, New York City Department of Education at 131 Livingston Street, Brooklyn, New York. The Department of Education, hereinafter referred to as the “Department” was represented by their designee and the Parent was represented by their attorney .
BACKGROUND
The Parent filed a request for an impartial hearing in this matter on June 14, 2016 challenging the DOE’s failure to provide the student hereinafter referred to as . with a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. § 1404, et seq. (“IDEA”) on 6/20/16, the DOE filed its Due process Response.
is a and is classified as ; she presently
attends the at the , a . Her most
recent individualized education program (IEP) was developed by a DOE committee on special education (CSE) at a meeting held on August 10, 2016. Parent Ex. X. This IEP recommends an in a , with and . Parent Ex. X-5. ’s previous IEP is dated March 11, 2016, and recommends a , along with and . Parent Ex. B7-8.
Dr. conducted a evaluation in the spring of
2016 and issued a report on June 30, 2016; she diagnosed with an . Parent Ex. HH. Dr.
recommended
. Dr. noted that the programming can only be
provided at a private school. Parent Ex. HH13-14.
As stated above, the parent requested an impartial due process hearing alleging a denial of FAPE for the 2016-2017 school year and requested, inter alia, the following relief:
1. an order directing the Department to fund an independent educational evaluation by a provider of the Parent’s own choosing at the usual and customary rate of the independent provider;
2. an order directing the Department to conduct a evaluation of by the end of the current school year or fund an independent evaluation by a provider of the parent’s own choosing at the independent provider’s usual and customary rate;
3. an order directing the Department to and of . by the end of the current school year or fund an independent and by a provider of the parent’s own choosing at the independent provider’s usual and customary rate;
4. an order directing the Department to reconvene the CSE at the conclusion of the hearing, to review the independent educational evaluation, evaluation and and to develop a new IEP based on the updated evaluative data from the new evaluations that appropriately addresses with appropriate recommendation, , appropriate , description of needs in all areas, appropriate program recommendations, including , and related services and appropriate measurable annual goals in all areas of need;
5. an order directing the CSE to on the IEP
from to ;
6. an order directing the CSE to provide a on .’s IEP to
;
7. an order directing the Department to provide additional services at an enhanced rate of per hour, by an agency such as or , outside of the school day to remedy the failure to provide , including, but not limited to , during the 2015/16 and 2016/17 school years;
8. an order directing the Department to provide additional services outside of the school day, at an enhanced rate of per hour to remedy the failure to provide services as mandated on the IEPs for the 2015/16 and 2016/17 school years;
9. an order directing the Department to provide additional services outside of the school day at an enhanced rate of per hour by an independent agency such as or other similar provider, to remedy the failure to provide as mandated during the 2015/16 school year;
10. an order directing the Department to provide additional compensatory services of for services not provided to the parent during the 2015/16 and 2016/17 school years at an enhanced rate of per hour by an independent agency such as or other similar provider, to remedy the failure to provide services as mandated during the 2015/16 and 2016/17 school year.
On September 2, 2016, the parent amended her complaint to include a claim that the August 10, 2016 IEP denied the student a FAPE. Parent Ex. V. The parent added, inter alia, a request for an evaluation. Parent Ex. V-9.. Parent’s counsel identified five areas of relief not resolved by either a partial resolution agreement or by the August 2016 CSE, namely:
1. a and ;
2. a evaluation;
3. a reconvene of the CSE to review evaluations;
4. the addition of to the current programming;
5. compensatory services for
.
THE DEPARTMENT’S POSITION
Although the District is not contesting the allegations for the 2015-2016 school year, its the position is that the remaining relief requested is inappropriate. More particularly an IEP meeting was held in August 2016 where the IEP team recommended a deferral to CBST for non-public school placement. (TR. 62). is currently attending a school and it is the DOE’s position that the requests for additional evaluations and services be determined by the Student’s new school placement.
Furthermore, the requests for compensatory services are inappropriate and the DOE asserts that there is no basis for the hours recommended and that they are most likely overestimated. Although Ms. recommended an and , she agreed that these would more appropriately be conducted by the Student’s new school placement. Finally, the DOE asserts that was referred for an initial evaluation for special education services in September 2015 and an initial IEP was created for her in November 2015 which recommended placement in a
.
The IEP team reconvened in March 2016 and recommended that the Student be moved to a for her year starting in September 2016. (TR. 61). Contrary to the allegations in the Complaint, all team members, including the Parent, agreed that since
, this new
program should not be implemented until the Fall. (Id.). This recommendation was made prior to the receipt of the evaluation which was relied on by the team in August 2016.
The Parent is requesting compensatory services and an IEP reconvene in order to review the new request and evaluations and to add additional services to the IEP. The parties in this case entered into a partial resolution and the DOE has agreed to fund the requested independent evaluation, which was conducted by Dr. . The original due process complaint alleged that an IEP meeting was held and the team recommended that be placed in a nonpublic school, in accordance with the recommendations from the independent evaluation. It is the DOE’s understanding that has now been accepted to a nonpublic school. With respect to the claims that was denied a FAPE for the 2015/2016 school year, the DOE will not be presenting a case to defend the IEP that was in place last school year, since the DOE agrees that required a more supportive program.
In conclusion, the DOE request that this be taken into account by the hearing officer in rendering a decision in this matter. Additionally, with respect to the request for relief in the amended complaint, the DOE's position is that now that the student will be attending a nonpublic school, the request for additional evaluations and , to be provided by the Department of Education are no longer valid, as the need for additional support should be determined by the student's new school placement.
PARENT’S POSITION
was currently, as of October of 2016 attending a , comprised of . In September of 2015 her parent requested an evaluation due to concerns. The CSE met at the beginning of the 2015/2016 school year, after conducting a assessment, a , a , and a ; the evaluations revealed that ,.
The Parent maintained that her daughter was
. Notably, during the ,
. Furthermore,
;
. The observer
summarized that , and .
A CSE meeting was held on November 20, 2015 for the purpose of reviewing the evaluations; a new IEP was developed for her, it classified her with , and recommended placement in the with
, ,
. The IEP indicated that
, and
. During the months between November
2015 and March 2016, . Her parent submitted at least two letters complaining that . On her report card for the 2015/2016 school year, she received a score of . She received a score of
.
The CSE reconvened on March 11, 2016, without conducting any updated or new evaluations and recommended that be placed in a .
This was generated for the '16/'17 school year. The CSE did not recommend a program despite and did not implement the placement until September 2016. The IEP did not contain appropriate goals and did not provide appropriate or sufficient services to address , including in the areas of . On April 1st, 2016, the Parent informed the DOE of her objection to the DOE's evaluation and requested an independent evaluation to be completed at the DOE's expense. Furthermore, the CSE, when it made its recommendation in March 2016 had not reviewed the new evaluation. On August 10th,
2016, the CSE met to review the evaluation that had been conducted, and also conducted its own evaluation directly before the IEP meeting.
Neither a nor evaluation were conducted within the required 60 day period of the Parent's consent for evaluation.
While the Parent agrees with the recommended special education program of an , the parent has concerns about some of the omissions on the August 10, 2016 IEP; the IEP does not include a recommendation for . The parent believes that she should be provided with of this related service. Although a and evaluation were conducted, the parent believes that a is warranted, given the . The IEP should indicate that she requires a , given . The IEP fails and does not include ,
.
Finally, the IEP does not indicate that requires an , even though this was the recommendation in Dr. 's independent evaluation report which was reviewed by the IEP team at the August 10, 2016 meeting. The goals on the IEP do not improve goals for goals.
DEPARTMENT’S CASE
The DOE did not provide any witnesses. The DOE represented that it will not defend the 2015-2016 school year, however the IEP that was created over the summer
2016 with deferral to CBST is an appropriate IEP that is not being challenged in the due process complaint herein..
PARENT’S CASE
Dr. testified that she has a B.S. from and a
Ph.D. in from . She is licensed in the State of New York as a and is currently employed at . She has been a since ;
.
She also . Tr.27. The witness stat that and her mother came to clinic in order to be evaluated, because “ ”; The witness met the Parent in October 2015, and met in January of 2016 Tr. 28.
was evaluated and assessed; educational records, including IEP and evaluations were reviewed. The witness conducted a evaluation in April and May of Case No. 160732
2016; she identified Exhibit HH, as her report dated June 2016 Tr. 29.
Upon review of the evaluation, the witness stated that “ ”. ’s mom was very concerned and it was decided that a be administered in order to try to understand
, and
.. Dr. stated that a evaluation typically takes about three days, however for it took four days to do the actual administration of the test; another day and a half to input the data into the computer and figure out
. Additionally, it takes another two to three days to write up the report. Her charge for a evaluation is is and she stated that is the usual and customary rate in the community Tr.31. Based on her review of the records and treatment the child was receiving at , both she and her , Dr.
confirmed that
Tr. 34.
, which is consistent with .
Tr. 35.
The witness stated that according to the actual testing “ ”. However, because there was inconsistency in the tests that generate the , we considered that the overall score has to be interpreted with caution.
, “
”. The witness stated that
.
. “
” Tr.36.
Dr. stated that ;
, and she believed that this is contributing to
Tr.36. Furthermore,
,
. The witness stated that
; and this is all consistent with .
, .
.
, ,
. These are all consistent with
. Furthermore,
.
, and this is consistent with the IEP's and the prior evaluation.
;
, consistent with what the IEP's reported. The witness testified that “
”.
Based upon the all the facts, Dr. stated that requires
, ,
. also required
,
. She also needs .
The witness reiterated that the testing was done prior to the August 2016 IEP and that she is aware of the fact that has been approved for private school; “
”. Dr.
recommended that needs an evaluation as
, which means , and “
” Tr. 39..
The witness stated that from the time of her IEP meeting in November, until the present time, has been in has and would not be able to make progress, given the needs that she has identified. Noteworthy is that in the November 2015 the reported that the teacher said that , that Tr. 40-41.
Regarding her recommendation for to
, she noted that the IEP from last year recommended and that recommendation was not sufficient to address her needs in that area.
She required , and “
”. Additionally, is necessary as ,
Tr. 42.
Dr. also testified that based on her evaluation, review of the records and
IEP's, is it her opinion that requires makeup to address her needs. She needs , with a , in order to .
Furthermore, as ,“
”. Additionally, “
”. Dr. stated the child requires an and that needs to be listed on her IEP Tr. 43.
Upon cross examination, the witness stated that Ms. is a student who is studying to quire her doctorate; that in New York State graduate students are permitted to work under the supervision of the . Ms. administered the tests and conferred with her Tr. 47. Furthermore, the witness stated that she was not a participant in that IEP meeting conducted in August 21`06 Tr. 48.
Lastly, Dr. testified that should not go to a school that does not have ; the only thing that's optional is whether the school has a different mechanism to provide the . “
” Tr. 50.
The Parent after being duly sworn stated that her daughter is and that in the '15/'16 school year she had an IEP and was in in the same school that she attended in Tr. 53. At the start of the last school year the witness stated that she requested an evaluation. She was directed to Exhibit #P-C-6, the IEP in effect at the time and noted that it provided for
. The IEP
didn’t recommend a and her daughter was in a in . The Parent stated that she was concerned about her daughter coming home and telling her “ ”. ’s teacher complained to the to me (parent) about
Tr. 57. The witness stated that she spoke to her teacher, and the principal regarding her concerns, and also “ ”. The witness was directed to Parent’s Exhibit G, and stated that it was her letter that she wrote regarding the above. At the March 2016 IEP meeting, the CSE recommended a .” According to the Parent “ . After that meeting, she requested an independent evaluation with Dr.
; after she received the evaluation, the witness stated that she attended another IEP meeting in August of 2016; just prior to the meeting, the DOE performed a evaluation. The CSE recommended that her daughter attend a nonpublic school Tr. 58-
59.
The Parent was directed to Exhibit X, the August 2016 IEP wherein on page 5 it was recommended that the student receive services and ; it didn’t provide for Tr. 63. The Parent stated that she never received for the present school year and or for the 2015-16 school year Tr. 64. The witness stated that it would useful to “ ”. She agreed that required services that and that she needed the services prior to this time. “
” Tr. 65.
Additionally, she ( ) needs a as
. The Parent
stated that her daughters IEP from 2015-16 school year, recommended
; she believed “
”.
The Parent testified that currently, her daughter is still in and began attending in September 2016. She believed that her daughter was going to be in a and did not know that was in a . She spoke to the principal two days later; the teacher told her that ; she was not aware of ’s status.
The principal told her that “
” Tr.66-67.
In March 2016, she testified that she received a recommendation for a , at the school where her daughter started in the previous school year. She told the principal that there was a CSE meeting a few weeks earlier that the team recommended a nonpublic school; the principal didn’t know anything about the recommendation Tr. 68. The witness spoke to the at the August 2016 IEP meeting who told her that “ . Finally, was recommended; an IEP meeting was scheduled for November 4, 2016. The Parent testified that she believes her daughter needs makeup ;
Tr. 72.
Upon cross examination, with regards to the March 2016 meeting, wherein the team recommended a , she agreed that the team would defer the implementation of that until the fall, rather than to change her class towards the end of the school year. At the August 2016 IEP meeting, when the team deferred her case to the CBST, for a nonpublic school, there had been a evaluation, and the team considered Dr. 's evaluation at that time. The Parent stated that everyone, collectively, decided that nonpublic school would be the appropriate placement for with an appropriate program; services were recommended , which she believed was appropriate Tr. 74.
The witness stated that she initiated contact with the schools; she called all on the schools on the list that they sent and was told “ . Ultimately, she gained an acceptance to .
Ms. submitted an affidavit in lieu of testimony and appeared telephonically for cross examination. Ms. is a New York State-licensed and a certified . She reviewed all of ’s educational records that were submitted in the hearing disclosures and confirmed that “ .” Aff., ¶16. Her “
” Id.
Specifically,
. Id.
.. should be conducted by . In addition, to the extent the warrants a ,a be conducted. Ms. indicated that her agency, , could for and for an additional . Aff., ¶ 7, 8.
She requested that the IHO should direct the Department to contract with , at the above rates, to and, as necessary, .
indicates that requires “
” as well as “ ” and “
” Aff., ¶ 22. These should be provided in a employing , by a professional trained in .
Aff., ¶ 23, 24. Ms. recommends hours of compensatory , and the Department called no witnesses to rebut this conclusion. Aff., ¶ 39. . should receive of makeup services over the course of a . Id.
.’s parent should receive compensatory . While this service was recommended for 2015/16, no services were actually provided. Parent
Ex. B-8; Tr. 60, 63–64. And as noted above, this service was inexplicably removed from
.’s program in August 2016. Ms. recommends hours of compensatory , and the Department has not rebutted this position. Aff., ¶ 40. In fact, . was mandated under the March 11, 2016 IEP. Parent Ex. B-8. The Department advanced no explanation as to its removal in August 2016. The IHO should order these services to be restored, and further order that the parent receive . Aff., ¶ 43.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This hearing was requested pursuant to the Individuals with Disabilities Education Act (the “IDEA”) (see 20 USC § 1400 et seq.). “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education…designed to meet their unique needs…[and] to ensure that the rights of Case No. 160732 children with disabilities and parents of such children are protected” (M.H. v. N. Y. C.
Dept. of Educ., 685 F3d 217, 223 (2d Cir. 2012) (citing 20 USC § 1400(d)(1)(A)-(B))).
Further, “a school district’s program must provide ‘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.” (M.H. v. N.Y.C. Dept. of Educ., supra, at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105,107
(2d Cir. 2007) (internal citations omitted)).
A central purpose of the IDEA is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. 1400 [d][l][A]; Bd. of Educ. v Rowley, 458 U.S.
176, 179-181,200-01. FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written
IEP (20 U.S.C. 1401 [9J][DJ; 34RCNY 300.17.
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate; the services selected by the parent were appropriate and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dept of Education, 471 U.S. 359 [1985]; Florence County Sch. District Four v. Carter, 510 us. 7 [1985]). The first step is to determine whether the district offered to provide a FAPE to the student. FAPE is offered to a student when (a)
the board of education complies with the procedural requirements 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 at 206-07). Under the IDEA, if a procedural violation is 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 FAPE,
(b) significantly impede 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. 1415 [f][3][E] [ ii]
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 educational (A pplication of Case No. 160732 a Child with a Disability, Appeal No. 07-008, A pplication of the Bd of Educ., Appeal No.
06-076).
The IDEA "expresses a strong preference for children with disabilities to be educated "to the maximum extent,"" appropriate with their non-disabled peers." See W alcz akv. Fla. Union Free Sch. Dist.; 142 F,3d 119,122 (2nd Cir. 1998). A FAPE must be provided to a child with disabilities in the "least restrictive setting consistent with the child's needs (see Perricelli v. Carm el Cent Sch. Dist., 2007 WL 465211, at 10*[S:D.N.Y.
Feb. 9,2007], citing W alczak, 14'[2] F.3d 2t122) .In determining: an' appropriate .placement in the LRE, the IDEA requires that a child with disabilities be educated to the maximum extent. appropriate with children who are disabled and that special classes, separate schooling or other removal of children with disabilities from the .regular educational environment may occur only when the nature or 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][5J [AJ; 8 NYCRR 200.6 [a][l]; see also Bay Shore Union Free Sch. Dist. T. 40SF.Supp. 2d 230, 239-40 E.D.N.Y. 2005.) In determining whether a student can be educated in regular classes, it is not necessary to establish that the student will learn at the same rate, or master as much of the regular education curriculum as his or her disabled peers(Daniel R.R. v. State Bd. of Educ .. 874 F.2d 1036. 1044 [5th Cir, I]. 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. Bd of Educ .· 995 F. 1204, J213 [3rd Cir.
]993]). The Daniel R.R. Oberti test for" determining whether a school district has complied with the LRE requirement consists of two prongs: l) whether the student can be educated in .a general education class with the aid of supplemental aids and services; and and 3)the possible negative effects of the inclusion of the child on the education of the other students in the class (Oberti, at 1217-18). The CSE must also consider the unique benefits, academic and otherwise, which a Student may receive remaining in regular classes e.g. language and role modeling with nondisabled peers (Geer v. Rome City Sch., Dist., 950 F.2d 688 [11th Cir. 1991]).
School districts are required to formulate an Individualized Education Program (IEP) for each student with a disability in order to deliver appropriate services to that child. It is “[t]he centerpiece of the IDEA’s educational delivery system” (M.H., supra, at 224 (quoting D.D. ex rel. V.D., 465 F3d at 507)). Moreover, “for a child’s IEP to be adequate, it must be “[‘]likely to produce progress…and afford the student with an opportunity greater than mere trivial advancement’” (Id. (quoting T.P. ex rel. S.P. v.
Mamaroneck Union Free Sch. Dist., 554 F3d 247, 254 (2d Cir. 2009).
It is fundamental that the CSE’s placement recommendation must be based upon the student’s needs (34 CFR §300.116(b)(2), and that the IEP must be based upon current evaluations (SRO 11-126 at 20). 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.” SRO 08-052; SRO 08-060 (citations omitted).
Federal regulations require that, once an IEP is adopted for a disabled child, “[e]ach public agency shall ensure that (1)[a]n IEP ... [i]s implemented as soon as possible following the [IEP] meeting (D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 508 (2d Cir. 2006), 480 F.3d 138 (2d Cir. 2007)). New York State regulations mandate that “there may be no delay in implementing a student's IEP” (8 NYCRR §200.4(e) (1)(i)), that “the school district shall ensure that each student with a disability has an IEP in effect at the beginning of each school year” (8 NYCRR §200.4(e)
(1)(ii)), that the “the school district shall ensure that the recommendations on a student’s IEP… are implemented” (8 NYCRR §200.4(e) (3), and that “the school district must provide special education and related services to a student with a disability in accordance with the student's IEP” (8 NYCRR §200.4(e) (7)). The IEP of each student with a disability shall be reviewed and, if appropriate, revised periodically, but not less than annually, to determine if the annual goals for the student are being achieved. (8 NYCRR §200.4 (f))
“In developing the recommendations for the IEP, the committee must consider the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the results of the student’s performance on any general State or district-wide assessment programs; and any special considerations in paragraph (3) of this subdivision.” 8N.Y.C.R.R. § 200.4(d)(2). In R.E.
v. NY CDOE, 694 F.3d 167 (2nd Cir. 2012), the Second Circuit “adopt[ed] the majority view that the IEP must be evaluated prospectively as of the time of its drafting[.]” Id., at 186. The Department has the burden of proving its program and placement recommendation to be appropriate. N.Y. Ed. L. § 4404(1)(c).
In this case, the Department elected not to defend its programming, “ .” Tr. 13-16. As such, the question for the IHO is the appropriate remedies.
PARENT’S COUNSEL REQUESTS THE FOLLOWING:
A AND TO
Functional behav ioral assessment means “the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment. The functional behavioral assessment shall be developed consistent with the requirements in section 200.22(a) of this Part and shall include, 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 N.Y.C.R.R. § 200.1(r). B ehav ioral intervention plan means “a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior.”
8 N.Y.C.R.R. § 200.1(mmm). A CSE must conduct “a functional behavioral assessment for a student whose behavior impedes his or her learning or that of others[.]” 8 N.Y.C.R.R.
§ 200.4(b)(1)(v).
“The failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student’s behaviors, leading to their being addressed in the IEP inadequately or not at all. As described above, such a failure seriously impairs substantive review of the IEP because courts cannot determine exactly what information an FBA would have yielded and whether that information would be consistent with the student’s IEP. The entire purpose of an FBA is to ensure that the IEP’s drafters have sufficient information about the student’s behaviors to craft a plan that will appropriately address those behaviors.” R.E.
v. New Y ork City Dept. of Educ., 694 F.3d 167, 190 (2nd Cir. 2012
A E VALUATION
Dr. testified that . “
” during her evaluation. Tr. 36. In her evaluation report, she recommended that
. undergo a “
” Parent Ex. HH-14. While the Department did conduct a evaluation, Dr. testified that still needs to be evaluated for , because she “ ” Tr. 39. The Department provided no testimony to rebut Dr. ’s opinion. As such, it is requested that the IHO should direct the Department to conduct a evaluation.
A RECONVENE OF THE CSE TO RE V IE W E VALUATIONS
If the parent obtains an independent educational evaluation at public expense or shares with the school district an evaluation obtained at private expense, the results of the evaluation must be considered by the school district, if it meets the school district’s criteria, in any decisions made with respect to the provision of a free appropriate public education for the student. 8 N.Y.C.R.R. § 200.5(g)(1)(vi)(a). As noted above, I direct an independent , and AN evaluation be conducted. Once these evaluations are completed, the CSE must reconvene to review them within 14 days of receipt of the evaluations.
The regulations mandate various services for . 8 N.Y.C.R.R.
. “Provision shall be made for parent counseling and training as defined in section 200.1(kk) of this Part for the purpose of enabling parents to perform appropriate follow-up intervention activities at home.” 8 N.Y.C.R.R. § 200.13(d). “Parent counseling and training means assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child’s individualized education program.” 8 N.Y.C.R.R. § 200.1(kk).
Furthermore, “[f]or parents of students placed in special classes described in subparagraphs (4)(ii) and (iii) of this subdivision, provision shall be made for parent counseling and training as defined in section 200.1(kk) of this Part for the purpose of enabling parents to perform appropriate follow-up intervention activities at home.” 8 N.Y.C.R.R. § 200.6(h)(8). This includes students in an 8:1+1 setting. 8 N.Y.C.R.R. §
200.6(h)(4)(ii)(b). Dr. testified that . Tr. 41–42.
In fact, . was mandated under the March 11, 2016 IEP. Parent Ex. B-8. The Department advanced no explanation as to its removal in August 2016. These services to be restored, and the parent receive .
Aff., ¶ 43.
The courts have held that the failure to fund as an integral part of an educational program is a denial of FAPE. See, Deal v.
Hamilton County Bd. of Ed., 392 F.3d 840 (6th Cir 2004); T.H. v. B oard of Education of
Palatine Community Consolidated School D istrict, 55 F. Supp.2d 830 (D.Ct. 1999); Mr.
X . v. New Y ork State Education Departm ent, 975 F. Supp. 546 (S.D.N.Y. 1997); Sackets
Harbor Central School District v. Munoz, 33 IDELR 154, 33 LRP 6306 (N.Y.Sup.
2000); M.H. v. New Y ork City Dept. of Educ., 712 F.Supp.2d 125 (S.D.N.Y. 2010). In M r.
X ., the court found a denial of a free appropriate public education where the Department recommended a smaller number of hours ( ) than recommended by evaluators ( ). In
M.H., the parents’ expert recommended ; the
Department’s failure to offer an program (at all) was deemed a substantive violation of IDEA. I agree with the recommendations of the Parent’s experts.
C OMPENSATORY S ERVICES
While compensatory education is a remedy that is available to students who are no longer eligible for instruction, State Review Officers have awarded “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. SRO 06-074; see also Streck v. B oard of Educ. of the East Greenbush Central School Dist., 2010 WL 484748, *2 (2nd Cir. 2010) (“To implement the SRO’s award, the value of the prospective compensatory education must be set aside by the school district and placed in ESCROW for use in paying up-front for the compensatory education expenses”).
In the SRO decision that led to Streck, the SRO stated that “[t]he obligation to implement a sufficient IEP and thus provide a student with a FAPE rests with the school district. Where, as here, the evidence supports a finding that the district denied the student a FAPE for an extended period of time, it is appropriate to provide a remedy that is calculated to place the student in the same position where the student would be if an appropriate program had been implemented during the years when the student was eligible for special education under IDEA.” SRO 03-010.
The Second Circuit observed that “[i]n enacting the IDEA, Congress did not intend to create a right without a remedy.” Streck, supra, at 415. “Therefore, when a court grants prospective compensatory education under the IDEA, the prevailing party’s ability to utilize that award cannot turn on its ability to finance the costs of the education awarded. Id. To implement the SRO’s award, the value of the prospective compensatory education must be set aside by the school district and placed in ESCROW for use in paying up-front for the compensatory education expenses. The district court shall order
Greenbush to open, and maintain for a period of three years, an ESCROW account, which will be used to pay for David’s remaining two years of compensatory reading education. The Strecks are entitled to recover from this ESCROW account only the amount that they actually spend on additional reading education for David, as evidenced by receipts or bills from David’s educator or educational institution. The Strecks shall provide these bill or past receipts to the ESCROW account manager, who will then pay the appropriate party out of the ESCROW account. Any money left in the ESCROW account after three years will be returned to Greenbush.” Streck, supra, at 415.
In Streck, the SRO found a “gross violation” of IDEA, in that “the student was not being instructed by a professional trained in teaching students with dyslexia or dysgraphia, and that IEP evaluations were submitted to the CSE with knowledge that they did not accurately reflect the student’s level of achievement.” SRO 03-010. Recent district court decisions in this circuit indicate a trend toward holding that proving a “gross” violation of IDEA is only necessary to receive compensatory education where the student has aged out of his IDEA eligibility, namely, that he is over the age of twenty-one. See, e.g., Student X v. New Y ork City Dept. of Educ., 2008 WL 4890440 (E.D.N.Y.
2008) (“The district court in that case had explicitly ‘disagreed’ with the argument that compensatory education is warranted only if there is a gross violation, noting that ‘[t]he requirement of a gross violation before any relief can be granted has been applied only to cases involving claimants over the age of 21.’ ”) quoting P. v. Newington Bd. of Educ., 512 F.Supp.2d 89, 112 n. 13 (D.Conn. 2007) aff’d 546 F.3d 111 (2nd Cir. 2008) (“The hearing officer in this case ordered that receive compensatory education to remedy the deprivation of his statutory rights for the 2004– 2005 school year” and upholding that award). In upholding the award of compensatory education in P. v. Newington, the Second Circuit held 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.” 546 F.3d at 123. In Reid v.
D.C., 401 F.3d 516, 524 (D.C. Cir. 2005) a district court held that “awards compensating past violations [must] rely on individualized assessments[,]” rather than “mechanical hour-counting when past rather than current violations of the FAPE standard were at issue.”
The Department concedes that its programming for 2015/16 offered inadequate support for .’s special needs. Tr. 13, 14–16. indicates that . requires
“ ” as well as
“ ” and “ ” Aff., ¶ 22. These should be provided in a employing , by a professional trained in . Aff., ¶ 23, 24. Ms. recommends hours of compensatory , and the Department called no witnesses to rebut this conclusion. Aff., ¶ 39. T. should receive hours of makeup services over the course of a
. Id.
’s parent should receive compensatory . While this service was recommended for 2015/16, no services were actually provided. Parent
Ex. B-8; Tr. 60, 63–64. And as noted above, this service was inexplicably removed from
.’s program in August 2016. Ms. recommends hours of compensatory , and the Department has not rebutted this position. Aff., ¶ 40. Dr. testified that the service is important because there needs to be “ ” to avoid
“ and to allow the student “
.” Tr. 42.
. did not receive any services during the 2015/16 school year; this service was added to her IEP in August 2016. The IHO should order one year’s worth of makeup , at the frequency of , or a total of , or
.
Furthermore, for 2015/16, .was only mandated to receive , which was woefully inadequate to meet her special needs.
Parent Ex. B-8. She should have been receiving , . Parent Ex. HH-14; X-5. recommended of compensatory ; the Department did not rebut this recommendation.
After reviewing the record, I find as follows:
1. That the Department denied . a FAPE for the 2015/16 and the 2016/17 school years;
2. I order the Department to pay for additional make-up
( ) at an enhanced rate ( per hour) by an independent provider of the parent’s own choosing , to remedy the failure to provide services for the 2015/16 school year;
3. I order the Department to pay for additional make-up ( ) at an enhanced rate ( per hour) by an independent provider of the parent’s own choosing , to remedy the failure to adequately address during the 2015/16 school year;
4. I order the Department to pay for additional make-up services ( )
at an enhanced rate ( per hour) by an independent provider of the Parent’s own choosing , for failing to recommend and/or provide services for the 2014/15 and 2015/16 school years;
5. I order that the Department to pay for additional make-up services ( at an enhanced rate (not to exceed per hour) by an independent provider of the Parent’s own choosing , for failing to recommend and provide services for the 2015/16 school year;
6. I order that the Department fund
;
7. I order an independent ( ) and ( ) to be conducted at the rates as provided
8. I order that the Department conduct a evaluation, and, if the Department is unable to do so within ten days, an order authorizing payment, by the Department, for an independent evaluation, by a provider of the parent’s choosing, at the provider’s customary rate in the community.
9. I order the provision of ( ) be added to the student’s
IEP;
10. I order that the provision of ( ) be added to the student’s IEP
ALL PAYMENTS TO BE MADE WITHIN 30 DAY OF RECEIPT OF INVOICES
EXCEPT AS OTHERWISE PROVIDED FOR HEREIN.
Dated: January 6, 2017
GARY D. PETERS, ESQ.
Impartial Hearing Officer
GDP:
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’S EVIDENCE
Exhbt. Description Date Pages
A Impartial Hearing Request 6/14/16 9
B IEP 3/11/16 13
C IEP 11/20/15 10
D Assessment Authorization Form 5/13/16 7
E Consent for Re-evaluation 4/8/16 2
F Letter to from Parent 4/1/16 1
G Letter to from Parent 2/2/16 1
H Consent for Initial Provision of Services 11/24/15 1
I Prior Written Notice 11/24/15 1
J CSE Minutes Notice 11/13/15 2
K Letter to from Parent 10/20/15 1
L Evaluation 1/13/16 2
M Evaluation 11/17/15 7
N 10/5/15 1
O Evaluation 9/28/15 2
P Intentionally Omitted
Q Report Card 3/15/16 2
R Report Card 11/17/15 2
S 11/17/15 1
T Intentionally Omitted
U Teacher Progress Report October 2015 1
V Amended Impartial Hearing Request 9/2/16 10
W Partial Resolution Agreement 8/29/16 2
X IEP 8/10/16 11
Y 9/6/16 1
Z 9/2/16 2
AA CBST Letter to Parent 8/29/16 1
BB Central Response for Consideration
of a NPS Approved 8/29/16 1
CC 8/29/16 1
DD 8/29/16 1
EE NYS Approved NPS Referral List 8/29/16 1
FF CBST Referral Packet Various Dates 47
1. IEP 8/10/16
2. Evaluation (9/28/15)
3. Evaluation (6/30/16)
4. Evaluation (11/13/15)
5. Evaluation (8/10/16)
6. Report Card (6/24/15)
GG Evaluation 8/10/16 11
HH Evaluation 6/30/16 14
II Report Card 6/24/16 2
JJ 3/1/16 3
KK 3/1/16 3
LL Request for Educational Records 3/23/16 1
MM Request for Evaluation 9/10/15 1
NN Subpeona undated 1
OO Affidavit of 8/4/16 5
IHO’S EVIDENCE
I Subpeona 8/29/16 1
DOE’s EVIDENCE
Exhbt. Description Date Pages
1 Impartial Hearing Request 6/14/16 9
2 Due Process Response 6/20/16 4
3 IEP 3/11/16 16
4 IEP 11/20/15 16
5 Evaluation 11/13/15 7
6 10/5/15 1
7 Evaluation 9/28/15 2
8 AA for Indep. Eval. 6/21/16 5
9 AA for Indep. Eval. 5/13/16 5
10 Report Card 6/24/16 2
11 Notice of Request for Evaluation 4/8/16 1
12 Parent Request for Independent
Eval. 4/7/16 1
13 Parent Consent for Services 3/11/16 1
14 Prior Written Notice-Package 3/11/16 1
15 Notice of IEP Meeting 3/11/16 1
16 (
) 3/1/16 6
17 Prior Written Notice-Package 11/24/15 3
18 Parent Consent for Services 11/24/15 1
19 11/24/15 1
20 Teacher Progress Report 11/23/15 1
21 Notice of IEP Meeting 11/13/15 3
22 9/28/15 2
23 Parent Consent for Initial Eval. 9/28/15 1
24 Prior Written Notice-Initial Referral 9/25/15 6
25 9/25/15 1
26 Parent Request for Initial Evaluation 9/21/15 1
27 SESIS Events Log 9/25/15 – 6/30/16 5
28 Proposed Resolution Agreement 7/8/16 2
Footnotes
[2] whether the school district has main streamed the student to the maximum extent appropriate (Daniel R.R. at 1048). In determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, several factors should be considered including; 1) whether the school district has been reasonable in trying to accommodate the child in a regular classroom; 2) the educational benefits available to the child in a regular class, 'with appropriate supplementary aids and services,