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FINDINGS OF FACT AND DECISION
Case Number: 160923
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 19, 2016
February 6, 2017
Actual Record Closed Date: February 26, 2018
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 19, 2016
For the Student:
ESQ., Attorney
For the Department of Education:
ESQ., Attorney
Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 6, 2017
For the Student:
ESQ., Attorney
Via telephone)
Via telephone)
For the Department of Education:
Representative
I. JURI DICTION -OVERVIEW OF ADMINI TRATIVE PROCEDURE
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 attorneys for the student and the parents in a due process complaint notice dated June 29, 2016. 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”) during the 2016/17 school year (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 (“JEP”), 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 8§ 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 §§ 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(4)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“THO”) typically conducts a trial-type 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 as “Ex.” 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 §§ 200.5G)(3)(v), (vii), (x11). 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 § 200.5G)(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 [HO 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).
II. PROCEDURAL HI TORY
The DOE appointed me to hear this matter on July 29, 2016 following the recusal of another hearing officer. See 8 NYCRR § 200.5G)(3)G). At a hearing held on September 19, 2016, the parents moved for an interim order on pendency (R. 7-8; Ex. PA at 10). See 20 U.S.C. § 1415G); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). The DOE did not oppose the parents’ motion (R. 8). In an Interim Order on Pendency, dated October 26, 2016, I directed the DOE to provide the student with: (Ex. P-C at 7). A hearing on the merits of the matter was thereafter held on February 6, 2017.[2] Appended "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 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).
I. FACTUAL BACKGROUND
At the time of the June 29, 2016 due process complaint, the student and has been diagnosed (Ex. P-A at 2). During the 2016/17 school year, the student attended the school operated by the DOE (Ex. P-A). The student's eligibility for special education and related services as a student is not in dispute in this hearing (Exs. P-A at 1, P-D at 1, P-L at 2). See 34C. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).?
The student has received special education services from the DOE since (Ex. P). In or around 2011, ; he developed (Ex. P-P at 3).
In September 2011, , a , conducted an independent evaluation of the student. In that evaluation, the student received a diagnosis . The evaluation also revealed recommended that the student be placed in a class compliance date were granted (R. 14-15, 140-141; Exs. IHO-I - IHO-XVIID. See 34 C. § 300.515(c); 8 NYCRR§ 200.5()(5).
8 NYCRR § 200.1(zz)(1). recommended that also recommended (Ex. P-P at 6).
An IEP meeting was held on March 6, 2012. The March 2012 CSE declined to classify the student as and instead classified him as * The March 2012 CSE also declined to recommend any services for the student (Ex. P-Y).
On February 21, 2013, another IEP meeting was held. The February 2013 CSE agreed to order an expedited evaluation of the student, agreed to change the student’s educational classification to , and agreed defer his case to the Central based Support Team ("CBST") for placement in a State-approved nonpublic school (Ex. P-A at 6). , a DOE , conducted a evaluation of the student on February 28, 2013 (Ex. P-W).
The CSE reconvened on March 21, 2013 to review evaluation. Consistent with its earlier recommendation, the March 2013 CSE referred the student to the CBST for a State-approved nonpublic school placement (R. 40; Exs. P-L, P-Q at 7). The CBST, however, rejected the March 2013 CSE’s referral on the basis that a program would be appropriate for the student (R. 40; Ex. P-K).
The student started the 2013/14 school year without an IEP or a recommendation for the year (Ex. P-A at 6). The parents filed adue process complaint in November 2013. After the complaint was filed, the DOE issued a Nickerson letter.[5] The parents, however, . 8NYCRR§ 200.1(zz)(8). were unable to identify an appropriate State-approved nonpublic school for the student. The parents enrolled the student in the in the spring of 2014, having been advised by its staff that it would be an appropriate placement for the student (R. 40; Ex. PA at 6). The parties settled the due process complaint for the 2013/14 school year with the DOE agreeing to fund the student’s tuition at the and providing a bank of compensatory and related services hours (Ex. P-I).
The did not prove to be a successful program for the student and (R. 27). The student started 2014/15 school year without an IEP or aschool placement (R. 27; Ex. P-A at 7). The parents again filed for due process. At the hearing, the DOE conceded that it had not provided the student with a FAPE for the 2014/15 school year. ; who presided over the 2014/15 hearing, issued a Findings of Fact and Decision on April 17, 2015 ordered the DOE: (b) make an immediate referral to the CBST and issue a Nickerson letter so that the student could attend a based program if a State-approved nonpublic school program could be located; and (c) to fund an provider to deliver Services, into an appropriate program (Ex. P-B).
The parents located an appropriate program ina school and obtained an provider to work with the student in-school for The student remained in that program (i.e., ) with services throughout the 2015/16 school year, where he made substantial progress (Ex. P-A at 8).
The CSE reconvened on March 30, 2016 to develop an IEP for the student for the 2016/17 school year. The March 2016 CSE acknowledged that the student "work[ed] cooperatively with his and the F.3d 167, 192, n.5 (2d Cir. 2012). The Nickerson letter remedy authorizes a parent to immediately place the student in an appropriate special education program in a State-approved nonpublic school at no cost to the parent. See Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 (E.D.N.Y. Jan. 5, 1982). The remedy provided by the Jose P. decision is intended to address those situations in which a student has not been evaluated within 30 days or placed within 60 days of referral to the CSE See id.; R.E., 694 F.3d at 192, n.5; MS. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 279 (E.D.N.Y. 2010). team agreed that the student was making progress with his services (R. 59; Ex. P-D at 2). Nevertheless, the March 2016 CSE declined to include any services on the student’s IEP and this hearing ensued.
IV. PO ITION OF THE PARTIE
A. The DOE
The DOE conceded that it did not provide the student with a FAPE for the 2016/17 school year and did not offer any evidence at the impartial due process hearing (R. 23, 26). B. The Parents The student was denied a FAPE for the 2016/17 school year. The student is entitled to a program in-school and after-school and , with supervision. The IHO should direct the CSE to create an IEP for the student with those mandates (Ex. P-A).
V. FINDING OF FACT AND CONCLU ION _ OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) 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 (b) 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).[6]
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; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. 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); MLH. 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). 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 IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 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)Gi); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5G)(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; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. 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)G). 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. However, the "IDEA 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 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 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)qQ), 300.116(a)(2); 8 NYCRR 8§ 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 IEP 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)q), (2)G)(A); 8 NYCRR § 200.4(d)(2)(i1), 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).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition ret1mbursement 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 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. Recommended Public Program
At the hearing, the DOE conceded that it failed to offer the student a FAPE for the 2016/17 school year (R. 23, 26). Accordingly, I find in the parent’s favor on that issue.
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 2016/17 school year (Ex. P-A).
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 Bd. 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 adenial 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., M.C. 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 2016/17 school year, I now conclude that the student is entitled to compensatory additional services to remedy the denial of FAPE. Using the credible testimony of and , I shall apply a qualitative approach in fashioning a compensatory remedy of additional services for the student.
1. Services testified at the hearing that she is a and New York State (R. 36). has worked with the student for the past two (2) years (R. 39). primarily worked as the student’s consultant, which means she conducted assessments, developed goals for the student from the assessments, and helped to create a plan of skill development and reduction (R. 39). She provided overall oversight for the student’s program, communicated with the student’s school team on a frequent basis, and made sure that the school team was implementing the interventions she had developed for the student, which were appropriate for him in the school setting (R. 40-41). supervised and , the student’s providers (R. 41). She supervised them both in the and school settings (R. 41). ensured that and were implementing the treatment plan she had devised for the student by going to his school once a month or so and communicating with them on a frequent basis (R. 41). explained that it was important for her to be involved in the student’s and school program because, for intervention, there needs to be someone that centrally develops and oversees the implementation of a treatment plan. Since different providers work with the student across different settings, it is very important to make sure that there was consistency in implementing procedures, (R. 42).
According to , when she first started working the student, (R. 43-44). Since that time, the student made a lot of progress, (R. 44).
Academically, the student made progress (R. 45-46).
(R. 46-47).
also worked with the student (R. 49-50).
created goals for the student in various areas.
(R. 50). Academic goals included:
. Life skills goals included: (R. 52).
created a progress report for the student on January 30, 2017 (R. 52; Ex. P-S). According to the report, the student made progress on all his goals. The team measured the student’s progress by collecting data on each of the goals and graphing that data (r. 53-54; Exs. P-S, P-T). observed and analyzed the data once a week and made decisions based on the data on whether the team should continue with a goal or change it depending on the student’s progress (R. 54). stated that the student made meaningful academic progress with his services at school and required those services because he needed an and someone responsible for implementing that plan across settings (R. 59). She further explained that the student requires (R. 59-60). recommended that the student receive an increase of in-school, to instead of because he is in school for and he cannot go without his provider in school (R. 60). As far as services, recommended that he continue with , which he needs to make meaningful educational progress (R. 61). testified at the hearing that she is one of the student’s two (2) in-school (R. 76-77). stated that she implemented the student’s plans. Although the student is only authorized to receive of in-school ; and the other actually provided him with of , which was the full length of the school week (R. 77-78). stated that it would be dangerous for the student to have any less service in school. The student also received of (R. 78). role in the student’s program included: (R. 80). The the providers worked to decrease included: (R. 86-87). and the other worked on daily living skills as well as encouraged social interaction through reciprocal conversation (R. 83-84). The activities of daily living that worked on with the student were: (R. 90). Academically, worked with the student (R. 88). and the other measured the student’s progress by regularly collecting data and then graphing it in a book that was reviewed by (R. 94-95). Overall, stated that the student made progress, but still requires assistance (R. 92). The student’s progress included: (R. 95-96). stated that the student requires of inschool, push-in services to make adequate educational progress and due to safety concerns (R. 99). also stated that the student continues to require of to help generalize acquired skills across multiple learning environments (R. 100).
The student shall receive of compensatory services. The recommended number of service hours is based on the difference between the recommended of service from the of service the student received via pendency, for a total of ; multiplied by a
D. Prospective Relief - Amendment of IEP
The parents also seek an amendment of the student’s IEP to include: (Ex. P-A).
Based on the circumstances of this case, the claim for prospective relief is denied. In accordance with its obligation to review a student's IEP at least annually, the CSE should have already revised and developed a new IEP for the student for the 2017/18 school year. See 20 U.S.C. § 1414(d)(4)(A); N.Y. Educ. Law § 4402(2); 34 C.F.R. § 300.324(b)(1); 8 NYCRR § 200.4(f). A CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing a student's needs, and it would be inappropriate to circumvent these statutory processes by suddenly ordering amendments to the student's IEP, especially in the absence of any material evidence regarding the annual review of the student's current needs or services conducted subsequent to the matters under review in this proceeding. See Student X, 2008 WL 4890440, at *16 (noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year").
Moreover, the evidence in the hearing record shows that, to the extent that the CSE may recommend a level of related services commensurate with years past (Exs. PD, P-L, P-O, P-Q), these services, in combination with compensatory additional services previously ordered (Ex. P-B at 13) and those ordered below, and a prospective order directing the DOE to provide additional and / , may not be feasible or in the student's educational interests. The appropriate course is to require the parties to come into compliance with the statutory process envisioned under the IDEA and to effectuate equitable relief to remediate past harms that have been explored through the development of an appropriate evidentiary record. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 15-075 at 17 (SRO Sept. 21, 2015). Therefore, the parents’ request that the undersigned direct amendments to the contents of new IEPs going forward is denied.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDING OF FACT,
ITI
HEREBY ORDERED THAT:
1. The parents’ claim that the student was denied a free appropriate public education for the 2016/17 school year is U TAINED;
2. For the 2016/17 school year, the student was entitled to receive:
(a) (b)
(Cc)
(d) a twelve (12) month program to prevent substantial regression of skills; and (e)
3. Within thirty (30) days of its receipt of this Order, the DOE shall authorize the student’s receipt of the following compensatory additional services at public expense:
(a) services.
All other requests for relief are denied.
Dated: March 13, 2018
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
PLEA E TAKE NOTICE
The parent and/or the New York City Department of Education has aright to obtain areview of this decision by a tate Review Officer of the New York tate Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, ection 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Directions and forms can be found on the Office of tate Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview. html
DOCUMENTATION ENTERED INTO THE RECORD
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 6/29/16, 11 pgs.
B. Findings of Fact & Decision , 4/17/15, 15 pgs.
C. Interim Order on Pendency , 10/26/16, 9 pgs.
D. Individualized Education Program (IEP), 3/30/16, 11 pgs.
E. Progress Report, 6/8/16, 10 pgs.
F. [Reserved]
G. [Reserved]
H. [Reserved]
I. Stipulation of Settlement & Discontinuance 7/6/14, 8 pgs.
[Reserved]
ACAY“eRPOVFxsOZSH
CBST Response Notice, 6/26/13, 1 pg.
Individualized Education Program (IEP), 3/21/13, 14 pgs.
[Reserved]
[Reserved]
Individualized Education Program (IEP), 12/1/10, 15 pgs.
Assessment, 9/29/11, 9 pgs.
Individualized Education Program (IEP), 2/21/13, 13 pgs.
CBST Documents, 6/26/13, 4 pgs.
Progress Report, 1/30/17, 11 pgs.
Graphs, 1/2017, 43 pgs.
Classroom Observation, 3/6/13, 1 pg.
Update, 3/13/13, 2 pgs.
Evaluation, 3/14/13, 7 pgs.
Progress Report, 1/29/13, 3 pgs.
Individualized Education Program (IEP), 3/6/12, 16 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
[. Confirmation of Extension, 9/21/16, 1 pg.
I. Confirmation of Extension, 10/12/16, 1 pg.
Ii. Confirmation of Extension, 11/12/16, 1 pg.
IV. Confirmation of Extension, 12/14/16, 1 pg. Confirmation of Extension, 1/13/17, 1 pg.
VI. Confirmation of Extension, 2/13/17, 1 pg.
VIL. Confirmation of Extension, 3/15/17, 1 pg.
VIL. Confirmation of Extension, 4/10/17, 1 pg.
IX. Confirmation of Extension, 5/9/17, 1 pg. Confirmation of Extension, 6/14/17, 1 pg.
XI. Confirmation of Extension, 7/3/17, 1 pg.
XI. Confirmation of Extension, 8/9/17, 1 pg.
XIII. Confirmation of Extension, 9/13/17, 1 pg.
XIV. Confirmation of Extension, 10/9/17, 1 pg.
XV. Confirmation of Extension, 11/6/17, 1 pg.
XVI. Confirmation of Extension, 12/13/17, 1 pg.
XVII. Confirmation of Extension, 1/8/18, 1 pg. XVIII. Confirmation of Extension, 2/12/18, 1 pg.
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
[5] A "Nickerson letter" is a remedy for a systemic denial of a FAPE that was imposed by the U.S. District Court based upon a class action lawsuit, and this remedy is available to parents and students who are class members in accordance with the terms of a consent order. See R.E. v. New York City Dep't of Educ., 694
[6] 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 ; 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] NYCRR § 200.5(j)(5).