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FINDINGS OF FACT & DECISION
Case Number: 161636
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearings: September 11, 2017
Actual Record Close Date: February 6, 2018
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 11, 2017
For the Student:
, ESQ., Attorney , Parent , Director ; Via telephone)
For the Department of Education:
, Impartial Hearing Representative , Teacher (via telephone) (via telephone)
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the parent of the student in a due process complaint notice dated July 11,2016. 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 2014/15, 2015/16 and 2016/17 school years (Exs. P-T, P-U).'[1] When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”’) 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 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. §§ 300.512(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). 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 § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).. The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
The DOE appointed me to hear this matter on July 19, 2016 following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). A pre-hearing conference with the parties was held on November 28, 2016 to clarify the hearing issues and set dates for the hearing (R. 2-36). See 8 NYCRR § 200.5(j)(3)(xi). On December 1, 2016, I was advised that the parent has retained counsel and an amended due process complaint was filed by the parent on January 11, 2017 (Ex. P-U). See 8 NYCRR § 200.5(i)(7). A hearing on the merits of the matter was thereafter held on September 11, 2017.2 Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the January 11, 2017 amended due process complaint, the student (Exs. P-B at 2, P-F at 2, P-G at 1, P-H at 2, P-U at 1, P-J, SD-5 at 1, SD-10 at 3). For the 2016/17 school year, the student attended the at in (Exs. P-U at 1, SD-11). The student's eligibility for special education and related services is not in dispute in this hearing (Exs. P-I at 1, SD-10 at 1). See 34 C.F.R. § 300.8(c)(10);[8] 8 NYCRR §
200.1(zz)(10).*
The student began receiving services, and special instruction through the New York City Early Intervention (“EI”) program. On November 30, 2005, a student evaluation summary report was created for the student, which stated
C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
8 NYCRR § 200.1(zz)(11). that (Ex. P-U at 2).
On December 8, 2005, a evaluation was conducted by found that recommended that (Ex. PU at 2-3).
(Ex. P-U at 3).
In November of 2012, the student was (Ex. P-U at 3).
In or about June 2012, the CSE removed from the student’s IEP based on a evaluation. No evaluation was conducted and/or completed prior to removing from the student’s IEP (Ex. P-U at 3).
On January 10, 2013, the parent obtained a / evaluation due to concerns regarding the student’s academic progress . The evaluator administered the (Ex. PU at 3).
On January 19, 2013, the parent obtained a private evaluation of the student . In addition, to reviewing records, administered the . He clearly needs a program that specializes in complex cases of and can provide a school environment, and a commensurate with these specific concerns” (Ex. PU at 3-4).
On January 20, 2013, the parent obtained a private evaluation of the student. The evaluator observed
The evaluator recommended (Exs. P-U at 4, SD-7).
In a report dated April 4, 2013, the student’s noted that (Exs. P-U at 4-5, SD-8).
On April 12, 2013, the CSE convened to develop an IEP for the student for the 2013/14 school year. The IEP noted the student’s history of receiving ; / and as related services. Although the CSE classified the student as having a , it removed mandated from the student’s IEP.* services were also removed.
At the time of the April 2013 meeting, 8 NYCRR § 200.1(zz)(11). . The CSE also noted that the student (Exs. P-U at 4, SD-5).
The April 2013 IEP also noted that (Ex. PU at 5).
On May 7, 2014, the CSE reconvened to develop an IEP for the student for the 2014/15 school year. The CSE recommended that the student receive
> The CSE also recommended that the student receive related services of (Ex. P-B at 6). The CSE later reconvened on October 23, 2014 to change the student’s placement to an for all core subjects (Ex. P-U at 7).
On May 12, 2015, the CSE reconvened to develop an IEP for the student for the 2015/16 school year. The CSE changed the student’s classification to . The CSE continued to recommend that the student receive the majority of his instruction in an on a . See 8 NYCRR § 200.6(g)(2). . The CSE discontinued the student’s . The CSE recommended that the student receive related services of (Ex. P-H at 7-8).
On April 18, 2016, the CSE reconvened to develop an IEP for the student for the 2016/17 school year. The CSE continued to recommend that the student receive the majority of his instruction in an . The CSE continued to recommend that the student receive . The CSE, however, discontinued the student’s (Ex. P-I at 5).
The parent and the student’s ; , disagreed with the CSE’s decision to discontinue the student’s . On August 10, 2016, the parent submitted a Request for Section 504 Accommodations to the DOE, in which he requested that the DOE mandate (Ex. P-J).
In a letter dated October 13, 2016, the student’s ; , explained that she began treating the student after the CSE discontinued his . She noted that recommended that the CSE restore to the student’s IEP (Ex. P-K).
In a letter dated October 21, 2016, , the student’s , stated that the student is diagnosed with and recommended that he “continue with all available ” (Ex. P-L).
In a letter dated October 24, 2016, advised that the conducted a evaluation of the student with revealed that . In addition, noted that recommended that the CSE restore the student’s
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE provided the student with a FAPE for the 2014/15, 2015/16 and 2016/17 school years which was reasonably calculated to enable him to receive educational benefit in the least restrictive environment. The student’s medical needs did not hinder his access to a FAPE.
B. The Parents
The student was denied a FAPE for the 2014/15, 2015/16 and 2016/17 school years. The DOE violated Section 504 of the Rehabilitation Act of 1973. The student is entitled to compensatory and related services (Ex. P-U).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are:
(a) to ensure that students with disabilities have available to them a free appropriate public education (“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); M.H. 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)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); 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 IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. 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)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp.
2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y.
2008).
An appropriate educational program begins with an 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)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), 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 reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also 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 Programs
The evidence contained in the hearing record demonstrates that the student was denied a FAPE during the 2014/15, 2015/16 and 2016/17 school years.
Procedurally, the DOE impeded parental input by failing to provide notice to the student’s father of upcoming meetings, failing to provide the student’s father with mandated progress reports, and by conducting CSE meetings in the absence of the student’s parents.
Biological and adoptive parents that have the right to make educational decisions for their children are "parents" under the IDEA. See 34 C.F.R. § 300.30(a)(1). When the parents of a child with a disability are divorced, the parental rights under the IDEA apply to both parents, unless a court order or other state law specifies otherwise. See 71 Fed. Reg. 46,568 (2006); 34 C.F.R. § 300.30(b)(1). The evidence contained in the hearing record demonstrates that the DOE failed to provide the student’s father with notification of the student’s upcoming meetings and placements (R. 110-112, 228-230, 249, 262-263, 270-271; Exs. P-C, P-D, P-E, P-I, SD-1, SD-2, SD-3).
2014/15 School Year
During the course of the 2014/15 school year, the student The student’s failure to make meaningful educational progress during the 2014/15 school year is evidenced by his IEP progress reports which indicated that (Ex. P-I at 1).
The DOE’s only witness for the 2014/2015 school year was , who was unable to recall how the student performed (R. 94). admitted that she could not adequately speak to the student’s levels for the 2014/15 or the 2015/16 school years (R. 138).
2015/16 School Year
For the student’s , his IEP reported that (R. 133; Ex. P-I at 1).
The student’s IEP reported on (Ex. SD-11 at 3). The student also failed to achieve of his IEP goals (Ex. P-H at 3-7).
For the 2015/16 school year the DOE’s only witness was the student’s (R. 162, 166). She offered no testimony regarding any alleged academic progress during that year.
2016/17 School Year
Notwithstanding the absence of any parent from the April 2016 meeting, the CSE improperly proceeded with the meeting and discontinued the student’s notwithstanding (R. 277, 281; Exs. P-I at 5, 10, P-K at 1).[7]
failed to make meaningful progress during the 2016/17 school year (R. 285-286).
The student’s March 24, 2017 academic progress report reflects that (Ex. SD-12 at 1).
The April 5, 2017 IEP reported that (Ex. SD10 at 1).
C. Section 504 Claims
The DOE also denied the student a FAPE under Section 504 by failing to provide appropriate supports and services. Section 504 of the Rehabilitation Act of 1973 provides that:
No otherwise qualified individual with a disability in the United States, ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
2007). If neither parent can attend a CSE meeting, the school district must use other methods to ensure parent participation, including individual or conference telephone calls. See 34 C.F.R. §§ 300.322(c), 300.328; 8 NYCRR § 200.5(d)(1)(iii), (d)(7). A CSE meeting may be conducted without a parent in attendance if the school district is unable to convince the parents that they should attend. See 34 C.F.R. § 300.322(d); 8 NYCRR § 200.5(d)(3). The school district must keep a record of its attempts to arrange a mutually agreed upon time and place, such as telephone call records, correspondence, and detailed records of visits made to the parents’ or place of employment and the results of those visits. See 34 C.F.R. § 300.322(d); see 8 NYCRR § 200.5(d)(3)-(4). 29 U.S.C. § 794(a).
Within the Second Circuit that “a Section 504 claim may be predicated on the claim that a disabled student was “denied access to a free appropriate education, as compared to the free appropriate education non-disabled students receive.” C.L. v. Scarsdale Union Free Sch. Dist.., 744 F.3d 826, 840-41(2d Cir. 2014) (citing S.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D. N.Y.
2007)); BD v. DuBuono, 130 F. Supp. 2d 401, 439 (S.D.N.Y. 2000). In order to establish a Section 504 violation, a plaintiff must show that the school district acted with “bad faith or gross misjudgment.” See Pinn v. Harrison Cent. Sch. Dist., 473 F. Supp. 2d 477, 483 (S.D.N.Y. 2007); Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282 (S.D.N.Y. 2010).
The parent submitted a Request for Section 504 Accommodations and a Medical Review for 504 Accommodations completed by , in August 2016, Those forms also included a renewed recommendation from for a The CSE failed to reconvene after receipt of the Section 504 forms, failed to restore a to the student’s IEP, failed to mandate requested ; failed to , and, without any documented justification, (Ex. P-I at 5-6). Although the April 2017 IEP makes reference to a “504 plan on file , (Ex. SD-10 at 4), the DOE was unable to produce any Section 504 plan created for the student during the school years in question (Ex. SD-14). The DOE’s witness, - had no independent knowledge of the student’s (R. 169, 171-172, 177-178).
D. 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 2014/15, 2015/16 and 2016/17 school years (Ex. P-U).
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 a denial of a FAPE).
Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., MC. v. Central Reg’l 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. Id. at 526.
Given my earlier finding that the DOE denied the student a FAPE for the 2014/15, 2015/16 and 2016/17 school years, I now conclude that the student is entitled to compensatory additional services to remedy the denial of FAPE. Using the credible testimony of , and the parent, I shall apply a qualitative approach in fashioning a compensatory remedy of additional services for the student. The DOE will be directed to provide the student with compensatory based on the denial of FAPE during the 2014/15, 2015/16 and 2016/17 school years. The DOE will also be directed to provide compensatory related services to remedy missed and/or insufficient services provided during the relevant time period.
1.
Following a comprehensive assessment of the student’s skills as of May 2017, the created a curriculum map which proposed instruction and instruction (Ex. P-S at 1-2). The DOE will be directed to authorize the student’s receipt of of compensatory at an enhanced rate to remedy the denial of FAPE for the 2014/15, 2015/16 and 2016/17 school years.
2.
(R. 231-232).
In an October 2016 evaluation, noted (Ex. P-W at 1). In his report, noted that (Ex. P-W at 3-4). To address those difficulties, recommended (Ex. P-W at 5).
In a letter dated October 24, 2016, noted that noted that further recommended that the CSE mandate a (R. 283; Ex. P-M at 1, P-V).
Had the CSE recommended , as recommended by , during each of the in the 2014/15, 2015/16 and 2016/17 school years, the total number of provided would have equaled services.
Alternatively, had the CSE recommended only
The DOE will be directed to authorize the student’s receipt of of compensatory at an enhanced rate to remedy missed and/or insufficient services provided during the 2014/15, 2015/16 and 2016/17 school years.
3. i
The hearing record reflects that the CSE reduced, and later discontinued, services for the student over the parent’s objections (R. 134, 250-251, 263-264; Exs. P-B at 2, 6. P-F at 6, P-G at 1).
In an October 13, 2016 evaluation, noted that the student reported . She further noted that during the evaluation, (Ex. P-V at A). determined that recommended that the student receive (R. 281; Exs. P-K at 1, P-V at 5).
There were approximately of school during the years at issue. Had the CSE approved the that recommended in 2016, on an , that would amount to approximately for each of the years at issue, or The DOE will be directed to authorize the student’s receipt of of compensatory at an enhanced rate to remedy missed and/or insufficient services provided during the 2014/15, 2015/16 and 2016/17 school years.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
1. The parent’s claim that the student was denied a free appropriate public education for the 2014/15, 2015/16 and 2016/17 school years is SUSTAINED;
2. Within thirty (30) days of its receipt of this Order, the DOE shall request the parents’ informed written consent for the following evaluations to determine the student’s current functional levels and needs:
(a) evaluation;
(b) evaluation; (c) / evaluation;
(d) evaluation; and a (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) of compensatory services at an enhanced rate;
(b) of via RSA at an enhanced rate; and
(c) of via RSA at an enhanced rate.
All other requests for relief are denied.
Dated: February 16, 2018
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 40 days of the date of this decision, the parent and/or the public school district has a right to appeal the decision to the State Review Officer ("SRO") of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENTS
( +), 2/2014, 1 pg.
ATPCAOEVMOAZEOZSAPVAGMTK
Individualized Education Program (IEP), 5/7/14, 11 pgs.
Prior Written Notice (Notice of Recommendation), 5/7/14, 4 pgs.
Authorization to Attend, 5/7/14, 3 pgs.
Notice of Committee on Special Education (CSE) Meeting, 10/8/14, 3 pgs.
Individualized Education Program (IEP), 10/23/14, 11 pgs.
Annual Review Plan, 5/7/15, 2 pgs.
Individualized Education Program (IEP), 5/12/15, 13 pgs.
Individualized Education Program (IEP), 5/6/16, 10 pgs.
Request for Section 504 Accommodations, 8/10/16, 5 pgs.
Letter from , 10/13/16, 1 pg.
Letter from ., 10/21/16, 1 pg.
Letter from , 10/24/16, 1 pg.
Student Progress Report, undated, 2 pgs.
Student Progress Report, undated, 2 pgs.
Letter from parent, 4/6/17, 1 pg.
Letter from parent, 4/12/17, 1 pg.
Student Progress Report, 4/14/17, 4 pgs.
Evaluation, 5/25/17, 9 pgs.
Due Process Complaint Notice/Impartial Hearing Request, 7/11/16, 5 pgs.
Amended Due Process Complaint Notice/Impartial Hearing Request, 1/11/17, 20 pgs.
Initial Examination, 10/12/16, 5 pgs.
Initial Examination, 10/13/16, 5 pgs.
DEPARTMENT OF EDUCATION
Notice of Committee on Special Education (CSE) Meeting, 4/21/15, 4 pgs.
CRANADMBWND
Prior Written Notice (Notice of Recommendation), 10/31/14, 5 pgs.
Prior Written Notice (Notice of Recommendation), 6/1/15, 5 pgs. [Reserved]
Annual Review Plan, 4/25/13, 3 pgs.
Tracking Form, 6/13/12, 1 pg.
Tracking Form, 6/18/12, 1 pg.
Tracking Form & Evaluation, 4/4/13, 2 pgs. [Reserved] —_— S. o Individualized Education Program (IEP), 4/5/17, 13 pgs.
Student Report Cards, various dates, 4 pgs.
_-—- NWe Overall Student Progress Report, 3/24/17, 1 pg.
Events Log, various dates, 12 pgs.
14. Email from , 9/26/17, 1 pg.
IMPARTIAL HEARING OFFICER
[. Confirmation of Extension, 9/8/16, | pg.
I. Confirmation of Extension, 10/11/16, 1 pg.
Ii. Confirmation of Extension, 11/10/16, 1 pg.
IV. Confirmation of Extension, 12//12/16, | pg.
V. Confirmation of Extension, 3/10/17, 1 pg.
VI. Confirmation of Extension, 4/10/17, 1 pg.
VIL. Confirmation of Extension, 5/9/17, 1 pg.
VIL. Confirmation of Extension, 6/11/17, 1 pg.
IX. Confirmation of Extension, 7/3/17, 1 pg.
X. Confirmation of Extension, 8/9/17, 1 pg.
XI. Confirmation of Extension, 9/11/17, 1 pg.
XI. Confirmation of Extension, 10/7/17, 1 pg.
XIII. Confirmation of Extension, 11/6/17, 1 pg.
XIV. Confirmation of Extension, 12/11/17, 1 pg. XV Confirmation of Extension, 1/8/18, 1 pg.
XVI. Confirmation of Extension, 2/5/18, 1 pg.
Footnotes
[1] ‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[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 in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 304-305; Exs. IHO-I - IHO-XVI). See 34
[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 preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[7] ’Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's CSE meetings or are afforded the opportunity to participate. See 34 C.F.R. § 300.322(a); 8 NYCRR § 200.5(d); Mr. Mv. Ridgefield Bd. of Educ., 2007 WL 987483 (D. Conn. Mar. 30,
[8] 8 NYCRR § 200.1(zz)(11).