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FINDINGS OF FACT AND DECISION
Case Number: 162395
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: December 6, 2016
February 2, 2017
March 27, 2017
Actual Record Closed Date: January 3, 2018
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 6, 2016
For the Student:
ESQ., Attorney
parent
For the Department of Education:
Impartial Hearing Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 2, 2017
For the Student:
ESQ., Attorney
parent
PH.D., Via telephone)
For the Department of Education:
Impartial Hearing Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 27, 2017
For the Student:
ESQ., Attorney
Via telephone)
Via telephone)
For the Department of Education:
Impartial Hearing 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 parent in a due process complaint notice dated September 2, 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 (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 , 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 confront, cross-examine and compel the attendance of witnesses; prohibit the as “Ex.” 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 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 HI TORY
The DOE appointed me to hear this matter on September 8, 2016. See 8 NYCRR § 200.5(j)(3)G). In a due process response, dated September 28, 2016, the DOE denied each and every allegation contained in the complaint (Ex. SD-2 at 1). See 8 NYCRR 8§ 200.5(1)(4), (5). At a hearing held on December 6, 2016, the parent moved for an interim order on pendency (R. 32-34; Ex. P-A at 1-2). See 20 U.S.C. § 1415q); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). The DOE did not oppose the parent’s motion (R. 37). The parent also moved, however, for an Order authorizing several independent educational evaluations (“IEEs’’) of the student at public expense (R. 31-32, 34-37; Ex. P-A at 11). With the exception of a previously authorized independent evaluation, the DOE opposed the parent’s motion for IEEs of the student at public expense (R. 37; Ex. SD-8). In an Interim Order on Pendency, dated February 6, 2017, I directed the DOE to maintain the student in a at the , with related services, at public expense for the duration of these proceedings. I also directed the DOE to fund several IEEs at public expense (Ex. IHO-I at 10). Hearings on the merits of the matter were thereafter held on February 2, 2017 and March 27, 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()(5)(v).
Il. FACTUAL BACKGROUND
At the time of the September 2, 2016 due process complaint, the student was (Exs. P-A, P-H at 1, PHH at 2). In school, (Ex. P-HH at 3). For the 2016/17 school year the student attended the , anonpublic school which has been approved by the Commissioner of Education as one with which public school districts may contract to provide special education instruction and services to students with disabilities. See 8 NYCRR §8§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student is not in dispute in this hearing (Exs. P-A, P-E at 1, SD-2, SD-3 at 1, SD-4 at 1). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).*[3]
The student received early intervention services of and ; and (Ex. P-HH at 2). On March 21, 2014, the CSE convened to develop an IEP for the student (the 2014/15 school year). The CSE recommended that the student receive the majority of his
C.F.R. § 300.515(c); 8 NYCRR § 200.5(G)(5). instruction in a in a New York State approved nonpublic school on a twelve (12) month basis. The CSE also recommended that the student receive related services of: (Ex. P-F at 7-8, 11-12). The DOE placed the student at the for the 2014/15 school year.
On December 22, 2015, the CSE reconvened to develop an IEP for the student through December 2016. The CSE recommended that the student receive the majority of his instruction in a in a New York State approved nonpublic school on a twelve (12) month basis. The CSE also recommended that the student receive related services of:
The CSE also recommended that the student receive a (Ex. P-E at 19-20, 22-23).
On May 19, 2016, the CSE convened to develop an JEP for the student for the 2016/17 school year. The CSE recommended that the student receive the majority of his instruction in a in a New York State approved nonpublic school on a twelve (12) month basis. The CSE also recommended that the student receive related services of:
(Ex. SD-4 at 18-19, 21-23). The parent asserts that at the May 2016 meeting, the CSE agreed to continue support for the student in school and (notwithstanding the omission of those services from the IEP). A follow-up meeting was scheduled for August 2016 to correct the error (Ex. P-A at 5).
On August 16, 2016, the CSE significantly changed the student’s TEP without updated evaluations. The CSE recommended that the student receive the majority of his instruction in in a specialized school on a twelve (12) month basis. The CSE also recommended that the student receive related services of:
(Ex. SD-3 at 17-19, 21-23). The parent vehemently objected to the August 2016 IEP and this hearing ensued (Ex. P-A).
IV. PO ITION OF THE PARTIE
A. The DOE
The DOE does not dispute the parent’s claim that the student was denied a FAPE for the 2014/15, 2015/16 and 2016/17 school years (R. 36). The DOE asserts, however, that the student is not entitled to compensatory services or the inclusion of in the student’s IEP (Ex. SD-2).
B. The Parent
As the student was denied a FAPE for the 2014/15, 2015/16 and 2016/17 school years, he is now entitled to compensatory additional services. The student’s IEP should also be revised to include (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 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. Row ey 458 U.S. 176, 206-07 (1982).[4]
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 Row ey458 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.“". Wa_ czaky. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Row ey458 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)(1); 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)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 Row ey458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." Wa_ czak 142 F.3d at 130; see Row ey 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 Wa czak142 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 Row ey458 U.S. at 189, 199; Grim, 346 F.3d at 379; Wa _ czak142 F.3d at 132. Nonetheless, a school district must provide "an JEP 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 Wa_ czak 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 Row ey458 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)(), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gag iardov. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Wa czak 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 A422, 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)4)(A); 8 NYCRR § 200.4(d)(2)(iii1), 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. 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-A at 12).
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 Chi d 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.
At the hearing, the DOE did not contest that the student was denied a FAPE for the 2014/15, 2015/16 and 2016/17 school years. I find that the student is entitled to compensatory additional services to remedy the denial of FAPE. Using the testimony of , as a guide, I shall apply a qualitative approach in fashioning a compensatory remedy of additional services for the student.
1. Services , Director (an agency which services students with academic and ), testified that the student requires significant interventions that are empirically-based and applied systematically, such as (R. 105). Both and testified that the student requires inschool and in order to receive meaningful educational benefit (R. 71, 106). Based on the student’s educational profile, , concluded that the student should have receive (R. 107).
The student shall receive of compensatory services at a rate not to exceed . The recommended number of service hours is based on: (R. 107).
2. Supervision credibly testified (R. 110). concluded that (R. 110-112).
The student shall receive of compensatory at a rate not to exceed . The recommended number of is based on: (R. 110, 112).
3. i , co-owner and Director , testified that ,a with over twenty-five (25) years of experience in the field, conducted a evaluation of the student on March 24, 2017 (R. 130, 134-135).
stated that determined that (R. 135-136, 139).
The student shall receive ) of compensatory at a rate not to exceed . The recommended number of sessions is based on: (R. 135-136, 138-139, 144). conducted a comprehensive evaluation of the student (R. 141). determined that the student should have received (R. 141-142). The student shall receive of compensatory at a rate not to exceed . The recommended number of sessions is based on: (R. 141-142, 144).
5. Training testified that training is one of the most crucial components of an program because it conveys strategies to families (R. 112-113). Although the student’s IEPs had recommended various levels of training, the parent was unable to attend any of the sessions at the times set by the DOE. Consequently, the parent has not received any training (R. 116). testified that the parent should have received (R. 112).
The student shall receive of compensatory training at a rate not to exceed The recommended number of training hours is based on: (R. 112-113).
C.
The parent seeks an independent and an independent of the student at public expense (Ex. P-A at 12).5
Generally, a school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the parent or teacher requests a reevaluation. See 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4). A school district, however, need not conduct a reevaluation more frequently than once per year unless the parent and the school district otherwise agree and must conduct one at least once every three years unless the school district and the parent agree in writing that such a reevaluation is unnecessary. See 8 NYCRR § 200.4(b)(4); see also 34 C.F.R. §§ 300.303(b)(1)-(2).. A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and an evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
Subject to certain limitations, federal and State regulations provide that a parent has a right to obtain an IEE at public expense if a parent disagrees with an evaluation obtained by the school district. See 34 C.F.R. §§ 300.502(a), (b); 8 NYCRR § 200.5(g)(1). A school district may request the reason that the parent(s) disagree with an evaluation, but may not require an answer from the parents or impose any additional conditions prior to providing an IEE at public expense. See 8 NYCRR §§ 200.5(g)(1)(i1), (iii). Rather, "[i]Jf a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria." 8 NYCRR § 200.5(g)(1)(iv).
The DOE will be directed to fund an independent and an independent ; both to be completed by a , credibly testified (R. 104; Exs. P-E at 4, P-F at 3, SD-3 at 7, SD-4 at 4). stated that in order to have a , an should first be conducted (R. 104). stated that a should conduct the because a receives comprehensive and specific training (R. 109).
D. Nonpublic School Placement - 2016/17 School Year The parent seeks an Order directing the CSE to recommend a non-public school setting for the student for 2016/17 school year (Ex. P-A at 10-11).
A school district is not obligated to consider removal from the public school to a nonpublic placement if it is able to provide the student with an appropriate educational program within the public education system. See 7.G. v. New York City Dep't of Educ., 2013 WL 5178300, at *19 (S.D.N.Y. Sept. 16, 2013); A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *7-*8 (S.D.N.Y. Mar. 19, 2013); W.S. v. Rve City Sch. Dist., 454 F. Supp. 2d 134, 148 (S.D.N.Y. 2006) ("IDEA views private school as a last resort"); see also R.H. v. Plano Indep. Sch. Dist., 607 F.3d 1003, 1014-15 (Sth Cir. 2010) (noting that under the IDEA, "removal to a private school placement [is] the exception, not the default... [t]he statute was designed primarily to bring disabled students into the public educational system and ensure them a free appropriate public education"); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 363 (S.D.N.Y. 2009); Patskin, 583 F. Supp. 2d at 430-31; see also 8 NYCRR § 200.6()(1)(iii) (State funding for private schools is only available if the CSE determines that the student cannot be appropriately educated in a public facility). "'[I]f the district can supply the needed services, then the public school is the preferred venue for educating the child 7.G., 2013 WL 5178300 at *19, quoting W.S., 454 F. Supp. 2d at 138.
Consistent with the January 2016 recommendations of , I find that the student requires placement in a New York State-approved nonpublic school in order to learn (Ex. P-HH at 19).
day (Ex. P-HH at 18). As explained in his report:
An order directing a school district to place the student in a nonpublic school must also consider the IDEA's requirement that a student's recommended program be provided in the LRE. See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(1), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 111; Gag iardg489 F.3d at 105; Wa_ czak 142 F.3d at 132; Patskin, 583 F. Supp. 2d at 428. The Second Circuit applies a two-pronged test for determining whether an IEP places a student in the LRE, considering: (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has the student to the maximum extent appropriate. See Newington, 546 F.3d at 119-20; see also J.S v. N. Colonie, 586 F. Supp. 2d 74, 82 (N.D.N.Y. 2008); Patskin, 583 F. Supp. 2d at 430.
Here, the DOE offered no evidence in support of the student’s ability to be meaningfully educated in a program. stated, however, that:
(Ex. P-HH at 19). E. Prospective Relief - Amendment of IEP The parent also seeks an amendment of the student’s IEP to include:
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 recommenda level of related services commensurate with years past (Ex. SD-3 at 17-18), these services, in combination with compensatory additional services ordered below and a prospective order directing the DOE to provide additional ; supervision, parent training, and services, 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 parent's 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 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 U TAINED;
2. Within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parent, and/or directly pay, all costs associated with the student’s attendance at the during the 2016/17 school year not otherwise paid via pendency; by a ; and
4. 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)
(b) ; > and (€)
All other requests for relief are denied.
Dated: January 18, 2018
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
PLEA E TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a 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
Due Process Complaint Notice/Impartial Hearing Request, 9/2/16, 15 pgs.
mproY [Reserved] [Reserved] [Reserved]
Individualized Education Program (IEP), 12/22/15, 24 pgs.
Individualized Education Program (IEP), 3/21/14, 13 pgs.
Individualized Education Program (IEP), 8/9/12, 7 pgs.
Problem & Proposed Solution Letter, 8/25/16, 3 pgs. — [Reserved]
FOIL Response, 8/24/16, | pg.
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[Reserved]
FOIL Request, 8/16/16, 1 pg. [Reserved]
School Location Letter, 7/12/16, 2 pgs.
Prior Written Notice (Notice of Recommendation), 7/12/16, 3 pgs.
Consent for Reevaluation, 9/9/15, 2 pgs.
Request for , 8/17/15, 1 pg.
Authorization for Release of , 8/13/15, 1 pg.
NYS Plan, 6/7/14, 18 pgs. [Reserved]
NYS Form, 7/2/13, 2 pgs.
2016 Summer Report, 7/29/16, 3 pgs.
Progress Report for Goals & Objectives (2015/16), 6/28/16, 28 pgs.
Summer Progress Report for IEP Goals- _ , 8/12/15, 1 pg.
Summer Progress Report for IEP Goals- _, 8/12/15, 1 pg.
Summer Progress Report for IEP Goals - , 8/10/15, 1 pg. >> Summer Report, 8/3/15, 2 pgs. se w Summer Report for IEP Goals - , 8/1/15, 1 pg.
CC. Progress Report for Goals & Objectives (2014/15), 6/23/15, 10 pgs.
DD. Related Services Progress Report (2013/14), 6/26/14, 2 pgs.
EE. Related Services Progress Report (2013/14), 3/31/14, 1 pg.
FF. Progress Report for IEP Goals & Objectives (2013/14), 3/31/14, 4 pgs.
GG. Evaluation, 7/12/13, 6 pgs.
HH. Evaluation, 1/26/17, 23 pgs.
I. Profile, 1/24/17, 12 pgs. JJ. Teacher Questionnaire, 1/18/17, 5 pgs.
DEPARTMENT OF EDUCATION
l. [Reserved] Due Process Response, 9/28/16, 3 pgs.
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Individualized Education Program (IEP), 8/16/16, 25 pgs.
Individualized Education Program (IEP), 5/19/16, 25 pgs.
Individualized Education Program (IEP), 7/21/15, 24 pgs.
School Location, 8/24/16, 2 pgs.
Prior Written Notice (Notice of Recommendation), 8/23/16, 4 pgs.
Authorization for Independent Evaluation, 9/27/16, | pg. (double sided)
Parent Request for Re-Evaluation, 8/17/16, 1 pg.
10. Notice of Committee on Special Education (CSE) Meeting, 8/4/16, 3 pgs. (double sided)
11. Notice of Committee on Special Education (CSE) Meeting, 4/12/16, 2 pgs.
12. Notice of Committee on Special Education (CSE) Meeting, 7/7/15, 3 pgs.
13. Notice of Committee on Special Education (CSE) Meeting, 12/22/15, 3 pgs.
IMPARTIAL HEARING OFFICER
[. Interim Order on Pendency, 2/6/17, 13 pgs.
I. Confirmation of Extension, 11/16/16, 1 pg.
Ii. Confirmation of Extension, 12/15/16, 1 pg.
IV. Confirmation of Extension, 1/16/17, 1 pg. Confirmation of Extension, 2/16/17, 1 pg.
VI. Confirmation of Extension, 3/10/17, 1 pg.
VIL. Confirmation of Extension, 4/19/17, 1 pg.
VIL. Confirmation of Extension, 5/19/17, 1 pg.
IX. Confirmation of Extension, 6/19/17, 1 pg. Confirmation of Extension, 7/18/17, 1 pg.
XI. Confirmation of Extension, 8/9/17, 1 pg.
XI. Confirmation of Extension, 9/18/17, 1 pg.
XIII. Confirmation of Extension, 10/18/17, 1 pg.
XIV. Confirmation of Extension, 11/14/17, 1 pg.
XV. Confirmation of Extension, 12/17/17, 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 in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s 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. 46-47, 82-83, 149-151; Exs. IHO-II - IHO-XV). See 34
[3] Within thirty (30) days of its receipt of this Order, the DOE shall authorize the student’s receipt of an independent and an independent , both to be completed
[4] “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.