NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
In the Matter of [REDACTED], by his parents, [REDACTED] and [REDACTED]
IHRS Case ID Nos.
and
Petitioner, (Consolidated Action)
-against-
[REDACTED] CITY SCHOOL DISTRICT,
Respondent.
An Impartial Due Process Hearing Under the Individuals with Disabilities Education Act, 20 United States Code Section 1415, and New York State Education Law, Article 89, Section 4404 X
FINDINGS OF FACT AND DECISION
Mindy G. Wolman, Esq.
Impartial Hearing Officer
Law Office of Mindy Wolman
221-59 59th Avenue, Second Floor
Bayside, New York 11364
(718) 279-3142
Record Close Date: May 11, 2016 IHRS Case Nos. and
On August 14, 2015, the parent (the “Parent”) of [REDACTED] (the“Student”) filed a due process complaint under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”) under case number 91250 (IHO Ex. V). I was appointed as impartial hearing officer (“IHO”) in that proceeding on August 19, 2015. At the time that the due process complaint in case number 91250 was filed, there was another case regarding the same student and school district pending before me under case number 89059. The hearings had been completed in case number 89059 and the compliance date for issuing a decision in that case was September 8, 2015. Pursuant to 8 NYCRR §200.5(j)(3)(ii)(a), I was obligated to issued a written order regarding whether or not I would consolidate the two complaints. I determined that consolidation of the two cases was not appropriate, and issued an order denying consolidation on September 4, 2015 (IHO Ex. VII ).
On September 8, 2015, the Parent filed a new due process complaint under case number 91701 (IHO Ex. III) . I was appointed as IHO in that proceeding on September 8, 2015. Neither of the due process complaints were resolved during the respective resolution periods of the two cases. On October 26, 2015, I issued an order consolidating the due process complaints (IHO Ex. VIII). The Parent filed an amended due process complaint on November 4, 2015 (IHO Ex. I). The District filed responses to the due process complaints filed under case numbers 91250 and 91701 (IHO Exs. IV and VI) and to the amended due process complaint (IHO Ex. II).
A pre-hearing conference was held in this consolidated proceeding on October 28, 2015, and a subpoena hearing was held on January 27, 2016. Substantive hearings went forward on February 1, 2016, February 2, 2016, February 3, 2016, and April 4, 2016. Both parties submitted post-hearing briefs (IHO Exs. XIII and XIV).
Lists of the persons who appeared at the hearings held in this proceeding and the documentary evidence submitted are appended to this decision and order. The compliance date for issuing a decision in this case has been extended (IHO Exs. IX and XII).
BACKGROUND AND POSITIONS OF THE PARTIES
[REDACTED] is a nine year-old male student who is classified as a student with a disability having [REDACTED](District Ex. 4). His eligibility for classification as a student with a disability and his eligibility for special education supports and services are not in dispute. The Student is diagnosed as having [REDACTED] and [REDACTED] ([“REDACTED]”) The Student’s cognitive functioning is in the [REDACTED] range. He presents with [REDACTED] issues, [REDACTED] and [REDACTED] delays, [REDACTED] [REDACTED] issues, [REDACTED] [REDACTED] difficulties, and [REDACTED] issues that interfere with his classroom performance and his ability to benefit from instruction. He received Early Intervention IHRS Case Nos. and
(“EI”) services prior to being classified as a preschool student with a disability by the District’s Committee on Preschool Special Education (“CPSE”).
This consolidated proceeding involves challenges to the Student’s extended school year (“ESY”) program during the Summer of 2015, and to his special education program for the 20152016 school year. As a result of an agreement entered into by the parties in a prior due process proceeding (Case No, 83898), the Student’s program was changed to a part-time general education placement and part-time special class placement for a portion of the 2014-2015 school year. The Student was placed at the [REDACTED] Elementary School (“[REDACTED]”) in January of 2015. His program at [REDACTED] included placement for 90 minutes per day in an 8:1:1 special class for ELA (English Language Arts), 60 minutes per day in an 8:1:1 special class for math, with [REDACTED] therapy, therapy, (“IEP”), [REDACTED] services, a behavior intervention plan, a full-time 1:1 aide, and special education transportation (See Hearing Transcript and Parent Ex. J). Other than the 8:1:1 classes for Math and ELA, the remainder of the Student’s day at [REDACTED] was to be spent in a general education setting with the support of his 1:1 aide.
The District’s Committee on Special Education (“CSE”) held a meeting on June 19, 2015 regarding the Student’s Summer 2015 ESY program. The CSE recommended that the Student be placed in a 6:1:1 BOCES program with [REDACTED] services and [REDACTED] therapy (District Ex. 2). The CSE’s Summer 2015 ESY program recommendations did not include [REDACTED] therapy or a 1:1 aide. The Student was placed in a 6:1:1 BOCES program for the Summer of 2015 ESY.
On June 19, 2015, the CSE recommended the following program starting in September of 2015: daily 8:1:1 special class for ELA 90-minutes per day, daily 8:1:1 special class for math 30-minutes per day, [REDACTED] teacher for math 30 minutes per day (four days per week) in the general education classroom, one 30-minute session per week of group [REDACTED] therapy, one 30-minute session per week of individual [REDACTED] therapy, 15-minutes per day of [REDACTED] services, three 30-minute sessions pers week of individual [REDACTED] therapy, two 30-minute sessions per week of group [REDACTED] therapy, and a full-time 1:1 aide (District Ex. 2).
The Parents decided to place the Student in the [REDACTED] (“[REDACTED]”), a charter school, for the 2015-2016 school year. The CSE met again on August 25, 2015 and August 27, 2015, and recommended the same September to June program that it had recommended in the June 19, 2015 IEP (District Ex. 3). In both the June 2015 and August 2015 IEPs, the CSE recommended that the Student be placed in a general education setting for all time not spent in the 8:1:1 class. The Student began attending [REDACTED] when it IHRS Case Nos. and opened in September of 2015, and continued attending the school during the pendency of this proceeding. The Student’s program was changed on December 1, 2015 (while this case was pending) to full-time placement in a general education class with five 60-minute sessions per week of [REDACTED] teacher services for English/Language, five 40-minute sessions per week of [REDACTED] teacher services for math, five 40-minute sessions per week of [REDACTED] services, full-time 1:1 aide, and the same type and level of related services and [REDACTED] services contained in his prior IEP (District Ex. 4).
The Parents raise a variety of issues in this proceeding. Many of the Parents’ allegations pertain to how the District responded (or didn’t respond) to parental concerns and various written and oral communications from the Parents. The Parents have made allegations about what they assert is a prolonged, unlawful, and discriminatory (punitive) pattern of conduct on the part of the District. Some of the facts and issues raised by the Parents are beyond the scope of what I can consider in this consolidated due process proceeding. The scope of this hearing is limited to issues regarding the Student’s 2015 ESY program and placement, and the Student’s 2015-2016 school year program and placement. The Parents assert that the District failed to provide the Student with a free appropriate public education (“FAPE”) during the 2015 extended school year and during the 2015-2016 school year. The Parents challenge the adequacy of the June 2015 and August 2015 IEPs, and assert that the ESY placement was based upon “administrative convenience.” They also assert, inter alia, that the ESY placement was more restrictive than necessary, that the CSE disregarded information and opinions about the Student’s need to be in a general education setting when formulating its ESY program recommendations, and that the BOCES 6:1:1 placement was inappropriate because the other student’s in the class were nonverbal and were functioning at a much lower academic level than the Student. The Parents also cite the District’s protracted delay in providing the Student’s visual supports to BOCES.
The Parents also challenge the CSE’s August 2015 program recommendations. They assert, inter alia, that the program not in the least restrictive environment (“LRE”) and that the CSE disregarded information and opinions about the Student’s need to be in a general education setting when formulating its school year program recommendations. The Parents raise issues about the District’s delay (from April 2015 to August 2015) in providing [REDACTED] with the Student’s records, and make global challenges about the manner in which the District handled the various issues that arose regarding the opening up of the [REDACTED] charter school. The Parents also raise issues about inappropriate physical contact at BOCES (the Student being pushed and poked in the forehead)
The Parents seek a variety of forms of relief in this proceeding. They request that the District place the Student in a private school or summer ESY program to prevent regression. They also seek compensatory education for inadequate/inappropriate services or services not received due to: [REDACTED]’s delayed opening (which the Parents assert was caused by the District), the inappropriate Summer 2015 ESY program and placement, the inappropriate termination of [REDACTED] therapy services during the Summer of 2015, and for the inappropriate and overly restrictive 8:1:1 classes during the 2015-2016 school year. The amended due process complaint specifically requests the following relief: a subpoena to the District and BOCES, an order directing the District to provide all future ESY services “in IHRS Case Nos. and compliance with [Student]’s IEP by properly credential providers in private programs or via 1:1 tutoring at [District]’s expense; an order directing the District to provide compensatory education, an order directing a CSE reconvene, an order appointing an adjoining Local Educational Agency (“LEA”) to oversee and determine special education services at the District’s expense, and reimbursement of attorneys’ fees and costs (IHO Ex. I). The Parents’ various legal and factual arguments are set forth in their post-hearing brief (IHO Ex. XIII) and will be addressed more fully below.
The District requests that the Parents’ request for relief be denied in its entirety. It asserts that the District provided a FAPE during the Summer 2015 ESY and during the 2015-2016 school year. It maintains that both programs were reasonably calculated to provide an educational benefit. The District maintains that the ESY program need not provide the same services or placement as the school year program, and that the Summer 2015 delays cited by the Parents did not deprive the Student of educational benefits. The District asserts that the BOCES inappropriate physical contact allegations were appropriately investigated and did not give rise to a FAPE deprivation. The District also argues that it did not engage in any retaliatory conduct, that there was no unilateral change in placement by the District, and that the District worked collaboratively with the [REDACTED] charter school.
The District’s various legal and factual arguments were discussed extensively in its post-hearing brief (IHO Ex. XIV) and will be addressed more fully below.
Both parties submitted documentary evidence in this proceeding. The District presented the testimony of [REDACTED] (Supervisor of Special Education), [REDACTED] (CSE Chairperson), [REDACTED] ([REDACTED] Therapist), [REDACTED] (Curriculum Coordinator, BOCES ), [REDACTED] (Director of Student Services), and [REDACTED] (Superintendent of Schools). The Parents presented the testimony of [REDACTED] (Instructional Support Teacher), [REDACTED] (Teacher), [REDACTED] (Coordinator of Special Education and Instruction), [REDACTED] (Supervisor of Special Education), [REDACTED] (Head of School), [REDACTED] (CSE Chairperson), and [REDACTED] (Mother).
The parties’ respective arguments, testimony, and documentary evidence will be addressed more fully below.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE (8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). IHRS Case Nos. and School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement ( NYS Educ. Law § 4404(1)(c)). Since this proceeding does not involve a tuition reimbursement claim, the District has the burden of proof on all IDEA issues.
Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether a the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:
In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. (8 NYCRR § 200.5(j)(4)(ii))
The Summer 2015 ESY Program
The Student’s Summer ESY program consisted of placement in a 6:1:1 BOCES special class, with with [REDACTED] services and [REDACTED] therapy (District Ex. 2). The CSE’s recommended Summer 2015 ESY program did not include the [REDACTED] therapy services or the 1:1 aide that had been included in the Student’s school year IEP. The Parents assert, inter alia, that the program was not in the least restrictive environment (“LRE”), that the CSE disregarded information and opinions about the Student’s need to be in a general education setting when formulating its ESY program recommendations, that the Student was not suitably grouped for instruction in the BOCES class, and that the inappropriate physical contact at BOCES and inadequate investigation constituted a FAPE deprivation.
The District presented extensive testimony regarding the June 19, 2015 CSE meeting. The District takes the position that since the purpose of an ESY program is to prevent substantial regression, the only services that need to be provided are the services that pertain to the areas in which a student is likely to experience substantial regression. As such, it maintains that [REDACTED] therapy was not a necessary component of the Student’s ESY program. It also maintains that since the Student was being placed in a 6:1:1 class, the actual instructional ratio would be 2:1 and the services of a 1:1 aide were not warranted. The District takes the position that the CSE considered appropriate and sufficient regression data in formulating its ESY program recommendations. Although the District acknowledges that all the other students in the 6:1:1 class were nonverbal, it asserts that it was an appropriate placement because other students in the school were verbal and because the Student would have the opportunity to interact with both those other students and with the adults in his classroom. The District also took the position that the Student was suitably placed based on his academic functioning levels.
The District further asserted that the two-week delay in providing the Student’s visual materials to the BOCES class did not IHRS Case Nos. and constitute a FAPE violation or deprive him of instruction, and that the allegations regarding inappropriate physical contact was appropriately investigated. Although I think that the delay in providing the Student’s visual aids was closer to three weeks, I agree that the delay in providing the materials did not constitute a FAPE violation or result in the type of deprivation of instruction that would warrant compensatory services.
I also agree with the District’s contention that the inappropriate physical contact on July 7, 2015 (it was alleged that a substitute teacher pushed the Student into the cafeteria and repeatedly poked him on the forehead in the cafeteria) does not warrant a compensatory services award. Despite that finding, I reject the District’s contention that the hallway incident was simply a physical prompt (the District did not fully address the cafeteria incident at the hearing). Moreover, the investigation was not sufficient in that only one individual was interviewed, the teacher involved was never interviewed and the video recording was not reviewed. The only first hand eye witness testimony at the hearing was the testimony of the Student’s mother. The other testimony was hearsay testimony. Although hearsay testimony is permissible in IDEA due process hearings, I give it less weight than testimony based on first hand knowledge. I found the testimony of the Student’s mother to be credible and persuasive. The physical conduct engaged in the Student’s substitute teacher went beyond the level of a mere physical prompt. It was inappropriate and the teacher should have been reprimanded in some way. That being said, I never-the-less find that the teacher’s behavior did not constitute a FAPE violation. Nor did it result in a deprivation of instruction. As such, it cannot form the basis for a compensatory education claim.
The District has the burden of proving that its Summer 2015 ESY program and placement recommendations were appropriate for the Student and provided him with a FAPE in the LRE. It did not meet its burden of proof in this proceeding. As of the time of the June 19, 2015 CSE meeting, the Student had been in a part-time 8:1:1/part-time general education program, with the support of a full-time 1:1 aide, for over five months. He was making progress in that program. His general education teacher was of the opinion that he was making progress and could be managed in the general education classroom.
Moreover, the District was well aware that the Parents did not want the Student in a full time special education program. Notwithstanding these factors, the CSE and recommended a full-time special education program for the Summer of 2015. The Parents participated int the meeting “via telephone message” (Tr. 115). In other words, a CSE meeting was held and the Parents’ participation was limited to receiving a telephone voice-mail message in which the Student’s mother was told about the other students in the BOCES 6:1:1 class in which the Student would be placed (Parent Exs. A and K).
The purpose of the June 19, 2015 meeting was “a program review to look to look at ESY regression data (Tr. 114). The CSE chairperson spoke to a school psychologist, the Student’s special education teacher, the Student’s general education teacher, the BOCES principal, and the Student’s service providers prior to the meeting, and reviewed regression data prior to the meeting (Tr. 115, 117). Prior to the meeting, the CSE chairperson also looked at “ID and ED programs across the region (Tr. 118). The CSE Chairperson decided that the IHRS Case Nos. and Student would be placed in the BOCES 6:1:1 program prior to the CSE meeting. As such, the only program discussed at the meeting was the “6-1-1- BOCES program” (Tr. 119). The CSE chairperson and the BOCES principal decided (either at or prior to the June 19, 2015 meeting) that the Student would not receive the services of his 1:1 aide at the BOCES ESY program (Tr. 120-21). Neither the Parents, nor any of the meeting participants were provided with or actually reviewed the regression data. Nor were they consulted as to whether or not the BOCES 6:1:1 program would be appropriate for the Student. The CSE chairperson did not meet with the Student’s mother until after the June 19, 2015 meeting
Instead of being provided with the opportunity to participate in the CSE process (by attending the meeting and being provided with the data being considered) the Parents were presented with a fait accompli in the form of the telephone voice-mail message describing the decision and with an invitation for a meeting to be held the following week to discuss the decision that had already been made. It is unclear as to why the CSE didn’t just wait to the following week to hold the CSE meeting. If it had done so, it could have made program and placement decisions with the Student’s mother’s participation and input. The decision to place the Student in a 6:1:1 BOCES program was a unilateral decision made by the CSE chairperson. The Parents appear to have been deliberately excluded from the decision-making process.
A telephone voice-mail message briefly describing the other students in the placement that the District had already arranged for is a far cry from the meaningful and collaborative deliberation process contemplated by the IDEA. The complete exclusion of the Parents from the discussions and decision-making regarding the Summer 2015 ESY program recommendations constitutes a procedural violation that rises to the level of a substantive FAPE deprivation because it “significantly impeded the parent’s opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parent’s child” (8 NYCRR §200.5(j)(4)(ii).
In addition, the CSE’s Summer 2015 program and placement recommendations for the Student were substantively inappropriate and inadequate. Although the District argues that an ESY program need only include services in the areas in which a student is likely to experience substantial regression, it did not cite any legal authority for its contention. To the contrary, ESY programs have the same, comprehensive FAPE requirements as a school year program. Since the Student required [REDACTED] therapy, it should have continued to be included as part of his ESY program. Moreover, one of the reasons cited for giving him ESY services was his behavioral issues and need for structure. He also had particular problems with transitions during the course of the school day. In order to have him continue to have the structure that he needs and to avoid regression in transitions, his ESY program should have included the same basic structure and transitions as his school year program, which included [REDACTED] therapy sessions and placement in general education classes for a substantial portion of the school day.
It also appears that the reason that [REDACTED] therapy was removed from his summer program was that the BOCES [REDACTED] therapists already had full schedules for the summer and would not be able to provide the Student with [REDACTED] therapy (Parent Ex. Q at 1). That was an inappropriate reason for terminating [REDACTED] therapy for the extended school year. The Parents are IHRS Case Nos. and therefore correct in their assertion that [REDACTED] therapy was excluded from the Student’s ESY program for administrative convenience.
I understand that the District did not have an ESY general education, or part-time special education program for the Summer 2015
ESY. However, LRE requirements are not suspended for the summer. Neither are the requirements that students be grouped by age and based on their social, physical, academic, and management needs. The absence of a suitable district program does not negate the Student’s need for placement in the LRE and for placement with suitable peers. (See T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145 [2d Cir. 2014], in which the Court of Appeals for the Second Circuit rejected a school district’s contention that the LRE requirement did not apply to the ESY component of a Student’s twelve-month school year program and held that the IDEA’s LRE requirement applies to ESY placements as it does to school-year placements).
There was no basis for placing the Student in the highly restrictive BOCES 6:1:1 program. The BOCES 6:1:1 class was much too restrictive for the Student. He should have been placed in a less restrictive setting, not a more restrictive setting. Moreover, by eliminating [REDACTED] therapy and the 1:1 aide, the CSE inappropriately discontinued key components of the Student’s special education program.
The District maintains that the Student did not require a 1:1 aide because the 6:1:1 recommendation would result in 2:1 support (Parent Ex. A at 2; IHO Ex. XIV at 11). This is not correct as, with six students in the class, the Student would have received 3:1 support. That is not 1:1 support. The only way that the Student would have continued to have the 1:1 support that he required during the summer would have been if his IEP had actually included the 1:1 aide that had been part of his program during the 2014-2015 school year. Since it did not do so, it was not an appropriate IEP.
The District asserts that the age range and instructional grouping in the BOCES 6:1:1 class was appropriate because the Student was a third grade student and the other students were fourth and fifth grade students. There was no class profile for the Summer ESY class (Tr. 352). The other students in the class were fourth and fifth grade students and had reading abilities in the pre-kindergarten to first grade level (Tr 353). The BOCES principal testified that the academic levels (reading and mathematics) of the Student were “substantially above” the academic levels of the other students in the class (Tr. 353). Based on the testimony and documentary evidence presented at the hearing, I cannot find that the Student was appropriately placed by age or for instructional purposes in the BOCES 6:1:1 class.
One of the most critical problems with the BOCES 6:1:1 placement was that all the other students in the class were nonverbal. The BOCES 6:1:1 placement was thus inappropriate based upon the Student’s language, communication, and socialization needs. These needs were key factors that should have been addressed as part of the Student’s ESY program. The Student is a verbal student with socialization issues, and with language and communication delays. He should have been placed in a program with other verbal students. Such a placement would have been appropriate based upon the Students language, communication, and socialization needs. Instead, the CSE placed him in a program with nonverbal students.
The CSE chairperson testified that placing the Student in a class in which all the other students were nonverbal was “not a IHRS Case Nos. and concern” because the facility had other students and because there were adults (staff members) in the program (Tr. 120). There was no showing that any of the other students at the facility (BOCES) were verbal or that the Student would have had any interaction with them. Instead, it seems that the contrary is true with respect to interactions with other students. According to testimony presented at the hearing, the Student spent his entire day (including his lunch hour) with the nonverbal students in his 6:1:1 class. Being able to verbally communicate with teachers and services providers is no substitute to being placed in a setting in which he could communicate and socialize with other verbal students. Placing him in a class with nonverbal students was wholly inappropriate and was more likely to result in regression than in progress. Moreover, according to the credible testimony of the Student’s mother, the Student experienced regression in the areas of behavior and communication/language, during the Summer 2015 ESY placement at BOCES.
For all the foregoing reasons, I find that the District failed to provide the Student with a FAPE for the Summer 2015 ESY. The 2015-2016 School Year Program The August 2015 recommendations included a continuation of the Student’s part-time special education/part time general education program. The CSE met on August 25, 2015, but tabled the meeting without making any recommendations (District Ex. 3). The CSE reconvened the meeting on August 27, 2015, at which time it continued the program recommendations that had been made on June 19, 2015: daily 8:1:1 special class for ELA 90-minutes per day, daily 8:1:1 special class for math 30-minutes per day, [REDACTED] teacher for math 30 minutes per day (four days per week) in the general education classroom, one 30-minute session per week of group [REDACTED] therapy, one 30-minute session per week of individual [REDACTED] therapy,15-minutes per day of [REDACTED] services (daily), three 30minute sessions pers week of individual [REDACTED] therapy, two 30-minute sessions per week of group [REDACTED] therapy, and a fulltime 1:1 aide (District Ex. 3). Although the Student had made progress with that program during the second half of the 2014-2015 school year, it was not appropriate to continue the program as it was too restrictive.
The Parents did not want the Student to continue with the part-time 8:1:1 program. Moreover, the Student’s general education teacher advised the CSE that the Student had the ability to perform in the general education classroom and that he could be in that setting, with appropriate supports, for the entire school day (Tr. 511-512). She testified that had the Student returned to her class at [REDACTED], she would have been “comfortable” with having the Student in her class for the entire day as long as he had appropriate supports (Tr. 512). The teacher opined that the Student would have been successful in a general education class as of the beginning of the 2015-2016 school year with co-teaching (special education teacher support in the classroom) and a 1:1 aide (Tr. 513). As of the August 2015 CSE meetings, the Parents also wanted the Student in a full-time general education setting, with appropriate supports, and without spending any portion of his day in an 8:1:1 setting.
In recommending the part-time 8:1:1 class, the CSE disregarded the Student’s ability to function in a less restrictive setting, disregarded the opinion and recommendations of the Student’s general education teacher, disregarded parental input, and recommended a IHRS Case Nos. and program that was not in the LRE for the Student. As such, the CSE’s August 2015 program recommendations for the Student were not appropriate. The CSE did not offer him a FAPE.
The August 27, 2015 IEP was in effect from September 9, 2015 through December 16, 2015. On December 1, 2015, the CSE reconvened and recommended placement in a general education program, with five 60-minute sessions per week of [REDACTED] teacher services for English/Language Arts, five 40-minute sessions per week of [REDACTED] teacher services fo Math, five 40-minute sessions per week of [REDACTED] services, a full time 1:1 aide, and the same level of [REDACTED] therapy and [REDACTED] therapy as his prior IEP (District Ex. 4). The effective date of the December 1, 2015 IEP was December 17, 2015 (District Ex. 4). Since the CSE reconvened and recommended a less restrictive setting in December of 2015, the Student’s 2015-2016 FAPE deprivation (based on the issues raised herein) was limited to the period from September 9, 2015 to December 16, 2016.[1] Requested Remedies
As noted above, the Parents seek a variety of forms of relief in this proceeding. They request that the District place the Student in a private school or summer ESY program to prevent regression. They also seek compensatory education for inadequate/inappropriate services or services not received due to: [REDACTED]’s delayed opening (which the Parent’s assert was caused by the District), the inappropriate Summer 2015 ESY program and placement, the inappropriate termination of [REDACTED] therapy services during the Summer of 2015, and for the inappropriate and overly restrictive 8:1:1 classes during the 2015-2016 school year. The amended due process complaint specifically requests the following relief: a subpoena to the District and BOCES, an order directing the District to provide all future ESY services “in compliance with [Student]’s IEP by properly credential providers in private programs or via 1:1 tutoring at [District]’s expense; an order directing the District to provide compensatory education, an order directing a CSE reconvene, an order appointing an adjoining Local Educational Agency (“LEA”) to oversee and determine special education services at the District’s expense, and reimbursement of attorneys’ fees and costs (IHO Ex. I).
There is nothing in the Hearing Record to support a compensatory education/services award based on how the District handled various aspects of its obligations viz-a-viz [REDACTED]. Moreover, there was no delayed opening. In addition, I note that the District had been barred from providing any educational records until it was authorized to do so by the SUNY Charter Schools Institute. Providing educational records is a complicated task (see Tr. testimony of [REDACTED]) and the District provided all records as promptly as it could under the circumstances. I also note that the Parents had copies of the Student’s IEPs, evaluations, and progress reports, and could have given them to [REDACTED] at any time. However, the Parents chose not to do so.
IHRS Case Nos. and
The Parents are entitled to some form of relief for the failure to provide the Student with a FAPE for the Summer 2015 ESY. The Parents request placement in a private school or summer ESY program and compensatory education. Presumably the ESY placement request is for the 2016 ESY, as the initial due process complaint was filed on August 14, 2015 (IHO Ex. I), by which time the 2015 ESY had ended (or almost ended) and placement in a different program for the Summer 2015 ESY was no longer an option.
Compensatory education and services are equitable remedies. Compensatory education is the continuation of instruction for a student after he or she is no longer eligible for instruction because of age or graduation. It is available as an equitable remedy where “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. [Garro v. State of Connecticut, 23 F.3d 734, 737 (2d Cir. 1994); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071(2d Cir. 1988)].
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE (see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. Compensatory education may be awarded to students under the age of twenty-one (see Student X. v. New York City Dep't of Educ., 2008 WL 4890440,[E.D.N.Y.Oct. 30, 2008]. An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. (See Application of a Child with a Disability, Appeal No. 07-109; Application of a Child with a Disability, Appeal No. 08-054).
An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA (P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008]). As such, the purpose of compensatory education or compensatory service is to remedy the deprivation of services and to put a student in the same place that he would have been had the FAPE deprivation not occurred.
Although the Student had regressed in some areas as a result of the inappropriate Summer ESY program (primarily in the areas of behavior and communication/language), he regained the lost skills during the Fall of 2015. Since the Student was able to recoup any lost skills during the 2015-2016 school year, there is no need to provide him with additional services. Compensatory education is not an appropriate remedy for the overly restrictive 6:1:1 placement in a class with nonverbal students.
Moreover, there was no testimony to support the Parents’ implied contention that an additional year of ESY would be an appropriate form of compensatory education or services. In order to fashion an appropriate compensatory education/services award, there must be a sound basis in the hearing record for finding that the particular service or program would be an appropriate form of compensatory education or services. The Record does not support a finding that an additional ESY summer session would compensate for the Summer IHRS Case Nos. and
2015 ESY FAPE deprivation.
That being said, I realize that it is now the time of year in which the CSE will be considering whether or not the Student requires ESY services for the Summer of 2016. In the event that the CSE determines that the Student requires ESY services for the Summer of 2016, the placement must be in the LRE for the Student, must include the same supports and services contained in his school year IEP, and should provide for placement with other verbal students. Placement in a small self-contained class with nonverbal students would not be appropriate.
Having found that the CSE inappropriately excluded [REDACTED] therapy from the Student’s 2015 ESY program (there was no basis for removing it as it continued to be an area of need for the Student), I find that the Student should be provided with additional [REDACTED] therapy as compensatory services for the six weeks of [REDACTED] therapy missed during the Summer of 2015.
Although the CSE’s September through December 2015 program recommendations for the Student were not in the LRE, the Student is not entitled to compensatory education or services because he did not experience a prolonged denial of, or exclusion from, appropriate services. He did receive services for the entire period. The only appropriate remedy for the overly restrictive August 2015 IEP would be to remand the matter to the CSE to develop a new IEP for a less restrictive setting. Since the CSE convened in December of 2015 and prepared a new IEP in the LRE ([REDACTED] teacher and [REDACTED] support rather than part time 8:1:1 placement), there is no need of a remand or CSE reconvene at this time.[2] The Student is already in a less restrictive setting.
The Parents’ request for subpoenas to the District and BOCES was addressed during the course of the proceeding. A subpoena hearing was held and subpoenas were issued (IHO Ex. XI). Moreover, subpoenas are the type of thing that are addressed during the course of a proceeding (a party may subpoena witnesses or documents in order to be able to fully present their case at a hearing), it is not the type of relief that is typically awarded in a final decision and order in an IDEA due process proceeding.
The Parents also seek an order directing an adjoining LEA to “oversee and determine special education services at the District’s expense” (IHO Ex. I). However, there is no basis in the Federal or State special education laws or regulations that would allow that type of relief. Nor have the Parents cited any case law that would allow me to grant their request. Although IHOs have fairly broad authority to fashion appropriate equitable remedies in IDEA due process proceedings, the remedy requested by the Parents goes beyond the scope of that authority. There is nothing in the Record that would allow me to find that neighboring LEA would better suited than the District for making appropriate recommendations for the Student, or that there is even another LEA that would be willing and able to step in and take over the District’s IDEA obligations. Moreover, since federal and state law both place the obligations squarely on the District’s CSE, I cannot place the
IHRS Case Nos. and
District CSE’s obligations on another school district.
Although I have found FAPE violations regarding the Summer 2015 ESY program and the August 27, 2015 school year IEP, I find no evidence of malice or punitive conduct on the part of District staff. Nor do I find any pattern of discriminatory conduct.
The Parents also request attorney’s fees and costs, which are outside the scope of my jurisdiction.
ORDER
IT IS HEREBY
ORDERED that the District is directed to provide the Student with six 30-minute sessions of 1:1 [REDACTED] therapy and six 30-minute sessions of group [REDACTED] therapy as and for compensatory services for services that should have been included in his IEP and provided during the Summer 2015 extended school year; and it is further
ORDERED that in the event that the District’s Committee on Special Education determines that the Student requires ESY services for the Summer of 2016, the placement must be in the LRE for the Student, must include the same supports and services contained in his school year IEP, and may not be in small self-contained classes with nonverbal students; and it is further
ORDERED in all other respects, the Parents’ requests for relief are denied.
Dated: May 31, 2016
MINDY G. WOLMAN
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a 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. IHRS Case Nos. and
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html. IHRS Case Nos. and
DOCUMENTS SUBMITTED
School District Exhibits
1. IEP, 6/9/15, 16 pp.
2. IEP, 6/19/15, 14 pp.
3. IEP, 8/27/15, 15 pp.
4. IEP, 12/1/15, 16 pp.
5. Enrollment Letter from [REDACTED] to Parents of [REDACTED], August 2015, 2 pp.
6. Committee Report (Permission for Placement), 6/19/15, 1 p.
7. Extended School Year Guidelines and Recommendation for Summer 2015, 9 pp.
8. data, January 2015 - April 2015, 2 pp.
9. Progress Report (Progress Note Dates 7/6/15-8/14/15), 8 pp.
10. ESY Summary re [REDACTED], 8/13/15, 1 p.
Parent Exhibits
A. Transcript of voice-mail, 6/19/15, 4 pp.
B. [REDACTED]/ [REDACTED] email, 6/24/15, 2 pp.
C. ESY daily notes/BOCES form, 7/6, 7/8, and undated 2 pp.
D. Parent email re ESY, 7/14/15, 2 pp.
E. Classroom Profile, 11/25/15 and 11/13/14, 2 pp.
F. [REDACTED] placement letter, 8/10/15, 1 p.
G. ESY - IEP, 6/19/15, 15 pp.
H. Progress Report, 8/25/15, 8 pp.
I. [REDACTED] and [REDACTED] records release forms and envelope, 4/22/15 and
7/30/15, 6 pp.
J. IEP, 4/13/15, 14 pp.
K. CSE Recordings, 6/19/15 and 8/27/15, 1 USB drive
L. Correspondence/Minutes/IEP, 9/8/15 and 8/27/15, 19 pp.
M. Committee Report, 8/25/15, 1 p.
N. IHO Wolman Decision, 9/8/15, 24 pp.
O. Authorization, 12/2/14, 1 p.
P. Subpoenas/Affidavits of Service, 1/25/16 and 1/26/16, 6 pp.
Q. BOCES documents, various dates, 28 pp.
R. [REDACTED] documents, various dates, 16 pp.
S. BOCES videos, DVD dated 7/7/15, USB Drive, undated, containing three files dated
7/24/15
T. Committee Report, 8/27/15, 1 p.
U. Emails, 1/26/16, 1 p.
V. NYSED web page printout, 4/4/16 print date, 8 pp.
IHO Exhibits
IHRS Case Nos. and
I. First Amended Consolidated Due Process Complaint, 11/4/15, 4 pp.
II. District’s Response to First Amended Consolidated Complaint, 1/19/15, and 11/20/15
Affidavit of Service of District’s Response, 6 pp.
III. Due Process Complaint Notice, 9/4/15, 5 p.
IV. District’s Response to Due Process Complaint, 9/14/15, and 9/15/15 Affidavit of Service,
6 pp.
V. Due Process Complaint Notice, 8/13/15, 10 pp.
VI. District’s Response to Due Process Complaint, 8/24/15, and 8/24/15 Affidavit of Service,
5 pp.
VII. Order Denying Consolidation, 9/4/15, 2 pp.
VIII. Order of Consolidation, 10/26/15, 2 pp.
IX. Memo from IHO re IHRS data and compliance date extension, 10/29/15, 1 p.
X. Emails between IHO and parties re subpoenas, 1/25/16, 4 pp.
XI. Subpoenas, 1/25/16, 3 pp.
XII. Memoranda from IHO re IHRS data and compliance date extensions, 2/1/16, 3/4/16, and
4/5/16, 3 pp.
XIII. Parents’ Post-Hearing Brief, 5/5/16, 12 pp.
XIV. Post-Hearing Brief on Behalf of the City School District, 5/6/16, 32 pp. (including cover-page and table of contents)
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 28, 2015
For the Parent
[REDACTED] Mother
(By Telephone)
For the School District
[REDACTED], Esq. Attorney
(By Telephone)
[REDACTED] Attorney
(By Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 26, 2016
For the Parent
[REDACTED] Mother
(By Telephone)
For the School District
[REDACTED], Esq. Attorney
(By Telephone)
[REDACTED], Esq. Attorney
IHRS Case Nos. and
(By Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 1, 2016
For the Parent
[REDACTED] Mother
For the School District
[REDACTED], Esq. Attorney
[REDACTED], Esq. Attorney
[REDACTED]* Supervisor of Special Education
[REDACTED]* Assistant Supervisor of Special Education/CSE
Chairperson
[REDACTED]* [REDACTED] Therapist
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 2, 2016
For the Parent
[REDACTED] Mother
For the School District
[REDACTED], Esq. Attorney
[REDACTED], Esq. Attorney
[REDACTED] Supervisor of Special Education
[REDACTED]* Assistant Supervisor of Special Education/CSE
Chairperson
[REDACTED]* Curriculum Coordinator, GST BOCES
[REDACTED]* Director of Student Services
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 3, 2016
For the Parent
[REDACTED] Mother
[REDACTED]* 3 Supervisor of Special Education
[REDACTED]* First Grade Instructional Support Teacher
[REDACTED]* Teacher
[REDACTED]* Coordinator of Special Education and Instruction
For the School District
[REDACTED], Esq. Attorney
3
[REDACTED] appeared on behalf of the District on 2/3/16; however she was also called as a Parent witness.
IHRS Case Nos. and
[REDACTED], Esq. Attorney
[REDACTED] Supervisor of Special Education
[REDACTED]* Superintendent of Schools
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 4, 2016
For the Parent
[REDACTED]* Mother
[REDACTED] Sister
[REDACTED]* Head of School
[REDACTED]* Assistant Supervisor of Special Education
For the School District
[REDACTED], Esq. Attorney
[REDACTED], Esq. Attorney
[REDACTED] Supervisor of Special Education
Footnotes
[1] It should be noted that I make no findings about the December 9, 2015 IEP, as the issue was not raised in the due process complaint and was not litigated by the parties. It is thus outside the scope of this consolidated proceeding.
[2] As noted above, I make no findings about the December 9, 2015 IEP, as the issue was not raised in the due process complaint and was not litigated by the parties. It is thus outside the scope of this consolidated proceeding.