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FINDINGS OF FACT AND DECISION
Case Number: 157912
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: December 2, 2015
May 25, 2016
Actual Record Closed Date: June 10, 2016
Hearing Officer: Michael K. Lambert, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 2, 2015
Attorney — Student
Law Clerk — Student
Attorney for DOE (by telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 25, 2016
Attorney — Student
Attorney — Student
Parent/Mother (by telephone) — Student
DOE Representative — DOE
INTRODUCTION AND PROCEDURAL HISTORY
By due process complaint dated September 15, 2015 (PE-A) the parents initiated the instant due process hearing in which they advanced a number of challenges to the 2015-2016 educational program offered by the Department of Education (“DOE”) to
Specifically, the parents challenge the appropriateness of recommendations made at a June 18, 2015 CSE meeting in terms of the evaluative information upon which such IEP was based, the description of , and the appropriateness of the IEP goals and special education program and services recommended by the CSE. In terms of relief, the Parents sought prospective funding/tuition reimbursement for a 2015- 2016 unilateral placement at the , inclusive of the related services of and , and compensatory education services.
On December 2, 2015, a pendency hearing was conducted, resulting in the issuance of a December 10, 2015 Pendency Order (PE-E).
The parties thereafter appeared for hearing on May 25, 2016. At that time, the DOE Representative advised that the DOE did not intend to present any evidence in its case-in-chief (T: 22). The Parents offered, without objection, PE-E through PE-P (PE-A through PE-D having been admitted at the December 2, 2015 pendency hearing). In addition, the Parent and the , , testified in the Parents’ case-in-chief.
The above issues are hereby decided as set forth herein.
THE HEARING EVIDENCE
The hearing record established that was, at the time of the underlying hearing, an student who had been classified by the New York City Department of Education as . He has a history of medical diagnoses which included
(T: 83-84).
’s mother testified that, for the 2015-2016 school year, the CSE recommended a program calling for ’s placement in a class of , ,
”1 (T: 85-86).
The challenged IEP was not introduced by either party (T: 94).
, (T: 27), was the first witness called by the Parents. In that capacity, Ms. was responsible for the , which included the and (T: 28). was described as an located in that services approximately in “ ” through (T:
29), including ,
(T: 30). Staff consisted of
, , , and related
service providers including , , and (T: 30).
(T: 30-31).
Ms. indicated that and worked closely together to meet the needs of the students attending
(T: 31-32). There was program at
. was placed in the “ ” program based upon the fact that and it was determined that
(T: 66). In addition, it was determined
that was appropriate for placement in the “ ” program, which at the start of the year consisted of (T: 35-36).
Ms. testified that had been an student at in the 2015-2016 school year (T: 32). She saw and spoke with his teachers on a daily basis from the beginning of the school year (T: 33). She described as who presented with , including
. He
and (T: 34-35).
(T: 57) and, in or about late October to early November (T: 66), ’s class placement was changed to a class with a total of . This change was predicated upon
(T: 57-60) a belief that in the new class would be better for , as well as the fact that
(T: 37-38). reportedly
did better in the new classroom – at least until mid-March - although the record contains little information as to what the reasons for this improvement may have been. No was conducted by staff (T: 60).
Ms. testified that, although the and at the interacted with each other, did not receive in his classroom (T: 39-40). This testimony was somewhat confusing and inconsistent, as Ms. also testified that there may have been times when the
(T: 40). However, no testimony was provided as to whether this had, in fact, been done with respect to ’s classes. In addition, Ms. testified that received
, including
(T: 46-47). He did not receive services (T: 61).
Ms. further testified that received no related services at
(T: 45).[3] Direct related services were only provided to students enrolled in
(T: 64).
Ms. testified that staff
to assist in (T: 41).
, in consultation with ’s
teachers, but also involved the (T: 41). PE-I was identified as “ ” prepared to assist in
(T: 42-43). The that were used throughout the school year included
(T: 43). In addition, Ms.
testified that were put into place to (T:
44). Notwithstanding these , reportedly had during the first couple of weeks at school and again starting in mid-
March (T: 51-52).
Ms. testified that, shortly prior to the hearing date,
. and the Parents were sharing the costs of such (T: 55).
Ms. testified that the DOE did not
. Rather, ,
(T: 53-55).
Ms. testified that had made some progress at
, although the rate of his progress was adversely impacted by (T:
52-53). ’s mother testified that he had made “ ” (T: 92).
Post-hearing briefs were not submitted by either of the parties.
THE LEGAL STANDARDS
Pursuant to the IDEA, all children with disabilities are entitled to a “free appropriate public education” (“FAPE”) which must include “special education and related services” tailored to meet the unique needs of the child and be “reasonably calculated to enable the child to receive educational benefits.” B oard of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 207 (1982); (20 U.S.C. § 1400[d][1][A]; Schaffer v. W east, 126 S. Ct. 528, 531 [2005]; Frank G. v. B oard of Education, 459 F.3d 356, 371 [2nd Cir. 2006]). 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 (Rowley, 458 U.S. at 206-07; Cerra v. Paw ling Central School District, 427 F.3d 186, 192 [2nd Cir.
2005]). The Second Circuit Court of Appeals in W alczak v. Florida Union Free School District, 142 F.3d 119 (2nd Cir. 1998) held that the IDEA does not articulate any specific level of educational benefits that must be provided through an IEP. The Court citing to the Supreme Court ruling in Rowley reiterated that the IDEA does not require the states to maximize the potential of disabled children, but was meant “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside” (at pg. 192). The Second Circuit in W alczak also cited to a D.C. Circuit Court decision by now Supreme Court Justice Ruth Bader Ginsburg which held that because “public resources are not infinite,” federal law “does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child” (Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1583 [D.C. Cir. 1984]). The Third Circuit has held that an appropriate education under the IDEA is one that is “likely to produce progress, not regression” (Cypress-Fairbanks Indep. Sch. Dist. V . Michael F., 118 F.3d 245, 248 [3rd Cir. 1997]; cert denied 522 U.S. 1047 [1998]; Cerra, 427 F.3d at 195, quoting W alczak, 142 F.3d at 130 [citations omitted]; see Perricelli v. Carmel Central School District, 2007 WL 465211, at *15). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (W alczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 [2nd Cir. 1989][citations omitted]; see Grim , 346 F.3d at 379). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford B oard of Education, 103 F.3d 1114, 1120 [2nd Cir. 1997]; see Rowley, 458 U.S. at 192). Objective factors such as the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress and one important factor in determining educational benefit (Rowley, 458 U.S. at 207, n.28, 203-04; W alczak, 142 F.3d at 130; V iola v. A rlington Central School District, 414 F. Supp. 2d 366, 382 [S.D.N.Y. 2006]).
The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; see W alczak, 142 F.3d at 132). The LRE is defined as “one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled” (Carlisle A rea Sch. V . Scott P., 62 F.3d 520, 535 [3rd Cir. 1995]). The IDEA mandates that all students with disabilities may only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. 1412[a][5][A]; 34 CFR
300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3rd Cir. 1993]; Briggs v. Bd.
of Educ., 882 F.2d 688, 691 [2nd Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]).
“The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Borough of Clementon Sch. Dist., 995 F.2d 1204
[3rd Cir. 1993]). The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes such as language and role modeling with nondisabled peers” (Greer v. Rome City Sch.
Dist., 950 F.2d 688 [11th Cir. 1991]).
The Second Circuit Court of Appeals adopted the Oberti LRE test in P. v.
Newington B oard of Educ., 546 F.3d 111 (2nd Cir. 2008) requiring the consideration of whether the school has made reasonable efforts to accommodate the child in a regular classroom, the educational benefits to the child with appropriate supplementary aids and services versus a special class and the possible negative effects of the inclusion of the child on the education of the other students in the class.
Federal district courts have upheld the appropriateness of an IEP “given what the CSE knew about [the child] at the time it was developing the … IEP” E.S. v. K atonah-
Lewisboro School District, 742 F.Supp.2d 417 (S.D.N.Y. 2010). In J.R. v. B oard of Education of the City of Rye School D istrict, 345 F.Supp.2d 386 (S.D.N.Y. 2004), the Court held that in reviewing the appropriateness of an IEP that:
“This determination is necessarily prospective in nature; we therefore must not engage in Monday-morning quarterbacking guided by our knowledge of
S.R.’s subsequent progress at Eagle Hill, but rather consider the propriety of the IEP with respect to the likelihood that it would benefit S.R. at the time it was devised. See A ntonaccio, 281 F.Supp.2d at 724 (noting that this issue has not yet been addressed by the Second Circuit and holding that ‘the …IEP…must be evaluated at the time the CSE devised the IEP, on June 15, 1999, and the IHO and SRO erred by regarding any information about [the student’s] education after that date’).”
The SRO has consistently considered the IEP “at the time it was formulated” to determine if it was reasonably calculated to enable the student to receive educational benefit
(A pplication of a Student with a Disability, SRO Appeal Nos. 11-154, 09-034, 09-013).
In terms of the available remedies in cases where a district has failed to meet its obligation to offer an educationally disabled child FAPE, IHO’s have substantial discretion. Since P. ex rel. M r. and M rs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008), the courts of the Second Circuit have ceased to limit eligibility for “compensatory education” to those over 21. In P, the Second Circuit ruled that “compensatory education” can be awarded to an elementary school student. Further, even the “gross violation” requirement, which is applicable to a claim for compensatory education by someone over 21 is not clearly established in this Circuit to be applicable to a student under 21. That standard was not relied upon in P.
In S.A . ex rel. M.A .K. v. New Y ork City D ep't of Educ., 12-CV-435 (RMM)
(MDG), 2014 WL 1311761 (E.D.N.Y. Mar. 30, 2014), the Court held:
The IDEA allows a hearing officer to fashion an “appropriate remedy, and ...
compensatory education is an available option ... to make up for denial of a [FAPE].” P. ex rel. M r. and M rs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008) (affirming compensatory education award for elementary school student); see also Student X v . New Y ork City D ep't of Educ., No. 07
CV 2316, 2008 WL 4890440, at *24 (E.D.N.Y. Oct. 30, 2008) (awarding compensatory education to student younger than twenty-one). Such an award serves “to compensate a student who was actually educated under an inadequate IEP” and “to catch-up the student to where he should have been absent the denial of a FAPE.” B rennan v. Regional Sch. Dist. No.[1] Bd. of Educ., 531 F.Supp.2d 245, 265 (D.Conn.2008). Before awarding compensatory education for a student older than twenty-one, a court must find a gross violation of the student's right to a FAPE; however, whether the same prerequisite exists to awarding compensatory education for a younger student is an open question. See Student X , 2008 WL 4980440, at *24. P. v.
Newington, 512 F.Supp.2d 89, 112 n. 3 (D.Conn.2007) (“The Court disagrees with the defendant's argument that compensatory education is warranted only if there is a ‘gross' violation of the IDEA. The requirement of a gross violation
... has been applied only to cases involving claimants over the age of 21.”), aff'd, 546 F.3d 111 (2d Cir.2008); but see J.A . v. E. Ramapo Cent. Sch. Dist., 603 F.Supp.2d 684, 690 (S.D.N.Y.2009) (finding that five-year-old student was not entitled to compensatory speech therapy, reasoning that parents failed to show gross violation because child “was not excluded from school for any period of time.”).
Also, Reid ex rel. Reid v. D.C., 401 F.3d 516, 522-26 (D.C. Cir. 2005) seems to stand for the proposition that “compensatory education” can be prospective educational services to compensate for a past deficient program and that a hearing officer, as well as a court, can fashion flexible “compensatory education” relief through the application of “equitable considerations.” Reid is cited by, for example, the Second Circuit in P., 546 F.3d at 123, for the proposition that “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.”
FINDINGS OF FACT AND CONCLUSIONS OF LAW
By failing present any evidence in its case-in-chief, the DOE failed to meet its burden as to any issues concerning which they bore the burden of proof. I specifically find that the DOE denied FAPE in the 2015-2016 school year as follows:
2016 IEP was developed were appropriate;
2. That the DOE failed to establish the appropriateness of the description of , as determined by the CSE on June 18, 2015;
3. That the DOE failed to establish that the IEP goals were appropriate; and
4. That the DOE failed to establish the appropriateness of the educational program developed by the CSE on June 18, 2015.
However, the hearing evidence failed to demonstrate that the educational program for which tuition reimbursement was sought was appropriate, or even that he received special education services at all at . The reasons for this finding include the following:
1. The hearing evidence failed to demonstrate that received any special education services at during the 2015-2016 school year. He was placed in ’s . When this question was directly posed to Ms. , she was unable to clearly articulate what, if any, special education services that received at
(T: 6970)
2. The hearing evidence demonstrated that , a child classified with , did not receive any related services at . This was in spite of the fact that he was apparently in need of
, , . Indeed,
Ms. testified that the absence of such related services was “
” (T: 62).
3. The hearing evidence suggested that the primary factor that was jeopardizing
’s was
. In this regard, it was difficult to ascertain what ’s plan was to address such . The evidence that was presented as to the conducted by was unimpressive.
Putting aside issues of timeliness, PE-I can hardly be credibly characterized as a (T: 42-43). When
necessitated that he be removed from such classroom, such removal was to a classroom that was that he was removed from.
Moreover, there was little, if any, evidence presented as to what, if any, new or different were utilized in the second classroom. I find that the hearing evidence failed to demonstrate that provided appropriate to during the 2015-2016 school year.
4. The fact that an was required to be added to ’s classroom in or about mid-March calls into question the appropriateness of the before that time (T: 71-72; T: 74). Further, the fact that such who was provided to deliver had no suggests that such additional support was not appropriate
(T: 76).
5. The hearing record was unclear as to why the DOE was not or if any application had been made by the parents for the DOE to provide such . However, I find little evidence to support a conclusion that such was appropriate for Indeed, the hearing evidence suggested that had been presenting with for the entire 2015-2016 school year, with little being done to address such (T: 74-76).
Accordingly, I find that the Parents’ request for reimbursement for of the tuition that they paid at for the 2015-2016 placement must be denied.
I further find that the parents are entitled to an Award of compensatory education services for the related services listed in the IESP which were not arranged for until
RSA’s were transmitted to the parents on April 8, 2016 (PE-P).
Based upon the above, I need not make any findings as to whether there were any equitable factors that would warrant reduction or denial of an otherwise-appropriate tuition reimbursement award. However, I will note that the hearing record does not contain any suggestion that there were any equitable factors that should lead to a reduction or denial of the tuition.
ORDER
1. The Parents’ request for reimbursement for the 2015-2016 tuition at is hereby denied.
2. The hearing evidence indicates that, notwithstanding an IESP calling for to receive , , and
(PE-H-10), the DOE did not provide the parents with RSA’s for such related services until April 8, 2016 (PE-P). The parent testified that she was unable to locate any available providers due to the lateness of the
RSA’s being provided (T: 88). Accordingly, I hereby direct that the DOE offer the following related services as a compensatory bank from which the parents may draw through the end of the 2016-2017 school year:
a. ;
b. ;
c. ; and
d. .
3. All other claims set forth in the due process complaint are hereby dismissed.
Dated: October 5, 2016
MICHAEL K. LAMBERT, ESQ.
Impartial Hearing Officer MK:
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 2, 2015
None
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 25, 2016
None
Footnotes
[2] Ms. testified that (T: 32). This figure did not include (T: 33).
[3] Although no finalized 2015-2016 IEP was introduced during the instant hearing, a draft IEP included recommendations for (PE-C-12). ’s mother testified that he had a history of being in need of such related services (T: 83). Moreover, the DOE was directed to provide such related services in the 12/10/15 Pendency Order issued by this hearing officer (PE-E). No evidence was provided as to whether or how this Order had been implemented.
[1] That the CSE failed to establish that the evaluations upon which the June 18,