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FINDINGS OF FACT AND DECISION
Case Number: 158331
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: November 25, 2015
December 2, 2015
December 10, 2015
December 16, 2015
December 22, 2015
December 23, 2015
January 6, 2016
January 14, 2016
January 22, 2016
February 11, 2016
February 24, 2016
March 9, 2016
Actual Record Closed Date: March 21, 2016
Hearing Officer: Esther Mora, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 25,
2015
ESQ., Attorney (Via Telephone) — Student
Impartial Hearing Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 2, 2015
Attorney — Student
Impartial Hearing Representative — DOE
Assistant — DOE
NAMES AND TITLES OF PERSOSN WHO APPEARED ON DECEMBER 10,
2015
ESQ., Attorney — Student
Parent/Mother — Student
Parent/Father — Student
Impartial Hearing Representative — DOE
(Via Telephone) — DOE
(Via Telephone) — DOE
, (DID NOTTESTIFY)
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 16,
2015
Attorney — Student
Impartial Hearing Representative — DOE
Teacher (Via Telephone) — DOE
Teacher (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 22,
2015
Attorney — Student
Impartial Hearing Representative — DOE
Teacher (Via Telephone) — DOE
Teacher (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 23,
2015
Attorney — Student
Observer — Student
Impartial Hearing Office Representative — DOE
(Via Telephone) — DOE
Teacher (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 6, 2016
ESQ., Attorney (Via Telephone) — Student
Impartial Hearing Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 14, 2016
ESQ., Attorney — Student
Impartial Hearing Representative — DOE
Impartial Hearing Representative — DOE
Teacher, (Via Telephone) — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 22, 2016
Attorney — Student
(Via Telephone) — Student
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 11,
2016
Attorney — Student
Student
(Via Telephone) — Student
, IHRO
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 24,
2016
Attorney — Student
Parents
IHRO Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 9, 2016
ESQ., Attorney — Student
Impartial Hearing Representative — DOE
INTRODUCTION
This matter came before me pursuant to the Individuals with Disabilities Education Act. The hearing was concluded on March 9, 2016. I find that the school district failed to provide a FAPE during the 2013-14, 2014-15 and 2015-16 school years and that the parent is entitled to the relief she seeks.
SCHOOL DISTRICT
The school district concedes that it did not provide a FAPE during the 2013-14, 2014-15 and 2015-16 school years. (Exhs. 1, 16) Nonetheless, the school district opposes the parent's request for compensatory , compensatory , an independent and , and a change in classification from to . (Exh. 16) The school district presented witness testimony from an
, an , ,
, a and a . The school
district also submitted documentary evidence. (Exhs. 1-16)
The , who is also an , conducted an on November 15, 2015. She testified that the student did not require a evaluation because he did not present with issues. Additionally, the difficulties he exhibited, such as with and , could be addressed or with he already has, which is . (Tr. 12/2/15 at 5-56; Exhs. 8, 9, 10, 11, 12, 13, 14)
The student's during the 2014-16 school years testified that the he received was appropriate and that he benefited from the services. (Tr. 235-411; Exhs. 3, 15)
The student's teacher and a testified that the student did not exhibit issues that warranted a . (Tr. 152-182, 188-234, 415-511, Exhs. 2, 4, 5, 6, 7, 15)
Regarding the student's classification, the testified that the classification was not appropriate because the student's primary issues were and his were in comparison. (Tr. 415-511, Exhs. 3, 5)
The student's classroom teacher during the 2013-15 school years also testified about his strengths and weaknesses and his . (Tr. 415-469, 512-548; Exh. 14)
PARENT
Parent witnesses included the , a
( ), and the parent. The parent also submitted documentary evidence. (Exhs. A-I)
Th testified that she evaluated the student at on August 20, 2015.
During the evaluation the student exhibited
. She also reviewed his educational
records and noted that his teachers reported that . The concluded that a and were warranted. (Tr. 2/11/16 at 80-120)
The testified that the student was evaluated at the . The evaluations included a evaluation (Exh. C), a evaluation (Exh. E), a evaluation (Exh. F), and a report (Exh. G). Results indicated that the student was not progressing
. He was diagnosed as
. She opined that the student should have received to address issues such as his , and . Additionally, his warranted a . (Tr. 1/22/16 at 3-62; Exhs. C, D, E, F, G)
The parent testified about the student's educational history, his strengths and weaknesses and , and her efforts to obtain appropriate educational services.(Tr. At 126-190)
APPLICABLE STANDARDS - FAPE
As was recently restated in Appeal No. 15-085, two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch.
Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). 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; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.
2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (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]). 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
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 (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).
Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir.2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir.
1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
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 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), 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 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington
v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).
"Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR
300.148).
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 (Educ. Law § 4404[1][c]; see 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]).
APPLICABLE STANDARDS – ADDITIONAL SERVICES
The parent also seeks additional services. The applicable standards for this relief were also set forth in Appeal 15-085. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y.
1997]). Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see Newington, 546 F.3d at 123 [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; 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]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. March 6, 2008], adopted, 2008 WL 9731174 [S.D.N.Y. July
7, 2008]) Likewise, SROs 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 (Bd.
of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO 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 Student with a Disability, Appeal No. 09-111 [adding summer reading instruction to an additional services award]; Application of the Bd. of Educ., Appeal No.
09-054 [awarding additional instructional services to remedy a deprivation of instruction]; Application of a Student with a Disability, Appeal No. 09-044 [awarding "make-up" counseling services to remedy the deprivation of such services]; Application of a Student with a Disability, Appeal No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; Application of a Student with a Disability, Appeal No. 08-
072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE]; Application of the Bd. of Educ., Appeal No. 08-060 [upholding additional services awards of physical therapy and speech-language therapy]; Application of a Student with a Disability, Appeal No. 08-035 [awarding ten months of home instruction services as compensatory services]; Application of the Bd. of Educ., Appeal No. 06-074; Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-054).
The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE (see E. Lyme Bd. of Educ., 790 F.3d at 456; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup
Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]; Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10-052). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; S.A. v. New York City Dep't of Educ., 2014 WL 1311761, at *7 [E.D.N.Y. Mar. 30, 2014] [noting that compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v.
L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's]
educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puyallup, 31 F.3d at 1497 [finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]; Application of a Student with a Disability, Appeal No. 13-168; Application of the Dep't of Educ., Appeal No. 12-135; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).
FINDINGS
Having reviewed the entire record, including all of the testimony and documentary evidence presented by both parties, I find that there were procedural and substantive violations resulting in denial of FAPE during the 2013-14, 2014-15 and 2015-16 school years. The hearing record establishes that the school district failed to meet the notice requirements of 8 NYCRR Sec. 200.5, which denied the parent an opportunity to meaningfully participate in the development of the student's IEP, failed to provide the parent with progress reports and therefore impeded her ability to meaningfully participate in making educational decisions, failed to provide the requested educational records, failed to properly evaluate the student, failed to adequately address the student's
, and , failed to provide meaningful
and measurable annual, goals, failed to provide an appropriate placement, failed to address and failed to conduct a and develop a .
I have considered the parties' remaining contentions and find them to be without merit.
ORDER
1. This matter is remanded to the school district.
2. Within fifteen calendar days of the date of this Order the school district is to convene an IEP meeting to reconsider the student's classification and to develop meaningful and measurable annual goals and short-term objectives in all areas of need based on recent assessments, including, but not limited to, , , , and
.
3. Within ten calendar days of the date of this Order the school district is to conduct a full and comprehensive evaluation.
4. Within ten calendar days of the date of this Order the school district is to authorize the parent to obtain an independent from , with , at school district expense at the enhanced rate. Upon receipt of the report, the IEP team is to consider the and incorporate it into the IEP.
5. Within ten calendar days of the date of this Order the school district is to authorize the parent to obtain an independent from , with , at school district expense at the enhanced rate. Upon receipt of the the IEP team is to consider the and incorporate it into the IEP.
6. The IEP team is to consist of all mandated members, including the parent, special education teacher, provider, provider, counselor and school psychologist.
7. To compensate for the failure to provide appropriate services, and to minimize the impact on the student's instruction during the school day, within five days of the date of this Order the school district is to authorize the parent to obtain, at school district expense at the enhanced rate, of independent services during non-school hours.
8. To compensate for the failure to provide appropriate lack of , and to minimize the impact on the student's instruction during the school day, within five days of the date of this Order the school district is to authorize the parent to obtain, at school district expense at the enhanced rate, ( ) of independent during .
9. To compensate for the failure to provide appropriate , and to minimize the impact on the student's instruction during the school day, within five days of the date of this Order the school district is to authorize the parent to obtain, at school district expense at the enhanced rate, ( ) of independent during
.
10. The school district shall provide to the parent a complete set of the student's records as preserved on SESIS, as well as session notes and all measures of the student's progress as mandated on his IEPs. Dated: March 22, 2016
ESTHER MORA, ESQ.
Impartial Hearing Officer EM:
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
PARENT
A Demand for Due Process Hearing, 10/8/15, 12 pages
B IEP, 10/30/14, 13 pages
C Evaluation Report, 3/31/15, 4 pages
D IEP, 4/2/15, 17 pages
E Evaluation, 4/7/15, 6 pages
F Notice, 5/8/15, 3 pages
G Report, 5/26/15, 5 pages
H DVD, 1/17/16, 1 page
I Closing Brief, 3/9/16, 30 pages
DEPARTMENT OF EDUCATION
1 Executed Partial Resolution Agreement, 11/4/15, 3 pages
2 , 10/26/15, 1 page
3 Progress Report, 10/26/15, 2 pages
4 Update, 10/13/15, 2 pages
5 Evaluation Report, 10/15/15, 2 pages
6 IEP, 10/30/15, 11 pages
7 Attendance History, 11/17/15, 3 pages
8 Evaluation, 11/9/12, 12 pages
9 Evaluation, 1/13/15, 6 pages
10 , 11/12/15, 3 pages
11 Evaluation , 1/13/15, 8 pages
12 Form, 1/13/15, 1 page
13 Sample, undated, 1 page
14 Letter, 6/17/15, 1 page
15 Service Records, undated, 13 pages
16 Closing Brief, 3/9/16, 4 pages