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FINDINGS OF FACT AND DECISION
Case Number: 158388
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: January 13, 2016
Actual Record Closed Date: January 27, 2016
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 13, 2016
Parents
ESQ., Attorney — DOE
ESQ., Attorney — DOE
(via telephone) — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the parent of the student in a due process complaint notice dated October 7, 2015. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) should be ordered to pay for (“ ”) services for the student (Ex.
SD-1).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y.
Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y.
Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See
N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
The DOE appointed me to hear this matter on October 19, 2015. See 8 NYCRR § 200.5(j)(3)(i). A pre-hearing conference with the parties was held on December 30, 2015 to clarify the hearing issues and set a date for the hearing (R. 3-5). See 8 NYCRR § 200.5(j)(3)(xi). A hearing on the merits of this matter was thereafter held on January 13,
2016.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the October 7, 2015 due process complaint, the student was years old and has been diagnosed with an (“ ”) (Exs. SD-1 at 3, SD-17 at 1, 5, P-A at 1, P-B). For the 2015/16 school year, the student attends an at the (R. 42-43; Exs. SD-1 at 2, SD-7 at 1, SD-9, SD-10, SD-12, SD-13, SD-14, SD-15, SD-16). The student's eligibility for special education and related services as a student is not in dispute in this hearing (R. 43; Exs. SD-1, SD-7 at 1, SD-11 at 1). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).3
In March 2014, a evaluation of the student was completed at the (“ ”) (affiliated with
). The student was administered the
(“ ”) to
. The student’s was
, which was in the . In the area of , the student obtained a , which was a score in the . He obtained scores in the in the , , and (Ex. SD-17 at 2-3).
On March 4, 2014, the student was administered the (“ ”) by the DOE as part of the evaluation process.
The student achieved a , which fell in the
. His and fell within the . The student’s also fell within the
(Ex. SD-2).
At a meeting held on November 23, 2015, the CSE convened to develop and IEP for the student through November 21, 2016. The CSE recommended that the student . The CSE also recommended that the student receive related services of and
3
.
(Exs. SD-7 at 10, 13-14, SD-11).4
In the fall of 2015, the student was reported to . The parent seeks services to ,
, , and (Ex. SD-1-2). This hearing
ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The program developed for the student for the 2015/16 school year is appropriate and is addressing his individualized needs. The student does not require a program of
(R. 13-15).
B. The Parent
The student’s progress in different areas, such as , has been . The student’s doctors have recommended that he receive in order to and to receive an appropriate program (R. 16; Ex. SD-1).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A ., 557 U.S. 230, 239 (2009); B oard of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 206-07 (1982).5
4
.
The term “free appropriate public education” means special education and related services that –
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New Y ork City D ep't.
of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June
10, 2013); M.H. v. New Y ork City D ep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Paw ling 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.'" W alczak 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. M amaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009).
While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A .C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v.
Carm el Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c)
caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R.
§ 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); W inkelman v. Parma City Sch. Dist., 550
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M .H., 685 F.3d at 245; A .H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C.
§ 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."
W alczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See W alczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.
Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; W alczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" See Cerra, 427 F.3d at 195 (quoting W alczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See M rs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v.
A rlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); W alczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patsk in v. B oard of Educ., 583 F. Supp. 2d
422, 428 (W.D.N.Y. 2008).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlow e v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New Y ork City D ep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Compensatory Additional Services
Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. See Somoza v. New Y ork City D ep't of Educ., 538 F.3d 106, 109 (2d Cir. 2008); M rs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); Student X v . New Y ork City D ep'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); B oard of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); A pplication of a Child with a Disability , Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M .C. v.
Central Reg’l Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem”). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Id. at
526.
There has been no allegation made that the student has been denied any recommended instructional services (R. 3-5, 16; Ex. SD-1). Therefore, any award of must be premised on a denial of a FAPE which has resulted in Case No. 158388 a lack of educational progress. Cf. A pplication of the New Y ork City Dep’t of Educ., Appeal No. 13-236 at 10-13 (SRO Feb. 7, 2014).
Based on the evidence contained in the hearing record, including the credible testimony of Dr. , I find that the student’s at the is an appropriate program for him because it is providing him with specifically designed, individualized instruction to meet his unique educational needs. I also find that that CSE has recommended sufficient support services, such as , to permit the student to benefit educationally from that instruction. Lastly, I find that the student does not require to receive educational benefit from his school program because “ ” (R. 65-66, 71, 73, 76-84, 88, 111-112, 128; Exs. SD-7,
SD-12, SD-13).
Following an evaluation of the student in March 2014, the student’s , Dr. , recommended that that the student “ ” (Ex. SD-17 at 5-6). Consistent with this recommendation, the CSE placed the student in a at the (Ex. SD-7 at 10). The student’s program included a
, and a
(R. 54-64; Exs. SD-7 at 3-4, SD-
9, SD-10).6 In the November 23, 2015 IEP, the student’s parent was reported to have been pleased with the student’s progress at the school (R. 114; Ex. SD-7 at 2, 15).
.
Dr. testified that at the , the student is educated in a . The other students in the have similar needs and abilities (R. 52). On July 10, 2015, the student was administered a (“ ”) by staff at the . The is a assessment for students . From the results of the , school staff noted that the student
(R. 44-50; Ex. SD-13). Dr. credibly testified that while at the , the student had made progress in a variety of areas, including:
(R. 65-66, 71, 73, 76-84, 88, 111-112, 128; Exs. SD-12, SD-13).
To address the student’s in the setting, Dr.
stated that and
. Under this plan,
. The student also .
(R.
57-58, 64-65).
The student’s were assessed by school staff
using the (“ ”) (R. 61-62). To address the student’s , school staff t
(R. 66-67). The hearing record reflects that, by mid-year, had occurred, lasting a total of hours (R. 115-125; Exs. SD-14, SD-15, SD-16).
Alternatively, while I have considered the opinions offered by Dr. , Dr.
, Dr. , and Ms. , that the student requires
services (Exs. P-A, P-B, P-C, P-D), I give greater weight to the testimony of Dr. , that the student does not require to receive educational benefit from his school program (R. 128). See W atson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141
(N.D.N.Y. 2004) (“the mere fact that a separately hired expert has recommended different programming does nothing to change [the] . . . deference” paid to the school district and its trained educators), aff’d, 142 Fed Appx 9 (2d Cir. 2005), cert. denied, 546 U.S. 1091
(2006); Pascoe v. W ashingtionville Cent. Sch. Dist., No. 96 Civ. 4926, 1998 WL 684583
(S.D.N.Y. Sept. 29, 1998) (holding that recommendation that a student be given private
Orton-Gillingham instruction did not, in itself, invalidate substantive recommendations in
IEP).[7] While I can understand the parent’s desire to
(R. 126), it does not follow that the DOE must be made responsible for . The IDEA ensures an "'appropriate' education, 'not one that provides everything that might be thought desirable by loving parents.'" See W alczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d
Cir. 1989).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
As the student is receiving a free appropriate public education in his current setting, the parent’s claim for is DENIED.
Dated: February 10, 2016
/s/
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
JS:
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 HEARING RECORD
PARENTS
A. Letter from , 5/2/14, 6 pgs.
B. Letter from ., 8/28/14, 1 pg.
C. Letter from , 1/8/16, 1 pg.
D. Letter from , 3/13/15, 1 pg.
DEPARTMENT OF EDUCATION
1. Due Process Complaint Notice/Impartial Hearing Request, 10/7/15, 4 pgs.
2. Update, 3/4/14, 2 pgs.
3. [Reserved]
4. Notice of Committee on Special Education (CSE) Meeting, 10/19/15, 3 pgs.
5. Attendance Page, 10/26/15, 1 pg.
6. Notice of Committee on Special Education (CSE) Meeting, 11/12/15, 3 pgs.
7. Individualized Education Program (IEP), 11/23/15, 15 pgs.
8. Attendance Page, 11/23/15, 1 pg.
9. ( ), 10/28/15, 3 pgs.
10. ( ), 11/2/15, 4 pgs.
11. Prior Written Notice (PWN), 11/23/15, 4 pgs.
12. Teacher Report, 10/5/15, 6 pgs.
13. Results, 10/9/15, 2 pgs.
14. , 8/6/15, 2 pgs.
15. , 11/21/15, 2 pgs.
16. , 12/17/15, 1 pg.
17. Evaluation, 3/3/14, 7 pgs.
18. E-mails between parent and , various dates, 16 pgs.
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 12/10/15, 1 pg.
II. Confirmation of Extension, 1/7/16, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter twice in order to accommodate the availability of the parties’ witnesses. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (Exs. IHO-I, IHO- II). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[7] Moreover, several courts have held that the IDEA does not require school districts as a matter of course to design educational programs to address a student's difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom. See Thompson R 2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 (10th Cir. 2008); Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 (1st Cir. 2001); Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 (11th Cir. 2001); JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 (11th Cir 1991).