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AMENDED FINDINGS OF FACT AND DECISION
Case Number: 159067
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: June 17, 2016
July 12, 2016
Actual Record Closed Date: November 9, 2016
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 17, 2016
ESQ., Attorney — Student
Parents
Interpreter — Student
Impartial Hearing Representative — DOE
(via telephone) — DOE
(via telephone) — DOE
(via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 12, 2016
ESQ., Attorney — Student
Parents
Interpreter — Student
(via telephone) — Student
Impartial Hearing Representative — DOE
Impartial Hearing Representative — DOE
— 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 attorneys for the student and the parent in a due process complaint notice dated November 25, 2015. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) denied the student a free appropriate public education (“FAPE”) during the 2013/14, 2014/15, and 205/16 school years (Ex. IHO-I).[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
On November 30, 2015, the DOE appointed me to serve as the IHO in this matter.
See 8 NYCRR § 200.5(j)(3)(i). Hearings in this matter were thereafter held on June 17, 2016 and July 12, 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 November 25, 2015 due process complaint, the student was and in the at the (“ ”) in (Exs. IHO-I at 1, SD-6 at 1, P-H at 1).
During the disputed school years, the student was eligible for special education and related services as a student with (Exs. IHO-I at 1, SD-[2]
at 1, SD-4 at 1, SD-7 at 1, SD-8 at 1, P-A at 1, P-B at 1, P-C at 1). See 34 C.F.R. § 300.8(c)(11); 8 NYCRR § 200.1(zz)(11).3
In the spring of 2010, when the student was in ,
and
. The student’s in was estimated to be at . The student’s in was estimated to be (Ex. P-C at 1).
In April 2011, when the student was in , he earned a and a . The student’s in was estimated to be . The student’s in was estimated to be at (Ex. P-B at 1-2).
The CSE convened on May 18, 2011 to develop an IEP for the student through May 15, 2012. The CSE recommended that the student receive . The CSE also recommended that the student receive related services of and (Ex. P-C at 12-13, 17).
In the spring of 2012, when the student was in , he earned a and a . The student’s in was estimated to be . The student’s in was estimated to be at (Ex. P-A at 1, 11).
The CSE reconvened on May 4, 2012 to develop an IEP for the student through May 2, 2013. The CSE recommended that the student receive . The CSE also recommended that the student receive
(Ex. P-B at 7-
.
8).
In April 2013, when the student was in , he earned a t and a . The student’s in was estimated to be at . The student’s in was estimated to be at (Exs. SD-2 at 1, 9, SD-7 at 1).
The CSE reconvened on May 14, 2013 to develop an IEP for the student through May 13, 2014. The CSE recommended that the student receive
,
. The CSE also recommended that the student receive related services of
, and
(Exs. IHO-1 at 2, P-A at 7-8, P-H at 2).
The student attended the at for the duration of the 2013/14 school year. In the spring of 2014, the student’s in was estimated to be at . The CSE reconvened on May 5, 2014 to develop and IEP for the student through May 4, 2015. The CSE recommended that the student receive the . The CSE also recommended that the student receive related services of: ,
, and
(Exs. IHO-I at 2, SD-2 at 1, 6-8, P-H at
2).
The entered the at in September of 2014 where he attended for the duration of the 2014/15 school year (Ex. IHO-2 at 2). In the fall of 2014, the student’s in and was estimated to be at (Ex. SD-5 at 1). The CSE reconvened on November 5, 2014 to develop and IEP for the student through November 4, 2015. The CSE recommended that the student receive
.4 The CSE also recommended that the student
receive related services of
, and
(R. 25-26; Exs. IHO-I at 2, SD-4 at 2, SD-6, SD-7 at 6,
8-9, SD-8, P-H at 2).
In September of 2015, the student entered the at where he continues to attend (Exs. IHO-I at 2, P-H at 2).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE concedes that it failed to provide the student with a FAPE for the 2013/14 and 2015/16 school years. The DOE asserts a defense of equitable estoppel with respect to the parent’s claims concerning the 2014/15 school year, in that the parent requested that the student’s recommended program be changed to in order for the student to attend a charter school, i.e., . The parent’s claim of improper evaluation of the student is moot, as the DOE has authorized to the parent to secure an independent evaluation at public expense. The parent’s request for as compensatory education is excessive and inappropriate (R. 14-
16).
B. The Parent
The DOE denied the student a FAPE for the 2013/14, 2014/15 and 2015/16 school years. With respect to the 2014/15 school year, the CSE erred in recommending services, given the student’s . In light of the CSE’s failure to timely evaluate the student, the parent seeks an order directing the DOE to authorize an independent evaluation of the student at public expense. Given the denial of FAPE over a period of several years, the student is entitled to compensatory educational services in the form of provided by the
(R. 78-82; Ex. IHO-I).
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 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]
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. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M .H., 685 F.3d at 245; A .C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007).
Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c)
caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R.
§ 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; 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);
2012 and seeks an order directing the DOE to provide the student with an independent evaluation by an independent evaluator of the parent’s choice at the prevailing market rate (Ex. IHO-I at 3, 6).
Generally, a school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the parent or teacher requests a reevaluation. See 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4).
A school district, however, need not conduct a reevaluation more frequently than once per year unless the parent and the school district otherwise agree and must conduct one at least once every three years unless the school district and the parent agree in writing that such a reevaluation is unnecessary. See 8 NYCRR § 200.4(b)(4); see also 34 C.F.R. §§
300.303(b)(1)-(2). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and an evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
Subject to certain limitations, federal and State regulations provide that a parent has a right to obtain an IEE at public expense if a parent disagrees with an evaluation obtained by the school district. See 34 C.F.R. §§ 300.502(a), (b); 8 NYCRR § 200.5(g)(1). A school district may request the reason that the parent(s) disagree with an evaluation, but may not require an answer from the parents or impose any additional conditions prior to providing an IEE at public expense. See 8 NYCRR §§ 200.5(g)(1)(ii),
(iii). Rather, “[i]f a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.” 8 NYCRR § 200.5(g)(1)(iv).
The DOE failed to offer any evidence at the hearing of having timely and thoroughly evaluated the student’s educational needs before IEPs were developed for the student for the 2013/14, 2014/15 and 2015/16 school years. Instead, the DOE asserted at the hearing that it had provided “ ” (R. 15). The DOE, however, failed to offer any evidence of this authorization into the hearing record. In his opening statement, counsel for the student and parent stated that “
” (R.
81).
The DOE shall be directed to authorize the student’s receipt of an independent evaluation at public expense, provided by an independent evaluator of the parent’s choice at market rate, unless such authorization has already been provided by the DOE to the parent on or after November 25, 2015. I find that the parent’s request for an independent evaluation of the student to be beyond the scope of this hearing (Ex. IHO-I at 6). See 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. §§
300.508(d)(3)(i), 300.511(d); 8 NYCRR § 200.5(j)(1)(ii).
C. Recommended Programs - 2013/14 & 2015/16
At the hearing, the DOE conceded that it failed to offer the student a FAPE for the 2013/14 and 2015/16 school years (R. 15; P-H at 2). Accordingly, I find in the parent’s favor on those issues.
D. Recommended Program - 2014/15
The parent asserts that the DOE failed to provide the student with a FAPE during the 2014/15 school year (Ex. IHO-I at 4-5). The DOE has raised a defense of equitable estoppel to this aspect of the parent’s complaint (R. 15-16).
Equitable estoppel is generally invoked to prevent one party who by words or actions has represented that certain facts are true, thereby inducing another party to act to his or her detriment, from subsequently denying the truth of those facts. See T rav elers
Intern. A .G. v. TransW orld A irlines Inc., 722 F. Supp. 1087 (S.D. N.Y. 1989). It is an intentional relinquishment of a known right. See Orange Steel Erectors, Inc. v.
Newburgh Steel Products, Inc., 225 A.D.2d 1010 (3d Dept. 1996). “The doctrine of equitable estoppel is applicable to school districts.” Greco v. B oard of Educ. of the
Patchogue-M edford Union Free Sch. Dist., 98 A.D.2d 721 (2d Dep ’t 1983); see A pplication of the Bd. of Educ. of the W appingers Cent. Sch. Dist., Appeal No. 97-29
(SRO June 25, 1997).
The parties’ dispute centers on the November 2014 CSE’s decision to change the student’s recommended program from to for (R. 22; Exs. SD-2 at 6, SD-7 at 6). The parent elected to enroll the student in , a charter school, for the 2014/15 school year (R. 41).
did not offer at that time (R. 23-24, 37-
38, 50-51). Ms. , a teacher employed by , testified that the purpose of the November 2014 meeting was to determine if the student could handle a less restrictive educational environment (R. 55). Ms. , the district representative at the November 2014 meeting, testified that while the student had been (R. 25, 27, 40, 42), his teachers as reported that he was “ ” in their and could “ ” (R. 34, 40). Ms. stated that the student was “ ” at between September and November of 2014 (R. 50, 56, 59). Ms. , the student’s teacher at , testified that the student made “ ” at , including:
(R. 65-66, 68-70). Ms. testified that, based on the input of the student’s teachers at , the CSE, including the parent, agreed to change the student’s program from to for (R. 26-28,
34). In her affidavit of July 12, 2016, the parent does not dispute that point (Ex. P-H).
However, the hearing record, taken as a whole, does not support the conclusion that the parent intended to relinquish her son’s right to a FAPE in exchange for an IEP modification which would facilitate his attendance at .
From the evidence contained in the hearing record, I find that the DOE denied the student a FAPE for the 2014/15 school year. In the fall of 2014, when the student was entering , he was (Exs.
SD-2 at 9, SD-7 at 9). Having participated in programming for a number of years with little, if any, benefit, the November 2014 CSE should have concluded that the student needed (Exs. SD-2 at 6, P-
A at 7, P-B at 7, P-C at 12, P-H at 2). The DOE’s alteration of the student’s IEP to meet the requirements of the charter school was a serious violation of federal regulations. See
A pplication of the Bd. of Educ. of the Carm el Cent. Sch. Dist., Appeal No. 05-031 (SRO May 6, 2005). From my review of the student’s reports cards from the 2014/15 school year, I find that Ms. and Ms. ’s reports of the student’s progress at were overstated (R. 50, 56, 59, 68-70; Ex. SD-11)
E. Relief - Compensatory Additional Services
The parent seeks an Order compelling the DOE to provide the student with to be provided by the (“ ”)
(Ex. IHO-I at 6).
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.
Given my earlier findings, that the student was denied a FAPE for the 2013/14, 2014/15 and 2015/16 school years and that the student is , the student is entitled to compensatory additional services. Since there is no consensus between the parties on what would constitute an appropriate program for the student, a qualitative approach shall be used to fashion a remedy which is focused on the student’s current needs. The most current evaluation of the student’s contained in the hearing record is a evaluation conducted by the in November 2015 (Exs. P-E, P-G). Based on the results of that evaluation, the developed a for the student which called for the student to receive , which Ms.
testified would (R. 96-128; Ex. P-F).
The DOE will be ordered to provide the student with additional services in the amount of , which shall be scheduled at the parent’s discretion, and provided by , at a rate of per hour. The awarded shall expire when or , whichever event comes first. The DOE will also be ordered to directly pay the for the cost of and for . All other claims for relief are denied. Lastly, as the student would be unable to access the additional services without (Exs. IHO-I, P-H), the DOE will be ordered to provide
. See
generally , R.B. v. New Y ork City Dep’t of Educ., 713 F. Supp. 2d 235, 242 (S.D.N.Y.
2010) (discussing how the DOE distributes 700,000 MetroCards twice a year to transport students).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
The parent’s claim that the student was denied a free appropriate public education for the 2013/14, 2014/15, and 2015/16 school years is SUSTAINED;
Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of an independent evaluation at public expense, by an independent evaluator of the parent’s choice at market rate, unless such authorization has already been provided by the DOE to the parent on or after November 25, 2015;
Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of at public expense, which shall be scheduled at the parent’s discretion, and provided by , at a rate of per hour. The awarded shall expire when t
or
, whichever event comes first;
Within thirty (30) days of the date of this Order, the DOE shall also directly pay
, for the cost of and for the ; and
Within thirty (30) days of the date of this Order, the DOE shall provide , which the DOE may fulfill by providing
.
Original Decision Rendered: November 30, 2016
Dated: December 2, 2016
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 RECORD
PARENTS
A. Individualized Education Program (IEP), 5/14/13, 15 pgs.
B. Individualized Education Program (IEP), 5/4/12, 14 pgs.
C. Individualized Education Program (IEP), 5/18/11, 19 pgs.
D. Assessment of Student Progress, 5/3/13, 3 pgs.
E. , 11/8/15, 3 pgs.
F. , undated, 1 pg.
G. , undated, 59 pgs.
H. Affidavit of ( ), 7/12/16, 4 pgs.
I. Affidavit of ( ), 7/12/16, 5 pgs.
DEPARTMENT OF EDUCATION
1. Notice of Committee on Special Education (CSE) Meeting, 4/24/14, 5 pgs.
2. Individualized Education Program (IEP), 5/5/14, 11 pgs.
3. Notice of Committee on Special Education (CSE) Meeting, 10/27/14, 5 pgs.
4. School Placement Request to , 2/27/15, 3 pgs.
5. s, 11/7/14, 3
pgs.
6. Meeting Minutes, 11/5/14, 3 pgs.
7. Individualized Education Program (IEP), 11/5/14, 11 pgs.
8. Prior Written Notice (PWN) of Recommendation, 2/27/15, 5 pgs.
9. School Location Letter, 2/27/15, 2 pgs.
10. Report, 3/3/15, 1 pg.
11. Report Card, 2014/15, 6 pgs.
IMPARTIAL HEARING OFFICER
I. Due Process Complaint Notice/Impartial Hearing Request, 11/25/15, 8 pgs.
II. Confirmation of Extension, 2/4/16, 1 pg.
III. Confirmation of Extension, 3/9/16, 1 pg.
IV. Confirmation of Extension, 4/8/16, 1 pg.
V. Confirmation of Extension, 5/9/16, 1 pg.
VI. Confirmation of Extension, 6/3/16, 1 pg.
VII. Confirmation of Extension, 7/1/16, 1 pg.
VIII. Confirmation of Extension, 8/5/16, 1 pg.
IX. Confirmation of Extension, 9/7/16, 1 pg.
X. Confirmation of Extension, 10/4/16, 1 pg.
XI. Confirmation of Extension, 11/7/16, 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 several times in order to allow the parties to present their available witnesses and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and that the reasons for the requested extensions were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 72-73, 147-148; Exs. IHO-II - IHO-XI). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[5] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate 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.
[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. Adequacy of Evaluations/Request for IEE The parent asserts that the CSE has failed to evaluate the student since October