Impartial Hearing Decision

UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

_______________________________________________

IN THE MATTER OF THE IMPARTIAL

HEARING BROUGHT UPON THE REQUEST

OF A PARENT CONCERNING HER CHILD

AGAINST

Decision and Order

PUBLIC SCHOOLS

______________________________________________

Introduction This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (“IHO”) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent, and the student will be referred to as Student.

Overview of Pre-Hearing Procedure The Parent submitted a complaint notice, dated December 3, 2015. (IHO Ex. 1). On December 14, 2015, the District filed a motion to dismiss because of insufficiency. (IHO Ex. 2). On December 17, 215, the Parent made a request to the District to amend the complaint notice. (IHO Ex. 3). On December 24, 2015, I issued a decision finding the complaint insufficient and allowing the Parent to amend the complaint notice. (IHO Ex. 4). On January 25, 2016, the Parent submitted an amended complaint notice (IHO Ex. 5), which I accepted on January 29, 2016. (IHO Ex. 6). On February 8, 2016, the District submitted a response indicating that they would defend the placements made. (IHO Ex. 7). Following a telephone conference, On February 17, 2016, I appointed a Guardian Ad Litem in this matter (IHO Ex. 12) A pendency hearing was held on February 19, 2016, and I issued a pendency order (IHO 10) on February 29, 2016, ruling that pendency was an 8:1:1 program, as in the IEP developed on May 24, 2012 (Ex. D). Additional hearing dates were held on March 3, 2016, and March 11, 2016. The matter was scheduled for briefing and the record is now closed (See IHO Ex.s 13, 14 &15).

The Parent’s Position The Parent’s position is that the District had failed to provide the Student with a FAPE for the 2013-2014, 2014-2015, and 2015-2016 school years. The Parent’s allegations include the following: the IEP classification was incorrect; the Student was placed in a program that did not meet his educational needs; the Student was denied related services from his 2014-2015 IEP; and that the Student was denied an independent educational evaluation (IEE) at public expense. She also requested compensatory education services.

The District’s Position In the District’s response to the Parent’s complaint notice, they denied all the allegations. (IHO Ex. 7).

Overview of My Findings and this Order

After much consideration, I find that the District did provide the Student with a FAPE for the 2013- 2014 and 2014-2015 school years. Regarding the 2015-2016 school year I find that the District failed to timely commence a hearing relative to the Parental request for an IEE of the Student. This procedural violation impeded the CSE process and the ability of the Parent to participate in the development of a FAPE for this year. Accordingly, I direct the District to pay for the IEE and remand the matter to the CSE for 1) consideration of the anticipated evaluation; 2) a program review; 3) review of the classification of the Student and 4) determination if any compensatory education services would benefit the Student for the denial of FAPE during 2015-2016. Further regarding the compensatory education claim I direct that the Student’s program be consistent with the pendency placement until such time that the CSE changes such program. Thus, although this case has come to an end and the pendency placement will expire, by this order, a level of consistency will be afforded the Student while the new evaluative materials are considered.

Student History At the time of the Complaint Notice, the Student was a 15-year-old boy. The Student received Early Intervention Services and Committee on Preschool Special Education (“CPSE”) programing. He has been diagnosed as having . (Ex. PP). His disability classification on the June 16, 2011, IEP (The earliest IEP in the record) was . (Ex. A).

The 2013-14 School Year The relevant time period in this case begins on July 1, 2013, the beginning of the 2013-14 School year. An annual review was held on May 20, 2013, to create an IEP to be implemented on July 1, 2013 (Ex. F). This IEP recommended a special class 8:1+1, for six hours daily with individual therapy, once per week for one hour at home, and an extended school year with the same services. (Ex. F - This was located in an adjoining school district). On February 12, 2014, a CSE meeting was held for revision of the IEP. The Parent requested that the Student be placed in a less restrictive environment (12:1:1, with the support of a 1:1 teaching assistant. After a two-week trial in the class, the District recommended that the Student remain in the 12:1:1 class as his placement for the rest of the school year. (Ex. G - This was located in an adjoining school district (same school as Ex. F)). Thus, the Student finished the 2013-14 school year without notable incident.

The 2014-15 School Year

The next year was different. On May 15, 2014, an annual review^[1] was held for the Student. (Ex. H). The recommended program was to be implemented on July 7, 2014.^[2] In fact, the Student received services during the summer. A program review was held on August 15, 2014, at the request of the Parent. (Ex. I). At the meeting, the Parent stated that the Student was happy in the middle school program and that his academic skills were progressing but, she was concerned about the Student’s negative behavior that she believed the Student was imitating from other students in his class. To address that, the CSE recommended hiring an outside behavioral consultant and the Parent agreed with the plan. (Ex. I).

However, for reasons that are not entirely clear in this record, the Student did not attend school during the first several months of the 2014-2-015 school year. On December 5, 2014, the CSE met for a program review^[3] at the request of the District to discuss the programs investigated by the special education department in response to the Parent’s concerns. (Ex. J). The District had presented different program options to the Parent, but the Parent was not interested, and she did not cooperate with attempts to obtain her consent for reevaluation testing that was needed to consider other placements (Ex. J). The Parent did not attend the meeting or participate by phone, despite attempts to arrange for her participation. (Ex. J). The IEP, dated December 22, 2014, (Ex. K) was created as a result of the December 5, 2014 CSE meeting and was the same program as in the previous IEP.

The Student returned to school on a regular basis in December, 2014 (Tr. P191) and an effort to update testing began promptly^[4]. The school year concluded without further incident.

The 2015-16 School Year

The CSE held a reevaluation annual review on March 23, 2015, (Ex. L) to discuss the Student’s progress since he returned to school and to review his updated testing and make recommendations for the 2015-2016 school year. At the meeting, “the Parent indicated that she may pursue an independent evaluation.” (Ex. L). The CSE recommended a special class in Other Public School District 8:1:3, for six hours per week with the same program for an extended school year, (Ex. L)

but also gave the Parent the option of a 12:1:1 program. The Parent visited both programs and chose the 8:1:3. (Tr. at 272)

Significantly, on April 22, 2015, the Parent sent a letter via email to the Director of Student Support Services disagreeing with the results of the District’s triennial evaluation of the Student, and requesting an IEE from a psychologist who was familiar with the Student. She asked that the District inform her within seven days if they would pay for the IEE or commence the hearing. (Ex. T). The Director of Student Support Services testified for the District regarding the issue of an IEE. Myriad details are recounted regarding the mutual efforts to move forward with the IEE 5. This issue is yet to be resolved.

She stated that a certified letter had been sent to the Parent two days after she received the request, but it was not signed for. (Tr. at 174). She testified that the only consent she received from the Parent was a letter, dated October 30, 2015, giving consent for the District to communicate with the psychologist she wanted to conduct the testing. (Tr. at 175; Ex. Y). This consent was received by the District on February 8, 2016. (Tr. at 176). The Director testified that the District provided the Parent with a list of local providers of IEEs two weeks prior to the hearing. (Tr. at 176). On In the meanwhile, the CSE met again on July 28, 2015, at the request of the Parent. (Ex. M). The program remained the same as that at the end of the 2014-2015 school year.

Then, the Parent opted to declassify her son, the Student. The Student was declassified on July 28, 2015. (Ex. N). The Parent sent a letter to the Director of Student Support Services removing the Student from the IEP program on August 13, 2015. (Ex. P). The District sent the Parent a letter of May 3, 2015, the Parent sent an email to the Director of Student Support Services, stating she had not received a response from the District. (Ex. T). On May 4, 2015, the Director sent an email in reply to Parent stating that she mailed her a certified letter on April 24, 2015, and attaching a copy of the letter with the release of information for the psychologist to sign and return and a copy of the reimbursement rates. (Ex. T). The Parent replied by email dated May 4, 2015, to the Director of Student Support Services, stating that it would be best not to submit bills to the insurance company for reimbursement and Medicaid might be a better alternative. (Ex. U).

The Director testified that the District rate is $1,200 for a combined psycho-educational evaluation and $750 for a psycho educational evaluation. (Tr. at 177). She added that “exceptions can be allowed in extenuating circumstances” to pay for costs above the rates. (Tr. at 177). The Director sent the Parent a letter offering to pay for the costs above the reimbursement rates based on the Parent’s extenuating circumstances. (Tr. at 178). The Director testified that the Parent said she could not use insurance to pay as it is provided through the Student’s father, who the Parent said was not responsive to claims. (Tr. at 179-180). In her testimony, the Director stated that she had agreed to the psychologist’s fee of $3,000- for a psycho educational evaluation, with an additional payment for travel expenses, but his office said that there would be additional fees associated with the classroom observation and potentially additional fees for travel but did not give an amount. (Tr. at 203-204). The Psychologist’s office contracts out speech and language evaluations and the cost is $1,500. (Tr. at 204-205). The District did not begin an impartial hearing on the issue of the IEE because the Director said they were working with the Parent and Advocate. (Tr. at 207). The Director of Student Support Services sent a letter to the Parent, dated October 30, 2015. (Ex. V) regarding her request for an IEE, a class profile, and the opportunity to visit the Student’s new class. She included the class profile, stated the building was going to schedule the observation, and that the Parent would need to sign a new consent for the District to communicate with the psychologist. (Ex. V). The Director of Student Support Services sent a letter to the Parent by email, dated December 4, 2015 replying to her email of November 20, 2015 requesting a CSE meeting for an IEE and placement. She added that a certified letter was mailed to the Parent on October 30, 2015, and it was not picked up at the post office and was returned to her office; she enclosed a copy of the same letter, the consent form and class profile. (Ex. W). The Director of Student Support Services sent a letter responding to the Parent’s email, dated January 4, 2016, requesting the class profile and reminding her that the profile along with the consent form were sent twice and she was enclosing another copy of both. (Ex. X). The Parent sent a consent for release of information to the District, signed and dated January 31, 2016. (Ex. Y). On February 9, 2016, the Director of Student Support Services sent an email to the Parent, stating that the District would agree to a psychological evaluation by the psychologist, and would pay travel expenses not exceeding $3000 and would need her to provide updated documentation about his license or certification. (Ex. AA).

Prior Written Notice regarding her proposed revocation of parental consent, dated August 13, 2015. (Ex. Q).

The Student began ninth grade in regular mainstream high school classes, without direct services. (TR. at 281). Shortly afterwards, some of the school staff members stated that he needed additional support and teachers wrote anecdotal notes about his problems. (Tr. at 282, Ex. KK). The Student’s team requested that he be evaluated for special education services and an initial eligibility determination meeting was held on October 20, 2015. (Tr. at 292 and Ex. O). A Parent Advocate requested that the CSE consider the District 12:1:1 life skills program and the CSE recommended it as the Student’s placement. (Tr. at 294). The Student was classified as a student with and recommended for a special class 12:1:1, four times daily for 42 minutes, therapy in a small group with a ratio of 5:1, two times per week for 30 minutes and individual therapy once per week for 30 minutes. (Ex. O). The Parent sent a letter, signed and dated October 23, 2015, giving consent for initial provision of special education services. (Ex. R). This hearing followed.

Legal Background The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley).

The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as 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, or secondary school education in the state involved, and

- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).^[6] A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally: 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child, (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency. 20 U.S.C. § 615(b)(6). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing . . .” N.Y. Educ. Law § 4404(1)(c) modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537. However, when “. . . seeking tuition reimbursement for a unilateral parental placement. . . [the parents] shall have the burden of persuasion and burden of production on the appropriateness of such placement.” N.Y. Educ. Law § 4404(1)(c).

With respect to due process hearings, the IDEA permits each state to determine whether it will provide a single-tier or two-tier administrative review process. 20 U.S.C. § 615(g). New York has elected to employ the two-tier approach. N.Y. Educ. Law § 4404 (McKinney Supp. 2005); accord, Heldman v. Sobol, 962 F.2d 148, 152 (2nd Cir., 1992). Under the New York scheme a parent who wishes to challenge his or her child's IEP is entitled to a due process hearing conducted by a hearing officer appointed by the local board of education. N.Y. Educ. Law § 4404(1) (McKinney Supp. 2005). A party dissatisfied with the decision of the hearing officer has the right to appeal the hearing officer's decision to a State Review Officer (“SRO”). N.Y. Educ. Law § 4404(2) (McKinney Supp. 2005). After these administrative remedies have been exhausted, a party may bring a proceeding pursuant to Civil Practice Law and Rules Article 4 in state court or a federal action under Section 615(i)(2) of the IDEA. 20 U.S.C. § 615(i)(2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp. 2004).

Procedural Standard

Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989) In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. Sec. 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987)

The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998) Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id.

For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982) that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held “…the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. Jan. 9, 2007]), Application of a Child with a Disability, Appeal No. 07-007

Substantive Analysis An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i)), establishes annual goals related to those needs (34 C.F.R. § 300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii)), and provides for the use of appropriate special education services (34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep't of Educ., Appeal No. 09- 064 (2009).

2013-14 School Year The operative legal documents for 2013-2014 are Exhibits F and G. To determine the substantive integrity of the programs contained therein I rely on the documents in the record and the credible testimony of the Director of Student Support Services. The District supported a prima facie case which was not disturbed on cross examination. The Director testified that all the exhibits listed on Ex. F (P. 88) were considered when drafting the IEP, as that is the practice of the District. (Tr. at 227). Moving to exhibit G she said that during that IEP meeting, the CSE reviewed three additional documents: a behavior report, a speech and language update, and a behavioral summary. (Tr. at 231) Finally she suggested that progress reports indicated that the Student made progress toward many of his goals and many of his goals were achieved. (Tr. P. 232 See, exhibits H, CC and EE) Accordingly, I find that the District offered a FAPE for the 2013-2014 school year.

2014-15 School Year

The relevant documents for 2014-2015 are Exhibits H, I, J, and K. Exhibit H noted that the Student made progress in the 12:1:1 program. (Ex. H). in creating the IEP, the CSE considered the and update, the progress report, and a behavior summary for the IEP. (Ex. H). The Director of Student Support Services testified that she participated at the program review meeting on August 15, 2014. (Ex. I). The Parent attended the meeting and the CSE addressed her concerns in the IEP about the Student’s behavior. (Tr. at 256-257). The CSE also reviewed the speech and language progress summary and an educational summary from the Student’s summer program. (Tr. at 257). This year was rather irregular because the Student did not attend for the first half of the school year. However, review of the IEP prospectively reveals that the program and goals were designed to achieve progress for the Student.

The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With A Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley). As stated above, I find that the Programs offered to the Student for the 2014-15 school year were sufficient for the Student to benefit from his education. 2015-16 School Year Issues Regarding the 2015-2016 school year the Parent maintains that the Student’s classification should be rather than because that is what he was initially diagnosed with by his pediatric neurologist and his diagnosis has not been changed. She also claims that the District should pay for an IEE and that the Student is entitled to Compensatory Education. The entirety of this School year turns on the issue of the IEE. Because I find that the District did not fulfill its responsibility of timely commencing an impartial hearing concerning the disagreement over the IEE, and this failure significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, Matrejek v. Brewster

Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. Jan. 9, 2007]) I direct a remand this case to the CSE following the IEE to determine classification and appropriate compensatory education services, if any.

IEE LAW

Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district. 34 C.F.R. § 300.502(a), (b); 8 NYCRR 200.5(g)(1); see R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 (D. Conn. 2005) [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]. If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR 200.5(g)(1)(iv) [emphasis added]; see, e.g., A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 549 (D. Conn. 2002) [upholding order of reimbursement where the district failed to demonstrate that its evaluation was appropriate]; Application of the Bd. of Educ., Appeal No. 09-109; Application of a Student with a Disability, Appeal No. 08-101.

“Whether the length of time that has passed before a District initiates a due process hearing or provides the IEE at public expense constitutes “unnecessary delay” is a question of fact, based upon the circumstances of the particular case.” 111 LRP 48178, citing: J.P. v. Ripon Unified School District (E.D. Cal. 2009) 2009 WL 1034993; 52 IDELR 125. The decision continues:

“For example, in Ripon the court determined that the school district's due process request filed more than two months after the request for an IEE was timely, as parties were communicating regarding the request for the IEE in the interim, and did not come to an impasse on the issue until less than three weeks before the school district's filing. In contrast, in the case of Pajaro Valley Unified School District v.

J.S. (N.D. Cal. 2006) 2006 WL 3734289; 47 IDELR 12) (Pajaro Valley), the school district did not file its due process complaint to defend its assessment until approximately 11 weeks after Student's request for an IEE. Then, at hearing, the school district offered no explanation as to why it delayed for 11 weeks in filing its complaint, or why that delay was ‘necessary.’ The court found that the school district's ‘unexplained and unnecessary delay in filing for a due process hearing waived its right to contest Student's request for an independent evaluation at public expense, and by itself warranted entry of judgment in favor of Student and [parent].’ (Emphasis added.)”

In this case, I believe that the failure of the District to promptly (within two months, in my view) actually frustrated the entire IDEA process. In making this finding I do not attribute any bad faith or poor motive to the District or their employees. I accept the Director’s testimony that the District was attempting to work out the particulars of the IEE with the Parent. Nevertheless, the statute is clear, 8 NYCRR 200.5(g)(1), and I direct the District to pay for the entire cost of the neuropsychological evaluation as requested by the Parent. If the Parent persists in her desire for a speech evaluation at this time, then the District should wait no longer than thirty days to either resolve the issue with the parent or commence an impartial hearing to determine the appropriateness of the Parental request.

It is therefore

ORDERED

THAT regarding the 2013-2014 school year the Parent’s complaint notice is dismissed; THAT regarding the 2014-2015 school year the Parent’s complaint notice is dismissed; THAT regarding the 2015-2016 school year the District shall:

1. Pay for the cost of the Neuro-Psychological evaluation as requested by the Parent upon the presentation of an invoice for same which shall not exceed five thousand dollars;

2. Reconvene a CSE meeting following the completion of the above-referenced IEE for the purpose of addressing the Parent’s concern regarding classification and;

3. Determine if compensatory education services^[7] can be employed to remediate any gap in the Student’s education which may have occurred during the 2015-2016 school year; and

4. Create an appropriate program for the Student. THAT the current placement (the pendency placement) shall become the actual placement of the Student upon the issuance of this order until such time that the CSE meets and acts.

__________________ Martin Kehoe, IHO

Exhibits Considered: see Addendum

at 123, holding that compensatory education awards should be designed so as to “appropriately address the problems with the IEP”; 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, 525, 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”; Parents of Student W. v. Puyallup Sch. Dist. 31 F.3d 1489, 1497 (“There is no obligation to provide a day-for-day compensation for time missed”); Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091. See, specifically, Application of a Student with a Disability, Appeal No. 14-014.

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 the 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 viewed. 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 to the 25- for 35-day period.” (8 NYCRR §279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

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Footnotes

[1] In an evaluation dated April 17, 2014, by a neuro-developmental pediatrician, the Student was tested with the Wide Range Achievement Test, Four; the Student had grade equivalent in word reading, in spelling, in math computation, and in sentence completion. (Ex. DD). The pediatrician recommended continuing therapy and the 12:1:2 special education classroom. (Ex. DD). In the Student’s Speech and Language Report, dated May 2014, the Therapist wrote that the Student’s “articulation is highly intelligible at this time” and he has continued to demonstrate ongoing progress in all areas of speech and language. The Student needed to continue to work on pragmatics, grammar, and auditory memory. (Ex. FF). In the Speech and Language Recommendation, dated July 24, 2015, the Pathologist wrote that the Student needs to expand and improve his communication skills and a variety of conversational and practical speaking situations. (Ex. JJ).

[2] This IEP recommended special class 12:1+1 in English, Math, Social Studies, and Science, with related services of individual therapy twice per week for one hour at home and in a ratio of 5:1 once per week for 30 minutes in a special class. He was also given extended year services of special class, home instruction 1:1, once per week at home and individual therapy two times per week for one hour at home. (Ex. H). 4

[3] At the time of the meeting, the Parent was keeping the Student home and he had not attended the program at all that school year. (Ex. J). The Student was absent 64 times according to the progress report, dated November 10, 2014-December 12, 2014. (Ex. HH).

[4] During a psycho-educational triennial evaluation (report dated February 26, 2015), (Ex. PP) the Student was administered 10 subtests of the Weschler Intelligence Scale for Children, Fourth Edition (“WISC-IV”). Because he obtained a raw score of on two of the verbal subtests, the verbal comprehension index could not be calculated and there were not sufficient scores to derive a full scale IQ. The Student’s general perceptual reasoning abilities were reportedly in the Range (PRI = 63), his general working memory abilities and his processing speed abilities were in the Extremely Low Range (WMI = 50 and PSI = 56). The Student received a full scale IQ of 60 on the Comprehensive Test of Nonverbal Intelligence and his performance on the test indicated he has nonverbal intellectual ability including spatial relationships and symbolic reasoning. The Student was administered the Weschler Individual Achievement Test, Third Edition (“WIAT-III”). The Student’s scores were in the to Range. The Student’s adaptive skills were assessed using the Adaptive Behavior Assessment System, Second Edition (“ABAS-II”) Teacher Form and Parent Form; based on the Parent’s and Teacher’s ratings, the Student’s adaptive behavior falls within the Range. (Ex. PP).

[6] "special education" is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term "related services" is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26). 9

[7] Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and. . . mould each decree to the necessities of the particular case,” quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 (N.D.N.Y. 1997). Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation 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 York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69, 75 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 (N.D.N.Y. 2001). Compensatory education relief may also 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 P. v. Newington Bd. of Educ., 546 F.3d at 123 (2d Cir. 2008), 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]”; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 (S.D.N.Y. Mar. 6, 2008), adopted at 2008 WL 9731174 (Jul. 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 the Dep't of Educ., Appeal No. 13-236 (upholding an additional service award of physical therapy); Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 (awarding additional services in the form of tutoring or other direct support from a special education teacher); Application of a Student with a Disability, Appeal No. 13-208 (upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading); Application of the Dep't of Educ., Appeal No. 13-048 (awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services). In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE. See 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”. 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 18