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FINDINGS OF FACT AND DECISION
Case Number: 159387
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 22, 2016
Actual Record Closed Date: March 22, 2016
Hearing Officer: Leah Botwinik Almeleh, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 22, 2016
Attorney — Parents
Parents
Parents
Parents
For the Department — Parents
Department Representative — Parents
Procedural Context — Parents
By letter dated January 28, 2016 I was appointed to hear the Matter of pursuant to the IDEA,[20] US Code Section 1415 (f)(l). Thereafter, a pre-hearing conference was held on March 22, 2016 for the purpose of narrowing the issues and developing a litigation schedule. On March 22, 2016 hearing on the substantive merits commenced. At this time, the proceedings were closed and the decision date duly extended so that a Findings of Fact could be prepared. It should be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses, mutually available dates and preparation of a Findings of Fact.
Specifically, the child’s guardian asserts that the Department of Education’s (hereinafter, the “Department”) educational placement, as memorialized by the IEP of October 15, 2015, stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for her child. Exh. F. As a result thereof, she is seeking prospective payment for the remainder of the 2015-2016 .
The guardian has identified a
, the which has provisionally accepted the child, pending recommendation by the Department of Education.
At the commencement of the 2015-2016 school year, the student was . I note that is “a child with a disability” as that term is defined under the IDEIA,
Initial Procedural Issues
This primary matter in this case concerns a relatively simple issue. There is no dispute regarding classification. All agree that the child’s last public school placement in an is no longer appropriate. Exh. F. Likewise, all agree that the child’s present placement at (hereinafter referred to as “ ”)1 is too restrictive. The primary issue is procedural.
Neither , the child’s last full-time public school placement nor , his current placement, will accept responsibility for convening a CSE review. In the absence of a CSE recommendation, the CBST will not initiate the process of locating a private placement for
Specifically, personnel at maintain that a CSE cannot be held for a . They neglect the fact that is only a “ ” because . No other issues have been asserted. The Department maintains that will, indeed, hold a CSE convene if is and then re-registered in their District. This is absurd as it would require this student to be without any educational services, for whatever period of time the CSE deemed necessary until current evaluations and a CSE could be scheduled. Indeed, the Parent’s Due Process Request seeking a CBST referral was filed on December 23, 2015.
Exh. O. Tr. at 23. The child was not removed from the school until February 1, 2016. It is unclear why action was not taken during this period of time.
Also known as the
Conversely, has taken the position that a CSE cannot be convened as is only a . This program is known as at the . The last report card issued to this child was generated by on March 6, 2016. Exh. X.
In the interim, the CBST has not acted. As time has elapsed, the child remains without a placement and may well lose the tentative placement at which has already been offered. Tr. at 21-23; Exh. M. Under the circumstances, I am directing personnel at , the at , to convene a CSE and generate an IEP for Clearly, the staff at have the most current assessments and evaluations of the child and would be in the best position to make a meaningful recommendation for The Department of Education’s Case The Department did not submit any evidence nor did it offer any testimony.
The Parent’s Case
testified on behalf of the Parent. She is presently a Post-Doctoral
Fellow at the . She noted that the provides
. In August 2015, Dr. conducted a evaluation of based, in part, upon records obtained from the Department of Education. These records included a prior evaluation from
2013, report as well as old IEPs. Tr. at 34.
In addition, Dr. conducted the , ,
( ), , ,
,
( ), ,
( ) and
.
The witness described a child who was . However, . He , , and was .
Although it was unclear what had precipitated , Dr. opined that . Alternatively, she suggested that had . Tr. at 36-37.
Based upon her testing, Dr. diagnosed with (1)
; (2) ;
(3) and (4)
. In addition to diagnosing
, she noted that the child demonstrated
, referencing ’s
. Although the child’s
, Dr. believed the child required
. Tr. at 48; Exh. H at 16.
The witness observed that, while demonstrated particularly in the areas of , he showed
. In these areas, the opined that would require . Beyond this, Dr. observed that the child’s
. Tr. at 51.
In view of the above, the witness testified that an was inappropriate for Since the fall of 2015, has been “ ” In furtherance thereof, she opined that the child required an as . Given ’s , his
( ) and
, Dr. believed which included a
. In addition, she noted that continued to require and an .
She testified, “
” Tr. at 51.
Ms. is the child’s ,
.
. Ms. offered a brief
history of noting that the child was
. Since then, and
. has and
. She
noted that , and
. Tr. at 66-72. , (
) and . Tr. at 67.
Ms. testified that, following ’s , she requested a referral to the CSE. The record indicates that various strategies were implemented as of Case No. 159387
September 19, 2012 by his , . Exh. P. Nevertheless, these measure were ineffective. At this time, was in a . Tr. at 76. Ms. noted that, in a setting of , was and . His
. Although his teachers tried to “ , it was clear that this setting was inappropriate for Ultimately, the child was referred to the , a placement which lasted “ ” Tr. at 78-79. As the year proceeded, the Parent credibly testified that . In May 6, 2013, the record indicates that a Request for Initial Referral was initiated by the child’s teacher, Ms. . Exh. P.
On October 16, 2013, ’s year, a CSE was finally convened. At this time, a was recommended along with , and related services, including . Exh. V. During this year, the Parent credibly testified that she repeatedly requested a with as it was clear was . The child’s services remained unchanged. On October 10, 2014 and October 15, 2015 the CSE again convened and was once more assigned to . As previously, Ms.
testified that
. Tr. at 111-112. By this time, however, Ms. had become exasperated and confronted administrators, stating, “
”
In November 2015, Ms. met with school personnel and once more requested a with . Although the Parent suggested a , the child’s teacher believed that this would only . When Ms. requested additional services, including a referral to the CBST, she was informed that staff “ ” Tr. at 115. Despite Ms. ’s concerns, neither a nor was developed. The prior was already two years old. Exh. S. Although the child was classified as and , the IEP noted that the child did not require a . Exh. F at 4. Symptomatic of the CSE’s dismissive attitude toward Ms. , the witness noted that the child’s and are not referenced on his IEP, nor are any of his
, .
additionally testified on behalf of the Parent. Ms. is the (hereinafter “ ”). is a which specializes in . As the , Ms. is responsible for .
Tr. at 99. Her agency serves
students with a range of disabilities, including . All are state certified and trained in the , including
.
On February 15, 2016 Ms. conducted an assessment of Based upon measures yielded on the , she determined that demonstrates for . The child’s fell at a while his tested at . Nevertheless, evidenced in , scoring at a . Ms. expressed concern that
. Tr. at 103.
In furtherance thereof, she opined that the child would require of over a period of , including , in order to
. Tr. at 104.
The Position of the Parent
The Parents assert that the Department stands in abrogation of its duty to provide with a free and appropriate public education for the 2013-2014, 2014-2015 and 2015- 2016 school years in violation of the IDEIA (See 20 U.S.C. § 1412 (a)(1)(1997).
Specifically, the Parent maintains that was deprived of FAPE during the 2013-2014.
2014-2015 and 2015-2016 school years. As a result, the Parent is seeking compensatory education services for these years in the form of from . As a corollary, the Parent is requesting a private evaluation and with conducted by a
. Exh. O.
Discussion
Addressing the issue of compensatory education, Application of a Child with a Disability No. 05-022 furnishes an excellent overview of compensatory education and its discussion is recited herein. The IDEA applies to children aged 3 through 21 inclusive (20 U.S.C. § 1412[a][1][A]), subject to the limitation that it does not apply to children aged 18 through 21 where it is inconsistent with state law or practice on the provision of a public education (20 U.S.C. § 1412[a][1][B][i]; see St. Johnsbury Academy v. D.H., 240 F.3d
163, 169 [2d Cir. 2001]). New York Education Law specifically provides IDEIA eligibility to children through the end of the school year in which they turn 21 (N.Y. Educ. Law § 4402[5][b]; see 8 NYCRR 100.9[e]; see also Application of a Child with a Disability, Appeal No. 02-016; Application of a Child with a Disability, Appeal No. 00-
024). Generally, under the IDEIA, "a [child with a disability] does not have a right to demand a public education beyond the age of twenty-one" (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990] [internal citation omitted]). Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA]" (Honig v. Doe, 484 U.S. 305, 318 [1988]; see Cosgrove v. Bd. of Educ., 175 F. Supp.2d 375 [N.D.N.Y.
2001]).
The Second Circuit, however, allows for the provision of compensatory education services for a student over 21 years old where there has been a gross violation of the IDEA during the time of the child's eligibility (Garro v. Connecticut, 23 F.3d 734, 737 [1994];
Mrs. C., 916 F.2d at 75; Burr v. Ambach, 863 F.2d 1071, 1075 [2d Cir. 1988]), such as the type that results in the denial of or exclusion from educational services for a substantial period of time (see, e.g., Mrs. C., 916 F.2d at 75; Burr, 863 F.2d at 1078, Mrs. C. v.
Wheaton , 916 F.2d 69 [2d Cir. 1990]; Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir.
1988]; Lester H. v. Gilhool, 916 F.2d 865 [3d Cir. 1990]; Miener v. State of Missouri, 800). In such cases, "the scope of the remedy can extend beyond the scope of the original right" (Burr, 863 F.2d at 1078, citing Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. 1, 15 [1971]), and compensatory education services may be awarded to students over 21 as a remedy for past deprivations of a right that the IDEA clearly provided a FAPE between the ages of 3 and 21 (see Burr, 863 F.2d at 1078; Cosgrove, 175 F.Supp.2d at 387). It is, however, an equitable remedy that must be tailored to meet the circumstances of the case (Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 151 [N.D.N.Y. 1997], aff'd 208 F.3d 204 [2000], cert. denied 531 U.S. 1019 [2000]; Application of the Bd. of Educ., Appeal No. 02-033; Application of a Child with a Disability, Appeal No. 02-019).
In fact, the purpose of a compensatory education award is not to provide “extra” educational services to a student, but rather to redress “a school district’s failure to provide that which it was obligated to provide earlier.” Application of the Board of Education of the Millbrook Cent. Sch. Dist., App. No. 02-033, citing Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 158 [3d Cir. 1994]. Thus while “ordinary IEPs need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 4401 F.3d 516, 525 (D.C. Cir. 2005).
In part, the rationale for deferring an award of compensatory education is additionally based upon the notion that a School District must be given the opportunity to remedy its failings during the traditional course of the child’s education. Thus, federal courts within the Second Circuit have held that compensatory education is a remedy that is available to students who are no longer eligible for instruction. Nevertheless, SRO decisions have, in the past, awarded equitable relief in the form of additional educational services to students who rem ain eligible to attend school. (Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030.
Point 1: Is the Child entitled to compensatory education for the 2013-2014, 2014-2015 and 2015-2016 school years?
Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).
The child’s IEPs denominate an extensive list of tests which are current for the child. These include both private and District assessments.
Beyond the District's reliance upon , and were utilized at the CSE convene.
In March 2013, the child was
(
),
. A conducted at that time indicates
that, although , he
. Exh. S at 3, 4. The record reflects a
. He is repeatedly described as
. A
evaluation performed in August 2013 iterates
, noting that Ms. , “
Exh. A at 1.
The Department’s own assessment, dated October 23, 2013, states, “ ” Exh. B at 4. The
Department’s recommendation for a “
” was totally ignored. Exh. B at 4.
While the record reflects a panoply of , a was consistently recommended for a child who
This was patently inappropriate for This is particularly true, given the failures of the various articulated within the . Exh. S. Prepared in part by his teachers, it is clear that Department personnel were simply unequipped to address . Although techniques were utilized with the child, the child continued to require . Incredibly the October 28, 2013 IEP refers to “ ” and , but places him in a with other children .
Although he had already experienced
there is no recognition in the document that suggests ’s need for a despite his own teacher’s opinion stating, “
”
Exh. U at 2.
An IEP dated October 10, 2014 again recommended a , absent any or meaningful change in the supports he was receiving. The record does not reflect any new evaluations at this time and it is clear that, once again, the CSE failed to appreciate the significance of the assessments it had.
On October 15, 2015, the CSE again met and recommended a . The
IEP still does not recommend a or a . Although the IEP denominates a and , I believe their actual implementation in is more illusory than real.
This is particularly true in view of the
. While the Department was clearly in possession of extensive documentation indicating the need for a , it chose to ignore this.
As such, I find that the Department’s actions constituted a gross violation of the IDEA (Garro v. Connecticut, 23 F.3d 734, 737 [1994]; Mrs. C., 916 F.2d at 75; Burr v.
Ambach, 863 F.2d 1071, 1075 [2d Cir. 1988]). I further find that the repeated placements, in contrast to the recommendations of the DOE’s own personnel, resulted in the denial of or exclusion from educational services for a substantial period of time (see, e.g., Mrs. C., 916 F.2d at 75; Burr, 863 F.2d at 1078, Mrs. C. v. Wheaton , 916 F.2d 69 [2d Cir. 1990].
Point II: Is the Parent entitled to equitable relief?
While a Parent may be entitled to compensatory services, equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.
Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent.
Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch.
Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch.
Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).
In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist.
v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v.
Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v.
Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).
I find, at the outset, that the Parent has met her equitable responsibilities pursuant to French v. New York State Educ, Dep’t 476 F. App’x 468. 57 IDELR 241 (2nd Cir.
2011). She has worked collaboratively with the Department, sharing private evaluations in a timely manner and acting pro-actively when necessary. Indeed, the Department has been on notice for years that Ms. was dissatisfied with the educational planning for her son, a fact memorialized by emails submitted into evidence. Exh. W. When requested,
Ms. attended all CSE meetings and teacher conferences. I further note that, although employed, Ms.
. The record suggests that the Parent participated cooperatively during the CSE proceedings and that the parties worked collaboratively in the absence of hostility and negativism. With the exception of Ms. ’s objection to one counselor, it appears that the Parent was a vocal, but cooperative advocate for her son.
Under these circumstances, there are no equitable factors which militate against the Parent’s right to an award.
Finally, I find no need to order a or as this may well be part of the program offered by . Beyond this, there is no reason why
. Lastly, I find the recommendation
by Ms. excessive, given the child’s and .
During a standard school week, I believe the child would
.
Conclusion
The Parent’s request for relief is granted, in part.
Wherefore, it is hereby ordered that:
Within fourteen days (14)) days of the date of this Order, the Departm ent of Education shall convene a CSE at the (the ). The CSE shall issue an IEP specifically including a recommendation for a non-public school placement at the . Upon enrollment, the child shall be .
The child shall receive of from at a rate no higher than per hour. These hours shall be utilized within a period of , beginning with the date of this Order. In the event that are not exhausted within this time frame, the rem aining hours shall be forfeited.
The above Order shall represent the Department’s total liability pursuant to the Parents’ Due Process Complaint dated December 23, 2015.
Dated: April 4, 2016
LEAH BOTWINIK ALMELEH, ESQ.
Impartial Hearing Officer
LBA:
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Report, 8/4/13, 5 pages
B , 08/23/2013, 4 pages
C IEP, 10/10/2014, 12 pages
D Report, 2 pages
E 2014/2015 Report Card, 2 pages
F IEP, 10/15/2015, 14 pages
G 2015/2016 Report Card, 11/03/2015, 2 pages
H Report, 11/2015 25 pages
I , 12/04/2015, 6 pages
J , 12/14/2015, 1 page
K , 02/16/2016, 1 page
L Program, 1 page
M Acceptance, 02/26/2016, 1 page
N , 03/17/2016, 1 page
O Due Process Complaint, 12/23/2015, 7 pages
P Initial Student Referral, 05/06/2013, 4 pages
Q , 06/18/2013, 8 pages
R evaluation, 06/18/2013, 5 page
S , 06/19/2013, 10 pages
T , 06/21/2013, 1 page
U Teacher Progress Report, 06/17/2013, 2 pages
V IEP, 10/16/2013, 14 pages
W Parent Emails to School, 10 pages
X 2015/2016 Report Card, 03/06/2016,
Y Records Request, 06/30/2015, 2 pages
Footnotes
[20] U.S.C. § 1400 et seq., and is classified as “ ” as that term is defined by 20 U.S.C. § 1401(a) . There is no dispute regarding classification. As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held. Finally, a list of persons in attendance and of evidence is appended hereto.