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FINDINGS OF FACT AND DECISION
Case Number: 159435
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: June 14, 2016
Actual Record Closed Date: July 9, 2016
Hearing Officer: Vanessa M. Gronbach, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 14, 2016
ESQ., Attorney — Student
Parents
(Via Telephone) — Student
Impartial hearing representative — DOE
INTRODUCTION
This matter comes before the undersigned Impartial Hearing Officer (“IHO”)
through the Parents’ Due Process Complaint (“DPC”) filed on or about December 30, 2015 (P-Ex. A).1
ISSUES
The DPC contests the 2013/14, 2014/15 and 2015/16 school years. The Parents requested a finding that the District denied the Student a Free Appropriate Public Education (“FAPE”); failed to conduct a (“ ”);
(“ ”); a meeting of the Committee on Special Education
(“CSE”); and failed to provide
. The Parent is requesting an , evaluation, compensatory services; and compensatory services (P- Ex. A). The District agreed to and conducted the , a evaluation and agreed to reconvene a CSE meeting (D-Ex. 1, 14; T. 47, 50).
The District did not concede FAPE, however it is not contesting that the Student is owed for services missed during the 2014/15 and 2015/16 school years, but asks that they be limited to hours that would be commensurate for the two school years (T. 50-51). The remaining issues for relief are compensatory services for and the request for services (T. 56-57).
PROCEDURAL HISTORY
The undersigned Hearing Officer was appointed to the above matter on January 11, 2016. The Parents were represented by from the , and the District was represented by . Pre-hearing conferences were held on February 12, 2016 and May 6, 2016, and the hearing was held on June 14, 2016 (See,
Transcript).2
The District entered records into evidence (D-Ex.[1] through 15), and presented an opening, but did not present any witnesses, then rested. The Parents entered into evidence exhibits A through NN3 and presented two witnesses: ,
, and the Parent.
The Hearing concluded in one day and the record closed on July 9, 2016. There were three extensions of the timelines for evaluations and to accommodate witnesses, which did not harm the student. The Parents and the District submitted closing briefs.
FINDINGS OF FACT
The Student is a , who just completed the at the , a (T. 49, 60-61). He is classified as (T. 49, 61-62).
During the 2013/14 school year, the Student was in attending classes at the and receiving services (T.62).
(T. 64, 66). The Student explained that
(T. 64-65).
(P-Ex. M, U; T. 66) The Parent voiced her concerns to the guidance counselor who stated she would talk to the Student (T. 64).
During the 2014/15 school year, the Student was
. He was (T.
67-68). He was and in
December 2014, the Parent found out that the Student had not been receiving his recommended services (T. 68, 70). It was explained that since that they did not see a need for him to have , so they provided him with instead (T. 68-69). No CSE meeting was held to make this change.
The Student’s was a problem again during this school year and again the Parent voiced her concerns to the . Again nothing was done to
(T. 70-71, 72). By the end of the 2014/15 school year, the Student had (P-Ex. M-1, N, EE; T. 71).
A more detailed list of exhibits is attached.
On May 27, 2015, the Committee on Special Education (“CSE”) met after the Parent had sent the CSE a letter requesting that they reevaluate the Student and provide him with services (P-Ex. C; T. 75). Despite the Parent’s concerns, the CSE did not recommend or a , only was recommended, despite his classification of (P-Ex. C-6; T. 76-77).
During the 2015/16 school year, the Student remained a student and began school at (T. 77). The CSE reconvened on September 22, 2015 to review the Student’s program, after the Parent sent another letter requesting a reevaluation (P-Ex. B, L; T. 79). The CSE discussed that the Student and discussed placing him in an with (P-Ex. B-1; T. 79). The
CSE again noted the Parent’s concerns regarding , but there was no plan or supports put in place to address it (P-Ex. B-2; T. 80). The CSE also discussed adding services but ultimately did not add it to the IEP, despite still being classified as
(P-Ex. B).
The CSE recommended for , and and
(P-Ex. B-6; T. 49). The Student continued to and in February 2016 he was transferred to , the (T. 81-82).
Once he transferred he , and
(D-Ex. 9; T. 82).
, ,
, testified regarding her knowledge of the Student based on her review of records (T. 95, 99-100). Ms. reviewed the Student’s IEP’s from
2013/14 to present, updates, , progress reports, assessments, report cards, reports and the records in evidence
(T. 101). Based on her review of the records she found that the Student
(T. 101). Ms. indicated that the records indicated that , and (D-Ex. 15; T. 102).
Ms. testified that throughout his time at , continued, but during interviews in evaluations, the Student voiced that , which demonstrated that he
(T. 106). Ms. testified that is an issue that can be analyzed through a (“ ”) and addressed through a (“ ”) and that sufficient evidence warranted that an should have been conducted for the Student during the years in question (T. 106-107).
Ms. reviewed the Student’s through the last
three school years. In March 2014, the Student’s year, his was a and was at an (P-Ex. E-7; T. 104, 107-108). In June 2014, his was a and was at an level (P-Ex. D-11; T.
107-108). In May 2015, as a , his was a and was at an (P-Ex. C-9; T. 107-108). In September 2015, still a , both his and were at the (P-Ex. B-9; T. 107-108). Ms.
opined that that the Student and moreover,
(T. 108).
Based on her review of the records before her, Ms. believed that the Student is in need of (T. 108). The Student , which has caused and
(T. 109). Ms. testified that the Student would need between hours of , which she calculated as hours for the 2013/14 school year ( ), hours for the 2014/15 school year and hours for the 2015/16 school year, since he changed schools in the middle of the year (T. 110-111). She further testified that these services should be given by and could be given (T. 113).
Conclusions of Law
The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick
Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).
An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and
6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206.
For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra. The Student's recommended program must also be provided in the least restrictive environment (LRE).
Application of Child with a Disability, Appeal No. 05-061.
The purpose of the Individuals with Disabilities Education Act (IDEA) is to mandate that each state adopt a plan to guarantee every child a free, appropriate, public education (FAPE) to be made available in the least restrictive setting (LRE). New York has adopted such a plan, and the central mechanisms for delivering that assurance to each child falls to a series of due process protections that begin with an obligation to find and evaluate the unique educational needs of every disabled child in the state, and that culminate in the provision of an appropriate, free, educational placement to every eligible child.
In practical terms, every child with special needs is entitled to five distinct components of a special education placement under the federal law. (1) a proper evaluation by a multi-disciplinary team (implemented in 34 CFR 300.122); (2) on the basis of that evaluation, a program captured in an IEP developed collaboratively by a committee with specified membership including the parents or the child (implemented in 34 CFR 300.320 et seq); (3) a proposed placement capable of delivering that IEP program (implemented in 34 CFR 300.101), to be in effect at the beginning of each school year (implemented in 34 CFR 300.323); (4) the actual delivery of the IEP program once the child is enrolled in the offered placement (id.); and (5) a detailed and extensive array of due process protections, including the impartial hearing mechanism, to assure that the first four are available and properly implemented in each individual case (implemented in 34 CFR 300.500 et seq).
Again, the central purpose of the federal special education statute is to assure the availability of, an actual placement, to every child with special needs, implementing a program reasonably calculated to provide educational benefit. A placement is a matter of fact, not theory; it must be a tangible reality, not simply a plan on paper, and the district must show that it has offered an appropriate seat in a bricks-and-mortar school, or else the child’s rights are mere delusions.
Here, I find that the District did not provide FAPE for the Student during the 2013/14, 2014/15 and 2015/16 school years.[4] During the 2013/14 school year, the Student stopped receiving services in March 2014 (P-Ex. C-1). Even though there was an IEP meeting on March 27, 2014, which recommended an increase in services from , to (P-Ex. E-4, F-3). The fact that the Student is not an excuse to stop providing him the services in his IEP, especially since nothing was done to assess why the Student . The Student was not provided with the services recommended on the March 2014 IEP.
Furthermore, despite the Parents noted concerns, no interventions were recommended to assess , including an . The
Parent voiced her concerns numerous times throughout the three school years, either in person, at CSE meetings, or by phone (P-Ex. C-4, D, E; T. 89-90). The Parent would , despite the sessions, they did neither (T. 90).
The District failed to comprehensively evaluate the student in accordance with 34 CFR 300.304(c)(6) and 8 NYCRR 200.4(b)(6)(ix), which requires that an evaluation of a student be comprehensive enough to identify all of the student's special education and related services needs. An individual evaluation must include a functional behavioral assessment for a student whose behavior impedes his or her learning or that of others, as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities. See, 8 NYCRR 200.4 (b)(1)(v).
Where behavior impedes a student from learning the CSE must properly assess that behavior as an initial step in developing an appropriate IEP. See, Application of a Child with a Disability, Appeal No. 03-057. To properly assess behavior, a functional behavioral assessment should be developed to determine why the student’s behaviors occurred and the impact of the behavior on the child’s academic progress. Id. The CSE erred in failing to ensure that a of the Student was performed. Therefore, upon the record before me, I find that the District has not provided the Student with FAPE and has not met its burden of proving that the program recommended by its CSE was reasonably calculated to confer educational benefits.
Based on the history of his and , at a minimum the CSE should have conducted an . The DOE failed to timely and comprehensively evaluate the Student in all areas of suspected disability and failed to develop appropriate IEPs for the Student for the 2013/14, 2014/15 and 2015/16 school years. This resulted in Case No. 159435 and prevented the Student from making progress. As a result, the Student is now a , grader,
.
Compensatory Services
Compensatory education is an appropriate remedy under the IDEA. P. v.
Newington, 546 F.3d. 111 (2nd Cir. 2008). The aim of compensatory education services is 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, Reid v. District of Columbia, 401 F.3d 516, 518 (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 …mold each decree to the necessities of the particular case”).
When fashioning a compensatory award, it is appropriate to look at the specific educational deficits resulting from a child’s loss of FAPE, in order to ascertain what compensatory measures are appropriate to make the child whole. Id.; Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990).
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See, Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y.
1997); SRO Appeal 14-179. Within the Second Circuit, compensatory relief in the form of supplemental special education or related services has been awarded to students if there has been a denial of a FAPE. See, Newington, 546 F.3d at 123 ("[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]"). Likewise, SROs have awarded compensatory "additional services" to students who have been denied appropriate services, if such deprivation can be remedied through the provision of additional services before the student becomes ineligible for special instruction by reason of age or graduation. See, 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); see also, Application of the Dep't of Educ., Appeal No.
13-048; Application of a Student with a Disability, Appeal No. 11-091).
The purpose of an award of additional services, like compensatory services, is to provide an appropriate remedy for a denial of a FAPE and accordingly, 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, supra.
Here, the District conceded that services were not provided to the Student during the 2014/15, and 2015/16 school years and asked that the additional hours in service be limited to hours that would be commensurate for the two school years (T. 50-
51). Based on the record however, specifically, the May 2015 IEP, it appears that the Student stopped receiving services in March 2014 (P-Ex. C-1). The last IEP with services had recommended services a week, per session (P-Ex. E). Based on the above, I find that the Student is entitled to hours of services ( hours for the 2013/14 school year, and hours for both the 2014/15 and 2015/16 school years).
Relying on the testimony of Ms. who testified regarding her assessment of the Student’s educational records and has experience in working with students with , I find that an award of compensatory, or additional academic services in the amount of hours, should be awarded to assist the Student in getting him to the position he should have been had he been provided FAPE for the 2013/14, 2014/15 and 2015/16 school years.
DECISION
I find that the District failed to provide the Student FAPE during a portion of the 2013/14 school year and the entire 2014/15 and 2015/16 school years.
I find that the District failed to conduct a of the
Student.
I find that the Student was inappropriately discharged from and as such should be entitled to the hours missed during the school years in question.
I find that the Student is due to the
District’s denial of FAPE and therefore compensatory/additional academic services are necessary to remediate his . I have calculated the amount based on the testimony of Ms. , that the Student will need hours of .
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
ORDER THAT, the District shall provide a bank of hours of , by a , that will not expire until
, to be given
; to be provided by a at an enhanced rate, to be paid by the District;
IT IS FURTHER ORDERED THAT, the District shall provide a bank of hours of that will not expire until
, to be given
; to be provided by a from
, at the rate of an hour, to be paid by the District;
IT IS FURTHER ORDERED THAT, the District’s CSE reconvene to review the Student’s updated evaluations prior to September 5, 2016;
All other requests for relief have been reviewed and denied.
SO ORDERED
Dated: July 25, 2016
VANESSA M. GRONBACH, ESQ.
Impartial Hearing Officer VG:
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
Number Date Document Number of Pages
1 1/19/2016 Resolution Agreement 1
2 3/3/2016 Consent to Evaluate 1
3 3/4/2016 2
by DOE
4 3/4/2016 Student Interview 1
5 3/7/2016 1
by DOE
6 4/6/2016 Pupil Progress Report 6
7 4/12/2016 Report Card 1
8 4/15/2016 Progress Report 1
9 4/22/2016 Individual Student Attendance Report 1 10 4/22/2016 Student Permanent Record 1
Documents Related to
11 3/7/2016 2
12 3/7/2016- 7
4/22/2016
13 4/22/2016 Considerations of a Student’s Need for 4
14 4/22/2016 5
15 5/18/2016 Evaluation 7
Parent Exhibit List
Exhibit
Number Exhibit Date of Pages
P-A Demand for Due Process Hearing 12/30/15 13
INDIVIDUALIZED EDUCATION PROGRAMS
P-B IEP 9/22/15 10
P-C IEP 5/27/15 11
P-D IEP 6/13/14 13
P-E IEP 3/27/14 8
P-F IEP 5/21/13 8
P-G IEP 5/24/12 9
CSE CORRESPONDENCE
P-H Prior Written Notice 9/22/15 2
P-I CSE Meeting Notice 9/16/15 1
P-J Assessment Planning Form 9/16/15 1
P-K Request for Reevaluation 9/16/15 1
P-L Letter from Parent 9/16/15 1
P-M Oct 2013-Jun 2015 11
P-N Feb 2015 1
P-O 1/16/15 1
P-P Prior Written Notice 6/13/14 2
P-Q Assessment Planning Form 5/2/14 1
P-R Request for Reevaluation 5/2/14 1
P-S Letter from Parent undated 1
P-T Prior Written Notice 4/25/14 2
P-U 2/10/14 1
P-V Assessment Planning Form 6/1/12 1
P-W Mandated Three Year Reevaluation Notice 2/3/12 1
EVALUATIONS
P-X - Parent/Guardian undated 1
P-Y - Teacher 5/27/15 2
P-Z - Student 5/16/15 3
P-AA Update 6/4/14 11
P-BB - Student 6/4/14 2
P-CC - Teacher 3/21/14 1
P-DD - Student 3/18/14 1
PROGRESS REPORTS and REPORT CARDS
P-EE Report Card 5/8/15 1
P-FF Student Permanent record 3/23/15 1
P-GG Student Transcript 3/6/15 1
P-HH IEP Goal Progress Report with Cover Letter 2/2/15 2
P-II 11/13/14 1
P-JJ Student Permanent Record 9/30/14 1
P-KK Student Progress Report - 6/12/14 3
P- Pupil Progress Report - May 2014 4
P-MM Student Permanent Record 4/9/14 1
P-NN Student Progress Report - 2012-2013 2
Footnotes
[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits. Reference to the Transcript shall be referred to as “T”.
[4] My finding of a denial of FAPE for the 2013/14 school year, is limited to the timeframe within the two year Statute of Limitations, starting December 30, 2013.