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FINDINGS OF FACT AND DECISION
Case Number: 160502
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: June 7, 2016
June 28, 2016
August 9, 2016
September 8, 2016
September 28, 2016
Actual Record Closed Date: October 14, 2016
Hearing Officer: Daniel Ajello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 7, 2016
Pre Hearing Conference
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 28, 2016
Attorney — Student
Attorney — Student
Mother — Student
Father — Student
District Representative — DOE
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 9, 2016
Attorney — Student
Attorney — Student
Mother — Student
Father — Student
District Representative — DOE
DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 8, 2016
Attorney — Student
Attorney — Student
Attorney — Student
Mother — Student
Student
Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 28, 2016
Attorney — Student
District Representative — DOE
INTRODUCTION
On May 23, 2016, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York. This was a District request to uphold the DOE completed
( ) and ( ). Case Number
160502. (Ex 1)
Another Due Process Complaint, as Case Number 160640, was filed and appointment to the same IHO made on 06/06/2016. (Ex A)
Cases were consolidated by written Order on 06/10/2016, an proceeded under
. (IHO Ex IV)
Pre Hearing conference took place on 06/07/2016, resulting in Consolidation
Order. (IHO Ex IV)
Hearing request alleges a failure to offer and provide a Free and Appropriate Public Education (FAPE) to the Student for the 2014-2015, 2015-2016 and 2016- 2017 School Years. (Ex A 1-14)
A variety of remedies were initially sought. Some issues were resolved during the proceedings. Issues that remained included determining if there had been a denial of FAPE for several school years. Relief sought included an independent and , a deferral for nonpublic school placement, and of enhanced rate as compensatory education, of at an enhanced rate as a compensatory service, and an Order directing the DOE to develop an IEP inclusive of the 05/29/2016 evaluation. (Ex A 15-16)
Regarding the request for an IEP meeting the Parent, or DOE can request such a meeting at any time and therefore that relief need not be addressed herein.
BACKGROUND
Student is currently attending . (T 29)
Most recent Student IEP, at the time of the Hearing Request, is dated
02/05/2016, and includes: classification of ,
, (Ex D 1);
,
, (Ex D 2); Student
that “ “, Student was provided at the time and placed in an as a Student, no special education supports were recommended at that time, for
(2015-2016 school year) mother submitted a 504 Accommodation Plan requesting , a , diagnosis of , , Student continued to struggle and mother requested a , continued despite , was diagnosed, , (Ex D 3); 12/04/2015 IEP recommended a class with , and reevaluation requested and , difficulty with is noted, had improved in December of 2015 (Ex D 4); include ,
, , ,
, , ,
, ,
, Student requires a program due to challenges, required (Ex D 5);recommendation of a program, and (Ex D 10); program and (Ex D 11); and (Ex D 13).
Student’s mother, ( ) recounted her son’s educational history, including challenges. (T 196-202)
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) 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
(2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct.
2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A student is offered a FAPE 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (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 a procedural violation is alleged, an administrative hearing 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; 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]).
IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (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" (Rowley, 458 U.S. at 203). The "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida
Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189).
The statute ensures an "appropriate" education, but school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). 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'" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v.
Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE)
(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]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F.
Supp. 2d 384, 388 [S.D.N.Y. 2009]).
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]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y.
July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2];
WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).
Boards of Education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parent were appropriate and; (3) equitable considerations support the Parent's claim (S chool
C om m ittee of the T ow n of B urlington v, D epartm ent of E ducation,
Massachusetts, 471 U.S. 359 [1985]; Application of a Child with a Disability, Appeal No.
01-052). Further, the fact that the facility selected by the Parent to provide special education services to the Child had not been approved as a school for children with disabilities by the State Education Department of the State of New York is not dispositive. (Florence Co. School District Four v. Carter by Carter, 510 U.S. 7 [1993]).
The parent bears the burden of proof concerning the appropriateness of their unilateral placement. A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir.
1998]; 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]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]; see also Educ. Law § 4404[1][c]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G. v.
Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).
When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010]).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-
65).
Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to 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., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 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).
The IDEA allows that reimbursement may be reduced or denied if 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 C.F.R. § 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
While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-
71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).
FAPE 2014-2015, 2015-2016 and 2016-2017 School Years
DOE decided not to present a case for the 2014-2015 school year. (T 61 & 141)
DOE believes the IEP for the 2016-2017 school year does offer a FAPE. (T 62)
Student’s first IEP was drafted on 12/04/2015. (Ex E)
I note that much of the information regarding the IEPs and why they were undertaken appears below as the meetings primarily were initiated due to Student’s
.
DOE witness, , testified that even though there had been slight improvement from December, of 2015, another IEP meeting was scheduled for February, of 2016, due to “ . (T 89)
also states that the Student is and is
(T 113) resulting in little progress. (T 114)
DOE IEP, of 2/05/2016, does note the Student requires program due to challenges. (Ex D 5)
Parent witness provided her background as it relates to placements and testified that she believes such a placement is not appropriate for the Student as it would not provide the necessary . (T 314)
Parent witness Dr. ( ), , reviewed her background and provided testimony. (T 264-266)
Student is a patient of , who has reviewed the Student‘s educational records.
(T 267-270)
believes the Student is to warrant a placement. (T 270) believes the Student requires a placement for . (T 273) was given as an example of an appropriate school. (T 274)
DOE failed to offer any evidence regarding the 2014-2015 school year.
DOE, by failing to present any case for the 2014-2015, essentially acknowledges a failure to provide a FAPE. (T 60-61) DOE acknowledges that compensatory education services may be warranted, though without a specific request the DOE cannot meet the request. (T 61)
Parent attorney alleges the failure to complete an and during the 2014- 2015, then the inappropriate and continue to effectively deny the Student a FAPE since 2014-2015. (IHO Ex XIV 18-19 & 22-23)
DOE acknowledges the current placement, which encompasses 2015-2016 and
2016-2017, is inappropriate, and offers the placement. No witness was presented to explain how the placement would appropriately address the needs of the Student. The only information relied upon was the witness and essentially the IEP of 02/05/2016.
(Ex D): “
” (T 92-93)
Mother was not comfortable with the recommendation and wanted some input from Dr. who at the time had not completed her evaluation. (T 93-94)
provided testimony regarding her efforts to obtain appropriate services for her child.
For the 2014-2015 no special education services were received, nor was he evaluated. (T 203)
. (T 203-204)
Parent began seeking out information and evaluations for her child. Student was diagnosed with . (T 204, Ex U)
For the 2015-2016 school year Student entered , again without any special education services. (T 210)
Student continued to have and . At one point . (T 211-213)
attended the 12/04/2015 IEP meeting to help with her child’s . (T 216, Ex E)
attended another IEP meeting on 02/05/2016. (T 216-217, Ex D)
placement was recommended and visited two recommended sites. (T 221)
did not believe the sties were appropriate. One site had . (T 221) The second site was visited but was not able to access any information (T 223-225) was open to a public school placement. (T 251)
At this time was still . (T 217) This occurred about . (T 220)
during this school year. (T 218)
. (T 228)
obtained an evaluation calling for that was not provided as a service to the Student. (T 227, Ex Q)
. (T 228)
attended the recent 08/15/2016 IEP meeting. (T 229) recommendation was made and and were added to the IEP.
rejected the placement. (T 230, Ex 26) I note that this recommendation, is not effective to cure any past failure to offer a FAPE. It can however help service to ameliorate, the need for compensatory services to the extent it offers appropriate services moving forward.
was asked if her child was receiving in school such as . could not confirm these were in place. (T 244)
said . (T 248)
. (T 257)
Evidence recounted above and contained in the documents supports that the DOE failed to offer and failed to provide a FAPE to the Student for the years in question.
provided uncontested testimony regarding her child’s and
.
(T 217 & 220)
All three IEPs now in evidence contain and
. No explanation is made as to how all of these needs are to be met with . Each IEP, including the most recent, contains one vague goal for the relating to . (Ex 26-7) How, if possible, the are to be met is not evidenced. These needs include:
, Student
requires a program due to challenges. (Ex D 5, E 3 & 26-5) Considering all of the needs it appears that the Student . No mention is made as to how a program is to be provided.
Student continues to have as reflected throughout the IEPs. (Ex 26-1)
I find the DOE failed to offer the Student a FAPE for the 2014-2015,. 2015-2016 and 2016-2017 school years.
and
DOE present one witness, Dr. ( ).
At the beginning of the 2015-2016 school year, met with mother, observed Student and acted to grant including and
. (T 68-69)
Student responded well to . (T 69-70)
was initiated. (T 70)
Student was referred for evaluations since Student “
” (T 70)
A variety of evaluations were conducted including and . (T 70-71, Ex JJ & MM)
was completed. While Student at the time temporality placed in a classroom. (T 72, Ex T)
attended IEP of 12/04/2015. Available materials were reviewed and the IEP developed. (T 75-76)
observed the student at one time in where he was completing work. was developed to
. (T 76-77)
evaluation was used to develop goals. (T 78-79, Ex U)
Program recommendation was made at the IEP meeting: “
.” (T 79)
was conducted in November which included and
. (T 81-82) A packet was sent home for additional information but was not returned. (T 83, Ex MM)
Student required a which was developed. At the December IEP meeting. (T 84-85, Ex JJ)
was implemented and . (T 85-86, Ex 17-18)
Some progress has been seen . (T 87-88)
Parent requested an independent in May. (T 88)
School felt the was adequate and appropriate and an independent was not necessary. (T 88) This resulted in the District initiated Hearing request. (T 89, Ex 1)
Even though there had been slight improvement from December another IEP meeting was scheduled due to “ . (T 89)
completed a update, another observations and there were teacher progress notes. (T 89)
Evaluation was received by at the IEP meeting. (T 90,Ex 14)
At the 02/05/2016 IEP meeting the Student Classification was changed to . (T 90-91, Ex D 1)
reviewed the contents of the IEP and stated: “
.” (T 92-93)
Mother was not comfortable with the recommendation and wanted some input from Dr. who at the time had not completed her evaluation. (T 93-94)
Student was offered a Program. Parent went to visit and was not satisfied.
(T 94)
Another site was offered to the parent and parent was arranging a visit a few days ago. (T 95-96)
Parent called witness ( ) to contest the appropriateness of the DOE and . reviewed her qualifications (T 287) and is familiar with Parent and Student through discussions with Parent and review of the records. (T 289-290)
believes the DOE and do not meet specific requirements of the Individuals with Disability Education Act. Specifically the data collected by the DOE was not specific enough as it failed to collect data. (T 293)
Only data was collected. (T 293, MM 2) The data taken was not appropriate as it was taken with less that the required of data. (T 294)
believes the data therefore may not be accurate. (T 297)
testified that the was not appropriate due to the inappropriate and it lacked step by step protocols and procedures to implement the plan. (T 298-299, Ex JJ)
Additionally, notes the plan calls for but does not indicate how these strategies will be taught. (T 299-300, Ex JJ 2)
Lack of specific details leaves the plan open to interpretation and haphazard implementation. (T 300)
conducts s, at a cost of , and prepares s, at a cost of .
(T 305)
Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP (see 20 U.S.C. § 1414[d][3][B]). Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 C.F.R. §
300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ., 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172; J.A. v. East Ramapo Cent. Sch.
Dist., 603 F. Supp. 2d 684, 689 [S.D.N.Y. 2009]; M.M. v. Dep't of Educ., 583 F. Supp.
2d 498, 510 [S.D.N.Y. 2008]; Tarlowe, 2008 WL 2736027, at *8; W.S. v. Rye City Sch.
Dist., 454 F. Supp. 2d 134, 149-50 [S.D.N.Y. 2006]; Application of a Student with a Disability, Appeal No. 09-101; Application of a Student with a Disability, Appeal No. 09-
038; Application of a Student with a Disability, Appeal No. 08-028; Application of the Dep't of Educ., Appeal No. 07-120).
State procedures for considering the special factor of a student's behavior that impedes his or her learning or that of others may also require that the CSE consider conducting a functional behavioral assessment (FBA) and developing a BIP for a student in certain non-disciplinary situations (8 NYCRR 200.4[d][3][i]; 200.22[a], [b]). State regulations define an FBA as "the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment," and include[s], but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it (8 NYCRR
200.1[r]). According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the student's history of presenting problem behaviors (8 NYCRR 200.22[a][2]). An FBA must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a BIP (if required) may be developed "that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement"
(8 NYCRR 200.22[a][3]). Although State regulations call for the procedure of using an FBA when developing a BIP, the failure to comply with this procedure does not automatically render a BIP deficient (A.H., 2010 WL 3242234, at *3-*4).
If the CSE determines that a BIP is necessary for a student, "the [BIP] shall identify:"(i) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors . . .; (ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and (iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals (8 NYCRR 200.22[b][4]).
I find the DOE did perform an and create a sufficient enough to satisfy the legal requirement. Even though the DOE failed in offering a FAPE, the was sufficient enough to meet its intended, though not carried out, purpose..
detailed a reasonable procedure and drafted a , though not perfect, with enough information to and
. (Ex MM & JJ)
Referral to Community Based Support Team for Private School Placement;
During the course of the proceedings the DOE and Parent conducted another IEP meeting, in part to review new evaluations and to attempt to find proper placement for the Student. IEP dated 08/15/2016, included much of the prior IEP information and recommended a , program, with , and services. IEP also included a program and a .
(Ex 26-9 & 26-10)
IEP continued to contain that the Student requires a program due to challenges. (Ex 26-6)
DOE witness acknowledges “
.” (T 92-93) DOE fails to evidence how the recommended, or any past offerings, would deliver the required “ ” as referred to in all the IEPs offered into evidence. (Ex D 5, E 4 & 26-6)
Mother was not comfortable with the recommendation and wanted some input from Dr. who at the time had not completed her evaluation. (T 93-94)
No placement has yet been identified for the most recent 08/15/2016 IEP. (Ex 26)
No placement has been identified to replace the current inappropriate Student placement.
Relief of DOE placement in a non-public school is warranted.
Compensatory Education Services
Parent seeks of enhanced rate as compensatory education and of at an enhanced rate as a compensatory service.
Parent witness testified the Student was .
(T 306-309)
is appropriate for the Student. (T 309)
recommends of for
. (T 310)
amount was calculated by into consideration and was based on
. .
(T 310-311)
’s agency provides at a rate of per hour, as opposed to the DOE rate of hourly. (T 312)
is capable of providing required services to the Student via the ( ). (T 275-276) The rate is per session.
(T 276)
Having failed to provide Student with an appropriate IEP and FAPE for the past school years compensatory services are warranted.
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).
The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. A tlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir.
2008) (same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student.”); see also Parents of Student W . v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).
“Courts have been creative in fashioning the amount and type of compensatory education services to award,” R.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1126 (9th Cir. 2011); including additional tutoring or services, (see, e.g., Student X , 2008 WL 4890440 (awarding make-up ABA services); Hall v. Detroit Pub. Sch., 823 F.Supp. 1377
(E.D. Mich. 1993)(tutoring); Johnson v. Bismarck , 949 F.2d 1000 (8th Cir.
1991)(Additional services provided to student during the summer.)). Courts that have utilized an hour-for-hour award seek to determine the amount of FAPE missed, i.e., the amount of time/number of hours of services that were not provided and/or the amount of time an appropriate education was not provided. See, e.g., Melvin ex rel. M artell v.
Town of Bolton Sch. Dist., 100 F.3d 944 (2d Cir. 1996)
Courts that have utilized a “flexible approach” seek to ascertain the services the student needs at the time of the hearing to compensate for the FAPE denial. Reid, 401 F.3d 516 (flexible approach, instead of hour-for-hour method for calculating compensatory education, is more appropriate for remedying past deprivations); see
Streck, 2010 WL 4847481, at *2
Herein the Student was denied a FAPE and continuously had . (Ex D 1, E 1 & 26 1)
No evidence was presented to counter the evidence presented by the Parent seeking services for the Student.
Student is and requires additional services.
recommends of for . (T
310) No evidence is presented to counter the Parent ’s evidence of warranted compensatory services.
DOE has not presented any evidence to weigh against the Compensatory services amount.
I find these services to be an appropriate remedy to make up for past DOE failure and provide the Student with services to .
Most recent IEP of 08/26/2016 indicates for the Student , who is in . (Ex 26-12) IEPs consistently reflect
. (Ex D 1 & E 1)
I do not see evidence supporting an enhanced rate for the Student. In the event a provider cannot be located by the DOE within a reasonable time as set forth in this Order then the increased rate may be sought to provide Student the services he has been awarded.
I note the there are no facts established here that show that the parent failed to cooperate or acted inequitably to interfere with the DOE’s ability provide FAPE to the
Student.
Compensatory Counseling Services
Parent seeks a Related Service Authorization (RSA) for services, at an enhanced rate, in order to remedy services Student should have received for past school years. (T 188) Parent seeks . (IHO Ex XIV 25)
Parent alleges Student should have been identified to receive services earlier, at the very least for the 2015-2016 school year. (T 192)
Parent did pay for private for the Student, which the Student continues to receive. (T 237 & 257)
can provide Student services. (T 275) Rate is per session. (T 277)
is an appropriate services for the Student. (T 277)
DOE has not presented any contrary evidence to the request for Compensatory services as indicated above.
Student was mandated to received services in IEP of 12/04/2015,
, . (Ex E 8) IEP of 02/05/2016 indicates an additional . (Ex D 10) IEP of 08/15/2016 continues ,
. (Ex 26-9)
DOE has increased the services over the past IEPs.
Evaluation of 05/05/2015 does not contain any recommendation for . (Ex U)
Information is provided that Student has received some sessions. (Ex VV)
does indicate services should continue. (T 277)
No testimony nor evidence was provided to indicate a delay caused by the failure to deliver service in the past.
No testimony was offered to indicate why additional services beyond those offered in the most recent IEP would be necessary for the Student.
I find the Student is not entitle to relief in the form of additional services.
ORDER
1. The Department of Education has failed to offer the Student a FAPE for the 2014-2015, 2015-2016 & 2016-2017 School years.
2. DOE shall provide Student with authorization to place the Student is a nonpublic school for the 2016-2017 school year. Placement shall be for a program due to . Necessary documentation shall be provided to the Parent within ten days of the date of this Order.
3. DOE shall provide services for the Student. These services are to be utilized by June 30th, 2018. DOE shall identify and provide a provider within 15 days of the date of this Order. If not provided then DOE shall issue authorization to the Parent to obtain a provider at a rate of up to per hour.
4. This decision is subject to appeal and review by the State Review Officer.
Dated: October 28, 2016
DANIEL AJELLO, ESQ
Impartial Hearing Officer
DA:
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
ENTERED 06/28/2016
A Hearing request 160640, dated 6/1/16, 17 pages
B DOE due process response, dated 6/8/16, 3 pages
C Excluded Duplicate
D IEP, dated 2/5/16, 16 pages
E IEP, dated 12/4/15, 13 pages
F School location letter, dated 6/6/16, 1 page
G Prior written notice, dated 6/6/15, 3 pages
H Letter from , dated 5/12/16, 1 page
I Letter to school from parent, dated 5/9/16, 4 pages
J Letter to school from parent, dated 3/23/16, 1 pages
K School location letter, dated 2/11/16, 1 page
L Prior written notice, dated 2/11/16, 1 page
M CSE meeting notice, dated 1/26/16, 2 pages
N Prior written notice, dated 12/4/15, 3 pages
O Consent/initial provision of services, dated 12/4/15, 1 page
P CSE meeting notice, dated 11/30/15, 2 pages
Q evaluation, dated 3/29/16, 7 pages
R update, dated 2/1/16, 4 pages
S , 1/19/16, 1 page
T , dated 11/16/15, 1 page
U evaluation, dated 5/5/15, 9 pages
V report, 3/20/15, 6 pages
W , dated 3/18/15, 2 pages
X update, dated 6/1/16, 2 pages
Y update, dated 2/5/16, 2 pages
Z data, dated Nov '15 to Feb '16, 6 pages
AA Anecdotal reports, dated Sept '15 to Jan '16, 26 pages
BB , dated Jan '16, 3 pages
CC , dated 1/15/16, 1 page
DD , dated 1/16/15, 1 page
EE report, dated 1/15/16, 1 page
FF written statement, dated 1/15/16, 1 page
GG written statement, dated 1/16/15, 1 page
HH , dated 1/4/16, 1 page
II , dated 12/20/15, 1 page
JJ , dated 12/4/15, 5 pages
KK worksheet, dated 12/4/15, 8 pages
LL , dated 11/17/15, 2 pages
MM , dated 11/16/15, 5 pages
NN , dated 11/10/15, 2 pages
OO teacher report, dated 11/10/15, 2 pages
PP , 3 pages
QQ , 4 pages
RR teacher report, incomplete, 2 pages
SS Report card, dated 3/22/16, 4 pages
TT Report card, dated 11/18/15, 2 pages
UU Student progress report, 2 pages
VV session list, dated 3/21/16, 1 page
XX Historical profile report, dated 3/31/16, 1 page
YY , 2 pages
ZZ , dated 06/24/2016, 1 page
AAA '14/'15 report card, 2014-2015 school year, 2 pages
DEPARTMENT OF EDUCATION
ENTERED 06/28/2016
1 Hearing request 160502, dated 5/12/16, 6 pages
2 Partial resolution agreement, dated 6/12/16, 1 page
3 CSE meeting notice, dated 3/22/15, 3 pages
4 Ineligible for services, dated 3/27/15, 5 pages
5 Prior written notice, dated 4/13/15, 3 pages
6 Parent's evaluation request, dated 10/22/15, 1 page
7 Initial referral, prior written notice, dated 10/30/15, 6 pages
9 Notice of , dated 10/30/15, 1 page
10 Consent to evaluate, dated 11/4/15, 1 page
11 evaluation, 11/4/15, 3 pages
12 Request for re-evaluation, dated 10 1/8/16, 1 page
13 Consent for new testing, dated 1/8/16, 1 page
14 report, dated 3/22/16, 2 pages
15 LRE procedural checklist, dated 2/27/16, 1 page
16 tools, dated 11/10/15, 7 pages
17 , dated Jan to May '16, 7 pages
18 , dated Feb to May '16, 5 pages
19 report, dated 1/28/16, 1 page
20 Prior written notice, dated 6/6/16, 4 pages
21 School location letter, dated 6/6/16, 3 pages
22 SESIS events log, dated Jan 2015 - June 2016, 19 pages
ENTERED 08/09/2016
23 evaluation, , 6/27/16, 9 pages
24 , 6/23/16, 2 pages
ENTERED 09/08/2016
25 Evaluation, 07/10/2106, 8 pages
26 IEP, 08/15/2016, 15 pages
27 Prior Written Notice, 08/16/2016, 4 pages
HEARING OFFICER
ENTERED 06/28/2016
I District's Notice of Appearance, dated 05/18/2016, 1 page
II Notice of appearance, dated 5/23/16, 1 page
III Notice of appearance, dated 6/6/16, 1 page
IV Order of consolidation, dated 6/10/16, 5 pages
V Notice of appointment, dated 6/18/16, 4 pages
VI E-mails objecting to subpoena, dated 6/20/16, 5 pages
VII Parents' email response regarding subpoena, dated 6/22/16, 7 pages
VIII Confirmation of case number 160502, 4 pages
ENTERED 08/09/2016
IX Grant of Extension of the timelines, 7/8/16, 4 pages
X Grant of extension of the timelines, 7/11/16, 4 pages
ENTERED 09/08/2016
XI Compliance Date Extension, 08/09/2016, 3 pages
ENTERED 10/14/2016
XII Grant of Extension of the timelines, 9/28/16, 3 pages
XIII NYC Department of Education Closing Statement, 10/14/2016, 5 pages
XIV Parent Closing Statement, 10/14/2016, 31 pages
Footnotes
[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. 07-018; Application of a Child with a Disability, Appeal No. 06-059. Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a child with a Disability, Appeal No. 08-087). The burden of proof is on the school district of demonstrating the appropriateness of the program recommended by the CSE. A parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010