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AMENDED FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 19, 2010
February 7, 2011
June 13, 2011
October 27, 2011
Actual Record Close Date: November 11, 2011
Hearing Officer: William J. Wall, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 19, 2010
Attorney — Student
Attorney — Student
Parents
Interpreter — Student
Representative-District — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 7, 2011
Attorney — Student
Representative-District — DOE
Representative-District — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 13, 2011
Attorney — Student
Parents
Parents
Interpreter — Student
Representative-District — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 27, 2011
Attorney — Student
Parents
Parents
Interpreter — Student
Representative-District (via telephone) — DOE
— DOE
On August 19, 2010, February 7, 2011, June 13, 2011 and October 27, 2011, I — DOE
conducted an impartial hearing with respect to the special education of. pursuant to the — DOE
Individuals with Disabilities Education Act, 20 U.S.C. Section 1415(f)(1) at the Department of Education Offices, 131 Livingston Street, Brooklyn, NY 10001. A list of persons in attendance and documents accepted into evidence are attached to this decision.
PRELIMINARY INFORMATION
This matter took a long time to conclude as there were several factors that delayed things most of which were beyond the control of the hearing officer or the parties. All parties and the hearing officer became ill on various dates when hearings were scheduled. The Department of Education was unable to locate much if not all of the student;s records and it became necessary to order independent evaluations which took time to complete. Finally, the age of the student and the fact that he had already received an IEP diploma made it difficult to find a satisfactory solution to his educational needs after the conclusion of the testing and the parent’s view of several suggested school placements.
THE PENDENCY HEARING
After a hearing on the record, where the parent’s counsel articulated several issues related to the student’s former IEPs and the lack of evaluations, which were confirmed by the District Representative who had not had any meaningful response from the offices which maintain the student’s records, the following orders issued. Pendency was established for the academic year 2010/2011 at the School starting on the first day of school in September 2010. In addition, SETSS was to be provided for two hours a day five days a week commencing on September 8, 2010. SETSS was to continue for the entire academic year.
The following independent evaluations were to be undertaken. They were to be performed by professionals chosen by the parent, provided they were qualified and certified by either New York State or New York City. The evaluations that were to be performed were a Evaluation, an Evaluation and a Evaluation. The cost of the tree evaluations was not to exceed $6,000.00. Finally various RSAs and P-4s provided to the family were to be amended to extend until December 2010. The hearing was held on August 19, 2010 and the Order issued on or about September 6, 2010.
THE FEBRUARY 7TH HEARING
The various evaluations were introduced into evidence. The and the Evaluation were undertaken at the School. Despite the Pendency Order, the student was not enrolled in any school but was relying soley on SETSS to continue his formal education. The student was not made available to the District for a vocational evaluation which both parties agreed was a necessary evaluation and the parent had not provided a Social History. The District did not complain because of these omissions but requested they be accomplished as soon as possible. They were so ordered.
In addition, the case was remanded back to the CSE with the hope that there would be an agreed IEP. However, because of the significant problems endured by this student during his academic career, I retained jurisdiction over the matter to insure the student would have a reasonable opportunity for meaningful progress in his education as a result of the IEP. In addition, a transition plan was to be added to the IEP. The record also reflected that the student was at the date of the hearing and would not until July 2011. He would be entitled to complete the 2010/2011 school year and any summer program that ended by September 2011 without any necessity for an immediate ruling on compensatory education which the parent was seeking, The parties agreed to delay seeking a ruling on compensatory education until the evaluations and IEP were complete.
THE JUNE 13TH, 2011 HEARING
The meeting open with an agreement that the parties had reached but needed ordered for implementation. It was agreed that a placement in would be offered to student for the summer and the 2011/2012 school year as compensatory education. will receive SETSS services for two hour a day five times a week at his local library. He will also receive two times a week in a group of three but since is to be implement through a RSA it will actually be done in a group of one. is to be implemented either in a school setting or at an appropriate agency depending on what the resolution is of the summer school situation, which by my order requires a placement. The interim agreement made by the parties is so ordered until the next hearing at which time it will be amended or finalized.
The parent introduced the various Evaluations and an IEP. They were introduced without objection from the District Representative. It was reiterated that the student is entitled to transition services because of his age. If the student did not take a school bus to the summer placement, the parents would have to bear responsibility for the cost of his transportation. They agreed to this arrangement.
June 28, 2011 was set for the final hearing date but it had to be adjourned because of difficulties finding an appropriate school placement for the student.
THE OCTOBER HEARING
In an earlier hearing SETSS was ordered for this student for 10 hours a week during his remaining eligibility for services from the Department of Education. It was not possible for the parent to find an appropriate school setting for the student since the last hearing. It seems that the student is reluctant to return to school as he feels significant being and still in school. The district agreed that this student’s needs can be met by SETSS because he is definitely making under the arrangement and there is no indication that he could where most, if not all, of the student would be . There is ample evidence from the failure of the DOE to provide any meaningful evaluations sustaining their placement for the student over the last five years and notably the prior to receiving his . Therefore, I find that the student is entitled to Compensatory education in the amount of 400 hours over a period commencing at the beginning of the calendar year 2012 because the DOE has already set up SETSS for the remainder of the 2011 year. His birth date is . His .
There was no request for compensatory or services and therefore, they will conclude at the end of the 2011. School year
SRO 04-100 spells out the conditions under which Compensatory education may be provided.
The Individuals with Disabilities Education Act (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[B]
[i]; see St. Johnsbury Academy v. D.H., 240 F.3d 163, 169 [2d Cir. 2001]). New
York Education Law specifically provides IDEA 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 IDEA, "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 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). 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).
Compensatory education is an equitable remedy that is 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).
ORDER
The necessary evaluations have been done. The IEP has been developed. (ex.4). I have found that the student is entitled to compensatory education in the amount of 400 hours of SETSS to be utilized at the rate of 2 hours per day or 10 hours a week until the 400 hours have been depleted. Because the DOE has set up SETSS until December 31, 2011, the Compensatory 400 hours is to begin during the first school week of 2012 and continue as specified until the hours are completed.
Amended Decision Dated: November 15, 2011
Original Decision Rendered: November 14, 2011
______________________________
WILLIAM J. WALL, ESQ.
Impartial Hearing Officer
WJW:jj
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 AUGUST 19, 2010
PARENT
A Letter on Standardized Testing, Spring/2000, 2 pp. B IEP, 5/2000, 11 pp. C Partial IEP, 5/15/01, 11 pp. D Conference Information, 11/27/01, 1 p. E IEP, 1/30/02, 16 pp. F IEP, 1/20/05, 5 pp. G IEP, 7/19/05, 24 pp. H IEP, 3/14/06, 12 pp. I Evaluation, 1/14/09, 4 pp. J Evaluation, 1/23/09, 8 pp. K Appointment Letter, 2/17/09, 1 p. L Diploma from ., 6/2009, 1 p. M Certificate of Completion, 8/2009, 1 p. N Letter to , 4/20/10, 1 p. O Request for Impartial Hearing, 6/18/10, 5 pp.
P. CBS News Story, 1/18/10, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD FEBRUARY 7, 2011
PARENT
Q Evaluation, 10/14/10, 2 pp. R Evaluation, 10/14/10, 6 pp. S Evaluation, 10/11/10, 14 pp.
DOCUMENTATION ENTERED INTO THE RECORD JUNE 13, 2011
DEPARTMENT OF EDUCATION
1 Copy of P-4 Form, Undated, 1 p. 2 Adaptive functioning Assessment, 4/13/11, 3 pp. 3 RSA Letter for , 9/8/10, 1 p. 4 IEP, 6/3/11, 16 pp.