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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: October 22, 2012
Actual Record Closed Date: November 6, 2012
Hearing Officer: Roslyn Roth, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 22, 2012
Parent Via telephone — Student
Department of Education Attorney — DOE
PROCEDURAL BACKGROUND
This hearing was held pursuant to New York Education Law § 4404(1), 20 U.S.C. §1415(f), the Individuals with Disabilities Act (“IDEA”). In accordance with the parent’s request for a hearing dated June 28, 2012, due to the recusal by the prior hearing officer assigned, I was appointed by the Department of Education, (hereinafter referred to as “DOE”),on August 1, 2012, to hear this matter. The DOE challenged the sufficiency of the due process complaint claiming that it was insufficient because it did not include the proposed solution. The DOE’s challenge was rejected. According to the due process complaint, the parent claims that the as a result of the sudden teacher changes and related service gaps she saw the student regress. She also claims that the student did not make progress toward his Individualized Education Program (IEP) goals. (Decision on Sufficiency, Attachment A) She sought dual services in particular Special Education Teacher Support Services (SETSS), which was sufficient to provide the proposed solution.
The hearing was adjourned at the request of the Parties and timely extensions were granted. The hearing was held on October 22, 2012 and at that time, the attorney requested an adjournment and indicated that she believed the matter was in the process of being resolved, but there had to be paperwork to be signed and processed and sought an adjournment until it was finalized. (TR5) The Parent sought the terms of the Agreement on the record, and she did not agree not going on the record. (TR 8) Therefore the DOE’s request for another adjournment was not granted. (TR 8) Neither party submitted any documentary evidence. The parent testified on her behalf, no witnesses were called by the DOE.
The DOE conceded that it had not offered the student an appropriate program for the 2011-2012 school year. (TR 9)
The parent testified that during the 2011-2012 school year, the child attended and was , she further testified that he did not receive what he needed during the school year. The Parent asserted that as a result of the DOE’s failure to provide appropriate services, the child regressed. The Parent sought additional services to make up for the lack of appropriate services during the 2011-2012 school year. The Parent requested the related services of , and . In essence, the Parent was seeking compensatory services.
It is well settled that 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]). Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]).
Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a Free and Appropriate Public Education (FAPE) (see Newington, 546 F.3d at 123 [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at 23 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v. Bd of Educ., 2008 LEXIS 113149, at 38-40 [S.D.N.Y. March 6, 2008]). Likewise, State Review Officers have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of a Student with a Disability, Appeal No. 09-111 [adding summer reading instruction to an additional services award]; Application of the Bd. of Educ., Appeal No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; Application of a Student with a Disability, Appeal No. 09-044 [awarding "make-up" counseling services to remedy the deprivation of such services]; Application of a Student with a Disability, Appeal No. 09-035 [awarding 1:1 reading instruction as compensation for a deprivation of a FAPE]; Application of a Student with a Disability, Appeal No. 08-072 [awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE]; Application of the Bd. of Educ., Appeal No. 08-060 [upholding additional services awards of physical therapy and speech-language therapy]; Application of a Student with a Disability, Appeal No. 08-035 [awarding ten months of home instruction services as compensatory services];5 Application of the Bd. of Educ., Appeal No. 06-074; Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04054).
After a review of the record and despite my questions in an attempt to clarify and complete the record, I find that there is no basis to ascertain the harm resulting from the DOE’s failure to provide an appropriate program. Accordingly, I direct the Committees on Special Education (CSE) to review the student’s educational program and recommend additional amounts of service to address any deficiency caused by the failure to provide appropriate services (Application of a Child with a Disability, Appeal No. 99-87). The CSE is not limited to considering additional amounts of special education teacher support services, related services and home based services, they may consider the efficacy of other services.
ORDER
The CSE is directed reconvene no later than December 7, 2012 and review the child’s educational program and to ascertain the harm resulting from the DOE’s failure to provide an appropriate program; and
The CSE shall amend the IEP to include the appropriate amount of increased special education instruction and/or the related services of , and increased to compensate the student for the lack of an appropriate program. Dated: November 21, 2012
________________________
ROSLYN ROTH, ESQ.
Impartial Hearing Officer RR;mv
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. Decision on Sufficiency 8/1/2012 11 pages