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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: August 9, 2013
September 25, 2013
February 13, 2014
April 7, 2014
June 13, 2014
February 13, 2015
March 25, 2015
Actual Record Closed Date: May 21, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 9, 2013
ESQ., Attorney — Student
Committee on Special Education — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 25, 2013
ESQ., Attorney — Student
Committee on Special Education — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 13, 2014
ESQ., Attorney — Student
Committee on Special Education Chairperson’s Designee — DOE
Teacher Assigned, Committee on Special Education (Via — DOE
Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 7, 2014
Attorney — Student
District Rep. — DOE
Teacher Assigned, (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 13, 2014
Attorney for Parent — Student
District Rep — DOE
Principal,, (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 13, 2015
Attorney (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 25, 2015
Attorney for Parent — Student
District Representative — 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 Parents’ Request for the Hearing dated July 25, 2013, I was appointed to hear this matter. Timely extensions were given. A pendency hearing took place on August 9, 2013, and a prehearing conference took place on September 25, 2013. The hearing continued to February 13, 2014, April 7, 2014, June 13, 2014, February 13, 2015 and concluded on March 25, 2015. The parties submitted post hearing briefs on April 27, 2015.
The Parent was represented by counsel, the Department of Education’s case was presented by the District Representative. The Department of Education, “DOE”, entered
15 exhibits and called 2 witnesses in support of its case. The parent submitted 20 exhibits,
“A-T”.
The student attended the pursuant to a pendency order for the 2013-2014 school year. Subsequent to the beginning of the 2014-2015 school year the student's pendency had changed, and the student had transitioned into a school, a recommended placement. At the last date of hearing, the issues were narrowed to whether there was any outstanding payments owed to for the pendency for the 2013-2014 school year, and the outstanding compensatory education claim that the Parents had for the summer of 2013.
PARENT’S POSITION
The parent asserts that the student is entitled to compensatory education because the student was denied a FAPE. The parent claims the student is entitled to compensatory education based on the fact that the student was not receiving a program for the month of July and the first week of August. In terms of related services, the parents are asking for the related services of for ; for ; and and for . Further the parent sought a -to- return of the number of days that the student missed school or, at a minimum, hours , for the missed instruction.
DEPARTMENT OF EDUCATION POSITION
The DOE asserts that compensatory is not warranted as the student would have received appropriate services had she attended the recommended program. The DOE claims that the student should not receive compensatory services because it was her failure to attend the program that resulted in the lack of services.
FINDINGS OF FACT
The student is a year old child who is classified with a and . Her classification is not in dispute. The student attended a parental placement for the 2013-2014 school year as a result of a hearing officer’s decision that was not appealed by either party. The decision found that the placement of the student in was an appropriate placement and provided the student with appropriate services.
As a result of a prior hearing officer’s decision the student has been publicly funded in since the 2007-2008 school year. (Ex B)
The Committee on Special Education met on 5/17/2013 and recommended that the student be placed in a setting with a class ratio of students to adults.
Further the student was recommended for the related services of , and and . (Ex 1) The recommended placement contained students whose ranged from to and whose were described as . (TR 258, 264) The evidence failed to establish that the recommended placement would have enabled the student to make meaningful progress or that the recommended placement would have grouped the student with other students who were sufficiently similar as defined in Commissioner’s Regulations section 200.1(ww).
The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE)(20 U.S.C. § 1400[d][1][A]; see Schaffer v.
Weast, 126 S.Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9] [D]; 34 C.F.R. § 300.17[d]; 4 see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 07-054; Application of the Bd. of Educ., Appeal No. 07-028; Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (W enger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).
Compensatory education relief may 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 FAPE (see E.M. v. New Y ork City D ep't of Educ., 2014 WL 3377162 [2d Cir. Jul. 11, 2014] [noting that "when parents believe the local public school district has denied their child a FAPE, one option available to them is to keep the child enrolled in public school and seek administrative (and, later) judicial review of the child's IEP for the purpose of obtaining compensatory education"] [internal quotations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]
[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]"]; S.A . v. New Y ork City D ep't of Educ., 2014 WL 1311761 [E.D.N.Y. Mar. 30,
2014]; B.M. v. New Y ork City D ep't of Educ., 2013 WL 1972144 [S.D.N.Y. May 14,
2013], aff'd, 2014 WL 2748756 [2d Cir. June 18, 2014] [finding "no basis for an award of compensatory education" where "the alleged procedural violations ... [we]re not sufficient to support a finding that [the student] was denied a FAPE"]; Student X . v. New Y ork City D ep't of Educ., 2008 WL 4890440 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]). Likewise, SROs 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 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]; A pplication of a Student with a Disability, Appeal No. 09-111 [adding summer instruction to an additional services award]; A pplication of the Bd. of Educ., Appeal No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; A pplication of a Student with a Disability , Appeal No. 09-044 [awarding "make-up" services to remedy]. The purpose of an award of additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M., 2014 WL 3377162; Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W . v. Puy allup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "(a)ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]; A pplication of the Dep't of Educ., Appeal No. 11-075;
A pplication of a Student with a Disability, Appeal No. 10052). Accordingly, an award of additional services should 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, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[ ] the problems with the IEP"]; S.A ., 2014 WL 1311761
[compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]; see also Draper v. A tlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "(c)ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M ., 478 F.3d 307, 316 [6th Cir. 2007]
[holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puy allup, 31 F.3d at 1497 ["[t]here is no obligation to provide a day-for-day compensation for time missed"]; A pplication of a Student with a Disability, Appeal No. 13-168; A pplication of the Dep't of Educ., Appeal No. 12-135; A pplication of the Dep't of Educ., Appeal No. 11-132; A pplication of a Student with a Disability , Appeal No. 11-091).
With reference to the parent’s request for compensatory services, the failure of the DOE to provide the student with a free and appropriate public education supports the parent’s request for services to compensate the student for the lack of services for a portion of the . I find that she is entitled to hours per for weeks and an each of the related services for .
ORDER:
The DOE shall provide the student with a related service authorization “ ” for the following related services:
;
; and
.
The DOE shall provide the student with a P-3 letter to permit the student to receive individual special education instruction from a qualified special education teacher for a total of hours.
These compensatory services may be provided to the student during the period of
7/1/2015 through to and including 7/1/2016. Dated: June 3, 2015
, ESQ.
Impartial Hearing Officer
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.
ATTACHMENT A
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Impartial Hearing Request dated 7/25/2013 10 pages
B Decision dated 5/7/2009 27 pages
C Interim Order on Pendency dated 8/13/12 6 pages D Interim Order on Pendency dated 9/26/2011 4 pages
E Tuition Affidavit dated 9/17/2013 1 page
F Parental Guarantee of Tuitiondated 7/29/2013 2 pages
G Attendance and Class ’13-’14 school year 2 pages
H Report Card Comments multiple dates 5 pages
I Report Card ’12-’13 school year 1 page
J Progress Report ’12-’13 school year 22 pages
K ’12-’13 Annual Review dated 5/17/2013 5 pages
L Academic Annual Review dated 3/24/2013 3 pages
M dated 5/15/2013 2 pages
N dated 5/14/2013 1 page
O Social Emotional Summary dated 5/19/2013 2 pages
P Transitional Annual Review 2013 2 pages
Q and dated 5/9/2013 3 pages
R dated 4/9/2013 2 pages
S Goals and Objectives Benchmarks undated 9 pages
T IEP dated 11/5/14 20 pages
DEPARTMENT OF EDUCATION
1 IEP dated 5/17/2013 20 pages
2 Final Notice of Recommendation dated 6/17/13 1 page
3 Minutes
4 Classroom Observation
5 Social Emotional Progress Report dated 5/9/2013 3 pages
6 Academic Annual Review dated 4/24/2013 3 pages
7 Transition Annual Goal dated 5/1/2013 3 pages
8 dated 4/9/2013 3 pages
9 and dated 5/9/13 3 pages
10 Referral Form dated 5/17/2013 1page
11 dated 5/14/2013 1 page 12 dated 5/17/2013 1 page
13 Request to dated 6/11/2013 4 pages
14 Tour dated 12/2/2013 1 page
15 dated12/5, 9/12 18 pages