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FINDINGS OF FACT AND DECISION
Case Number: 163646
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: January 20, 2017
February 1, 2017
March 16, 2017
May 17, 2017
Actual Record Closed Date: July 21, 2017
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 20, 2017
Attorney (Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 1, 2017
Attorney — Student
Attorney — Student
Parents
Student
Interpreter — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 16, 2017
Attorney — Student
Attorney — Student
Parents
(Via Telephone) — Student
Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 17, 2017
Attorney — Student
Parents
(Via Telephone) — Student
Interpreter — Student
District Representative — DOE
On the amended Due Process Complaint dated November 14, 2016, the matter of came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.
The parents brought this complaint, and the amended complaint, to challenge the Student’s IEP and program for the school years, 2014-2015, 2015-2016, and 2016-2017 school year, alleging a variety of FAPE violations. As a remedy, the parents requested
. The parent also seeks an evaluation, and that the CSE reconvene to create a program where the student received
; and a school placement that contains
.
Upon the joint application of the parties, multiple timelines extensions were granted in this case. For each such extension, I reviewed the factors in 8 NYCRR Sect.
200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District.
FINDINGS OF FACT
The Student is a with , who has also been diagnosed with . (Exh. P) The Student has significant
deficits in (Tr. @ 108-109) and in . (Tr. @ 132-133)
From 2011 to 2016, the Student was placed in a the student was in a classroom with a ratio, with a .
. (Exh. I)
. . (Tr. @ 115)
He was eligible as a student with “ ” through to 2016. Then, after an independent evaluation confirming an , the student was classified as and placed in an classroom. The student continued to
.
The student requires to address . (Tr. @ 135-138)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of
2007.
A FAPE is offered to a student when (a) the District 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. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect.
300.513(a)(2).
A free appropriate public education “must include ‘special education and related services' tailored to meet the unique needs of a particular child, and be ‘reasonably calculated to enable the child to receive educational benefits.’ ” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted). While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits. 20 U.S.C.
Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
The District conceded FAPE denial for all school years and did not present a case or a closing argument.
REMEDY
Where Districts have failed to offer students a FAPE, courts have wide discretion to insure that students receive a FAPE going forward. As the Supreme Court has stated:
The statute directs the court to “grant such relief as [it] determines is appropriate.” The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be “appropriate.” Absent other reference, the only possible interpretation is that the relief is to be “appropriate” in light of the purpose of the Act. As already noted, this is principally to provide handicapped children with “a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.
School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471
U.S. 359, 371 (1985).
1. Compensatory Education.
The parent is seeking, as compensatory education,
.
Compensatory education is an available option under the Act to make up for denial of a free and appropriate public education. While the Circuit has previously enunciated a “gross violation” standard in this connection, Garro v. State of Connecticut, 23 F.3d 734, 737 (2d Cir. 1994), this standard is at odds with the standards in most jurisdictions. In P. v. Newington Bd. of Educ., 546 F.3d 111 n.13 (2d Cir. 2008), the Circuit signaled that the Garro approach is only applicable where Students are over 21.
In so analyzing this issue, the court referenced the seminal compensatory education case of Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). In Reid, the D.C.
Circuit explained that compensatory education should be fashioned without a “cookie cutter approach” and that compensatory education 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. Id., 401 F. 3d at 524; see also Friendship Edison Public Charter School v. Nesbitt, 532 F. Supp. 2d 121, 125 (D.D.C. 2008) (compensatory award must be based on a "'qualitative, fact-intensive' inquiry used to craft an award 'tailored to the unique needs of the disabled student").
Additionally, there is authority in this jurisdiction for a “quantitative” approach to compensatory education. Application of a Student with a Disability, Appeal No. 14-172
(reducing a quantitatively determined award of additional services based upon evidence in the hearing record demonstrating that the student received some special education services and received some degree of benefit therefrom).
The Department’s representative, at one point, objected to the notion that this hearing officer decide the compensatory education issue at all, deeming it a matter appropriate for the CSE to decide itself. However, the CSE provided no authority for its position, which is not persuasive. The defending party has no right to set the amount of the award against it for violations that they themselves committed. This is a matter for the hearing officer to decide, which I will do forthwith.
The parents ask for a substantial amount of compensatory education. First, the parents have provided expert testimony in support of the request for Case No. 163646
. This testimony was by , of
. The Department did not object to her testimony, or otherwise dispute that this is an appropriate amount of services for the school years that were missed. There is no objection to the parents’ quantitative approach to compensatory education. I will grant this request.
Second, the parents presented ,a professional, who testified that the appropriate compensatory education mandate for is . Ms. calculated that the student should have received since 2011. However, the claims in this case only relate to the 2014-2015, 2015-2016, and 2016-2017 school years. The appears to have calculated three extra school years into the award. I will therefore reduce the number of compensatory services to sessions. This amount more properly reflects the compensatory education time period here, which should be from two years before filing through to the date of the order.
Third, the parents request
. This request is based on Ms. ’s testimony that the student required . However, Ms.
actually found that hat the appropriate amount of compensatory services could be from to . I will therefore order that the student receive as compensatory education.
The request for is for . Given that Ms.
testified that the parents missed since the 2014- 2015 school year, I find this request to be reasonable. I will order that the parents benefit from .
Finally, the parents seek services in the amount of . However, there is nothing in the record to support this request. No witnesses were called in connection to , and the student did in fact receive for all of the school years at issue. The parent, pointing to an IEP, argued that the student did not get the services that he was promised, but the IEP merely says the student was absent a lot, not that the services were not delivered. (Exh. I
@ 2).
2. Evaluation.
The parents are seeking an evaluation to assess the student’s needs. There is no dispute that . (Exhs. Q, R) There is also no dispute that . Since there has been no evaluation of the students, I find that a evaluation is appropriate.
3. New Placement.
The parents ask for the following in any placement for the 2017-2018 school year:
.
Insofar as the school is concerned, the parent requests a . The parent also asks for the case to be referred to the Central-based Support Team to satisfy these requirements.
There is no specific objection from the Department in regard to any of these demands, which are supported in the record except for the request for and the request for . Ms. testified that the student requires , but did not specify what was needed. Accordingly, I will order the parent’s request relief for placement in all respects except for the request for and the specific request for the at issue. The CSE shall reconvene to review the recent report conducted by Ms. (not in evidence) to provide the student with appropriate . Finally, I will note that there is no objection to the request to refer this matter to the Department’s Central-Based Support Team (“CBST”) for placement.
ORDER
As a result of the foregoing, I order the following:
1. The Department of Education shall provide compensatory education in the amount of:
A. , to be provided by
, to be paid for at the usual and customary rate, with reimbursement for reasonable costs;
B. , by a certified
provider, with reimbursement for reasonable costs;
C. , to be provided by an individual
with training and experience in , at that provider’s usual and customary rate; and
D. , provided by a of the parent’s choosing, at their usual and customary rate;
2. The Department shall reconvene the CSE and rewrite the IEP to provide for
.
Additionally, the placement must be for a
.
3. Such CSE review shall provide the student with as appropriate;
4. Issues of school placement shall be referred to the Department’s CBST;
5. The student shall receive a evaluation by a qualified provider at their usual and customary rate;
6. All services shall be provided to the Student by July 31, 2020.
7. All other requests for relief are denied. Dated: August 3, 2017
MICHAEL LAZAN, ESQ.
Impartial Hearing Officer ML:
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOCUMENTATION ENTERED INTO THE RECORD ON
PARENT
A Due Process Complaint, 11/11/16, 23 pages
B STRICKEN
C STRICKEN
D STRICKEN
E IEP, 10/4/13, 18 pages
F IEP, 9/6/14, 13 pages
G IEP, 11/26/14, 13 pages
H IEP, 1/6/16, 13 pages
I IEP, 1/6/16, 12 pages
J Evaluation, 10/27/10, ten pages
K STRICKEN
L STRICKEN
M STRICKEN
O Evaluation, 11/17/14, 23 three pages
P Evaluation, 6/22/15, pages
Q Report, 10/15/15, one page
R Social Update, 11/5/15, two pages
S Update, 11/30/15, two pages
T Classroom Observation, 12/1/15, one page
U Report Card, 8/16, one page
V Assessment, 11/3/16, 11 pages
W Evaluation, 11/11/16, 12 pages
X Letter Regarding , 6/15/11, four pages
Y Letter to CSE, 4/26/16, four pages
Z Letter to , 4/26/16, four pages
AA DOE Reply, 5/17/16, one page
BB Authorization, 5/20/16, one page
CC Authorization, 5/20/16, one page
DD Authorization, 5/20/16, 23 one page
EE authorization, 5/20/16, one page
FF Authorization, 5/20/16, one page
GG Authorization, 5/20/16, one page
HH Letter to CSE, 6/9/16, three pages
II Letter to , 6/9/16, three pages
JJ Motion for Interim Order on Independent Educational Evaluations,
1/4/17, 47 pages
KK Affidavit of , 1/17/17, two pages
LL Resume of , Unidentified date, two pages
MM Resume of , Unidentified date, one page
NN Assessment Report, 11/14/16, ten pages
OO , 12/23/15, five pages
PP , 12/23/15, five pages