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FINDINGS OF FACT AND DECISION
Case Number: 163969
Student’s Name:
Date of Birth:
District: I I
Hearing Requested By: Parent
Date of Hearing: January 24, 2017
March 21, 2017
September 20, 2017
January 31, 2018
February 5, 2018
Actual Record Closed Date: June 4, 2018
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 24, 2017
For the Student:
Attorney (Via Telephone)
For the Department of Education:
District Representative (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 21, 2017
For the Student:
Attorney (Via Telephone)
For the Department of Education:
District Representative (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 20, 2017
For the Student:
Attorney (Via Telephone)
For the Department of Education:
District Representative (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 31, 2018
For the Student:
Attorney
(Via Telephone)
parent
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 5, 2018
For the Student:
Attorney
parent
(Via Telephone)
(Via Telephone)
For the Department of Education:
District Representative
I was appointed Impartial Hearing Officer (“IHO”) pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). The appointment was on August 3, 2017, after the recusal of another IHO. Appended to the record are the names of the persons who appeared.
The parent brought this complaint to challenge the Student’s IEP and program for the 2014-2015 through the 2017-2018 school years, alleging a variety of FAPE violations. During the hearing, the hearing officer ordered the District to pay the cost of an independent assessment; an independent assessment; an independent Assessment; an independent Evaluation; an independent and, if deemed appropriate by the person conducting the assessment, a.
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 has. (Tr. @ 103) The Student. (Tr. @ 105) the Student. (Tr. @ 106) The Student requires. (Tr. @ 106-113)
The Student attended from November, 2015 through October, 2017, where the Student Lj _ _J. The Student for the remainder of the 2017-2018 school year. (Tr. @ 116-124)
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).
In 2017, the Supreme Court addressed a split amongst the circuit courts regarding what the IDEA means when it requires school districts to provide an "appropriate" level of education to children with disabilities. Endrew F. ex rel. Joseph F. v. Douglas County School Dist. RE-I, 137 S. Ct. 988 (2017). In Endrew F., the Court held that an IEP must be "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Id. at 1001. The Court made clear that the standard is "markedly more demanding than the 'merely more than de minimis' test" applied by many courts. Id. at 1000.
The District conceded FAPE denial for the 2014-2015 through 2017-2018 school years.
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).
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).
Both and say that, at this point, the Student needs. also made clear that the Student should benefit from that she created. The parent is asking that the hearing officer order the CSE to reconvene and create a revised IEP for the Student including a directive to consider and to consider and any like placements that are available. Additionally, indicated that appropriate compensatory education should be in the amount. Additionally, recommended. Though this is a request for a significant amount of services, there was no objection from the Department. The services will therefore be ordered.
ORDER
As a result of the foregoing, I order the following:
1. The Student’s IEP will be revised to require that the Student needs;
2. The Student’s forthcoming placement shall implement the written by;
3. The Department should consider placing the Student at and any like placements that are available for the 2018-2019 school year;
4. The Student shall receive compensatory education should be in the amount;
5. The Student shall receive.
Dated: June 18, 2018
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. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Amended due process complaint, 9/28/17, ten pages
B Due process complaint, 10/21/16, eight pages
C CV of , unidentified date, four pages
D IEP, 10/27/14, 15 pages
E , 9/9/15, five pages
F IEP, 11/24/15, nine pages
G IEP, 11/18/16, nine pages
H IEP, 2/28/17, 13 pages
I evaluation, 8/4/17, 21 pages
J evaluation, 8/7/17, five pages
K evaluation, 9/18/17, 27 Pages
L , 11/5/17, 19 pages
M Letter from , 2/1/18, unspecified number of pages