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FINDINGS OF FACT AND DECISION
Case Number: 164163
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 24, 2017
June 14, 2017
Actual Record Closed Date: August 28, 2017
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 24, 2017
Attorney (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 14, 2017
Attorney — Student
Parent Advocate — Student
Parents
District Representative — DOE
On the Due Process Complaint dated November 7, 2016 in the matter of , I was appointed 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 parent brought this complaint to challenge the Student’s IEP and program for the 2014-2015 through the 2016-2017 school years, alleging that the IEPs then in effect denied the Student a FAPE. As a remedy, the parent requested of compensatory and an evaluation conducted by a provider of the parent’s choice at a rate not to exceed .
After the hearings, the parent submitted a brief. (IHO Exh. 1)
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 an with a . He is eligible for services as a student with a . He also has .
(Exh. I. K.; L) On October 16, 2013, the Department conducted an evaluation for the Student. However, the evaluator did not recommend . (Exh. D)
Subsequent IEPs noted that the Student continued to have difficulties with . (Exhs. M, P, Q;
R) After a teacher expressed concerns, another evaluation was conducted on January 19, 2016. The evaluator noted that the Student had significant difficulty in , but did not recommend .
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 in this matter for all 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).
The parent reasonably requested of compensatory services to be funded through a Related Services Authorization. The school district did not object to this proposed remedy. The parent also reasonably requested an independent evaluation by a provider of the parent’s choosing at a rate not to exceed . The school district did not object to this proposed remedy.
Accordingly, I will order the remedy as requested.
ORDER
As a result of the foregoing, I order the following:
1. The Department of Education shall provide compensatory education in the amount of , to be funded by a Related Services
Authorization;
2. The Department shall pay for an independent evaluation conducted by a provider of the parent’s choosing at a rate not to exceed . Dated: September 11, 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
STUDENT
A Due process complaint, Unidentified date, 12 pages
B evaluation, 1/18/17, five pages
C evaluation, 3/2/17, eight pages
D evaluation, 10/16/13, seven pages
E teacher report, 1/15/16, four pages
F evaluation, 1/19/16, eight pages
G , 5/17/16, 48 pages
H Teacher report, 6/16, five pages
I Teacher report, 6/7/13, five pages
J report, 7/29/13, five pages
K evaluation, 3/15/13, two pages
L Letter from , 2/7/13, two pages
M IEP, 4/19/17, 13 pages
N IEP, 6/23/16, 13 pages
O IEP, 3/30/16, 11 pages
P IEP, 11/5/15, 15 pages
Q IEP, 10/31/14, 13 pages
R IEP, 11/21/13, 18 pages
S IEP, 8/20/13, 18 pages
T , 2011, 38 pages
DEPARTMENT OF EDUCATION
1 Due process complaint, 10/31/16, ten pages
2 IEP, 10/31/14, 14 pages
3 Prior written notice, 10/21/14, three pages
4 IEP, 11/5/15, 15 pages
5 Prior written notice, 12/2/15, three pages
6 evaluation, 1/12/16, eight pages
7 evaluation, 1/19/16, eight pages
8 teacher report, 1/14/16, two pages
9 IEP, 3/30/16, 13 pages
10 Prior written notice, 5/11/16, three pages
11 Independent evaluation, 1/9/17, five pages
12 evaluation, 3/2/17, six pages
13 evaluation addendum, 4/6/17, five pages
14 IEP, 4/19/17, 17 pages
15 Prior written notice, 4/21/17, three pages