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FINDINGS OF FACT AND DECISION
Case Number: 164399
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: November 15, 2016
March 7, 2017
March 20, 2017
May 17, 2017
May 24, 2017
June 6, 2017
Actual Record Closed Date: July 10, 2017
Hearing Officer: Martin Kehoe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 15, 2016
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 7, 2017
Attorney (Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 20, 2017
Attorney (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 17, 2017
Attorney (Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 24, 2017
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 6, 2017
Attorney — Student
District Representative — DOE
Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as the District, the parents as the Parents and the student will be referred to as the Student. There was a pendency hearing on November 15, 2016; a hearing on February 3, 2017; March 7, 2017; March 20, 2017; May 17, 2017; May 24, 2017; and June 6, 2017.
Parent’s Position
In the complaint notice, dated November 3, 2016, the Parent alleges that the District denied the Student a free appropriate public education (FAPE) for the 2016 – 2017 school year because they did not provide an appropriate placement. The Parent is seeking tuition payment for the Private School and compensatory education in the form of .
District’s Position
It is the District’s position that they offered the Student a FAPE and a deferral to the to the Central Based Support Team (CBST).
Student History
At the time the complaint notice was filed, the Student was and was not attending school (Ex.A). In the and , the Student had an ;a
; and ; and . (Ex. B ). The
Student was given a classification of by the District (Ex. B). The
Student was given a ( ) on February 7, 2016, and a ( ) for including
. (Ex.B).
Procedural History
A CSE meeting was held for the Student on August 25, 2016 and an Individualized Education Plan (IEP) was created for the Student. (Ex. B). The District sent a prior written notice of recommendation to the Parents, dated August 31, 2016 recommending a NYSED – approved non-public school in a program, with , and an . (Ex. 4). As of November 15, 2016, the Student still has not been offered a placement by the CBST (T.P.3). During the pendency hearing that day, the District agreed that pendency would be at the Private School with related services in , and , and . (T.P
5-6) and I issued a pendency order. ( IHO 1).
Discussion
Issue of FAPE: Moot
The primary issue in this litigation is whether the District provided the Student with a Free Appropriate Public Education (“FAPE”) for the 2016-2017 school year. However due to the passage of time this issue has become moot. the dispute between the parties in an appeal must at all stages be "real and live," and not "academic," or it risks becoming moot (see Lillbask 397 F.3d 77 at 84; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]; J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4
[W.D.N.Y. Sept. 30, 2008]; see also Chenier v. Richard W., 82 N.Y.2d 830, 832 [1993];
Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 [1980]; Application of a Child with a Disability, Appeal No. 07-139). In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 05-058; Application of a Child with a Disability, Appeal No. 04-027; Application of a Child with a Disability, Appeal No. 00-037; Application of the Bd. of Educ., Appeal No. 00-016; Application of a Child with a Disability, Appeal No. 96-37).
Administrative decisions rendered in cases that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student (see Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 07-139; Application of the Bd. of Educ., Appeal No. 07-028; Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 04-007). (See, SRO 11-
085) .Accordingly, the matter of programming for the 2016-2017 school year is dismissed.
Remedy: Compensatory Education
Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005), finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and … mould each decree to the necessities of the particular case,” quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 (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 Y ork City Dep’t of Educ., 538 F.3d 106, 109 n.2, 113 n.6 (2d Cir. 2008); M rs. C. v. Wheaton, 916 F.2d 69, 75 (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).
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 FAPE. See P. v.
Newington Bd. of Educ., 546 F.3d at 123 (2d Cir. 2008); see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 (S.D.N.Y. Mar. 6, 2008), adopted at 2008 WL 9731174 (Jul. 7, 2008). 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);
A pplication of the Dep’t of Educ., Appeal No. 13-236; A pplication of a Student with a Disability , Appeal Nos. 13-226 & 13-228; A pplication of a Student with a Disability , Appeal No. 13-208; A pplication of the Dep’t of Educ., Appeal No. 13-048.
In the , dated August 29, 2016, the wrote: “
” (EX. 2).
The Private School meets the needs of the Student and he is benefiting from the program.
The June 20, 2016 report card for the fourth marking period of the previous school year showed the Student has been successful in the Private School although he is . He received grades of . (Ex. F). The District agreed that the Private School is the appropriate program for the Student. (T. P. 73)
During the Hearing, the District and Parent came to a resolution of the issue of compensatory education and agreed to at the rate of per hour to cover missed services during the 2016 – 2017 school year. The services will be put into a bank and can be used by the Student until June 2019. (T. P. 72). I endorse this resolution and find that it is appropriate under the guidance of the caselaw relative to compensatory education.
Dated: July 10, 2017
It is therefore ORDERED
That the District provide
at the rate of per hour to be placed in a bank of hours to be used by the Student until June 30, 2019.
Dated: July 14, 2017
MARTIN J. KEHOE III, ESQ.
Impartial Hearing Officer MK:
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
PARENT
A Due Process Complaint, 11/3/16, 3pp
B IEP, 8/25/16, 16pp
C Report, 11/12/15, 3pp
D Report, 11/18/15, 8pp
E IEP, 2/29/16, 28pp
F Report from , 6/20/16, 15pp
G Letters from , Summer 2016, 3pp
DOE
1 IEP, 8/24/16, 24pp
2 , 8/29/16, 3pp
3 , 12/16/14, 8pp
4 Prior Written Notice, 8/31/16, 4pp
IHO
I OP, 11/16/16, 4pp