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FINDINGS OF FACT AND DECISION
Case Number: 164415
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 15, 2017
April 6, 2017
May 17, 2017
Actual Record Closed Date: July 27, 2017
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 15, 2017
Attorney (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 6, 2017
Attorney — Student
(Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 17, 2017
Attorney — Student
Parents
(Via Telephone) — Student
District Representative — DOE
On the Due Process Complaint dated November 11, 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). The appointment was on December 30, 2016, after the recusal of other hearing officer(s). 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, 2015-2016, and 2016-2017 school year, alleging a wide variety of FAPE violations. As a remedy, the parent requested, inter alia: funding for an independent educational evaluation by Dr. in the amount of , prospective funding for an independent evaluation by in the amount of , an evaluation, a ( )
and a , if warranted, based on the ; by a for on ’s IEP during the school day to address his academic needs; a where special education needs can be met including the need for and related services or, and in the event that the Department does not have such a class for , the IHO to order the CSE to refer the case to the Central Based Support Team (CBST) for placement of the student in an appropriate New York State approved non-public school, where his unique special education needs can be met as a student diagnosed with ; make up additional services at an enhanced rate; make-up additional services at an enhanced rate; make-up at an enhanced rate; and costs for the Parent and the student to and from the independent service provider(s) and to and from the independent evaluator(s) if the services and evaluations cannot be delivered or conducted in the student’s home.
After the hearings, the parent submitted a brief. (IHO Exh. 1) The Department did not submit a brief or present any witnesses or evidence, but did present a closing argument. The closing argument did not contest FAPE denial, but did contest the appropriateness of some of the relief requested.
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.
(IHO Exh. 2)
FINDINGS OF FACT
The Student is a who is eligible for services as a student with an . He attends . He has been diagnosed with
.
.
. (Tr. @ 66-67)
Prior to the 2015-2016 school year, the Student did not receive services. After a parental request to evaluate in March, 2016, the Student was determined to be eligible and an IEP was created on July 20, 2016. This IEP recommended an . The IEP also recommends
. (Exh. B)
The Student continued to struggle during the 2016-2017 school year,
. (Tr. @ 106)
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 presented no testimony, evidence, or argument on FAPE denial.
Accordingly, I must rule that the District denied the Student a FAPE for all three years in question.[1]
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.
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 Case No. 164415 the hearing record demonstrating that the student received some special education services and received some degree of benefit therefrom).
The parents requested , to be provided by a certified special education teacher, given the three years of FAPE deprivation. The recommendation was by the , , who recommended the rate of per hour for the at her agency. There was no objection from the school district. The shall be ordered.
The parent also seeks , to be funded
at an enhanced rate not to exceed an hour. There is no objection from the District, which evaluated the Student in February, 2017. However, there is nothing in the record to indicate why the services should cost as much as an hour. I will therefore only order that the student receive services by a qualified provider who shall be paid a fee based on the reasonable and customary rate in the community.
2. Evaluations.
The parent seeks funding for an Independent Educational Evaluation by Dr. in the amount of ; an independent evaluation by in the amount of ; an evaluation; and a and , if warranted.
In the District’s closing statement, there was no objection to any of these requests, which will be ordered in their entirety.
3. New Placement.
The parent is asking for a new IEP after completion of the evaluations. The request is for the IEP to be based on the new evaluations. The request is also for the IEP to: a) provide the student with ; b) placement in where there is more and where the related services mandate, and the mandate for the , can be met; c) if there is no availability within the public school system, the request for such placement shall be referred to the District’s CBST for placement.
There is no clear objection to these requests from the school district. I will accordingly order these requests in their entirety.
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 a
, by ,@ per hour;
B. , to be provided by an appropriately credentialed professional at a reasonable and customary rate;
C. Funding for the evaluation of Dr. ,@ ;
D. Funding for an independent evaluation by
,@ ;
E. An evaluation within sixty days of the date of this order;
F. An and, if warranted, a , within sixty days of the date of this order;
G. A revised IEP based on based on the new evaluations, to be completed within sixty days of the evaluations. The IEP shall provide the student with by a ; placement in where there is and where the related services mandate, and the mandate for the , can be met; if there is no availability within the public school system, the request for such placement shall be referred to the District’s CBST for placement.
H. will be provided to and from the compensatory education services and the evaluations if the services cannot be provided at the student’s home.
Dated: August 10, 2017
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer MSL:
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, 11/11/16, 12 pages
B IEP, 7/20/16, 16 pages
C Request for independent , 9/21/16, one page
D Request for records, 9/12/16, two pages
E Request for records, 9/12/16, two pages
F Assessment planning, 9/9/16, one page
G Request for , 8/25/16, two pages
H referral, Unidentified date, one page
I Prior written notice, 7/21/16, three pages
J Consent, 7/21/16, one page
K CSE meeting notice, 6/30/16, three pages
L Letter from , 5/3/16, one page
M Assessment planning document, 3/28/16, one page
N Request to evaluate, 3/1/16, one page
O Parent letter, 2/29/16, one page
P Letter from , 2/10/16, one page
Q Letter from , 9 12/11/14, one page
R Teacher report, 6/26/16, seven pages
S Evaluation from , 12 11/2/15, six pages
T , 5/31/16, 14 three pages
U Classroom observation, 3/28/16, one page
V report, 6/5/16, five pages
W Request for , 3/2/16, one page
X , 21 2/29/16, two pages
Y Description, 2/29/16, three pages
Z , 24 2/29/16, one page
AA Notice of , 37 2/29/16, two pages
BB Consent for , 2/29/16, one page
CC , 12/11/14, two pages
DD , 6 12/11/14, two pages
EE , 12/11/14, two pages
FF Teacher request for , 11/19/14, two pages
GG Request for , 11/3/14, two pages
HH Parents statement for , 11/18/14, one page
II Request for , 12/11/14, one page
JJ Consent for , 12/11/14, one page
KK Notice of , 12/8/14, one page
LL , Unidentified 21 date, two pages
MM report, 9/7/16, one page
NN summary 24 report, 7/20/16, one page
25 OO Assessment, 6/16/16, 1 three pages
PP assessment, 6/10/16, three pages
QQ Term 2 report card, 4 '15/'16, two pages
RR Term 1 report card, '15/'16, two pages
SS score report, 7 '15/'16, two pages
TT score report, '15/'16, two pages
UU test result, 10 '15, two pages
VV score report, '14/'15, two pages
WW score report, 13 '14/'15, two pages
XX Term 3 report card, '14/'15, one page
YY Report card, '13/'14, one page
ZZ Report card, '12/'11, one page
AAA Determine to class, 19 21/15, two pages
BBB , 11/7/14, one page
CCC Unidentified document, 22 11/7/14, one page
DDD Class apology, 11/7/14, one page
EEE , 8/29/16, six pages
FFF , 3/31/15, eight pages
GGG , 3/6/17, pages
HHH Due process response, 6 2/27/17, three pages
III invoice, 3/6/17, one page
JJJ Request for independent evaluation, 9/21/16,
Unspecified number of 11 pages
KKK Affidavit from , 5/16/17, three pages
LLL Affidavit from , 11 5/10/17, two pages
MMM Subpoena to , 4/27/17, three pages
NNN Email to 5/5/17, one page
OOO , 11/29/16, four pages
PPP , Unidentified date, six pages
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
Footnotes
[1] There is no objection from the District regarding the claim that the Student should have been eligible for services as of the 2014-2015 school year per its “Child Find” duty. 20 U.S.C. Sect. 1412(a)(3). Moreover, the parents put forth sufficient evidence showing that the Student should have been eligible at that time. In particular, the indicated that the Student needed (Exh. FF)