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FINDINGS OF FACT AND DECISION
Case Number: 164449
Student’s Name:
Date of Birth:
District: 11
Hearing Requested By: Parent
Date of Hearing: April 3, 2017
June 19, 2017
July 17, 2017
July 27, 2017
Actual Record Closed Date: February 15, 2018
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 3, 2017
For the Student:
ESQ., Attorney (Via Telephone)
For the Department of Education:
ESQ., Attorney (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 19, 2017
For the Student:
ESQ., Attorney
(Via Telephone)
Teacher (Via Telephone)
Coordinator (Via Telephone)
For the Department of Education:
ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 17, 2017
For the Student:
ESQ., Attorney
For the Department of Education:
ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEAREDO N JULY 27, 2017
For the Student:
ESQ., Attorney
Parent (Via Telephone)
(Via Telephone)
For the Department of Education:
District Representative
After the recusal of other hearing officers, I was appointed Impartial Hearing Officer (“IHO”) 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 2016-2017 school year, alleging a variety of FAPE violations. As relief, the parent is seeking compensatory education and evaluations. 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. For the 2016-2017 school year, the Student was recommended for a program, but the assigned school,, was unable to implement the recommendation. The Student was instead placed at, n school. The Student was assigned to an classroom at, but the Student was unable to make meaningful progress in this environment. (Tr. @ 76-79, 106, 120)
The Student requires a very small classroom and provides (Tr. @ 55-56, 121, 176-183) The Student also requires supplemental instruction to address his deficits. (Tr. @ 119-121) ~-] (Tr. @ 80-84)
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 required 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 dem nding th n the 'merely more th n de minimis' test" pplied by m ny courts. Id. at 1000.
By not presenting any witnesses or closing argument, the District conceded FAPE denial for the school year in question.
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).
Petitioner seeks of for the deprivation for the 2016-2017 school year. This is a reasonable request considering that a month in a typical school year consists of more than of school. This request will be ordered.
Petitioner’s requests for evaluations, including the request for a and the request for an evaluation, are reasonable and well supported by the record. So too are Petitioner’s request for a school year, parent training and, and a deferral to the Central-based Support Team to find anon-public school for the Student.
ORDER
As a result of the foregoing, Iorder the following:
1. The Department of Education shall pay for _L_J of, at the maximum rate of, as compensatory education (services to be used by 8/30/19);
2. The Department of Education shall pay for an of the Student, at a cost not to exceed;
3. The Department of Education shall conduct an evaluation of the Student within 14 days of the issuance of this order;
4. Within 30 days after completions of the evaluations, the Department of Education shall reconvene the IEP team and create a new IEP for the Student;
5. Such new IEP shall require that the Student receive services over the course of a school year and shall provide the parent with parent training and;
6. After creation of the IEP, the Department of Education shall refer the matter of placement to the Central-based Support Team to place the Student in a school for children that contains small classes.
7. Per the interim order in this case, the Department of Education shall reimburse for her evaluation in the amount of.
Dated: March 1, 2018
MICHAEL LAZAN, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has aright to obtain areview 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, 11/13/16, eight pages
B Request for records, 11/10/16, one page
C Request for independent evaluation, 11/13/16, four pages
D Request for records, 11/14/16, one page
E Request for records, 11/14/16, one page
F Certification of records, 12/1/16,two pages
G Response, 12/15/16, three pages
I Individualized family service plan, 10/29/13, five pages
J Individualized family service plan, 12/26/13, seven pages
K Early intervention program change in services, 12/26/13, one page
L IEP, 2/27/14, 17 pages
M IEP, 6/25/14, 17 pages
N Final notice, 6/25/14, one page
O IEP, 5/19/15, 17 pages
P IEP, 4/14/16, 17 pages
Q Prior written notice, 4/19/16, seven pages
R IEP, 4/21/16, 18 pages
S Prior written notice, 5/21/16, six pages
V , 12/20/13, four pages
W evaluation, 12/20/13, four pages
X evaluation, 1/9/14, four pages
Y evaluation, 1/9/14, four pages
Z educational evaluation, 1/17/14, six pages
AA - evaluation, 1/17/14, five pages
BB student evaluation summary report, 1/31/14, one page
CC evaluation, 4/24/17, 16 pages
DD , 5/1/17, six pages
FF summary form, 2/13/14, nine pages
GG annual progress report, 3/30/15, three pages
HH Educational progress report, 12/22/15, four pages
II - annual progress report, 12/22/15, two pages
JJ Quarterly progress report, December 2015, six pages
KK report, 1/22/16, three pages
LL annual progress report, 1/28/16, five pages
MM summary report, 4/14/16, one page
NN Quarterly progress report, 6/16, six pages
OO Quarterly progress report, August 2016, six pages
RR Parent referral, 10/29/13, one page
SS Notification of potential eligibility, 10/29/13, one page
TT Parent consent, 10/29/13, one page
UU Consent to evaluate, 1/26/16, two pages
VV , 4/11/16, one page
WW form, 8/24/16, one page
YY Email from , 4/26/17, two pages