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FINDINGS OF FACT AND DECISION
Case Number: 164931
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: January 31, 2017
March 30, 2017
May 12, 2017
June 12, 2017
July 14, 2017
July 24, 2017
August 8, 2017
August 16, 2017
September 8, 2017
Actual Record Closed Date: October 2, 2017
Hearing Officer: Judith Schneider, Esq.
APPEARANCES
January 31, 2017
FOR PARENT
, Attorney (via telephone)
FOR DOE
, District Representative (via telephone)
March 30, 2017
FOR PARENT
, Attorney (via telephone)
FOR DOE
, District Representative (via telephone)
May 12, 2017
FOR PARENT
, Attorney (via telephone)
FOR DOE
, District Representative
June 12, 2017
FOR PARENT
, Attorney (via telephone)
FOR DOE
, District Representative (via telephone)
July 14, 2017
FOR PARENT
, Attorney (via telephone)
FOR DOE
, District Representative
July 24, 2017
FOR PARENT
, Attorney (via telephone)
FOR DOE
, District Representative
August 8, 2017
FOR PARENT
, Attorney (via telephone)
FOR DOE
, District Representative
August 16, 2017
FOR PARENT
, Attorney (via telephone)
FOR DOE
, District Representative (via telephone)
September 8, 2017
FOR PARENT
, Attorney (via telephone)
FOR DOE
, District Representative
On January 31, 2017, March 30, 2017, May 12, 2017, June 12, 2017, July 14, 2017, July 24, 2017, August 8, 2017, August 16, 2017 and September 8, 2017, I conducted an Impartial Hearing at the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, , New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).
Procedural History
The proceeding was initiated at the request of the parent by correspondence dated December 20, 2016. (Ex. C) I was appointed Impartial Hearing Officer on December 28, 2016 after prior recusal/s. I was available to conduct a hearing within 14 days of appointment. At a telephone conference with the parties conducted on January 26, 2017, I was informed that the matter had been partially resolved but certain issues remained and that an interim order with regard to evaluations was requested. A hearing was scheduled for January 31, 2017 (Ex. I)
The January 31, 2017 hearing was held and the district agreed to provide evaluations as requested by the parent. (T. 3-5) By Order dated February 1, 2017, the following was ordered:
The student is entitled to an independent
and an independent evaluation from appropriately qualified and credentialed providers at rates not to exceed for the and for the evaluation. District payment shall be made promptly upon receipt of the evaluations. The district may, at its option, require for payment satisfactory evidence of provider qualifications and that the rate charged is the provider’s usual and customary fee.
At various hearings thereafter I was informed as to the status of the evaluations, the subsequent CSE review and deferral to the CBST for a State approved Non-Public School (“NPS”) placement, the eventually successful efforts to identify a placement and the issuance of another IEP specifying that placement. Evidence concerning the parent’s claim for compensatory services was also submitted.
Subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of the need for evaluations and subsequent CSE review,the identification of a placement, anticipated testimony, the scheduling of witnesses and the submission of evidence. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (T. 2, 14-15, 19, 22-23, 29-30, 42, 53-54, 68, 71, Ex. I )
The current compliance date is November 4, 2017. The record closed on October 2, 2017, upon my receipt of the final transcript.
Positions of the Parties
In this matter the parties have agreed that the sole remaining issue is the parent’s request for a total of to be provided by
(“ ”) as compensation for alleged denials of FAPE in the 2015- 2016 and 2016-2017 school years, DOE payment of the and DOE provision of a to permit utilization of services. (T. 70, 46-50)
Evidence Presented
The DOE presented no evidence. The parent presented testing material and conclusions and the affidavit of , of . The DOE had the opportunity to cross-examine Ms. but concluded that it did not wish to do that and acknowledged that it was accepting the affidavit. (T. 47)
Findings of Fact and Conclusions of Law
In this matter the parent alleged failure to provide a FAPE in the 2015-2016 and 2016-2017 school years. The DOE did contest that claim. (T. 35) The sole remaining issue in this matter is the parent’s compensatory service claim.
It is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir. 2008) “If the student has become ineligible for special education by reason of age or graduation, compensatory education has been awarded 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 York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [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]).” Appeal No. 11-027. However, it is not required that the denial be gross when occurring as here during the age range of student eligibility.
See, e.g., Appeal No. 13-048, Appeal No. 12-235, Appeal No. 12-209.
“…[C]ompensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).”
Appeal No. 11-027.
In fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and … the ultimate award 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.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (emphasis added); see also Newington Bd. of Educ., 546 F.3d at 123; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)
With regard to compensatory education services when there is a denial of FAPE, the district has the burden of proof and persuasion. Appeal No. 11-091 n. 10. It is not sufficient for the district to simply criticize the remedy sought by the parent but rather it must provide credible evidence to support its own view of what is warranted. Appeal No.
11-091. See also Appeal No. 14-014.
However, the parent is not therefore entitled to all claimed when a denial of FAPE is conceded. As discussed above, relief must be commensurate and equitable.
Further, with regard to the inquiry that must be made, I note that it is well established that in developing an IEP a district need not provide the best possible program- i.e. maximize potential. Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. I conclude that similarly there is no entitlement to that with regard to relief when a district has failed to provide a FAPE. I therefore consider what is appropriate in view of the DOE’s failure here.
The parent presented the affidavit of and additional evidence to support the parent’s claim of entitlement to a total of . Ms.
described the basis for the conclusion that that would enable the student to make up for past deprivation and . (Exs. A, B) I find the evidence presented persuasive. Further I note that the DOE has not contested that evidence, has not contested the student’s entitlement to compensatory services and has not presented any alternative proposal as relief.
Based upon the foregoing I find the student is entitled to the requested as well as DOE payment of the and the provision of as compensation for the denial of FAPE in the school years claimed. (Ex. B)
ORDER
1) The student is entitled to from a to be provided by at the rate of per hour. The services shall be utilized at the sole option of the parent but must be used within (3) years from issuance of this order. shall provide written progress reports to the CSE at least two (2) times each year.
2) The DOE shall pay for its and for its .
3) The DOE shall issue to
. Dated: October 5, 2017
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing parties' request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms available at http://www.sro.nysed.gov/part279home.html.
EXHIBITS
Parent
A , 1/26/17, 55 pgs.
B Affidavit of , 7/18/17, 11 pgs.
C Impartial Hearing Request, 12/20/2016, 8 pgs.
DOE
NONE
Impartial Hearing Officer
I Prehearing Conference Memo
II Interim Order, 9/1/17