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FINDINGS OF FACT AND DECISION
Case Number: 165694
Student’s Name:
Date of Birth:
District: I I
Hearing Requested By: Parent
Date of Hearing: November 3, 2017
January 19, 2018
February 26, 2018
February 26, 2018
April 5, 2018
Actual Record Closed Date: September 25, 2018
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 3, 2017
For the Student:
NONE
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 19, 2018
For the Student:
Attorney
parent
Witness (Via Telephone)
Director, Witness (Via Telephone)
For the Department of Education:
Impartial Hearing Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 26, 2018
For the Student:
Attorney (Via Telephone)
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 5, 2018
For the Student:
Attorney
parent
For the Department of Education:
District Representative
On the amended Due Process Complaints designated above, the matter of the above Student came before me as 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 parents brought this complaint to challenge the Student’s IEP and program for the school years, 2014-2015, 2015-2016, and 2016-2017 school year, alleging a variety of FAPE violations. As a remedy, the parents requested a wide variety of relief, as discussed, infra.
On January 23, 2018, the Impartial Hearing Officer (“IHO”) ordered the two cases to be consolidated. 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 child who is eligible for services as a student with a . The Student requires ==cJ~----~---=-~~-~ n -- (Exh. 10)
During , the Department recommended for a classroom for . The CPSE did not address the Student’s concerns or management needs in this IEP. Moreover, though the Student was having issues, the Department failed to provide a or , despite repeatedly referencing his throughout his 2014-2015 IEP.
The CSE held a new meeting on March 26, 2015. No new evaluations were held in connection to the meeting, and the CSE recommended the same basic program as the Student received in . The Student, who was now attending school at , continued to have , where he also did not receive sufficient integration service. The Student received a class for . (Exh. 4)
The Student continued to struggle in school. On March l7, 2016 the Department held an annual review meeting to develop the Student’s 2016-2017 IEP. No new assessments, evaluations, observations or exams were conducted. At the time, the Student was on a level in both and . The CSE relied. solely on teacher anecdotes as the foundation for its educational program. No L_ and/or _J was provided. The Student was again recommended for a , with . (Exh. 7)
During the 2016-2017 school year, the parent tried to place him in his his zoned school. It was only on February 27, 2017 that she finally received an Enrollment Assignment Letter. An IEP meeting was held on March 13, 2017, which dropped the Student’s specialized instruction hours to a . The IEP indicated that the Student . (Exh. 10)
A evaluation was conducted of the Student in March, 2018. The evaluation found that
. (Exh. H)
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).
As pointed out by Petitioner, the Department conceded FAPE for the school years in question. In her closing argument, Petitioner defends her position in regard to the 2014-2015 school year, indicating that the claims in regard to this school year are actionable. There is a two-year statute of limitations on special education claims pursuant to the IDEA in New York State. An IDEA claim accrues when the parent “knew or should have known” about the claim, 20 U.S.C. § 1415(f)(3)(C). As a result, determining whether a particular claim is time-barred is necessarily a fact-specific inquiry. The IDEA's statute of limitations is an affirmative defense. M.G. v. N.Y.C. Dep't of Educ. 15 F.Supp.3d 296 (S.D.N.Y. 2014). Accordingly, the school district has the burden of proving that the statute of limitations barred plaintiff's claims. K.H. v. New York City Dep't of Educ., No. 12-CV-1680, 2014 WL 3866430, at *15–16 (E.D.N.Y. Aug. 6, 2014). The Department did not meet this burden, and did not mention this point during the closing argument.
Accordingly, I agree with Petitioner that the Department denied the Student a FAPE during the years in question, and need not address the other issues raised in the Due Process Complaint.
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).
As relief, Petitioner requests of compensatory , and of compensatory . There is no objection to the request for compensatory , which will be so ordered. However, the Department urges that the request for hours is excessive, suggesting that the number of hours should be more in the range of , and pointing out that the Petitioner herself said that the student could only benefit from of . 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’s calculations would constitute a large award. It is also hard to see how the Student could possibly use all these services in view of his academic program during the school day. Nevertheless, Petitioner’s contention is request is based on testimony, not speculation. In particular, the request is based on the testimony of , who has expertise in assessing students . recommended a range of from . Based on calculations, the Student should be compensated for _J. There is no testimony from the Department to counter this testimony. As a result, the request will be ordered, the caveat being that the hours must be used within year time span.
ORDER
As a result of the foregoing, I order the following:
1. The Student shall receive L_ of compensatory , by a qualified provider at a usual and customary rate in the community, services to be used within years of the date of this decision;
2. The Student shall receive of compensatory , by a qualified provider at a usual and customary rate in the community, services to be used within years of the date of this decision.
Dated: October 10, 2018
MICHEL LAZAN, ESQ.
Impartial Hearing Officer
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. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Due process request, 3/8/17, eight pages
B Resolution agreement, 6/5/17, two pages
C Due process complaint in the second case, 6/9/17, three pages
D Letter to the District representative, 3/2/17, one page
E evaluation, 4/4/13, four 10 pages
F IEP, 6/2/15, nine pages
G IEP, 6/18/14, 12 pages
DEPARTMENT OF EDUCATION
1 Due process complaint, 3/8/17, ten pages
2 The response, 3/31/17, three pages
3 Partial resolution agreement, 6/9/17, two pages
4 IEP, 3/26/15, 12 pages
5 Prior written notice, 6/12/15, four pages
6 report, 3/16/16, two pages
7 IEP, 3/17/16, 12 pages
8 Prior written notice, 3/31/17, four pages
9 Notice of IEP meeting, 2/28/17, three pages
10 IEP, 3/13/17, 12 pages
11 Prior written notice, 3/27/17, four pages
12 Consent, 6/14/17, one page
13 evaluation, 6 7/3/17, six pages
14 records, Undated, one page