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FINDINGS OF FACT AND DECISION
Case Number: 165778
Student’s Name:
Date of Birth:
District: 11
Hearing Requested By: Parent
Date of Hearing: May 10, 2017
March 27, 2018
March 30, 2018
April 19, 2018
Actual Record Closed Date: September 11, 2018
Hearing Officer: Michael Lazan, Esq.
Correcte
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 10, 2017
ESQ., Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 27, 2018
ESQ., Attorney — Student
(Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 30, 2018
For the Student:
NONE
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 19, 2018
ESQ., Attorney — Student
Student
District Representative — DOE
On the amended Due Process Complaint dated August 9, 2017, 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 parent brought this complaint to challenge the Student’s educational programs from 2015-2016 school year through the 2016-2017 school year. On June 28, 2017, the Impartial Hearing Officer issued an interim order ordering the following independent educational evaluations (“IEEs”): (1) , (2)
, (3) , (4) , and (5)
. At the hearing, the Parent presented the following witnesses: (1)
, who conducted the evaluation; (2) , who conducted an assessment and school observation; (3) (via affidavit), who conducted the evaluation; (4) (via affidavit), who conducted the evaluation; (5) (via affidavit), who conducted the evaluation; and (6)
(via affidavit), who conducted the evaluation. As a remedy, the parent requested a wide range of relief, as discussed in the “relief” section of this decision.
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
. During the school years issue, the Student was placed in a classroom at , with a . The Student also received the related services of
.
The Student exhibits delays in areas.
11 11 11 I 11 11 11 I
I I 11
Tr. 81-82, Ex. J-9.
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 Department did not put on a case and therefore conceded FAPE denial in connection to the Student’s programs for the 2015-2016 and 2016-2017 school years.
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 I I (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 requests compensatory services to be awarded as banks of hours as relief for the denial of FAPE in the amount of: services in the amount of L ; program supervision hours in the amount of ; parent training and
I I
; in the amount of ; in the amount of ;
iC
of in the amount of services and training; plus the following : (1) L ; (2) ; (3)
I I ; (4) (5)
; (7) n In ~
11 l II
LJ I 0
I I; (6)
ii
11
I
; (8) ; (9) ; (10)
; 11) 1 .
; (12) . ; (13)
(14) ; (15)
; (16) I
; (17) ; (18) ; (19) -~L
; plus of training for the Student, his family, and providers. Petitioner also seeks of compensatory .
Finally, Petitioner seeks for any services listed above that are not provided
.
Though the relief requested is extensive, there is no objection at all from the Department, and the record reflects that Petitioner has submitted credible testimony in support of every such demand. Under the circumstances, the hearing officer is constrained to grant the relief requested.
ORDER
As a result of the foregoing, I order the following:
1. The Student receive a compensatory education award in the form of: L_ services in the amount of - ~
; Parent training and
;
,-
program supervision hours in the amount of in the amount of ; n
II in the amount of ;
11
in the amount of ; services and training in the amount of _J _ ; _J _ of compensatory ; plus the following : (1)
; (2)
; (3) ; (4)
(5) ; (6)
; (7) _ _ _ ] _ _ __
; (8) ; (9) ;
(10) ; 11)
; (12) ; (13)
; (14) ; (15)
; (16)
; (17) ; (18) ; (19)
; plus hours of training for the Student, his family, and providers;
2. shall be provided to the above services that are not provided
Dated: September 25, 2018
Corrected Date: October 12, 2018
MICHAEL LAZAN, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
The parent an /or the New York City Department of E ucation has a right to obtain a review of this ecision by a State Review Officer of the New York State E ucation Department un er Part 200.5(k) of the Regulations of the Commissioner of E ucation, Section 4404 of the E ucation Law, an the In ivi uals with Disabilities E ucation Act. The Department of E ucation has esignate the New York City Law Department to accept service of papers on its behalf, inclu ing appeals of ecisions of Impartial Hearing Officers. Such service is ma e at 100 Church Street, New York, NY 10007 at the Messenger Center.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Due process request, 3/20/17, eight pages
B IEP, 7/21/15, 47 pages
C Prior written notice, 8/11/15, four pages
D Prior written notice, 7/22/15, four pages
E Prior written notice, 7/21/15, four pages
F IEP, 6/7/16, 16 pages
G Prior written notice, 7/1/16, three pages
H IEP, 5/20/15, 23 pages
I Prior written notice, 6/23/15, two pages
J assessment report, 12/21/16, 11 pages
K observation, 1/18/17, five pages
L evaluation, 10/21/16, six pages
M , 3/23/17, four pages
I
N _J, 1/29/16, seven pages O 2017, unidentified date, three pages
P 2016, unidentified date, three pages
Q progress monitoring report, 3/31/17, four
pages
R annual report, 5/3/17, five pages
S Progress report for '16/'17, 4/5/17, 24 pages
T summer report, 8/5/15, two pages
U Progress report for 15 '15/'16, 6/24/16, 27 pages
V summer report, 17 8/6/15, four pages
W Annual report for goals and objectives, 6/3/16, six pages
X progress report '15/'16, 8/10/15, three pages
Y assessment, multiple dates, 28 pages
Z Assessment , multiple dates, two pages
AA data 2016-2017, unidentified date, five pages
BB recording sheet, 7/14 thru 8/03/17, ten pages
CC Related service , 7/5/16 to 5/12/17, 18 pages
DD Related service , 7/6/15 to 6/29/16, 20 pages
EE '16/'17 profile sheet Unidentified date, ten pages
FF '16/'17 classroom schedule, unidentified date, one page
GG evaluation, 7/27/17, 14 pages
HH evaluation, various dates, 17 pages
II evaluation, 7/13/17, nine pages
JJ evaluation, 7/14/17, five pages
KK evaluation, 9/10/17, one page
LL Second amended due process request, 8/9/17, eight pages
MM Affidavit of , 4/4/18, two pages
NN Affidavit of , 4/11/18, six pages
OO Affidavit of , 4/11/18, four pages
PP Affidavit of , 4/18/18, three pages
DEPARTMENT OF EDUCATION
1 Due process complaint, 3/20/17, eight pages
2 IEP, 6/7/16, 19 pages
3 Progress report, 4/1/16, 6 ten pages
4 Meeting notice, 5/12/16, three pages
5 Prior written notice, 9 7/1/16, four pages