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FINDINGS OF FACT AND DECISION
Case Number: 165875
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: June 2, 2017
Actual Record Closed Date: June 9, 2017
Hearing Officer: Judith Kramer, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 2, 2017
Parent’s Attorney — Student
Parents
Parents
DOE Representative — DOE
Introduction
On June 2, 2017 an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the impartial hearing request filed by the parent alleging the failure of the DOE to provide a FAPE to (“the child“) for the 2016-2017 school years (SY).[1] The impartial hearing was held at the NYC Department of Education located at 131 Livingston Street, Brooklyn, New York.
The hearing commenced at 1:30 p.m.
A list of Exhibits admitted into evidence is attached hereto.
Background.
The child is . He was diagnosed with in 2013. He is classified as . (Ex. E) He attended the in 2014-
2015 where he received . (Ex. K.1) Thereafter, in the 2015- 2016 SY, he received in a center in for four months, paid for by Medicaid. In October 2016, he was attending and an IEP was created. It did not contain any provision for or other similar services. In
November 2016, the mother requested an evaluation to determine whether services should continue. Her request was denied because the DOE stated that they did not know of such an assessment and offered the parent and . (Ex. P)
The parent seeks an IEE assessment to confirm that is warranted.
The Parent’s Position
The parent contends that the child was denied a FAPE because he was denied services on his IEP and was also denied an evaluation to assess is need for .[2]
She seek an IEE at a cost not to exceed (Ex. Q.1) and any other further relief that the IHO may deem just and proper.
The DOE’s Position
The DOE agrees that it denied the parent an IEE but not did present any evidence to defend its decisions to exclude from the IEP or to deny the parent’s request for an IEE. In addition, it did not attempt to defend the adequacy of the evaluations upon which the CSE relied when it denied the parent request for .
Findings of Fact
The child is . He was diagnosed with in 2013. He is classified as . (Ex. E) He attended the in 2014-
2015 where he received . (Ex. K.1) In March of that school year, the teacher reported that . He was learning to with and but . He was with .
Although he had , he has
. . He had
. H had . He was
. He was
.
He had teacher thought he should be in a and that’s
. , (Ex.
K, L) In April 2014, the parent’s obtained an evaluation from the . (Ex.
L) The evaluator recommended or and from a trained provider that uses . In addition, she recommended to address such as and a by a or a in the school setting to create . (Ex. L.9-10) The DOE conducted the and his and created a in June of 2015
but
Provided no that year. (Ex. N) Thereafter, in the 2015-2016 SY, he received services in a center in for four months paid for by Medicaid..
In October 2016, he was attending and an IEP was created. It did not contain any provision for or other similar services. In November 2016, the mother requested an evaluation to determine whether the he had been receiving should continue.
His most recent IEP, which has an implementation date of October 6, 2016, had a disability classification of and an program recommendation in with related services of on a basis. (Ex. E.16). It does not provide for any or services. (Ex. E)
In the DOE’s opening statement, the DOE representative opposed an IEE to be performed by the evaluator selected by the parent since the DOE contended that the evaluator was not independent. The DOE did not offer to provide an evaluator of its own or offer any evidence that was not appropriate. The parent stated that she was told by her attorney to ask for an IEE to assess his need for although she knew he needed it and that it would be effective based upon the recommendation in the prior evaluation in 2015 as well as his prior experience with it in the two prior years. She thinks that without , the child will continue to regress even further as he has during this SY.
The parent described the in his current class setting consistent with descriptions on his IEP. He has and . (Ex. E.1) . . (Ex. L.5)
. (Ex. E.1-2) .
. (Ex.E.1)
. (Ex. E.2)
. (Ex. E.2 .
.
. (Ex. E.2) .
She stated during the time when the child was receiving , the child made progress. The DOE did not refute that evidence.
CONCLUSIONS OF LAW.
Under the IDEA, a child with a disability is entitled to a free and appropriate public education (“FAPE”), which includes special education and related services, provided at public expense, and that meets the standards of the state education agency.
20 U.S.C. § 1400(d)(1)(A); 20 U.S.C. § 1401(9). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with an individualized education program (“IEP”). 20 U.S.C. §1401(9)(D); 34 C.F.R. 300.320.
A school district offers a FAPE by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.
However, the IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP. The statute ensures an "appropriate" education, not one that provides everything that might be thought desirable by loving parents. Additionally, school districts are not required to "maximize" the potential of students with disabilities. Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), argued January 11, 2017, and decided March 22, 2017 did not change this standard.
While the DOE must provide the child with and opportunity that permits the child to receive educational benefit, the Court held that the IDEA did not “guarantee any particular level of education” and simply reflects the unobjectionable proposition that the IDEA cannot and does not promise “any particular [educational] outcome.” Id.at 192. “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. It is the DOE’s burden to show that FAPE was provided including its burden to show that it performed all appropriate evaluations needed by the child. It is also the DOE’s burden to defend its evaluations or to show why additional evaluations are not needed. The DOE did not commence an action to defend its own evaluations and concedes that it denied the parents request for an IEE because it was unfamiliar with the type of evaluation requested by the parent---an assessment and because it thought that the evaluator recommended by the parent was not independent. The parent believes based upon the advice of her lawyer that that an IEE is the correct remedy at this time although she knows that he requires so he does not regress.
This case presents the unusual issue of whether the parent’s hearing request, which reserves the right to challenge the DOE’s failure to provide a FAPE and is limited to a request to grant an IEE at DOE expense, should be granted or whether another remedy is more appropriate given the child’s circumstances and the parents allegation that she intends to challenge whether FAPE was provided and to seek compensatory educational services at a future time for the 2015-2016 and 2016-2017 SYs. (Ex. A.3)
As stated above, the DOE denied the parent’s request for and IEE without defending its own evaluations. In most cases that would lead to a conclusion that an IEE is needed and should be ordered. But in this case there is no need to conclude that an IEE is needed to assess whether should be provided to this child. In April 2014, the parent’s obtained an independent evaluation from the . (Ex.L) The evaluator recommended or and from a trained provider that uses to . In addition, she recommended to address his such as and a by a or a in the school setting to create . (Ex. L.9-10) The DOE conducted the and his and created a in June of 2015 as recommended by the private evaluator but provided no that year. (Ex.
N) In the 2015-2016 SY, he received limited services in a center in for four months paid for by Medicaid. According to the evidence presented, the child made progress when he was receiving services. Accordingly, there is no need now to conduct another IEE at a cost of to determine whether the child would benefit from . This is true where, as here, the evidence shows that he should get to address that were identified by the and where the evidence also shows that are continuing and getting worse in the absence of .
When the child was receiving in the past, he did not have a . Since that time, the DOE created a as recommended by the 2014 evaluator. This provides for .
(Ex. N.2) The child’s , in conjunction with , should provide that child with an opportunity to obtain an educational benefit. As discussed with the parent at the hearing, she believes that the child can handle
. She believes that more would be too tiring for the child. Those hours should be added to his IEP.
She would also like him to get . While
hours will not be ordered to be added to his IEP, those hours will be awarded as compensatory services as described below.
A hearing officer has broad discretion in fashioning a remedy and may fashion an appropriate remedy, and award compensatory education to make up for denial of a FAPE.
Id. Compensatory education may be awarded to students under the age of twenty-one.
In general, compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See Wenger v. Canastota, 979 F. Supp. 147, 151
(N.D.N.Y. 1997). The purpose of a compensatory education award is to remedy a denial of a FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (holding that compensatory education is a remedy designed to “make up for” a denial of a FAPE, and awards should be designed to "appropriately address the problems with the IEP"); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)
(holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"); Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10-
052. For an eligible student, such as in the child instant case, there is no gross violation requirement.
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)
("[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"). Courts have found that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address (the student's)
educational problems successfully." Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir.
2007).
Parent intention to request compensatory for the 2015-2016 and
2015 SYs at a later time will be addressed now to avoid any lengthy delay in getting this child the he requires.[3]
As the case law reflects, the purpose of compensatory education is not to guarantee a particular result or level of student achievement, but instead to fashion a remedy that attempts to place a student in the position he or she would have occupied had the public school complied with its obligations under the IDEA. One measure here can be gleaned from the number of hours of the child has received in the past that enabled him to make progress. He had been receiving in and in . Had been placed on his IEP in some fashion in , he would have had the opportunity to make meaningful progress. Here since will be placed upon his IEP as discussed above, he should be given compensatory for the time he missed in a reasonable amount given his young age. Accordingly based upon a SY, the child should receive an additional of compensatory education per week for a total of for 20 months (from November 2015 through June 2017) to be utilized at the discretion of the provider and the parent to be paid for by the DOE through the issuance of a RSA at an enhanced rate of between and per hour.
ORDERED that:
1) The parent’s request for an IEE is denied.
2) The DOE shall reconvene the CSE so that it can add to the child’s IEP to be paid for through an RSA at an enhanced rate of between and per hour upon proof provided by the provider that the rate they are charging is their usual and customary rate for .;
3
The parent’s attorney’s intention to delay and prolong these proceedings for months just to wait for an IEE is questionable given the fact that has already been recommended and implemented for this child with success (Ex. L) and November 2016 through June 2017 to be paid for through an RSA at an enhanced rate of between and per hour upon proof provided by the provider that the rate they are charging is their usual and customary rate for .
Dated: June 11, 2017
JUDITH T. KRAMER, ESQ.
Impartial hearing officer JTK:
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
None
Footnotes
[1] The parent references the 2015-2016 SY and reserved the right to seek compensatory education services for that school year.
[2] The parent’s impartial hearing request reserved the parent’s right, inter alia, to contest the child’s IEP at a later time but the request for an evaluation permits a consideration of whether that IEP was inappropriate because it did not provide services.
[3] The DOE shall provide the child with for 20 months to compensate him for denying the child from