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FINDINGS OF FACT AND DECISION
Case Number: 165961
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: June 20, 2017
July 19, 2017
Actual Record Closed Date: September 6, 2017
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 20, 2017
(Via Telephone) — Student
District Representative, (Via — DOE
Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 19, 2017
(Via Telephone) — Student
(Via Telephone) — Student
District Representative — DOE
DOE
(Via Telephone) — DOE
On April 20, 2017, the matter of was assigned to me 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, contending that the Student requires a “center-based” CPSE placement. The Department conceded that it denied the Student a FAPE as of May 4, 2017 and offered that the Student receive and as compensatory education.
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 who has been diagnosed as a Preschool Student with a Disability. (Exh. 2) .
. Based on , the Student shows
. Concerns are noted in terms of
.
The IEP dated April 4, 2017 recommended a for the Student, in a program. The agrees with the IEP. (63, 66) Her objection goes to the timeliness of the recommendation. The CSE was not able to immediately place the Student, but offered partial services to the Student until an appropriate center-based program can be found. (Tr. @ 44) The partial services were plus related services of . (Exh. 4) No center-based programs were available in the Spring, 2017.
The Student was accepted into a program at in June, 2017. (Exh. 13)
This program is for a classroom, with . (50) The Student was also accepted into the in September, 2017. (53) This school has classes with sizes of . (53)
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).
There is no dispute that the District failed to implement the Student’s IEP for the Spring and Summer, 2017. As a result, the District is deemed to have denied the Student a FAPE.
RELIEF
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).
Here, the pro se parent did not calculate a compensatory education award.
District proposed for the Student, but the Student was recommended for . The District did not explain how can compensate for . Accordingly, I will draw on my experience as a hearing officer and fashion a remedy. Given that the Student missed approximately of school, I will award the parent with . I will also award the Student the equivalent of
, totaling
.
In regard to the claim for the placement, this was not mentioned by the parent in her closing argument is deemed waived in view of the District’s unrebutted representation that it can implement the Student’s IEP going forward.
ORDER
As a result of the foregoing, it is hereby ordered that the Student shall receive , to be provided by a , and , to be provided by a licensed provider.
Dated: September 20, 2017
MICHAEL LAZAN, ESQ.
Impartial Hearing Officer ML:
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
DEPARTMENT OF EDUCATION
1 Due process complaint, 4/11/17, three pages
2 IEP, 4/4/17, 16 pages
3 Child outcome summary, 4/4/17, nine pages
4 IEP, 3/14/17, 11 pages.
5 evaluation, 11/28/16, six pages
6 , 11/2/16, one page
7 evaluation, 11/2/16, six pages
8 Social history, 11/2/16, four pages
9 Preschool student evaluation summer report, 11/2/16, two pages
10 Consent for initial evaluation, 6/7/16, one page
11 Emails, unidentified date, two pages
12 SESIS events log, unidentified date, one page
13 Program acceptance letter, 6/16/17, one page
14 Due process complaint, 6/10/17, three pages
15 Program acceptance letter, 7/18/17, one page