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FINDINGS OF FACT AND DECISION
Case Number: 165969
Student’s Name:
Date of Birth:
District: LJ Hearing Requested By: Parent
Date of Hearing: July 10, 2017
August 4, 2017
September 27, 2017
Actual Record Closed Date: February 27, 2018
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 10, 2017
ESQ., Attorney (Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 4, 2017, 2017
ESQ., Attorney — Student
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 27, 2017,
ESQ., Attorney — Student
Parents
Director (Via Telephone) — Student
District Representative — DOE
I was appointed Impartial Hearing Officer (“IHO”) pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). The appointment was on April 17, 2017. 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 for the calendar years of 2014-2015, 2015-2016, and 2016-2017, alleging a variety of FAPE violations. As relief, the parent is seeking services, a deferral to the Central-based Support Team (“CBST”) for placement, a evaluation, an independent evaluation, a an updated and compensatory education in the form of of , of compensatory , and _ _ L_J of compensatory
.
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 who currently attends a school,
. The Student is
--===--~~--- ------=~-=====
For the 2014-2015, 2015-2016, and 2016-2017 school years, the Student was placed in classes. (Exhs. C, G) Testing in Fall, 2016 on the found that
(Exh. 4) The school attempted to retain the Student in the during this time period, but the parent objected, resulting in the Student advancing. (Tr. @ 59) The Student’s IEP dated November 15, 2016 then recommended a , with a , with , , and .
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.
In 2017, the Supreme Court addressed a split amongst the circuit courts regarding what the IDEA means when it required school districts to provide an "appropriate" level of education to children with disabilities. Endrew F. ex rel. Joseph F. v. Douglas County School Dist. RE-I, 137 S. Ct. 988 (2017). In Endrew F., the Court held that an IEP must be "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Id. at 1001. The Court made clear that the standard is "markedly more demanding than the 'merely more than de minimis' test" applied by many courts. Id.
at 1000.
By not presenting any witnesses or arguing that there was a FAPE denial during closing argument, the District conceded FAPE denial for the school years in question.
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 - ------------ (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).
The Department submitted a closing statement in this case, but did not object to any of the parent’s requests for compensatory education. Since the FAPE deprivation period consists of school years, I agree with the parent that the request for compensatory services is reasonable. The Department also did not object to the parent’s request for evaluations or L_ services. It is incumbent on the Department to object to the parent’s requests if the Department seeks a hearing officer to closely scrutinize those requests. On this record, the parent’s requests for relief are sufficiently reasonable and will be ordered in the absence of an objection save the parent’s requests for attorneys fees, which I do not have jurisdiction over. In regard to the parent’s requests for relief that were not mentioned in the parent’s brief, I consider those requests withdrawn, including the request for deferral to the Central-Based Support Team.
ORDER
As a result of the foregoing, the following is ordered:
1. The Department shall provide the Student with L_ services for the summer, 2018;
2. The Department shall pay for an evaluation, provide the Student with an updated , and provide the Student with an updated L_;
3. After completion of the evaluations or by May 31, 2018, whichever is sooner, the Department shall convene a IEP team to develop the Student’s IEP in full accord with legal obligations to address the Student’s needs, provide for an appropriate program, and provide the Student with appropriate goals (the Department shall also invite parent’s counsel to the meeting);
4. The Student shall be provided with of compensatory at an “enhanced rate,” of compensatory at an “enhanced rate,” and of at an “enhanced rate;”
5. The Student shall be provided
.
Dated: March 13, 2018
MICHAEL 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.
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
A Evaluation, 7/2/13, 47 pages
B Waiver of IEP Meeting, 3/14/14, one page
C IEP, 9/17/14, ten pages
D Assessment, 10/16/14, one page
E I I Report, 1/12/15, one page
F _ J _ J Report, 8/24/15, one page
G IEP, 10/7/15, 11 pages
H Evaluation, 7/26/16,
13 pages
I Letter from Parent, 10/27/16, one page
J IEP, 11/15/16, 23 pages
K Report Card, 12/6/16, two pages
L Report Card, 4/28/17, eight pages
M Progress Report, 6/12/17, one page
N Due Process Complaint, 4/14/17, eight pages
DEPARTMENT OF EDUCATION
1 Due Process Complaint, 4/14/17, nine pages
2 IEP, 10/7/15, 11 pages
3 IEP, 9/17/14, 12 pages
4 Evaluation, 8/20/16, 20 pages
5 Evaluation, 11/2/16, 12 pages
6 Progress Report, 11/8, three pages
7 , 9/2/16, five pages
8 Teacher Interview Form, 9/20/16, three pages
9 Checklist, Unidentified date, one page
10 Notice, 11/2/16, three pages
11 Prior Written Notice, 12/2/16, three pages
Footnotes
[20] U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).