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FINDINGS OF FACT AND DECISION
Case Number: 166287
Student’s Name:
Date of Birth:
District: I I
Hearing Requested By: Parent
Date of Hearing: September 6, 2017
September 29, 2017
November 22, 2017
December 15, 2017
Actual Record Closed Date: March 8, 2018
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 6, 2017
Attorney — Student
Attorney — Student
Advocate, — Student
Mother — Student
Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 29, 2017
Attorney — Student
Student
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 22, 2017
Attorney — Student
Advocate — Student
Advocate — Student
Student
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 15, 2017
Attorney — Student
Attorney — Student
(Via Telephone) — Student
Student
Parents
District Representative — DOE
(Via Telephone) — DOE
(Via Telephone) — DOE
On the Due Process Complaint dated May 24, 2017 in the matter of , I was appointed 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 IEP and program for the 2010-2011 through the 2016-2017 school years, alleging that the school district violated the Student’s right pursuant to “Child Find,” and then arguing that the Student’s IEPs for the 2016-2017 and 2017-2018 school years provided the Student with insufficient services. As relief, the parent is seeking compensatory education and an amended IEP reflecting .
After the hearings, the parties submitted briefs. (IHO Exh. 1, 2)
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 is currently eligible for services as a student with .
. (Tr. @ 162)
. (P-7)
.
.
. On the 11
, the Student scored
. On the
, the Student scored
. Overall, the Student exhibits n
.
From to , the Student attended
. (Tr. @ 162) The Student was in a environment for these years, without special education services. By , in the 2010-2011 school year, the parent felt that the Student had issues with . (Tr. @ 166-170)
. This pattern continued from year
to year until 2012, when the Student received a “Section 504” plan. (Exh. 1) The plan did not provide the Student with any . (Tr. @ 174)
During his classes for , for the 2015-2016 school year, the Student . (Tr. @ 74)
. (Tr. @ 77) Another Section 504 meeting was held for the Student in or about 2015. (Tr. @ 189) This Section 504 plan was different from other plans in that it provided . (Tr. @ 191) In particular,
. (Tr. @ 191-192)
From the years 2013 through 2016, the Student scored
. The Student also scored for the years 2014 through 2015, with for 2016.
In or about 2016, the parent sought a evaluation for the Student. (Exh. 7) After receiving the evaluation, the parent sent the evaluation to the Department and was confused about whether “special education” meant that the Student had to be enrolled in . (Tr. @ 183) The parent was not aware of the due process procedures relating to special education at the time despite contact with a school district representative. (Tr. @ 185) She did not know she was allowed a make a referral to special education. (Tr. @ 207) In 2016-2017, she was provided with procedural safeguards. (Tr. @ 207)
On October 6, 2016, the Student was determined to be eligible for services as a student with 11
. (Exh. A) The Student was recommended for
.
were also recommended.
The subsequent IEPs, dated March and June, 2017, added
. (Exhs. B, C)
An Evaluation, conducted of the Student by the Department on April 6, 2017, found that . (Exh. F) The evaluator recommended
~ U _ ~ ~_ _ L_J _ _ _ _J L_ _ ~ LJ ~ -
.
The Student’s grades ranged from throughout his academic career at
, with
. (Exh. L-2)
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.
1. Statute of Limitations.
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 suggested that it provided the parent with procedural safeguards as part of its standard operating procedures, but did not present a witness to specifically support this claim. The Department pointed out that the parent did state that she was given her procedural safeguards notice on September 20, 2016, but did not rebut the parent’s contention that she did not know of the procedural safeguards prior to that date.
On this record, the accrual trigger date should accordingly be deemed to be September 20, 2016. Alternatively, the trigger date could be deemed to be August, 2016, the date that the Student received the Evaluation. K.H., 2014 WL 3866430, at *15–16. Either way, since the Due Process Complaint was filed within two years of the trigger date, all the claims in this case are subject to the hearing officer’s jurisdiction.
2. Child Find.
The "child find" provisions of the IDEA require each State to have policies and procedures in effect to ensure that "[a]l1 children with disabilities residing in the State ...
who are in need of special education and related services, are identified, located, and evaluated." 20 U.S.C. Sect. 1412(a) (3) (A); 34 C.F.R. Sect. 300.111(a). Child find must include any children "suspected of being a child with a disability under Section 300.8 and in need of special education, even though they are advancing from grade to grade." 34 C.F.R. Sect. 300.111(c) (1).
The Department presented no testimony in regard to the parent’s claims prior to
2015-2016, relying instead on the Student’s report card grades. The Student’s grades were . However, . In the recent Supreme Court decision of Endrew F. ex rel. Joseph F. v. Douglas County School Dist. RE-I, 137
S. Ct. 988 (2017), the Court held that the FAPE standard is "markedly more demanding than the 'merely more than de m n m s' test" applied by many courts. Id. at 1000. A footnote to the opinion warns that: “every child advancing from one grade to the next is not automatically receiving an appropriate education.” Given this language in Endrew F., the school district had an obligation to evaluate this Student, who was struggling in Case No. 166287
English and was ultimately determined to be eligible for services as a Student with a Learning Disability.
3. FAPE.
The standards for the delivery of FAPE, as enunciated in Endrew F., apply a more stringent standard that had been applied previously. Nevertheless, I find that the school
District’s IEP for the Student after he was determined to be eligible were appropriate in light of . The Student was placed in , and the Student was also provided with .
was also offered. The record does not establish that the Student needed . It is hard to see how the Student could have been given more services unless the Student was placed in an inappropriately restrictive self-contained setting. The parent contended that the IEPs did not provide sufficient services to address , but the IEP provides to address that issue. Accordingly, I find that Petitioner’s claims regarding the three IEPs at issue lack merit.
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 parents requested , as per the testimony of the witness . Ms. came across as a particularly thoughtful and intelligent witness, and I find that her testimony met the criteria under the test formulated in Reid. Given also that the claim extends over several school years, I will order that the Student receive , to be provided by at their usual and customary rate.
ORDER
As a result of the foregoing, I order the following:
1. The Department of Education shall provide compensatory education in the amount of ;
2. All other relief requested by the parent is denied. Dated: March 22, 2018
MICHAEL LAZAN, ESQ.
Impartial Hearing Officer ML:
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has aright to obtain areview 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
PARENT
A Parent request for , 10/11/12, one page
B scores, 3/29/16, one page
C Updated scores, 2016, four pages
D report, 9/28/16, 12 pages
E Hearing request, 5/23/17, ten pages
F assessment, 5/11/17, one page
G evaluation, unidentified date, 21 pages
H IEP, 10/2016, 19 pages
I Attendance page,10/6/16, one page
J IEP, 6/2017, 19 pages
K Attendance page, 6/2017, one page
L Procedural safeguards notice, unidentified date, 49 pages
M report, 6/2017, one page
N State Ed document, unidentified date, 20 pages
DOE
1 IEP, 10/2016, ten pages
2 IEP, 3/2017, 12 pages
3 IEP, 6/2017, 13 pages
4 Attendance page, 2016, three pages
5 evaluation, 9/27/16, two pages
6 evaluation, 4/6/17, seven pages
7 , 9/27/16, one page
8 Daily log-ins of service, 9/2016, three pages
9 504 plan, 11/5/15, four pages
10 Parent letter of withdrawal, 10/6/14, one page
11 report, 9/28/16, one page
12 Student report card, 9/2010 to 6/2017, 13 pages
13 report, 8/2016, 21 pages