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FINDINGS OF FACT AND DECISION
Case Number: 166564
Student’s Name:
Date of Birth:
District: I I
Hearing Requested By: Parent
Date of Hearing: July 28, 2017
September 5, 2017
October 18, 2017
April 16, 2018
Actual Record Closed Date: September 12, 2018
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 28, 2017
ESQ., Attorney — Student
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 5, 2017
ESQ., Attorney — Student
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 18, 2017
ESQ., Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 16, 2018
ESQ., Attorney — Student
Mother — Student
District Representative — DOE
(Via Telephone) — DOE
On the amended Due Process Complaint dated June 22, 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 transition services as
• was supposed to age out of the public school system. The parent alleges that the Department failed to evaluate the Student, classify the Student, and then failed refer the Student to a program that would, in effect, care for
• • when graduated.
remedy, the parents requested two years of extended eligibility, which would entitled the
As a
Student to remain at the Student’s current placement through June, 2019.
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 I I I 11 11 11 11
The Student
was transferred from school to school until about 2014. (131-134)
The Student has attended since 2014. (99) The Student has n - ~
the
Student has received instruction. (105)
-
The Student was not evaluated in connection to the Student’s March, 2017 IEP, which was final IEP. (135) The school district has not referred the Student to any agencies that would accept
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 transition plans, evaluations, and the District’s duty to refer the Student to agency.
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).
As relief, Petitioner requests two years of extended eligibility, and that, during such time, the Student be assigned to (until June 30, 2019).
Petitioner also seeks a comprehensive evaluation report, and a referral to agencies, so that the Student may be placed after the Student leaves
.
While this is broad relief, there is no objection from the Department. Given the circumstances of this case, where the safety of the Student, and public safety, are at risk, the relief will be ordered in full.
ORDER
As a result of the foregoing, I order the following:
1. The Student’s eligibility shall be extended to June 30, 2019;
2. The Student shall be placed at until such date;
3. The Department shall conduct a complete evaluation with recommendations for the Student’s placement after graduation within 90
days;
4. The Department shall endeavor to place the Student at _L_JL_J
, for placement after June 30, 2019, within thirty days of the completion of the evaluation. Dated: September 26, 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. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Due process complaint, 6/22/17, seven pages
B Letter, 3/10/17, two pages
C evaluation, 5/1/12, ten pages
D Referral packet, 8/23/16, nine pages
E Transmittal form, , 26 pages
F determination , 9/1/16, one page
G Determination , 9/9/16, two pages
H application, 5/26/17, 24 pages
I application revised, 5/26/17, two pages
J , 4/2017, 13 pages
K chart, unidentified date, five pages
N Progress Report, 12/17 through 3/18, nine pages
DEPARTMENT OF EDUCATION
1 1 IEP, 3/9/17, 18 pages
2 IEP, 4/13/16, 18 pages
3 Notice, 12/22/16, three pages
4 Notice, 3/10/16, three 5 pages
5 Minutes, 3/9/17, two pages
7 Minutes, 4/13/16, two pages
7 Prior written notice, 3/30/17, four pages
8 evaluation, 8/21/16, four pages
9 update, 3/20/16, two pages
10 update, 1/23/17, one page
11 assessment, 1/22/16, two pages
12 Quarterly progress report, 6/14/15, nine pages
13 Quarterly progress report, 3/13/16 and 6/11/16, nine pages
14 21report card, 2015-2016, four pages
15 report card and transcript form, 24 2016-2017, one page
16 Proposed IEP goals, 2015-2016, two pages
17 Transition planning form, 4/12/16, three pages
18 Transition planning form, 3/17, two pages
19 Credit requirements, 4/5/16, one page
20 summary, 11/15, two pages
21 Correspondence, 8/23/16, one page
22 Correspondence, 6/16/16, one page
23 checklist, 4/26/16, three pages
24 IEP team efforts document, 4/26/16, three pages
25 Response, 4/26/16, one page
26 notification, 6/29/15, seven pages
27 notification, 7/30/15, three pages
28 notification, 8/7/15, five pages
29 notification, 8/26/15, three pages
30 notification, 9/16/15, 14 pages
31 notification, 9/28/15, 14 pages
32 notification, 9/29/15, eight pages
33 ,
9/24/15, three pages
34 Request, 6/6/16, two pages
35 notification, 8/29/16, 41 pages
36 notification, 1/23/17, 15 pages
37 notification, 2/1/17, five pages
38 notification, 2/2/17, nine pages
39 notification, 2/3/17, nine pages
40 notification, 2/8/17, three pages
41 notification, 2/10/17, two pages
42 notification, 5/4/17, one page
43 summary, 3/8/17, four pages
44 summary, 3/9/17, four pages
45 IEP, 3/10/15, 16 pages
46 Notice of IEP meeting, 2/6/15, three pages
, 3/10/15, three pages
48 Social update, 2/10/15, two pages
49 Educational assessment, 12/18/14, two pages
50 update, 3/10/15, one page
51 summary, 11/14, two pages
52 , 1/6/15, five pages
53 notification, 3/8/15, three pages
54 notification, 3/15/15, four pages
55 notification, 3/21/15, three pages
56 notification, 4/12/15, five pages
57 _ J _, 1/5/17, 13 pages 58 form, 3/9/15, two pages
59 , 3/10/15, five pages
60 , 3/10/15, five pages
61 IEP team efforts document, 3/10/15, three pages
62 Checklist, 3/10/15, three pages
63 Response, 3/10/15, one page
64 Case detail, 7/1/15, one page
65 Case details, unidentified date, one page