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FINDINGS OF FACT AND DECISION
Case Number: 166838
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 22, 2017
November 1, 2017
June 28, 2018
August 23, 2018
August 27, 2018
Actual Record Closed Date: January 14, 2019
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 22, 2017
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 1, 2017
Attorney — Student
Chairperson's Designee — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 28, 2018
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 23, 2018
Attorney — Student
Parents
Director, (Via Telephone) — Student
(Via Telephone) — Student
Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 27, 2018
Attorney — Student
Parents
Director, (Via Telephone) — Student
(Via Telephone) — Student
Student
District Representative — DOE
On the Due Process Complaint designated above, 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 IEP and program for the 2015-2016, 2016-2017, and 2017-2018 school years, alleging a variety of FAPE violations. As a remedy, the parent requested a wide variety of the relief. 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 eligible for services as a student with . The Student is per assessments conducted in October, 2016 and by more recent assessments by , a witness for Petitioner. (Tr. @ 144-148; P-B).
The Student requires a setting to address . (Tr. @ 113, 117).
The Student’s IEP dated March, 2015 provided no specialized instruction but provided the Student with services, . Due to difficulties in a setting, the Student’s IEP dated February, 2016 and May, 2017, provided for a classroom, with related services of . The Student has made insufficient progress during these school years, and his has deteriorated during these school years, necessitating a major change in the Student’s educational program.
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 of Education did not present any witnesses or evidence, and did not make an opening or closing statement. As a result, I find that the Department of Education has not met its burden, and the Student was denied a FAPE from September,
2016-June, 2018.
REMEDY
Where school 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).
The parent seeks that the Student be placed in a setting that will provide him with access to highly trained professionals who have expertise in helping students with issues, together with . The two witnesses called by Petitioner provided testimony in support of this proposition, and there was no objection from the Department.
The parent also seek compensatory education. 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 are requesting: a) of by a who specializes in providing for children with issues, from , ; b) of , to be provided by ; and c)
of parent , to be provided by . Though
the relief requested is extensive, there is no objection at all from the Department, and the record reflects that the parents have submitted credible testimony in support of every such demand. Under the circumstances, the hearing officer is constrained to grant the relief requested.
ORDER
As a result of the foregoing, I order the following:
1. The Department shall endeavor to place the Student in a setting, with access to access to highly trained professionals who have expertise in helping students with issues, together with training;
2. The Student shall receive: of by a who specializes in providing for children with issues, from , ; of , to be provided by ; and of parent , to be provided by .
Dated: January 28, 2019
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
STUDENT
A Due process complaint, 6/30/17, 15 pages
B IEP, 5/30/17, 17 pages
C IEP, 2/24/16, 11 pages
D IEP, 3/15/15, ten pages
E IEP, 3/27/14, 11 pages
F IEE request letter, 6/30/17, one page
G Request for reevaluation, 5/31/17, one page
H Prior written notice, 5/31/17, five pages
I Request letter, 5/30/17, one page
J Notice, 5/11/17, five pages
K Prior written notice, 3/21/16, six pages
L Notice, 2/12/16, five pages
M Prior written notice, 3/23/15, eight pages
N Notice, 2/25/15, five pages
O Prior written notice, 4/4/14, seven pages
P Assessment planning, 4/2/14, one page
Q Meeting notice, 3/20/14, five pages
R Waiver of IEP meeting, 1/29/14, four pages
S Waiver of IEP meeting, 1/14/14, four pages
T teacher notes, 5/15/17, eight pages
U Measurable goals, 6/17/16, five pages
V Measurable goals, 4/2/16, four pages
W , 2/22/16, two pages
X Measurable goals, 1/24/16, two pages
Y Measurable goals, 10/31/15, two pages
Z , 3/20/15, five pages
AA Student progress report, 3/21/15, two pages
BB evaluation report, 3/27/14, five pages
CC Progress report, 3/25/14, two pages
DD update, 3/24/14, two pages
EE evaluation report, 3/24/14, five pages
FF Progress report, 3/20/14, two pages
GG , 3/29/11, one page
HH , 1/16/11, two pages
II Report card, 16/17, two pages
JJ Resume of , unidentified date, four pages
KK Resume of , unidentified date, six pages
LL Affidavit of , unidentified date, one page
MM Affidavit of , unidentified date, three pages
NN evaluation, 1/17/18, 16 pages
OO evaluation, 10/28/17, 20 pages
PP Teacher report, 5/22/18, three pages
QQ Teacher report, 12/5/17, three pages
RR Teacher report, 12/5/17, three pages
SS IEP, 2/7/18, 15 pages
TT letter, unidentified date, nine pages
UU Amended demand, 3/26/18, 19 pages