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FINDINGS OF FACT AND DECISION
Case Number: 167428
Student’s Name:
Date of Birth:
District: I I
Hearing Requested By: Parent
Date of Hearing: October 31, 2017
December 22, 2017
Actual Record Closed Date: March 20, 2017
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 31, 2017
Attorney — Student
(Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 22, 2017
Attorney — Student
Parents
(Via Telephone) — Student
(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 August 3, 2017, after the recusal of another IHO. 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 2014-2015 through the 2017-2018 school years, alleging a variety of FAPE violations. An interim order issued during the course of the hearing, ordering an evaluation for the Student. As relief, the parent is seeking: an independent evaluation; referenced in said evaluation; referenced in said evaluations; I as part of the Student’s program; , to be provided by a
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;
;
;
I
J I
; that the recommendations of and be incorporated into the Student’s next IEP; that the Student be determined to be eligible for services as ; that the Student receive ; that the Student receive
; that the Student receive - ; that the Student shall receive ; that the Student’s case should be deferred to the “Central-based Support Team;” that the Student’s CSE shall recommend I I
DD
L 1 n II I
II I
I
n [11]
; that such school have a placement in a non-approved private school of the parent’s choosing for the 2017-2018 and 2018-2019 school years, including .
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.
(IHO Exh. 2)
FINDINGS OF FACT
The Student is a who attends in . L_
. (Exh. 4) .
(Exh. 7)
~~_j_j_7_~--~-~
. Testing also reveals . The Student’s
evaluation from July, 2016 showed that
.
. The
Student, however,
. (Exh. 4)
.
. .
A evaluation dated October 1, 2016 by indicated that the Student . (Exh. 7) The Student was, however, demonstrated evidence of
.
The Department did not evaluate the Student until November of 2014, and failed to develop an Individualized Educational Program (“IEP”) for the Student prior to January 9, 2015, during the Student’s year. The Student was classified as a
11
, and was recommended for I 11 11
. IHO Craig Tessler held that the DOE
failed to provide a FAPE for the 14/15 and 15/16 school years and ordered and an independent educational evaluation (“IEE”) in the areas of 11 , and a and (Exh. Z). IHO
Tessler also held, “the parent may renew her request for additional compensatory related services, if necessary, in an impartial hearing brought subsequent to the IEE and CSE
review.”
The Student requires a placement in a school with
-
and with instructors who are trained
to address . (Exh. 7) requires
.
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).
In 2017, the Supreme Court addressed a split amongst the circuit courts regarding what the IDEA means when it requires 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 m n m s' test" applied by many courts. Id.
at 1000.
The District conceded FAPE denial for the 2014-2015 through 2017-2018 school years.
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, the parent is seeking: referenced in the evaluation; referenced in said
--==l =--------=--------=-=-=---==--==----=--- evaluation; provided by a
; , to be
I; I
; ; - -_---r=-=--=--=-===-=--==~=-=--=-=---- 7
~ - ,------ - - - -
7 ; that the recommendations of and be incorporated into the Student’s next IEP; that the Student be determined to be eligible for services as a ; that the Student receive ; that the Student receive ; that the Student receive
; that the Student shall receive ; that the Student’s case should be deferred to the “Central-based Support Team;” that the Student’s CSE shall recommend
; that such school have and that all of the Student’s teachers are certified in ; and that, if the Department of Education fails to provide such program within twenty days of the decision date, the Department of Educational shall prospectively fund a placement in a non-approved private school of the parent’s choosing for the 2017-2018 and 2018-2019 school years, including .
Though Petitioner has asked for a great deal of relief, the Department did not object to any of the relief requested. Moreover, there is evidence in the record to support the relief that is requested, though it is appropriate (with respect to certain issues) to characterize the relief in different terms than requested by Petitioner. Accordingly, I will order, in substance, the relief requested, as modified below.
ORDER
As a result of the foregoing, I order the following:
1. The Student shall receive, as necessary, referenced in the current evaluation, and appropriate referenced in said evaluations;
2. The Student’s IEP is hereby modified to include
;
3. The Student’s IEP is hereby modified to include , to be provided
;
4. The Student’s IEP is hereby modified to include
;
5. The Student’s IEP is hereby modified to include
;
6. The Student’s IEP shall reasonably reflect the recommendations of and ;
7. The Student shall be determined to be eligible for services as
;
8. The Student shall be determined eligible for ;
9. The Student receive ;
10. The Student shall receive
;
11. The Student shall receive cc==ccc~--
;
12. The Student’s case should be deferred to the “Central-based Support Team,” which will seek to find for the Student that provides , contains , and will instruct the Student with teachers are certified in
;
13. If the Department of Education fails to provide such program within ninety days of the decision date, the Department of Educational shall prospectively fund a placement in a non-approved appropriate private school of the parent’s choosing for the 2017-2018 and 2018-2019 school years, including .
The Department of Education shall provide compensatory education in the amount of:
A. , to be paid for at a rate of per
hour;
B. Reimbursement/Payment for the for the evaluation;
C.
for both the Student and the parent.
2. All other requests for relief are denied. Dated: April 3, 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 Due process complaint, 7/10/07, 19 pages
B IEP, 1/9/15, 17 pages
C IEP, 12/2/15, 13 pages
D IEP, 5/5/17, 21 pages
E evaluation, 11/14/14, two pages
F evaluation, 11/19/14, seven pages
G , 12/11/14, two pages
H , 12/15/14, six pages
I LJ, 12/15/14, six pages J evaluation, 12/17/14, six pages
K FNA, 1/5/15, one page
L evaluation, 1/13/15, eight pages
M , 12/1/15, seven pages
N evaluation, 7/9/16, five pages
O evaluation, 7/15/16, ten pages
P evaluation, 10/1/16, 24 pages
Q , 10/21/16, 20 pages
R , 10/21/16, 13 pages
S Prior written notice, 11/7/14, two pages
T Letter from _J, 2/26/15, one page
U Letter from parent, 6/7/17, five pages
V Resume of , unidentified date, five pages
W Resume of , unidentified date, two pages
X Resume of , unidentified date, one page
Y Resume of , unidentified date, 13 pages
Z Findings, 6/22/16, ten Pages
AA IEE motion with attachments, 8/4/17, 42 pages
BB Signed subpoena, 8/11/17, one page
CC Signed subpoena, 10/27/17, one page
DEPARTMENT OF EDUCATION
1 Due process complaint, 7/10/17, 19 pages
2 Prior written notice, 5/10/17, three pages
3 review meeting, 10/5/16, one page
4 IEP, 5/5/17, 25 pages
5 LJ evaluation, 7/9/16, five pages 6 evaluation, 7/14/16, ten pages
7 evaluation, 8/30/16, 24 pages
8 L_, 10/21/16, 30 pages
9 progress report, 9/9/16, two pages
10 Findings, 7/22/16, ten pages
Footnotes
[11] I I n, ~ 11 and that all of the Student’s teachers are ; and that, if the Department of Education fails to provide such program within twenty days of the decision date, the Department of Educational shall prospectively fund