Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No.: 171514 Student's Name: Date of Hearing: Various Hearing Officer: M ichael Lazan, Esq.

The matter of the above student (“the 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 IEPs for the 2016-2017 and 2017-2018 school years. As relief, the parent is asking for, among other things. compensatory education. 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 Department.

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 school 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 school 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. W hile

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 (“FAPE”) “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.’ ” W alczak 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). Allegations regarding FAPE can be characterized as “substantive” or “procedural” violations. W hile school 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 school district bears the burden of persuasion but did not present evidence or witnesses.

As relief, Petitioner seeks: 1) 1920 hours of compensatory instruction in the form of ABA services at the rate of $125 per hour; 2) 142 hours of compensatory BCBA Supervision services at the rate of $250 per hour; 3) 28 hours of parent training at the rate of $250 per hour; 4) 136 sessions of hearing services (thirty minutes sessions) at the rate of $210 per hour; and 5) 209 sessions of speech and language pathology services at the rate of $210 per hour. W here 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, M assachusetts, 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. W hile 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).

Despite the breadth of the parent’s request for services, Respondent did not specifically object to any of this relief, which is adequately supported by Petitioner’s documents and three witnesses. As a result, the request will be ordered in its entirety.

ORDER

As a result of the foregoing, I order the following:

Petitioner/the Student is hereby awarded: 1) 1920 hours of compensatory instruction in the form of ABA services at the rate of $125 per hour; 2) 142 hours of compensatory BCBA Supervision services at the rate of $250 per hour; 3) 28 hours of parent training at the rate of $250 per hour; 4) 136 sessions of hearing services (thirty minutes sessions) at the rate of $210 per hour; and 5) 209 sessions of speech and language pathology services at the rate of $210 per hour.

Dated: M ay 14, 2020 ACRD: M ay 14, 2020

Michael Lazan

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.