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FINDINGS OF FACT AND DECISION
Case Number: 173763
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 14, 2018
Actual Record Closed Date: January 14, 2019
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 14, 2018
Parent, Pro Se (Via Telephone) — 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 because of allegations that it did not provide sufficient and . As a remedy, the parent requested 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 District.
FINDINGS OF FACT
is a , at , in the , who is eligible
for services and is recommended for a class, with and . Prior to this school year, attended , where he was evaluated . He was then provided with an Individualized Educational Service Plan
(“IESP”). No evaluation or evaluation was conducted at this time, and no or services were provided to the Student. Despite the IESP, the Student had significant issues during the 2017-2018 school year.
Shortly after IESP was created, his mother contacted Department of Education employees and requested both a evaluation and an evaluation. The Department responded to the Parent's request and these evaluations were conducted in May, 2018. The evaluation showed that . (Exh.
4) The evaluation showed that
Then, a CSE meeting was held, and then an IEP was created for the Student, which included
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, and did not clearly dispute the parent’s position that the Student should have received and services in the IESP from March, 2018. As a result the Department denied the Student a Free Appropriate Public Education (“FAPE”).
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 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 parent is requesting and hours. Since the Student was denied a FAPE from March 19, 2018 until he received and services several weeks into the 2018-2019 school, the Student missed months of services. Accordingly, as compensatory education, the Student should receive of compensatory , and of compensatory , by a provider of the parent’s choice, at a reasonable and customary rate in the community.
ORDER
As a result of the foregoing, I order that the Department pay for of compensatory , and of compensatory , by a provider of the parent’s choice, at a reasonable and customary rate in the community.
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
DOE
1 Due process complaint, 6/20/18, four pages
2 IEP, 6/7/18, 14 pages
3 evaluation, 5/10/18, ten pages
4 evaluation, 5/22/18, nine pages
5 Consent to evaluate, 4/12/18, one page
6 IEP, 3/9/18, eight pages
7 evaluation, 1/16/18, seven pages
8 evaluation, 12/18/17, three pages
9 Classroom observation, 1/12/18, one page
10 Various forms, unidentified date, ten pages
11 Consent for services, 3/19/18, one page