New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No.: 176115 Student's Name: Date of Hearing: Various Hearing Officer: Michael Lazan, Esq.

On the Due Process Complaint dated September 5, 2018, 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(s) in regard to the 2018- 2019 school year. 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.

FINDINGS OF FACT

There are no facts in dispute. The Student is a -year-old boy with developmental delays. The Student is nonverbal and non-ambulatory, and has been diagnosed with West syndrome, an epileptic disorder that causes seizures, developmental delays, and hypotonia. The

Student requires twenty-four hour monitoring and administration of oxygen during epileptic episodes, as well as frequent oral feedings. The Student presents with significant delays in cognitive skills, receptive language skills, expressive language skills, gross motor and fine motor skills, visual perceptual skills, visual perceptual motor skills, and activities of daily living. The

Student was not offered a placement for 2018-2019 school year. The Student benefits from SEIT services, physical therapy services, occupational therapy services, speech and language therapy services, and vision services.

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. 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 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 Department did not present a case. As a result, the Department I find that the Department denied the Student a FAPE.

In regard to relief, the parent seeks compensatory education. 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).

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 compensatory services equal to: 230 two hour sessions of

SEIT; 230 sessions of physical therapy; 230 sessions of occupational therapy; 230 sessions of speech-language therapy; and 92 sessions of vision therapy, all to be provided at the provider's current rate. Such services correspond to the date of the closing arguments in this case. They also seek one two hour sessions of SEIT per week; physical therapy, 5x60 per week; occupational therapy, 5x45 per week; speech and language therapy, 5x30 per week; and vision therapy, 2x30 per week. These services correspond to the time period starting with the date of the final transcript in this case. Parent requests that these services end when the Department of Education starts to provide these services. There was no objection to this request. Under these circumstances, I conclude that the requested relief is appropriate and order it as requested, except that the relief relating to the time period starting after the final date of hearing shall run to the issue date of this decision.

ORDER

As a result of the foregoing, I order the Department of Education to reimburse/pay for the parent for the following services for the Student:

1. Compensatory education in the form of: 230 two hour sessions of SEIT; 230 sixty minute sessions of physical therapy; 230 sessions of forty-five minutes of occupational therapy; 230 thirty minute sessions of speech-language therapy; and ninety-two thirty minute sessions of vision therapy, all to be provided at the provider's current rate;

2. Compensatory education in the form of: SEIT services two hours per week; physical therapy, 5x60 per week; occupational therapy, 5x45 per week; speech and language therapy, 5x30 per week; and vision therapy, 2x30 per week. The calculation of such hours shall begin with the last day of hearing, and end on the date of this decision, or the date that such services were provided to the Student, whichever is sooner. All such services shall be provided at the provider’s current rate.

Dated: February 5, 2020 ACRD: February 5, 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.