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FINDINGS OF FACT AND DECISION
Case Number: 159585
Student’s Name:
Date of Birth:
District: 11
Hearing Requested By: Parent
Date of Hearing: February 9, 2016
February 10, 2016
May 31, 2016
February 8, 2017
June 14, 2017
August 8, 2017
August 22, 2017
October 3, 2017
November 21, 2017
Actual Record Closed Date: February 1, 2018
Hearing Officer: Martin Kehoe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 9, 2016
ESQ., Attorney — Student
Chairperson’s Designee, — DOE
Committee on Special Education (DID NOT APPEAR) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10, 2016
ESQ., Attorney — Student
Chairperson’s Designee, — DOE
Committee on Special Education (DID NOT APPEAR) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 31, 2016
ESQ., Attorney — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 8, 2017
ESQ., Attorney (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 14, 2017
ESQ., Attorney (Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 8, 2017
ESQ., Attorney (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 22, 2017
ESQ., Attorney — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 3, 2017
ESQ., Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 21, 2017
ESQ., Attorney — Student
District Representative — DOE
Introduction — DOE
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student.
A complaint notice was filed on January 19, 2016. An amended complaint notice was filed on April 20, 2016. A pendency hearing was held on February 10, 2016, and I issued a pendency order. A hearing was held on May 31, 2016; February 8, 2017; June 14, 2017; August 8, 2017; August 22, 2017; October 3, 2017; and November 21, 2017.
Parent’s Position
In the complaint notices, the Parent alleges that, for the 2015-2016 school year (“SY”), the District failed to provide the Student with, inter alia, a Free Appropriate Public Education (“FAPE”) and violated his and the Parent’s rights under the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. § 1400, et. seq.
Further, the DPC alleges that the District will fail to implement the Student’s right to stay-put services pursuant to 20 U.S.C. § 1415(j). As this case spanned from January 19, 2016 through August 9, 2017, the scope of relief extends beyond the 2016-2017 school year relative to the Student’s stay-put entitlement. Tr. 60.
District’s Position
At the hearing, the District did not put on a case. Tr. 58. The parties agreed to the remedy requested below, which puts into place the requirements of the January 19, 2016 Order of Pendency, minus any services already provided between the time the DPC in this case was filed up and through August 9, 2017, when anew DPC was filed. Tr. 60-63.
Student History
The Student has been diagnosed with . (Ex.s. A, C, E, F).
~-,, 7- n-~
Due to the Student’s needs, he requires
a program of related services, and other supports. (Exs. A, C, E-F).
He has been in need of services for several years.
Procedural History
Effective January 19, 2017, a pendency order was issued directing the District to provide the following services pursuant to stay-put placement:
1.
;
2.
;
3.
;
4.
at either paid directly to the provider or reimbursed to the parent.
See Order on Pendency dated January 19, 2016 (Ex. B).
Legal Background
The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”).
20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:
- (A) have been provided at public expense, under public supervision and direction, and
- (B) meet the standards of the state educational agency,
- (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and
- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9). 1 A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs.[20] U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).
7
The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).
In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.
Analysis
The District bore the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the DPC. N.Y.
Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No.
(“SRO No.”) 16-028; 13-200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District).
See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir.
May 20, 2016).
In compensatory education cases, the burden of proof as to liability and remedy falls on the district; when, as here, there is a concession of FAPE. SRO No. 14-014. See also,
SRO 16-033.
In this case the District rested without introducing evidence and conceded it failed to offer the Student a FAPE for the SY at issue. Factual allegations in the DPC for which the District bears the burden of proof are deemed admitted if the District fails to address them at the hearing. See SRO No.15-011 (where District conceded and failed to address any allegations, it was deemed to admit deficiencies in IEP); SRO No. 14-179 (same); SRO No. 01-044 (same).
Compensatory Education
Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and. . . mould each decree to the necessities of the particular case”)
(quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota , 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].
In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award 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"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]).
Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007]
[holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Parents of Student W. v.
Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014.
It is therefore ORDERED
a. The District denied the Student aFAPE for the 2015-2016 school year;
b. The District violated the Student’s right to pendency.
c. Within 30 days of this decision the District will calculate the following:
i. The number of hours of services in each of the following categories that the student was owed pursuant to pendency during the period between January 19, 2016 and August 30, 2017 (81 weeks) (the “Compensatory Time Period”) based on the pendency
order
ii. The number of hours of services in each of the above categories that the District delivered and/or funded during the Compensatory Time
Period.
d. At the end of 30 days, the District will award a bank of hours of at a reasonable market rate by subtracting the number of hours of service provided and/or funded from the number of hours owed during the Compensatory Time Period as per paragraph (c). The difference for each service will constitute the compensatory bank for .
e. The District will fund compensatory banks of at reasonable market rates, which may exceed (or be less than) any rate paid under pendency. The
Parent will select the providers.
f. Further, upon submission of proof of payment and invoices documenting services, the District will also reimburse the Parent for any orall expenses relative to any she purchased out of her own funds during the Compensatory Time Period. This amount will be deducted from the bank of compensatory services.
Dated: February 8, 2018
MARTIN KEHOE, 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.
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 Notice, 2/1/18, 18pp
B , 2/1/18, 5pp
C Affidavit of Parent, 2/1/18, 3pp
D Regulation of the Chancellor, 2/1/18, 6pp
E IEP, 5/29/14, 26pp
F IEP, 6/29/15, 14pp
Footnotes
[20] U.S.C. § 601(26).