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AMENDED FINDINGS OF FACT AND DECISION
Case Number: 159630
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: June 13, 2017
Actual Record Closed Date: June 14, 2017
Hearing Officer: Judith T. Kramer, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 13, 2017
Parents
Parents
Speaking Interpreter — Student
DOE Representative — DOE
— DOE
Introduction
On May 13, 2017 an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the impartial hearing request filed by the parent alleging the failure of the DOE to provide FAPE to (“the child“) for the 2014-2015, 2015, 2 16 2016-2017 school years (SY).
The impartial hearing was held at the NYC Department f Education located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 12:00 p.m. A list of Exhibits admitted into evidence is attached hereto.
Background.
The child is . She is classified as . (Ex. 2) She has a and . (Ex. B.12.14.) She has not been mandated to receive any or in the form of or any other from 2014 to the present. The parents’ hearing request listed a host of various types of relief but at the hearing the parents’ attorney indicated that the DOE agreed to provide the child with many items on the list. The only issues remaining are: 1)
whether the parent is entitled to have the May8, 2017 IEP translated into the ; 2)whether the child is entitled to receive compensatory ; and 3) whether the child is required to receive compensatory ..
The Parent’s Position
The parent contends that the child was denied a FAPE for the 2014-2015, 2015- 2016 and 2016-2017 SYs because she was denied and on her IEP.
The parent further contends that she is entitled to receive the May 8, 2017 IEP translated into .
The DOE’s Position
The DOE chose not to contest the Parents’ requests. It submitted documentation that essentially supports the parents’ claims.
Findings of Fact
The child is and is dominant in the although she speak as well. She is in the , attends a and is in a program. She is mandated to receive . (Ex. 2.5-6) In 2015, she was and
. (Ex. 2.8)
In July 2016, the parent obtained an IEE. According the evaluator who administered the assessment, her were assessed to be . He thought that would have been a good idea and it should be placed on the IEP. The current IEP contained very little to address her issues. He thought that the child should receive some amount of to compensate for the years in which she received no .
The evaluator administered with regard to the child’s . He found that ; she had ;
;
. (Ex. B.12) He opined that she had and has . He also stated that according to her ,
, .
. He stated that she could definite benefit from a e.g. , among many others. (Ex. B.25) He opined that the child should have been getting and it should have been mandated on her IEP. He thought that the child could progress to the within the next few years and should be getting
1
to compensate for the time during which she was receiving no .
1 It was stated that the child will be attending a NYS approved private school commencing in July 2017 and should be getting more there. The evaluator stated that is adequate but he said that the should determine the weekly hours with the parent.
Finally, the mother testified that she is unable read English. She speaks only and can read some . The father testified that he can read
. Both parents stated that they need the IEP of May 8, 2017 to be translated into so that they can understand what is being said and recommended for their child.
CONCLUSIONS OF LAW
Under the IDEA, a child with a disability is entitled to a free and appropriate public education (“FAPE”), which includes special education and related services, provided at public expense, and that meets the standards of the state education agency.
20 U.S.C. § 1400(d)(1)(A); 20 U.S.C. § 1401(9). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with an individualized education program (“IEP”). 20 U.S.C. §1401(9)(D); 34 C.F.R. 300.320.
A school district offers a FAPE by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.
However, the IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP. The statute ensures an "appropriate" education, not one that provides everything that might be thought desirable by loving parents. Additionally, school districts are not required to "maximize" the potential of students with disabilities . Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), argued January 11, 2017, and decided March 22, 2017 did not change this standard.
While the DOE must provide the child with and opportunity that permits the child to receive educational benefit, the Court held that the IDEA did not “guarantee any particular level of education” and simply reflects the unobjectionable proposition that the IDEA cannot and does not promise “any particular [educational] outcome.” Id.at 192. “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. It is the DOE’s burden to show that FAPE was provided. Here, the DOE conceded that it did not meet its burden and chose not to call any witnesses although t did provide some exhibits that were helpful in reaching this decision.
A hearing officer has broad discretion in fashioning a remedy and may fashion an appropriate remedy, and award compensatory education to make up for denial of a FAPE.
Id. Compensatory education may be awarded to students under the age of twenty-one.
In general, compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See Wenger v. Canastota, 979 F. Supp. 147, 151
(N.D.N.Y. 1997). The purpose of a compensatory education award is to remedy a denial of a FAPE. See P. v. Newington Bd.of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (holding that compensatory education is a remedy designed to “make up for” a denial of a FAPE, and awards should be designed to "appropriately address the problems with the IEP"); see also 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"); Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10-
052. For an eligible student, such as in the child instant case, there is no gross violation requirement.
In fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and … 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.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (emphasis added); see also Newington Bd. of Educ., 546 F.3d at 123; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)
("[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"). Courts have found that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address (the student's)
educational problems successfully." Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir.
2007).
The testimony of the who admittedly is not an , was helpful in determining that the child should have had mandated on her IEP to address her . He did not give an estimate of the number of hours the child should receive as compensatory but the parent’s attorney agreed that was adequate. The DOE did not consent, but did not object to this number. Accordingly, the child shall receive services through an RSA or if that is not feasible, at a rate described below in the order.
The ’s testimony also supports an award of compensatory . He opined that the child has a . But, he was very clear that if she had been receiving , she was very capable of
. He
did not give a definitive number of hours of compensatory , but opined that , would help the child advance. He also though that the child should receive . The parent’s attorney agreed that was adequate. The
DOE did not consent, but did not object to this number. Accordingly, the child shall receive at a rate described below in the order.
Finally, the parent was entitled to receive a written translation of the May 8, 2017 IEP. The DOE did not object.
ORDERED that:
1) The DOE shall provide the parents with a written translation of the May 8,2017 IEP;
2) The DOE shall provide an RSA for at the state rate. If the parent cannot find an provider who accepts the state rate, they can find an who will provide the services at an extended rate not to exceed per hour u[on proof that such extended rate is their usual and customary rate;
3) The DOE shall pay for at an extended rate not to exceed per hour. Dated: June 16, 2017 Original Decision Rendered: June 15, 2017
JUDITH T. KRAMER, ESQ.
Impartial hearing officer JTK:
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
DOE Exhibits
Number Date Document Number of Pages
1 1/22/16 Due Process Complaint 12
2 11/24/15 IEP 10
3 10/22/14 Prior Written Notice 4
4 10/23/14 IEP 17
5 9/9//14 Parent’s Consent for additional testing 1 6 9/20/14 Classroom Teacher’s Student Evaluation 1 7 9/20/14 Classroom Teacher Progress Report 1
8 10/8/14 6
9 10/8/14 Prior Written Notice 4
10 5/8/17 IEP 20
Parent’s Exhibits
A withdrawn
B dated 12/9/16; updated 5/17/17, 30pp.