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FINDINGS OF FACT AND DECISION
Case Number: 160430
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: July 13, 2016
February 15, 2017
April 24, 2017
July 24, 2017
Actual Record Closed Date: September 11, 2017
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 13, 2016
Attorney — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEAED ON FEBRUARY 15, 2017
Attorney (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 24, 2017
Attorney (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEAREDO N JULY 24, 2017
Attorney — Student
Parent (Via Telephone) — Student
District Representative — DOE
I was appointed Impartial Hearing Officer (“IHO”)pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). The appointment was on March 15, 2017, after the recusal of another IHO. Appended to the record are the names of the persons who appeared.
The parent brought this complaint to receive an I.E.E. An amended complaint, dated March 9, 2017, alleges FAPE denial of the Student for the 2014-2015 through 2016- 2017 school years. 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
The Student is a who currently lives outside the District. He is classified as . He attended New York City Public Schools from through to the 2016-2016 year. The most recent IEP in the record is from September 21, 2016, where the Student was recommended for a . That IEP, however, makes reasonably clear that the Student had not been doing well in the program. Despite several years of school, he is , as . as of the date of the IEP, which also indicated that
.
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).
In 2017, the Supreme Court addressed a split amongst the circuit courts regarding what the IDEA means when it requires school districts to provide an "appropriate" level of education to children with disabilities. Endrew F. ex rel. Joseph F. v. Douglas County School Dist. RE-I, 137 S. Ct. 988 (2017). In Endrew F., the Court held that an IEP must be "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Id. at 1001. The Court made clear that the standard is "markedly more demanding than the 'merely more than de minimis' test" applied by many courts. Id.
at 1000.
The District failed to put on a case and therefore conceded FAPE denial for all three years.
REMEDY
Where 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).
The parents requested , to be paid for at a rate up to . The parents also requested reimbursement for the evaluation of Dr. , to be paid for at a rate of . There is no objection from the district, and I agree that the relief requested is reasonable in light of the record. Accordingly, I will order the award as requested.
ORDER
As a result of the foregoing, I order the following:
1. The Department of Education shall provide compensatory education in the amount of:
, to be paid for at a rate of up to per hour;
2. The Department of Education shall pay for the evaluation of Dr. in the amount of . Dated: September 25, 2017
MICHAEL LAZAN, ESQ.
Impartial Hearing Officer ML:
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
STUDENT
A Amended due process complaint, 3/9/17, seven pages
B Original due process complaint, 5/4/16, five pages
C IEP, 9/21/16, 11 pages
D 9/28/15, 12, unspecified number of pages
E IEP, 12/11/13, 13 pages
F letter, 2/1/17, one page
G evaluation, 8/1/16, 24 pages
H evaluation, 9/21/15, ten pages
I evaluation, 11/22/13, seven pages
J Withdrawn
K Withdrawn
L Withdrawn
M Withdrawn
N evaluation invoice, 8/1/16, one page
O affidavit, 8/1/16, two pages
P Request for independent evaluation, 4/14/16, one page
Q Letter from parent, 9/15/15, one page
R recommendations, 1/30/15, one page
S evaluation summary, 5/31/17, five pages