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FINDINGS OF FACT AND DECISION
Case Number: 157276
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: December 16, 2015
Actual Record Closed Date: December 23, 2015
Hearing Officer: Roslyn Roth, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 16,
2015
Attorney — Student
Parent/Mother — Student
(Via Telephone) — Student
Legal Assistant/ Translator — Student
Chairperson’s Designee, Committee on Special Education — DOE
PROCEDURAL BACKGROUND
This hearing was held pursuant to New York Education Law § 4404(1), 20 U.S.C.
§1415(f), the Individuals With Disabilities Act (“IDEA”). In accordance with the Parents’ Request for the Hearing dated September 4, 2015, I was appointed to hear this matter.
Timely extensions were given. The hearing took place on December 16, 2015. The parent submitted 14 exhibits, “A-N” and called 2 witnesses in support of her position.
The following witnesses testified on behalf of the parent: the parent and the (“ ”). The Department of Education did not offer evidence or witnesses in furtherance of its position. (List of Exhibits annexed hereto as “Attachment
A”).
The Parent was represented by counsel, the Department of Education (“DOE”)
presented its case through a District representative. The parent’s Due Process Complaint alleges that the student did not receive a free and appropriate public education, (“FAPE”)
for the 2013-2014 and 2014-2015 school years. The parent asserts that the student did not make meaningful progress in his special education program and that as a result of the DOE’s failure to provide appropriate services, . In her complaint the parent sought compensatory services in the form of hours of , at a rate of per hour, by the , and a translation of the student ’s June 2014
Individualized Education Program (IEP). At the hearing the parent indicated she received the translation of her son’s IEP and withdrew that requested relief. Accordingly, the sole issue was the parent’s request for compensatory services.in the form of hours of , at a rate of per hour, by the . The
District conceded that it denied the student FAPE for the 2013-2014 and 2014-2015 school years. However, the District asserts that the parent’s requested relief is inappropriate. The District claims that according to the student’s last evaluation, the student is a bilingual student and that has not demonstrated any ability to provide appropriate services to this bilingual student. Additionally, the District argues that a finding that the student was denied FAPE does not, in itself, entitle the parent to the relief. The District asserts that the number of hours requested is inappropriate.
The District requests that the student should be awarded
( ) sessions to be provided by duly qualified special education certified DOE staff.
FINDINGS OF FACT
The student is and is classified as
. For the 2013-2014 and 2014-2015 school years, he attended an . His current classification and placement are not in dispute. Review of the bilingual evaluation performed on 5/12/15 reveals that his fall within the range and that his is in the range. , the student performed on a level in and a level in . The evaluation indicated that the student and that he has
. (Ex L)
The issue for consideration is whether the parent's requested remedy of "additional services" in the form of from is appropriate to remedy the district's denial of a FAPE for the 2013-2014 and 2014-2015
school years.
The student attended a with in a for the 2013-2014 and 2014-2015 school years. The parent testified that she disagreed with the public school placements and believed the student required a . (TR 33) She also testified that she believed her son would benefit from from and that she was seeking the services . She did believe that the from would benefit the student. (TR 37, 39)
The of , testified that the student was evaluated at and that he . She also testified that the student and , and is . He really is the precise kind of student that specializes in working with and that based on her work with him and on what she read about him, can help him. (TR 50)
The witness testified she evaluated the student in July 2015 and that she gave him the , which assessed his . She testified that she also had him , using the , to give her a sense of . Further, she gave him a to assess his . She testified that as a result of the evaluations that she gave the student, she was able to conclude that
. (TR 50, 51)
The witness testified that specializes in providing that is all and . With reference to ’s ability to work with the student who has been identified as bilingual, the witness testified that works successfully with many other bilingual students. Moreover, the witness testified that , because the goal is to . But that based on her prior experience with other bilingual students, she believed would benefit the student. (TR 52)
She testified that she recommended hours per week over a two year school timespan, which translates to approximately hours of services.
(TR 52)
CONCLUSION OF LAW
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (W enger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).
Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a] [1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see E.M. v. New Y ork City D ep't of Educ., 2014 WL 3377162 [2d Cir. Jul. 11, 2014] [noting that "when parents believe the local public school district has denied their child a FAPE, one option available to them is to keep the child enrolled in public school and seek administrative (and, later) judicial review of the child's IEP for the purpose of obtaining compensatory education"] [internal quotations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]
[stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and ...
compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; S.A . v. New Y ork City D ep't of Educ., 2014 WL 1311761 [E.D.N.Y. Mar. 30,
2014]; B.M. v. New Y ork City D ep't of Educ., 2013 WL 1972144 [S.D.N.Y. May 14,
2013], aff'd, 2014 WL 2748756 [2d Cir. June 18, 2014] [finding "no basis for an award of compensatory education" where "the alleged procedural violations ... [we]re not sufficient to support a finding that [the student] was denied a FAPE"]; Student X . v. New Y ork City D ep't of Educ., 2008 WL 4890440 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]). The award of compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, is appropriate if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; A pplication of a Student with a Disability , Appeal No. 09-111 [adding summer reading instruction to an additional services award]; A pplication of the Bd. of Educ., Appeal No. 09-054 [awarding additional instructional services to remedy a deprivation of instruction]; A pplication of a Student with a Disability , Appeal No. 09-044 [awarding "make-up" counseling services to remedy the deprivation of such services].
The purpose of an award of additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M., 2014 WL 3377162; 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. Puy allup 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"]; A pplication of the Dep't of Educ., Appeal No. 11-075;
A pplication of a Student with a Disability , Appeal No. 10052). 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"]; S.A ., 2014 WL 1311761
[compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]; see also Draper v. A tlanta 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 [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"]; Puy allup, 31 F.3d at 1497 ["[t]here is no obligation to provide a day-for-day compensation for time missed"]; A pplication of a Student with a Disability, Appeal No. 13-168; A pplication of the Dep't of Educ., Appeal No. 12-135; A pplication of the Dep't of Educ., Appeal No. 11-132; A pplication of a Student with a Disability , Appeal No. 11-091).
The evidence supports the parents’ claim that the failure of the DOE to provide appropriate services resulted in a lack of educational progress and that the student is entitled to an equitable remedy to compensate him for the lack of appropriate services.
However, I am not persuaded that the provision of hours is an appropriate remedy.
Although the parent’s request for compensatory services in the form of individualized academic instruction is upheld, I find that he is entitled to receive hours per week for the 2013-2014 and 2014-2015 , which amounts to hours as compensatory services for the denial of FAPE. The student may utilize these compensatory hours during the period beginning January 4, 2016 through to and including June 30, 2017.
ORDER:
The student shall receive hours of individualized educational instruction at the , to be provided by ; these hours may be used by the student during the period effective January 4, 2016 through to and including
6/30/17.
The DOE shall fund hours of the student at the at the rate of per hour.
The DOE shall provide
.
At the discretion of the Parent and in consultation with the , the student may receive services on throughout the period of 1/4/16 through 6/30/17.
At its discretion, the DOE shall conduct or fund an evaluation to be conducted within 30 days of the date of this decision to determine whether the student requires to address .
The DOE shall schedule and reconvene a Committee on Special Education (CSE)
meeting within 30 days of receipt of the evaluation to review the student’s 2015-2016 IEP to address the student’s evaluation and the provided by .
The student’s shall provide any assessments conducted of the student to the student’s classroom teacher and related service providers.
The student’s mother shall be given a bilingual contact from with whom she can communicate to allow her to meaningfully participate in the educational service plan
provided by .
The student’s shall consult with the student’s classroom teacher and related service providers to ensure consistency in the student’s educational program.
Dated: January 6, 2016
ROSLYN ROTH, ESQ.
Impartial Hearing Officer RR;
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
A IEP dated 1/29/2013 10 pages
B IEP dated 1/27/2014 18 pages
C dated 11/20/14 4 pages
D IEP dated 12/3/2014 14 pages
E Parent’s Letter dated 12/3/2014 2 pages
F Notice of Triennial dated 10/27/14 1 page
G Parent’s Response dated 11/1/14 1 page
H Request for Add’l Assess dated 11/3/14 1 page
I dated 11/26/14 3 pages
J Student Progress Report dated 12/1/14 2 pages
K Eval dated 2/10/15 3 pages
L Eva dated 5/12/15 22 pages
M IEP dated 6/15/15 16 pages
N Letter from dated 7/9/15 1 page