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FINDINGS OF FACT AND DECISION
Case Number: 145211
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: July 11, 2013
September 13, 2013
April 29, 2014
April 24, 2015
June 3, 2015
September 21, 2015
September 30, 2015
November 2, 2015
Actual Record Closed Date: November 25, 2015
Hearing Officer: Roslyn Roth, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 11, 2013
Attorney — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 13, 2013
Attorney (Via Telephone) — Student
District Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 29, 2014
Attorney — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 24, 2015
Attorney — Student
Student
Representative — DOE
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 3, 2015
Attorney — Student
Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 21, 2015
Attorney — Student
Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 30, 2015
Attorney (Via Telephone) — Student
Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 2, 2015
Attorney — Student
Representative — 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 July 1, 2013, and as amended on September 24, 2013, I was appointed to hear this matter. Case nos. 145211 and 155652 were consolidated June 23, 2015 and on November 5, 2015, a second order on consolidation was issued which consolidated case no. 157939 with 145211 and 155652.
The hearing took place over the following dates: July 11, 2013, September 13, 2013, April 29, 2014, April 24, 2015, June 3, 2015, September 21, 2015, September 30, 2015, and November 2, 2015.
The Parent was represented by counsel, the Department of Education, (“DOE”)
presented its case through a District representative. The parent asserts that the student was denied appropriate services for the following school years: 2013-2014, 2014-2015 and 2015-2016. The parent submitted 44 exhibits, “A-RR”. The DOE submitted 8 exhibits, “1-8”. (List of Exhibits annexed hereto as “Attachment A”).
FINDINGS OF FACT
On November 2, 2015, after a review of the DOE’s records, it was determined that the 2014-15 and 2015-6 IEPs were not provided to the parents. Accordingly, under these circumstances, it was conceded that the student was denied FAPE for the 2014-2015 and the 2015-2016 school years. Additionally, the DOE conceded the student was denied FAPE for the 2013-2014 school year. As a result, the parents have withdrawn the following claims without prejudice: (a) claims regarding for the 2013-2014, 2014-2015 and 2015-2016 school years; and (b) claims for compensatory and . The parents further withdraw, without prejudice, their claim regarding . (See Transcript dated November 2, 2015 page 5)
The District had no objection to pendency being based upon Hearing ’s decision, but objected to the parents’ withdrawal of their claims be without prejudice.
(See Exhibit B, Transcript dated November 2, 2015 page 5) The student, therefore, was entitled to the services that constituted his last agreed upon placement since the due process complaint in case number 145211 was filed. As a result of the inability to locate service providers, there was a lack of services. The student, although entitled to receive and , did not receive such services.
CONCLUSION OF LAW
The parents seek compensatory services based on a lack of services to the student that were ordered by a prior hearing officer’s decision. 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"]; 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 parents’ request for continued services as set forth in the prior hearing officer’s decision is sustained.
The withdrawal without prejudice is appropriate as testimony had not been heard regarding the withdrawn claims and although documentary evidence had been submitted by both parties, the record had not been developed.
ORDER:
1. The Department of Education (“DOE”) concedes that it has not provided the student with a Free Appropriate Public Education (“FAPE”) for the 2013-2014, 2014-2015 and 2015-2016 school years.
2. The services set forth in paragraph 3 constituted the student’s last-agreed upon placement as of the date that the Due Process Complaint (“DPC”) in case number
145211 was filed, and which were ordered pursuant to the student’s interim order on pendency.
3. The DOE will continue to provide the following services for the 2015-2016
school year:
a. ;
b. sessions per week of on a basis;
c. sessions per week of ;
d. sessions per week of ;
e. sessions per week of ;
f. (a) ( ) and
; and (b) ;
g. per week of funded by the DOE;
h. per week of funded by the DOE;
i. ; and
j. .
4. Notwithstanding the DOE’s obligation to provide the foregoing services ( , , ), if the Parents find private providers willing to deliver the and the other referenced related services or , the DOE shall fund those services at the rates charged by the providers if the DOE has not already started providing the services .
5. The student, shall receive (“ ”) hours and hours of , to be used within three years of the date of this order, unless the parents waive their right to the services in writing.
6. The parents have withdrawn the following claims without prejudice: (a) claims regarding for the 2013-2014, 2014-2015 and 2015- 2016 school years; and (b) claims for compensatory and . Dated: December 17, 2015
Rosl
ynRot
h,Esq.
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.
ATTACHMENT A
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Due Process Complaint dated 7/1/13 17 pages
B Amended Findings of Fact and Decision dated 1/14/13 20 pages
C Due Process Complaint dated 6/20/12 12 pages
D Findings of Fact and Decision dated 9/3/10 16 pages
E IEP dated 6/17/10 25 pages
F IEP dated 5/26/11 16 pages
G IEP dated 5/24/12 19 pages
H Notice of IEP dated 6/7/12 1 page
I IEP dated 9/3/08 19 pages
J IEP dated 4/5/13 25 pages
K IEP dated 6/26/13 24 pages
L Eval dated 4/16/12 5 pages
M Eval dated 5/1/12 4 pages
N Letter of Recommendation dated 3/16/09 1 page
O Eval dated 3/3/09 4 pages
P Statement of Agreement and Interim Order dated 6/3/10 9 pages
Q Report dated 4/25/11 3 pages
R dated 4/17/12 5 pages
S E-mail dated 6/25/12 1 page
T Progress Report 28 pages
U '12-'13 Curriculum 40 pages
V Progress Report dated 6/22/12 4 pages
W Quarterly Report dated 3/22/12 2 pages
X Quarterly Report dated 6/21/12 1 page
Y Quarterly Report dated 8/1/12 1 page
Z dated 7/5/12 2 pages
AA dated 7/12/12 2 pages
BB dated 7/23/12 2 pages
CC IEP Goals Report 5 pages
DD Report 3 pages
EE School IEP Goals 3 pages
FF E-mail correspondence 9 pages
GG E-mail Correspondence 6 pages
HH Unidentified -- --
II E-mail correspondence 28 pages
JJ E-mail Correspondence 2 pages
KK E-mail Correspondence 14 pages
LL E-mail Correspondence 7 pages
MM E-mail Correspondence 12 pages
NN E-mail Correspondence 11 pages
OO E-mail Correspondence 28 pages
PP E-mail Correspondence 2 pages
QQ E-mail Correspondence 3 pages
RR CSE Meeting Minutes dated 5/24/12 2 pages
DEPARTMENT OF EDUCATION
1 IEP dated 6/26/13 28 pages
2 Student Observation dated 3/4/13 1 page
3 Report dated 2/26/14 1 page
4 Report dated 1/18/13 3 pages
5 Eval dated 5/13/13 5 pages
6 Notice of IEP Amendment dated 2/26/13 3 pages
7 IEP dated 4/5/13 29 pages
8 Events log dated 5/7/12-8/29/13 5 pages
IMPARTIAL HEARING OFFICER
I Amended Due Process Complaint dated 5/5/2015 20 pages