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AMENDED FINDINGS OF FACT AND DECISION
Case Number: 159857
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 1, 2016
April 4, 2016
Actual Record Closed Date: April 7, 2016
Hearing Officer: Bruce Olinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 1, 2016
Parent (Via Telephone) — Student
DOE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 4, 2016
Parent/Mother (Via Telephone) — Student
(Via Telephone) — Student
District Representative — DOE
— DOE
INTRODUCTION
This document constitutes the Amended Decision and Order of the undersigned, the duly designated Impartial Hearing Officer in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education laws. The New York City Department of Education will be referred to as District or the DOE, the parents as Parents and the child will be referred to as Student.
JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR §
200.5(k).
PROCEDURAL HISTORY
This hearing was requested by a Due Process Complaint on February 18, 2016 by , the parent of student (Parent Ex. A). The nature of the complaint to be addressed in this decision is the Parent’s request for authorization for an enhanced rate ( ) provider for Student for the 2015/16 school year, in the absence of a qualified or appropriate provider at the DOE standard rate. Student attends , a New York State approved non-public school, and was determined eligible for of per week pursuant to an Individualized Educational Service Plan (IESP) dated April 19, 2015, the last agreed-upon IESP (DOE Ex. 2). Although the IESP at issue authorizes the receipt of other services in addition to the , only the authorization for an enhanced rate provider, as well as whether the Student is entitled to compensatory services, is at issue for this hearing.
The undersigned was appointed as Impartial Hearing Officer on February 26, 2016. A Pendency Hearing was held on March 9, 2016. Participating in the Pendency
Hearing were , Parent of , ,, representing the District, and the undersigned Impartial Hearing Officer. The claim for pendency was based on an IEP dated October 28, 2014 (DOE Ex. 1). A Decision and Order on Pendency was issued on March 9, 2016 (IHO Ex. I). Thereafter, hearings were held on April 1, 2016 and April 4, 2016. Participating during the hearing were , Parent, for the DOE, and the undersigned as Impartial Hearing Officer.
The hearing record was closed effective April 7, 2016.
Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
FACTUAL BACKGROUND
Student is a child classified as who
presents with , as well as
. She has . Due to , .
.
In consideration of Student’s disabilities, the aforementioned April 19, 2015 IESP was developed which included, in addition to the of per week, in , and . As noted earlier, only the provision of the is at issue for this hearing and, in particular, Parent’s request for authorization for an enhanced rate provider that she has located to provide the required services for Student, as well as whether the Student is entitled to compensatory services.
PARENT’S POSITION
The Parents allege that Student has been denied a FAPE for the 2015/16 school year due to the failure of the District to provide the Student with a qualified and appropriate provider. Parent further contends that, after efforts were made to locate a provider from the DOE-based provider list, at the standard DOE rate, she has located a qualified private provider for Student. Parent further contends that such provider is the only provider available that she has located who is qualified to provide the services that Student requires. Parent is therefore requesting that the DOE be ordered to pay her selected provider an enhanced rate in order for Student to receive the that she is entitled to.
DISTRICTS POSITION
The District fully concedes the Student’s entitlement to the of per week at issue. The District does not contest the qualifications of the Parent’s provider, nor did the District present or hold forth a specific provider available at the DOE standard rate that it claims is a qualified provider for Student. The District does not, however, concede the entitlement of the Student to a provider at an enhanced rate.
FINDINGS OF FACTS AND CONCLUSIONS OF LAW
Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v.
T.A ., 557 U.S. 230, 239 (2009); B oard of Educ. of the Hendrick Hudson Cent. Sch. Dist.
v. Rowley, 458 U.S. 176, 206-07 (1982) 1.
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay
1. The term “free appropriate public education” means special education and related services that –
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington
Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15).
The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v.
Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).
The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 486 Fed. App'x 954 [2d Cir. 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).
Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320). The school district must provide special education and related services to a student with a disability in accordance with the student's IEP and must make a good faith effort to assist the student to achieve the annual goals and, if appropriate, short-term instructional objectives or benchmarks listed in the student's IEP. See 8 NYCRR 200.4(e)(7). With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way (T.L. v. New
York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S., 2011 WL 3919040, at *13; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; see A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]). In order to show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimis failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP (see Houston Indep. Sch. Dist., 200 F.3d at 349; see also Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524–25 [3d Cir. 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]). Accordingly, in reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" (A.P., 370 Fed. App'x at 205; see Van Duyn, 502 F.3d at 822 [holding that a "material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled [student] and the services required by the [student's] IEP"]; see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D. D.C. 2007] [holding that where a student missed a 'handful' of speech-language therapy sessions as a result of the therapist's absence or due to the student's fatigue, nevertheless, the student received consistent speech-language therapy in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program]).
8 NYCRR 200.4(e)(3) provides in part:
The school district shall ensure that the recommendations on a student’s IEP, including changes to the IEP made pursuant to subdivision (g) of this section, are implemented, including but not limited to:
(i) ensuring that each regular education teacher, special education teacher, related service provider, and/or other service provider, as defined in section 200.2(b)(11)(i)(a) of this Part, who is responsible for the implementation of a student’s IEP, is provided a paper or electronic copy of the IEP prior to the implementation of such IEP or shall be able to access such student’s IEP electronically. If the board of education or board of trustees adopts a policy that the student's IEP is to be accessed electronically, then such policy shall also ensure that the individuals responsible for the implementation of a student's IEP shall be notified and trained on how to access such IEPs electronically; (iii) ensuring that each regular education teacher, special education teacher, related service provider, other service provider, supplementary school personnel as defined in section 200.1(hh) of this Part, and other provider and support staff person has been informed, prior to the implementation of the IEP, of his or her responsibility to implement the recommendations on the student's IEP, including the responsibility to provide specific accommodations, program modifications, supports and/or services for the student in accordance with the IEP;
As provided in 8 NYCRR 200.6(e):
Related services shall be recommended by the committee on special education to meet specific needs of a student with a disability as set forth in the individualized education program (IEP).
(1) The frequency, duration and location of each such service shall be in the IEP, based on the individual student's need for the service.
(2) For students with disabilities determined to need speech and language services, the total caseload of such students for teachers providing such services shall not exceed
65.
(3) When a related service is provided to a number of students at the same time, the number of students in the group shall not exceed five students per teacher or specialist except that, in the city school district of the city of New York, the commissioner shall allow a variance of up to 50 percent rounded up to the nearest whole number from the maximum of five students per teacher or specialist.
(4) A student with a disability may be provided with more than one such service in accordance with the need of the student.
(5) Related services may be provided in conjunction with a regular education program or with other special education programs and services.
200.6 Continuum of services.
(a) A student with a disability shall be provided with appropriate special education.
(1) Students with disabilities shall be provided special education in the least restrictive environment, as defined in section 200.1(cc) of this Part. To enable students with disabilities to be educated with nondisabled students to the maximum extent appropriate, specially designed instruction and supplementary services may be provided in the regular class, including, as appropriate, providing related services, resource room programs and special class programs within the general education classroom.
(2) A student with a disability shall be provided the special education specified on the student’s IEP to be necessary to meet the student's unique needs.
(3) Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following:
(i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained.
(ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement.
(iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement.
(iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction.
(b) Staffing requirements pursuant to Part 80 of this Title.
(1) When a remedial service is included in the individualized education program, such service shall be provided by appropriately certified or licensed individuals.
(2) When a transitional support service is included in the individualized education program to be provided to teachers of a student with a disability, such service shall be provided by personnel appropriately certified or otherwise qualified in each area of service.
(3) Related services shall be provided by individuals with appropriate certification or license in each area of related service.
(4) Special education instruction shall be provided by individuals appropriately certified or licensed pursuant to Part 80 of this Title.
(5) An administrator or supervisor of special education programs serving more than 25 percent of his or her assignment in such capacity shall hold a certificate valid for administrative and supervisory service pursuant to Part 80 of this Title.
(6) When specially designed reading instruction is included in the individualized education program, such instruction may be provided by individuals qualified under section 80-2.7 or sections 80-3.3, 80-3.7(a)(3)(iv) and 52.21(b)(3)(xi) of this Title as applicable. For purposes of this paragraph, specially designed reading instruction shall mean specially designed individualized or group instruction or special services or programs, as defined in subdivision 2 of section 4401 of the Education Law, in the area of reading and which is provided to a student with a disability who has significant reading difficulties that cannot be met through general reading programs.
(c) Transitional support services prescribed in the individualized education program (IEP) shall be provided for a teacher upon the recommendation of the committee on special education, and shall be specified in the student's IEP. When the provision of a transitional support service is under consideration by a committee on special education, the teachers of the student for whom the service is being considered shall be given the opportunity to participate in the meeting of the committee for the purpose of advising the committee of the extent to which such services are needed.
A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).
Compensatory Education
The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New
York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]. 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., 31F.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). 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. v. New York City Dep't of Educ., 2014 WL 1311761, at *7 [E.D.N.Y. Mar. 30, 2014] [noting that 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. 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 [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"]; Puyallup, 31 F.3d at 1497 [finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]; Application of a Student with a Disability, Appeal No. 13-168; Application of the Dep't of Educ., Appeal No.12-135; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).
Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v.
Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996) (holding generally that subject to equitable adjustment, the “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem.”).
Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v.
District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Reid, supra at 526.
Under the facts and circumstances of this case, and based on the testimony of the provider set forth below, the qualitative approach is determined to be the more effective and equitable form of compensatory award.
ANALYSIS
Pursuant to applicable law, case law and regulations cited above, the burden is on the DOE to establish that it has provided the Student with a FAPE and that it has effectively and materially implemented the provisions of an agreed-upon IESP. There is no issue as to Student’s entitlement to of per week; the DOE fully concedes Student’s entitlement to such services (Tr. p. 20). As noted above, the only issue for this hearing is whether Parent is entitled to authorization of an enhanced rate for her chosen provider for Student and, additionally, whether the Student is entitled to compensatory services resulting from the failure of the DOE to provide a qualified provider to administer the required to Student from the inception of the 2015/16 school year. In that regard, while the DOE contested the Parent’s request for an enhanced rate provider to provide the required to Student, pursuant to the April 19, 2015 IESP, it did not offer testimony from any of its own providers, nor from any other individual, to establish that its own providers, at the standard DOE rate, were in fact qualified and available to provide the required to Student, and qualified to materially implement that portion of the IESP regarding . Thus, the DOE is determined to have failed to meet its burden with respect to providing the Student with a FAPE, specifically with regard to providing for Student an appropriate and qualified provider to implement the services pursuant to the April 19, 2015 IESP.
The Parent testified that she made efforts to find an appropriate provider for Student before requesting the within authorization for the enhanced rate for her chosen provider (Tr. p. 23). Parent stated that she ultimately chose the provider at issue,
, because of her particular experience with students with similar weaknesses as her daughter (Tr. p. 50), and that such provider was referred to her by the of her child’s school (Tr. p. 53).
In examining whether Parent’s chosen provider is an appropriate, qualified provider able to materially implement the required , testimony was taken from said provider, , by telephone. Ms. testified that she is a New York State Education Department credentialed and certified teacher in ( ) (Tr. p. 31). Ms. further testified that Student has
, and
, (Tr. p. 33), and (Tr. p.
35). She described
; that ,
, , (Tr. p. 39).
The record of the Due Process Hearing, therefore, establishes not only that the DOE has failed to provide Parent with a qualified and appropriate instructor to provide the agreed-upon and mandated , but that the Parent’s chosen provider, , is determined to be qualified and appropriate. The DOE has the initial responsibility to make available to the Parent, either by direct assignment or referral to a provider list, a qualified provider that can implement the mandates of the IESP. In this case, no evidence was presented to establish that such qualified provider was made so available by the DOE. In order to carry out and implement the mandate of the IESP, Parent’s provider, whose qualifications were established by testimony at the hearing, and were neither challenged nor disputed by the DOE, is determined to be that provider.
Finally, a consideration of the equities are determined in favor of the Parent; she has made a good-faith search for an appropriate provider of the that her daughter is eligible for, and no evidence or testimony has established the Parent’s failure to fully cooperate in every instance with the DOE in trying to locate a provider at the DOE standard rate.
Accordingly, the Parent is determined to be eligible for an enhanced rate provider, same being required in order for Student to receive the services to which she is entitled and, without whom, such services cannot be adequately provided.
Although the provider testified that her requested rate was per hour, she agreed to accept a lesser rate of to (Tr. p. 48).
In addition, when a student is deprived of an appropriate education for a portion of a school year, such student may be entitled to compensatory services, to “compensate” for the period of time in which such educational instruction was not provided. As noted above, compensatory services may be awarded under two types of approaches: a quantitative approach and a qualitative approach. While a quantitative approach is based on the amount of time during which a child has been deprived of a FAPE, and generally awards compensatory services in an amount of time equal to the time such services were not provided, See, M .C, supra, a qualitative approach focuses instead on the child’s needs, as noted in Reid, supra, where, depending on the facts of a particular case, a student may require only “short, intensive compensatory programs targeted at specific problems or deficiencies”. In such cases, and especially where the student, as is the case here, is only , equity considerations dictate that deference is to be paid to the approved and qualified , whose expertise may be relied on to help fashion an appropriate compensatory award, especially in the absence, as is the case here, of any contrary evidence or testimony provided by the DOE. In that regard, Ms. testified that, based on the child’s age and particular limitations and weaknesses, anything more than per week (which on a qualitative basis would be less than the actual hours of lost instruction) would overwhelm Student and be counter-productive (Tr. p. 46), and that of , which would represent compensatory instruction of per week in addition to the , would be the appropriate award amount. As the goal is to craft a compensatory award that best benefits the student, rather than merely tries to cram additional hours that could result in more harm than benefit, a compensatory award of of per week, in addition to the of , is determined to be the equitable and appropriate compensatory award.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS HEREBY ORDERED:
1. The DOE shall provide to Parent’s provider, , either by direct payment, through Related Service Authorizations (RSA’s) or any other payment method, an enhanced rate of per hour for in the amount of per week for the remainder of the 2015/16 school year
2. The DOE shall comply in all respects with this Decision and Order within 10 days of receipt. Original Decision Rendered: April 11, 2016
Dated: April 14, 2016
BRUCE S. OLINGER, ESQ.
Impartial Hearing Officer BO:
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
PARENT
A. Impartial Hearing Request, dated February 3, 2016 and received February 18, 2016 ([2] pages)
DEPARTMENT OF EDUCATION
1. Individualized Education Program (IEP), dated October 28, 2014 (23 pages)
Footnotes
[2] Individualized Education Services Program (IESP), dated April 19, 2015 (13 pages) IMPARTIAL HEARING OFFICER I. Decision and Order on Pendency, dated March 4, 2016 (10 pages)