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FINDINGS OF FACT AND DECISION
Case Number: 160489
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: July 18, 2016
September 8, 2016
Actual Record Closed Date: October 26, 2016
Hearing Officer: Gary D. Peters, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 18, 2016
Attorney — Parents
DOE Designee — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 8, 2016
Attorney — Parents
Mother — Parents
Student — Parents
Parents
Attorney — DOE
DOE
DOE
INTRODUCTION
On the above dates, I conducted a hearing, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing . The hearing was conducted at the impartial hearing office, New York City Department of Education at 131 Livingston Street, Brooklyn, New York. The Department of Education, hereinafter referred to as the “DOE” was represented by their attorney and the Parent/Child was represented by attorney .
The Parent filed a request for an impartial hearing in this matter on May 12, 2016, on behalf of her son hereinafter referred to as , challenging the DOE’s failure to provide him with a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. § 1404, et seq. (“IDEA”)
BACKGROUND
The due process complaint alleged that the “DOE” failed to provide a FAPE for at least years and requested compensatory services in the form of services at with ;
(“ ”) ,
.
Noteworthy, on June 14, 2016, and his mother participated in a mediation session with the DOE. (Ex. C), wherein the DOE agreed to provide the requested of with .
The DOE and the Parent have agreed that prior school years other than those raised in the Parent's due process complaint are barred by the statute of limitations. The
Parent is asking for the District for
. At hearing the Parent agreed to limit the scope of the allegations to the two years preceding the filing of their Complaint, specifically May 12, 2014 through May 12, 2016. (Tr. 9, 14). The DOE did not present a case to defend FAPE for this time period, however maintained that the student was adequately evaluated for and was appropriately recommended for Case No. 160489 and delivered his .
THE PARENT’S POSITION
The DOE failed to provide with a free appropriate public education (“FAPE”)
under the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §
1404, et seq. (“IDEA”). Additionally, that the DOE improperly argues that the existence of other relief should be a mechanism to avoid its responsibility to provide compensatory services and that awarding is appropriate.
THE PARENT’S CASE
after being duly sworn stated he is a and
. Tr. 116, 118. was diagnosed with
. Tr. 120-121. During the 2014-2015 school year, when was , he was aware that he also had . Tr. 121-122. began receiving special education services when he was in and has attended DOE schools since ; his IEPs classify him as
. Ex. D, I, J, K, N, O, P, S
began at (“ ”); his IEP
recommended . Ex. S. During the
, was placed in
(“ ”) and participated in . Ex. P-03.
In October 2011, after two months in , the IEP team noted that: “
”.
became aware that were appropriate for students who and not intended for students like himself Tr. 94. The DOE’s most recent formal assessments in 2007, reported that ’s and suggested that his Ex.
P. Despite , made almost no progress in over the past three years. Scores from the conducted in 2007 and 2010 indicate that his , Ex. T, over the course of three and a half years. Ex. R. As per counsel the 2010 IEP contained no strategies to and did not consider for ’s . Although the IEP noted that “ ”, the DOE placed back in a more restrictive classroom setting. Ex. P
In his year, remained in classes with an program at .” The November 2011 IEP characterized as a “ ”; however, he continued to “ ” Ex. O and a . Tr. 125-15:19.
In his year, 2012-13, the DOE again placed in the “
”; ,
. Tr. 126 - 127.
. Tr. 127. testified that his placement in the classes made him and he “
” Tr. 124.
Additionally, he testified that “
” and that . Tr. 125. Starting in the middle
of the year, and his parents had several meetings with the at to discuss . Tr. 127-128. The response at these meetings was that ’s IEP listed and he “ ” Tr. 129. For his year, was again placed in the although he continued to “ ”; as per counsel, the IEP failed to contemplate and contained no strategies to address his . Ex. K. In June 2014, . Tr. 129, 93-94 Ex. D-06; thereafter he and learned that
. Tr. 129-130
In October 2014, enrolled at
(“ ”). Ex. H-01. had been unable to provide a copy of ’s most recent assessment Tr. 95. The staff believed “ ” between the and they were uncertain that ’s placement “ ” and referred him for a re-evaluation. Tr. 96. The December 2014 Update indicated that had and . Ex. H; based upon the new assessments, ’s learned that , but that because he had been in an for several years. Tr. 97, ’s teachers reported and thought that he would benefit from . Ex. H-01.
was referred for an Evaluation in October 2014. Ex. 8; however, the DOE did not begin the evaluation until February 3, 2015. Ex. E.
;
. Tr. 110:7-20, 114:1-11, 115:1-8, 143:9-
16. See also Ex. 7-11. Following this , the evaluator recommended that receive ., indicating that is necessary for him to . See Ex. E-04. Though the evaluator recommended much of the same
, she noted that “
” Ex. E-03 , Ex. F-02.
never received the recommended and was never permitted to . Tr. 143
At the time of this hearing, had completed of the of . Tr. 137. During that time, he has and is . Tr.137:18-25. anticipates that it will take him to complete all , Tr. 138:1-
4, at which time, he hopes to be able to . Tr. 14. Lastly, testified
“
” Tr.142.
The next witness to testify was Mr. who works for the DOE at . She stated that was a student at receiving special education services from 2014 to 2015. He first met in October of 2014, when he and his mother came in to consider placement at
Tr.91. The witness testified that she was the and that one of his responsibilities was to . He reviewed his most recent IEP from , his most recent DOE transcript Tr. 92. He became aware that was referred into a
, when he had
. “
” Tr. 93.
Furthermore, he was scheduled to through
. In his opinion, it is appropriate for a student to be in an working toward an if they have
“
”Tr.94.
The witness stated that there is no at
. “ ”. He didn't recall if it was an
, however believed that pending the outcome of his performance during the first half of the year, including and a assessment that “
.
At the April 2015 meeting, the IEP team changed ’s IEP, wherein he would and noted that . Ex. D. The teacher noted that as a result of “ ” and reported that he would benefit from . Ex. D. The IEP team recommended that be issued the recommended by the evaluation,
, “
” Tr. 103. ’s , Mr. , attempted to
; he testified, that by the time the evaluation and IEP were complete, the DOE’s “ ” Tr. 109-110.
Mr. stated that since wasn't able to provide a copy of the most recent assessment and as there seemed to be some discrepancy between and ;“
Tr.96. He stated that ,
, . conducted new assessments, which indicated that did not have a ; however, . The staff determined that due to placement in an for several years that .
Additionally, the focus might have been on , as opposed to that would be appropriate for
Tr.98. The witness stated that , and . However, ,
, ,
, and Tr.99.
Mr. reviewed DOE’s report of December of 2014
(ExhibitH); confirmed that the evaluator concluded that were in the and that he agrees Tr. 100. His for a with the capabilities as described above were not consistent; she believed that did not focus on as in the they focus on . Furthermore, the student was
;
. He believed that based on the DOE’s evaluation that
Tr. 101.
The witness referred for an evaluation as it offered opportunities to help him with Tr.102. He
reviewed the evaluation when it was completed and participated in the follow-up IEP meeting in April 2014; the team recommended that be given to address his . The evaluator recommended a ; she was in agreement with the recommendations. The ; . The was appropriate so that Tr. 103-
104. The recommendation for was made as there was concern that . The was appropriate to . The evaluation also indicated that . He was referred Exhibit D, the IEP from April 2015, page 12, wherein the second goal on the page stated that "
." Tr.107. The goal
included “
”. The evaluator recommended that a
Tr. 108.
The witness did not work with the student during the 2015-2016 school year as he moved to at the end of June 2015. He was familiar with ’s goals to . He opined that by
, and
, his ability to pursue that goal was inhibited Tr. 111. Additionally, if had received different services that . He testified that it was appropriate for to continue
Tr. 112.
DOE’S POSITION
The DOE did not present a case to defend FAPE for the schools years at issue, however maintained that was appropriately evaluated and recommended for and . was recommended for and asserts that the IEP was in place and implemented
.
THE DOE’S CASE
Mr. ,
(“ ”), testified regarding the appropriateness of . He
has been employed by for 42 years and for the last 15 years as an
; he
. His duties include:
Tr. 21.
Mr. stated that “
”. Tr. 22.
Upon further questioning of the witness, he stated that in order to determine eligibility for services at , a person must
,
;“
” Tr. 24. The services at may provide if it's required to achieve an goal on an individual plan for . In order to provide a person would have to be evaluated Tr. 25.. can offer
“
” Tr. 27. The staff at evaluates whether or not is required to achieve the goal on the plan, determines if and if requires that be provided Tr. 28.
Upon cross examination, the witness conceded that he can't speak to the appropriateness of services for as he doesn’t know anything about him Tr. 29. The witness stated that if a student with disability has and , it is not possible for him to from , unless it's required to achieve a goal in an individual plan for . The witness testified that if was provided with an evaluation that was done by the DOE within the last year and a half; he was uncertain if it would suffice if additional information was required.
Mr. stated that a person who wants
needs to apply by April 15th of the previous semester “ Tr. 34. If is required to determine whether to , they examine the student's that may be required to ; a number of factors are considered in determining an goal Tr 36. We integrate the disability with the planning.
“
”.
Ms. after being duly sworn stated that she has been licensed as a for 18 years as an for eight years. She has been certified as an by ,a
Tr. 40-41. She has been employed by the DOE for ten years and currently is an ; her responsibilities include
. She also
Tr. 42.
The witness stated that the assists the IEP team regarding issues involving and services for students who qualify. , as defined by IDEA . The process begins with a referral process initiated by the IEP team to determine whether or not the student will benefit from . “ ”. Ms. stated that a framework called “ ” is utilized to evaluate the student’s abilities, strengths, and difficulties; they assess the environment for which the student has to function, the tasks that the student has to do and determine the tool that the student will benefit from to access their curriculum Tr. 44. Recommendations are made “ ” and the IEP team considers the recommendation. If is provided… “
” Tr.
45.
The witness stated that and that as per their IEP or 504 mandate Tr. 46. The witness was familiar with and stated that . The witness was directed to Exhibit 7, which indicated that was deemed to be eligible for following his evaluation and was recommended to receive the following: . She stated that Exhibit 14 confirmed that She reiterated that the DOE's practice is not to recommend that
Tr. 48-50.
Upon cross examination, Ms. stated that the time period in which evaluations are supposed to be completed from the time of referral is 60 days; in this case, the evaluation did not begin until February 10, 2015 Tr. 51. The
, Exhibit #14, lists
, and were assigned to to be used in his education. Initially
, and assigned to to be used for his education as long as it remained on his IEP and as long as he's a DOE Student Tr. 52.
According to Exhibit 7; was , at the end of the evaluation period the evaluator determined that and that he would benefit from ; she couldn’t confirm that if the CSE provided a to the student Tr. 55.
The DOE was completed on March
26, 2015; it is up to the IEP team to decide whether or not the student will need to to access his curriculum . The witness was directed to Exhibit #4, the IEP dated 4/1/2015 and confirmed that the IEP team recommend that the
Tr. 56-58.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This hearing was requested pursuant to the Individuals with Disabilities Education Act (the “IDEA”) (see 20 USC § 1400 et seq.). “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education…designed to meet their unique needs…[and] to ensure that the rights of children with disabilities and parents of such children are protected” (M.H. v. N. Y. C.
Dept. of Educ., 685 F3d 217, 223 (2d Cir. 2012) (citing 20 USC § 1400(d)(1)(A)-(B))).
Further, “a school district’s program must provide ‘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.” (M.H. v. N.Y.C. Dept. of Educ., supra, at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105,107
(2d Cir. 2007) (internal citations omitted)).
School districts are required to formulate an Individualized Education Program (IEP) for each student with a disability in order to deliver appropriate services to that child. It is “[t]he centerpiece of the IDEA’s educational delivery system” (M.H., supra, at 224 (quoting D.D. ex rel. V.D., 465 F3d at 507)). Moreover, “for a child’s IEP to be adequate, it must be “[‘]likely to produce progress…and afford the student with an opportunity greater than mere trivial advancement’” (Id. (quoting T.P. ex rel. S.P. v.
Mamaroneck Union Free Sch. Dist., 554 F3d 247, 254 (2d Cir. 2009).
It is fundamental that the CSE’s placement recommendation must be based upon the student’s needs (34 CFR §300.116(b)(2), and that the IEP must be based upon current evaluations (SRO 11-126 at 20). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” SRO 08-052; SRO 08-060 (citations omitted).
Federal regulations require that, once an IEP is adopted for a disabled child, “[e]ach public agency shall ensure that (1)[a]n IEP ... [i]s implemented as soon as possible following the [IEP] meeting (D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 508 (2d Cir. 2006), 480 F.3d 138 (2d Cir. 2007)). New York State regulations mandate that “there may be no delay in implementing a student's IEP” (8 NYCRR §200.4(e) (1)(i)), that “the school district shall ensure that each student with a disability has an IEP in effect at the beginning of each school year” (8 NYCRR §200.4(e)
(1)(ii)), that the “the school district shall ensure that the recommendations on a student’s IEP… are implemented” (8 NYCRR §200.4(e) (3), and that “the school district must provide special education and related services to a student with a disability in accordance with the student's IEP” (8 NYCRR §200.4(e) (7)). The IEP of each student with a disability shall be reviewed and, if appropriate, revised periodically, but not less than annually, to determine if the annual goals for the student are being achieved. (8 NYCRR §200.4 (f))
The IEP is the “centerpiece” of the IDEA system. Murphy v. A rlington Cent. Sch.
Dist., 297 F.3d 195, 197 (2d Cir. 2002). This key document “sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance and describes the specially designed instruction and services that will enable the child to meet those objectives.” D.D. ex. rel. V .D. v. N.Y .C. Bd. of Educ., 465 F.3d 503, 507-08 (2d. Cir. 2006) (internal quotations omitted). Under the IDEA, for a child’s IEP to be adequate, it must be likely to produce progress, not regression, and must afford the student with an opportunity greater than mere trivial advancement. M .H., supra, 685 F.3d at 224 (quoting T.B. ex rel. S.P. v. M amaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009) (internal quotations and citations omitted).
A denial of FAPE can be one that is substantive or resulting from violations of the procedural protections enumerated in special education laws and regulations. Procedural violations result in denial of FAPE “if they ‘impeded the child’s right to a [FAPE],’
‘significantly impeded the parents’ opportunity to participate in the decision-making process,’ or ‘caused a deprivation of educational benefits.’” 20 U.S.C. §1415(f)(3)(E)(ii);
A .C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir.2009).
The DOE bears the burden of proof of demonstrating the appropriateness of the IEP. See M .H., supra, 685 F.3d at 224-25; N.Y. Educ. Law § 4404(1)(c). Where a deprivation of FAPE is found, the IDEA allows a hearing officer to fashion a remedy that she finds appropriate under the circumstances, including but not limited to an award of compensatory education tailored to meet the unique circumstances of the case. 20 U.S.C.
§§ 1401(3), 1412(a)(1)(B); N.Y. Educ. Law §§ 3202(1), 4401(1), 4402(5). The nature and extent of the compensatory remedy should be based upon evidence presented in the hearing record. SRO 11-053, at p.4.
Under the IDEA, the DOE must establish the nature of a child’s educational disability and needs and develop the initial IEP based upon a “full and individual” initial evaluation. 20 U.S.C. § 1414(a)(1)(A), (a)(1)(C). In so doing, the DOE must assess the student in all suspected areas of disability using a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information which may assist in determining the content of the child’s IEP. 20 U.S.C. § 1414(b)(2), (b)(3).
Further, it must assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors, upon the child’s ability to access his education. 20 U.S.C. § 1414(b)(2)(C).
Parent’s counsel maintained that the November 2011 IEP provides little meaningful information about ’s strengths and needs, with statements including “ ” Ex. O-01. The IEP also failed to provide meaningful
, merely stating that he would work on “
.” Ex. O-04. Though
continued to struggle with , the IEP team appeared to skip over the portion of his IEP, failing to indicate whether or not he needed an to help him . Ex. O-04. At this IEP meeting, the DOE decided that would “ ” Ex. O-04, and again recommended classes, Ex. O-08, but provided no information about why . Ex. O-11.
Over the next year, made little or no progress , as evidenced by the nearly identical paragraphs in the “ ” portions of his 2011 and 2012 IEPs, both of which indicate he was “ ” Ex. O-01, N-01. Additionally, the IEP provides reasoning for why he could not that is cursory and somewhat circular: “ ” Ex. N-13. Interestingly, there was no psychologist that evaluated that year; in rejecting a community school placement, the IEP says:
“
.”
Counsel further opined that “
. . .” Ex. K-01. Additionally, the goals
section notes ’s goal of “
.” Ex. K-04. In April 2014, the IEP team held another meeting which again noted that was placed in the . Ex. J-01. Again, the IEP noted that ’s goal of . Ex. J-01, J-03.
Concededly, received many supports at during
, However, Parent’s counsel stated that “ ”. Results of a January 2016 evaluation by at indicate that
. Ex. B-
12. To , I agree with Dr. wherein it was stated that the student is in need of using an such as , Ex. B-14, and that he should
and should
. Ex. B-3.
The very idea of for a student in the DOE is to ; the DOE’s argument that
.
Therefore, the DOE maintained that providing to an individual , defeats the very purpose of what is intended to offer support with.
“[I]t is well settled that 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]).” SRO 10-052, p. 15. 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); N.Y. 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 P. ex rel. M r. & M rs. 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]"); see also Student X . v. New Y ork City D ep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); R.C.
v. Bd. of Educ., 2008 LEXIS 113149, at *38-40 (S.D.N.Y. March 6, 2008)). Once it has been determined that a student has been denied a FAPE, hearing officers have broad equitable powers to fashion a remedy that is appropriate to address the student’s needs, based upon the unique facts of the case. SRO 08-052, at pp. 17-18. Likewise, State Review Officers have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such privation of instruction could be remedied through the provision of additional services before they become ineligible for instruction by reason of age or graduation. Bd. of Educ.
v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005).
Compensatory education has been awarded in situations when a student has been excluded from a school or services due to a gross violation of the Federal law. See Burr by Burr v. Ambach, 863 F.2d 1071 (2nd Cir 1988) citing Meiner v. Missouri, 800 F. 2d
749 (8th Cir. 1986); see also Mrs. C., 916 F.2d at 75. The standard for an entitlement of compensatory education requires “gross,” “flagrant” and “prolonged” violations of the law. See Lester H. v Gilhool, 916 F.2d 865 (3rd Cir. 1990); see also Mrs. C. on behalf of
J.C. v. Wheaton, 916 F.2d 69 (2nd Cir. 1990) and Garro v. State of Connecticut, 23 F.3d 734, 21 IDELR 126 (2d Cir. 1994).
Compensatory education, past the age of entitlement, has been awarded in situations when a student has been excluded from a school or services due to a gross violation of the Federal law. See, Burr (awarding compensatory education because the gross violation completely deprived the student of an educational placement). See, Mrs.
C. (awarding compensatory education because the district’s violations led to a complete exclusion from an educational placement with disastrous results. Compensatory education also may be awarded, past the age of entitlement, if the CSE flagrantly failed to comply with the requirements of IDEA. Lester H. v. Gilhool, 916 F2d 865, cert. denied, 499
U.S. 923 (1991). In Lester, the Third Circuit awarded compensatory education where the school district knew that the child’s then current placement was inappropriate, but had the child continue there anyway and did not attempt to admit him in an approved private school for sixteen months, resulting in the student’s academic regression
The DOE asserts that there was a evaluation, a trial period was implemented and that an IEP meeting was held to include the recommended and to . Additionally, the DOE contends that even if the component of ’s most recent IEP was inappropriate, that this is not enough to sustain a claim for compensatory education in the form of . An IEP needs to be “ ” upon the student, but need not provide the optimal level of services, or even a level that would confer additional benefits since the IEP required by IDEA represents only a basic floor of opportunity. Bd. of Ed. v Rowley, 458 U.S. 176, 200 (1987). The Third Circuit in
Carlisle A rea School District v. Scott P. by Bess P., 62 F2d 520 (3rd Cir. 1995), held that although necessary, it is not sufficient to demonstrate that an IEP was inappropriate. The
Court in Carlisle denied the parents’ request for compensatory education because, even if the IEP was inappropriate, there was no gross or prolonged deprivation of the right to a free and appropriate education. Something well beyond a denial of a free appropriate public education (“FAPE”) is required. See Carlisle Area School v. Scott P., 62 F.3d 520
(3d Cir. 1995). Even if there were procedural flaws in the IEPs in the instant case, but there was no deprivation of education and an inappropriate IEP alone does not support an award of compensatory education. Additionally, the Court in Carlisle held that the appropriateness of an IEP must be judged prospectively and any lack of progress does not render an IEP inappropriate. The Court also found that the determination to award compensatory education past the age of entitlement cannot be based solely on student’s subsequent lack of progress under the plan. The Court “declined the parents’ invitation to play ‘Monday morning quarterback’ by judging the … IEP in hindsight”. The IEP in the instant case was not judged prospectively, rather it is being judged up to several years later.
Impartial hearing officers have broad discretion to award appropriate relief. In
Burlington, the Supreme Court explained that because the IDEA “directs the court to ‘grant such relief as [it] determines is appropriate,” the ordinary meaning of these words confers broad discretion on the court. Burlington School Comm. v. M ass. Dept. of Ed., 471 U.S. 359, 369 (1984). In a 1988 case, Burr by Burr v. Ambach, the Second Circuit recognized a new remedy called “compensatory education.” 863 F.2d 1071 (2nd
Cir.1988), vacated and remanded, 492 U.S. 902, reaff'd on recons., 888 F.2d 258 (1989).
In that case, a 20-year-old student named Clifford had been out of school for a year and a half after his nonpublic school closed and the school district had offered him no other placement. Id. at 1073. While a young person with a disability generally cannot demand an education past the age of 21, the court recognized that Clifford’s right to a FAPE until the age of 21 would have been illusory if it did not award him educational services past his 21st birthday, since they could not go back in time and give him the appropriate education to which he was entitled when he was younger. Id. at 1078. The court found that Clifford was entitled to an additional year in school to compensate him for the time he had lost. Id. at 1979.
In M rs. C v. Wheaton, a 1990 case, the Second Circuit determined that a student is entitled to compensatory education past the age of 21 when there was a gross violation of the Education of the Handicapped Act – now called the IDEA – that resulted in an exclusion from school for a substantial period of time. 916 F.2d 69, 75. Over the years, courts in the Second Circuit have reiterated that compensatory education may be awarded to students who are ineligible for education from the public school district by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. See Somoza, 538 F.3d 106.; Wheaton, 916 F.2d 69, 75; Burr, 863 F.2d 1071; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 (N.D.N.Y. 2001) (granting a preliminary injunction allowing the student to remain in school while the school district appealed the IHO’s award of two years compensatory education beyond age 21 where the student had been in an inappropriately special education placement for a period of two years); Streck v. Bd. of Educ., 2010 WL 4847481 (2d Cir. 2010)(ordering a district to hold funds in an escrow account to fund the SRO’s award of two years compensatory education); Student X by his m other, Plaintiff v. New Y ork City Dept. of Educ., Defendant, 2008 W L
4890440, 24 (E.D. N.Y. 2008).
Over the years, the SRO has repeatedly awarded or upheld compensatory education awards to students no longer eligible for services by virtue of age or graduation upon a finding that the district committed gross violations of the IDEA. A pplication of the Child with a Disability , Appeal No. 13-210 (awarding two years of compensatory education to a student with a disability who had already earned a high school diploma);
A pplication of a Student Suspected of Hav ing a Disability , Appeal No. 11-044 (finding that a student’s graduation from high school does not preclude an award of compensatory education); A pplication of a Child with a Disability , Appeal No. 03-078 (awarding two years of instruction after expiration of IDEA eligibility as compensatory education).
I agree with Parent’s counsel that , in addition to the already agreed to, is an appropriate, considering the DOE’s failure to provide with FAPE. The DOE provided with inappropriate services for several years at , , despite , and . Ex. K-01, J-01, J-03. Additionally, after transferred to , where he was provided with and received a referral for , as per parent he was still , Tr. 112:20-
113:10, and delays in the evaluation and incomplete provision of his recommended
.
Concededly, the DOE agreed that it was appropriate to provide
; therefore, I determine that it is appropriate and reasonable that receive the additional services. was deprived of the opportunity to receive , and to . Current and former DOE employees have acknowledged the appropriateness of services for . The DOE’s team wrote a detailed 22-page report in March 2015, explaining why a
, , , and
were appropriate for . Ex.E. See also Ex. F and G.
The DOE further argues it is inappropriate to award at this time because as the DOE’s witness testified, the purpose of “ ” Tr. 43:12-14. However, even if this statement properly characterized the DOE’s purpose for providing to students , this argument fails to acknowledge that this relief is requested as a compensatory service. After more than four years without appropriate services, was first provided with some appropriate supports at .
testified that “
,” Tr. 145:22-24, and that will improve. Tr. 153:1-8. will and . Although anticipates he will need
, Tr. 153:9-14, it is still appropriate to award it as a compensatory service at this time because it is needed for this specific purpose for a defined amount of time it will take him to complete .
As the Court noted in in Burlington, when ruling on tuition reimbursement, that remedy “merely requires the Town to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.” Sch.
Comm. of Town of Burlington, M ass. v. Dept. of Educ., 471 U.S. 359, 370–71 (1985).
Parent’s counsel maintained that similarly, in the instant case, the DOE is being asked to pay for because of its failure to provide FAPE, including appropriate , and for more than . As ’s former DOE special education teacher testified,
. Tr. 101:8-11 Mr. testified that
. Tr. 102:1-6.
In, A ndree ex rel. A ndree v. City of N assau, the court held that “placement of a lien on settlement or personal injury awards received by a disabled student to pay for services that are mandated to be provided free of charge to such students is a violation of IDEA.” 311 F. Supp. 2d 325, 333 (E.D.N.Y. 2004). In the instant case, the DOE argues
“
.” Tr. 15:10-18. However, just as the DOE could not refuse to pay for mandated services because a student had another mechanism to pay for them, the DOE cannot use the potential existence of other relief to argue it should not be required to provide compensatory services. Additionally, even if the availability of a remedy from other sources was relevant to this inquiry, cannot obtain at this time through . The DOE has not even established that the requests is in fact available to him through . The DOE’s own witness testified that . Tr. 34:10-14. ’s polices would not allow to obtain while also pursuing his educational goals.
Parent maintains that the student may never be able to obtain from . The DOE’s witness testified that not all students who seek receive them. See Tr. 30:20. The DOE’s witness also testified that cannot provide “ ” Tr. 31:12-14.
Additionally, when evaluating the appropriateness of an goal, looks at . See Tr. 36:24-37:3. This is problematic for as not a guaranteed option for and there are conditions, including that he ha
-approved goals.
The DOE’s witness testified that generally when is given to a student as part of the standard evaluation process, “ ,” Tr. 46:15-16 and that . See Tr. 50:10-13.
The DOE integrates services provided to students at the appropriate time and compensatory services.
Neither the IDEA nor the state regulations prohibit school districts from providing to students outright. Moreover, without specifically taking up this issue, hearing officers and the SRO have repeatedly ordered as compensatory services with language that implies . See In re Student with a Disability 15-064, 115 LRP 51030 17 (2014) (“the district shall be ordered to provide the student with the additional iPad equipped with the applications and software identified in the 2014 private assistive technology evaluation report”); In re Student with a Disability
12-184, 115 LRP 7846, 26 (2014) (“the district shall provide at public expense the student with assistive technology in the form of a laptop with Fast ForWord software”).
Compensatory education services is an equitable remedy. See Somoza, 538 F.3d 106, 109. As such, “equitable considerations are relevant in fashioning relief.” B urr, 863 F.2d 1071, (quoting School Comm. of the Town of Burlington v. Dept. of Educ, 471 U.S.
359, 374 (1985). See also French v. New Y ork State Dep't of Educ., 476 F. App'x 468, 472 (2d Cir. 2011) (weighing behavior of student’s parent in making compensatory education determination), Parents of Student W . v. Puy allup Sch. Dist., No. 3, 31 F.3d 1489, 1497 (9th Cir. 1994)(“the behavior of Student W.’s parent is also relevant in fashioning equitable relief.”). Equitable factors to consider include the parent’s attendance at IEP meetings, cooperation with school visits, and communication with the DOE. See D.A ., 769 F.Supp. at 419-20. According to the SRO, equitable considerations generally support a parent’s claim for relief, in the absence of evidence demonstrating that the parent failed to cooperate with the committee on special education or otherwise engaged in conduct that precluded the development of an appropriate IEP. A pplication of the Bd. of Educ. of the Eastport S. M anor Cent. Sch. Dist. , Appeal No. 04-091;
A pplication of the Bd. of Educ. of the Hicksville Union Free School Dist., Appeal No. 04-
049.
In this case, there is no evidence that or his family did anything to impede the DOE’s ability to provide with FAPE. The Parent participated in her son’s IEP meetings. and his family repeatedly spoke to DOE staff requesting
. Tr. 127:13-128:19, 129:7-10.
Tr. 145:1, .
Therefore, a balancing of the equities in this case support an award of compensatory services.
After reviewing all the evidence, I find that is entitled to compensatory services designed to enable him to make up for the long-term deprivation of educational benefits he has suffered due to the DOE’s failure to provide him with a FAPE. I agree with Parent’s counsel that the evidence in this case established that the DOE’s failure to provide appropriate evaluations and services to resulted in and inability to make meaningful progress. The parent is seeking for access to as a basis for an award of compensatory education and I agree that it is appropriate in this case. I direct that the
DOE
.
Dated: October 28, 2016
GARY D. PETERS, ESQ.
Impartial Hearing Officer
GDP:
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’S EVIDENCE
Exhbt. Description Date Pages
A Impartial Hearing Request 5/12/16 10
B Evaluation February 201617
C Mediation Agreement 6/14/16 3
D IEP 4/1/15 22
E 3/26/15 21
F
3/26/15 3
G Evaluation 2/3/15 5
H Report 12/9/14 3
I IEP December 2014 15
J IEP 4/11/14 10
K IEP 10/24/13 16
L Evaluation 10/23/13 2
M Evaluation 10/2/13 2
N IEP 11/7/12 17
O IEP 11/9/11 15
P IEP 10/28/10 14
Q Evaluation 10/27/10 2
R Report 10/27/10 3
S IEP 10/13/09 20
T Evaluation Report 10/25/07 5
U Report 5/10/07 4
DOE’S EVIDENCE
Exhbt. Description Date Pages
1 Due Process Complaint 5/12/16 [12]
2 Due Process Response 6/10/16 4
3 Discharge Summary 2/2/16 1
4 IEP 4/1/15 17
5 Prior Written Notice 4/12/15 [7]
6 Evaluation Addendum 3/26/15 21
8 Evaluation Referral 10/29/14 6
9 Homepage undated 2
10 Homepage undated 1
11 undated 2
13 undated 12
14 2/10/15 1
Footnotes
[7] Evaluation 2/3/1 11
[12] undated 5