Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

NEW YORK STATE EDUCATION DEPARTMENT

Parents, on behalf of A. Petitioners,

Hearing Officer: Michael Lazan

v.

CENTRAL SCHOOL DISTRICT,

Respondent.

FINDINGS OF FACT AND DECISION

INTRODUCTION

This is a case involving an eighteen year old student who has graduated from high school. Prior to his senior year, he had been determined to be eligible for services as a student with .

A Due Process Complaint (“Complaint”) was received by Central School District (“District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) on April 11, 2014 in regard to the Student. This Hearing Officer was appointed to preside over this case on April 22, 2014. After the matter did not resolve during the resolution period, on June 6, 2014, the parties appeared at a prehearing conference. The father, who is an attorney, appeared pro se. Appearing for the District was , Esq.

At or about this time, the parties engaged in discussions about subpoenas, and hearing dates were set on October 15, 2014, October 16, 2014, October 21, 2014, October 24, 2014, October 28, 2014, and October 29, 2014.

On September 24, 2014, Petitioners indicated that they wanted to amend their complaint. There was no objection, so the application to amend was granted. The amended complaint was filed on November 6, 2014. This complaint alleges: 1) The District failed to create an IEP for the Student prior to the start of the 2013-2014 school year; 2) After the June 19, 2013 CSE meeting, the District violated the Student’s “confidentiality rights” and sent out confidential

, psychological, and special education records without parental consent and in contravention of parental directives not to send out such information; 3) At the CSE meeting in September, 2013, the team predetermined the result; 4) At the CSE meetings in May, June, and September, 2013, the team was not properly constituted due to the lack of a general education teacher and special education teacher; 5) The IEP dated September, 2013 provided the Student with inappropriate services; 6) The IEP dated September, 2013 contained insufficient transition goals; 7) The IEP dated September, 2013 did not contain an appropriate transition plan or transition services; 8) The IEP dated September, 2013 contained inappropriate note-taking goals and organizational goals; 9) The IEP dated September, 2013 contained inappropriate and inaccurate present levels of academic performance; 10) The IEP dated September, 2013 contained generally inappropriate goals; 11) The IEP dated September, 2013 did not recommend an educational program that was in the least restrictive environment; 12) The recommended school setting, in a BOCES placement at Irvington, could not implement the Student’s IEP; 13) The students in the recommended special classroom were not properly grouped with the Student; 14) The IEP offered a placement that was contrary to Dr. recommendation and medical advice; 15) The IEP did not address the Student’s issues with school avoidance; 16) The District improperly declassified the Student for the 2014-2015 school year because it did not conduct a full evaluation prior to declassification; 17) The District did not provide the parents with a notice of an intent to declassify prior to meeting with the parents in July, 2014 of in August, 2014; 18) The District had no IEP in place before the start of the 2014-2015 school year; 19) The District failed to provide the parents with five day notice of the CSE meeting that declassified the Student; and 20) The District failed to offer declassification support services to the Student. An order clarifying the issues in this case was issued on March 25, 2015 and then amended at the request of Petitioners on June 12, 2015. (IHO Exh. 1)

The parties agreed to set hearing dates beginning in March, 2015, given that there was no prejudice to either side in setting such dates, the schedules of the parties and the hearing officer, and the complexity of the issues raised. Hearing dates were conducted on March 4, 2015, March 23, 2015, March 24, 2015, April 20, 2015, April 21, 2015, April 22, 2015, April 28, 2015, April 30, 2015, and May 26, 2015.

Petitioners moved for partial summary judgment on April 17, 2015. (IHO Exh. 2) Respondent opposed the motion on May 11, 2015. (IHO Exh. 3) This motion was denied by me on June 15, 2015. (IHO Exh. 4)

Because of the complexity of issues, the many issues, and the overall intensity of the litigation, the parties sought additional time to write their briefs, to August 7, 2015. Petitioners also requested that the briefs be allowed to extend to fifty-five pages. Respondent did not take a position on this request. I allowed the parties to submit briefs on August 7, 2015 and allowed the parties to submit briefs extending to fifty pages. Exhibits 106 and 107 were admitted with the agreement of the parties after the hearing concluded.

Because of the extensiveness of the testimony and issues in this case, because of witness availability, to allow the parties to write briefs (IHO Exhs. 5, 6) to allow this IHO to write this decision, and because of the overall intensity of this litigation, multiple timelines extensions were granted here. For each such extension, this IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii). (IHO Exh. 7)

FINDINGS OF FACT

The Student is an 18 year old who was determined to be eligible for services as a Student with an in August, 2011. (Tr. @ 87-88) {}

For the 2011-2012 school year, he went to {} a residential program in , New York. {}

In or about February, 2012, he asked to complete a BASC-2 scale. This self-report revealed ranks in terms of atypicality, social stress, and anxiety. (Exh. 51) Subsequent BASC-2 scales from teachers in or about May, 2012 found that the Student was in all areas except for {}

An IEP was developed for the Student on August 5, 2012. The IEP stated that the Student had to cognitive abilities, an learning rate, and was in reading, math, and writing. It stated that he had no issues with attention and was ” in class according to his teachers. It was noted that he needed to improve his coping skills and needed a structured and supportive environment. The IEP included testing accommodations, study skill goals, social/emotional and behavioral goals, a special class 8:1:1,

, access to class notes, additional time for assignments, refocusing and reprompting, and nursing services as needed. (Exh. 2)

An independent evaluator, {}, conducted psychological testing of the Student in April, 2013. (Exh. 15) The evaluator found that the Student had cognitive capacity in the , with {}. Testing pursuant to the Beck Youth Inventories found the student to be in social and emotional areas. She recommended a “small school” with an emphasis on “discussion-based and experiential learning,” extended time for tests, lecture notes and outlines, and direct instruction with planning and organizational skills. She also recommended multiple choice exams, and direct instruction with planning and organization of complex assignments.

A CSE meeting was held for the Student on May 24, 2013. Attending were two teachers from and {} by phone. There was a discussion of the Student’s needs and program. The Student was scheduled to visit the District’s high school, High School, at this time. (Tr. @ 142-164)

The CSE reconvened again on June 19, 2013, but without {} and the teachers from {}. The CSE determined that the High School was not an appropriate location of services for the Student. The parents had expressed significant reservations about that location of services. (Tr. @ 190-194) The parents objected to the goals developed by the District. (Tr. @ 1110-1111)

The draft IEP for June 13, 2013 again recommended an 8:1:1 special class, with small group and individual . (Exh. 19) Management needs were for a structured and supportive environment. The IEP says that the Student needs strategies, including positive behavioral interventions, supports and other strategies to address behaviors that impede the student’s learning or that of others. The IEP included testing accommodations, study skill goals, social/emotional and behavioral goals, access to class notes, additional time for assignments, refocusing and reprompting, and nursing services as needed.

The Student had been seeing {}.

Another CSE meeting was held in September, 2013. The CSE recommended placement in the (“ ”) program run by BOCES at

Irvington High School. (Exhs. 47, 53) This program offers a special class 12:1:1 student/teacher/teaching assistant ratio, with . (Tr. @ 669) The program offers three full-time psychologists, a consultant , and a Regents-level curriculum that generally leads to college. (Tr. @ 669-674) Students in the program were bright but in need of therapeutic support. (Tr. @ 795) The CSE discussed that mainstreaming, in the program, is based on upon the input from the faculty, parents, the student and the student’s school district. (Tr. @ 711-713)

At the time, BOCES felt it was likely that the Student would be mainstreamed for AP Biology, AP History, Honors English, and Spanish III. (Tr. @ 685)

The IEP dated September 23, 2013 recommends a special class 12:1:1, with twice weekly, once in a group, once individually. (Exh. 53) This IEP states that the Student is doing well in all academic classes, with math and reading skills. The IEP also says the Student needs to strengthen organization and work habits, and develop strategies for inefficient working memory and slow processing speed. The IEP says that, according to the Student’s , he continued to have {}.

The parents rejected the IEP and the placement and the Student attended {} for the 2013- 2014 school year.

{} wrote a follow-up in April, 2014, in which she stated that he is making good progress across the board. (D-66)

The CSE met on July 2, 2014 to again discuss the Student, and discussed another evaluation from {}, this time paid for by the parents. (Tr. @ 491-492) At this meeting, Ms.

of the District raised the issue of decertification. (Exh. 106D @ 47-52) The parent disagreed. Ms. then indicated that they should reconvene with testing in particular areas, such as a BASC. (Id. @ 50) Ms. suggested that a Section 504 plan would be appropriate. (Id. @ 51) Ms. then said that they needed to have another meeting to talk about issues, including the least restrictive environment in the District and a program called at School District. (Id. @ 57-68)

The team decided that additional testing would be conducted by {}, and that the testing would consist of a BASC-2 and a reading evaluation. (Tr. @ 476-478, 498-499)

On August 18, 2014, the parents indicated that they were keeping the Student at {}. (Exh. 90)

{} provided an additional report on August 26, 2014. (Exh. 76)

The parents were sent a meeting notice for a CSE dated August 26, 2014. The notice did not mention decertification. (Exh. 79) Ms. wrote a letter to the parent on the same date saying that she had finally received {}’s report and then inviting her to a meeting on August 29, 2014. A notice was sent out also. The notice did not mention decertification. (Exhs. 80, 82)

The parent emailed back on August 28, 2014 that she was available the following week, and then the meeting was rescheduled to September 4, 2014. (Exhs. 81, 83)

Then, at the CSE meeting on September 4, 2014, the CSE recommended that the Student be declassified. (Tr. @ 517, Exh. 86) The CSE members except the parents recommended declassification. No teachers were at this meeting. (Tr. @ 542-544)

A declassification statement was sent by the CSE thereafter. (Exh. 88) The declassification notice indicates that the parents have the right to “address” the CSE on the appropriateness of the recommendations. (Exh. 86) The parents then wrote back, asking the CSE to reconvene, but the District did not reconvene the CSE. (Tr. @ 564)

{] then wrote another letter, dated September 20, 2014, which indicated that the Student continued to {}. (Exh. LLL)

{} is a private . (Tr. @ 896) Class size tends to be no more than thirteen students in the class. (Tr. @ 945-946) {} does not have a psychologist or on staff. (Tr. @ 937)

During the Student’s time at the school, he was provided with extended time, preferential searing, , flexible scheduling, and guided notes. (Tr. @ 961-968) took place during daily activities such as during rock climbing. (Tr. @ 976) The school also required the Student to maintain an agenda book, and the Student was also provided with an iPad. (Tr. @ 963; Exhs. JJJ, HHH) The school provided {}. (Tr. @ 1182)

Accommodation plans were written for the student for the 2013-2014 and 2014-2015 school years. The plans recommended extended time for in-class assignments (also for standardized tests for 2014-2015 only), preferential seating, graphic organizers or guided notes to support information presented verbally, , assistive technology consisting of an iPad, supervised study hall, and nursing services. (Exhs. JJJ, HHH)

For the 2013-2014 school year, his final grades were between in academic subjects, with a GPA. Most grades were The school issued a detailed report card highlighting weaknesses the student might have had in a particular class, such as a critique by teacher in AP Biology that he did not do a good job preparing for a test in Biology. Still, he received a in the class. Teachers generally praised the Student but sometimes questioned his effort. There is no mention of {} during class. (Exhs. 63, 68, and 69-73)

For the 2014-2015 school year, the Student’s grades ranged from , with some concerns about effort from his psychology teacher and English teachers. (Exhs. RRR, SSS, CCCC)

CONCLUSIONS OF LAW

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

Parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012)

The District may be required to pay for educational services obtained for a student by a student’s parent if the services offered by the District are inadequate or inappropriate (“first criterion,”) the services selected by the parents are appropriate (“second criterion”), and equitable considerations support the parents’ claim (“third criterion”), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep’t of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

On the first criterion, the District should show that it offered parents a FAPE. A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)I(ii); 34 C.F.R. Sect. 300.513(a)(2).

1. 2013-2014 School Year.

Where there is such an allegation in the Due Process Complaint, the District must show it provided the parent with an offer of a school placement by the beginning of the school year in question. Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403 (S.D.N.Y. 2011); Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560 (S.D.N.Y. 2007); Application of the Department of Education, Appeal No. 08-058 (SRO Kelly); Application of the Board of Education of the Williamsville Central School District, Appeal No. 01-012 (SRO Munoz).

It is clear from this record that the District did not provide the Student with a placement until after school started. The Student was offered a school placement at the program at the CSE meeting on September 20, 2014, and there is no dispute that this date is after the first date of school for that school year.

To this IHO, this requirement must be applied strictly. While under these circumstances it is somewhat understandable that the District failed to provide a school placement until after the start of school, it is prejudicial to a student – especially a student with disabilities – to begin school year at a different time than his or her classmates. It is also prejudicial to parents, who should be give some time to reflect upon the school placement offer and then decide on whether to accept that offer. As a recent federal court put it, parents should “have notice of the school placement and an opportunity to visit the school before the school year commenced.” C.U. v. New York City Dep’t of Educ., 23 F. Supp.3d 210, 228 (S.D.N.Y. 2014).

Further, the IEP offer in this case was for a restrictive self-contained classroom even though the Student is at or above grade level in all major areas. In enacting the IDEA, “Congress was concerned about the apparently widespread practice of relegating handicapped children to private institutions or warehousing them in special classes.” Sch. Comm. Of Town of Burlington v. Dep’t of Educ. Of Mass., 471 U.S. 359, 373 (1985). Accordingly, in formulating an appropriate IEP, the CSE must “be mindful of IDEA’s strong preference for ‘mainstreaming,’ or educating children with disabilities ‘[t]o the maximum extent appropriate’ alongside their non-disabled peers.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007) (quoting 20 U.S.C. § 1412(a)(5)); Lachman v. Ill. State Board of Educ.,, 852 F.2d at 295 (“[IDEA’s] requirement that mainstreaming be provided to the maximum extent appropriate indicates a very strong congressional preference”).

Still, the Second Circuit has been “mindful that the presumption in favor of mainstreaming must be weighed against the importance of providing an appropriate education to handicapped students.” P. v. Newington Bd. Of Educ., 546 F.3d 111 119-122 (2d. Cir. 2008). It thus has held that “where the nature or severity of the handicap is such that education in regular classes cannot be achieved satisfactorily, mainstreaming is inappropriate.” Briggs v. Bd. Of Educ. Of Conn., 882 F.2d 688, 692 (2d Cir. 1989). The IDEA’s preference for mainstreaming “rises to the level of a rebuttable presumption.” Warton v. New Fairfield Bd. Of

Educ., 217 F. Supp. 2d at 273 (D. Conn. 2002)(quoting Sacramento City Unified Sch. Dist. V. Holland, 786 F. Supp. 874, 877 (E.D. Cal. 1992)); see also 8 NYCRR Sect. 200.1(cc).

In Oberti v. Board of Educ., 995 F.2d 1204 (3d Cir. 1993), the Third Circuit Court of Appeals set forth a construct for school districts in connection to their duties to provide an education to students with disabilities in the Least Restrictive Environment. The Second Circuit explicitly adopted the Oberti approach in 2008 in P. v. Newington Bd. Of Educ., 546 F.3d 111 119-122(2d. Cir. 2008). In Oberti, the Third Circuit looked to: (1) whether the District has made reasonable efforts to accommodate the child in a regular education classroom; (2) whether there are educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) whether there are possible negative effects of the inclusion of the child on the education of the other students in the class. Id., at 1217-1218. The Second Circuit considers this the “first prong” of the Oberti test. Newington, 546 F.3d at 119-120. The Oberti court continued to explain that, if after considering these factors, the court determines that the District was justified in removing the child from the regular classroom and providing education in a segregated, special education class, the court must consider whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate. This is considered the “second prong” of Oberti test. Newington, 546 F.3d at 119-120.

Cases such as Oberti involve students with severe disabilities such as Down Syndrome or autism who are nevertheless required to be placed in a general education classroom with appropriate supplemental aides and services. As is evident from the Student’s placement at from the prior school years, this is a high-functioning student with relatively mild disabilities who can be maintained in a general education setting with appropriate supports. The

District did not try to maintain this student in a general education classroom with supports, and there is no dispute that the Student would benefit more from a general education classroom given his strong academics. The District’s point is that the placement did offer an opportunity for mainstreaming in many subject matter areas, but this opportunity is not mandated by the IEP and could not be relied upon by Petitioners in making their decisions about placement.

Under the circumstances, I need not assess the merits of Petitioner’s many other allegations relating to the 2013-2014 school year. For 2013-2014, Petitioners prevail on prong one.

2. 2014-2015 School Year.

The IDEA requires a board of education to evaluate a child before determining that that child is no longer a child with a disability. 8 NYCRR Sect. 200.4(c )(3). As part of a reevaluation, the CSE must review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom based assessments and observations, and teacher and related services providers’ observations. 8 NYCRR Sect. 200.4(b)(5)(i); 8 NYCRR Sect. 200.4(b)(4). On the basis of that review and input from the child’s parents, the CSE must identify what, if any, additional data are needed to determine whether the child continues to have such disability, the present levels of performance and educational needs of the child, and whether the child continues to need special education and related services. 8 NYCRR Sect. 200.4 (b)(5)(ii). If the CSE determines that no additional data are needed to determine whether the child continues to be a child with a disability, it shall notify the child’s parents of that determination and the reasons for such determination, and also must inform the parents of their right to request an assessment to determine whether the child continues to be a child with a disability. 8 NYCRR Sect. 200.4(b)(5)(iv); 8 NYCRR 200.5

(a)(5)(i). A group of qualified professionals and the parent of the child must determine whether the child continues to be child with a disability eligible for services. 8 NYCRR Sect. 200.4(b)(5)(ii). Additionally, once the CSE determines that the student no longer needs special education services, it must consider and include in its recommendation any declassification support services that the student requires prior to placing the student in a full-time regular education program. 8 NYCRR Sect. 200.4 (d)(1)(iii).

This case is similar to Application of the Board of Education of the Southold Union Free School District, Appeal No. 04-081 (SRO Kelly, 2004), where a District declassified a student who was functioning more or less on grade level. While there are some distinctions, the District, as here, failed to give the parents appropriate notice of the meeting and failed to provide the parents with notice that no additional evaluative data was needed or of their right to obtain additional evaluations. While at the previous CSE meeting there was mention of declassification, the District’s failure to provide notice of such declassification through a notice put the parents at a disadvantage at the meeting.

Additionally, the evaluation conducted by the District in connection to the declassification was not thorough. No observation of the Student was conducted, and no teacher reports were reviewed at the meeting. No teachers from the Student’s school were at the meeting to discuss the Student’s recent performance. The District relied heavily on the slim, one page letter of {} from August, 2014. This letter reflects a recent administration of the Stanford Diagnostic Reading test, which the Student did well on, and a BASC-2 report. However, the BASC-2 testing that was conducted was not compelling. It was based on interviews of the student and the parent, which should not be considered dispositive since a teenager is not usually capable of precise self-assessment and the parent’s assessment of a student is not based on classroom performance and is often not impartial. More reliable would have been BASC-2 testing of the Student’s teacher(s), which were not conducted. Moreover, the BASC-2 scales from the parent did indicate concerns in a number of areas, such as {}.

I find that the District should have provided the parents with clear notice of their intent to declassify the Student at the September, 2014 review. The failure to do so denied the parents the right to meaningfully participate in the IEP process. Moreover, I find that the District failed to conduct a meaningful evaluation of the Student’s suspected disability prior to declassifying the Student. The parents prevail on “prong one” in regard to the 2014-2015 school year.

3. Tuition Reimbursement at {}.

“Neither the statutes, nor the decisions construing them hold, or even suggest, that a school must have a program formally designated as a ‘special education’ program in order to constitute a proper placement for a student with special needs.” Matthew J. v. Mass. Dept. of Educ., 989 F.Supp. 380, 390 (D. Mass. 1998); see, e.g., Application of the Bd. of Educ. of the Northport-East Northport Union Free Sch. Dist., Appeal No. 03-062 (SRO Kelly); Application of the Bd. of Educ. of the Wappingers Cent. Sch. Dist., Appeal No. 02-018 (SRO Munoz).

However, the Circuit has made clear that reimbursement claims should be scrutinized to determine if “the chief benefits of the chosen school are the kind of educational and environmental strategies and amenities that might be preferred by parents of any child, disabled or not.” The inquiry should be focused on whether the placement is an appropriate setting that provides “specifically designed” services to address a child’s unique special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

In this case, the parents are seeking reimbursement for a private residential school that includes focus on physical activities, such as rock climbing and kayaking. The parents argue that that kind of focus is therapeutic and therefore a special education service, but I cannot agree. The parents present no support for the proposition that providing the student with outdoor activities can be characterized as a special education service, and I have found no support for this proposition in the caselaw. Moreover, similar to Gagliardo, this is a school without any trained psychologists or psychologists on staff. Gagliardo, 489 F.2d @ 114.

{} did provide an accommodation plan for the Student. The plan provided for extended time for in-class assignments (also for standardized tests for 2014-2015), preferential seating, graphic organizers or guided notes to support information presented verbally, , assistive technology consisting of an iPad, supervised study hall, and nursing services. However, the record establishes that the bulk of these accommodations are provided for all students. As the District points out, preferential seating is in effect provided to all students because class size is so small. All students have access to the school nurse. The use of an iPad is required for the Student’s chemistry class. A study hall is frequently provided for students at the school. The Student also did not attend formal . As pointed out by the SRO in Application of a Student with a Disability, Appeal No. 12-138 (SRO Bates) and Application of the XXXXX, Appeal No. 14-015 (SRO Bates), these accommodations are already built into the school’s curriculum so they “just happen anyway.”

The parents point out that the Student has done well at {} and the record shows that he has. However, cases point out that a Student’s success at a unilateral placement does not require an order of tuition reimbursement where, as here, a placement does not provide special education services specially designed to meet a student’s special education needs. See, e.g., Stevens v. New York City Dep’t of Educ., 2010 WL 1005165 (S.D.N.Y. 2010)(general education private school, even with additional “Jump Start” program designed for student, deemed not appropriate for tuition reimbursement even though Student succeeded in classes).

In sum, I emphasize with the parents here, who were understandably reacting to a difficult situation for the Student in public middle school by sending him to a private school that he succeeded at. However, under the IDEA, I do not believe that the parents are entitled to tuition reimbursement in this case. As a result, I must deny the parents’ claims for reimbursement.

4. Other Relief.

The parents’ brief, in footnote 1, asks for compensatory education in the area of transition services as alternative relief.

Where Districts have failed to offer students a FAPE, courts have wide discretion to insure that students receive a FAPE going forward. As the Supreme Court has stated:

The statute directs the court to “grant such relief as [it]

determines is appropriate.” The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be “appropriate.” Absent other reference, the only possible interpretation is that the relief is to be “appropriate” in light of the purpose of the Act. As already noted, this is principally to provide handicapped children with “a free appropriate public education which emphasizes special education and related services designed to meet their unique needs. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359, 371 (1985).

Compensatory education is an available option under the Act to make up for denial of a free and appropriate public education. While the Circuit has previously enunciated a “gross violation” standard in this connection, Garro v. State of Connecticut, 23 F.3d 734, 737 (2d Cir. 1994), this standard is at odds with the standards in most jurisdictions. In P. v. Newington Bd. of Educ., 546 F.3d 111 n.13 (2d Cir. 2008), the Circuit signaled that the Garro approach is only applicable where Students are over 21. In so analyzing this issue, the court referenced Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). In Reid, the D.C. Circuit explained that compensatory education should be fashioned without a “cookie cutter approach” and that compensatory education must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place. Id., 401 F. 3d at 524; see also Friendship Edison Public Charter School v. Nesbitt, 532 F. Supp. 2d 121, 125 (D.D.C. 2008) (compensatory award must be based on a "'qualitative, fact-intensive' inquiry used to craft an award 'tailored to the unique needs of the disabled student").

I find this is an inappropriate matter for an order of compensatory education. The parents do not present me with any sort of template for this sort of relief except for a mention that the Student requires transition services. However, the parents do not explain what sort of transition services might be necessary for the Student, who is at this point either preparing to go to College or is already at the school. Without anything more in the record, I cannot divine what sort of compensatory education award would be appropriate for this Student. As stated by a court: “Even if entitlement to an award is shown through a denial of a free and appropriate public education, it may be conceivable that no compensatory education is required for the denial of a FAPE either because it would not help [the student].” Phillips ex rel. T.P. v. District of Columbia, 932 F.Supp.2d 42, 50 (D.D.C. 2013)(citations omitted).

ORDER

As a result of the foregoing:

1. The District is found to have denied the Student a FAPE for the 2013-2014 and 2014-2015 school years;

2. The request for tuition reimbursement is hereby denied;

3. The request for compensatory education is hereby denied.

Dated: Brooklyn, N.Y.

August 31, 2014

Michael Lazan

MICHAEL LAZAN IHO

APPEALS NOTICE

There is a right to appeal this decision to the New York State Review Officer in accordance with 8 N.Y.C.R.R. Sect. 200.5(k) of the Regulations of the Commissioner of Education.