Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

NEW YORK STATE EDUCATION DEPARTMENT

, on behalf of , Petitioners,

Hearing Officer: Michael Lazan

v.

CENTRAL SCHOOL DISTRICT,

Respondent.

FINDINGS OF FACT AND DECISION

INTRODUCTION

This is a case involving a nine year old student who is currently eligible for services as student with a A Due Process Complaint (“Complaint”) was received by

Central School District (“District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) on June 5, 2015 in regard to the Student. This Hearing Officer was appointed to preside over this case on June 9, 2015. After the matter did not resolve during the resolution period, the parties appeared at a prehearing conference. The father, who is an attorney (“the parent,” or “Petitioner”), appeared pro se. Appearing for the District was

Esq. After a prehearing conference, hearing dates were set for September, 2015.

The Due Process Complaint (“the complaint”) alleges that the Student attends a private school in th e Central S chool D istrict ( “District”). T he parent alleges th at th e District inappropriately declassified the Student in June, 2013, and then did not classify her and provide her services until February 2, 2015. He also contends that the Student was improperly denied Extended School Year (“ESY”) services for the 2015 summer. Petitioner contends that the Students truggles w ith reading a nd writing and required corresponding special education services. Petitioners seek as relief: a central auditory processing disorder evaluation, an assistive technology evaluation, “aggressive” reading intervention, assessments e very three months, remediation through the summer months, reimbursement for out of pocket costs associated with an evaluation and a software program.

By letter dated July 15, 2015, t he D istrict moved t o dismiss portions of the complaint. The District contended that Extended School Year services are not provided pursuant to Section 3602-c. The District also argued that: 1) it has no obligation to adopt and implement a private evaluator’s report; 2) t he demands f or a central auditory processing evaluation an d assistive technology evaluation are moot; and 3) the parents’ request for reimbursement for their private evaluation is meritless because they failed to take advantage of the District’s offer for them to seek a waiver or the District’s I.E.E. cost parameters. (IHO Exh. 1)

On July 22, 2015, t he parent opposed t he motion. He argued that: 1) t he motion establishes no facts and fails to acknowledge that material issues of fact remain; 2) the complaint was timely filed; 3) he is not arguing that the District should have adopted all of the evaluator’s suggestions; and 4) remedies should be determined by the IHO after the hearing. (IHO Exh. 2)I

The motion was denied by my order dated September 8, 2015. (IHO Exh. 3)

The hearing was conducted on September 22 and September 24, 2015. T he parties then presented briefs t o t he IHO. ( IHO Exhs. 4, 5) Hard copies of these briefs were received b y October 30, 2015.

Because of the complexity of issues, witness availability, the motion to dismiss, and the time the parties sought to write briefs, three 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. 6)

FINDINGS OF FACT

The Student is a nine year old who is currently eligible for services as a student with a

For kindergarten through third grade, she attended a private school, a general education non-public school which is located within the boundaries of the Central School District. (Tr. @ 250)

She was initially determined to be eligible classified in kindergarten, during the 2011- 2012 school year, when she was determined to be eligible as a student with a

Thereafter, an ISEP required that she receive therapy twice a week for thirty minutes. Her kindergarten teacher described her as “exceptionally responsible” but she had a {}. (Exh. A, @ 12)

Thereafter, by meeting in March, 2012, she was recommended for a general education setting with resource room instruction and therapy. (Exh. X; Tr. @ 213- 214)

In March, 2012, on the Woodcock-Johnson III Normative Update Tests of Achievement, she was found to be performing in the range for reading, range in writing, and for math. (Exh. A @ 13)

Another IEP was written for the Student in June, 2012. She was recommended for therapy as well as resource room five days a week for thirty minutes a day.

She received these services for first grade. (Exh. A, @ 36) At this point, notwithstanding the testing, she was considered to be reading grade level, at the level. (Tr. @ 23, 64)

For the first grade, District special education teacher {} worked with her on “Project Read.” (60-62) This is described as “a soup-to-nuts program, from beginning to end, looking at assessing students via error analysis to assess what are their reading deficiencies, what skills do they have, what skills don't they have, and take those errors into consideration.” (Tr. @ 15-16)

The Student was tested several times during first grade. Testing in December, 2012 found that the Student’s cognitive ability per the Woodcock-Johnson III Normative Update Tests of Cognitive Abilities was a standard score of at the percentile. (Exh. W) A

reevaluation from February, 2013 described the Student as having receptive language skills per the Peabody Picture Vocabulary Test, 4th Edition. She also had expressive language scores as measured on the Clinical Evaluation of Language Fundamentals, 4th Edition, and she tested as on the Goldman-Fristoe Test of Articulation, 2nd Edition. (Exh. A, @ 12-13)

On March 26, 2013, she was testing on the Wechsler Individual Achievement-III. The Student’s standard scores were in alphabet writing fluency, in basic reading composite, in early reading skills, and n oral reading accuracy. Oral reading fluency resulted in a standard score of oral reading rate resulted in a standard score of , pseudoword decoding resulted in a standard score of reading comprehension resulted in a standard score of sentence building resulted in a standard score of spelling resulted in a standard score of , and word reading resulted in a standard score of (Exh. U)

Additionally, a report was written by {} dated April 3, 2013. This report revealed improvement in sight vocabulary, decoding, and reading comprehension from level to early level. Her writing rate and quality improved as well, though she needed to incorporate more descriptive vocabulary and details in her writing. (Exh. U)

By the end of first grade, her first grade teacher said that she still needed improvement in several areas including reading (understanding written material, applying word attack skills), writing (communicating effectiveIy), and listening and speaking skills. (Exh. A, @ 12) At this time, the Student had achieved both of her reading goals in the IEP. (Exh. Q) The writing goal, to compose a paragraph of four sentences that are clear, complete and grammatically correct, was not achieved. In regard to the Student’s four goals, none of the goals were achieved, though satisfactory progress was noted in all of them.

The District’s CSE then met and reviewed the testing. (Exh. S) This included a report, academic testing from April, 2013, a special education report, a evaluation conducted in March, 2013, a evaluation conducted in January, 2013, a social and medical history update, academic testing from March, 2012, a from 2012, a evaluation from 2011, an annual review report, and a evaluation from 2011. (Exh. A, @ 34)

At the meeting, the {}, indicated that the Student had progressed satisfactorily in (Tr. @ 86) The Student was within the limits in terms of her in testing. (Tr. @ 202-203) The Student was declassified on June 5, 2013. (Exh. S) No declassification services were recommended. Prior Written Notice was sent relating to the declassification on June 19, 2013. (Exh. R)

For second grade, the Student did not receive services. She received one grade on her report card, in writing, but received a n reading, a in spelling, a n social studies. (Exh. A. @ 42) She completed second grade with an average of Most of the year her grades were “good” and she was noted to improve in terms of reading orally with fluency and expression. She received AIS services during this year. (Exh. A @ 42)

On October 6, 2014, the parent wrote a letter to the District seeking consent for an I.E.E. at public expense. (Exh. P) The District responded, by letter dated October 22, 2014, that the District was approving the request for an I.E.E. based on the parent’s disagreement with the evaluation previously conducted by the District. It also indicated that, if the parent prefers for the IEE to be conducted by a provider who is not on the approved list, the parent should then provide that information to the District and seek a waiver from the District’s policy to use an approved provider. (Exh. P)

The parents did not respond, but continued to be concerned about the Student’s progress. As a result, he arranged for an evaluation of the Student by {}. (Exh. A @ 10) {}’s testing found that, in reading, on the Wecshler Individual Achievement Test, 3rd Edition, the Student’s standard scores ranged from in pseudoword decoding ( ) to in reading comprehension and word reading. ( ) Her pseudoword decoding speed was found to be at the percentile, and on the Gray Silent Reading Test, her standard score was and her grade level equivalent was {} performed at least thirteen different tests on the Student. (Exh. A @ 30-31)

{} concluded that the Student was having disproportionate and unexpected difficulty learning to read and write, a “double deficit,” which describes students with weaknesses in phonological awareness and rapid automatized naming. She characterized this as a more difficult kind of to remediate. She also pointed out that she had difficulty with verbal working memory, which is her ability to remember letter clusters and the sounds they make. She also found that the Student had variable performance on measures of attention and concentration. (Exh. A, @ 22)

According to her report, in comparison to the testing in March, 2013, the Student’s performance on a measure assessing early reading skills had dropped from the percentile to percentile. Her word reading skills had dropped from the percentile to the percentile. Her pseudoword decoding skills dropped from the percentile to the percentile. Reading comprehension dropped from the percentile to the percentile. (Exh. A, @ 17) In writing, her alphabet writing fluency dropped from the percentile to the percentile, her spelling skills dropped from the percentile to the percentile, and her sentence building skills dropped from the percentile to the percentile. (Exh. A, @ 20)

Thereafter, the parent wrote a letter to the District advising of the final private evaluation and requesting reimbursement in the amount of $2500. (Exhs. M, O) The District wrote back the parent’s evaluation was not consistent with District guidelines, which called for approval prior to such an evaluation being conducted. (Exh. L) $2100 was ultimately paid to the parent for this evaluation.

Another evaluation of the Student was proposed in or about December, 2014. The District proposed academic testing, a classroom observation, a social and mental history update, a evaluation, and a evaluation. (Exhs. J, K) The parent signed a consent for the Student to be evaluated on December 20, 2014. (Exh. I)

The report by {} shared with the District in January, 2015. (Exh. H)

A report was written by {} in January, 2015. In this evaluation, the Student’s was tested on the Clinical Evaluation of Language Fundamentals-5, the Test of Auditory Processing Skills, and the GFTA, which tests . The Student’s scores fell in the range except for in recalling sentences, understanding spoken paragraphs, and “number memory.” The evaluator indicated that the Student struggled to recall details from paragraphs presented orally and recall sentences, and that she also struggled to use irregular plurals in speech. (Exh. E)

Thereafter, a subcommittee met and determined that the Student was again eligible as a student with a They reviewed the Student’s evaluation (Exh. E), therapy evaluation (Exh. D), a classroom observation (Exh. G), an screening (Exh. C) and {}’s recommendations. (Exh. A, @ 24) The IEP dated February 6, 2015 then recommended resource room program, 5:1, 5x weekly, for 40 minutes. Accommodations included additional time to respond, check for understanding, classroom notes, directions read, modified assignments, special seating arrangements, support for organizations skills, and modified assignments. (Exh. C)

The Student’s third grade report card at reflected an in English Language Arts, an n Mathematics, an in Science, a in Social Studies, and a in World Language. (Exh. F)

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.

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).

Education Law Sect. 3602-c requires parents who seek to obtain educational services for students with disabilities placed in nonpublic schools to file a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. Educ. Law Sect. 3602- c(2)). "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent." Educ. Law Sect. 3602-c(2)(a). In such circumstances, the district of location's CSE must review the request for services and "develop an individualized educational services plan [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]." Educ. Law Sect. 3602-c(2)(b)(1). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.

1. Declassification.

A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation. 34 CFR Sect. 300.303(a)(2); 8 NYCRR Sect. 200.4(b)(4)). However, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary. 8 NYCRR 200.4(b)(4); see 34 CFR 300.303(b)(1)-(2)). A reevaluation in all areas related to the student’s suspected disability is required prior to declassifying a student. 8 NYCRR Sects. 200.2(b)(8)(ii), 200.(4)(c)(3), 200.4(b)(6)(vii).

As the District points out, there is no claim in this case that the evaluations and data considered by the CSE were incomplete and inaccurate. The District did do extensive assessments of the Student prior to declassifying her in 2013. There was testing in areas, through the Clinical Evaluation of Language Fundamentals-IV and the Goldman- Fristoe Test of Articulation-II, on March 13, 2013. Though these reports were not produced at the hearing, there is no dispute that they were done. There is also no dispute that, at the time of declassification, the Student’s issues were “normal” per her therapist, {}.

She also had expressive language scores as measured on the Clinical Evaluation of Language Fundamentals, 4th Edition, and she was on the Goldman Fristoe Test of Articulation, 2nd Edition.

There is also no dispute that there was testing in regard to the Student’s reading and writing issues at this time. The testing, conducted by {}, also shows that the Student was or in most areas. According to Wechsler Individual Achievement-III Testing from March 26, 2013, the Student’s standard scores were in alphabet writing fluency, in basic reading composite, in early reading skills, and in oral reading accuracy. Oral reading fluency resulted in a standard score of oral reading rate resulted in a standard score of pseudoword decoding resulted in a standard score of , reading comprehension resulted in a standard score of sentence building resulted in a standard score of spelling resulted in a standard score of and word reading resulted in a standard score of

There were some relative weaknesses, particularly in oral reading fluency, where she scored in the percentile. Still, as the parent stated in his brief, the Student was reading in the range. (Brief, at 2) The parent pointed to the fact that the Student did not achieve five of her IEP goals, but those goals were not in the reading area, which is the area that the parent is focusing on here. In reading, the Student achieved both of her goals.

The parent contended that the Students levels were at the beginning of grade level although she was heading into second grade, which is what {} said in the hearing. (Tr. @ 64-65) Still, the record does not support the suggestion that the Student should have then been determined to be eligible as a student with a A according to State and federal regulations, means "a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations." 8 NYCRR Sect. 200.1(zz)(6); see also 34 CFR Sect. 300.8(c )(10)). Consideration of whether a student has a specific must take into account whether the student achieves adequately for the student's age or meets State-approved grade-level standards when provided with learning experiences and instruction appropriate for the student's age. 34 CFR Sect. 300.309(a)(1); 8 NYCRR 200.4(j)(3), and either the student does not make sufficient progress or meet age or State-approved grade-level standards when provided with a response to intervention process, or assessments identify a pattern of strengths and weaknesses determined by the CSE to be indicative of a learning disability. 34 CFR Sect. 300.309(a)(2); 8 NYCRR Sect. 200.4(j)(3)(i)).

The District’s conclusion was reasonable based on the testing of {}. The Student’s reading comprehension scores were in the percentile, which comes out to a grade level equivalent. Her early reading skills were in the percentile, which comes out to a grade level equivalent. Moreover, this testing was conducted with three full months of first grade left in the year. While I can understand the parent’s position on this issue, on this record I cannot find that the District declassification of the Student was inappropriate at the time it was made. It is noted that the Student then received good grades in second grade at her non-public school, which did not provide her with any special education services. It is also noted that the testing of {} was, of course, not available at the time of the District’s decision. Moreover, {} was not called as a witness in this case to support the parent’s position on this issue.

The parent also contends that transitional services were not offered to the Student after she was declassified. In effect, the parent is contesting the lack of declassification services, which are required in New York State. The District points to a guidance memorandum from James P. DeLorenzo of the New York State Education Department that states that declassification services are not allowed for Students who are enrolled in non-public schools as part of the dual enrollment law. Memorandum of DeLorenzo, NYSED Memorandum, http://www.p12.nysed.gov/specialed/publications/policy/nonpublic907.pdf (Question 21)(September, 2007).

As I pointed out in the motion to dismiss, when interpreting New York Law, it is Asettled that the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld.@ NYS Assoc. of Underwriters, Inc. v. NYS Banking Dep=t, 83 N.Y.2d 353, 360, 632 N.E.2d 876, 610 N.Y.S.2d 470 (1994). Deference is appropriate where the interpretation of the statute or its application involves knowledge and understanding of underlying operational practices for the field in question. Id.

In Underwriters, the New York Court of Appeals deferred to interpretive letters from the New York State Banking Department which allowed commercial banks to make certain sales of annuities. The petitioner argued that the letters represented an overbroad exercise of powers that were not granted to the agency. The Court of Appeals disagreed, pointing to statutory language authorizing the agency to have Aincidental power@ relative to the Abusiness of banking.@ Id. at 362. The Court noted that the authorizing statute did not consist of Acommon words of clear import@ so that deferral to agency expertise was appropriate. See also Brentwood Pain and Rehabilitation Services, P.C. v. Allstate Insurance Co., 508 F. Supp.2d 278 (S.D.N.Y. 2007)(letters written by the New York State Department of Insurance and the New York State Workers= Compensation Board relating to fees charged for MRIs given deference); Seenaraine v. Securitas Security Services USA, Inc., 37 A.D.3d 700, 830 N.Y.S.2d 728 (2nd Dep=t 2007)(opinions by New York State Department of Labor on wage and hour regulation given deference).

Courts have also deferred to the New York State Department of Education=s guidelines. In Matter of Sheehan, 136 A.D.2d 25, 525 N.Y.S.2d 735 (3rd Dep=t 1988), guidelines relating to permissible modalities of occupational therapists were upheld. Reversing the Supreme Court, the Third Department held that the guidelines (which were not formally adopted as regulations) were within the Department of Education=s authority, noting that the statutory definition of occupational therapy was couched in general terms. The court indicated that the question was not one of Apure statutory interpretation and analysis, but one in which interpretation and implementation of the legislation necessarily involves knowledge and understanding of underlying operational practices.@ 136 A.D.2d at 28 (quoting Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d 451, 403 N.E.2d 159, 426 N.Y.S.2d 454 (1980)). The court went on to note that it was required to defer to the agency responsible for the administration of the statute, i.e., the New York State Department of Education.

Here, however, the question is one of pure statutory interpretation and analysis. The statute clearly states districts should deliver Sect. 3602-c services “in the same manner and with the same contents" as an IEP and "shall assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district." Moreover, the regulations state: (iii) If the student has been receiving special education services, but it is determined by the committee on special education that the student no longer needs special education services and can be placed in a regular educational program on a full-time basis, the recommendation shall: a) identify the declassification support services, as defined in section 200.1(ooo) of this Part, if any, to be provided to the student; and/or the student's teachers; and(b) indicate the projected date of initiation of such services, the frequency of provision of such services, and the duration of such services, provided that such services shall not continue for more than one year after the student enters the full-time regular education program.

The District did not provide this Student with declassification support services. While I can understand the District’s position in this regard, I simply cannot reconcile the language of the statute requiring “equitable” services with the memorandum of Mr. DeLorenzo. I should point out that the District made this same argument in its motion to dismiss (in connection to the parent’s claim for ESY services). I ruled then that the memorandum of Mr. DeLorenzo, in connection to ESY services, was contrary to the specific language of the statute. This should have given the District notice that I might have the same view in regard to this argument. Even so, the District did not offer any way that I could possibly reconcile the language of the statute with the memorandum of Mr. DeLorenzo. Accordingly, I agree with the parent that the District should have addressed the issue of declassification support services when declassifying the Student.

2. Summer Services, 2015.

The parent contends the Student was entitled to ESY services for the summer of 2015 per the IEP that was drafted for the Student in June, 2015.

These services should be provided to students by a CSE where there is a likelihood of “substantial regression.” This can be defined as “inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year.” 8 N.Y.C.R.R. Sect. 200.1(aaa).

The parent argues that the Student regressed during the time that she did not receive services during second and third grade, but this argument is misplaced. The regression, in this instance, has to relate to special education services. In other words, if a student were unable to maintain developmental levels reached by the provision of special education services, only then are ESY services required. There is nothing in the record to suggest that “an inordinate period of review” is required for this student after she benefits from special education services. This claim is without merit. 3. I.E.E.

The parent seeks full payment for the I.E.E. of {}, which was subject to worth of reimbursement from the District. The evaluation cost per the representation of the parent.

Federal and State regulations provide that, subject to certain limitations, a parent has the right to an I.E.E. at public expense if the parent disagrees with an evaluation obtained by the school district. 34 C.F.R. Sect. 300.502(a), (b); 8 NYCRR Sect. 200.5(g)(1). If a parent requests an I.E.E. at public expense, the school district must, without unnecessary delay, ensure that either an I.E.E. is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 C.F.R. Sect. 300.502(b)(2)(i)-(ii); 8 NYCRR Sect. 200.5(g)(1)(iv). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense. 34 C.F.R. Sect. 300.502(b)(3); 8 NYCRR 200.5(g)(1)(v); DeMerchant v. Springfield Sch. Dist., 2007 WL 2572357, at *6 (D. Vt. Sept. 4, 2007). However, if the parent shows that the District evaluation is inappropriate, or if the District unnecessarily delays in seeking an impartial hearing to contest a parent's request for an I.E.E., the IHO may order that the District provide the requested I.E.E. at public expense. Pajaro Valley Unified Sch. Dist. v. J.S., 2006 WL 3734289 (N.D. Cal. Dec. 15, 2006) (delay in requesting an impartial hearing resulted in IHO order to fund I.E.E.).

There is no dispute that the parent is justified in his request for reimbursement for the I.E.E. The only issue here is the amount of payment that the District tendered to the parent as a result of the evaluation. The District contended that they provided the parent with notice of a district policy to set a limit on such evaluations unless the parent applies for and receives a waiver. The District contends further that comments to the 2006 IDEIA regulations provide support for their position.

In fact, the regulations do allow Districts to set reasonable cost criteria. The regulations state that “(i)t is the Department’s longstanding position that public agencies should not be required to bear the cost of unreasonably expensive IEEs.” 71 Fed. Reg. 46689 (August 14, 2006) The comments state:

In order for an evaluation to be at public expense, § 300.502(e)(1)

requires that the criteria under which an IEE is obtained, including the location of the IEE and the qualifications of the examiner, be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent that those criteria are consistent with a parent’s right to an IEE. In addition, § 300.502(e)(2) states that, except for the criteria described above, a public agency may not impose conditions or timelines related to obtaining an IEE at public expense. Although it is appropriate for a public agency to establish reasonable cost containment criteria applicable to the agency, as well as to personnel used by parents, a public agency would need to provide a parent the opportunity to demonstrate that unique circumstances justify selection of an evaluator whose fees fall outside the agency’s cost containment criteria. 71 Fed. Reg. 46689-90 (August 14, 2006)

If the parent wanted to get full reimbursement here, he should have complied with District policy and requested a waiver. By not doing so, the District is justified in denying the parent’s request for full payment of the evaluation. This claim has no merit.

RELIEF

Courts have wide discretion to provide relief in special education cases. 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).

Petitioner seeks compensatory education for the Student. 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 the seminal compensatory education case of 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").

The parent presents no compensatory education plan, and no witness to support such plan. Under the circumstances, I find it incumbent upon myself as the hearing officer to fashion a reasonable award. The statute requires the District to address the issue of declassification services when declassifying a student, but does not require Districts to actually give any services. This is why the statute includes the use of the phrase “if any.” Given that declassification services are at the discretion of the District, and that Districts may actually provide no declassification services if they so desire, I find it is appropriate to award a modest amount of services here. I will therefore order that the Student receive 20 hours of individualized tutoring by a special education teacher to compensate for the lack of any declassification services. Cf. Application of a Student with a Disability, Appeal No. 99-16 (1999). The parent’s other requests for relief, including reimbursement for the Fast Forward program, monetary payment, or other assessments, are inappropriately awarded given the standards set forth in Newington and the utter lack of support for such relief in the record.

ORDER

As a result of the foregoing:

1. The District is found to have denied the Student a FAPE by failing to provide her with declassification services in 2013;

2. The Student is hereby awarded 20 hours of individualized tutoring by a special education teacher;

3. The parent’s other requests for relief are denied.

Dated: Brooklyn, N.Y.

November 13, 2015

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.