Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No.: 178140 Student's Name: Date of Hearing: Various Hearing Officer: Michael Lazan, Esq.

On the Due Process Complaint designated above, the matter of the above student came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.

The parent brought this complaint to challenge the Student’s IEP and program for the 2016-2017, 2017-2018, and 2018-2019 school years, alleging a variety of FAPE violations. As a remedy, the parent requested a wide variety of the relief. Upon the joint application of the parties, multiple timelines extensions were granted in this case. For each such extension, I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational wellbeing. There was no showing of any prejudice to the District.

FINDINGS OF FACT

The Student is a -year-old who is eligible for services as a student with Speech or Language Impairment. The Student is significantly below grade level in reading and math per recent assessments by , a witness for Petitioner. (R. 28-29; Ex. P-K at 4-5, 9).

determined that the Student’s profile is consistent with developmental dyslexia and difficulty processing language. (R. 27). He diagnosed the Student with a Language Disorder, Learning Disorders in Reading, Writing and Mathematics, and an Anxiety Disorder. (Ex. P-K at 10). The Student had difficulty with decoding, which negatively impacts his reading comprehension abilities, and has difficulty with numerical operations. (R. 28-29). He also struggles in his ability to understand spoken language. According to , his academic performance is lower than what would be expected for someone with his intellectual profile. (R.

29). And, he engaged in task avoidance due to his language disorder, language processing difficulties, and anxiety. (R. 31). Socially, the Student struggles with making friends and keeping friends. (R. 27). He is described as shy, intimidated, and avoidant of social settings. The

Student requires a “specialized” setting for students with language disorders and learning disabilities that provides small classes and a multisensory curriculum. (R. 30). In addition, it is important that he begins to develop his functional and vocational skills, as well as have targeted reading instruction using an empirically supported program, and assistive technology at school and home. (R. 31-35).

The Student’s IEP dated October 22, 2015 provided for a 12:1 Special class with group speech-therapy. (Ex. P-D at 10). The Student’s IEP dated October 28, 2016 and November 6, 2017 provided for an Integrated Co-Teaching Class with group speech-language therapy. (Ex. P-

B at 7; Ex. P-C at 5). The Student has made insufficient progress during these school years, necessitating a major change in the Student’s educational program.

In addition, testimony by was provided setting forth a specialized tutoring program that would remediate the Student’s basic reading, writing, and math skills, while also building his functional skills with and without the use of assistive technology within the home environment and community. (Ex. P-V at 9). The tutor will utilize behavioral change theories while working with the Student to address his anxiety and task avoidance.

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.

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)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).

A free appropriate public education “must include ‘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.’” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted). 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)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2). The Department of Education did not present any witnesses or evidence and did not make an opening or closing statement. As a result, I find that the Department of Education has not met its burden, and the Student was denied a FAPE from September 2016 through June 2019.

REMEDY

Where school districts have failed to offer students a FAPE, courts have wide discretion to ensure 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).

The parent seeks that the Student be placed in a “specialized” non-public school setting for students with language disorders and learning disabilities that will provide him with small class sizes and a multisensory curriculum. The two witnesses called by Petitioner provided testimony in support of this proposition, and there was no objection from the Department.

The parent also seeks compensatory education. 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"). Additionally, there is authority in this jurisdiction for a “quantitative” approach to compensatory education. Application of a Student with a Disability, Appeal No. 14-

172 (reducing a quantitatively determined award of additional services based upon evidence in the hearing record demonstrating that the student received some special education services and received some degree of benefit therefrom).

The Parent is requesting: a) 800 hours of tutoring by a tutor of the Parent’s choosing at a cost of $110 per hour; b) 138 hours of occupational therapy1. The Parent is also requesting an independence speech-language evaluation by a provider of her choosing at a cost of $1500, a Functional Behavioral Assessment (“FBA”) and Behavior Intervention Plan (“BIP”) by a provider of the Parent’s choosing at a cost of $1500 and $450 respectively, any payment for the neuropsychological evaluation conducted by at his rate of $5000. Though the relief requested is extensive, there is no objection at all from the Department, and the record reflects that the parents have submitted credible testimony in support of every such demand. Under the circumstances, the hearing officer is constrained to grant the relief requested.

ORDER

As a result of the foregoing, I order the following:

1. The Department shall convene the CSE and recommend placement for the Student in a specialized non-public school setting for students with language disorders and learning disabilities, with small classes and a multisensory curriculum. The team will also recommend assistive technology to be used both in school and at home, as well as occupational therapy.

2. The Student shall receive: 800 hours of tutoring by a qualified provider of the Parent’s choosing at a rate not to exceed $110 per hour; 138 hours of occupational therapy to be provided by a qualified provider of the Department’s choosing unless said provider is not secured within 30 days of this order, at which time the Parent will be authorized to use a provider of her choosing.

3. The Department shall fund: an independent speech-language evaluation by a provider of the Parent’s choosing at a rate not to exceed $1500; an independent FBA and BIP by a provider of the Parent’s choosing at rates not to exceed $1500 and $450 respectively; and the neuropsychological evaluation conducted by at his rate of $5000. ACRD: January 16, 2020 Dated: January 16, 2020

Michael Lazan

MICHAEL LAZAN, ESQ.

Impartial Hearing Officer PLEASE TAKE NOTICE The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

1 The Department will have 30 days from the date of this order to find a qualified provider for these services. If the Department fails to do so, the Parent will be able to choose a qualified provider.