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Special Education Law
DECISIONParent PrevailedIHO Case No. 191913

New York City Department of Education, Impartial Hearing Decision

October 29, 2020·Randy Glasser·New York City Department of Education (“DOE”)

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 534445 - NYC: 191913

FINDINGS OF FACT AND DECISION

(CORRECTED)

Case No. 191913

Student’s Name: REDACTED (the “Student”)

Date of Birth: REDACTED

District: New York City Department of Education (“DOE”)

Hearing Requested by: REDACTED, Parent (the “Parent”)

Record Close Date: October 29, 2020

Hearing Officer: Randy Glasser, Esq.

Procedural Background

On January 3, 2020, REDACTED, Esq. of REDACTED on behalf of the Parent, and her child, the Student filed a due process complaint dated January 3, 2020 under the Individuals with Disabilities Education Act (the “IDEA”) (20 U.S.C. §1415(f)), Section 504 of the Rehabilitation Act of 1973, and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”) (Parent Ex. “A”). This impartial hearing officer (“IHO”) was appointed on June 17, 2020. A prehearing conference was held on June 26, 2020 and status conferences were held on July 6, 2020 and July 15, 2020. Hearings were held on the following dates: August 5, 6, 21 and 26, 2020. Notably REDACTED, Esq. of REDACTED, served as co-counsel and then ultimately took over the case on August 21, 2020 when REDACTED was no longer at REDACTED (Tr. 622). Pursuant to the parties’ request they submitted written closing statements (see Closing Statement for the Department of Education at IHO Ex. “I” and Closing Brief (for the Parent) at IHO Ex. “II”).

Lists of the documentary evidence submitted are appended to this Findings of Fact and Decision. There were three (3) thirty (30) day extensions of the compliance date, from August 1, 2020 to September 1, to October 1, 2020 and then October 30, 2020 (see IHO Ex. “III”, “IV” and “V”).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student, is a REDACTED year old, student, diagnosed with a Language Disorder, Attention Deficit/Hyperactive Disorder (“ADHD”), Specific Learning Disorders in Reading, Written Expression and Mathematics, Other Specified Disruptive Impulsive-Control, and Conduct Disorder, and Generalized Anxiety Disorder, classified as a student with a speech or language impairment (Parent Ex. “J”, “K”, and “AA”). Her classification and eligibility for special education supports and services are not in dispute.

The Parent unilaterally placed the Student at the REDACTED Elementary School (“REDACTED”), for the 2019/2020 school year. The Parent now seeks reimbursement for the cost of the Student’s tuition at REDACTED for the 2019/2020 school year, reimbursement for the cost of the Student’s meals (breakfast and lunch) while attending REDACTED and payment for compensatory services in the form of six hundred (600) hours of REDACTED, including transportation for the Student and the Parent to and from such services at the provider’s customary rate on a schedule of the Parent’s choosing (Parent Ex. “A”). Parent’s claims are based in part on the District’s alleged failure to provide a free appropriate public education (“FAPE”) to the Student for the 2016/2017 through 2019/2020 school years.

FINDINGS OF FACT AND DECISION

  • • Section 504 of the Rehabilitation Act of 1973 (“504”) and the IDEA
  • • 504 In the instant matter the Parent argues that because the Parent satisfied her burden as to the claims brought under Section 504 of the Rehabilitation Act, the claims for the 2016/2017 school year are timely and should not be dismissed (see: IHO Ex. “II” at p. 12-13). In this regard the Parent explains that the DPC was filed on January 3, 2020, which was within three (3) years of the District’s failure to implement the Student’s IEP during the 2016/2017 school year [which ended on June 30, 2017]. Id. The Parent bases her argument, on how poorly the Student was performing in her general education program, during the 2016-2017 school year, which acknowledged she needed support and then did nothing to remediate the harm (IHO Ex. “II” at p. 11).

The Parent continues to argue regarding satisfaction of her burden under 504, that the “IEPs and DOE documents in evidence, as well as the uncontested testimony of the Parent at this hearing demonstrating the need of this student, the alleged harm that she suffered educationally and emotionally, and the DOE’s total failure to address the Student’s erroneous placement in a regular education class, for a full school year. Ex. D, E, F, G.” Moreover, while documenting the high level of a need, including 1:1 teacher support for academics, the IEP Team “openly admitted” the Student had not been evaluated in her areas of suspected disability (Parent cites Parent Ex. “E-2” and Butler v. S. Glens Falls Cent. Sch. Distr., 106 F.Supp.2d 414, 421 (N.D.N.Y. 2000). This admission did not however result in the DOE doing any more evaluations. Id.

The DOE argues that the Parent’s claims for the 2016/2017 school year are untimely because they were not brought within the two (2) year statute of limitations set forth in the IDEA[1] and the two exceptions to such statute of limitations do not apply in this matter, instead of addressing this 504 argument. Id.

The applicable statute of limitations for claims arising under Section 504 of the Rehabilitation Act is a three-year period. B.D. et al. v. Kaplan et al., 130 F. Supp. 2d 401 (S.D.N.Y. 2000) citing Bates v. Long Island Railroad Co., 997 F.2d 1028, 1037 (2d Cir.1993). In the Second Circuit, a cause of action accrues "when the plaintiff knows or has reason to know of the injury that is the basis of the action." Hili, 955 F. Supp. at 181, quoting Woods v. Candela, 825 F. Supp. 43, 45 (S.D.N.Y.1993).

Parents of children with disabilities may bring claims under Section 504 of the Rehabilitation Act. 20 U.S.C. § 1415(b)(1). Section 504 provides that "no otherwise qualified individual with a disability... shall, solely by reason of her of his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance." Scaggs et al. v. New York State Dep’t of Educ., et al., 48 IDELR 10 (E.D.N.Y. 2007) citing 29 U.S.C. § 794. Under 504, school districts are required to provide a FAPE through special education and related services. Id. citing 34 C.F.R. § 104.33 (stating that under Section 504, "[a] recipient [of federal funding] that operates a public elementary or secondary education program or activity shall provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap", and setting forth special education and IEP requirements).

Section 504 addresses discrimination against disabled students, rather than incorrect or erroneous special education treatments, as in the case of IDEA. Id. To establish a prima facie case for disability discrimination under Section 504 or the ADA (the “Acts”), the plaintiff most show three prongs:

  • • That [the student] is a qualified individual with a disability;
  • • That the Defendants are subject to one of the Acts; and
  • • That [the student] was denied the opportunity to participate in or benefit from defendant’s services, programs, or activities or [was] otherwise discriminated against by defendants by reason of [his] disability.

L.V. v. New York City Dep’t of Educ., 19-CIV-05451 (S.D.N.Y. 7/17/20) (quoting Powell v. Nat’l Board of Med. Examiners, 364 F.3d 79, 85 (2d. Cir. 2004) (quoting Henrietta D. v. Bloomberg, 331F.3d 261, 272 (2d. Cir. 2003), opinion corrected, 511 F.3d 328 (2d Cir. 2004). Like in L.V., supra, in the instant case, the first and second prong are not at issue; the Student is a qualified individual with a disability, and the DOE is subject to both the Acts.

To satisfy the third prong, the Parent must prove sufficient facts to show the DOE’s conduct “‘was motivated by discriminatory animus or ill will based on the plaintiff's disability.’ See Garcia v. S.U.N.Y. Health Sciences. Ctr. of Brooklyn, 280 F.3d 98, 111 (2d Cir. 2001) (such actions are akin to those "proscribed by the Fourteenth Amendment—i.e., conduct that is based on irrational prejudice or wholly lacking a legitimate government interest").” Id. Similarly, when alleging a 504 claim the Parent must prove sufficient facts to “show that the violation was carried out with "deliberate indifference" as to the individual's disability. See id. at 115; see also C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840-41 (2d Cir. 2014) (a claim under Section 504 of the RA "requires proof of bad faith or gross misjudgment"); Wenger v. Canastota Cent. Sch. Dist., 979 F.Supp. 147, 152 (N.D.N.Y. 1997) ("[S]omething more than a mere violation of the IDEA is necessary in order to show a violation of Section 504 in the context of educating children with disabilities, i.e., a plaintiff must demonstrate that a school district acted with bad faith or gross misjudgment."), aff'd mem., 208 F.3d 204 (2d Cir. 2000).” Id.

In L.V., supra, the Court granted defendant’s motion to dismiss, holding in relevant part, that plaintiffs “rely primarily on their list of allegations regarding the substantive and procedural deficiencies of the IEP and the IEP processes to argue they have made the requisite showing connecting any violations to disability discrimination by Defendant”..., which “... is insufficient to render the allegations of disability discrimination plausible, because nothing alleged creates an inference of animus based on [the Student’s] autism (citation omitted).” Id. The Court therefore found, plaintiffs had failed to make the requisite showing under 504, because they failed to allege that their child was treated differently from non-disabled peers or denied reasonable accommodations based on his disability. Id. citing Doe v. Mills, No. 04-cv-2919 (RWS), 2005 WL 900620, at *8 (S.D.N.Y. 2005). The Court continued to explain:

Plaintiffs further argue that they sufficiently "pleaded Defendant's ‘deliberate indifference' to Plaintiffs' rights by its repeatedly refusing to comply with IHO orders." (Citation omitted.) Again, while the facts surrounding Defendant's conduct may sufficiently support a plausible claim for a violation of the IDEA with respect to the pendency orders, there are no facts suggesting any alleged indifference to Plaintiffs' rights was motivated by J.V.2's autism. Accordingly, I recommend that Defendant's motion to dismiss be granted with respect to Claims 2 and 5 for failure to state plausible claims of disability discrimination.

Id. citing Doe v. Mills, No. 04-cv-2919 (RWS), 2005 WL 900620, at *8 (S.D.N.Y. 2005).

In the instant case the Parent attempts to satisfy the third prong, by arguing that even though they acknowledged the need for support, the DOE did nothing to remediate the harm resulting from how poorly the Student was performing in her general education program, during the 2016-2017 school year (IHO Ex. “II” at p. 11). More specifically, even though the DOE was supposed to provide a the Student with a 12:1+1 class for kindergarten, pursuant to her Individualized Education Program (“IEP”) dated March 30, 2016, she remained in a general education class without her related services at P.S. 368, where she “struggled”, “wasn’t learning” and “was doing very poorly” for the entire 2016/2017 school year (Parent Ex. “D”, “F-2”, and Tr. 536-538, 540). This occurred despite the fact that at the meeting held on December 6, 2016, the IEP Team developed an IEP for the Student, contained a 12:1+1 placement for the Student, “because she needed that one-to-one support and she needed a smaller class setting because she wasn’t making the improvement. So at this time, that was the only option they had because she wasn’t retaining information.” (Tr. 539). However, the IEP Team informed the Parent, without explaining why, that the IEP developed at this meeting would not be implemented until June 15, 2017 (Tr. 537-538). The Parent therefore argues, “The IEPs and DOE documents in evidence, as well as the uncontested testimony of the parent at this hearing demonstrating the need of this student, the alleged harm that she suffered educationally and emotionally, and the DOE’s total failure to address the Student’s erroneous placement in a regular education class, for a full school year. Ex. D, E, F, G.” As in L.V., supra, the Parent failed to make the requisite showing under 504, to satisfy the third prong, because she failed to allege and ultimately prove, that the Student was treated differently from non-disabled peers or denied reasonable accommodations based upon her disability and there are no facts supporting a finding by the DOE of any indifference to the Student’s rights was motivated by his disability. Id.

Moreover, “Although the IDEA does not "restrict or limit the rights, procedures, and remedies available under the Constitution, the [ADA], title V of the [RA], or other Federal laws protecting the rights of children with disabilities,’ see IDEA, § 1415(l), courts have nevertheless held that a party may not circumvent the IDEA's administrative procedures by recasting their claims as ones for discrimination against a child under the ADA or RA.” L.V. citing Polera, 288 F.3d 478 (holding claims under the ADA and RA could not be maintained because the requested relief was available under the IDEA. The Court in L.V. supra, also cited Fry v. Napoleon Cmty. Sch., Dist., 137 S.Ct. 743 (2017) and explained that in Fry the district court granted the school district’s motion to dismiss:

... finding that the Frys' grievances were educational in nature, controlled by the IDEA, and therefore, subject to exhaustion under the IDEA. The Sixth Circuit affirmed on appeal. The Supreme Court, however, vacated and remanded, directing the lower court to determine whether the "gravamen" of the Frys' claims were denial of a FAPE or, alternatively, other unlawful disability discrimination. Id. at 754-58.

Noting that the only relief available under the IDEA's administrative process was an order requiring a FAPE, the Court focused its test for determining the gravamen of the ADA and RA claims on the relief sought by the plaintiff. Id. at 753. The Court instructed courts to consider two questions when determining the gravamen of a complaint:

First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance?

Id. at 756. If both of these questions are answered "yes," then the gravamen of the allegations is unlikely to be about the denial of a FAPE, and vice versa. The Court also directed courts to consider the history of any IDEA administrative proceedings, particularly if the complaint never explicitly alleges denial of a FAPE...

Id. (Emphasis added.)

As in Fry, in L.V., the Court found Plaintiff’s complaints of discrimination under the ADA and Section 504 focused on denial of a FAPE as the relief requested included “changes to, and implementation of, the IEP—relief that can be provided through the IDEA administrative process. Id.

Accordingly, the Court L.V. held:

[a]pplication of the Fry test requires, as the DOE correctly argues, dismissal of Plaintiff's ADA and RA discrimination claims. To start, the SAC explicitly seeks a declaration that J.V.2 was denied a FAPE. (SAC at 50, Prayer for Relief (d)(a).) Further, when applying the rule set forth in Fry for determining the gravamen of Plaintiffs' ADA and RA discrimination claims in particular, it is clear the gravamen of the alleged discrimination is denial of a FAPE. First, Plaintiffs could not have brought their discrimination claims if the complained-of conduct took place at a public facility other than a school. The claims are purely educational, and the conduct about which Plaintiff complains all pertains to the IEP process and implementation of J.V.2's IEP. Second, an adult could not have pressed the claims of discrimination under the same facts. An adult, beyond the age of twenty-one, would not qualify for services under the IDEA. See IDEA, 20 U.S.C. § 1412(a)(1)(A). As such, an adult would have no grievance to bring against the administrative processes developed by the DOE and applied to J.V.2, because an adult is not entitled to any educational services.

Id.

As in L.V., the DPC in the instant matter seeks a finding that the Student was denied a FAPE for the 2016/2017 – 2019/2020 school years. Further when applying the rule set forth in Fry, it is clear that the essence of Parent’s 504 discrimination claim is denial of a FAPE. In this regard, the Parent could not have brought their discrimination claim if the, complained of conduct took place at a public facility other than a school; the claims are purely educational and the conduct about which the Parent complains all pertains to the IEP process and implementation. Second, an adult could not have maintained these claims of discrimination under the same facts because an adult beyond the age of twenty-one would not qualify for services pursuant to an IEP under the IDEA. “As such an adult would have no grievance to bring against the administrative processes developed by the DOE and applied to [the Student] because an adult is not entitled to any educational services.” Id. Accordingly, in the instant matter the Parent may not circumvent the IDEA's administrative procedures and its applicable statute of limitations by recasting her claims as ones for discrimination against a child under the ADA. As such this IHO finds that the Parent has failed to maintain her claim under Section 504 of the Rehabilitation Act, and therefore the three-year statute of limitations does not apply.

  • • IDEA:

The IDEA sets forth two exceptions to its two-year statute of limitations. Specifically, the statute provides, in relevant part:

The [statute of limitations] shall not apply to a parent if the parent was prevented from requesting the hearing due to –

(i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or

(ii) the local educational agency's withholding of information from the parent that was required under this Subchapter to be provided to the parent.

20 U.S.C. § 1415(f)(3)(D).

First, the Parent argues that the two (2) year statute of limitations should be tolled because of “The DOE’s misinformation to the parent” from the point in the 206/2017 school year; when the Parent went to the DOE in September 2016, to address their inappropriate placement of the Student in a general education class and instead of being instructed of her due process rights she was told the special education teacher “was coming”.[2] Id. citing Tr. 536 – 537 (IHO Ex. “II” at p. 15). However, there is nothing in the record indicating that the DOE’s statement led the Parent to believe the matter had been “resolved”. In fact, the Parent testified when she attended the IEP Team meeting for the Student on December 16, 2016, she stated that the Student needed in part the support of a Special Education teacher that she was not receiving at that time thus demonstrating she knew the matter had not been resolved (Tr. 538).

Next, the Parent asserts that the statute of limitations was tolled because the DOE allegedly failed to properly provide the parent with a copy of the procedural safeguards notice by providing a written copy instead of directing the parent to the website (IHO Ex. “II” at p. 14-15).

Federal and local regulations require a school district to provide parents with a notice of procedural safeguards on certain specified occasions:

(a) General. A copy of the procedural safeguards available to the parents of a child with a disability must be given to the parents only one time a school year, except that a copy also must be given to the parents --

(1) Upon initial referral or parent request for evaluation;

(2) Upon receipt of the first State complaint under §§ 300.151 through 300.153 and upon receipt of the first due process complaint under § 300.507 in a school year;

(3) In accordance with the discipline procedures in § 300.530(h); and

(4) Upon request by a parent.

34 C.F.R. § 300.504; see also 8 NYCRR § 200.5(f)(3).

First, “it does not appear that the regulations require the school district to provide parents with a copy of the procedural safeguards at every CSE meeting, as long as the parents receive a copy once per year.” R.B., on behalf of his minor child, A.B., v. Dep’t. of Educ. of the City of New York, et al., 57 IDELR 155 (S.D.N.Y. September 16, 2011) Accordingly, the Parent’s argument that “for the time period prior to January of 2018, the DOE presented no evidence showing that it provided [the Parent] with notice of her procedural rights...” therefore, tolling the statute of limitations, does not state a violation on its face (IHO Ex. “II” at pp. 14 -15). Id.

Moreover, "only those procedural violations of IDEA which result in loss of educational opportunity or seriously deprive parents of their participation rights are actionable." Id. citing C.M. v. Bd. of Educ., 128 F. App'x 876, 881 (3d Cir. 2005) (per curiam). Here, there is no evidence in the record that Plaintiff was denied meaningful participation in the development of the Student’s IEP as a result of the DOE failure to properly provide the procedural safeguards. To the contrary, the record indicates that the Parent participated in numerous IEP team meetings for the Student, making her opinions known regarding the recommended placement and services for the Student, including, IEP Team meetings held on March 30, 2016 at which the IEP was developed for the 2016/2017 school year, and thereafter for the subsequent school years up until the 2019/2020 school year (Parent Ex. “D”, “I”, “Q”, “R” and “V”) (Tr. 533, 538-539, 562, 569, 579-580).

Finally, the Parent argues that based upon K.H. v. New York City Dep’t of Educ., 2014 WL 3866420 at 19 (E.D.N.Y. 2014)[3], the Parent’s claims did not accrue until she had reason to know that her daughter would have made more progress with different supports, and are therefore timely. Id. at p. 15-16. In K.H., supra, “the court determined that the statute of limitations did not run on the plaintiff’s IDEA claim until he had the ‘critical facts’ - in particular, an evaluation with accurate diagnoses – to know he had been injured by the school district’s placement. Id. at 18 (IHO Ex. “II” at pp. 15-16). The Parent explains, as in K.H., [the Parent] lacked the “critical facts” to recognize her daughter’s needs until she received a copy of the neuropsychological evaluation in April of 2018 detailing [the Student’s] academic potential, her average on-verbal sills, and the specific interventions she would receive in order to have an appropriate education.” Id. at p. 16 citing Parent Ex. “J”.

However, K.H., is distinguishable from the instant case.  In this matter, the information that the Parent received pursuant to the neuropsychological evaluation in April 2018 “detailing [the Student’s] academic potential, her average non-verbal skills, and the specific interventions she should receive in order to have an appropriate education” was in addition to the Parent’s knowledge that the Student’s placement and services were not appropriate because from December 2016 up until April 2018 and thereafter, until the Parent enrolled the Student at REDACTED in September 2019, she kept asking in part, the DOE for more support (IHO Ex. “II” at p. 16; Tr. 532, 533, 534, 538, 539, 540, 569, 570, 573, 579, 580, 581, 593. 599 and 601). In fact, the Parent changed the Student’s school to PS 28 so that she could receive the one-on-one support in a small 12:1+1 class (Tr. 540-541)

Moreover, in her DPC, the Parent asserts numerous procedural and substantive claims regarding the Student’s special education program and services for the 2016/2017 through 2019/2020 school years, e.g., that the DOE failed to appropriately evaluate the Student, recommend appropriate IEP services, implement the IEP once created, even though it was inappropriate, provide all IEP progress reports, help the Student make appropriate progress, convene an IEP Team meeting when the Student struggled, held IEP Team meetings that were substantively and procedurally flawed, etc. (Parent Ex. “A”).  These allegations by the Parent also included why each of the IEPs from March 2016, for the 2016/2017 school year, through the 2019.2020 school year failed to allegedly provide the Student with a free appropriate public education (“FAPE”). Accordingly, the Parent's claims accrued at the time of the respective IEP Team meetings, or when the Parent received a copy of each resultant IEP, notwithstanding that the Parent may have subsequently ‘acquired additional information’ about her claims” Application of a Student with a Disability, Appeal No. 16-012 & 16-013 (2016) citing Roges v Boston Pub. Schools, 2015 WL 1841349, at *3 (D. Mass. Apr. 17, 2015). Accordingly, since the Parent cannot maintain a claim under 504 and neither of the two exceptions under the IDEA the two-year statute of limitations under the IDEA applies to the instant matter.

Tuition Reimbursement Claim for the 2019/2020 School Year The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A)). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 137 S. Ct. 988 (2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement ( NYS Educ. Law § 4404(1)(c)).

  • • The IDEA empowers a hearing officer to grant relief he/she deems appropriate. 34 CFR §300.516(c)(3). One such remedy is reimbursement of tuition and related expenses. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, (1985). Notably, the mere fact that the state educational agency and/or LEA has not approved the private school placement does not bar the parents from reimbursement. Florence County Sch. Dist. Four v. Carter, supra.

A board of education may be required to pay for educational services obtained for a child by the child's parent, (1) if the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Dep’t. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four et al. v. Carter by Carter, 510 U.S. 7 (1993); see also Frank G. and Dianne G. v. Board of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. Sch. Dist. v. Frank G., 2007 WL 2982269 (2007). Accordingly, the above-stated three (3) prong analysis (the “Burlington Carter Criteria”) is applied to determine whether the board of education is required to reimburse parents for their expenditures for private educational services obtained for a Student by his or her parents. Id.

The inquiry made pursuant to the first prong, may go beyond the appropriateness of the student’s IEP and/or placement and encompass other FAPE claims (see 20 USC §1412(a)(10)(C)(ii); 34 C.F.R. 300.148(a) and (c); Forest Grove v. T.A., 557 U.S. 230 (2009); P.C. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.D.N.Y. 2011); Mr. N.C. v. Bedford Cent. Sch. Dist., 300 F. App’x 11 (2d Cir. 2009). To determine whether the school district made FAPE available to the student in a timely matter, Rowley’s two-part test, as modified by Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017) for appropriateness should be applied. Specifically, the hearing officer must determine whether the school district complied with the procedural requirements of the IDEA and whether the IEP is reasonably calculated to enable the child to make appropriate progress in light of his circumstances. Id. “An appropriate educational program therefore 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.” See Application of the Dept. of Educ., Appeal No. 07-018 (2007). Thus, the annual goals and short-term objectives should be consistent with, and relate to, the identified needs and abilities of the student. See Application of a Student with a Disability, Appeal No. 14-078 (2015) (citing 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 CFR § 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii)).

While the Second Circuit has emphasized that school districts must comply with a checklist of procedures for developing a student’s IEP, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA. See A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’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 student; or (c) caused a deprivation of educational benefits to the student. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).

As more fully explained below, the DOE failed to provide the Student with a FAPE because of its, failure to implement the Student’s IEP at the beginning of the 2019/2020 school year. In this regard, the Parent testified that the DOE failed to offer/provide the Student with her District 75 placement for the 2019/2020 school year, until the third week of September 2019 (Tr. 596-597) (see also school location letter for the 2019/2020 dated September 16, 2019, which was received by the Parent on September 20, 2020 (Parent Ex. “EE”, and “FF”).

The IDEA requires, “[a]t the beginning of each school year, each public agency must have in effect, for each child with a disability within its jurisdiction, an IEP.” 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a); 8 N.Y.C.R.R. § 200.4(e)(1)(ii). If the school district fails to have an IEP that it can implement at the start of the school year, this failure may lead to a denial of FAPE if the failure impeded the child’s right to FAPE, deprived the child of educational benefit or significantly impeded the Parent’s ability from participating in the IEP process. 20 U.S.C. § 1415 (f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2), See Leggett v. D.C., 793 F.3d 59, 67 (D.C. Cir. 2015). See also M.O. v. N.Y.C. Dep’t. of Educ., 793 F.3d 236, 244 (2d Cir. 2015) (holding “it is not speculative to find that an IEP cannot be implemented at a proposed school that lacks the services required by the IEP”). This failure would have led to a denial of FAPE, and deprived the child of educational benefit, because but for the Parent unilaterally placing the Student at REDACTED, the Student would not have been receiving any special education program or services until the third week of September 2016, pursuant to her IEP or otherwise.

Accordingly, the DOE has not met its burden of proof in this proceeding, in that the record fails to demonstrate the appropriateness of the special education program contained in the Student’s IEP for the 2019/2020, e.g. that the IEP is reasonably calculated to enable her to make appropriate progress in light of her circumstances, and regardless, the DOE failed to provide the Student with her District 75 placement at the commencement of the school year.

Since the DOE has failed to meet the first prong of the Burlington/Carter criteria, the Parent has the burden of proving that the unilateral placement was appropriate or proper. Sch. Comm. Of Burlington, 471 U.S. at 369 and 370; see also Carter, 510 U.S. at 15. In order to meet this burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007)). In this regard, the court in Gagliardo explained:

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Id. at 112 (quoting Frank G., 459 F.3d at 364-65).

However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements”. Frank G. v. Board of Educ., at 364. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. Id.

The Parents presented extensive testimony and submitted substantial documentary evidence in support of their position that the REDACTED placement was appropriate. First, Ms. REDACTED (“Teacher”), the Student’s teacher for the 2019/2020 school year testified regarding the functioning levels of the other students in her class, showing how they were similar to the Student, the 12:1+2 ratio of the class and the fact that it allows them to meet the needs of their students by providing one-to-one instruction and allow them to break up into groups to suit the needs of the students (Tr. 459-461, 468). Next, the Teacher testified regarding the Student’s progress during the 2019/2020 school year, based upon the Annual Review and her personal observations of the Student’s progress (Parent Ex. “II”; Tr. 462-463). Specifically, after describing each of the following programs and/or areas of need, the Teacher testified regarding the Student’s progress: reading (Tr. 463-464); writing instruction (Tr. 464-465); math instruction (Tr. 466 – 467), social skills (Tr. 467-469), communication (Tr. 469). The Teacher also explained how REDACTED addresses the Student’s attentional needs (Tr. 467). Finally, the Teacher opined that the Student needed a 12-month program, and how a less restrictive class ratio for the Student was not appropriate (Tr. 469-470). REDACTED, the Admissions Coordinator at REDACTED testified as to the programs and how they were provided to the students, the research based curricula, fact that REDACTED is a 12-month program, offered, the profile of the students at REDACTED (Tr. 418, 423-424).

The testimony of the Parent’s witnesses and the Parent’s documentary evidence established that the Student’s placement at REDACTED was appropriate and provided her educational instruction specifically designed to meet her unique special education needs, supported by such services that are necessary to permit her to benefit from instruction.

The Parents have therefore met the second Burlington/Carter criteria for tuition reimbursement.

The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE. The DOE did not raise any issues that would limit or preclude tuition reimbursement.

Based on the foregoing, this IHO finds that equitable factors support the Parent’s claim for tuition reimbursement for the 2019/2020 school year and the Parent has therefore met the third Burlington/Carter criteria for tuition reimbursement. Having met all three of the Burlington/Carter criteria, the Parent is entitled to reimbursement/funding for the cost of the Student’s 2019-2020 tuition at REDACTED (Parent Ex. “CC” and “JJ”).

COMPENSATORY SERVICES

The Parent requests the DOE pay for six hundred (600) hours of one-to-one academic remediation from REDACTED, including transportation for the Student and her Parent at the provider’s customary rate on a schedule of the Parent’s choosing because of the alleged deprivations of FAPE “over several years” that have left the Student significantly below grade level (Parent Ex. “A”; IHO Ex. “II” at p. 26).

The DOE did not object to the request for compensatory services in its closing brief, or the type of compensatory services requested or the number of hours of services requested (IHO Ex. “II” at 3-4). Nor did it specify the level and type of services that it deemed would be an appropriate compensatory award. The DOE did, however, object to the six hundred (600) hours of compensatory tutoring services and Dr. REDACTED/REDACTED providing such services. The DOE alleges:

The record is devoid of any testimony or documentary evidence with respect to how Dr. REDACTED arrived at the 600 hours of remedial tutoring. The standard for awarding compensatory services should focus on compensating the student for service not received; it’s not intended to bring the student’s skills to a guaranteed result of a specific level of educational benefit. Although Dr. REDACTED reviewed additional records relating to the student, the Department submits that without a report and the meager assessments do not justify the excessive number of recommended compensatory service hours sought in the in that case. Further, it appears that Dr. REDACTED never contacted the student’s school to corroborate any of her findings. The Department submits that EBL did not comprehensively assess the student as the EBL “assessment” lacks any information regarding the student’s performance at her school.

Finally, the Department submits that Dr. REDACTED/EBL has a vested financial interest in a seven[sic] hundred (600) hours of services recommendation because of the potential reap significant financial benefits by recommending that level of services (i.e. 600 hours of services at a rate of $125.00/hour totals $75,00.00)[sic] In conclusion, the Department submits that Dr. REDACTED/EBL did not properly assess the student’s unique special education deficits and without any corroboration from the student’s school, their remedy is unsubstantiated and improper less be awarded. Any award to REDACTED does not guarantee that the student will be receiving services from a qualified, special education teacher.

IHO Ex. “II” at pp. 7-8.

With regard to compensatory education, in the second circuit, it is established that the IDEA allows a hearing officer to fashion an appropriate remedy, and therefore courts have held “compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. v. Newington, 546 F.3d 111 (2d Cir. 2008) [internal citations omitted].

Ordering compensatory education is not automatic or a matter of quid pro quo, where a student gets one hour for every hour missed of compensatory time, nor any other such formula. Accordingly, an order of compensatory education is an equitable remedy available to a hearing officer or judge. Rather than being awarded pursuant to a formula, the ultimate award must be fact-specific and, to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that would have accrued from special education services the school district should have supplied in the first place. Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005), 524. Note that Reid was cited by the second circuit in Newington, in reaching its conclusion that compensatory education is an option. Reid, supra, emphasizes that compensatory services are equitable relief; they are not a contractual remedy.

There are primarily two competing approaches utilized in fashioning a compensatory education award, namely the “quantitative” approach authored by the Third Circuit[4], and the “qualitative approach relied upon by the Sixth and D.C. Circuits[5]. Although compensatory is a form of equitable relief, at times courts have used a quantitative method to calculate the amount of services missed so that the services can be made up through compensatory education. M.C. on behalf of J.C. v. Cent. Reg l Sch. Dist., 81 F.3d 389 (3d Cir. 1996); Manchester Sch. Dist. v. Christopher B., 807 F. Supp. 860 (D.N.H. 1992). However, neither the Second Circuit[6] nor the New York courts[7] have taken a position on a preferred approach. Accordingly, Hearing Officers have discretion as to which approach to apply.

No matter which approach, when determining the appropriate equitable remedy for compensatory services, the IHO may go back in time even for many years. The third circuit explained as follows:

... absent one of the two statutory exceptions found [in section] 1415 (f) (3)(D), parents have two years from the date they knew or should have known of the violation to request a due process hearing through the filing of an administrative complaint and that, assuming parents timely file that complaint and liability is proven, Congress did not abrogate our longstanding precedent that a disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem.

D.F. Ex. Rel. A.C. v. Collingswood Bor. Board of Educ., 694 F,3d 488, 499 (3d Cir. 2012 (quoting, 81 F.3d at 397.)

In G.L. v.  Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3rd Cir. 2015), the court clearly held that the equitable relief could go back for many years in cases of compensatory education. Id. Among the lower court cases cited by G.L. to support this proposition was the New York case of K.H. v. New York City Dep’t. of Educ., No. 12-CV-1680, 63 IDELR 295 (E.D.N.Y. 2014). Accordingly, there is no bar to compensatory education addressing the number of years of poor provision of educational services, as alleged by parent counsel in this matter. In the instant mater, even though the DOE was supposed to provide the Student with a 12:1+1 class for kindergarten, pursuant to her IEP dated March 30, 2016, she remained in a general education class without her related services at P.S. 368, throughout the school year, where she “struggled”, “wasn’t learning” and “was doing very poorly” for the entire 2016/2017 school year (Parent Ex. “D”, “F-2”, and Tr. 536-538, 540). The IEP developed by the IEP Team at the meeting held on December 6, 2016, contained a 12:1+1 placement for the Student, “because she needed that one-to-one support and she needed a smaller class setting because she wasn’t making the improvement. So at this time, that was the only option they had because she wasn’t retaining information.” (Dist. Ex. “21”; Tr. 539). However, the IEP Team informed the Parent that the IEP developed at this meeting would not be implemented until June 15, 2017 but did not explain why (Tr. 537-538).

The Parent transferred the Student to a different District school, REDACTED, for first grade, the 2017/2018 school year, so that she could receive the 12:1+1 program pursuant to her IEP (Tr. 540-541). However, the Student suffered from school avoidance starting at the beginning of the school year. She had “anxiety issues” going to school and was “struggling”. While walking to school every day she would tantrum; “she was crying, she was exhibiting difficult behavior because on our way walking to school it was long and [word missing in transcript] for her” (Tr. 341). In a letter dated September 19, 2017 the Student’s pediatrician, Dr. REDACTED, stated that the Student would benefit from the District providing her with roundtrip transportation between her home and school because she needed to be supervised at all times, has ADHD, does not focus or follow directions (Parent Ex. “H”, Tr. 542-544). The Parent explained that Dr. REDACTED. wrote this letter because in addition to the above-stated reasons, the Parent had expressed her concerns over the Student walking to and from school, that it was very hard getting there; that the Parent had safety concerns because the Student was tantruming “too many times... and it was hard because as a parent, I was - - I was exhausted getting there. I used to call it a mission.” (Tr. 543-544). The IEP Team rejected the Parent’s request for transportation, despite this letter by Dr. REDACTED, without giving a reason, just that they could not provide it at that time (Tr. 552-553).

Moreover, the teacher told the Parent the Student cried at school. The Parent testified that the Student did not want to be at that school because she had a lot of anxiety caused by the fact that she wanted to learn but she knew she had a problem. Id. It was frustrating for both the Parent and the Student, which caused the Student to sometimes get aggressive when she was doing her homework. Id. In fact despite the DOE stating that the Student needs one-to-one support of all academic tasks, her teacher stating that she lacked “basic foundational skills necessary for kindergarten work””, and that she was doing poorly, e.g. in math, she received a “0” on the Go Math assessment, at the meeting held on November 11, 2017, the IEP Team failed to change the Student’s class size and/or provide her with more support in her program e.g. in math, she received a “0” on the Go Math, at the meeting held on November 11, 2017 (Parent Ex. “I”; Tr. 548, 550). Moreover, the IEP Team failed to give any reason as to why they eliminated the Student’ individual speech session (Tr. 550-551). In addition, after noting that the Student exhibited regression after holidays and vacations”, with which the Parent agreed, the IEP Team did not recommend a twelve month program because of her placement in a 12:1+1 class (Tr. 552).

  • • In December 2017, the Parent obtained a private neuropsychological evaluation by the REDACTED at REDACTED, because she wanted to know why the Student was not progressing, regressing, not retaining the information being taught and what type of learning disorder she had either the School or Parent could help her (Parent Ex. “J”; Tr. 553-554). The evaluation recommended in part the following regarding the Student’s special education program and services:
  • • Since the Student’s 12:1+1 placement “is not sufficient to address her needs” she requires placement in a smaller, nurturing educational environment where she will have the opportunity for instruction with educators who are expert in implementing evidence base interventions with children with severe learning disabilities... in light of the [the Student’s] anxiety as well as weaknesses in executive functioning, she requires-placement in a school setting that provides regular access to mental health professionals... in a classroom that provides exposure to grade level content... with peers who have commensurate and average cognitive abilities... not in a school setting with children who have externalizing behaviors.”
  • • Daily, evidence-based individualized support in her academic skills e.g., reading, math, written expression to address her learning disability in reading, written expression and mathematics.
  • • Both individual and group speech language therapy to address her profound language delays and Language Disorder.
  • • Social Skills training.
  • • School Counseling on both a pull out and push in basis, to help build confidence, self-esteem and coping skills around her academic and social difficulties.

(Parent Ex. “J” at p. 13-15.) While in the Teacher’s Report dated June 1, 2018, by REDACTED she states in part, the “academic and functional needs of the student including the concerns of the parent/s[sic]... [the Student] requires 1:1 teacher support for all academic tasks.” (Parent Ex. “N”.) Nevertheless, the IEP dated June 6, 2018, for the 2018/2019 school year, recommended that the Student remain in her then current placement of 12:1+1, which the Parent alleges did not meet her needs (Parent Ex. “Q”).

Pursuant to the Student’s Report Card for the 2017/2018 school year, she received as her final grades, a “1” (well below standards), and/or “2”, (below standards) in all of her core academic subjects, consisting of English Language Arts, Writing, Reading, Mathematics, Science, and Social Studies and History 1 (Parent Ex. “S”).

During the 2018/2019 school year, the Student continued to struggle to follow academic directions, require verbal prompting, and repetition, struggle to complete work independently require 1:1 teacher support for all academic subjects, exhibit behaviors such as crying, putting her head down and ignore teacher feedback, at the meeting held on June 6, 2018, the IEP Team recommended to continue the Student’s placement in a 12:1+1 class for the 2018/2019 school year (Parent Ex. “Q”). Notably, the IEP from this meeting states in part, even though the Student had made some progress, “her academic language skills are not functional for grade level work.” Id. In addition, when the Parent asked why the IEP Team did not offer a twelve month or extended school year to the Student, they replied that they could not offer it to a 12:1+1 student (Tr. 572-573). At this meeting the “Columbia Team” (who had prepared the neuropsychological evaluation, discussed infra), stated that the Student needed more than what was being recommended, an individualized school, with more one-on-one support and tutoring in speech, because she was not retaining information and was regressing (Tr. 570). The Parent therefore contends that the IEP Team recommended to continue the Student’s placement, even though it was inappropriate and did not consider the opinion expressed by the Parent or the Columbia Team. Id. The Parent testified she did not agree with the recommended program because she wanted a twelve-month program and the individualized support the Columbia Team had recommended (Tr. 573).

  • • At this meeting, the IEP Team recommended transportation for the Student (Tr. 573). When asked the Parent asked why transportation was appropriate for the Student in 2018 when they had rejected it in November 2017, the IEP Team did not reply. Id.
  • • Moreover, pursuant to the Student’s Report Card for the 2018/2019 school year she again received as her final grades, a “1” (well below standards), and/or “2”, (below standards) in all of her core academic subjects, consisting of English Language Arts, Writing, Reading, Mathematics, Science, and Social Studies and History 1 (Parent Ex. “U”). While the Student’s year end progress report indicated that she had made little progress and would not achieve her goals for the 2018/2019 school year (Parent Ex. “R”).
  • • At the IEP Team meeting held on May 28, 2019, to develop the IEP for the 2019/2020 school year the Parent stated the Student needed a more individualized class, and more one-on-one supports, including tutoring, because she had not been learning (Tr. 579, 580)[8]. The Parent also told the IEP Team that the Student needed a quieter setting to learn in because her class was too disruptive, which the Student’s teacher agreed with (Tr. 580). Despite the fact that the Student’s “whole team” stated at the meeting that the Student was not retaining information, regressing and not making progress, the IEP Team continued to recommend her placement in a 12:1+1 class and didn’t give a reason why they were not recommending a twelve month program (Tr. 580-581).
  • • Thereafter, the Parent obtained a second neuropsychological evaluation of the Student from the REDACTED at REDACTED in June 2019 because she wasn’t retaining information, reading, progressing and to know what type of learning disorder the Student had. Ultimately the Parent wanted to know how she could help the Student at school (Parent Ex. “X”; Tr. 582). The educational recommendations in this report stated in part that the Student’s current placement in a 12:1+1 was not sufficient to address her needs for the reasons set forth therein (Parent Ex. “X”). After receiving this evaluation, the IEP Team met on August 8, 2019 and recommended in part the Student attend a District 75 placement in a 12:1+1 class along with related services (Parent Ex. “AA”).
  • • In a letter dated September 16, 2020, and after the school year had begun, the DOE informed the Parent of the location of the Student’s recommended placement, a District 75 12:1+1 class in P.S. 169 (Parent Ex. “EE”).
  • • As stated above, despite the two-year statute of limitations under the IDEA, there is no bar to seeking relief for the entire period for which compensatory services are sought, as is the case here.

The Affidavit by Dr. REDACTED, explains the testing conducted and how she arrived at recommending the six hundred (600) hours of compensatory education (See Parent Ex. “NN” at ¶¶ 10-12). Regardless, neither party has presented evidence regarding the appropriate hourly rate to be set for the compensatory services, so I have no basis for setting and appropriate rate in this decision and order. The only reference to the rate is in Ms. REDACTED’s Affidavit at ¶14 which states that REDACTED can provide the recommended compensatory education at home at ONE HUNDRED AND TWENTY- FIVE DOLLARS ($125.00) per hour.

Moreover, when a school district deprives a child with a disability of a FAPE in violation of the IDEA a court or hearing officer fashioning appropriate relief may order compensatory education (20 U.S.C. 1415(i)(2)(C)(iii); 34 C.F.R. 300.516(c)(3); Sch. Com. of Burlington v. Dep’t. of Educ., 41 U.S. 359, (1985). Generally, said denial must be more than de minimis Catalan v. Dist. of Columbia, 478 F.Supp.2d 73, 75 (D.D.C. 2007) (court found no evidence that the handful of missed speech therapy sessions added up to a denial of FAPE) quoting Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 348-349 (5th Cir. 2000), cert. denied, 531 U.S. 815 (2000).

Using the quantitative approach, the Parent’s request is easily substantiated for the first five hundred and ten (510) of the six hundred (600) hours requested. In this regard, due to the DOE’s failure to provide the Student with the appropriate class, e.g., special education teacher, for the entire 2016/2017 school year, the Parent has substantiated four hundred and fifty (450) hours of missed instruction. In New York state a kindergarten student receives four hundred and fifty (450) hours of instruction per year[9]. Moreover, due to the DOE’s failure to provide the Parent with a school location letter for the 2019/2020 school year, until September 20, 2019 the Student would have missed at least twelve (12) days of school or sixty (60) hours of instruction, but for the Parent unilaterally placing the Student at REDACTED[10]. Regardless, as seen by the facts set for the above, the DOE’s denial of FAPE was more than de minimis for the 2016/2017 through 2019/2020 school year. Moreover, as aforementioned, Ms. REDACTED’s Affidavit explains why six hundred (600) hours of remedial tutoring/compensatory education is warranted for the Student, in order address her areas of deficit and provide her with the opportunity to reach grade level in reading, writing, spelling and math (Parent Ex. “NN”). Accordingly, the Parent is entitled to the requested six hundred (600) hours of compensatory education in the form of remedial tutoring.

The Parent has also requested the DOE provide transportation for such services. However, due to the fact that Ms. REDACTED’s Affidavit states that such services can be provided at home, virtually or another agreed upon location it is evident that whether or not such services are provided by REDACTED or another instructor, transportation does not appear needed in order for the Student to receive these services (see Parent “NN” at ¶14).

REIMBURSEMENT FOR COST OF MEALS

The Parent argues that based upon C.D. v. New York City Dep’t of Educ., 2009 WL 400382 (S.D.N.Y. 2009):

In the present matter, REDACTED is a student with a disability. Exh. AA. If REDACTED had attended public school for the 2019-2020 school year, she would have received free meals through the DOE, as all students who attend New York City Public Schools are entitled to free breakfast and lunch. https://www.schools.nyc.gov/about-us/news/announcements/contentdetails/2017/09/06/chancellor-fari%C3%B1a-announces-free-school-lunch-for-all Instead, Ms. REDACTED is required to fund REDACTED’s meals for each school day at REDACTED. The sole reason REDACTED is being denied free meals is because the DOE is unable to appropriately serve her as a student with a disability. As such, Ms. REDACTED is entitled to reimbursement from the DOE for the cost of REDACTED’s meals.

IHO Ex. “I” at pp. 27-28.

In C.D. v. New York City Dep’t of Educ., three (3) minor students with learning disabilities had been placed in a private school (at public expense) because their public-school placements could not provide them with a FAPE. 2009 WL 400382 (S.D.N.Y. 2009). Upon being placed in a private school, however, the students were no longer provided with free breakfasts and lunches, which they had been provided at the public schools as a result of their financial need. Id. Although defendants had a facially neutral policy under which private school students were categorically ineligible for the free breakfast and lunch program, the Court held plaintiff had sufficiently pled claims under § 504 (and the ADA) for denial of such benefits. on account of disabilities, based on theories of disparate impact and failure to provide reasonable accommodations. Id.

As explained by the Court in C.D.:

Plaintiffs have successfully stated a claim of disparate impact and a claim for reasonable accommodation. Defendants' policy, as with that in Prince George's County, is outwardly neutral — only students who attend participating schools can receive free meals. But this policy disproportionately affects disabled students, who are the only students who must choose between a FAPE at a non-participating school and free meals at a participating school that cannot meet their needs. Plaintiffs have, as previously discussed, set forth a claim for reasonable accommodation.

Id.

Like the students in C.D., the Student in the instant matter had to choose between a FAPE at a non-participating school and free meals at a participating school that could not meet her needs. Accordingly, the Parent is entitled to reimbursement for the cost of the Student’s breakfast and lunch during the 2019/2020 school while attending REDACTED. However, this IHO’s notes that it is unclear from the receipts submitted by the Parent as to the exact amount (Parent Ex. “GG”).

ORDER

IT IS HEREBY ORDERED that the New York City Department of Education shall reimburse the Parent for the total amount of tuition she paid for the Student’s tuition at the REDACTED School for the 2019/2020 school and fund directly to REDACTED the remaining portion of the Student’s tuition at the REDACTED Elementary School for the 2019/2020 school year with both the DOE’s reimbursement and direct payment to REDACTED for such tuition to be in a total amount not to exceed FIFTY FIVE THOUSAND EIGHT HUNDRED FIFTY DOLLARS ($55,850.00); and AND IT IS FURTHER ORDERED that the New York City Department of Education is directed to fund/provide six hundred (600) hours of one-to-one academic tutoring/compensatory education, to the Student, by a duly licensed professional at the market rate; and AND IT IS FURTHER ORDERED that the Parents request that the DOE be ordered to fund/provide transportation at the provider’s customary rate on a schedule of the Parent’s choosing to such six hundred (600) hours of compensatory education is denied; and AND IT IS FURTHER ORDERED that the New York City Department of Education is directed to reimburse the Parent for the cost of the Student’s breakfast and lunch during the 2019/2020 school while attending REDACTED, upon the Parent’s presentation of receipts for such payment to the DOE.

Dated: October 29, 2020

Corrected: October 30, 2020

Corrected: November 10, 2020

Randy Glasser, Esq.

RANDY GLASSER, ESQ.

Impartial Hearing Officer

DOCUMENTS ENTERED INTO THE RECORD

DISTRICT EXHIBITS

  • • Due Process Complaint, 01/03/2020, 17 pp.
  • • Preschool Evaluations, 04/17/2014, 22 pp.
  • • Child Outcomes Summary Form, 06/24/2014, 9 pp.
  • • Progress Reports, 10/27/2014, 11 pp.
  • • Annual Educational Report, 01/05/2015, 5 pp.
  • • Health Examination Form, 04/30/2015, 1 p.
  • • Behavior Intervention Plan, 06/02/2015, 4 pp.
  • • IEP and Authorization, 06/02/2015, 18 pp.
  • • Related Services Annual Reports, 01/01/2016, 20 pp.
  • • [LEFT BLANK]
  • • Annual Review Documents, 02/04/2016, 21 pp.
  • • Consent for Additional Assessments, 02/25/2016, 1 p.
  • • Classroom Observation, 03/08/2016, 2 pp.
  • • CSE Meeting Notice, 03/19/2016, 5 pp.
  • • Child Outcomes Summary Form, 03/28/2016, 2 pp.
  • • CSE Meeting Notice, 03/28/2016, 5 pp.
  • • Corrected CSE Meeting Notice, 03/28/2016, 5 pp.
  • • Individualized Education Program, 03/30/2016, 23 pp.
  • • Prior Written Notice, 03/31/2016, 6 pp.
  • • Prior Written Notice, 05/09/2016, 5 pp.
  • • Individualized Education Program, 12/06/2016, 21 pp.
  • • Speech-Language Referral, 05/04/2017, 2 pp.
  • • CSE Meeting Notice, 05/23/2017, 3 pp.
  • • Prior Written Notice, 06/19/2017, 4 pp.
  • • Consent for Additional Assessments, 10/02/2017, 2 pp.
  • • Request for Re-Evaluation, 10/02/2017, 2 pp.
  • • Teacher Report, 10/19/2017, 6 pp.
  • • CSE Meeting Notice, 11/09/2017, 3 pp.
  • • Classroom Observation, 11/14/2017, 2 pp.
  • • Student Attendance Report, 11/17/2017, 1 p.
  • • Individualized Education Program, 11/17/2017, 24 pp.
  • • Prior Written Notice, 11/27/2017, 4 p.
  • • Authorization for Release of Records, 12/18/2017, 3 pp.
  • • Neuropsychological Evaluation, 02/12/2018, 22 pp.
  • • Consent for Re-Evaluation, 04/30/2018, 2 pp.
  • • CSE Meeting Notice, 05/14/2018, 1 p.
  • • CSE Meeting Notice, 05/14/2018, 3 pp.
  • • CSE Meeting Notice, 05/23/2018, 3 pp.
  • • Speech-Language Referral, 05/29/2018, 2 pp.
  • • Student Progress Report, 05/30/2018, 3 pp.
  • • Student Work Samples, 06/01/2018, 16 pp.
  • • Teacher Report, 06/01/2018, 5 pp.
  • • Student Progress Report, 06/04/2018, 2 pp.
  • • Individualized Education Program, 06/06/2018, 19 pp.
  • • Prior Written Notice, 06/28/2018, 4 pp.
  • • Speech-Language Referral, 10/24/2018, 2 pp.
  • • CSE Meeting Notice, 05/14/2018, 3 pp.
  • • OT-PT Clinical Guide, 05/18/2018, 2 pp.
  • • Individualized Education Program, 05/28/2018, 23 pp.
  • • Prior Written Notice, 06/07/2018, 4 pp.
  • • Neuropsychological Evaluation, 06/20/2018, 11 pp.
  • • Request for Re-Evaluation, 08/06/2018, 1 p.
  • • Consent for Additional Testing, 08/06/2018, 1 p.
  • • Consent for Use of Electronic, Mail 08/06/2018, 1 p.
  • • Social History Update, 08/08/2018, 2 pp.
  • • CSE Meeting Notice, 08/08/2018, 3 pp.
  • • Individualized Education Program, 08/08/2018, 29 pp.
  • • CSE Meeting Minutes, 08/08/2018, 5 pp.
  • • Prior Written Notice, 09/04/2018, 4 pp.
  • • Notice of Unilateral Placement, 09/12/2018, 5 pp.
  • • Prior Written Notice, 09/16/2018, 4 pp.
  • • School Location Letter, 09/16/2018, 2 pp.
  • • Speech-Language Referral, 09/17/2018, 2 pp.
  • • OT Management Needs Rationale, 01/17/2020, 1 p.

PARENT EXHIBITS

  • • Impartial Hearing Request, 1/3/2020, 17 pp.
  • • Annual Report, 1/29/2016, 10 pp.
  • • Classroom Observation, 3/8/2016, 1 p.
  • • Individualized Education Program, 3/30/2016, 18 pp.
  • • Individualized Education Program, 12/6/2016, 16 pp.
  • • New York City Department of Education Class Size Report, 2/15/2017, 2 pp.
  • • Report Card, 6/21/2017, 2 pp.
  • • Request for Transportation, 10/2/2017, 3 pp.
  • • Individualized Education Program, 11/17/2017, 14pp.
  • • REDACTED at Columbia Neuropsychological Evaluation New York City Department of Education Reevaluation Form, 4/11/2018, 21 pp.
  • • New York City Department of Education Reevaluation Form, 4/27/2018, 2 pp.
  • • Teacher Report Update, 5/4/2018, 1 p.
  • • Notice of May 15, 2018 Individualized Education Program Meeting, 5/14/2018, 3 pp.
  • • Teacher’s Report, 6/1/2018, 5 pp.
  • • Student Work, 6/1/2018, 16 pp.
  • • Student Reading Record Card, 6/1/2018, 1 p.
  • • Individualized Education Program, 6/6/2018, 14 pp.
  • • Individualized Education Program Progress report, 6/13/2018, 5 pp.
  • • 2017-2018 Report Cards, 11/14, 2017-6/13/2018, 8 pp.
  • • Student Intervention Log Report, 10/24/2018, 1 p.
  • • 2018-2019 Term I Report Cards, 11/14/2018 -3/6/2019, 4 pp.
  • • Individualized Education Program, 5/21/2019, 23 pp.
  • • Behavioral Assessment System for Children 3, Teacher Rating Scales, 6/19/2019, 7 pp.
  • • REDACTED Neuropsychological Evaluation, 6/20/2019, 11 pp.
  • • IEP Meeting Minutes, 8/8/2019, 5 pp.
  • • Social History Update, 8/8/2019, 2 pp.
  • • Individualized Education Program, 8/8/2019, 29 pp.
  • • Ten-Day Notice, 9/12/2019, 7 pp.
  • • REDACTED Contract, 9/17/2019, 3 pp.
  • • REDACTED Program Description, 9/17/2019, 2 pp.
  • • School Location Letter for P.S. 169, 9/17/2019, 9/17/2019, 1 p.
  • • P.S. Rejection Letter, 10/16/2019, 10/16/2019, 5 pp.
  • • Meals Receipts, 12/9/2019 – 1/6/2020, 12/9/2019 – 1/6/2020, 4 pp.
  • • Left Blank
  • • REDACTED Annual Review Reports, 6/1/2020 – 6/20/2020,
  • • REDACTED Payments, 9/12/2019 – 6/6/2020, 9 pp.
  • • REDACTED Tuition Affidavit, 7/10/2020, 1 p.
  • • REDACTED Attendance Records, 7/14/2020, 1 p.
  • • Reading A – Z Correlation Chart, 7/29/2020, 1 p.
  • • Affidavit of REDACTED, 7/29/2020, 2 pp.

IHO EXHIBITS

I. Closing Statement for the Department of Education, undated, 8 pp.

  • • Closing Brief (for the Parent), undated, 28 pp.
  • • Extension Order, 7/15/20, 1 p.
  • • Extension Order, 8/21/20, 1 p.
  • • Extension Order, 9/25/20, 1 p.

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[1] Specifically, the District argues that the claims are time-barred because they were not brought within two years after IEP team meeting that developed the IEP at issue and more than two years after the start of the 2016/2017 school year (IHO Ex. “”I” at p. 2).

[2] The District argues that neither of the two (2) exceptions to the two-year statute of limitations apply (see IHO Ex. “I” at p. 4).

[3] I note this case states that it is not for electronic or print publication.

[4] See, e.g. M.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996) holding that when a school district knows or should know that a disabled child’s program is deficient yet fails to correct it, the child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the program. See also: Manchester Sch. Dist. V. Christopher B., 807 F. Supp. 860 (D.N.H. 1992).

[5] See, e.g., Reid v. Dist. of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (adopting a flexible, fact-specific approach in which the ultimate award ids reasonably calculated to provide the educational benefits that likely would have occurred from special education services that the school district should have supplied In the first place).

[6] See, L.O. v. New York City Dep’t. of Educ., 822 F.3d 95 (2d Cir. 2016) (remanding to the district court to determine whether the student is entitled to relief by “‘leav[ing] the mechanics of structuring the compensatory education award to the [D]istrict [C]ourt’s sound discretion’”); Doe v. East Lyme Board of Educ., 700 F.3d 440 (2d Cir. 2015 (remaining to the District court to decide whether compensatory education should be limited to the kinds of services specified in the student’ contested IEP or encompass analogous educational services appropriate to the student’s current needs).

[7] See, e.g., Student X. v. New York City Dep’t. of Educ., 51 IDELR 122 (E.D.N.Y. 2008) (noting that the Second Circuit has not adopted a test for determining how to calculate an award of compensatory education but awarding hour-for-hour).

[8] Even though the IEP from this meeting is dated May 21, 2020, the IEP Team met on May 28, 2020 to develop this IEP (Tr. 578).

[9] ATTENDANCE AND THE SCHOOL CALENDAR: Guidelines and Reporting for State Aid Purposes Effective through the End of the 2017-18 School Year, NYSED, State Aid at https://stateaid.nysed.gov/attendance/attendance_memo.htm (last accessed October 27, 2020); Districts to tally instructional time in terms of hours, not days, NYSSBA On Board Online, April 23, 2018 at https://www.nyssba.org/news/2018/04/20/on-board-online-april-23-2018/districts-to-tally-instructional-time-in-terms-of-hours-not-days/ (last accessed October 27, 2020).

[10] See United Federation of Teacher’s 2019-20 New York City School Calendar at https://www.uft.org/news/2019-20-new-york-city-school-calendar (last accessed October 28, 2020).