New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 547034 - NYC: 203563

COVER SHEET

Case Number 203563

Date of Request November 4, 2020

Hearing Officer Sharyn Finkelstein

FINDINGS OF FACT AND DECISION

Student’s Name REDACTED

Case Number 203563

Date of Birth REDACTED

District REDACTED

Hearing Dates October 29, 2021

December 14, 2021

Record Close January 18, 2022

Hearing Officer Sharyn Finkelstein

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 29, 2021

FOR THE STUDENT

REDACTED Attorney

FOR THE DEPARTMENT OF EDUCATION

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 14, 2021

FOR THE STUDENT

REDACTED Attorney

REDACTED Parent

REDACTED Neuropsychologist

REDACTED Assistant Director, REDACTED

FOR THE DEPARTMENT OF EDUCATION

REDACTED District Representative

I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the special education of REDACTED (“Student”) for the 2009-2010 through the 2019-2020 school year. There were several conferences held after the end of the resolution session and it was clear that the matter had to go forward at a hearing. Hearings began on October 29, 2021 and were concluded on December 14, 2021.

The parties moved to extend the compliance date on several occasions in light of witness availability and preparation for hearing. In considering the requests. I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution in this matter.

Attached is a list of persons who attended the hearing and evidence that was submitted. The record was closed on January 18, 2022.

BACKGROUND

Student is REDACTED and has been diagnosed with ADHD, specific learning disability with impairment in reading, major depressive disorder and generalized anxiety disorder.

Student struggles with executive functioning. She is a perfectionist and suffers from severe anxiety. (Tr 105)

Student attended REDACTED, a DOE school in Brooklyn during the 2009-2010 through 2013-2014 school years. (Tr. 106)

Student was in an inclusion class as a general education student.

Student attended REDACTED, a DOE pubic school for middle school during the 2014-2015 through 2016-2017 school years. (Tr. 108-109)

During seventh grade Student had difficulty with homework. She was still on the honor roll but began not wanting to attend school. (Tr. 113)

During ninth grade student attended REDACTED School. (Tr. 50) Student was in a general education class.

During ninth grade, Parents obtained a neuropsychological evaluation (Exhibit D) from the REDACTED which provided recommendations concerning an appropriate program and placement.

Parents shared the evaluation with the DOE prior to the commencement of tenth grade. (Tr. 132)

An IEP meeting was held in November 2018. The DOE recommended resource room.

Parent did not agree with the recommendation. This was the last IEP meeting held for Student.

Parents enrolled Student at REDACTED during the summer session of the 2019-2020 school year.

Parents continued to enroll Student at REDACTED for the entire 2019-2020 school year during her eleventh grade.

Student began attending REDACTED, an online school program after her departure from Fusion.

Student is currently taking a break and doing a therapeutic program (Tr 104)

Parents filed a due process complaint on November 4, 2020 seeking various forms of relief for alleged denials of FAPE.

DEPARTMENT OF EDUCATION CASE

The Department of Education (DOE) was represented by REDACTED. They presented no evidence and produced no witnesses. They waived prong one. (Tr. 31) They did not submit any type of opening or closing.

PARENT’S CASE The parents were represented by their attorney REDACTED. It is their position that DOE failed to provide a FAPE to Student for the school years at issue. They argue that DOE had knowledge of Student’s diagnoses and failed to create an IEP. They maintain that the unilateral placement at REDACTED was appropriate and that Parents are entitled to reimbursement as well as costs for transportation to and from school.

It is their position that as a result of DOE’s failure, Parents engaged in a “significant amount of self-help.” (Tr. 32) Their expenses for which they seek reimbursement include $15, 628.62 for REDACTED parent training and therapy, $20, 950 for therapeutic academic assistance from REDACTED, reimbursement for psychiatric services from REDACTED, $12, 937.50 for tutoring services obtained from the REDACTEED, and $5, 000 for the private neuropsychological conducted by REDACTED from the REDACTED. They maintain that they are entitled to 400 hours of compensatory tutoring so Student may graduate. They withdrew their request for a private school. It is their position that the equities favor the Parents.

They submitted documents into evidence and produced three witnesses. They submitted a closing brief.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

STATUTE OF LIMITATIONS

As a general matter, “[a] statute of limitations provides an affirmative defense, and the burden is on the defendant to establish when a federal claim accrues.” Gonzalez v. Hasty, 651 F.3d 318, 322 (2d Cir. 2011) (citing Fed. R. Civ. P. 8(c)). Furthermore, in the context of IDEA due process hearings, New York State law explicitly places the burden of proof on the school district, “including the burden of persuasion and burden of production,” for all issues other than the appropriateness of a private school placement selected by the parents. N.Y. Educ. L. § 4404(1)(c).

The Second Circuit Court of Appeals, the U.S. District Courts for the Southern and Eastern Districts of New York, and the New York State Review Officer (“SRO”) have all found that the IDEA’s statute of limitations constitutes an affirmative defense. See Somoza v. New York City Dep’t of Educ., 538 F.3d 106, 111 (2d Cir. 2008) (characterizing the statute of limitations as an affirmative defense); M.G. v. N.Y.C. Dep't of Educ., 15 F. Supp. 3d 296, 304 (S.D.N.Y. 2014) (“The IDEA’s statute of limitations is an affirmative defense rather than a jurisdictional prerequisite.”); K.H. v. N.Y.C. Dep't of Educ., No. 12-CV-1680 (ARR) (MDG), 2014 U.S. Dist. LEXIS 108393 (E.D.N.Y. Aug. 6, 2014) (“‘The IDEA’s statute of limitations is an affirmative defense.’” (quoting M.G.)); SRO Appeal No. 16-006, at 11 n.6 (noting that “the IDEA’s statute of limitations is an affirmative defense” (citing M.G.).

In this case, the DOE did not raise any defense with respect to the statute of limitation. Under these circumstances I find that Parent is not barred by the statute of limitations.

The scope of the impartial hearing is limited to the issues raised in the DPC. 8 NYCRR 200.5 (j)(l)(ii), 20 U.S.C. 1415F)(3)(b), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 Civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Any issues of allegations not contained within the four corners of this complaint are not to be considered.

It is well-established that a district may be required to pay for private educational services for a student with a disability, if the services offered by the DOE are inadequate or inappropriate, the nonpublic school is appropriate to meet the student’s unique educational needs, and there is no equitable bar to recovery. Sch. Comm. of the Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 114 S. Ct. 361 (1993); 20 U.S.C. § 1415(e)(2).

The purpose of the IDEA is to ensure that students with disabilities have a free, appropriate public education that emphasizes services designed to meet their unique needs, and prepare them for further education, employment and independent living. 20 USC 1400(d)(l)(A)-(B). A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).

An appropriate educational program begins with an IEP which 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. (Application of a Child with a Disability, Appeal No. 04-046; The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).

The appropriate education mandated by the IDEA does not require states to “maximize the potential of handicapped children”. Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998) (citing Rowley), An appropriate public education under IDEA is one that is “likely to produce progress, not regression” Id. (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. 118 F. 3d 245 248 (3d 245, 248, (3d Cir. 1997).

The burden of proof is on the school district during an impartial hearing, except that parents, seeking tuition reimbursement for unilateral placement have the burden of proof regarding the appropriateness of such placement. Educ. Law 44049l09c); M.P.G. v. New York City Department of Education (SDNY 2010).

With respect to prong two, the parents must show that the educational program met the student's special educational needs Burlington supra at 471 M.S. v. Board of Education, 231 F.3d 96, 104-105 (2nd Cir 2000). The private school need not employ certified special education teachers, nor have its own IEP for the student. Application of the New York City Department of Education, Appeal No. 06-037; Application of a Child with a Disability, Appeal No. 02-111.

Plaintiff's burden is to show that the program was properly designed for the student to progress and is not required to show that the student in fact progressed significantly. G.R. v. New York City Department of Education, 07 CIV 4711 (TPG) (SD NY Decided August 7, 2009).

The SRO has determined as a matter of law that a parent's unilateral placement of a child in a school that does not provide the necessary related services a student needs renders the placement inappropriate under Prong II of Burlington. See, Application of a Child with a Disability, Appeal No. 11-057 (SRO denied tuition because the private school did not provide adequate related services to meet the child's needs)

Courts consider the “totality of the circumstances” and parents “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.” Frank G., 459 F.3d at 364-65;

The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S. at 203-204. While parents are not held as strictly to the least restrictive environment standard as school districts, “the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement.” Application of a Student with a Disability, Appeal No. 08-130 (denying reimbursement where unilateral placement “did not provide the student with special education services in the least restrictive environment”)

The third and final criterion for an award of reimbursement is that the claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA, Burlington supra at 471 U.S. At 374.

New York courts consider whether the parent has “failed to cooperate with a school district or otherwise frustrated a district's attempt to offer a FAPE” and whether the parent attended IEP meetings and school visits, and communicated with the DOE. D.A v. N.Y.C. Dep't of Educ, 769 F. Supp 2d 403, 419020 (S.D.N.Y. 2011). under the IDEA, Burlington supra at 471 U.S. At 374.

FUSION

In this case, the DOE did not put on a case. Parent in the due process complaint enumerates DOEs failure to provide a FAPE to Student and the DOE did not dispute any of the allegations for the 2019-2020, 2020-2021 or 2021-2022 school year. I find that DOE failed to provide a FAPE to Student for the 2009-2010 through the 2019-2020 school years. DOE failed to meet their burden under Prong one.

REDACTED is the assistant director at REDACTED. They are a one- to- one school, one teacher and one Student which enables them to customize instruction to address Student’s individual needs. (Tr. 80) She described the admission process.

REDACTED opined that with Student’s executive functioning challenges and anxiety, REDACTED would be a better fit for her academically. She discussed it with Parent. (Tr. 56-57)

Student attended in the summer and made progress. (Tr 90)

REDACTED does not offer any type of counseling or therapy. Although the absence of a related service does not in and of itself render a unilateral program as inappropriate, in this case where Student suffers from major anxiety and depression it is worth noting. Parent and Witness explained that at the time of the enrollment at REDACTED, Student was already receiving multiple sources of therapy and counseling. I find that in this instance Parent needed to focus on other aspects when choosing a school. I find that Parent had no suitable option from the DOE. Parent certainly had the right to rely on recommendation from REDACTED who had known and been working with Student. REDACTION seemed to fit the recommendation in the neuropsychological. (Exhibit E)

Student actually did well in the summer and there was no reason for Parent not to continue with her enrollment during the 10- month school period. Witness from REDACTED described the supports that were provided for Student. I find that REDACTED was reasonably calculated for Student to make educational benefit. Student did receive credit. Witness opined that she made progress when she was in class. (Tr. 90)

I find that REDACTED was appropriate and Parents met their burden under prong two.

With respect to prong three, there is nothing in the record that would bar Parents from the requested relief.

I find that Parent is entitled to reimbursement for Student’s attendance at REDACTED.

Witness from REDACTED testified that Student did not attend for the entire year. She testified that “I think she attended before Covid happened. I can’t remember specifically.”

Parent will have to provide DOE with attendance records and tuition shall be pro-rated to reflect the time period she actually attended.^[1]

In the due process complaint, Parent requests reimbursement for transportation to and from Fusion. Parent does not address this issue in their closing. There was no evidence with the type of transportation that was provided to Student or the cost of the transportation. The request for transportation is denied.

REQUEST FOR REIMBURSEMENT FOR NEUROPSYCHOLOGICAL EVALUATION

There is absolutely no evidence from the DOE with respect to any evaluations that they had conducted over the many years at issue. At the time of the evaluation, evidence establishes that Parent certainly had more than enough reason to seek an evaluation in order to have a better understanding of Student’s needs. I find that Parents are entitled to reimbursement of $5, 000 for the cost of the neuropsychological evaluation conducted by REDACTED. (Exhibit E)

COMPENSATORY RELIEF

Once it has been determined that a student has been denied a FAPE, hearing officers have broad equitable powers to fashion a remedy that is appropriate to address the student’s needs, based upon the unique facts of the case. See SRO 08-052, at pp. 17-18; see also Student X. v. N.Y.C. Dep't of Educ., 2008 VT 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one).

Given the circumstances, the only remaining issue for the hearing officer is the matter or relief.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. (Wagner v. Canasota, 979 F. Supp. 147 [N.D.N.Y. 1997])

With respect to the number of hours a one-to one calculation is not required and most courts seek to ascertain the child’s needs at the time the relief is sought. See, e.g., Reid ex rel. Redi V. District of Columbia, 401 F.3d 516 (C.AD.C. 2005).

The appropriate education mandated by the IDEA does not require states to “maximize the potential of handicapped children”. Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998) (citing Rowley), An appropriate public education under IDEA is one that is “likely to produce progress, not regression” Id. (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. 118 F. 3d 245 248 (3d 245, 248, (3d Cir. 1997).

COMPENSATORY TUTORING

Parents reques 400 hours of compensatory tutoring in order to assist Student in obtaining the credits necessary to graduate high school. The evidence is replete with how the DOE’s failure to provide an appropriate program for so many years had an impact on her ability to make progress and complete her education. REDACTED opined that Student should have been receiving special education services from DOE. Student had been worried about not being promoted with high school. She opined that she needed more instruction that she was getting. (Tr. 50)

Evidence establishes that Student is very smart. I find that had she had appropriate supports from the DOE, she would have been able to attend and complete each school year. I find that Student is entitled to 400 hours of compensatory services.

SERVICES FROM DR. BELINDA BELLET

Dr. REDACTED is a psychologist at REDACTED who focuses on dialectical behavior therapy. She engaged with parents in dialectical behavior therapy program. REDACTED opined that a lot of multiskilled family dialectical behavior therapy groups would be appropriate for Student and her family. (Tr 61

REDACTED acknowledged that she “can’t speak too much about their work together since I wasn’t part of it.” (Tr. 62) Dr. REDACTED did not testify nor did she provide any documentation as to information as to the nature of the services she provided. There are absolutely no details in the record about the services except for an invoice. I find that Parents are not entitled to reimbursement for those services.

PSYCHIATRIC SERVICES

Parent requests reimbursement for services by Dr. REDACTED who did not appear as a witness. There was no documentation provided as to the nature of the services. The only information presented is an invoice. I find that Parents are not entitled to reimbursement for services by REDACTED.

COMPENSATORY SERVICES FROM REDACTED

REDACTED is a licensed psychologist and nationally certified school psychologist. She works in her own private practice where she does testing and provides therapy.

. She was initially Student’s homework therapist in early 2017. Parents stated that Student was having trouble with homework and not doing well in school. Student had some challenges with executive functioning, reading, and self-esteem that got in her of way of her learning. At the time she had trouble completing work and interacting with the teachers and in class.

Student required things to be broken down, a lot of scaffolding, a lot of repetition and a lot of reassurance. She had difficulty getting started and then completing work. Her anxiety interfered with her ability to learn. (Tr. 47)

She described homework therapy as provided with a combination of doing some cognitive remediation. They focused on her executive function skills and gave her tools to develop those skills with respect to content work. They taught her to become more confident They worked together to develop “kind of a better academic self-confidence” about herself as a learner. (Tr. 47-49)

She recalled that Student was not receiving any special education services in her school setting at that time. (Tr. 69)

She continued to work with Student during the ninth grade. She provided homework therapy with cognitive therapy. (Tr. 50) She opined that Student required more services for the transition to high school. (Tr. 51)

During Student’s tenth grade, she saw her “once or twice maybe in a row and then she would not see her for a month. She described the difficulty in getting Student to attend or engage. Student was still in a general education setting. (Tr. 54)

During the 2019-2020 school year, Student’s eleventh grade she saw Student very inconsistently, especially in the fall. There were months when she did not see Student. (Tr.56)

She continues to see Student and provides a combination of supportive psychotherapy and cognitive behavioral work. (Tr. 58)

The rate for her services is $225 an hour. She described it as standard and customary. DOE did not refute the rate.

I find that Parents had absolutely no help for Student from the DOE and REDACTED services were appropriate. I find that Parents are entitled to reimbursement for her services.

BROOKLYN LEARNING CENTER

REDACTED testified that she met Student when she had worked at Brooklyn Learning Center. Student was receiving services from REDACTED. (Tr. 46) Evidence establishes (as discussed above) that the tutoring provided to Student was necessary and appropriate. It is noted that REDACTED did not submit any invoices until September 2019 when she was providing services to Student in her own practice. I find that Parents are entitled to reimbursement for tutoring services from REDACTED.

ORDER

DOE shall provide Student with a bank of 400 hours of tutoring services at market rate. Parent may choose the provider and arrange for services to be provided at times suitable for Parent and provider. These hours shall remain valid for two years after the receipt of this decision.

DOE shall reimburse Parents for tuition at REDACTED during time when Student attended. Parents shall submit invoice, proof of payment and evidence of attendance. DOE shall not be responsible for any tuition after Student stopped attending on a permanent basis. Tuition shall be prorated to reflect Student’s attendance.

DOE shall reimburse Parents for the cost of the neuropsychological ($5, 000) upon evidence of payment and invoice.

DOE shall reimburse Parents for the cost of REDACTED services upon evidence of

Invoice and payment.

DOE shall reimburse Parents for the costs of tutoring from REDACTED upon evidence of invoice and payment.

Sharyn Finkelstein January 29, 2022

PLEASE TAKE NOTICE

Within 40 days of receipt of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and with 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.” (8NYCRR279.2 [b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

EVIDENCE ENTERED INTO THE RECORD

DEPARTMENT OF EDUCATION

No evidence

PARENT

A Processed impartial hearing request with

Cover letter 11/4/2020 9

B Email communications re plan for REDACTED 12/17/2017 2

C Email communication with REDACTED 1/12/2018 9

D Neuropsychological educational evaluation 4/10/2018 33

E Neuropsychological and educational invoice 4/101/2018 1

F Email communication re IEP meeting request 8/27/2018 13

G Email communication re mental health resources 12/11/2018 1

H Email communication re ADHD 4/30/2019 2

I Email communication re plan for REDACTED to get back on track and smaller school setting recommendation 5/2/2019 2

J Ten-day notice 8/20/2019 3

K REDACTED enrollment contract 7/2/2019 1

L REDACTED enrollment contract 9/4/2019 1

M REDACTED enrollment contract 5/10/2020 3

N REDACTED tuition affidavit 9/29/2021 2

O REDACTED class schedule 2019/2020 4

P REDACTED invoices 2/2017-6/2019 10

Q REDACTED Invoices 4/2017-5/2018 14

R REDACTED invoices 9/2019 to 8/2021 9

S REDACTED CV Undated 6

Parent’s attorney submitted 30- page closing which was not submitted for evidence.

Footnotes

[1] The time period refers to the beginning and end period and not specific dates that Student did not attend.