New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 551173 - NYC: 207428

FINDINGS OF FACT AND DECISION

Case Number: 207428

Student’s Name: REDACTED

School District: N.Y.C. Dept. of Ed.,

Home District # REDACTED

Service District # REDACTED

Impartial Hearing Officer: Dr. Oren Varnai, Esq.

Date of Filing: 03/23/2021

Hearing Requested by: Parent

Dated of Hearing: 2/28/2022;

3/2/2022;

3/17/2022;

4/8/2022

Record Close Date: 8/12/2022

Date of Decision: 8/12/2022

NAMES AND TITLES OF PERSONS WHO APPEARED AT THE DUE PROCESS HEARING:

For the Student:

• • REDACTED, Esq. for the parent, (hereinafter referred to as “Parent’s attorney”)
• • REDACTED (Grandmother) & REDACTED (Grandfather), guardians of Student, (hereinafter referred to as “the Parent,” or “Grandparent”).

For the Department of Education (“DOE”):

• • REDACTED appeared on behalf of the DOE, (hereinafter referred to as “District’s Representative”)

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

REDACTED, a Minor, by and through his/her Parent(s),

PETITIONER FINDINGS OF FACT AND DECISION

against Case # 207428 THE NEW YORK CITY Dr. Oren Varnai, Esq.

DEPARTMENT OF EDUCATION, Impartial Hearing Officer

RESPONDENT

FINDINGS OF FACT AND DECISION

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq, as well as Section 504 of the Rehabilitation Act.

The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.

II. Background and Procedural History

• • Due Process Complaint Notice Petitioner (Parent or Grandparent) is the guardian of Student (“Student” or “Child”). On March 23, 2021, Petitioner filed a Due Process Complaint^[1] (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). The parent alleged that the District failed to provide the Student a free appropriate public education (“FAPE”) for the 2015-2016, 2016-2017, 2017-2018, 2018-2019, 2019-2020, and 2020-2021 school years,^[2] by, among other things, failure to provide an appropriate placement in a timely manner, failure to consider intensive remediation, transition planning, bilingual parent training, and extended day services. In addition, Parents alleged that the District failed to provide them with REDACTED language access during the IEP meetings, and therefore impeded the Parents’ ability to meaningfully participate in the Student’s educational program planning.^[3]

During the 2020-2021 school year, the year in which Parent filed the DPC, Student was REDACTED years old and was in the 12th grade. Student was diagnosed with Autism Spectrum Disorder, Developmental Disorder of Scholastic Skills (Unspecified), Unspecified Depressive Disorder, and Unspecified Anxiety Disorder and Language Disorder.^[4] “From a very early age [Student] exhibited poor eye contact, an absence of interest in others and was hyperactive. Due to the Autism-Spectrum type behaviors he exhibited he was first referred for an evaluation at the tender age of eight months old. Since early childhood, [Student] has been in the care of [] his grandparents and legal guardians[,] [who] are monolingual, REDACTED speakers.”^[5]

B. Prior IHO Recusal

On June 14, 2022, the undersigned IHO (“IHO”) was appointed to preside over this case, which was in the final stage of litigation. Despite the case being filed in March 2021, an IHO was not assigned to the case until November 2, 2021.^[6] The prior IHO (“Prior-IHO”) held a Pre-Hearing Conference (PHC) January 6, 2022, more than 2 months after being assigned to the case. Subsequently, there was a Status Conference on January 28, 2022, and the hearing took place on February 28, 2022, March 2, 2022, March 17, 2022, and finally on April 8, 2022.^[7] On the final day of the hearing, the Parties were directed to submit closing briefs in lieu of oral closings.^[8] There were no indications that the record was closed, and there was no certification of the record.

The Prior-IHO recused herself on June 13, 2022—more than 2 months after the conclusion of the Due Process Hearing. This left the parties in the difficult position of delaying the proceedings further, and for the IHO to piece together the record as it existed while addressing gaps that might exist. Both the District and Parent expressed their opinions with respects to the recusal of the Past-IHO,^[9] and they were fully cooperative at assisting the IHO so that a final decision could be issued in a timely manner. The Parties were given wide latitude with respect to addressing any prejudice that resulted in the delays, to include the re-calling of witnesses, calling additional witnesses, addressing any prior evidence that may have been excluded, and to address any adverse rulings that might have occurred.^[10] Nevertheless, the Parties reiterated their positions that they would rely on the record as it existed on the last day of the Due Process Hearing.^[11]

Finally, the record was a patchwork of short hearings, which complicated readability of the transcript and the overall flow of the proceedings. For example, Parent’s exhibit FF, an affidavit of testimony, was marked for identification, had a proper foundation laid, and resulted in the District’s cross examination, but was never admitted into evidence on the record.^[12] IHO advised the Parties of the error, and the District did not object to the exhibit’s admission into evidence.^[13]

It should be noted, that entering a case after a full hearing on the merits has been concluded presented significant challenges, not the least of which is reading the transcripts of witness testimony without the ability to assess the witnesses’ credibility. Parents’ attorney assisted IHO with obtaining the recordings of the prior proceedings from the NYC Impartial Hearing Office,^[14] which mitigated some of the credibility determination constraints already extant with audio recordings. The recordings of the proceedings were helpful but cannot be said to be wholly sufficient to substitute contemporaneous testimony. The IHO was unable to ask clarifying questions, require testimony via video with the ability to view the witness’ demeanor, and other hearing procedures IHO would have preferred. In sum, although IHO is confident that credibility determinations were arrived at fairly and with ample circumstantial material to support those findings, the manner in which this case evolved and concluded is far from ideal.

The parties participated in Status Conferences on June 21, 2022 (“SC1”), and June 29, 2022 (“SC2”), to address the issues that needed to bring the case to a conclusion after a protracted delay. During both conferences, the Parties were fully engaged, cooperative, and responsive to IHO’s questions with respect to the issues in the case.

C. District’s Motion to Dismiss

At the outset of this matter during the Pre-Hearing Conference (“PHC”),^[15] the District raised the issue of the Statue of Limitations (“SOL”) as a bar to Parents’ claims for the 2015-2016, 2016-2017, 2017-2018, and 2018-2019 school years, and Prior-IHO directed the Parties to submit briefs.^[16] Parents did not object to the District’s request to submit motions on the issue, or that the raising of affirmative defense was not timely. Prior-IHO issued a decision on the SOL affirmative defense,^[17] but did not address the substance of the motions, and reserved decision on the SOL question to be addressed in the FOFD.

The District’s position was that the Parents ‘knew or should have known’ (“KOSHK”) the alleged FAPE deprivations for each of the school years in contention:

“[F]or the 2015-2016 school year, the parent would have known of the alleged deprivation of FAPE as of, on or about, July 1, 2015. The statute of limitations regarding the 2015-2016 school year would expire on or about July 1, 2017. For the 2016-2017 school year, the parent would have known of the alleged deprivation of FAPE as of, on or about, July 1, 2016. The statute of limitations regarding the 2016-2017 school year would expire on or about July 1, 2018. For the 2017-2018 school year, the parent would have known of the alleged deprivation of FAPE as of, on or about, July 1, 2017. The statute of limitations regarding the 2017-2018 school year would expire on or about July 1, 2019. For the 2018-2019 school year, the parent would have known of the alleged deprivation of FAPE as of, on or about, July 1, 2018. The statute of limitations regarding the 2018-2019 school year would expire on or about July 1, 2020.”^[18]

Finally, the District contended that the two exception to the SOL do not apply because the District did not (1) prevent Parents from requesting an impartial hearing due to a ‘specific misrepresentation’ by the school district that it had resolved the problem forming the basis of the complaint, or (2) withhold information from the parent or person in parental relation that was required under federal law to be provided.^[19]

In their opposition to the motion to dismiss on SOL grounds, Parents asserted that the SOL should not apply because Parents did not receive the procedural safeguards in REDACTED, their native language, which would vitiate SOL implications as “the parents could not have been aware that the DOE’s prior evaluations or settings were inadequate.”^[20] Alternatively, Parents contended that the KOSHK triggering of the claims’ accrual did not take place until 2019 when Student was diagnosed with Autism, and that the failure to properly diagnose Student created a situation where the Parents could not be held to the KOSHK standard because they could not have known or should have known of the claims.

III. Finding of Facts and Decision

• • Statute of Limitations The IDEA requires that unless a state establishes a different statute of limitations (“SOL”) period under state law, a party must request a due process hearing within two years of when the party knew or should have known (“KOSHK”) of the alleged action that forms the basis of the complaint;^[21] New York has not adopted a different SOL standard. Since an IDEA claim accrues when a parent knew or should have known about the claim, “[d]etermining when a parent knew or should have known is necessarily a fact-specific inquiry.”^[22] In 2004, Congress amended 20 U.S.C. §1415(b)(6), which essentially mirrored the SOL at §1415(f)(3)(C) in almost all respects: they both describe a two-year time limit that hinges on the reasonable discovery date; they both provide that any state statute of limitations will override this timeline; and they both incorporate the two exceptions to the statute of limitations set forth in §1415(f)(3)(D). Unlike §1415(f)(3)(C), however, §1415(b)(6)(B)’s two-year limitations period runs backward instead of forward from the reasonable discovery date.^[23]

Courts have resolved this ambiguity by holding that the discovery rule applies. Congress did not intend the IDEA's statute of limitations to be governed by a strict occurrence rule. Both § 1415(b)(6)(B) and § 1415(f)(3)(C) include language pegging the limitations period to the date on which the parent or agency "knew or should have known about the alleged action that forms the basis of the complaint," not the date on which the action occurred.^[24] If Congress intended a strict occurrence rule, there would have been no need to include the "knew or should have known" language in § 1415(b)(6)(B) and § 1415(f)(3)(C).^[25] The SOL begins to run not when the injury has occurred, but when the parent “knew or should have known” of the injury. These dates, of course, can be the same.

The IDEA's "limitations period functions in a traditional way... as a filing deadline that runs from the date of reasonable discovery and not act as a cap on a child's remedy for timely-filed claims that happen to date back more than two years before the complaint is filed."^[26] Should a parent file a timely complaint and liability is proven, “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.”^[27] The IDEA requires that a copy of the procedural safeguards notice be given to the parent upon initial referral or parental request for evaluation^[28] and at least one time per school year thereafter.^[29] The procedural safeguards notice must also be given upon receipt of the first state complaint and due process complaint in a school year; at the time a decision is made to make a disciplinary removal that constitutes a change in placement; and, upon the request of the parent.^[30]

After the district raised the defense of statute of limitations, it was incumbent upon the parent to assert exceptions to the statute of limitations.^[31]

Once the KOSHK date is established, the claim is ripe for judicial adjudication and the two-year SOL begins to accrue from that date. On March 20, 2020, due to the unprecedented COVID-19 pandemic, then New York State Governor Cuomo signed Executive Order (“EO”) No. 202.8,^[32] subsequently extended by a series of EO’s, which on their face and following judicial interpretation, had the effect of tolling, rather than suspending, all statutory timeframes through November 3, 2020. This tolling of the SOL necessarily adds an additional 241 days to the two-year time from the KOSHK for a timely filing of a DPC.

• • KOSHK

It is clear from the evidence submitted by both the District and the Parent that Student was not diagnosed as a child with autism until Hospital’s evaluation in November 2018.^[33] Parent testified she did not receive the evaluation report until April 2019,^[34] at which point she contacted an advocacy group to discuss Student’s case.^[35] The independent Psychologist conducted a subsequent evaluation on January 15, 2021, and indicated^[36] that despite Hospital’s recommendation to change Student’s classification from speech and language impairment to autism, Student’s 2018-2019 IEP dated April 23, 2018,^[37] was not amended subsequent to the Hospital’s 2018 evaluation, and the next IEP dated July 17, 2019,^[38] was the first time the CSE classified Student with Autism.

Federal and State regulations require districts to conduct an evaluation to "gather functional developmental and academic information" to determine disability categories under IDEA and to as to obtain information to enable the student to be "involved in and progress in the general education curriculum."^[39] A Student’s classification and "particular disability diagnosis" in an IEP "will, in many cases, be immaterial" because the IEP is designed to be tailored to the student's individual needs,^[40] and "a student's special education programming, services and placement must be based upon a student's unique special education needs and not upon the student's disability classification."^[41] "Indeed, '[t]he IDEA concerns itself not with labels, but with whether a student is receiving a free and appropriate education.'"^[42]

“CSEs are not supposed to rely on the disability category to determine the needs, goals, accommodations, and special education services in a student's IEP. That is the purpose of the evaluation and annual review process, and this is why an evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (see 34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]). Once a student has been found eligible for special education, the present levels of performance sections of the IEP for each student is where the focus should be placed, not the label that is used when a student meets the criteria for one or more of the disability categories.”^[43]

Although the classification of a Student is not a dispositive indication that the District did not provide him with a special education tailored to his specific needs, the inquiry cannot end there. Specifically dealing with the issue of diagnosis vis-à-vis the KOSHK standard, in K.H. v NY City Dept. of Educ.,^[44] the Court held that:

“…the IHO and SRO erred in summarily dismissing all of plaintiff's IDEA claims before the 2008-09 school year as time-barred because plaintiff has asserted a timely IDEA claim spanning his entire educational career. Among his claims, plaintiff asserts that the DOE failed to identify, diagnose, and address his learning disabilities. I conclude that this claim did not accrue until 2010, when plaintiff obtained the evaluation from [the Psychologist] that diagnosed him with specific learning disabilities. Until that point, plaintiff could not have been aware of his claim challenging the adequacy of the DOE's prior evaluations. Nor could plaintiff have been aware of his related claim that the DOE, acting on inadequate evaluations, placed him in settings that were inappropriate for his particular needs...” The District had clear signals that an autism evaluation should have been conducted yet failed to do so since at least 2015. Student’s IEP from May 15, 2015 indicated that his Math and English teachers were administered the Gilliam Autism Rating Scale-Third Edition (GARS-3). Student’s Math teacher’s results “indicated that the probability of an Autism Spectrum Disorder is unlikely,”^[45] yet the results “obtained from his English language arts teacher indicated that the likelihood of an Autism Spectrum Disorder is probable.”^[46] This discrepancy was highlighted by Hospital in their 2018 Neuropsychological Evaluation noting that “[h]is teachers’ ratings were inconsistent.”^[47] Relatedly, Psychologist noted in his 2021 Neuropsychological and Educational Evaluation Report that “[t]he most recent IEP provided was for the 2018-2019 school year. It classified [Student] as speech or language impaired, though it is notable that the 2018 evaluation recommended changing the classification to autism.”^[48]

Assuming, arguendo, that the Student would have received the same services irrespective of his classification, which the District did not establish, Autism diagnosis specifically requires parent counseling and training under 8 NYCRR § 200.13(d), which places the diagnosis in its own category. In fact, during a colloquy with the District on whether the Student should receive compensatory counseling and training services for Parents as a result of the Student’s belated autism diagnosis, the District averred that it “cannot speculate as to that.”^[49] Parents’ representative correctly retorted that “I think the DOE’s logic applies both ways, and that the DOE’s position is that they could not have known about the autism eligibility prior to recommending [counseling and training], then how is it that the Parent should have known about all potential claims, including failure to address autism, years earlier?”^[50] Simply put, to assert that the Parents knew or should have known about their claims is belied by the evidence, and that a critical issue in the case is the diagnosis of Student with autism in 2019. Based on Parent’s initial awareness of Student’s autism diagnosis in April 2019, when they received the report, even a strict interpretation of a 2-year SOL shows that Parent’s filing of the DPC^[51] on March 23, 2021, was timely.

• • SOL Exceptions Even if the general KOSHK analysis fails, an exception to the SOL would still apply in this case. There are two exceptions to the 2-year SOL: if the parent 1) "was prevented from requesting the hearing due to... specific misrepresentations by the [district] that it had resolved the problem forming the basis of the complaint"^[52]; or 2) was prevented from filing a due process complaint notice due to... the [district's] withholding of information from the parent that was required... to be provided to the parent.”^[53] Failure to provide the notice is considered the withholding of information,^[54] and if a parent is otherwise aware of his or her procedural due process rights, the district's failure to provide the procedural safeguards notice will not necessarily prevent the parent from requesting an impartial hearing.^[55] Generally, claims related to the conduct of a CSE meeting or the contents of an IEP accrue at the time of the CSE meeting or, at the latest, upon the parent's receipt of the IEP.^[56]

The Parents’ need for a REDACTED language translator is in contention but is firmly supported by the evidence presented by both the Parents and the District. The District is correct that the Parents signed the December 19, 2013, consent for the initial services, and that the form was in REDACTED,^[57] but the Prior Written Notice, dated the same day, was inexplicably in English.^[58] Even were I to accept that a constructive notice standard applied, I do not see any indication that signing one REDACTED language form in 2013 could impute any meaningful information to the Parents with respect to their rights. The District’s own evidence includes a patchwork of contradictory information and testimony with respect to Parents’ ability to understand English.

Student’s IEPs dated May 15, 2015^[59] and April 7, 2016,^[60] both indicate that Parents’ primary language was REDACTED; the ‘Neuropsychological Evaluation’ conducted on November 14 and 19 in 2018 by Hospital,^[61] and a subsequent ‘Neuropsychological and Educational Evaluation Report’ by Psychologist,^[62] recommended that Parents receive “Parent Counseling and Training” in REDACTED; the District’s own Social History Update from July 16, 2019,^[63] shows that the “language of interview” of the Parents was REDACTED. Finally, although not admitted into evidence, DOE-11-4, which is included herein as an IHO Exhibit,^[64] is a Prior Written Notice in REDACTED from 2015 with the peculiar characteristic of listing the description of action proposed or refused in English.

In addition, the District’s Program Director at the School testified on direct examination by the District that she had spoken with the Parents “most recently; a guidance counselor and [Program Director], and – and a staff member who can translate for us spoke about transition planning,”^[65] indicating that the Parents’ primary language was other than English. In response to Prior-IHO’s question, Program Director then indicated that when she spoke with Student’s Grandmother a translator was not needed,^[66] but she then stated that she had never met with Grandmother.^[67] She averred that her only basis of knowledge that Grandmother did not need a translator was because “[w]e take meeting notes during our CSE meetings. And that is one of the things that typically note, if there is a translator.”^[68]

Psychologist testified that when he conducted Student’s intake interview with Grandmother, he “…did [it] alongside one of [his] staff who is fluent in REDACTED,”^[69] and that Grandmother “…is a monolingual REDACTED Speaker.”^[70] The Board Certified Behavior Analyst (“BCBA”) indicated that Student’s Grandfather’s interview was similarly conducted with a REDACTED translator.^[71] Although Student’s private Special Education evaluator witness (“Tutor”) testified on cross-examination by the District that no interpreter was needed when communicating with Student’s Grandparents,^[72] she also testified she did not speak with Grandparents because of the “language barrier”^[73] and spoke with Student’s Aunt instead.^[74]

In M.G. v NY City Dept. of Educ.,^[75] the court ruled that “plaintiffs allege that they did not receive due process notices in their native language as required by the IDEA. Indeed, a local educational agency's failure to provide necessary information constitutes an exception to the statute of limitations.”

Although contrary caselaw indicates that the withholding of information exception to the SOL did not apply where a parent signed a form acknowledging receipt of the procedural safeguards, the fact that the District did not satisfy its burden to produce documentary evidence for each year, and the existence a language barrier, makes the case distinguishable on multiple grounds as indicated above.^[76]

In sum, I find that the weight of the evidence is clear that Parents are native REDACTED language speakers who needed a translator at multiple times throughout the Student’s educational career, and that the District, collectively, was aware of this fact. The District’s failure to recognize the need for a translator occurred repeatedly despite years of ample opportunity to address the issue. Therefore, I find that an exception to the SOL applies even if the KOSHK analysis fails.

• • FAPE

The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.^[77] The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement.^[78] Here, the Parents are not seeking the remedy of tuition reimbursement.^[79] Thus, the DOE has the burden of proof on all issues in dispute.

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance,^[80] establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum,^[81] and provides for the use of appropriate special education services.^[82]A free an appropriate public education can be said to be offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.^[83] "[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP."^[84] The Supreme Court ruled that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement."^[85]

Although school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"^[86] the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.^[87] Under the IDEA, if procedural violations are alleged, an IHO 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.^[88]

An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.^[89] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"^[90] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."^[91] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"^[92] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"^[93] is what is required. School districts are not required to "maximize" the potential of students with disabilities,^[94] but are required to provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement.'"^[95] The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"^[96] and designed to be provided in the least restrictive environment (“LRE”).^[97] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,^[98] and outlines annual goals specifically designed to address the Student’s needs resulting from his disability in order to make progress in the general education curriculum^[99] through the use of appropriate special education services.^[100] Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives."^[101]

Psychologist testified that Student’s “abilities are about equivalent to the average first to second grader in reading, first to fourth grade in writing, and second to fourth grade in mathematics,”^[102] and that he assessed that Student “could reach… say 6th grade level [which is] not an absolute cap.”^[103] He went on to dispute the District’s measurements stating that “there is anecdotal reporting from teachers that [Student’s] academic skills fall at sixth grade level for reading comprehension and word reading, a fifth grade level for writing, and an eight grade level for mathematics. Based on the data gathered during [Psychologist’s] evaluation, these estimates are not accurate and overestimate [Student’s] ability levels based on objective assessment.”^[104] This overestimate is further buttressed by the District’s own witness, the Program Director, who testified regarding Psychologist’s Neuropsychological assessment that she did not have “any disagreement or reason to doubt”^[105] Psychologist’s measurements, and that “according to [the] IEP, [the District has Student] functioning slightly higher.”^[106] The District’s counsel himself recognized the fact that Student was not where he should be academically, and asked Psychologist “you would agree that [Student is] significantly under where he should be, right?”^[107] whereby Psychologist testified that “[y]es. In – in most areas, yes,”^[108] and that “the evaluation conducted in 2018 placed [Student] within the average range in relation to what we would call non-verbal intellectual functioning. And therefore, there are measurable indications of potential for him to make more progress.”^[109] According to both the District’s Program Director, and the Parents’ independent Psychologist, the discrepancy between what is documented in the Student’s IEP, is markedly different with what is actually Student’s then-present level of performance.

The DOE has failed to provide any meaningful progress report into evidence. The DOE has the responsibility to report on a Student’s progress towards meeting IEP goals, which would be necessary to show that the Student is responding to the recommended interventions, programs, supports, and services. Turning to the IEPs:

• • The January 12, 2015 IEP^[110] indicates there was no progress made in ELA in the first progress report; little progress made in Math and Speech in the first progress report; and no additional progress reports;
• • The April 1, 2015 IEP^[111] indicates little progress made in Speech for the first progress report; with no additional progress reports;
• • The March 22, 2016 IEP^[112] lists little progress made in Speech, ELA, Math, and Counseling for the first progress report, little progress made in Counseling for the second progress report, and progress made in Speech for the second progress report, with the proviso that the District did not anticipate Student meeting his goals, and no additional progress reports;
• • The March 16, 2017 IEP^[113] progress report is blank in all areas;
• • The March 15, 2018 IEP^[114] does not include a progress report;
• • The July 10, 2019 IEP^[115] progress report is blank in all areas; and
• • The June 23, 2020 IEP^[116] progress report is blank in all areas.

Psychologist testified that “[a] comparison of [Student’s] academic achievement between 2018 and 2021 paints an alarming picture.”^[117] “The results of the current evaluation are largely in line with [Student’s] previous neuropsychological evaluation. While [Student’s] reading and writing abilities appear to have stayed in the 1st percentile, his math scores seem to be an area of improvement, yet still below a level that would support basic daily living skills.”^[118] Psychologist further indicated that “[r]esults from the Vineland [test] paint a concerning portrait of [Student’s] ability to function independently as a member of the community. While [Student] is generally able to exercise adequate self-care skills, his capacities to understand what other are saying, to express himself, to engage in reading and writing, to function independently at an age appropriate level in the community, and his ability to socialize and engage in leisure activities are all significantly lower than expected for his age.”^[119]

BCBA testified that although the IEP indicated that Student “would benefit from continued support on post-graduation planning and transitioning to a new environment”^[120] there were “no goals [] created towards measuring this.” In addition, the IEP’s descriptions of Student’s independence and post-secondary goals were not addressed vis-à-vis his daily living skills, and that “he needs intensive ABA therapy to address his daily living skills and aid him in independence, including community training, safety skills, prevocational and vocational skills. All of these are imperative skills for independence in adulthood.”^[121]

Finally, Tutor testified that “[i]n all [her] years in this field, [Student’s] case is among the most extreme age-to-achievement deficits [she has] encountered.”^[122]

As a whole, the District’s failure to provide Parents with a translator during CSE meetings and related documentation; its failure to appropriately classify Student with autism despite indications it should have, and no provision of all necessary services to make progress, which is not indicated or missing in Student’s IEP; its failure to provide the supports, services, and education, required under IDEA, regardless of Student’s classification; the contradictory documentation of the needs of the Student, both with respect to his diagnosis and level of performance; the uncontradicted evidence of Psychologist, BCBA, and Tutor; and years of indications that Student has made little or no progress—or wholesale failure to assess progress and/or document the same—all clearly point to the fact that the District failed to provide Student with a FAPE for the 2015-2016, 2016-2017, 2017-2018, 2018-2019, 2019-2020, and 2020-2021 school years. The totality of the procedural inadequacies articulated (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, and (c) caused a deprivation of educational benefits.^[123]

Consistent with Rowley, I find that (a) the District failed to comply with the procedural requirements set forth in the IDEA, and (b) all of the IEPs at issue that were developed by the CSE through the IDEA's procedures were not reasonably calculated to enable the student to receive educational benefits.^[124] I find that the IEPs did not "aim to enable the child to make progress."^[125]

• • Compensatory Education The IDEA applies to children between the ages of 3 and 21, but States have leeway with respect to eligibility age.^[126] New York law entitles children with disabilities to special education services until they receive a high school diploma or complete the school year following their twenty-first birthday,^[127] at which point, a child is no longer entitled to the protections of the IDEA.^[128] Nevertheless, a child who is above the age of eligibility can receive "compensatory education," which is "prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any earlier deprivations in the child's education."^[129] Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case,^[130] with the purpose of providing an appropriate remedy for a denial of a FAPE.^[131] In fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place."^[132] An award of compensatory education should be designed so as to "appropriately address[] the problems with the IEP,"^[133] “place children in the position they would have been in but for the violation of the Act, "^[134] "replace[] educational services the child should have received in the first place"^[135] and "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA."^[136] New York State Law places the ultimate burden of production and persuasion^[137] on the District to express its views as part of the evidentiary record on the issue of the appropriate compensatory education which would place the Student in the position he would have been but for the denial of a FAPE.^[138] Despite several opportunities provided to the District to assert an alternative compensatory award to the Parent, the District refused to provide such alternative, and simply relied on its assertion that the Parent’s compensatory education request was too large.^[139] In addition, the District had an opportunity to agree to or suggest a lower amount of compensatory education hours based on Parent’s attorney’s repeated invitation to settle the claim as “the Parent isn’t wedded to a specific number.”^[140] Since “[t]the District did not alternatively assert any arguments to provide evidentiary support on the issue of what, if any, compensatory education award would be appropriate to remedy its denial of FAPE, despite having a full and fair opportunity to be heard at the impartial hearing,”^[141] the undersigned hearing officer is limited to the record before him and the uncontroverted testimony of the Parents’ witnesses.

On several occasions, the District’s argument was that Student would not be able to complete the compensatory hours requested in the DPC because Student’s extended eligibility for education would end at the age of 23.^[142] The District asked similar questions of all the witnesses and asserted that beyond that age Student would not be eligible to receive compensatory education. The District asserted that “extended eligibility [age] would dictate the amount of services that will be available to the student.”^[143] IHO specifically asked the Department whether once a DPC is on the calendar for a hearing “for each day is it your contention that the student loses a portion of their compensatory education?”^[144] and “[i]f it’s compensatory [education], then how can the compensation self-reduce?”^[145]

Parent’s attorney stated the age 23 was merely a benchmark for Student to complete any compensatory education services, and not a legal bar or limit to using services beyond that time.^[146] The District’s line of inquiry is at odds with the underlying purpose of compensatory education, which is to place the Student in the place he should have been had the denial of FAPE not occurred. The District did not challenge the appropriateness of the compensatory services; only that they were excessive and the feasibility of completing them by the time Student reached the age of 23, as well as whether there were enough hours during a regular school day. I find that the Student’s age at the time he receives any compensatory services is immaterial for the purpose of compensation and is unrelated to extended eligibility age. I also find that the way in which Student’s schedule is structured is irrelevant for any compensatory education he would receive.

Psychologist testified that he recommended “intensive individualized remediation so [Student] can develop and academic skills and, because of his need for what I’m estimating is two hours of reading, and hour of writing, and an hour of math…he needs extended day services and because that cannot be accomplished in the course of a normal school day. I’m also recommending applied behavior analysis in order to work on life skills,”^[147] which would amount to “four hours include[ing] reading, math, and writing”^[148] and an additional hour for ABA.^[149] Psychologist testified he reviewed all the recommendations for the requested compensatory hours articulated by BCBA and Tutor^[150] and found them all to be to be appropriate.^[151] Of note, although Psychologist testified regarding Student’s potential for achieving a specific grade level, he addressed the issue of using that criterion as a measure of Student’s abilities stating that the “question really needs to be more specific because …you can’t really say very broadly about a child that [is] functioning at a certain age level. [Student] functions differently from – compared to students of other grades and ages, depending on the specific area we’re talking about.”^[152]

A more appropriate measure of Student’s abilities can be found in Hospital’s assessment which indicates that Student’s “nonverbal reasoning skills were considerably stronger than his verbal skills and comparable to others his age…[and] his inhibition, mental flexibility, and planning skills were appropriate for his age.”^[153] In addition, Student “has the potential to make progress, provided that he makes use of the supports that will be available to him.”^[154] Psychologist assessed that “[t]he results of [Hospital’s] evaluation placed [Student] solidly within the average range in relation to nonverbal intellectual functioning.”^[155]

BCBA testified that Student “requires a minimum of 1,300 hours to 1,700 hours of ABA therapy in a 1:1 home and/or community setting which will target social/emotional skills, activity of daily living skills, executive functioning skills, community skills and transitional/vocational skills. [Student] also requires a minimum of 175 hours to 210 hours of program treatment by a BCBA for supervision of behavior therapists, programming, assessment, and reassessment… [and] 300 hours of bilingual parent training and counseling is crucial for direct training of behavior management procedures and program carryover.”^[156] Under cross examination, BCBA testified that “…1,700 hours [were] actually calculated specifically for [Student] [and represented BCBA’s] recommendation.”^[157] BCBA further stated that she was “basing [the 1,700 hours] on current performance and what were needed to go forward and hopefully catch him back up to speed because, you know, I definitely do feel that he’s behind at this point.”^[158]

Tutor testified that based on her assessment “[t]o achieve 12th grade proficiency [she] estimate[d] a total of 6,240 [hours] will be required. If [Student] were to meet his goals earlier, tutoring would end earlier.”^[159]

Although “[c]ommon sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity,"^[160]I find that Student’s case is different. The Student is already near the end of his K-12 educational career, and extended eligibility age is no longer a factor, and not an issue in this case. Whatever compensatory education Student receives will be critical for him in order to be a productive member of society and will likely represent his entire daily activities. Indeed, the notion of “overwhelming quantity” of compensatory services envisioned in M.M. v. New York City Dep't of Educ. cannot apply to Student’s case. In light of the persuasive evidence regarding Student’s cognitive potential, there is simply too large of a chasm between Student’s current educational level and his potential level if provided with appropriate supports had the denial of a FAPE not occurred. Student’s status quo, should it remain, leaves too many educational gaps for him to have a meaningful opportunity to participate in ordinary activities—services he should have received all along over the course of his educational career from the District. The compensatory education he is entitled to will serve as a basis for his continued development and growth and cannot be characterized as “useless” or “burdensome” as was described in M.M. v. New York City Dep't of Educ. These adjectives need to be carefully used in a case such as Student’s, especially considering the significant delays caused by the longstanding denial of a FAPE.

In the absence of any testimony or evidence by the District as to an alternative compensatory education award, I find that the Parent’s requested compensatory education is appropriate considering the documentary evidence and testimony provided on the record. To be clear, although the standard of ‘gross violation’ by the District is inapplicable to the denial of FAPE and the associated compensatory award, I find that that the District was nonetheless in gross violation of the IDEA.

Finally, pursuant to State regulations pertaining to students with autism, parents must be provided with parent counseling and training services "for the purpose of enabling parents to perform appropriate follow up intervention activities at home."^[161] Parent counseling and training is for "assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education program."^[162] “In determining the impact of a failure to deliver parent counseling and training in the first instance, the inquiry should focus on the impact to the student, rather than the impact to the parent.”^[163]

I find that Student’s needs are significant and require substantial intervention both in quantity and quality. To withhold counseling and training from the Parents would cause harm to the Student as he is no longer in a regular school setting and will be entirely dependent on his Guardians to supervise, plan, and schedule his education. With Student’s current educational abilities being so low, to argue that Parent training would not benefit him is illogical. The significant number of hours Student will require to be placed in the position he would have been had the District not denied him of a FAPE are a consideration with respect to the time he will need to expend to catch up. It is possible the Student will never be able to recoup the educational benefit he should have been receiving all along, but to counsel and train the Parents in ways to assist the Student in achieving a positive outcome in the most expeditious and shortest amount of time cannot be ignored.

• • Section 504 Claims Parents asserted a claim under Section 504 of the Rehabilitation Act for all of the School Years in question.^[164] Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].”^[165] Under Section 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.”^[166] An individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.”^[167] However, only students who have a substantial limitation of a major life activity are entitled to a FAPE.^[168] Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others.^[169] The student’s parents bear the burden of proof, both in production and persuasion, on any claim under Section 504 of the Rehabilitation Act.^[170]

Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement... a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s] parents or guardian and representation by counsel, and a review procedure.”^[171] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504.^[172]

I find that all of Parents’ 504 claims are subsumed within the statutory framework of the IDEA, and that the Parents did not identify any specific regulatory requirement under 504 that is not subsumed under the IDEA and that would merit separate analysis and discussion. Therefore, I do not separately address factual determinations or analyze the 504 claims related thereto.

IV. Orders

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY:

• • ORDERED that the DOE shall fund private ABA therapy for a total of 1,700 hours, to be provided by REDACTED, or comparably qualified provider of the Parent’s choosing, at the prevailing reasonable market rate existing on the date that services were rendered; the award may be used for up to six (6) years from the date of this order; the recipient of the award on behalf of Student may include Parent, Grandparent, guardian, future guardian, or Student;
• • ORDERED that the DOE shall fund private BCBA supervision for a total of 210 hours, to be provided by REDACTED, or comparably qualified provider of the Parent’s choosing, at the prevailing reasonable market rate existing on the date that services were rendered; the award may be used for up to six (6) years from the date of this order; the recipient of the award on behalf of Student may include Parent, Grandparent, guardian, future guardian, or Student;
• • ORDERED that the DOE shall fund private bilingual (REDACTED-English) autism Parent Counseling and Training for a total of 300 hours, to be provided by REDACTED, or comparably qualified provider of the Parent’s choosing, at the prevailing reasonable market rate existing on the date that services were rendered; the award may be used for up to six (6) years from the date of this order; the recipient of the award on behalf of Student may include Parent, Grandparent, guardian, future guardian, or Student;
• • ORDERED that the DOE shall fund Student’s private remediation tutoring for a total of 6,240 hours, to be provided by REDACTED, or comparably qualified provider of the Parent’s choosing, at the prevailing reasonable market rate existing on the date that services were rendered; the award may be used for up to six (6) years from the date of this order; the recipient of the award on behalf of Student may include Parent, Grandparent, guardian, future guardian, or Student;
• • ORDERED that the DOE shall, on an annual basis, fund comprehensive testing at reasonable market rate using norm-referenced assessment tools to inform the goals and progress of academic tutoring; the recipient of the award on behalf of Student may include Parent, Grandparent, guardian, future guardian, or Student;
• • ORDERED that the DOE’s Implementation Unit shall identify an implementation manager and shall provide the Parent with that person’s name, email address, and direct phone number within 5 days of this order; an implementation manager shall be appointed for up to six (6) years from the date of this order, or the exhaustion of the available compensatory hours awarded in this Order, whichever occurs first.
• • ORDERED that the DOE shall identify an individual with expertise in transition services for students with autism to create a postsecondary transition plan, to coordinate the compensatory services described above, and to coordinate post-secondary transition services, including but not limited to OPWDD and Access-VR;
• • ORDERED that the DOE shall provide Student with a Metrocard in order to travel to and from any services provided to him, and shall continue to fund such transportation for up to six (6) years from the date of this award, or the exhaustion of the available compensatory hours awarded in this Order, whichever occurs first; the recipient of the award on behalf of Student may include Parent, Grandparent, guardian, future guardian, or Student;
• • ORDERED that the DOE shall a) reimburse for the cost of Psychologist’s evaluation from January 2021 upon presentation of evidence of payment, and b) to the extent any balance remains, make direct payment to Psychologist with evidence of outstanding balance;
• • ORDERED that the DOE shall provide an official REDACTED language translation of this Final Order in its entirety and deliver the translated copy to Parent and/or Parent’s attorney within 30 calendar days of this Order.

DATED: SO ORDERED

8/12/2022

Dr. Oren Varnai, Esq., IHO

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 proceedings 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] Ex. P-A.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Note that there were 2 transcription services used in this case, which created duplication of transcript paginations for hearings conducted by Prior-IHO and IHO. In addition, the two Status Conferences (SC) held by IHO were not transcribed with successive page numbers, with each SC beginning at page 1. Transcript citations associated with Prior-IHO will be identified as [Tr. Page], and those associated with the undersigned IHO will be identified as [IHO Tr. SC 1 or 2; Page].

[7] IHO Tr. SC1, p. 4.

[8] Closing briefs were due 3 weeks following the Parties’ receipt of transcripts of the hearing, but there is no additional information on the record as to the precise date. Tr. pp. 207-208.

[9] IHO Tr. SC1, p. 5.

[10] IHO Tr. SC1, p. 3.

[11] IHO Tr. SC1 pp. 38, 40, 42; IHO Tr. SC2, pp. 21, 22.

[12] Tr. pp. 149-150.

[13] IHO Ex. 1.

[14] IHO Tr. SC1, p. 21.

[15] Tr. p. 12.

[16] Ex. IHO-2; IHO-3.

[17] Ex. IHO-4.

[18] Ex. IHO-2.

[19] Id.

[20] Ex. IHO-3, p. 4.

[21] U.S.C. § 1415(f)(3)(C); see also 20 U.S.C. § 1415(b)(6)(B); Education Law § 4404(1)(a); 34 C.F.R. § 300.507(a)(2); 34 C.F.R. § 300.511(e); 8 NYCRR § 200.5(j)(1)(i); Somoza v. New York City Dept. of Educ., 538 F.3d 106, 114-15 & n.8 (2d Cir. 2008).

[22] K.C. ex rel. J.C.T. v. Chappaqua Cent. Sch. Dist., 2018 WL 4757965, at 14 [S.D.N.Y. 2018] (internal citation and quotation marks omitted).

[23] G.L. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3d Cir. 2015).

[24] See § 1415(b)(6)(B), (f)(3)(C). Avila v. Spokane Sch. Dist. 81, 852 F.3d 936 (9th Cir. 2107).

[25] Id.

[26] G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3d Cir. 2015).

[27] M.C. v. Central Regional Sch. Dist., 81 F.3d 389 (3d Cir. 1996).

[28] U.S.C. § 1415[b][3]; [d]; 34 CFR 300.503; 300.504; 8 NYCRR 200.5[a], [f].

[29] U.S.C. § 1415[d][1][A]; 34 CFR 300.504[a]; 8 NYCRR 200.5[f][3].

[30] C.F.R. § 300.504

[31] See, e.g., Bd. of Educ. of N. Rockland Cent. School Dist., 744 Fed Appx at 10 n.1.

[32] EO_202.8.pdf (ny.gov)

[33] Ex. P-L-2.

[34] Ex. P-HH-2, Para 6(e).

[35] Id, Para 6(b).

[36] Ex. P-S-4.

[37] Ex. P-I-1.

[38] Ex. P-N-1.

[39] CFR 300.304[b][1]; see 8 NYCRR 200.4[b][1].

[40] Fort Osage R-1 Sch. Dist. v. Sims, 641 F.3d 996, 1004 [8th Cir. 2011].

[41] Draper v. Atlanta Indep. Sch. Sys., 480 F. Supp. 2d 1331, 1342 [N.D. Ga. 2007]; see also Application of a Student with a Disability, Appeal No. 21-056; Application of the Dep't of Educ., Appeal No. 12-013; Application of a Student with a Disability, Appeal No. 09-126.

[42] Heather S. v. State of Wisconsin, 125 F.3d 1045, 1055 [7th Cir.1997].

[43] Appeal No. 22-025.

[44] US Dist LEXIS 108393 [EDNY Aug. 6, 2014, No. 12-CV-1680 (ARR) (MDG)] (emphasis added).

[45] Ex. P-D-1. (Emphasis added).

[46] Id. (Emphasis added).

[47] Ex. P-L-3.

[48] Ex. P-S-4.

[49] IHO Tr., SC2, p. 8; l. 13.

[50] Id, p. 9; ll. 10-15.

[51] Ex. P-A-1.

[52] U.S.C. § 1415[f][3][D]; Educ. Law 4404[1][a]; 34 CFR 300.511[f]; 8 NYCRR 200.5[j][1][i]; Bd. of Educ. of N. Rockland Cent. Sch. Dist. v. C.M., 2018 WL 3650185, at *3 [2d Cir. 2018]; R.B. v. Dept. of Educ. of City of New York, 2011 WL 4375694, at *4, *6 [S.D.N.Y. Sept. 16, 2011]; see D.K. v. Abington Sch. Dist., 696 F.3d 233, 245-46 [3d Cir. 2012]; Sch. Dist. of Philadelphia v. Deborah A., 2009 WL 778321, at *4 [E.D. Pa. Mar. 24, 2009], aff'd 422 Fed. App'x 76 [3d Cir. Apr. 6, 2011]; Coleman v. Pottstown Sch. Dist., 983 F. Supp. 2d 543, 569 [E.D. Pa. 2013; Evan H. v. Unionville Chadds Ford Sch. Dist., 2008 WL 4791634, at *6 [E.D. Pa. Nov. 4, 2008]; C.H. v. Northwest Ind. Sch. Dist., 815 F. Supp. 2d 997, 985 [E.D. Tex. 2011].

[53] U.S.C. § 1415[f][3][D]; Educ. Law 4404[1][a]; 34 CFR 300.511[f]; 8 NYCRR 200.5[j][1][i] R.B., 2011 WL 4375694, at *6).

[54] See, e.g., El Paso Indep. Sch. Dist. v. Richard R., 567 F. Supp. 2d 918, 50 IDELR 256 (W.D. Tex. 2008) afj'd El Paso Indep. Sch Dist. v. Richard R., 591 F.3d 417, 53 IDELR 175 (5th Cir. 2009) (failure to provide parents with the procedural safeguards and prior written notice resulted in school district withholding information from the parents); D.G. v. Somerset Hills Sch. Dist., 559 F. Supp. 2d 484, 50 IDELR 70 (D.N.J.2008) (setting aside SOL for withholding procedural safeguards notice after parent's repeated request for evaluation).

[55] See D.K., 696 F.3d at 246-47; R.B., 2011 WL 4375694, at *7; Richard R., 567 F. Supp. 2d at 944-45.

[56] Appeal No. 22-043; F.L. v. Bd. of Educ. of Great Neck Union Free Sch. Dist., 274 F. Supp. 3d 94, 113-14 [E.D.N.Y. 2017], aff'd, 2018 WL 4049074 [2d Cir. Aug. 24, 2018]; Bd. of Educ. of North Rockland Cent. Sch. Dist. v. C.M., 2017 WL 2656253, at *7-*9 [S.D.N.Y. June 20, 2017], aff'd, 2018 WL 3650185 [2d Cir. Aug. 1, 2018]

[57] Ex. DOE 7-1.

[58] Ex. DOE 7-2.

[59] Ex. P-D-7.

[60] Ex. P-E-19.

[61] Ex. P-L-18.

[62] Ex. P-S-10.

[63] Ex. DOE-17-1.

[64] Ex. IHO-5.

[65] Tr. p. 60, l. 1-4.

[66] Id, l. 12.

[67] Tr. p. 65; l. 4.

[68] Id, L10-15.

[69] Tr. p. 119; ll.17-18.

[70] Ex. P-EE-3.

[71] Tr. p. 154; l. 25.

[72] Tr. p. 199; l. 4.

[73] Tr. p. 198; l. 22.

[74] Id, l. 23-25.

[75] F Supp 3d 296, 306-307 [SDNY 2014] quoting S. African Apartheid Litig. v Daimler AG, 617 F Supp 2d 228, 287 [SDNY 2009].

[76] Appeal No. 21-009; see also Bd. of Educ. of N. Rockland Cent. Sch. Dist. v. C.M., 744 Fed. App'x 7, 11 [2d Cir. 2018]; Avila, 2014 WL 5585349, at *8-*9; C.P. v Krum Ind. Sch. Dist., 2014 WL 4651534, at *9 [E.D. Tex. Sept. 17, 2014], quoting Richard R., 567 F. Supp. 2d at 946); R.B., 2011 WL 4375694, at *7; Richard R., 567 F. Supp. 2d at 944-45.

[77] U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982].

[78] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.

[79] Ex. P-A.

[80] See 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i].

[81] See 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii].

[82] See 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v].

[83] Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005])

[84] Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009].

[85] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].

[86] R.E., 694 F.3d at 190-91.

[87] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].

[88] U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.

[89] U.S.C. § 1415[f][3][E][i].

[90] Rowley, 458 U.S. at 203.

[91] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.

[92] Endrew F., 137 S. Ct. at 1001.

[93] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379.

[94] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.

[95] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].

[96] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.

[97] U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

[98] CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i].

[99] CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii].

[100] CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v].

[101] Endrew F., 137 S. Ct. at 1000.

[102] Ex. p-EE-5, para 25.

[103] Tr. p. 124; ll. 19-21.

[104] Ex. P-EE-6, para 29.

[105] Tr. P. 93; l. 20-22.

[106] Id, ll.22-25; emphasis added.

[107] Tr. p. 123; ll. 8-10.

[108] Id, ll. 11-12.

[109] Id, ll. 16-21.

[110] Ex. P-C-5.

[111] Ex. P-D-9.

[112] Ex. DOE-2-8.

[113] Ex. DOE 3-6-13. Note that DOE-3-23, the IEP attendance signature page, indicates that the date of the IEP was 2/27/2017.

[114] Ex. DOE 4.

[115] Ex. DOE-5-7-14.

[116] Ex. DOE 6-7-14.

[117] Ex. P-EE-4.

[118] Id, quoting from Psychologist’s neuropsychological report at p. 6. Emphasis added.

[119] Id.

[120] Ex. P-FF-4.

[121] Id., p. 5.

[122] Ex. -GG-2.

[123] U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.

[124] Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005])

[125] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].

[126] U.S.C. §1412(a)(1).

[127] N.Y. Educ. Law § 4402(5).

[128] See Somoza v. N.Y.C. Dep't of Educ., 538 F.3d 106, 113 (2d Cir. 2008).

[129] Id, at 109 n.2.

[130] Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997].

[131] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; Newington, 546 F.3d at 123.

[132] Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005].

[133] Newington, 546 F.3d at 123.

[134] Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008].

[135] Reid, 401 F.3d at 518.

[136] Id.

[137] Educ. Law § 4404[1][c].

[138] E. Lyme, 790 F.3d at 457; Reid, 401 F.3d at 524

[139] IHO Tr. SC1, P. 33, P.38-39; Tr. SC2, P. 21.

[140] IHO Tr. SC1, P. 38; L. 23-24.

[141] Appeal No. 19-056 p.24.

[142] Although Students are eligible for services until the age of 21, recent legislation related to the COVID pandemic extended eligibility in certain circumstances. Effectively raising the eligibility age to 23. “Notwithstanding any provision of law, rule or regulation to the contrary, a school district may provide educational services in the 2022-23 and 2023- 24school years to a student who turned twenty-one years old during the 2021-22 school year and was enrolled in the school district and receiving special education services pursuant to an individualized education program. Such student may continue to receive such educational services until the student completes the services pursuant to the individualized education program or turns twenty-three years old, whichever is sooner. This act shall take effect immediately and shall expire and be deemed repealed June 30, 2024.” NY State Legislation - S. 7866A / A. 8610A.

[143] IHO Tr. SC1, P.31; L. 11-13.

[144] IHO Tr. SC1, P.30; L. 10-15.

[145] Id.

[146] IHO Tr. SC2, P.13.

[147] Tr. P. 125; L, 14-22.

[148] Id, P. 126; L. 7-8.

[149] Id.

[150] Ex. P-EE-6, Para 30.

[151] Id. Para 30(a), (b).

[152] Tr. P.123; L. 1-7.

[153] Ex. P-L-16.

[154] Ex. P-L-17.

[155] Ex. P-S-3.

[156] Ex. P-FF-6; para 22.

[157] Tr. P. 159; L. 13-15.

[158] Tr. P. 161; L. 22-25 (ending on p. 162 L. 1).

[159] Ex. P-GG-2, para 12.

[160] M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 [S.D.N.Y. Mar. 30, 2017]; Appeal No. 21-228.

[161] NYCRR 200.13[d].

[162] NYCRR 200.1[kk]; see 34 CFR 300.34[c][8].

[163] Appeal No. 21-228.

[164] Ex. P-A-2, para 1.

[165] C.F.R. § 104.33(a).

[166] C.F.R. § 104.33(b).

[167] C.F.R. §104.3(j)(1).

[168] U.S.C. § 705(20)(B)(i); 42 U.S.C. § 12102(2).

[169] See 28 C.F.R. § 35.108(c)(1)(ii).

[170] See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007).

[171] C.F.R. § 104.36.

[172] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf.