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Findings of Fact & Decision Case No. 208724
FINDINGS OF FACT AND DECISION
Case Number:
208724
OSIS#:
[REDACTED]
Student’s Name:
[REDACTED]
Date of Birth:
[REDACTED]
Hearing Requested by:
Parent
Date of Hearing:
5/5/2022
5/18/2022
5/20/2022
6/1/2022
Record Close:
6/27/2022
Hearing Officer:
Jennifer Arditi, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED MAY 5, 2022
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED] Parent
For the Department of Education:
[REDACTED], ESQ., Attorney
[REDACTED], School Psychologist [REDACTED], School Psychologist
NAMES AND TITLES OF PERSONS WHO APPEARED MAY 18, 2022
For the Student:
[REDACTED], ESQ., Attorney [REDACTED], Parent
For the Department of Education:
[REDACTED], ESQ., Attorney
[REDACTED], School Psychologist
NAMES AND TITLES OF PERSONS WHO APPEARED MAY 20, 2022
For the Student:
[REDACTED], ESQ., Attorney [REDACTED], Parent
[REDACTED], Neuropsychologist
For the Department of Education:
[REDACTED], ESQ., Attorney
[REDACTED], Special Education Teacher [REDACTED], DOE Witness
NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 1, 2022
For the Student:
[REDACTED], ESQ., Attorney [REDACTED] Parent
[REDACTED], Director, [REDACTED] Coaching
For the Department of Education: [REDACTED], ESQ., Attorney
This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).
This matter was brought by Ms[REDACTED] (“Parent”), mother of [REDACTED]([REDACTED]or “Student”), in her demand for a due process hearing dated June 8, 2021 against the New York City Department of Education (“DOE” or “District”) to contest the DOE’s failure to identify and classify [REDACTED] as a student with a disability and to develop an Individualized Education Program (“IEP”) for the 2017-2018, 2018-2019, 2019-2020 and 2020-2021 school years. By motion dated April 12, 2022, the DOE moved to dismiss the claims relating to the 2017-2018 and 2018-2019 school years as barred by the Statute of Limitations. The Parent opposed said motion via written opposition papers submitted on April 25, 2022. The IHO deferred decision on this motion.
The hearing convened on May 5, 2022, May 18, 2022, May 20, 2022, and June 1, 2022. A submission schedule for post-hearing briefs was established and briefs were originally due on June 24, 2022. On June 22, 2022, the DOE requested an extension to June 27, 2022, which was granted. The Parent and District both submitted closing briefs via e-mail on June 27, 2022. In its e-mail attaching the closing brief addressed to the IHO and Parent’s counsel, the DOE also included a copy of the previously filed Motion to Dismiss as a separate attachment. On July 5, 2022, the undersigned e-mailed both parties and requested that the DOE resend a copy of its closing brief due to an error message received when attempting to open the brief.1 Parent’s counsel objected to the IHO considering the DOE’s brief stating that he did not receive the DOE’s closing brief as part of the DOE’s June 27, 2022, e-mail and only received the Motion to Dismiss. After further inquiry, Parent’s counsel provided a screen shot of the e-mail received from Ms. [REDACTED] dated June 27, 2022, which showed only the Motion to Dismiss as an attachment. The email correspondences are attached collectively as IHO Exhibit 1. After review and consideration of the Parent’s objection I find that the DOE’s June 27, 2022, e-mail addressed to the IHO, and Parent’s counsel includes both the DOE’s closing brief and the Motion to Dismiss as separate attachments. Therefore, the DOE’s closing brief shall be considered as having been timely submitted.
PARENT AND DISTRICT POSITIONS
The Parent contends that the DOE denied a Free Appropriate Public Education (“FAPE”) for the 2017-2018, 2018- 2019, 2019-2020 and 2020-2021 school years and that it failed in its general duty to assess [REDACTED]in all areas of her suspected disabilities. The Parent requests the following relief:
(1) an Order that the DOE immediately convene an IEP meeting to classify [REDACTED] as a student with a disability and develop an IEP that recommends, at least, five hours per week of 1:1 special education teacher support services (“SETSS”) and one hour per week of Cognitive-Behavioral Therapy (“CBT”)—and, if [REDACTED]’s school cannot or otherwise does not begin providing such services within 30 days of the order in this matter, the DOE shall fund such services to be provided by an independent provider(s) of Parent’s choosing at a reasonable market rate; (2) an Order that the DOE fund, initially, compensatory education services in the form of 500 hours of 1:1 multisensory tutoring and executive functioning instruction to be provided by [REDACTED] Coaching at its standard rate (currently $140 per hour)—or to be provided by a similar independent multisensory instruction provider(s) of Parent’s choosing at a reasonable market rate(s) should [REDACTED] Coaching be unavailable; (3) an Order that the DOE reimburse Parent for all out-of-pocket expenses incurred for 1:1 tutoring for [REDACTED] during the SYs at issue within 30 days of receipt of proof of payment; (4) an Order that the DOE reimburse Parent for all out-of-pocket expenses incurred in obtaining the neuropsychological evaluation conducted within 30 days of receipt of proof of payment; (5) an Order that the DOE fund an independent occupational therapy (“OT”) evaluation to be conducted by a qualified independent evaluator of Parent’s choosing at a reasonable market rate; (6) an Order that the DOE fund a comprehensive neuropsychological evaluation of [REDACTED] to be conducted by Dr. [REDACTED] at a rate of $7,000.00;
(7) an Order that the DOE convene a second IEP meeting within 30 days of receipt of the reports associated with the aforementioned independent OT and neuropsychological evaluations; at this second IEP meeting, the DOE shall update [REDACTED]’s IEP based on the findings and recommendations contained within the aforementioned reports; (8) an Order that the DOE provide or otherwise fund any additional compensatory services that the independent evaluators recommend based on their evaluations; and (9) Any additional relief that the IHO determines to be appropriate.
The DOE contends that [REDACTED] did not have an educational disability and is not entitled to a Free and Appropriate Public Education (“FAPE”) because she is not a student with a disability and the Parent’s request for relief should be denied in its entirety. The DOE further contends that the claims for the 2017-2018 and 2018-2019 school years should be dismissed as untimely under the applicable statute of limitations.
In opposition to the DOE’s Motion to Dismiss, the Parent argues that the IDEA’s statute of limitations does not preclude any claims that were made within two years and 241 days from the filing of the DPC accounting for COVID tolling; that the DOE failed to establish that Parent “knew or should have known” of the basis for her claims; that the DOE prevented Parent from filing her DPC by withholding the procedural safeguards notice required by law; and that the statute of limitations does not bar considering Parent’s claims for the 2017-2018 and 2018-2019 school years in fashioning relief.
FINDINGS OF FACT
Parent requested an Initial Evaluation on October 13, 2017. (DOE Ex. 1). At this time, [REDATED] was a third-grade student in a general education classroom at the [REDACTED] School (“[REDACTED”), a school for gifted or above average students with pacing and curriculum content that is accelerated and above what is expected at grade level. (Tr. 113, 200). In preparation for Student’s initial meeting, [REDACTED] performed the following evaluations: Social History Evaluation, Classroom Observation, Occupational Therapy Evaluation, Psychoeducational Evaluation, and Speech and Language Evaluation. (DOE Ex. 3, 4, 5, 6, 9). Parent received notice of her due process rights and Procedural Safeguards when the Social History was performed on October 30, 2017. (DOE Ex. 9).
An initial IEP meeting took place on March 1, 2018. (DOE Ex. 12). During the meeting Dr. [REDACTED], who conducted the psychoeducational evaluation, testified that he understood that there were questions about attention and executive functioning at the time of his evaluation, but confirmed that he did not conduct evaluative measures of the Student’s executive functioning and that the evaluation could not diagnose ADHD. (Tr. 71–72, 76, 86). At the conclusion of that meeting, the CSE determined that [REDACTED] was not a student with a disability and was not in need of an IEP, relying on her high functioning level (Id.). Despite the DOE’s declination to classify [REDACTED], the school provided [REDACTED] with two weekly sessions of SETSS from March through June of 2018 and had [REDACTED] work with a teacher after-school once per week. (Parent Ex. M at ¶ 9). The DOE generated a Prior Written Notice package on March 7, 2018. (DOE Ex.6).
[REDACTED] returned to [REDACTED] for the fourth grade in the 2018-2019 school year. (Parent Ex. M at ¶ 12). The DOE did not convene any meetings for the student during the 2018-2019 school year and did not provide any special education supports as it had done in the past. (Parent Ex. M at ¶ 13). [REDACTED]’s struggles intensified during the 2018-2019 school year and Parent was provided with a
Promotion in Doubt letter in February 2019 (Parent Ex. M at ¶ 14). The Parent provided supports outside of school including individualized tutoring at her own expense and a summer program at [REDACTED] University in the summer of 2019. (Parent Ex. M at ¶ 17). [REDACTED] was promoted and attended [REDACTED] as a 5th grade student during the 2019-2020 school year. The Parent testified that [REDACTED]’s grades were inconsistent and that she displayed clear signs of falling behind academically. (Parent Ex. M at¶ 20). In addition to the privately obtained outside supports, Parent obtained an independent neuropsychological and educational evaluation through [REDACTED] (“Dr. [REDACTED]’s report”) in late 2019. (Parent Ex. M at ¶ 21). As a result of this evaluation, [REDACTED] was diagnosed with ADHD and Other Specified Anxiety Disorder. Parent provided a copy of Dr. [REDACTED]’s report to the DOE. (Parent Ex. M at ¶ 22).
The DOE convened a second IEP meeting on June 24, 2020. (Parent Ex. M at ¶ 26; see also Ex. 19). Dr. [REDACTED] participated in this meeting and informed the DOE that [REDACTED] was a student with a disability who required additional supports and was only able to maintain her then-current levels of academic performance due to the support of Parent and the private tutors that Parent engaged. (Parent Ex. M at ¶ 26). Dr. [REDACTED] recommended that [REDACTED] be placed in an ICT setting or receive SETSS. Although there was testimony that [REDACTED] developed a 504 plan to implement the recommendations set forth in the neuropsychological evaluation (Tr. 251, 253) and that the 504 plan was implemented at the start of the 2020-2021 school year, (Tr.191) the Parent was never provided with a 504 plan (See Parent Ex. A at 24–25, 30; see also Parent Ex. M at 37); there was no 504-plan submitted by the DOE during this proceeding and there was no testimony regarding the implementation of the 504 plan in the classroom. In fact, Ms. [REDACTED], the school psychologist testified that she did not know whether the 504 plan was implemented (Tr. 293–94). Special Education Teacher [REDACTED] began meeting with [REDACTED] in September 2020 for check-ins and noted that, although [REDACTED] benefitted from their brief sessions, she continued struggling with attention and “having difficulty keeping up with work that was being assigned in a remote setting.”
At Parent’s request, [REDACTED] held another Initial IEP meeting on March 26, 2021. (DOE Ex. 31). In preparation for this meeting, [REDACTED] performed a social history, classroom observation, and a comprehensive data driven assessment, which assessed academics, social emotional needs, and physical functioning (DOE Ex. 26, 27, 28, 29, Tr. 255). The 2021 DOE Evaluation did not feature any objective testing of [REDACTED] but, rather, consisted merely of a social history (Ex. 26), remote classroom observation (Ex. 28), and a compilation of questionnaire answers by [REDACTED]’s teachers in the February 2021 “psychoeducational evaluation.” (Parent Ex M at ¶ 33; see also Tr. 254–55). Dr. [REDACTED] was in attendance and again recommended that [REDACTED] be classified as a student with a disability and recommended that she be placed in an ICT classroom and/or provided with SETSS. (Parent Ex. M at¶ 34.; Tr. 225–26, 296–97). The IEP team again determined that Student did not meet the criteria for an educational disability and was not in need of an IEP. The DPC was filed on June 9, 2021.
CONCLUSIONS OF LAW
The purpose behind the Federal Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a Free Appropriate Public Education (FAPE). 20 U.S.C. §1400(d)(1)(A). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. §1401(9). See 20 U.S.C. §1414(d). The appropriateness of an IEP is determined by assessing whether it was reasonably calculated to provide educational benefit at the time the IEP was formulated, not in hindsight. Antonaccio v. Bd. of Educ., 281 F.Supp.2d. 710, 724-25
(S.D.N.Y. 2003); Application of the Board of Education of Harrison CSD, Appeal No. 04-34
(SRO 2004). An “appropriate” program is one that is reasonably calculated to induce meaningful progress considering the child’s unique needs and the District must show that it offered instruction “specially designed” to meet a student’s unique needs, Endrew F. v. Douglas. County School District, 580 U.S., 14 (2017) Endrew F, 137 S. Ct. 988 (2017). An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walczak v. Florida Union Free School District, 142 F.3d 119 (2d Cir. 1998) supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129.
In Endrew F. v. Douglas County School District, 580 U.S., 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.”
§§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.” In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”
School districts have the burden of proof, including the burden of persuasion and burden of production in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law§ 4404(1)(c)). Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.
ANALYSIS
- • PARENT’S CLAIMS RELATED TO THE 2017-2018 AND 2018-2019 SCHOOL YEAR It is well-established that the IDEA requires that a claim relating to the identification, evaluation, or educational placement of a child, or the provision of FAPE, be presented not more than two years before the date the parent or public agency “knew or should have known about the alleged action that forms the basis of the complaint.” (Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 106, 114 (2nd Cir. 2008), quoting 20 U.S.C. §1415(b)(6)(B)) and that the claims related to the conduct of the CSE process or the contents of the [IEP] accrued at the time of the CSE meeting or at the latest upon the parent's receipt of the IEPs”. Appeal No. 20-179, Appeal No. 20-179. See also, 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. 2017], aff'd 2018 WL 3650185 [2d Cir. 2018]).
In F.L. Bd. of Educ. of Great Neck Union Free Sch. Dist, the Eastern District of New York held that the parent’s challenge to the IEP program recommendation accrued at the time of the IEP review based on the facts of the case. In this case, the claim for the 2017-2018 arose on March 10, 2018, the date that Parent received Prior Written Notice and the DPC was filed on June 9, 2021. Therefore, the claims relating to the 2017-2018 are barred by the Statute of Limitations.
The claim for the 2018-2019 school year requires a separate analysis given Governor Cuomo’s Executive Orders, E.O. 202.8 (9 NYCRR 8.202.8) regarding the tolling of Statute of Limitations due to COVID-19 which began on March 20, 2020. The successive orders commencing on March 2020 and continuing through November 2020 noted that all other suspensions and modifications of law would be continued “for thirty days” and extended the provision until November 3, 2020. (EO 202.72). The Parent was aware that Student was not receiving an IEP or special education program before the start of the 2018-2019 school year, which began on September 5, 2018. Therefore, Parent should have known about claims by September 5, 2018. Two years and the relevant period for COVID tolling pursuant to the above-discussed Executive Orders would mean that a claim that expired on September 5, 2018, expired by April 22, 2021. As the DPC was not filed until June 9, 2021 the claims for the 2018-2019 school year are also time barred.
- • PARENT’S CLAIMS RELATED TO THE 2019-2020 AND 2020-2021 SCHOOL YEAR It is clear from the record before me that the student was denied a FAPE for the 2019-2020 and 2020-2021 school years. The neuropsychological examination by Dr. [REDACTED] was considered at both the June 2020 and March 2021 IEP meetings and the recommendation that [REDACTED] be classified as a student with a disability, that she be placed in an ICT classroom and/or provided with SETSS were disregarded by the IEP team. As far back as 2018, the DOE was aware that that there were questions about attention and executive functioning and ongoing concerns raised by the Parent as well as the teachers. The DOE offered nothing to counter the recommendations in Dr. [REDACTED]’s report at either meeting other than assertions that the student’s high functioning precluded classification, despite the fact that her promotion was in doubt during the 2019-2020 school year and the DOE put supports and interventions in place to assist [REACTED], including a 504 Plan that was never provided to the Parent, made part of the record herein or implemented. The DOE was also aware of all of the supports and interventions that the Parent had put in place to assist the student. “[W]hen the reports and evaluative materials presented at the CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide services consistent with that consensus is not "reasonably calculated to enable the child to receive educational benefits," Board of Educ. v. Rowley, 458 U.S. 176, 207 (1982) and the state's determination to the contrary is thus entitled to no deference because it is unsupported by a preponderance of the evidence. See also, C.F. v. New York City Department of Education, 746 F.3d 68 (2014). In this case the reports and evaluative materials presented at the CSE formulated an uncontradicted consensus that [REDACTED] was a student with a disability requiring classification and the formulation of an IEP and the DOE’s failure to do so constituted a denial of FAPE for the 2019-2020 and 2020-2021 school years.
IT IS HEREBY ORDERED that
- • the DOE is to immediately convene an IEP meeting to classify [REDACTED] as a student with a disability and develop an IEP that recommends, at least, five hours per week of 1:1 special education teacher support services (“SETSS”) and one hour minimum per week of individual counseling;
- • that the DOE is to reimburse Parent for all out-of-pocket expenses incurred in obtaining the May 1, 2020 neuropsychological evaluation within 30 days of receipt of proof of payment;
- • that the DOE is to fund an independent occupational therapy (“OT”) evaluation to be conducted by a qualified independent evaluator of Parent’s choosing at a reasonable market rate;
- • that the DOE is to fund a comprehensive neuropsychological evaluation conducted by a qualified independent evaluator of Parent’s choosing at a reasonable market rate;
- • that the DOE convene a second IEP meeting within 30 days of receipt of the reports to update Student’s IEP based upon the findings and recommendations contained within the aforementioned reports; and
- • that the DOE fund compensatory education services in the form of 160 hours of 1:1 tutoring instruction to be provided by independent provider(s) of Parent’s choosing at a reasonable market rate(s).
IT IS SO ORDERED.
Jennifer Arditi Impartial Hearing Officer
Jennifer Arditi Impartial Hearing Officer
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.
EXHIBITS
DEPARTMENT OF EDUCATION EXHIBITS
EXHIBIT NO.
DATE
DESCRIPTION
NO. OF PAGES
1
10/13/2017
Request for Initial Evaluation
1
2
10/23/2017
Notice of Social History
1
3
2/1/2018
Psychoeducational Evaluation
6
4
1/10/2018
Speech and Language Evaluation
5
5
11/29/2017
OT Evaluation
10
6
11/20/2017
Classroom Observation
2
7
11/16/2017
Teacher Report
6
8
10/30/2017
Request for Speech and
OT Evaluations
1
9
10/30.2017
Social History
4
10
10/30.2017
Consent for Evaluation
1
11
2/16/2018
Notice of IEP Meeting
3
12
3/1/2018
Determination of Ineligibility
7
13
3/7/2018
Prior Written Notice
3
14
6/10/2020
Notice of Social History
2
15
6/8/2020
Consent for Social History
1
16
6/18/2020
Social History Package
20
17
5/26/2020
Letter from Parent Re: Evaluation
1
18
6/16/2020
IEP Meeting Notice
3
19
6/29/2020
Determination of Ineligibility
9
20
6/29/2020
IEP Attendance Page
1
21
6/13/2020
Prior Written Notice
8
22
11/9/2020
Email and Chart re 504 Plans
2
23
Sept., Oct. 2020
Emails with parent re 504 Plan
2
PARENT EXHIBITS
EXHIBIT NO. DATE DESCRIPTION NO. OF PAGES
A 06/06/2021 Processed Impartial Hearing Request with Cover Letter 12
B 10/29/2018- 10/30/2018 Email Thread b/w DOE Teacher& Parent 3 C 03/26/2019- 03/27/2019 Email Thread b/w DOE Teacher& Parent 2 D 10/29/2019- 11/04/2019 Electronic Messages b/w DOE Teacher &Parent 1
E 05/01/2020 Confidential Neuropsychological Report 17
F 06/05/2020 Teacher Report 3
G 06/23/2021 Student Report Card 2
H 01/10/2022 Letter from Dr. [REDACTED] 1
I Undated Dr. [REDACTED] C.V. 10
J Undated Dr. [REDACTED] C.V. 3
K 04/27/2022 Affidavit of Testimony – Dr. [REDACTED] 3
L 04/27/2022 Affidavit of Testimony – Dr. [REDACTED] 4
M Affidavit of Testimony – [REDACTED] 6
IHO EXHIBITS
EXHIBIT NO.
DATE
DESCRIPTION
NO. OF PAGES
IHO1
7/5/2022
E-mails between IHO
3
7/6/2022
& counsel
If you object to the release of information, your objection must be received by December 3, 2021 or, for impartial hearing orders issued after November 12, 2021, within 3 weeks of the issuance of the impartial hearing order.
1 The error message read: “Adobe Acrobat could not open [REDACTED]-DOE closing (sic) brief.pdf' because it is either not a supported file type or because the file has been damaged (for example, it was sent as an email attachment and wasn't correctly decoded).”
* * * If you do not notify the DOE of your objections to the documents being released, you child’s information will be provided to the Special Master appointed in LV v. DOE, 99 Civ. 9917 (SDNY) and/or consultants and employees of Thru-Ed. The information will remain confidential and the disclosure of this information will not affect any of your rights to seek special education