New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 570401 - NYC: 224705

Findings of Fact and Decision

Case Number: 224705

Student’s Name: [Redacted]

District: [Redacted]

Hearing Requested By: Parents

Hearing Officer: Martin J. Kehoe III, Esq.

Actual Record Close Date: October 26, 2022

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student.

Overview

This case involves a demand for compensatory Special Education Teacher Support Services (SETSS) and related services for the 2019-2020 and 2020-2021 school years (SYs). The basis of the Parents’ claim is a May 8, 2018, IESP (Ex. B). The Parent filed the complaint notice on February 23, 2022 (Ex. A). I was appointed as the IHO on May 19, 2022. A hearing was held across multiple dates.^[1]

There are a couple of complexities that separate this case from the straightforward compensatory claim that it purports to be. Namely, a different law firm instituted two separate complaint notices covering the 2019-2020 (Ex. 3) and 2020-2021 (Ex. 6) SYs, respectively. In each case pendency was agreed (Ex. 4 relative to the former and Ex. 7 relative to the later complaint notice^[2]). Following the payout for significant pendency services, (Ex. 9) it appears that each case was terminated without prejudice (See, Order of Termination Ex. 5 relative to the former 2019-2020 SY. With respect to the later 2020-2021 SY there is no OT found in this record^[3]). Time passed and the Parents switched representatives. New counsel then asserted the instant claim for compensatory services (or additional services) for the difference between what was paid out under pendency in the earlier two complaint notices and what the District recommended per the May 8, 2018, IESP.

On July 15, 2022, the District submitted an application for an order for dismissal (Ex. IHO #1), claiming that the Parents’ claims are barred by statute of limitation. The Parents responded in an opposition to the motion to dismiss (Ex. IHO #2), dated July 22, 2022, in which they claim the District miscalculated the “Knew or Should Have Known” date.

During the hearing, the Parents introduced exhibits A-C into the record and had the Mother testify on their behalf. The District offered exhibits 1-12 but did not call any witnesses. a. Parents’ Position The Parents allege that the District failed to implement the Student’s Individualized Education Services Plan (IESP), dated May 8, 2018. Additionally, the Parents claim that the District failed to provide the Student an up-to-date IESP. The Parents allege that the failure to implement, is a denial of a Free Appropriate Public Education (FAPE). While the District did provide the Student with five (5) Periods of SETSS per week, per the mandate on the July 26, 2016 IEP, the Parents maintain that the Student was entitled to an additional two (2) Periods of SETSS per week.^[4] The Parents were unable to locate a SETSS provider on their own accord for the additional two (2) hours. (Ex A-1) In the complaint notice, the Parents write the following:

Parent is concerned regarding DOE’s failure to implement the 5/8/2018 IEP for the 2019-2020 and 2020-2021 school years. Parent has been unable to fulfill the complete SETSS mandate on their own accord and the District has failed to implement their own recommendations. Without supports, the parental mainstream placement is untenable, and the failure to either implement the services or provide a placement is a denial of a FAPE. As a result of DOE’s failure to implement the IEP, [the Student] was only serviced 5 hours per week of SETSS services rather than the 7 periods per week for which they were mandated. (Ex A-1)

To remedy this alleged violation, the Parents seek a bank of compensatory hours for the Student’s SETSS and related services, for any periods not provided during the 2019-2020, and 2020-2021 school years. Additionally, the Parents request that the District continue to fund the Student’s program, outlined in the most recent IEP at the provider’s prevailing rate. (Ex. A-3) b. District’s Position The District argued that the case was:

• • “null and void” due to statue of limitations. (T. 30)
• • The District maintains that the Parents rejected the May 8, 2018 IEP, which recommended the Student receive seven (7) hours of SETSS per week. Pendency was established based on the July 26, 2016 CPSE IEP, which only recommended five (5) hours of Special Education Itinerant Teacher (SEIT) per week, which the District provided. (Ex. 7) (T. 63) This is captured in the District’s representative’s statement below:

[W]hen the Parent rejected the 2018 IESP by filing a due process complaint, which is in evidence, they sought pendency, as in, what is the student's last agreed-to placement/program. That order came from the IHO, that said pendency was the 2016 program that granted only five hours of SETSS services …

… So the parents rejected the 2018 program; there was no 2019 program for the Parent reject. That does not then make the 2018 program now the last agreed-upon placement, as indicated by the pendency order for the 2020 school year, which once again established that that program/placement was from the 2016 IESP that only granted five hours of SEIT services. (T. 63-64) c. Legal Overview The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

• • (A) have been provided at public expense, under public supervision and direction, and without charge,
• • (B) meet the standards of the state educational agency,
• • (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and
• • (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).^[5]

A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

Education Law section 3602-c, as amended by Chapter 378 of the Laws of 2007, establishes New York State’s (NYS) requirements relating to the provision of special education to students with disabilities enrolled in nonpublic elementary and secondary schools by their parents. Under the provisions of section 3602-c, students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them.

Federal regulation (34 Code of Federal Regulations (CFR) section 300.130) defines parentally placed private (or nonpublic) school children with disabilities as "children with disabilities enrolled by their parents in private, including religious, schools or facilities that meet the definition of elementary or secondary school, other than children with disabilities covered under 34 CFR 300.145-147 – “Placement of children by parents if free appropriate public education (FAPE) is at issue." d. Issues

First, I review the Statute of Limitations argument. I find this argument by the District to be unpersuasive. Regarding the District’s second major point -- that the Parents somehow agreed to the pendency services and that they are thereby precluded from litigating FAPE, I disagree. e. Rule on SOL

“An IDEA claim accrues on the date that a plaintiff or his parent ‘knew or should have known about the alleged action that forms the basis of the complaint.’ 20 U.S.C. § 1415(b)(6)(B).” Somoza v. New York City Dept. of Educ., 538 F.3d 106 (2d Cir. 2008). Under the statutory framework of the IDEA, a parent cannot raise a claim that occurred more than two years before the date of accrual, absent any tolling exceptions. 20 U.S.C. § 1415(b)(6). Tolling exceptions include (i) where there are specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint, or (ii) where the local educational agency’s withholding of information from the parent that was required to be provided to the parent. 20 U.S.C. § 1415(f)(3)(D).^[6]

While accepting there may be different academic calculus for determining two relevant dates, as a practical matter, I start with the filing date of February 23, 2022, and count back two years, to February 23, 2020, and assess whether tolling provisions apply. It is in this manner that I determine the date of accrual.

Here, the Cuomo tolling provisions do apply (see Footnote 6, supra) and I move the SOL date back by 228 days to July 10, 2019. With this in mind, I address the knew, or should have known date.

Given the gravamen of the complaint notice (Ex. A) -- failure to implement the May 8, 2018 IESP -- I find that the Parent would reasonably know about such failure to implement, on or about the start of the 2019-2020 SY or more particularly, the first week of September 2019. Accordingly, the Parent timely filed the instant complaint notice.

The District is relying on the earlier date of either the May 8, 2018, (T. 28) CSE meeting or the mailing date of the Prior Written Notice (Ex. 2) May 17, 2018. If either of these days marked the accrual, then the entire claim of the Parents would be precluded. As stated above, I do not agree with the earlier accrual date. There is much ambiguity regarding the District’s position, and it has not been explained. For example, the earlier attorney’s filing (Ex. 3) dated September 4, 2019, is evidence of when the Parents knew or should have known, setting the accrual date. Contrary to the assumption that the date was either the CSE meeting or the PWN from May of 2018, that pleading asserts that no CSE meeting or PWN from May of 2018 ever took place or existed. Casting doubt on the Parents’ knowledge.

III. Did the District Present a Provide the Student a FAPE? a. Legal Standard

IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “... offer a cogent and responsive explanation for their decisions...” Endrew F., Supra.

Regarding the procedural standard, provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.

b. Analysis

I first look to the Parents’ allegations to determine the scrutiny to apply in evaluating the District’s presentation. Regarding the Student’s 2019-2020 SY there is an IESP dated May 8, 2019, that was never implemented. That includes SETSS and related services as detailed above. The District claims that the Parents “agreed” to reduced services (ie. 7 periods of SETSS per the relevant IESP v. 5 Periods of SEIT in the pendency agreement), and thereby should be precluded from litigating FAPE and obtaining the additional services that their own CSE recommended. This argument conflates the separate analysis applied in cases of pendency and cases of FAPE.

Take for instance the FAPE standard from Endrew F. v. Douglas County School District RE–1, 580 U.S. __, 137 S. Ct. 988 (2017) • 197 L. Ed. 2d 335 (2017). There the Court retained the “reasonably calculated” qualification from Board of Educ. v. Rowley, 458 U.S. 176 (1982). The Court explained that the qualification “reflects a recognition that crafting an appropriate program of education requires a prospective judgment by school officials” based on the specific facts related to a student and informed by school officials' expertise and input from the parents or guardians. Id. at 11. Contrast this with the “pendency principles enunciated in Arlington Cent. Sch. Dist. v. L.P., 421 F. Supp. 2d 692, 696 (S.D.N.Y. 2006) (“Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships.”

While the details of the record are very confusing and at times incomplete, ultimately, I find that the District failed to implement its own IESP recommendations for the 2019-2020 SY. “[A] child’s entitlement to special education should not depend upon the vigilance of the parents (who may not be sufficiently sophisticated to comprehend the problem) nor be abridged because the district’s behavior did not rise to the level of slothfulness or bad faith.” G.L. v. Ligonier Valley School District Authority, 2015 WL 5559976, (3d Cir. Sept. 22, 2015)

Likewise, with respect to the 2020-2021 SY the District did not produce an IESP for that SY. This is the backdrop in which I weigh the District’s inaction, ever mindful that the District has the burden of proof. In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

The District conceded to the extent that they did not defend any recommended program or placement. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239. There was no testimony indicating the nature of the CSE deliberations, or even if such deliberations occurred. Rather, I am left to speculate concerning the particulars of the review process, the rationale employed by the CSE members and the discussions that may or may not have contributed to a final recommendation. Further, given the myriad specific substantive allegations against the school, and the complete failure to defend, I find that the District fell short of their burden in this case. c. Conclusion

Upon review, I find that the District failed to demonstrate that they met their burden in providing the Student an IEP tailored to meet her individualized needs. I, therefore, rule for the Parents on the issue of FAPE for two (2) consecutive SYs.

IV. Is Compensatory Education an Appropriate Remedy for Denial of a FAPE? a. Legal Standard

Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]).

SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]).

In fashioning an appropriate award of compensatory education, one must be aware that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, 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"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]).

Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Parents of Student W. v. Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014. b. Analysis The Parent/Mother – Testimony

Regarding compensatory services, the Mother testified, that she is requesting that the Student receives a bank of one hundred and sixty (160) periods of SETSS, eighty (80) for each year the District failed to implement its own recommendations. (Ex. C.2)

In the mother’s testimony she claims that “… without the extra assistance [the Student] will not be able to maintain [the Student] mainstream placement.” (Ex C.1) There is no opposition to this in the record. c. Concluding Remarks and Rationale for Reducing the Award

I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the award. Moreover, the Parents have established that such services are necessary to permit the Student to benefit from instruction.

It is therefore ORDERED

• • The District shall create a bank^[7] of one hundred sixty (160) hours of SETSS; and
• • This matter shall be remanded to the CSE with the direction that they prepare a current recommendation for an IESP and investigate the status of case # 198879.

Dated: October 26, 2022

Martin J. Kehoe III

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 appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[1] A hearing was held on the following dates: July 5, 2022, August 1, 2022, August 18, 2022.

[2] Pendency was established based on the Student’s Committee on Preschool Education (CPSE) IEP, dated July 26, 2016 and the modification form, dated November 8, 2017, which mandated the following: 5 hours of SEIT services per week in bilingual [REDACTED] in a group no larger than 2 and provide individual SLT 3 times per week for 30 minutes per session from a bilingual [REDACTED] SLT provider in a group no larger than 2; individual OT 2 times per week for 30 minutes per session and individual PT 2 times per week for 30 minutes per session. (Ex. 4-3) and see Exhibit 7 for essentially the same program and services for the subsequent year (2020-2021))

[3] The status of case # 198879 remains a mystery to me.

[4] The more recent May 8, 2018 IEP mandated seven (7) periods of SETSS per week.)

[5] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

[6] In response to the COVID-19 pandemic, Governor Cuomo issued Executive Order No. 202.8 on March 20, 2020 tolling the statute of limitations. This order was renewed further by Executive Order every thirty days until, on October 4, 2020, the Governor issued Executive Order No. 202.67, announcing that the tolling order would be extended for only one more 30-day period— “until November 3, 2020, and after such date [statutes of limitation] will no longer be tolled.” On June 2, 2021, the Appellate Division, Second Department issued a decision and order in the case of Brash v. Richards, 2021 NY Slip Op 03436, determining that the Governor did have the authority to toll the statute of limitations established under New York State law, and that the toll was an absolute tolling of the statute of limitations.

[7] The District must pay a provider(s) of the Parents’ choosing at a market rate, at the time the services are provided, to be determined by the “implementation unit” of the District, in consultation with the Parents and/or their provider(s). These hours are to be utilized within three (3) years of this order.