New York City Department of Education, Impartial Hearing Decision

FINDING OF FACT AND DECISION

Case Number: 225225

Student’s Name: REDACTED

Date of Birth: REDACTED

Home District: REDACTED

Service District: REDACTED

Hearing Requested By: REDACTED (“Parent”)

Record Closed Date: February 10, 2023

Hearing Officer: Lorianne M. Wolseley, Esq.

PROCEDURAL HISTORY

On March 6, 2022, Parent’s attorney filed a due process complaint (“DPC”) against the Department of Education (“DOE” or “district”), on behalf of Parent and Student, under Case No. 225225, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”), see 20 U.S.C. § 1415(f), and New York State Education Law § 4404(1). On June 3, 2022, I was appointed impartial hearing officer (“IHO”) to determine the claims in the DPC and conduct an impartial hearing pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1). On June 14 and June 22, 2022, a pre-hearing conference was held with the representatives of the parties. During the pre-hearing conference, the DOE representative argued (and submitted motions) challenging the sufficiency of Parent’s DPC and argued for a dismissal of the Parent’s case. (IHO Ex. I, II)

A status conference was held on July 25, 2022. On the record, I found some of the allegations in the DPC to be systemic claims and outside my authority to adjudicate. An interim hearing on IEEs was subsequently held on August 10, 2022. Parent’s request for IEEs were denied. Additional status conferences were held on September 7, September 29, and October 17. During the status conference on October 17, 2022, Parent’s attorney stated that she wished to withdraw the DPC without prejudice. The DOE objected and stated that the matter should be withdrawn with prejudice. Parties were instructed to submit briefs as to why the matter should be withdrawn with or without prejudice. In the brief submitted by Parent’s attorney, she withdrew her request to have the matter withdrawn and requested that the matter be scheduled for a hearing immediately. At a status conference held on December 6, once again Parent’s attorney requested a hearing and stated that she wished to withdraw her request for the matter to be withdrawn without prejudice. The DOE objected to the hearing and argued that the case should with withdrawn with prejudice. The hearing was scheduled and held on December 20, 2022.

At the time of filing, Student was enrolled in, and attended Private School. Student is classified by the CSE as a student with a learning disability. Student is diagnosed with ADHD, specific learning disorder with impairment in written expression, specific learning disorder with impairment in reading, specific learning disorder with impairment in written expression, and specific learning disorder with impairment in mathematics. (P-A, 1)

The DOE held an IEP review on May 21, 2019, in which the Student was classified with a Learning Disability and recommended to attend a 12:1+1 special class in a NYSED approved NPS Day Program on a 10-month basis. The student was also recommended to receive counseling one time per week for 45 minutes in a group, as well as speech-language therapy 1 time per week for 40 minutes in a group. On June 2, 2020, the CSE met again to develop an IEP for the Student. At that time, the Student was recommended to attend a 12:1+1 special class in a NYSED approved NPS Day program on a 10-month basis. The student was also recommended to receive counseling one time per week for 40 minutes in a group, as well as speech-language therapy 1 time per week for 40 minutes in a group. (D – 5, 8)

In their DPC, Parent did not challenge the appropriateness of the IEPs created for Student, nor did she challenge the program recommendations set forth in the IEPs. Absent from Parent’s complaint are any claims regarding deficiencies within the Student’s IEPs. (P-B)

Though Parent initially alleged that the Student was intermittently denied related services between March to July 2020 (P-B), the Parent subsequently testified, in sum, that when she said “July 2020,” she did not actually mean “July 2020” and Student did in fact receive services. She even testified that she observed her child while he received the instruction, she alleged in her DPC that he did not receive. (12/20/22 Trans. p. 40, 45, 46, 48)

In conclusion, there was no credible documentary or testimonial evidence submitted by the Parent that the DOE failed to provide services and/or instruction to the Student during the time period at issue. The fact that services and instruction was provided remotely instead of in-person during the COVID-19 pandemic due to the Governor’s Executive Order closing schools, is not a denial of FAPE as held by federal courts and a number of SRO decisions. J.T. v. DeBlasio, 500 F.Supp.3d 154 (S.D.N.Y. 2020); Hernandez v. Grisham, 508 F.Supp.3d 893, 988 (D. New Mexico 2020); Appeal No. 21-187, Appeal No. 21-188, Appeal No. 21- 210, Appeal No. 21-241, Appeal No. 22-031, and Appeal No. 22-108.

SUFFICIENCY CHALLENGE

State regulations provide that a parent or district may file a due process complaint notice "with respect to any matter relating to the identification, evaluation or educational placement of a student with a disability,... or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][7][A][ii]; 34 CFR 300.508[b]). A due process complaint notice must contain, at a minimum, (i) the name of the student; (ii) the address of the residence of the student; (iii) the name of the school the student is attending; (iv) a description of the nature of the problem of the student relating to such proposed or refused initiation or change, including facts relating to such problem; and (v) a proposed resolution of the problem to the extent known and available to the party at the time (8 NYCRR 200.5[i][1]; see 20 U.S.C.§ 1415[b][7][A][ii]; 34 CFR 300.508[b]). The other party may challenge the sufficiency of the due process complaint notice it if does not meet these requirement (8 NYCRR 200.5[i][3]).

On March 21, 2022, the District challenged the sufficiency of the due process complaint notice, on the grounds that it failed to meet the specificity requirements set forth in §200.5(i)(l) of the Regulations of the Commissioner of Education. In particular, the District alleged that the parent's hearing request did not include a description of the nature of the problem and facts relating to such problem, nor does the DPC contain a proposed solution to the problem. (IHO-I) On June 22, 2022, I found that the DPC included the name and address of the student, a description of the problem, and a proposed resolution, and, accordingly, that the impartial hearing request was sufficient. (P-B)

DOE’S MOTION TO DISMISS PARENT’S DPC IS GRANTED In the DPC, Parent alleges that:

On behalf of our Clients, we are requesting an impartial hearing pursuant to Section 1415 of the federal Individuals with Disabilities Education Act (“IDEA”) due to the failure of the New York City Department of Education (“School District”) to provide a Free Appropriate Public Education (“FAPE”) for the Student by failing to implement the Student’s educational program as established in the Student’s last agreed upon Individualized Education Program (“IEP”) dated June 4, 2019. Additionally, the Parent asserts a claim pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, et seq., based on the School District’s failure to provide the Student with a FAPE by unilaterally modifying the Student’s IEP. The Parent also requests the Impartial Hearing be open to the public pursuant to 34 C.F.R. §300.512(c).

As of mid-March 2020, the School District has unilaterally, substantially, and materially altered the Student’s “status quo” educational program as it relates to the Student’s pendency rights. First, the School District substantially and materially altered the location of where the Student was to receive services, from a school classroom to the most restrictive setting: at the Student’s home. Second, the School District substantially and materially altered the delivery of these services by precluding the Student from receiving in-person services by a special education teacher or related service providers, including any supplemental support as documented in the Student’s IEP. Third, because none of these services are directed to be provided remotely in the Student’s IEP, these services were to be provided as a direct service to the Student. Fourth, from March to July 2020, Student was intermittently denied related services completely. As a result of the modifications of the Student’s mandated IEP program and services, the Student experienced substantial regression in their educational skills, abilities, and performance. Finally, the School District’s substantial and material alterations of IEP mandated program and services were implemented without proper notice to, or consent by, the Parent. Pursuant to the IDEA and its regulations, such alterations constitute an improper change in the Student’s educational program and placement. (P- A)

Prior to the hearing - IHO Determination

Here, to the extent that the Parent took issue with the executive decision to close schools or the district's actions to deliver instruction and services to students with disabilities remotely during the closure, those allegations are systemic in nature, and no provision of the IDEA or the Education Law confers jurisdiction upon a state or local educational agency to sit in review of alleged systemic violations (see Levine v. Greece Cent. Sch. Dist., 2009 WL 261470, at *9 [W.D.N.Y. Feb. 4, 2009] [ noting that the Second Circuit has "consistently distinguished... systemic violations to be addressed by the federal courts, from technical questions of how to define and treat individual students' learning disabilities, which are best addressed by administrators"], aff'd, 353 Fed. App'x 461 [2d Cir. Nov. 12, 2009]; see also Application of a Student with a Disability, Appeal No. 11-091). Thus, I, as the IHO, do not have plenary authority to pass judgment on the Governor's or district policies affecting all students. Even if I possessed such authority, courts have held that certain summary administrative actions that have the effect of limiting the availability of protections otherwise afforded by law under ordinary circumstances may be justified as part of the government's response to emergency situations (see, e.g., Hernandez v. Grisham, 508 F. Supp. 3d 893, 979 [D.N.M. 2020]).

In addition, in describing the allegations, Parent’s attorney referenced concepts such as "status quo" and pendency rights (P-B). The Governor's March 2020 executive order closing schools in the State is not the event that would trigger the Student's right to a pendency placement under the IDEA, and it was only the Parent's filing of a due process complaint notice that gave rise to the student's rights under stay-put. The Parent requested that an IHO issue an order requiring the district to implement the student's last-agreed upon IEP by reopening the Student's school or allowing the parent to "self-cure the unilateral change in the Student's status quo" (P-B). However, an IHO does not have the authority to countermand Governor Cuomo's executive orders addressing the COVID-19 pandemic response or to direct the District to open an entire school and, in any event, district schools have since re-opened and such request is now moot (see J.T., 500 F. Supp. 3d at 190)^[1]

After the prehearing conference and several status conferences, the DOE’s motion to dismiss was granted in part and denied in part. Issues directly relating to systemic matters and Student’s pendency were dismissed.

After the Hearing - IHO Determination

During the hearing, Parent testified that Student struggled because he received services remotely. (12/20/2022 Trans. p. 46) Parent further testified that remote learning was “torture” for Student. Id. According to Parent, she would go to work, and receive emails from teachers that Student did not login, or he forgot to login, Student had trouble with the Internet, he would miss his morning classes, and he was in “LaLa land, in another world, he was not focusing with computer screen and listening to the teacher.” Id. It is clear that the issue was not that Student did not receive services, but that Student received services remotely and, according to Parent, Student struggled with how the DOE rendered services to Student. Thus, like above, I find that Parent’s testimony provided at the hearing to be a systemic issue and beyond my jurisdiction. Thus, I find that the allegations in the DPC, that Student did not receive services, to be unpersuasive and not credible.

INTERIM ORDER FOR IEEs In an interim order, I found that Parent did not disagree with a District evaluation in accordance with the procedures governing public funding of independent evaluations. A full review of the hearing record shows that the parent did not include any allegations related to an evaluation conducted by the district. Therefore, because the Parents did not express any disagreement with an evaluation conducted by the District, the Parent was not entitled to an IEE at public expense (see Trumbull, 975 F.3d at 163 [2d Cir. 2020] ["a parent's right to an IEE at public expense is triggered when the parent 'disagrees with an evaluation obtained by the public agency'"]; G.J. v. Muscogee Cty. Sch. Dist., 668 F.3d 1258, 1266 [11th Cir. 2012] [upholding a district court that correctly determined that the statutory provisions for a publicly funded independent educational evaluation never "kicked in" because no reevaluation ever occurred]; P.P. ex rel. Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 740 [3d Cir. 2009] [holding that because the parents were not challenging a district evaluation, the district was not responsible for reimbursement]).

COMPENSATORY EDUCATION

Both the USDOE and SED's Office of Special Education have issued guidance acknowledging that the global pandemic and the resulting closure of schools resulted in "an inevitable delay" in districts providing services to students with disabilities or engaging in the decision-making process regarding such services ("Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities," 76 IDELR 104 [OCR & OSERS 2020]; "Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at p. 1, Office of Special Educ. Mem. [June 2021], available at http://www.p12.nysed.gov/specialed/publications/2020memos/documents/compensatory-services-for-students-with-disabilities-result-covid-19pandemic.pdf). In addition, the USDOE has noted reports from some local educational agencies that they were "having difficulty consistently providing the services determined necessary to meet[each] child's needs" and that, as a result, "some children may not have received appropriate services to allow them to make progress anticipated in their IEP goals" ("Return To School Roadmap: Development and Implementation of Individualized Education Programs in the Least Restrictive Environment under the Individuals with Disabilities Education Act," 79 IDELR 232 [OSERS 2021]).

To address these delays and other delivery-related issues that occurred as a result of the pandemic, OSEP and NYSED's Office of Special Education have indicated that, when school resumes, a CSE should convene and "make individualized decisions about each child's present levels of academic achievement and functional performance and determine whether, and to what extent, compensatory services may be necessary to mitigate the impact of the COVID-19 pandemic on the child's receipt of appropriate services" ("Return To School Roadmap," 79 IDELR 232; "Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at pp. 1, 3; see also "Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities," 76 IDELR 104; "Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak," 76 IDELR 77 [OCR & OSERS 2020]; "Supplement #2 Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at pp. 2-5, Office of Special Educ. Mem. [June 2020], available at http://www.p12.nysed.gov/specialed/publications/2020-memos/specialeducation-supplement-2-covid-qa-memo-6-20-2020.pdf). The CSE's review might include a discussion of whether the student has new or different needs compared to before the pandemic, whether the student experienced a loss of skill or a lack of expected progress towards annual goals and in the general education curriculum, whether evaluations of the student or implementation of an IEP was delayed, and whether some of the student's IEP services could not be implemented due to the available methods of service delivery or whether such methods of service delivery were not appropriate to meet the student's needs ("Return To School Roadmap," 79 IDELR 232; "Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at pp. 3-4; see "Supplement #2 -Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at p. 1).

If the Parent disagrees with a CSE's determination regarding the student's entitlement to compensatory services, State guidance notes that:

Parents of students with disabilities may resolve disputes with school districts regarding the provision of FAPE by pursuing one of the dispute resolution options provided for in the IDEA. A parent may file a State complaint directly with NYSED in accordance with Commissioner's Regulation section 200.5(l), request mediation in accordance with Commissioner's Regulation section 200.5(h), or file a due process complaint and proceed to hearing in accordance with Commissioner's Regulation section 200.5(j).

("Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at p. 5; "Supplement #2 -Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at p. 6).

Although the DPC and Parent’s closing brief state that Student did not receive any special education services, the record does not support such a finding. Parent credibly testified that Student received services, she stated, “he struggled. I would receive updates every couple of days from one of his 5 teachers that would tell me Student is missing two assignments.” She testified that the remote learning setting was “torture” and a “nightmare” for Student. (Id. p. 46).

During the hearing, School Psychologist, who attended the Student’s May 21, 2019 IEP meeting, testified that in reviewing the subsequent IEP that was completed on June 2, 2020, she found that the Student exhibited growth during the time period the Parent alleged the Student was denied services and suffered substantial regression. She also testified that the CSE's review included an assessment of Student’s records to determine if he was entitled to compensatory services because of the COVID-19 Pandemic and school closures. She noted that the IEP team did not find that Student needed additional services.

There was no documentary or testimonial evidence submitted by the Parent that the Department failed to provide services and/or instruction to the Student during the time period at issue. As stated earlier, Parent only testified as to Student’s problems around remote instruction. The fact that services and instruction was provided remotely instead of in-person during the COVID-19 pandemic due to the Governor’s Executive Order closing schools, is not a denial of FAPE as held by federal courts and a number of SRO decisions. J.T. v. DeBlasio, 500 F.Supp.3d 154 (S.D.N.Y. 2020); Hernandez v. Grisham, 508 F.Supp.3d 893, 988 (D. New Mexico 2020); Appeal No. 21-187, Appeal No. 21-188, Appeal No. 21- 210, Appeal No. 21-241, Appeal No. 22-031, and Appeal No. 22-108.

At the conclusion of the 2019-2020 school year, Student was promoted from the 9th grade to the 10th grade. Student received passing grades during the 2019-2020 school year and continues to receive passing grades in his classes. Passing grades is evidence of student progress. See Appeal No. 22-089. Moreover, the Parent confirmed that Student passed his classes and advanced to the next grade level.

Finally, I find that there was no credible, persuasive evidence presented showing that Parent disagreed with a CSE's determination regarding the student's entitlement to compensatory services during the June 2, 2020 IEP or even the November 16, 2021 IEP. (D-8, IHO IV) Here, the evidence fails to demonstrate that an award of compensatory education is an appropriate remedy for the alleged FAPE denial. At no point did Parent provide any documentary or testimonial evidence with a recommendation for compensatory education.

Other Requested Relief

I find that the Parent’s 504 claims are subsumed within the framework of the IDEA. Parent’s attorney did not identify any specific regulatory requirement under 504 that is not subsumed under IDEA and that would merit separate analysis and discussion. Therefore, I will not separately analyze the 504 claims raised in the complaint.

I have reviewed the Parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

FOR THE REASONS SET FORTH ABOVE, THE MARCH 10, 2022, DUE PROCESS COMPLAINT IS DISMISSED WITH PREJUDICE.

DATED: SO ORDERED

2/10/2023 /s/ Lorianne M. Wolseley

Lorianne M. Wolseley, 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 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 Parent’s Disclosures

PARENT EXHIBIT

DATE

DESCRIPTION

NUMBER OF PAGES

A 06/04/2019 Individualized Education Program 27

B 03/10/2022 Due Process Complaint 5

C 01/12/2020 Ten Day Notice 2

D 01/12/2021 Due Process Complaint 4 IHO Disclosures

IHO EXHIBIT DATE DESCRIPTION NUMBER OF PAGES I

3/21/2022

DOE’s challenge on sufficiency

3

II

3/21/2022

DOE’s Motion to Dismiss

10

III

08/23/2022

Email correspondences listing IEP dates and evaluations of Student

2

IV

11/16/2021

IEP

29

V

06/13/2022

Petitioner’s Opposition to Respondent’s Motion to Dismiss

14

VI

8/19/2022

Petitioner’s Brief in Support of Request for Independent Educational Evaluations

4

VII

Petitioner’s Closing Brief

11

VIII

1/29/2022

DOE’s Closing Brief

14

IX

Undated

SRO decisions

No. 21-188

No. 21-187

No. 21-210

No. 21-241

No. 22-031

82

Footnotes

[1] Further, the Court in J.T. held that the switch to remote learning in light of the pandemic in and of itself did not constitute a change of placement that would trigger a student's right to pendency (500 F. Sup. 3d at 187-90). The Court left open the possibility that an individual parent could assert "that something other than the closure of the schools and the provision of remote educational services during the pandemic worked a change in [a student's] pendency" (id. at 194); however, the parent has made no such allegation here.