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Special Education Law
DECISIONDistrict PrevailedIHO Case No. 225251

New York City Department of Education, Impartial Hearing Decision

August 11, 2022·representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 571131 - NYC: 225251

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

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

PETITIONER DECISION ON MOTION TO DISMISS

against Case # 225251 THE NEW YORK CITY Dustin Johnson, Esq.

DEPARTMENT OF EDUCATION, Impartial Hearing Officer

RESPONDENT

DECISION ON MOTION TO DISMISS

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.

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 as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant me the authority to adjudicate this hearing. Furthermore, the undersigned is not currently, nor have I ever been, an employee of the NYC Department of Education. Finally, I do not have any personal or professional interest or bias that conflicts with my objectivity to hear this matter.

II. Overview – Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an Individualized Education Program (“IEP”), which is delegated to a local Committee on Special Education (“CSE”) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having 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][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an Impartial Hearing Officer (“IHO”) (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).

III. Background and Procedural History

Given the undeveloped state of the hearing record in the present matter, a full recitation of the student's educational history is not possible but is, in any event, unnecessary due to the limited nature of this decision.

The parent's allegations in this matter primarily relate to the school building closures that began in March 2020 as a result of efforts to combat the spread of the COVID-19 pandemic. Notably, the parent's allegations in this due process complaint notice are substantially similar to those alleged in matters involving different students, filed by the same law firm, which were discussed in numerous recent decisions by NY State review officers (see Application of a Student with a Disability, Appeal No. 22-017; Application of a Student with a Disability, Appeal No. 21-241; Application of a Student with a Disability, Appeal No. 21-110; Application of the Dep't of Educ., Appeal No. 21-188; Application of the Dep't of Educ., Appeal No. 21-187).

  • • Due Process Complaint Notice In a due process complaint (“DPC”) notice dated March 17, 2022[1], the parent alleged that the District failed to offer the student a free appropriate public education (“FAPE”) “by failing to implement the [s]tudent's educational program as established in the [s]tudent's last agreed upon Individualized Education Program (“IEP”) dated January 24, 2020." (see IHO Ex. I at p. 1). In addition, the parent alleged that the District failed to offer the student a FAPE pursuant to section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, by "unilaterally modifying the [s]tudent's IEP" (id.). More specifically, the parent asserted that, in or around "mid-March 2020," the District "unilaterally, substantially, and materially altered the Student's 'status quo' educational program as it relates to the [s]tudent’s pendency rights" when the District: "substantially and materially altered the location" for the student's receipt of services, "substantially and materially altered the delivery of these services" from in-person instruction by a special education teacher or related service provider, and provided the student's services remotely as opposed to as a direct service to the student as required by his IEP and without proper notice to the parent (id. at pp. 1-2). The parent argued that the aforementioned "alterations constitute an improper change in the [s]tudent's educational program and placement” under the IDEA, and as a result, the student experienced “substantial regression” (id. at p. 2).

After noting that the District's federal and State obligations to continue to provide students with a FAPE during the COVID-19 pandemic—while allowing for flexibility during this transition of services—had not been waived or absolved, the parent alleged that the District violated the student's pendency rights and, as a result, she sought "immediate relief" (IHO Ex. I at p. 3). Additionally, the parent requested "comprehensive independent evaluations of the Student to determine the need for compensatory services as well as any appropriate changes to the Student's educational program and placement" to remedy the District's failure to offer the student a FAPE "since mid-March 2020" (id. at p. 3). The Parent also “disagrees with the [s]tudent's prior evaluations, both at the time they were conducted as well as currently" because “they do not accurately reflect the impact of the COVID-19 school closures and unilateral modification of IEP program and services," and the "magnitude" of the student's regression (id. at p. 3). The parent also requested to convene a CSE upon the completion of the IEEs to "review the updated evaluations and make any appropriate changes to the Student's IEP" (id. at p. 3).

As relief, the parent requested that the IHO: issue an "interim order" directing the District to immediately implement the student's last-agreed upon IEP dated January 24, 2020, by allowing the parent to "self-cure the unilateral changes in the Student’s status quo educational program and placement, to the best of their abilities"; issue an "interim order" directing the District to "conduct comprehensive independent educational evaluations" of the student; issue an order requiring the District to reimburse the Parent; and issue an order finding that the District denied the student a FAPE and "determine appropriate compensatory services" (IHO Ex. I at p. 3).

  • • District’s Motion to Dismiss By Motion to Dismiss dated March 22, 2022, the District alleged that Petitioner’s counsel was frivolously litigating claims that had been dismissed in Federal Court, the allegations raised in the instant DPC are nearly identical to allegations raised by the same parent’s attorney against the District in several recent appeals related to remote instruction (Appeal No. 21-187, Appeal No. 21-188, Appeal No. 21-210, and Appeal No. 21-241) and that the State Review Office (“SRO”) has dismissed these identical allegations as lacking any cognizable claim against the District, being moot, containing systemic allegations and/or containing claims beyond the IHO’s jurisdiction (IHO Ex. II at p. 2). The District argues that the SRO findings are further supported by the Southern District of New York’s holding in J.T. v. De Blasio and the Federal District Court of New Mexico’s holding that a district’s provision of remote instruction caused by the Covid-19 pandemic is not a denial of FAPE, citing to J.T. v. De Blasio, 500 F.Supp.3d 137 and Hernandez v. Grisham, 508 F.Supp.3d 893, 988, for support (id. at pp. 2-3).

With regards to the specific allegations contained within the parent’s DPC here, the District argues that the parent’s claim is time barred by the 2-year Statute of Limitations; the pendency request is moot; there is no change in pendency rights; parent’s DPC fails to state a claim upon which relief can be granted; parent’s request for interim IEEs cannot be granted as a matter of law; and parent’s request for any other relief from the IHO cannot be granted (see generally IHO Exhibit II). The District requested that the IHO dismiss the parent's due process complaint notice in its entirety with prejudice (id. at p. 10).

  • • Prehearing Conference After recusals from other IHOs, the undersigned Hearing Officer was appointed to preside over this case on June 29, 2022. On July 13, 2022, a prehearing conference was held in the above matter virtually via WebEx, and a Prehearing Conference Summary and Order was subsequently issued (see IHO Exhibit III). At the prehearing conference, there was a discussion regarding the District’s Motion to Dismiss. The Petitioner’s counsel indicated that they will be responding in writing by July 22, 2022, and it was agreed that the District may respond to Petitioner’s response by no later than July 29, 2022. It was further discussed that the IHO will then rule on the motion based only on the written submissions of the parties. Furthermore, a discussion regarding the pendency request was had wherein parent’s attorney indicated that the dispute regarding pendency is being withdrawn.
  • • Parent’s Response to Motion to Dismiss On July 22, 2022, Petitioner filed a written answer in opposition to the District’s Motion to Dismiss (see IHO Exhibit IV). In their answer, Petitioner alleges generally that the DOE failed to implement the Student’s IEP, intermittently denied the Student services completely, that the claim is not time barred by the 2-year Statute of Limitations, the DPC is sufficient, the Parent makes an individual claim and not a systemic claim, the DOE’s Motion to Dismiss lacks legal support, the Student suffered an improper change in placement when the DOE unilaterally modified his last agreed-upon IEP, the parent’s DPC properly states a claim upon which relief can be granted, the Parent’s request for Independent Educational Evaluations is proper, and an IHO has the authority to fashion appropriate remedies (see generally IHO Exhibit IV). The Parent requested that the IHO deny the District’s Motion to Dismiss in full and that the matter proceed to a hearing on the merits (IHO Exhibit IV at p. 12).
  • • Surreplies On July 29, 2022, the DOE filed a surreply further arguing for the dismissal of the complaint (see IHO Exhibit V). On August 5, 2022, the Petitioner filed an additional response (see IHO Exhibit VI).

IV. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (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 (20 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]).

A FAPE is 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 (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]). "'[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'" (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]). The Supreme Court has indicated 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" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). While the Second Circuit has emphasized that 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" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (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]). Under the IDEA, if procedural violations are alleged, an administrative officer 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 (20 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).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (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). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (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]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (“LRE”) (20 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).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), 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 (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] 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" (Endrew F., 137 S. Ct. at 1000).

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

V. Discussion

  • • District’s Motion to Dismiss As a general matter, summary disposition procedures akin to those used in judicial proceedings are a permissible mechanism for resolving certain proceedings under the IDEA (see, e.g., Application of a Student with a Disability, Appeal No. 19-102; Application of the Dep't of Educ., Appeal No. 11-004), but generally regulations do not address the particulars of motion practice. Instead, IHOs are provided with broad discretion, subject to administrative and judicial review procedures, in such matters so long as they "accord each party a meaningful opportunity" to exercise their rights during the impartial hearing (Letter to Anonymous, 23 IDELR 1073 [OSEP 1995]; see Impartial Due Process Hearing, 71 Fed. Reg. 46704 [Aug. 14, 2006]).

While permissible, summary disposition procedures should be used with caution and are only appropriate in instances in which "parties have had a meaningful opportunity to present evidence and the non-moving party is unable to identify any genuine issue of material fact" (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).

Here, the District submitted a Motion to Dismiss dated March 22, 2022, and the parent was given and undertook a meaningful opportunity to respond, to identify genuine issues of material fact, and to otherwise exercise her rights during the impartial hearing process.

Having reviewed the motions and responses filed by both parties, I do not find the parent’s arguments persuasive, nor do I find that this matter is distinguishable from recent cases involving allegations that the District has not delivered sufficient or appropriate special education to students with disabilities during building closures related to the COVID-19 pandemic. In fact, this DPC appears nearly identical to numerous other complaints filed by the same law firm on behalf of different parents which have already been litigated.

For the reasons further discussed below and given the similarity of the parent’s allegations here to several recent matters, I am sustaining the District’s Motion to Dismiss and dismissing the instant proceeding in its entirety, with prejudice.

  • • FAPE Allegations The District correctly asserts that the parent's allegations in this due process complaint notice are strikingly similar to allegations raised by counsel for the parents on behalf of other students in the district which have been discussed in recent decisions by State Review Officers (see Application of a Student with a Disability, Appeal No. 22-017; Application of a Student with a Disability, Appeal No. 22-016; Application of a Student with a Disability, Appeal No. 21-241; Application of a Student with a Disability, Appeal No. 21-110; Application of the Dep't of Educ., Appeal No. 21- 188; Application of the Dep't of Educ., Appeal No. 21-187).[2]

In all of these matters, the parents' allegations surrounded the school closures that took place as a result of the COVID-19 pandemic. Relevant to such circumstances is the decision of the District Court of the Southern District of New York in J.T. v. de Blasio (500 F. Supp. 2d at 145). The Court in J.T. described in detail the March 13, 2020, closure of schools in New York City, and found that the actions taken by the district to deliver services to students with disabilities during the closure through remote delivery to be consistent with federal and State guidance (id. at 181-84).

Notwithstanding the parent’s attempts to couch this issue in a different light, to the extent that the parent took issue with the District's actions to deliver instruction and services to students with disabilities remotely during the school closure during COVID-19, 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, an IHO does 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]), so it is far from clear that the parent would prevail with that argument in the appropriate forum anyway.

Further, in her original March 17, 2022, due process complaint notice, the parent referenced concepts such as "status quo" and pendency rights (IHO Ex. I at p. 2). Although the parent withdrew allegations regarding pendency at the prehearing conference, the parent then oddly spilled considerable ink discussing pendency in their opposition to the District’s Motion to Dismiss. In any event, if the parent had attempted to pursue allegations that there was a violation of the student's pendency placement, such allegations would be premature insofar as the student was not entitled to a pendency placement prior to the parent's filing of the due process complaint notice on March 17, 2022 (see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]). That is, 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.

Additionally, the March 17, 2022, due process complaint notice did not allege that the student did not receive any instruction and/or services remotely during the school closure, instead taking issue with the remote delivery itself and being “intermittently denied related services completely” from March to July 2020 (see IHO Exhibit I at p. 2). It is worth noting that such intermittent denial that was alleged had allegedly occurred during the earliest phase of an unprecedented public health emergency when the District was faced with an “inevitable delay” in providing such services, as further discussed below. Nor did the parent allege that a CSE considered whether the student may need additional services to make up for lost skills due to the closure of schools and the change in the delivery of services as a result of the pandemic, which as discussed further below, is the process contemplated by the United States Department of Education (USDOE) and the New York State Education Department's (NYSED's) Office of Special Education.

While, as noted by the District Court in J.T., the United States Department of Education (USDOE) stated unequivocally in its guidance that compliance with IDEA did not preclude any school from offering educational programs through distance instruction (J.T., 500 F. Supp. 3d at 187; see "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]), such guidance merely serves to clarify a district's obligation in the context of an unprecedented public health emergency and does not speak to the actual impact of remote learning on individual students with disabilities. Accordingly, while the pivot to remote learning during the school closure period cannot be the sole basis for finding a denial of FAPE, federal and State guidance suggests that going forward, a CSE should, in the first instance, address questions of educational benefit, loss of academic skills and potential regression during remote learning when recommending educational programming for subsequent IEPs.

For instance, and as illustrated above, both the USDOE and the State Education Department's (NYSED'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/ 2020-memos/documents/compensatory-services-for-students-with-disabilities-result-covid-19- pandemic.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]).

Accordingly, 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/special-education-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 COVID19 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; see also Z.Q. v New York City Dep't of Educ., 2022 WL 903003, at *5 [S.D.N.Y. Mar. 28, 2022] [noting that "[t]he 2020 COVID-19 guidance... provides that CSEs may coordinate with parents to make [an] individualized determination" about whether a student is entitled to compensatory services]).

In the event that a CSE "decides not to provide compensatory services to a parent and the parent disagrees with that decision," State guidance provides 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).

In sum, the USDOE and NYSED's Office of Special Education have indicated that, under these unique circumstances, a CSE should have the first opportunity to consider the student's needs and whether any additional services may be warranted as a result of the pandemic.

Here, the parent stated in her March 17, 2022, due process complaint notice that "As a result of the modifications and denial of the [s]tudent's mandated IEP program and services, the [s]tudent experienced substantial regression in their educational skills, abilities, and performance" and that the student's prior evaluations did not accurately reflect the impact of the COVID-19 school closures and unilateral modification of the IEP program and services on the student and "the magnitude of regression that has resulted" (IHO Exhibit I at pp. 2-3). The parent further requested that after completion of IEEs in the student's areas of need (neuropsychological, occupational, physical and speech-language therapy), that the District "promptly conduct a new" CSE meeting “to review the updated evaluations and make any appropriate changes to the [s]tudent's IEP” (id. at p. 3). To the extent that the parent's March 17, 2022, due process complaint notice does not contain an allegation that a CSE has inappropriately addressed or refused to consider the student's alleged regression, the parent will not get far with her FAPE claims based solely on the district's failures related to school closure and remote delivery of services.

Additionally, while the parent is of the opinion that the student has regressed, it appears that the parties have since conducted a review of the student's present levels of academic achievement and functional performance, as envisioned by federal and State education authorities, convened multiple new CSE meetings to engage in educational planning for the student, and have issued subsequent IEPs after the January 24, 2020, IEP referenced in the DPC. As is apparent from the January 19, 2021, and January 21, 2022, IEPs[3], the CSE has already reconvened and developed new IEPs for this student as contemplated by the above-mentioned OSEP and NYSED guidance. Notably, the 2021 and 2022 IEPs were developed prior to the March 17, 2022, filing of the instant DPC, which conveniently makes no mention of them. Why the parent has completely ignored this fact in their instant DPC or in their arguments in response to the District’s Motion to Dismiss is a curious omission.

In this DPC, the parent requested that an IHO issue an order requiring the District to implement the student's last agreed upon IEP dated January 24, 2020, by requesting that she be allowed to "self-cure the unilateral change in the Student's status quo" (IHO Ex. I at p. 3). As discussed above, when the parent filed this March 17, 2022, DPC, the student’s last agreed upon IEP was from at least January 21, 2022, not January 24, 2020. The instant DPC makes no mention of the January 21, 2022, IEP (nor the January 19, 2021, IEP) and likewise makes no allegations that the CSE inappropriately addressed or refused to consider the student’s alleged regressions in the multiple updated IEPs that have since been completed. To the extent that the instant DPC includes an allegation that the student suffered regression during remote instruction, the Petitioner’s allegations are silent as to whether or not the CSE has addressed the student's alleged regression in the January 19, 2021, IEP or the January 21, 2022, IEP.

It would have been a prudent use of limited due process resources for the parent to seek to amend the due process complaint notice (or to withdraw and refile the claims) to include FAPE claims related to the CSE's consideration of the student's current educational performance and possible regression, including any recommended compensatory services, instead of relying on a stale IEP that has been subsequently updated multiple times. Such reliance on a stale IEP from the Petitioner adds credence to the District’s argument that the instant DPC is part of a concerted effort by the Brain Injury Rights Group to frivolously litigate claims, as opposed to bringing meritorious complaints that may be potentially affecting this student today and which are truly ripe or currently actionable.

Nevertheless, the parent does not have any actionable claims with respect to the student's alleged regression due to the COVID-19 school closures, taking into account that a school closure during the relevant time period would not, in and of itself, constitute a denial of a FAPE, as discussed above.

In summary, J.T. was controlling authority establishing that the change to remote delivery of services did not constitute a change in placement and is not a denial of FAPE; the parent's claims regarding consent and pendency had been addressed by the District Court in J.T.; the parent made no claims of self-cure; and apart from the District's closure of schools and the provision of remote instruction working a change in pendency, the Parent’s due process complaint notice here did not allege any additional violations of the IDEA by the District.

Based on the foregoing, in reviewing the March 17, 2022, DPC before me, I find that the Petitioner has failed to state a claim upon which relief can be granted and furthermore that the instant DPC is without merit. Therefore, the District’s Motion to Dismiss with prejudice should be granted.

  • • Independent Educational Evaluations As I have determined that the District did not deny the student a FAPE, there is no basis to award relief of any kind, including Independent Educational Evaluations (“IEE”).

The IDEA and State and federal regulations guarantee parents the right to obtain an IEE (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]), which is defined by State regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 200.1[z]; see 34 CFR 300.502[a][3][i]). Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]).14 (14 Guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, "the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs" (Letter to Baus, 65 IDELR 81 [OSEP 2015]; see Letter to Carroll, 68 IDELR 279 [OSEP 2016]).

If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv).[4] If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]). Additionally, both federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). The Second Circuit Court of Appeals has recently found that, if a district and a parent agree that a student should be evaluated before the required triennial evaluation "the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs" or "[o]therwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation" (D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 170 [2d Cir. 2020]).

In this instance, the District correctly asserts that the parent did not disagree with a District evaluation in accordance with the procedures governing public funding of independent evaluations. Apart from vague generalizations, a full review of the parent's due process complaint notice shows that the parent did not include any allegations related to an evaluation conducted by the District (see IHO Exhibit I). A review of the parent's due process complaint notice reflects that the parent requested "comprehensive independent evaluations of the [s]tudent to determine the need for compensatory services as well as any appropriate changes to the [s]tudent's educational program and placement" due to the district's alleged failure to offer the student a FAPE "since mid-March 2020" (IHO Exhibit I at p. 3).

In addition, the parent noted, with regard to relief, that she sought an interim order by the IHO directing the District “to conduct comprehensive independent educational evaluations” of the student (id. at p. 3). Further, as noted above, the due process complaint notice does not contain any challenges to the appropriateness of the student's current IEP and does not contain any allegations related to the evaluative information relied on by the CSE in developing the student's current IEP (see IHO Exhibit I).

Therefore, because the parent 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] [noting that "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]).

Furthermore, to the extent the parent argues that this IHO should grant IEEs as interim relief, it is generally within an IHO's authority and discretion to order an IEE at public expense as part of an impartial hearing (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]; Luo v. Roberts, 2016 WL 6831122, at *7 [E.D. Pa. Oct. 27, 2016] [noting that an IHO "is permitted, and in some cases required, to order an [IEE] at public expense"], on reconsideration in part, Luo v. Owen J. Roberts Sch. Dist., 2016 WL 6962547 [E.D. Pa. Nov. 28, 2016], aff'd, 2018 WL 2944340 [3d Cir. June 11, 2018]; Lyons v. Lower Merrion Sch. Dist., 2010 WL 8913276, at *3 [E.D. Pa. Dec. 14, 2010] [noting that the regulation "allows a hearing officer to order an IEE 'as part of' a larger process"]; see also S. Kingstown Sch. Comm. v. Joanna S., 2014 WL 197859, at *9 n.9 [D.R.I. Jan. 14, 2014] [acknowledging opinion that the regulation empowers hearing officers to solicit independent expert opinions but disagreeing that the regulation gives an IHO "the inherent power to make up remedies out of whole cloth"], aff'd, 773 F.3d 344 [1st Cir. 2014]).

Based on the totality of the record before me, the similarity of the instant proceeding to previous proceedings that have already been litigated, and my finding that the instant DPC lacks merit and makes concerning omissions, I would not have utilized my discretionary authority to award any IEEs as interim relief in this case. Furthermore, as indicated above, as I have determined that the District did not deny the student a FAPE, there is no basis to award any relief of any kind.

  • • Statute of Limitations Although my determinations above render the statute of limitations argument moot, for the sake of completeness, I have addressed this dispute as well.

The District argues that the Parent’s claim is time-barred as the Parent is challenging the school closure which occurred via Executive Order signed by the Governor of New York on March 16, 2020 (IHO Exhibit II at p. 3). It is the District’s position that the instant DPC was filed on March 18, 2022, and is therefore untimely (id.). The Parent argues that the claim is not time-barred as the Executive Order directed schools to close by March 18, 2020, and therefore March 18, 2020, was the first day the Parent knew that there would be a change to the student’s IEP (IHO Exhibit IV at p.2-3). Therefore, it is the Parent’s position that the filing deadline would properly be determined to be March 18, 2022, and because the instant DPC was filed on March 17, 2022, it is timely (id).

I find the Parent’s argument more persuasive.

The IDEA requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged action that forms the basis of the complaint (20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; Educ. Law § 4404[1][a]; 34 CFR 300.511[e]; 8 NYCRR 200.5[j][1][i]; Somoza v. New York City Dep't of Educ., 538 F.3d 106, 114 n.8 [2d Cir. 2008] [noting that the Second Circuit applied the same "knows or has reason to know" standard of IDEA claim accrual both prior to and after codification of the standard by Congress]; M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir. 2003]; G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *17 [S.D.N.Y. Mar. 29, 2013], aff'd, 554 Fed. App'x 56, 57 [2d Cir Feb. 11, 2014]; R.B. v. Dept. of Educ., 2011 WL 4375694, at *2, *4 [S.D.N.Y. Sept. 16, 2011]; Piazza v. Florida Union Free Sch. Dist., 777 F. Supp. 2d 669, 687-88 [S.D.N.Y. 2011]). New York State has affirmatively adopted the two-year period found in the IDEA (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j][1][i]). Determining when a parent knew or should have known of an alleged action "is necessarily a fact-specific inquiry" (K.H. v. New York City Dep't of Educ., 2014 WL 3866430, at *16 [E.D.N.Y. Aug. 6, 2014]).

Exceptions to the timeline to request an impartial hearing apply if a parent was 1) prevented from filing a due process complaint notice due to a "specific misrepresentation" by the district that it had resolved the issues forming the basis for the due process complaint notice; or 2) the district withheld information from the parent that it was required to provide (20 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).

In the instant case, as discussed above, the hearing record shows that the parent emailed the DPC notice to the District on March 17, 2022 (IHO Exhibit I at p. 5). Therefore, without satisfying either exception to the two-year statute of limitations, those claims which accrued on or before March 17, 2020, are barred by the statute of limitations.

While the District is correct that the Governor’s Executive Order was issued on March 16, 2020, the order itself indicates that schools will close by March 18, 2020.[5] Furthermore, the Executive Order indicates that school districts are required to develop a plan for alternative instructional options, including distance learning, and must submit those plans to the state for approval no later than midnight of the night the Executive Order was issued (id.). Therefore, the parent would not have known the full effect of the Executive Order on the student’s education on March 16, 2020, when school districts themselves were still formulating plans for alternative instructional options and distance learning. The parent was far more likely to understand the full weight of the closure when it actually occurred, on March 18, 2020.

Accordingly, the Parent’s allegations raised in the March 17, 2022, DPC are within the two-year statute of limitations and are not being dismissed on statute of limitations grounds, but rather, for the reasons indicated above.

VI. Conclusion

I have reviewed all of the allegations contained within the DPC, the arguments in the Motion to Dismiss, the Response to the Motion to Dismiss, as well as the surreplies. In light of my determinations above, I decline to grant the Petitioner any requested relief.

ACCORDINGLY, THE PETITIONER’S MARCH 17, 2022, DUE PROCESS COMPLAINT IS HEREBY DISMISSED WITH PREJUDICE.

DATED: SO ORDERED

8/11/2022 /s/ Dustin Johnson

Dustin Johnson, 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.

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

I, Dustin Johnson, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.

DATED: CERTIFIED BY

8/11/2022 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

CASE # 225251 EXHIBITS

IHO Exhibit

Date

Title

Number of Pages

IHO-I

3/17/2022

Petitioner’s Due Process Complaint

5

IHO-II

3/22/2022

District’s Motion to Dismiss

10

IHO-III

7/13/2022

Prehearing Conference Summary and Order

9

IHO-IV

7/22/2022

Petitioner’s Answer to Motion to Dismiss

12

IHO-V

7/29/2022

DOE Surreply

6

IHO-VI

8/5/2022

Petitioner Surreply

3

IHO-VII

1/21/2022

2022 IEP

30

IHO-VIII

1/19/2021

2021 IEP

28

IHO-IX

1/22/2020

2020 IEP

28

IHO-X

1/23/2019

2019 IEP

27

Footnotes

[1] The face of the DPC indicates a date of March 10, 2022. However, that DPC was emailed by counsel for the Petitioner to the Impartial Hearing Office on March 17, 2022, at 5:09pm (see IHO Exhibit I at p. 5). Presumably, because it was received after business hours on March 17, 2022, the DPC was subsequently processed by the Impartial Hearing Office on March 18, 2022. For the purposes of this decision, the operative date for the filed DPC will be March 17, 2022.

[2] While SRO decisions do not constitute binding precedent (see 8 N.Y.C.R.R. §279.12(a)), they are quite persuasive.

[3] Neither party disclosed any documentary evidence with their motions. However, via judicial subpoena, the undersigned IHO sought discovery for a more complete record prior to ruling on the motion (see IHO Exhibits VII-X). Apart from confirming the existence of recent IEPs, I pass no judgment on the adequacy of the IEPs that were subpoenaed and referenced herein.

[4] As the parent's request for an IEE was first made in the due process complaint notice, it would be inefficient to require the district to initiate a separate due process hearing to defend its evaluation of the student; nevertheless, as the parent did not disagree with a district evaluation, the district was not required to initiate due process (see R.L., 363 F. Supp. 2d at 235 [finding that the parent was not entitled to an IEE and holding that the district was not required to take the parents to due process over the issue]; see also Seth B. v. Orleans Par. Sch. Bd., 810 F.3d 961, 968 [5th Cir. 2016] [holding plain reading of federal regulation does not require the district to initiate or request a hearing to demonstrate the appropriateness of its evaluation when the parents first requested an IEE in a due process complaint notice]).

[5] https://www.governor.ny.gov/news/governor-cuomo-signs-executive-order-closing-schools-statewide-two-weeks#:~:text=Governor%20Andrew%20M.,two%20weeks%20ending%20April%201.