New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 572323 - NYC: 225967

FINDINGS OF FACT AND DECISION

Case Number: 225967

Student’s Name: REDACTED (hereinafter “Student”)

Date of Birth: REDACTED

School District: REDACTED (hereinafter “School District”)

Impartial Hearing Officer: R. Emily Rodriguez, Esq.

Date of Filing: 04/22/2022

Hearing Requested by: REDACTED (hereinafter “Parent”)

Dates of Hearings: 06/08/2022

08/03/2022

09/22/2022

Record Close Date: 01/31/2023

Date of Decision: 01/31/2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 8, 2022:

For the Student:

REDACTED (hereinafter “Parent Attorney/Representative”)

For the Department of Education (“DOE”):

REDACTED (hereinafter “DOE Representative I”)

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 3, 2022:

For the Student:

Parent Attorney/Representative

REDACTED (hereinafter “Parent”)

REDACTED (hereinafter “Current School Director”)

REDACTED (hereinafter “Special Education Teacher”)

For the Department of Education (“DOE”):

REDACTED (hereinafter “DOE Representative II”)

IHO Observers

REDACTED (hereinafter “IHO Observer I”)

REDACTED (hereinafter “IHO Observer II”)

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTMBER 22, 2022:

For the Student:

Parent Attorney/Representative

Parent

REDACTED (hereinafter “Occupational Therapist”)

REDACTED (hereinafter “Second Grade Teacher”)

REDACTED (hereinafter “Speech Language Pathologist”)

For the Department of Education (“DOE”):

DOE Representative II

BACKGROUND

Student^[1] is a REDACTED-year-old child who is classified by the New York City Department of Education’s (“DOE”) Committee on Special Education (“CSE”) as a child with Autism. (D – 1, P - A)^[2]. Since preschool Student was found to have severe delays in the areas of school readiness, sensory self-regulation, social and emotional learning and visual-motor coordination. (IHO - VI). Student’s classification and entitlement to special education programming and services is not in dispute. Student attends the Current School and has attended this school since 2020.

Parent alleges that the DOE failed to provide Student with a Free and Appropriate Public Education (“FAPE”) for the 2018-2019, 2019-2020, 2020-2021 and 2021-2022 school years. (P – A). Parent is seeking:

• • An Order declaring Current School shall be Student’s pendency placement;
• • Order declaring that DOE denied Student a FAPE during the 2018-2019, 2019-2020, 2020-2021, and 2021-2022 school years;
• • An Order declaring that the New York City Department of Education shall provide compensatory tutoring services based on the denial of an appropriate placement, services and FAPE for the 2018-2019, 2019-2020, and 2020-2021 school years;
• • An Order declaring that the New York City Department of Education shall provide compensatory related services such as OT, PT, speech and language and ABA based on the denial of an appropriate placement, services and FAPE for the 2018-2019, 2019-2020, and 2020-2021 school years;
• • An Order declaring that the New York City Department of Education shall provide compensatory counseling services based on the denial of an appropriate placement, services and FAPE, during the 2018-2019, 2019-2020, and 2020-2021 school years;
• • An Order declaring that the New York City Department of Education shall provide compensatory parent counseling and training with BCBA supervision based on the denial of an appropriate placement, services and FAPE, during the 2018-2019, 2019-2020, and 2020-2021 school years;
• • An Order declaring that the New York City Department of Education responsible for all costs associated with the unilateral placement of Student at the Current School for the 2020-2021 and 2021-2022 school years and for so long as the program remains appropriate. All costs include, but are in no way limited to, tuition, transportation, related services, and anything else related to Student’s program at Current School;
• • An Order declaring that Petitioner shall be reimbursed for any out-of-pocket expenses including, but not limited to, travel, transportation, evaluations, supports and services, for Student that were necessary as a result of denial of FAPE;
• • An Order declaring that Petitioner shall be reimbursed for transportation to and from Current School;
• • An Order declaring that Petitioner shall be reimbursed for the cost of their attorney’s attendance at a subsequent IEP meeting to develop an appropriate IEP for Student;
• • An Order declaring that the statute of limitations shall be tolled in this matter because the District failed to provide Petitioner with the information required in order to be able to file a Due Process Complaint in a timely matter and their failure to provide either a Procedural Safeguard Notice or Prior Written Notice for any school year;
• • An Order declaring that the District shall implement services immediately should the Petitioner obtain a favorable Findings of Fact and Decision;
• • An Order declaring that the District shall reimburse Petitioner and/or otherwise comply with orders included in a Findings of Fact and Decision;
• • In the appropriate forum, Petitioner reserves the right to seek reimbursement of attorneys’ fees; and
• • Any other relief the IHO deems equitable and just. (P – A).

The impartial hearing was held on August 3, 2022 and September 22, 2022. The DOE appeared on both hearing dates. The DOE did not present any witness testimony but did place documents into evidence. (August 3, 2022 T – pgs. 11 – 13, D – 1-23).

Parent presented a case consisting of direct testimony of Parent, Occupational Therapist, Second Grade Teacher, Speech Language Pathologist, Special Education Teacher, Current School Director and documents placed in evidence by Parent’s attorney. (August 3, 2022 T – pgs. 13-17, P – A-YY, September 22, 2022 T).

There are eight IHO exhibits which include six Extension Orders, Parent’s closing brief and District’s closing brief. (IHO – I, IHO – II, IHO – III. IHO – IV, IHO – V, IHO – VI, IHO – VII, IHO - VIII).

PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s due process complaint (“DPC”), filed on or around April 22, 2022. (P - A). The resolution period expired without the parties reaching an agreement. I was appointed on May 27, 2022 to conduct an impartial hearing pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1) to determine the claims in the DPC. A pre-hearing conference in this matter was held on June 8, 2022. A closed hearing was held on August 3, 2022 and on September 22, 2022. The initial compliance date was July 6, 2022. Extensions were granted extending the compliance date to February 1, 2023. (IHO – I, IHO – II, IHO – III, IHO – IV, IHO – VII, IHO - VIII). The record closed on January 31, 2023.

JURISDICTION

A decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200.

LEGAL FRAMEWORK

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. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 NYCRR § 200.5(j)(4)(ii).

The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 34 C.F.R. § 300.13. A FAPE is further defined as “educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). Two purposes of the IDEA 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).

A board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions constitute the Burlington/Carter test in a tuition reimbursement case.

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. NYS Educ. Law § 4404(1)(c). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).

FINDINGS OF FACT

Statute of Limitation (“SOL”): 2018- 2019 and 2019-2020 School Years 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 (“KOSHK”) 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); Education Law § 4404(1)(a); 34 C.F.R. § 300.507(a)(2); 34 C.F.R. § 300.511(e); 8 NYCRR § 200.5(j)(1)(i); Somoza v. New York City Dept. of Educ., 538 F.3d 106, 114-15 & n.8 (2d Cir. 2008). Since an IDEA claim accrues when a parent knew or should have known about the claim, “[d]etermining when a parent knew or should have known is necessarily a fact-specific inquiry” (K.C. ex rel. J.C.T. v. Chappaqua Cent. Sch. Dist., 2018 WL 4757965, at 14 [S.D.N.Y. 2018]) (internal citation and quotation marks omitted).

In 2004, Congress amended 20 U.S.C. §1415(b)(6), which essentially mirrored the SOL at §1415(f)(3)(C) in almost all respects: they both describe a two-year time limit that hinges on the reasonable discovery date; they both provide that any state statute of limitations will override this timeline; and they both incorporate the two exceptions to the statute of limitations set forth in §1415(f)(3)(D). Unlike §1415(f)(3)(C), however, §1415(b)(6)(B)’s two-year limitations period runs backward instead of forward from the reasonable discovery date. G.L. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3d Cir. 2015). Courts have resolved this ambiguity by holding that the discovery rule applies. Congress did not intend the IDEA's statute of limitations to be governed by a strict occurrence rule. Both § 1415(b)(6)(B) and § 1415(f)(3)(C) include language pegging the limitations period to the date on which the parent or agency "knew or should have known about the alleged action that forms the basis of the complaint," not the date on which the action occurred. See § 1415(b)(6)(B), (f)(3)(C). Avila v. Spokane Sch. Dist. 81, 852 F.3d 936 (9th Cir. 2107). If Congress intended a strict occurrence rule, there would have been no need to include the "knew or should have known" language in § 1415(b)(6)(B) and § 1415(f)(3)(C). Id. The SOL begins to run not when the injury has occurred, but when the parent “knew or should have known” of the injury. These dates, of course, can be the same.

Once the KOSHK date is established, the claim is ripe for judicial adjudication and the two-year SOL begins to accrue from that date. On March 7, 2020, due to the unprecedented COVID-19 pandemic, then New York State Governor Cuomo signed an Executive Order (“EO”) which was subsequently extended by a series of EO’s, which both on their face and following judicial interpretation, had the effect of tolling, rather than suspending, all statutory timeframes through November 3, 2020. This tolling of the SOL necessarily adds an additional 241 days to the two-year time from the KOSHK for a timely filing of a DPC.

The IDEA’s statute of limitations is viewed as an affirmative defense in New York. M.G. v. NYC Dept of Educ., 62 IDELR 195 (S.D.N.Y. 2014), citing Somoza, supra. Accordingly, the DOE has the burden of proving that the statute of limitations barred plaintiff’s claims. Id. As an affirmative defense, the statute of limitations is considered waived if not raised at the initial administrative proceeding. Id. For a defendant to avail itself of this affirmative defense, factual development beyond those plead is typically required. Wong v. State Department of Education, 71 IDELR 128 (D. Conn. 2018), citing In re S. African Apartheid Litig., 617 F. Supp 2d 228, 287 (E.D.N.Y. 2009).

Moreover, the IDEA creates two tolling exceptions to the two-year statute of limitations period. A claim will not be considered if “the parent was prevented from requesting the hearing due to (i) specific misrepresentations by the local education agency that it had resolved the problem forming the basis of the complaint or (ii) the local educational agency’s withholding of information from the parent “that is required to be provided under the IDEA 20 U.S.C § 1415(f)(3)(D)”. K.H. v. New York City Dep't of Educ., 2014 WL 3866430 (E.D.N.Y. 2014).

Here, neither of the exceptions apply to the facts of this case. DOE has argued that Parent’s claims related to the 2018- 2019 and 2019-2020 school years should be barred by the statute of limitations. This defense was timely raised by the DOE at the due process hearing on August 3, 2022. (August 3, 2022 T - pgs. 18-19). The DOE asserts that Parent was aware of their Due Process Rights and Procedural Safeguards when they were notified of the final notice of recommendation on February 7, 2018. (D - 23-3). Parent signed this document on February 7, 2018. The DOE submitted several documents regarding the 2018-2019 and 2019-2020 school years which notified Parent of their Due Process Rights and Procedural Safeguards. (D- 22-1, 22-2. 22-3. 22-4). Parent testified incredibly that they did not receive the Procedural Safeguard Notice for the 2018-2019 and 2019-2020 school years. (August 3, 2022 T – pg. 96). The hearing record confirms that Parent did receive these documents.

The first exception is limited to circumstances where a school district falsely claims that the alleged problem that forms the basis for the Parent’s complaint has been resolved. See 20 U.S.C. §1415(f)(3)(D)(i); 8 NYCRR §200.5(j)(1)(i). It requires the identification of a specific misrepresentation that prevented the plaintiff from requesting a hearing. The misrepresentation must be intentional and knowing – i.e. the DOE must have intentionally misled or knowingly deceived the parent regarding the relevant fact. D.K, 696 F.3d at 245-46. Here, there is no evidence that the DOE intentionally misled or knowingly deceived the parent. The second exception requires evidence that the DOE withheld specific information that it was required to provide under the IDEA and that resulted in the parent’s unknowing waiver of right. See, 20 U.S.C. §1415(f)(3)(D)(i); 8 NYCRR §200.5(j)(1)(i); C.H. v. Northwest Indep. Sch. Dist., 815 F. Supp. 2d 977, 986 (E.D. Texas 2011); R.B. V. Dep’t of Educ., 2011 WL 4375694, at *6-7 (S.D.N.Y. Sept. 16, 2011). Once again, the Parent was clearly aware of their rights under the IDEA because prior written notices were sent to the Parent. See Application of a Child with a Disability, Appeal No. 18-069. The Prior Written Notices (or Final Notice of Recommendations) notified the Parent in writing that a copy of the procedural safeguards notice can be downloaded on the DOE’s website or Parent could request the procedural safeguards notice from the DOE representative listed on the Prior Written Notice (or Final Notice of Recommendation), which also contains the DOE representative’s phone number. In addition, the Prior Written Notice or Final Notice of Recommendation sent to the Parent stated that if the Parent did not agree with the CSE’s recommendation, the Parent had the right to an impartial hearing or to request mediation in writing to the CSE Chairperson. (D - 23-3, 22-1, 19-18, 17-17, 11-1; IHO – V).

Lastly, there is no evidence of the DOE withholding information from the Parent. At no point did the DOE dissuade or deceive Parent from filing a timely DPC for the 2018-2019 and 2019-2020 school year claims. Accordingly, the facts of this case do not support a finding that either of the two exceptions apply. Given this testimony and evidence, I find that Parent knew or should have known of the alleged violations making up the claim by this point in time during the 2018-2019 and 2019-2020 school years. Therefore, under the IDEA statutes of limitations, and considering the COVID-19 EO tolling provisions, I find that Parent’s claims with respect to the 2018-2019 and 2019-2020 school years are barred.

Failure to Provide a FAPE In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE. M.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013). DOE implicitly conceded that they did not provide Student with a FAPE for the 2020-2021, and 2021-2022 school years. (August 3, 2022 T). Since the DOE did not present a case or present any witness testimony at the hearing, the DOE failed to address or sustain its burden under the Education Law and failed to demonstrate it provided Student with a FAPE for the 2020-2021, and 2021-2022 school years. Additionally, the DOE did not object to or contest the evidentiary material submitted by the Parent in support of their claims, and it offered no rebuttal to the testimony provided by the Parent’s witnesses. Consequently, the Parent is entitled to a presumption as to the truth of the asserted facts underlying their claims that are contained in the documentary evidence and testimony to the extent those facts are credible and are not contradicted by the hearing record. Based on that presumption and the DOE’s failure to sustain its burden under the Education Law, the record establishes that the DOE failed to provide the Student with a FAPE for the 2020-2021, and 2021-2022 school years. Accordingly, I find the Parent has met the first prong of the Burlington/Carter test for tuition funding and/or reimbursement.

Student’s Placement at Current School

When parents unilaterally place their child in a private program and seek funding and/or reimbursement for that program, they must demonstrate the program they have selected is appropriate to meet their child’s needs. A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G., 459 F.3d 356 at 364). Parents are not barred from an award of tuition reimbursement or funding even if the private program does not meet the IDEA definition of a FAPE; the selected program need not employ certified special education teachers or develop its own IEP for the student, and parents’ selection of a program that has not been approved by the state does not bar reimbursement. Frank G., 459 F.3d 356 at 364 (citing Carter, 510 U.S. 7 at 14). Parents need not show that a private placement provides every special service necessary to maximize their child’s potential, but only that it is likely to produce progress and not regression and provides “educational instruction specially designed to meet the unique needs of the... child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d Cir. 2007].

The uncontroverted testimony of Parent, Occupational Therapist, Second Grade Teacher, Special Education Teacher, Speech Language Pathologist and Current School Director coupled with the uncontested documentary evidence support a finding that Current School is an appropriate placement for Student. The hearing record establishes that Current School appropriately addressed Student’s needs for the 2020-2021 and 2021-2022 school years.

Based on the foregoing, I find that Current School is an appropriate placement for Student for the 2020-2021 and 2021-2022 school years, and Parent has met the second prong of the Burlington/Carter test for tuition funding and/or reimbursement.

Equitable Considerations To receive an award of tuition reimbursement associated with a private school program, a weighing of the equities must support that award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” Frank G., 459 F.3d at 363-64; 20 U.S.C. § 1412[a][10][C][iii]. When a school district fails to provide a student with a FAPE and the private placement is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief” Gagliardo, 489 F. 3d 105 at 112, citing Carter, 510 U.S. 7 at 16. “A major consideration... is whether the parents have cooperated [with the school district] throughout the process to ensure that their child receives a FAPE” N.R. ex rel. T.R. v. Dept. of Educ., 2009 WL 874061, at *6 [S.D.N.Y. 2009] [citation omitted].

The hearing record does not demonstrate that the Parent “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds.” Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 [S.D.N.Y. 2008]. There is nothing in the hearing record to suggest, let alone demonstrate, that the Parent interfered in any manner with the CSE’s evaluation of Student or prevented it from providing the Student with a FAPE for the 2020-2021 and 2021-2022 school years. Quite the contrary, the hearing record establishes that while the CSE did convene a review meeting and develop an IEP, they did not provide Student with a public-school placement for the 2020-2021 and 2021-2022 school years in line with the IEP recommendations.

Furthermore, Parent, through their attorney, provided the DOE with the statutorily required ten-day notice in which they informed the DOE, among other things, that Student had not received an appropriate placement recommendation for the 2020-2021 school year, and that as a result, they would be placing the Student at Current School for the 2020-2021 school year and would seek tuition funding for the unilateral placement. (P – C, D).

One of the purposes of the statutory notice provision is to provide the school district with “an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a free appropriate public education can be provided in the public schools” Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]; see also R.B. and H.Z. ex rel. C.Z. v. New York City Dept. of Educ., 713 F. Supp. 2d 235, 248 [S.D.N.Y. 2010]. The DOE failed to present any evidence or witness testimony to demonstrate that it replied to the Parents’ ten-day notice, or that it offered an appropriate placement for Student for the 2020-2021 school year. Based on the foregoing, I find Parent has met the third prong of the Burlington/Carter Test, as a weighing of the equities supports an award of tuition funding and/or reimbursement to Parent.

The hearing record establishes that the Parent incurred the following obligations to pay tuition:

(P – QQ)

Current School Tuition 4/20/2020 - 6/30/2021

$ 50,600.00

Pro-rata Discount

$ (39,340.00)

Parent Payments

$ (3,000.00)

Balance Due to Current School 2020 – 2021 School Year

$ 8,260.00

(P – RR)

Current School Tuition 7/1/2021 -6/30/2022

$ 101,200.00

Parent Payments

$ (1,800.00)

Balance Due to Current School 2021 – 2022 School Year

$ 99,400.00

Current School’s prorated aggregate tuition is $50,600 for Student’s enrollment in the Current School’s 12-month program for the 2020-2021 school year (P – QQ) and Current School’s aggregate tuition is $101,200 for Student’s enrollment in the Current School’s 12-month program for the 2021-2022 school year. (P – RR). The record establishes that Parent has paid $3,000 toward the 2020-2021 prorated aggregate tuition. (P - QQ). The record also establishes that Student was issued a discount for the 2020-2021 school year in the amount of $39,340. As such, Parent owes Current School $8,260 for the 2020-2021 school year. The record further establishes that Parent paid $1,800 toward the 2021-2022 aggregate tuition. As such, Parent owes Current School $99,400 for the 2021-2022 school year.

Therefore, I find the DOE shall fund the full cost of the Parent’s tuition obligation for Student’s placement at Current School for the 2020-2021 school year, in the amount of $8,260, to be paid to Current School within fifteen (15) days of the DOE’s receipt of an affidavit from the Current School certifying Student’s attendance for the 2020-2021 school year and confirming the amount due. I also find, the DOE shall fund the full cost of the Parent’s tuition obligation for Student’s placement at Current School for the 2021-2022 school year, in the amount of $99,400, to be paid to Current School within fifteen (15) days of the DOE’s receipt of an affidavit from the Current School certifying Student’s attendance for the 2021-2022 school year and confirming the amount due.

The record establishes that Parent has paid $4,800 toward the aggregate tuition obligation incurred for Student’s placement at Current School for the 2020 -2021 and 2021-2022 school years. (P – X). As such, I find the DOE shall reimburse the Parent the sum of $4,800 for the Parent’s payment of a portion of the cost of the aggregate tuition obligation incurred for Student’s placement at Current School for the 2020 -2021 and 2021-2022 school years., to be paid to Parent within fifteen (15) days of the DOE’s receipt of an affidavit from the Parent confirming the amount due.

The hearing record further demonstrates that Parent is unable to pay the tuition owed to Current School, as the tuition obligation would create a financial hardship for the family. (August 3, 2022 T, pgs. 104-105). Tuition funding paid directly to Current school is justified where parents have satisfied the Burlington/Carter test and have shown that they cannot afford to front the cost of their child’s tuition. E.M. ex rel. N.M. v. New York City Dept. of Educ., 758 F. 3d 442, 452-454 (2d Cir. 2014); Mr. and Mrs. A., 769 F. Supp. 2d at 427. Connors v. Mills, 34 F. Supp. 2d 795, 804 (N.D.N.Y 1998). Accordingly, Student’s Parent is entitled to an order directing the DOE to fund their tuition obligation to Current School for the 2020 -2021 and 2021-2022 school years.

Transportation The IDEA requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’... even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport” Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 [11th Cir. 1997] (internal citation omitted). Transportation may be deemed necessary “if in its absence a disabled child in Current school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’,... or special education program benefits “comparable in quality, scope, and opportunity for participation... [to those provided for] students enrolled in public schools’” Donald B., 117 F.3d at 1375 (internal citations omitted). In addition, State law defines special education as “specially designed instruction... and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” Education Law §§ 4401[1], 4402[4][a]; see also Education Law § 4401(2); 8 NYCRR § 200.1[ww]). Since I am finding Current School to be the appropriate placement, I will order that the DOE provide appropriate transportation services and/or funding for Student to commute to and from Current School. Parent has requested reimbursement for out-of-pocket transportation expenses. (P – A). However, there is no evidence in the hearing record to support such an award.

Compensatory Related Services

Student has been denied a FAPE for multiple years despite the DOE’s acknowledgement of Student’s need for related services. The hearing record confirms that Student did not receive all the mandated related services for 2020-2021 and 2021-2022 school years. The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations”. See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7, 15-16 (1993). As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.” Boose v District of Columbia, 786 F. 3d 1054, 1056 [D.C. Cir. 2015]. In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme, 790 F.3d at 454.

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 [2d Cir. 2008]. Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme, 790 F.3d at 454. Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate”, and “hearing officers may award ‘educational services... to be provided prospectively to compensate for a past deficient program.’” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005). “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.” See Id. at 522. Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.” See Id. at 518.

There are generally two approaches to fashioning a compensatory education award: 1) the “quantitative” approach followed in the Third Circuit, see, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 [3d Cir. 1996] [holding that a student denied a FAPE is entitled to compensatory education equal to the period of deprivation], and 2) the “qualitative” approach relied on by the 6th and D.C. Circuits, see, e.g., Reid, 401 F.3d at 518, 524 [requiring a flexible, fact-specific approach in which the award relies “on individual assessments” and is “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”].

The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion”, so long as “the relief is [] appropriate in light of the purpose of the Act” Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 [2d Cir. 2016]; see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 [E.D.N.Y 2008] [noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated”, and awarding compensatory relief equal to the amount of time the student was deprived of services]. In calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP] or encompass analogous educational services appropriate to Student’s current’s needs”; however, 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.” Doe. v. East Lyme, 790 F.3d at 457.

Under New York law, the DOE has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA. Education Law § 4404(1)(c). However, the Parent also has a responsibility to identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE for the years at issue. See JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021), [noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”]; Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C. 2017) [holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits”] [internal quotes and citation omitted]. Here, Parent indicated that Student requires “5,460 hours of compensatory ABA, 204 hours of parent counseling, 150 hours of compensatory speech language therapy (“SLT”) and 300 hours of compensatory occupational therapy (‘OT”).” (IHO – VI.)

The hearing record establishes that Student was not provided a FAPE for the 2020-2021 and 2021-2022 school years. The uncontroverted testimony of Parent confirms that Student was denied related services in applied behavior analysis (“ABA”), OT, SLT and Parent Counseling during the 2020-2021 and 2021-2022 school years and is entitled to compensatory education to compensate for what they were deprived of during the school years in question. The DOE did not present any witness testimony or documentary evidence to explain why it made the program recommendations contained in the IEPs it developed for the 2020-2021 and 2021-2022 school years, notwithstanding the Supreme Court’s admonition that “[a] reviewing court may fairly expect those authorities [school district staff] to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 999 [2017], (D – 13-1, 2-1). The DOE also failed to present any evidence or testimony to challenge or rebut the findings and recommendations presented by the Parent.^[3]

Student was mandated to receive related services as follows:

2020-2021 school year (D-13-1)

Related Services

Frequency

Duration

Implementation Date

Total Hours

OT 2 times per week 30 minutes 9/1/2020

46 hours^[4]

Speech-Language Therapy

2 times per week

30 minutes

9/1/2020

46 hours

Parent Counseling

Once a month

60 minutes

9/1/2020

12 hours^[5]

2021-2022 school year (D – 2-1)

Related Services

Frequency

Duration

Implementation Date

Total Hours

OT

2 times per week

30 minutes

7/1/2021

46 hours^[6]

Speech-Language Therapy

2 times per week

30 minutes

7/1/2021

46 hours

Parent Counseling

Once a month

60 minutes

7/1/2021

12 hours^[7]

Based on the hearing record, I find Student was denied approximately104 hours of related services^[8] for each school year in question 2020-2021 and 2021-2022 for an approximate total of 208 hours. Accordingly, an award of 92 hours in OT and SLT and 24 hours in Parent Counseling is necessary to bring Student to where they should have been had they been provided with the appropriate related services during the school years at issue. An award of 92 hours of OT, 92 hours of SLT and 24 hours of Parent Counseling will put Student in the position they would have been in had they been provided appropriate related services in the first place, and it will appropriately compensate Student for the DOE’s denial of a FAPE for the 2020-2021 and 2021-2022 school years.

Student has been classified with Autism and needs ABA therapy. The record reflect Student has seen success with therapy utilizing the DIR/Floortime methodology as well. (P – K). The DOE has made no effort to provide this type of developmental therapy to this family despite noting that “Student has significant academic, communicative, social and behavioral delays.” (D – 2-17). I find Student is entitled to 1610^[9] hours of ABA therapy and/or therapy utilizing the DIR/Floortime methodology for each year the DOE denied Student a FAPE. As such, an award of 3,220 hours of one-to one ABA therapy and/or therapy utilizing the DIR/Floortime methodology will put Student in the position they would have been in had they been provided these services during the school years in question.

Other Relief The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party; and entitlement, if any, to costs must be determined by a court of competent jurisdiction. Only a court can determine who is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parent is the prevailing party entitled to costs.

Other than the relief set out in my Order below, I find that no basis and/or evidence in the Record supports any additional relief.

ORDER

Based on the foregoing, it is hereby:

ORDERED, Parent’s claims regarding the 2018-2019 and 2019-2020 school years are time barred, and it is further,

ORDERED, DOE failed to provide Student a FAPE for the 2020-2021 and 2021-2022 school years, and it is further,

ORDERED, Current School is an appropriate placement for Student for the 2020-2021 and 2021-2022 school years, and it is further,

ORDERED, Current School shall be Student’s pendency placement, and it is further,

ORDERED, that the DOE shall reimburse the Parent the sum of $4,800 for the Parent’s payment of a portion of the cost of the aggregate tuition obligation incurred for Student’s placement at Current School for the 2020-2021 and 2021-2022 school years, to be paid to Parent within fifteen (15) days of the DOE’s receipt of an affidavit from the Parent confirming the amount due, and it is further,

ORDERED, that the DOE shall fund the balance of the full cost of the Parent’s tuition obligation for Student’s placement at Current School for the 2020-2021 school year, in the amount of $8,260, to be paid to Current School within fifteen (15) days of the DOE’s receipt of an affidavit from the Current School certifying Student’s attendance for the 2020-2021 school year and confirming the amount due, and it is further,

ORDERED, that the DOE shall fund the balance of the full cost of the Parent’s tuition obligation for Student’s placement at Current School for the 2021-2022 school year, in the amount of $99,400, to be paid to Current School within fifteen (15) days of the DOE’s receipt of an affidavit from the Current School certifying Student’s attendance for the 2021-2022 school year and confirming the amount due, and it is further,

ORDERED, that Student is entitled to appropriate transportation services and/or funding for Student to commute to and from the Current School, and it is further

ORDERED, the DOE shall provide and fund compensatory hours of related services as follows: 92 hours of Occupational Therapy, 92 hours of Speech Language Therapy, 24 hours of Parent Counseling and 3,220 hours of ABA Therapy and/or therapy utilizing the DIR/Floortime methodology, to be provided outside of school hours (and may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations), by a provider of the Parent’s own choosing at the providers’ customary and regular rates by issuing payment directly to the provider within 30 (thirty) days upon the submission of invoices for services rendered, and it is further

ORDERED that the bank of compensatory hours set out in this Order shall not expire until the expiration of 4 (four) years from the date of this Order, and it is further

ORDERED that the DOE shall fund the necessary transportation costs to and from the service provider providing the awarded compensatory services if these are provided outside of Student’s home.

SO ORDERED.

DATED: January 31, 2023

___RER____(Signed Electronically)___

Impartial Hearing Officer

R. Emily Rodriguez, Esq.

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.

DOE EXHIBITS

Exhibit

Document

Date

Number of Pages

1

Prior Written Notice

08/18/2021

8

2

IEP

06/23/2021

19

3

Notice of IEP Meeting

06/03/2021

3

4

Social History Update

05/07/2021

3

5

Related Service Adaptations for Blended and Learning

10/08/2020

3

6

Related Service Adaptations for Blended and Learning

09/29/2020

3

7

Consent for Tele-Therapy Declined

09/29/2020

1

8

Special Education Program Adaptations Document (PAD)

09/16/2020

4

9

Prior Written Notice

05/04/2020

9

10

Special Education Remote Learning Plan

04/03/2020

2

11

Prior Written Notice

03/30/2020

7

12

Special Education Remote Learning Plan

03/18/2020

2

13

IEP

03/12/2020

24

14

Notice of IEP Meeting

03/02/2020

5

15

Social History Update

02/07/2020

2

16

Classroom Observation

02/04/2020

2

17

IEP

01/13/2020

17

18

Preschool Occupational Therapy Clinical Guide

01/10/2020

3

19

IEP

06/12/2019

18

20

2019-2020 Attendance Sheet

No date

1

21

Pre-K Occupational Therapy Report

No Date

2

22

IEP

06/26/2018

19

23

IEP

02/07/2018

20

PARENT EXHIBITS

Exhibit

Date

Document Description

Pages

A 04/21/2022 Due Process Complaint 23

B 10/15/2020 All Requests for Records and Delivery Receipts to Date 7

C 04/06/2021 Ten Day Notice 1

D 06/24/2021 Ten Day Notice 2

E 07/15/2021 Email from NYCDOE to Parent Attorney re: Determination Letter 1

F 11/01/2017 Consent for Initial Evaluation - Executed 1

G 11/08/2017 Naturalistic Observation by Clinical Psychologist 1

H 11/08/2017 Bilingual Social History by Clinical Psychologist. 2

I 11/08/2017 Bilingual Confidential Psychological Report by Clinical Psychologist 8

J 07/02/2018 Child Outcomes Summary Form 8

K 2019-2020 Developmental Therapy Report by Special Educator 2

L 2019-2020 Home Rating Form 4

M 2020 Assessment Planning 1

N 2020 Speech-Language Therapy Mandate 2

O 01/10/2020 Preschool Occupational Therapy Clinical Guide 3

P 02/04/2020 Classroom Observation by School Social Worker 2

Q 03/12/2020 Child Outcome Summary Form 1

R 10/05/2020 Speech-Language Referral 1

S 06/26/2018 Final Notice of Recommendation - Executed 1

T

06/26/2018

IEP 17 U 09/01/2018 DOE Approval and Authorization to Receive Special Education Programs/Services - Executed 1

V

06/12/2019

IEP

16

W

01/13/2020

IEP

11

X

03/02/2020

Meeting Notice Committee on Special Education

5

Y

03/12/2020

IEP

17

Z

03/18/2020

Special Education Remote Learning Plan

2

AA

03/27/2020

Prior Written Notice (Notice of Recommendation)

7

BB

04/03/2020

Special Education Remote Learning Plan

2

CC

05/04/2020

Prior Written Notice (Notice of Recommendation)

9

DD

07/23/2022

Program Review Report by Speech Language Pathologist

4

EE

09/16/2020

Special Education Program Adaptations Document for Blended and Remote Learning

4

FF

06/23/2021

IEP

13

GG

Undated

Occupational Therapy Progress Report

2

HH

2021

Fall 2021 Semester Report

5

II

03/13/2020

2019-2020 Student Attendance Record

1

JJ

2020-2021

Current School 2020-2021 Tuition Enrollment Contract

4

KK

2020-2021

Current School 2020-2021 Tuition Enrollment Contract and Addendum - Executed

6

LL

2020-2021

2020-2021 School Schedule

1

MM

06/30/2020

2020-2021 Student Attendance

1

NN

2021-2022

Current School 2021-2022 Tuition Enrollment Contract - Executed

4

OO

2021-2022

2021-2022 School Schedule

1

PP

11/19/2021

2021-2022 Student Attendance

1

QQ

10/18/2021

Current School Tuition Affidavit for the 2020-2021 School Year

1

RR

11/16/2021

Current School Tuition Affidavit for the 2021-2022 School Year

1

SS

06/2021

Current School Student Learning Plan

8

TT

01/2022

Current School Student Learning Plan

9

UU

06/2022

Current School Student Learning Plan

16

VV

2021-2022

Current School School Overview

2

WW

2021

Fall 2021 Semester Report

5

XX

2022

Spring 2022 Report

5

YY

7/25/2022

Occupational Therapy Assessment Summary by Occupational Therapist

2

IHO EXHIBITS

Exhibit

Title

Date

Number of Pages

I.

Order of Extension

05/13/2022

1

II.

Order of Extension II

07/28/2022

1

III.

Order of Extension III

09/22/2022

1

IV.

Order of Extension IV

10/21/2022

1

V.

DOE Closing Brief

10/18/2022

10

VI.

Parent’s Closing Brief

10/18/2022

14

VII.

Order of Extension V

12/01/2022

1

VIII.

Order of Extension VI

1/11/2023

1

Footnotes

[1] No personal identifying information is contained within the body of this FOFD. For personal identifying information, please refer to the attached appendix. Further, this FOFD contains no references to the gender binary. The pronoun “they” is used as needed.

[2] The Hearing Officer Exhibits will be cited to as “IHO - followed by a roman numeral”; Parent’s Exhibits will be cited to as “P - followed by a letter”; and DOE Exhibits will be cited to as “D - followed by a number”. References to the hearing transcript will be cited to as “T - followed by a page number”.

[3] DOE argued in their closing statement that Parent is not entitled to compensatory services if I find that Student is entitled to tuition reimbursement. (IHO – V). This argument was not persuasive.

[4] Based on 46-week school year. Total weekly minutes of related services 60 minutes (1 hour) x 46 weeks = 46 hours of related services per school year.

[5] Based on 46-week school year. Total monthly minutes of related services 60 minutes (1 hour) x 12 months = 12 hours of related services per school year.

[6] Based on 46-week school year. Total weekly minutes of related services 60 minutes (1 hour) x 46 weeks = 46 hours of related services per school year.

[7] Based on 46-week school year. Total monthly minutes of related services 60 minutes (1 hour) x 12 months = 12 hours of related services per school year.

[8] OT, SLT and Parent Counseling

[9] hours per week of one-to-one ABA instruction during a 46-week school year. (35 x 46 = 1610 hours). (IHO – VI).