New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 238362

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Date(s) of Hearing: March 6 & 14, 2023

Actual Record Closed Date: July 24, 2023

Hearing Officer: Robert Rodriguez, Esq., Ph.D.

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 6, 2021

For the Student:

REDACTED, Esq., Attorney

REDACTED, Parent Student

REDACTED, Interpreter

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 16, 2023

For the Student:

REDACTED, Esq., Attorney

REDACTED, Esq., Attorney

REDACTED, Parent Student

For the Department of Education:

REDACTED, Esq., District Representative

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (“IHO”) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”), Section 504 of the Rehabilitation Act and the New York State Education Laws for failure to provide the Student with a Free and Appropriate Public Education (FAPE) for at least the 2019-2020, 2020-2021 and 2021–2022 school years (Ex. A). The school district will be referred to as District, the parent as Parent, and the Student will be referred to as the student. I was appointed as Impartial Hearing Officer on November 23, 2022.

The Parent brought this complaint alleging that the New York City Department of Education (DOE): (1) failed to provide the Student with a substantive and appropriate Individualized Education Program (IEP) for at least the 2019-2020, 2020-2021 and 2021–2022 school years, (2) failed to provide a substantively appropriate placement for the Student for at least the 2019-2020, 2020-2021 and 2021–2022 school years, and (3) violated the Child Find requirements of the IDEA (Id). The Parent’s due process complaint contends that the DOE has committed several FAPE violations against the Student including: (1) Failing to properly and timely identify the Student's needs as required by Child Find, (2) failing to develop meaningful and appropriate IEPs throughout the Student's academic career, (3) failing to provide appropriate transition planning and supports, and (4) denying the Parent meaningful participation in influencing the Student’s education (Ex. A).

Due to the DOE’s failure to provide the Student with a proper and appropriate public education, the Parent seeks the following relief from the DOE: 1. to pay the tuition at REDACTED for part of the 2021–2022 and 2022-2023 school years. 2. Provide transportation to and from REDACTED . 3. Reimburse the Parent for breakfast and lunch for the portion of the 2021 to 2022 school year that the Student attended REDACTED and for the 2022 to 2023 school year. 4. Fund independent Level II and Level III vocational assessments. 5. Fund any training or education determined by the vocational assessments to be necessary. 6. Fund an observation and assessment conducted by a BCBA/LBA provider from REDACTED Healthcare or another appropriate provider group, producing the FBA at the market rate for such evaluations which shall not exceed $3375.00. 7. Fund an observation and assessment conducted by a BCBA/LBA provider from REDACTED Healthcare or another appropriate provider/group producing the BIP at the market rate for such evaluations which shall not exceed $1125.00. 8. Fund an assessment conducted by a BCBA/LBA provider from REDACTED Healthcare or another provider/group, producing the ABA Skill Assessment at the market rate for such evaluations which shall not exceed $3375.00.

9. Fund any ABA/SETSS hours determined by a BCBA/LBA provider to be necessary at a rate of $225.00 per hour. 10. Fund 2000 hours of compensatory intensive 1:1 individualized OrtonGillingham instruction for reading/writing remediation at a rate of $150.00 per hour. 11. Fund 2000 hours of compensatory 1:1 multisensory math instruction/remediation at a rate of $150.00 per hour. 12. Fund 360 hours of compensatory 1:1 speech-language therapy at market rate. 13. Transportation to and from any program or services recommended in the vocational evaluations, any ABA/SETSS recommended in any evaluation by a BCBA/LBA provider, any compensatory tutoring services awarded, and any speech-language therapy awarded (Ex. A).

The District made a motion to bar any testimony and evidence relating to all years prior to 2020-2021 because of the Statute of Limitations (SOL) (Tr. p. 23, 38-39). The Parent countered that the Statute of Limitations does not apply since there is a Child Find issue that prevents the SOL from starting until the Parent is made aware of the Student’s actual disabilities, which did not occur until a 2021 REDACTED evaluation was conducted (Tr. P. 39). The Parent further countered that the District’s position that pre 2020 to 2021 disclosures should be barred is disingenuous since the District submitted pre 2020 to 2021 documents as evidence as well (Tr. P. 39). These arguments and objections will be addressed in the superseding section of this decision.

FINDINGS OF FACT

The Student is REDACTED year-old with an intellectual disability, autism, and an anxiety and depression disorder (Tr. p. 8). The CSE identified the Student as having a disability since the age of three (Tr. p. 8-9). The testimony and evidence presented reveals that as far back as 2007, the DOE had a bilingual assessment conducted that revealed the Student to have global delays in many areas of development. At the time, the Student needed to be placed in a bilingual program, but because of unavailability, the DOE did not provide the Student with an appropriate special education preschool program. In February 2009, the Student was evaluated again which revealed her to have global delays and to have a low IQ in the low range of 62 (Ex. E-). As a result, the DOE incorrectly classified the Student as having a speech or language impairment (Ex. H-1).

While in elementary school, the Student remained in a 12:1:1 classroom in a community school while receiving speech and occupational therapy until the 4th grade. The CSE then placed the Student in a general education setting and removed the 12:1:1 designation from her IEP (Ex. Z-4, A-3). The Student’s 4th grade teacher requested that a new evaluation be conducted to return her to a special education setting and to indicate it on her IEP (DOE Ex. 1-1). The Student remained in the general education setting until the following school year despite protestations by the Parent at IEP meetings that her daughter was struggling academically. Once in middle school at I.S. 077, the DOE again classified the Student as speech impaired and relegated her to the same 12:1:1 placement she experienced from kindergarten to 4th grade (Ex. A-9).

In September 2018, the Student attended REDACTED High School (Queens) in a 15:1 class with speech services (Ex. H-1). While attending this high school for two years, the Student failed three Regents exams and continued to struggle academically Ex. I-13). Despite the Student struggling academically in school, the IEP team did not change her placement classification. The Parent, concerned with the Student’s dire academic performance in high school, requested in February 2021 that the DOE hire REDACTED Centers, Inc. to conduct a neuropsychological evaluation. The evaluation similarly revealed the Student suffered from global delays in verbal, nonverbal, and working memory and had a low full-scale IQ of 59 (Ex. A-4, F-11). The evaluator concluded that the Student’s cognitive, language and academic deficiencies needed to be addressed to stem her educational decline. Most significantly, the evaluation revealed for the first time that the Student had an intellectual disability combined with a diagnosis of a specific learning disability with an impairment in mathematics and an unspecified anxiety disorder (Ex. F). The evaluator also concluded that the Student, with the correct academic placement, parental support, and academic support mechanisms could achieve positive personal and academic goals (Id).

Despite the recommendation of the REDACTED evaluator to place the Student in a structured multisensory education program with a limited Student-to-teacher ratio with appropriate remediation, the DOE returned the Student to the 15:1 classroom at REDACTED in her senior year (Ex. J-12). The DOE did, however, make some small changes to the Student's classification from speech or language impaired to learning disability and added two SETSS services to assist her in math. As the Student approached graduation during the COVID pandemic, the IEP team inexplicably waived the Regent tests as a requirement for the Student to graduate. Without the Parent’s knowledge or consent to the waivers, the Student’s guidance counselor informed her that she could graduate without passing the Regents exams (Tr. P. 95).

The Parent, in response to the DOE’s attempt to rectify the Student’s academic progress, obtained a private neuropsychological evaluation of the Student by REDACTED (A-4-5). This evaluation for the first time diagnosed the Student with an autism spectrum disorder that was mild to moderate (Ex. G-15). The evaluator identified that the Student suffered from various vulnerabilities across language, executive functioning, learning, adaptive and social-emotional domains. Together these weaknesses pose a substantial negative impact on the Student’s day-to-day functioning and academic success. The evaluator concluded that the Student needed to be placed in an appropriate educational environment with individualized programming and services to address her multiplicity of needs (Ex. G-15).

Prior to an IEP meeting scheduled on December 13, 2021, the Parent provided the IEP team with a copy of the REDACTED evaluation (Ex. Z-11). The IEP meeting was postponed, and a new IEP meeting was never scheduled to address the REDACTED findings (Ex. Z-13). The Parent, discouraged with the DOE’s non-response to the Student’s post-graduation plans and the REDACTED evaluation, unilaterally placed the Student at the REDACTED School after notifying the DOE of her intent to do so on June 1, 2022, for the remainder of the 2021 to 2022 school year and on August 23, 2022, re-enrolling the Student at REDACTED for the 2022 to 2023 school year after no response from the DOE about an appropriate alternative placement (Ex. Z-14-15).

LEGAL ANALYSIS

TUITION REIMBURSEMENT

In the instant case, the Parent seeks tuition funding at the REDACTED for a portion of the 2021-2022 academic school year and the 2022-2023 academic year. The IDEA empowers a hearing officer to grant relief that is appropriate, including awarding tuition reimbursement/funding relief to the Parent A local Educational Agency (LEA) may be required to reimburse parents for their tuition payment to a private school by meeting a three prong test that shows that the services offered by a local school district (1) were inadequate or inappropriate, (2) the services selected by the parents were appropriate under the Act, and (3) whether equitable considerations support the parents’ claim for reimbursement. (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dept. of Educ.471 U.S. 359 (1985).

ISSUE ONE: WHETHER THE DOE OFFERED THE STUDENT A FAPE FOR THE 2019-

2020, 2020-2021 AND 2021-2022 SCHOOL YEARS.

The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education ("FAPE"). 20 U.S.C. § 612(a)(I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a)(l)(A). The IDEA defines a FAPE as special education and related services that:

A. have been provided at public expense, under public supervision and direction, and without charge,

B. meet the standards of the state educational agency,

C. include an appropriate preschool, elementary, or secondary school education in the state involved, and provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).1.

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See 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. An IEP is “a written statement that ‘sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.’” D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507–08 (2nd Cir. 2006). Under the IDEA, for a child’s IEP to be adequate, it must be likely to produce progress, not regression, and must afford the Student with an opportunity greater than mere trivial advancement. T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2nd Cir.2009).

A FAPE is crafted through the collaboration of the disabled Student's parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The "core of the statute ... is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education ("CSE"), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law§ 4402(1)(b)(l) (McKinney Supp. 2005). However, in Endrew F., the United States Supreme Court interpreted the scope of the “free appropriate public education” requirements under IDEA and heightened the responsibility of school districts from merely providing de minimis educational benefit: A focus on the child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “[i]ndividualized education program. §§1401(29), (14); Endrew F. v. Educ. Law § 4404(1)(c); M.O. v. N.Y.C. Dept of Educ., 793 F.3d 236, 243 (2d Cir. 2015); R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167, 184-85 Douglas County School District, 137 S. Ct. 988, 69 IDELR 174 (U.S. Marc. 22, 2017). In these cases, the Department of Education shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing. However, in a tuition reimbursement case regarding unilateral placement, the parent has the burden of proof to show the appropriateness of said placement (Educ. Law § 4404 {1} [C]; M.P.G. v. New York City Dept.. of Educ., 2010 WL 3398256, at 7 (SDNY. Aug. 27, 2010).

When determining whether the first prong of the Burlington analysis has been met, the DOE bears the burden of proving that it has offered the Student a FAPE. N.Y. Educ. Law § 4404(1)(c). To prevail on the first prong of the Burlington analysis, the DOE must show that it developed an IEP that: (1) complies with the procedural requirements set forth in the IDEA and (2) is reasonably calculated to enable the Student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). While Rowley did not establish a particular substantive standard for the term “educational benefits,” a later case makes it clear that the program must be likely to produce more than “mere trivial advancement,” and must provide a “meaningful” educational benefit to the Student. D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598 (2d Cir. 2005).

At an impartial hearing, the DOE bears the burden of showing that its program is appropriate. N.Y. Educ. Law § 4404(1)(c); M.O. v. N.Y.C. Dep’t of Educ., 793 F.3d 236, 243 (2d Cir. 2015); R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); Gabel ex rel. L.G. v. Bd. of Educ. Hyde Park Cent. Sch. Dist., 368 F.Supp.2d 313, 324 (S.D.N.Y. 2005). To meet this burden, the DOE must show that it followed the procedural safeguards in IDEA and applicable state education law, and that the IEPs developed through these procedures are “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see, also, Rowley, 458 U.S. at 206-207. The “educational program must be appropriately ambitious in light of [the child’s] circumstances,” and the progress made must be more than “trivial advancement.” Endrew F., 137 S. Ct. at 1000; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005). Moreover, the DOE must establish that it provided the Student with a FAPE by proving that it (i) developed an appropriate IEP for the Student and (ii) offered the Student a placement in a school that was able to implement the IEP. See, N.Y. Educ. Law § 4404(1)(c); M.O. 793 F.3d at 244-5; C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014); B.R. ex rel. K.O. v. N.Y.C. Dep’t of Educ., 910 F.Supp.2d 670, 678-79 (S.D.N.Y. 2012). The DOE cannot satisfy its burden without submitting evidence regarding the appropriateness of the IEP or the ability of the school to implement the IEP. See, e.g., W.W. ex rel. M.C. v. N.Y.C. Dep’t of Educ., 160 F.Supp.3d 618, 627-8 (S.D.N.Y. 2016).

In the present matter, the DOE conceded that it had not provided the Student with a FAPE. Tr. At 7:5. The DOE failed to present any testimony or documentation demonstrating that it provided the Student with an IEP or a public-school placement that could appropriately educate her considering the learning disabilities she had. Id. The DOE acknowledged its failure to provide the Student a FAPE, consequently failing to prove its burden that it provided the Student with a FAPE for at least the 2019-2020, 2020-2021 and 2021-2022 school years. See N.Y. Educ. Law § 4404(1)(c).

a. The DOE deprived the Student of a FAPE by failing to meet its Child Find Obligations under IDEA.

“The IDEA places two significant responsibilities on school districts with respect to children with disabilities: the child-find obligation and the duty to provide a . . . FAPE.” J.M. v. Summit City Bd. Of Educ., 39 F.4th 126, 137 (3rd Cir. 2022). The Child Find duty requires the DOE to identify, locate, and evaluate “all children with disabilities…who are in need of special education and related services.” 20 U.S.C. § 1412(a)(3)(A); see, Mr. P. v. West Hartford Bd. of Educ., 885 F.3d. 735, 749 (2d Cir. 2018). This Child Find obligation applies to “[c]hildren who are suspected of being a child with a disability. . . and in need of special education, even though they are advancing from grade to grade.” 34 C.F.R. § 300.111(c)(1); see, also, Bd. of Educ. of Fayette Cty. v. L.M., 478 F.3d 307, 313 (6th Cir. 2007). “Courts have held that a state’s child find duty is ‘triggered’ when it ‘has a reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability.’” J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 660 (S.D.N.Y. 2011) (quoting New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F.Supp.2d 294, 300, fn.13 (N.D.N.Y. 2004)).

The law is clear that the Child Find requirement is an affirmative obligation for school districts, and “a parent is not required to request that a school district identify and evaluate a child.” Regional Sch. Dist. No. 9 Bd. of Educ. v. Mr. & Mrs. M., No. 07-CV-1484, 2009 WL 2514064, at *13 n.9 (D. Conn. Aug. 7, 2009). “[A] child’s entitlement to special education should not depend upon the vigilance of the parents (who may not be sufficiently sophisticated to comprehend the problem) . . .Rather, it is the responsibility of the child’s teachers, therapists, and administrators . . . to ascertain the child’s educational needs, respond to deficiencies, and place him or her accordingly.” M.C. on behalf of J.C. v. Cent. Regional Sch. Dist., 81 F.3d 389, 397 (3rd Cir., 1996); see also, Jana K. ex rel. Tim K., 39 F.Supp.3d at 602. The school district must assess the child “in all areas of suspected disability.” 20 U.S.C. § 1414(b)(3)(B) (emphasis added); see also, Timothy O. v. Paso Robles Unified Sch. Dist., 822 F.3d 1105, 1111 (9th Cir., 2016). A violation of Child Find can, on its own, constitute a gross procedural violation of the IDEA which deprives a child of a FAPE. See, Mr. and Mrs. M., 2009 WL 2514064, at *13.

In this case, the DOE had reason to believe the Student had more disabilities than just a speech language impairment as far back as elementary school. In the Student’s Turning 5 evaluation in 2009, the Student exhibited global delays and borderline IQ scores (Ex. E). The Parent had raised concerns about the Student’s lack of progress on several occasions. (Ex. Z, ¶ 5). According to the DOE’s analysis, the Student had not been making academic progress for years (Exhs. H-8, I-19, J-17) (IEPs for 3 years showed delayed math and reading levels).

The IEP of March 20, 2019, notes that the Student’s performance on various standardized tests indicates that she may have a deficit in her basic computational math skills (Exh. H-1). Despite this warning sign, the DOE did not evaluate the Student to determine whether her academic program needed to be expanded beyond Speech Language Impaired. A subsequent IEP meeting on May 14, 2020, showed that the Student was not meeting the minimum competency standards to graduate, as evidenced by her failing three Regents tests (Exh. I-1). Despite the Student’s dismal grades on her Regents exams, the IEP team did not make any changes in the student’s placement or services (Exh. I-13). In 2021, the Parent requested a new evaluation due to the Student’s lack of academic progress. This DOE inspired evaluation revealed the Student as having an Intellectual Development Disorder (Exh. G-15). However, the IEP team chose to reclassify the “student” as “Learning Disabled” rather than conduct further tests to determine if the Student suffered from other serious disabilities (Exh. I-1). IEPs and special education services must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F., 137 S. Ct. at 100. “[W]hen the state overlooks clear signs of a disability or negligently fails to order testing, it violates its [Child Find] duty under the Act.” J.N. next friend of M.N. v. Jefferson Cty Bd. of Educ., 12 F.4th 1355, 1363 (11th Cir. 2021). Unfortunately, in this case, the DOE did not adequately evaluate the Student in all areas of possible disabilities despite the warning signs.

b. The DOE deprived the Student of a FAPE by failing to Evaluate her in All Areas of Suspected Disability.

Under the IDEA, school districts must ensure that children are evaluated in all areas of suspected disability. 20 U.S.C. § 1414(b)(3)(B); 8 N.Y.C.R.R. § 200.4(b)(6)(vii). Had the DOE assessed the Student in all areas of suspected disability,” as required by the IDEA, 20 U.S.C. § 1414(b)(3)(B), it could have detected that the Student was afflicted with an autism spectrum disorder. As early as 2009, testing showed that the Student’s social and adaptive functioning was problematic (Exh. E-6). During the 2009 evaluation, the Student scored in the second percentile on the Vineland test which showed that she experienced serious social pragmatic issues. Yet, instead of further testing, the DOE misclassified the Student as having a speech language impairment, which deprived her of the special education services she needed (Exh. A-2-3).

During the March 20, 2019 IEP meeting, the Parents expressed their concerns that the Student was not socially active (Exh. H-2). The May 14, 2020 IEP indicated that the Student’s teachers acknowledged her lack of socialization by declaring: “In one IEP cycle, the Student "will demonstrate the ability to recognize expected and unexpected behaviors as well as rate her own behavior as part of “her” self-monitoring system.” (Exh. I-9); see, also, Sch. Bd. of the City of Norfolk v. Brown, 769 F.Supp.2d 928, 942 (E.D. Va. 2010) (stating that a school district is deemed to have knowledge that the child may suffer from a disability where . . . (3) the teacher of the child, or other personnel of the [school district] has expressed specific concerns about a pattern of behavior demonstrated by the child. . .” (internal citations and quotations omitted). Supportingly, the REDACTED Centers evaluation, also indicated that the Student was experiencing significant problems with peers (Exh. G-6). The evaluator noted that the Parent and teacher also saw that the Student was having “significant difficulties in social situations and contact with peers” (Id). The students participate in leisure activities, maintain age-expected social contacts, and function independently in the community (Id. at 7). The DOE had reason to suspect that special education services may be needed to address the Student’s sociability issues. J.S., 826 F. Supp.2d at 660. The mystery of the Student’s lack of sociability was revealed by the REDACTED evaluation, which accurately diagnosed her with an autism spectrum disorder. The DOE’s failure to diagnose the Student through independent testing violated the IDEA and denied the Student a FAPE at least for the 2019-2020, 2020-2021 and 2021 to 2022 school year(s).

c. The DOE Deprived the Student of a FAPE and Educational Benefit by Failing to provide her with a Viable Transition Plan.

One of the purposes of the IDEA is “[t]o ensure that all children with disabilities have available to them a free appropriate public education that . . . prepare[s] them for further education, employment, and independent living.” 34 C.F.R. § 300.1(a). In order to effectuate each child’s transition to adulthood, no later than the IEP to be in effect when the child is 16, the IEP must set “appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills [and] . . . the transition services (including courses of study) needed to assist the child in reaching those goals.” 20 U.S.C. § 1414(d)(1)(A)(i)(VIII). New York State requires IEP teams to begin this process “not later than the first IEP to be in effect when the Student is age 15” and include “needed activities to facilitate the Student’s movement from school to post-school activities, including instruction, . . .community experiences . . . the development of employment and other post-school adult living objectives and, when appropriate, acquisition of daily living skills and functional vocational evaluation.” 8 CRR-NY § 200.4(d)(2)(ix). “To determine whether a given program complies with the IDEA, . . . [w]e consider whether . . . [a]cademic and non-academic benefits are demonstrated.

The IEP team developing the Student’s IEPs did not provide her with meaningful transition activities. The Student personally testified that she was not prepared to graduate due to poor academic and social training (Tr. 94:13-95:16). The Student also testified that she had no postgraduation plans and no idea what she was going to do (Tr. 92:7-11). For instance, the IEP dated March 20, 2019, showed that the Student’s Present Levels of Performance was many grade levels behind in math and reading. The IEP did not recommend a functional vocational assessment (Exh. H-7). Likewise, the IEP dated May 14, 2020, listed the first transition activity as she “will be scheduled for classes and required testing that led to a Regents Diploma, despite her failing three Regents exams, making the acquisition of a Regents Diploma impossible...” (Exh. I-15).

In the IEP dated April 26, 2021, the first transition activity recites that she “will be scheduled for classes and required testing that lead to a Regents Diploma.” (Exh. J-14). The DOE again failed to provide appropriate transition planning for the Student. The Parent recommended that the DOE conduct a Level II or Level III vocational assessment to help the Student with her transition post-high school (Exh. Z, ¶ 22). The DOE did conduct a Level I vocational, provided to the Parent on December 6, 2021, but did not provide any definite transition plan, thereby depriving the Student of a FAPE.

d. The DOE did not provide the Parent with meaning participation in the Educational Planning Process by not providing written information in REDACTED, thus Depriving the Student of a FAPE.

New York law requires that “[a]t the CSE meeting in which transition services will be discussed, the Student’s parents shall be provided with written information explaining the graduation requirements ...including the eligibility criteria and processes for requesting a Student be considered for a local diploma . . . [and the parents shall also be informed that graduation from high school with a local diploma or Regents diploma shall terminate their child’s entitlement to a [FAPE]. . . and their eligibility for special education services.” 8 CRR-NY § 200.4(d)(2)(ix)(c). The Parent testified that she knew the Student had not passed the Regents tests but did not know what would happen after the Student graduated (Exh. Z, ¶ 6). She testified that the DOE waived the Regents tests, setting the Student up to graduate in June 2022, and, in effect, terminating her eligibility for services.

New York City Chancellor’s Regulation A-663 § IV.B “establishes procedures for ensuring that Limited English Speaking parents are provided with a meaningful opportunity to participate in…their child’s education” by requiring schools to provide parents whose primary language is a “covered language” with a translation of any document that contains individual, Student-specific information, including the Student’s entitlement to education or placement in a Special Education program. REDACTED is considered a “covered language” within the DOE. New York State also requires that the results of evaluations be provided to parents in their “native language or mode of communication.” 8 CCR-NY §200.4(b)(6)(xii).

In the instant case, the Parent testified that she rarely received any information in REDACTED about the Student. The parent never received translations of any of REDACTED’s IEPs, teacher reports or evaluations in REDACTED, as required by Chancellor’s Regulation A663 § IV.B and New York law 8 CCR-NY § 200.4(b)(6)(xii). The lack of translations of REDACTED’s IEPs, teacher reports and evaluations deprived the Parent of any documentation illustrating the Student’s level of functioning and special education needs. As such, the Parent could not intelligently comprehend the Student’s needs, preventing her from fully participating in the educational planning process. Consequently, the DOE’s failure to provide the Parent with all documents related to the Student’s education in REDACTED significantly impeded her ability to engage in the educational decision-making process. To summarize, the testimony and evidence presented shows that the District failed to provide the Student with an appropriate IEP, proper transition services, and an appropriate placement to meet the needs of the Student for at least the 2019-2020, 2020- 2021, and 2021–2022 school years.

ISSUE TWO: WHETHER THE PARENT’S UNILATERAL PLACEMENT OF THE

STUDENT IN THE REDACTED PREPARATORY SCHOOL WAS APPROPRIATE

AND/OR PROPER TO MEET THE NEEDS OF THE STUDENT FOR PART OF THE

2021-2022 ACADEMIC SCHOOL YEAR AND THE 2022-2023 ACADEMIC SCHOOL

YEAR.

After determining that the school district did not offer a FAPE to the Student for the prescribed school years, the next inquiry is whether the parent’s unilateral placement of the Student in the REDACTED Preparatory School was “appropriate” or “proper” (School Comm. of Burlington, 471 U.S. at 369 and 370, 1985). The burden of proof shifts to the parent to demonstrate that the private placement was appropriate, even if the IEP was inappropriate (Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3rd 105, 112 (2d. Cir. 2007). The unilateral placement, however, does not need to meet the State standards that apply to education provided by the State education agency and Local Education agency (C.F.R. §300.148(c); See Carter, 510 U.S. at 14). Parent’s need “only demonstrate that the placement provides educational instruction specifically designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction (C.B. Garden Grove Unified Sch. Dist., 635 F. 3rd 1155, 1159 (9th Cir. 2011).

The key issue in determining whether the parent’s unilateral placement was appropriate, it must be determined whether the placement “is reasonably calculated to enable the child to receive educational benefit” (Gagliardo, 489 F. 3rd at 112). Courts have consistently recognized that the parent’s placement does not need to be perfect; the placement does not need to “furnish every special service necessary to maximize their child’s potential,” see Frank G., 459 F.3d at 365, nor does the placement need to meet the IDEA’s definition of a FAPE. See M.H. v. N.Y.C. Dep’t of Educ., 712 F. Supp. 2d 125, 163 (S.D.N.Y. 2010); A.D. v. Bd. of Educ. of City Sch. Dist., 690 F.Supp.2d 193, 206 (S.D.N.Y. 2010). Indeed, the placement does not need to meet the “state education standard or requirements.” Frank G., 459 F.3d at 364. Nor does the placement need to provide special education teachers or an IEP for the Student, as parents should “not be subject to the same mainstreaming requirements as a school board.” Id. (citation omitted). The standard for the parent’s placement “is less restrictive and subject to fewer constraints than that applied to the school authorities.” C.B. ex rel. W.B. v. N.Y.C. Dep’t of Educ., No. 02 CV 4620(CLP), 2005 WL 1388964, at *16 (E.D.N.Y. June 10, 2005). Courts “consider the totality of the circumstances” in assessing whether the parent’s placement “reasonably serves a child’s individual needs.” Frank G., 459 F.3d at 365. Small class sizes are one factor courts consider in determining a private school’s appropriateness. See, id. at 365. The provision of related services is considered as well. See, A.D., 690 F.Supp.2d at 210.

The record overwhelmingly supports the Parent’s claim that REDACTED is an appropriate school placement for the Student. Ms. REDACTED, the Assistant Head of School of REDACTED, testified that due to the program’s small size, individual attention, and extensive testing and evaluating by the staff, an appropriate program and placement for each Student is possible (Exh. BB, ¶¶ 5-8). She also testified about REDACTED’s unique Focus program and its special one-on-one partnership between the Student and a teacher to target a Student’s special difficulties (Id. ¶¶ 12). This one-on-one relationship also fulfills one of the very specific recommendations in the REDACTED evaluation that, due to her considerable social-emotional difficulties with depression, anxiety and emotional dysregulation, The Student should have a point person at her school, someone who can help her in moments of social-emotional distress (Exh. G15-16). Ms. REDACTED testified how well the Student is doing at REDACTED, helping her attain the skills she needs to become an independent adult, as well as trying to remediate some of her academic shortcomings. The Student also personally testified about how she feels her instruction at REDACTED is more individualized than it was at REDACTED. At REDACTED , she can ask questions without fear of being belittled or labeled problematic (Tr. at 86:11-14). She also testified that at REDACTED she can now be seen and learn in a way that is effective for her (Tr. at 87:13-16). Lastly, the DOE did not contest or challenge the appropriateness of REDACTED as a proper placement for the Student. Considering the foregoing, I find that the Parent’s unilateral placement of the Student at REDACTED Preparatory School was appropriate and proper for part of the 2021 to 2022 school year and the 2022 to 2023 school year.

ISSUE THREE: WHETHER EQUITABLE FACTORS SUPPORT THE PARENTS

DECISION TO UNILATERALLY ENROLL THE STUDENT AT THE REDACTED

PREPARATORY SCHOOL FOR THE 2021 TO 2022 AND 2022 TO 2023 SCHOOL

YEAR.

The third test before deciding whether a parent is entitled to tuition reimbursement/funding requires the hearing officer to examine the actions of the parents and school district, including: 1) Whether the parents failed to provide the school district with timely notice before removing their child from the public school. The Notice should state why the parent’s reject the proposed public-school placement, including their concerns and intent to enroll their child in a private school at public expense (See: J.T. v. Dep’t. of Education, State of Hawaii, 72 IDELR 95 (D. Haw. 2018). The notice can be given at the most recent IEP meeting or at least 10 days prior to removal.

2) Whether prior to the Student’s removal, the school district informed the parent of its intent to evaluate the Student, but the parents did not make the Student available for evaluation (20 U.S.C. §1412(a)(10)(C)(iv); 34 C.F.R. §300.148E(1).

3) Whether the parents’ actions were unreasonable (20 U.S.C. §1412(a)(10)(C)(iii) (III); C.F.R. §300.148(d)(3).

The Parent through witness testimony and documentary evidence revealed that she was both cooperative in working with the District and reasonable in her actions to ensure that the Student was not only getting the appropriate individual academic instruction, but that she was appropriately placed in a proper school setting. The Parents’ claims for tuition reimbursement must be supported by equitable considerations, which are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374, R.E., 694 F. 3rd at 1185; M.C. v. Volountown Bd. Of Educ., 226 F. 3rd 60, 68 [2d Cir. 2000]. For instance, a parent’s lack of cooperation may constitute an equitable bar to tuition reimbursement where it is found that the parents failed to cooperate in the public-school placement process (Bettinger v. Dept. of Educ., 49 IDELR 39 (S.D.N.Y. 2007).

The documentary evidence and testimony presented shows that the Parents cooperated in advocating their child’s rights to a FAPE. Absent a showing of bad faith, a parent’s adversarial or uncooperative stance in advocating for their child’s right to a FAPE does not justify a complete denial of reimbursement (Justin G. ex. Rel. Gene R. v. Bd. of Educ. Of Montgomery Cty., 148 F. Supp. 2d 576, 586 (D. Md. 2001). Moreover, in the absence of evidence showing that the parents failed to cooperate in the IEP process or engaged in conduct that prevented the development of appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim for tuition reimbursement.

In the instant case, the evidence clearly shows that the parents acted in good faith, were cooperative with the District, acted reasonably to help their child, and did not hinder the IEP process in any way. When determining whether a parent has cooperated with the DOE, factors to consider include whether the parent attended and participated in IEP meetings, whether the parent made her child available for testing, whether the parent provided any additional information about the child’s needs or consented to the release of such information from other sources, and whether the parent discussed the child’s progress with the school or district personnel prior to the development of the IEP. Mr. and Mrs. A. v. N.Y.C. Dep’t of Educ., 769 F.Supp.2d 402, 419 (S.D.N.Y. 2011).

The Testimony of the Parent and the Student as well as documentation presented shows that the Parent persisted in trying to obtain the help the Student needed to obtain a benefit from her public education. It appears that the Parent has cooperated fully in her dealings with the DOE. She has been wholly cooperative with the DOE by sharing information about the Student’s needs and discussing her concerns during IEP meetings (See Exhs H, I, J, Z). In addition to obtaining her own neuropsychological evaluation, Exh. G, the Parent promptly shared this report with the DOE. The Parent also sent the DOE a timely Ten-Day Notice on May 16, 2022, as required by the IDEA. Exh. B. See 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(bb). The Ten-Day Notice, provided on June 1, 2022, notified the DOE of the Parent’s intent to unilaterally place the Student at REDACTED for part of the 2021-2022 school year if the DOE failed to hold an IEP meeting and offer the Student an appropriate placement (Exh. Z, ¶ 15, Exh. B). As a result of the DOE not acting to properly place the Student, she began attending REDACTED on June 1, 2022, (Exh. Z, ¶ 16; Tr. at 87:22). When the DOE did not schedule an IEP meeting for the or place the Student in an appropriate program, the Parent once again notified the DOE on August 23, 2022, of her intent to unilaterally place the Student at REDACTED for the 2022-2023 school year (Exh. C).

The Parent fully cooperated with the DOE throughout the special education process and gave the DOE ample time to consider and implement strategies and programs that could help the Student achieve meaningful academic progress. Parents are entitled to direct payment when they can show that they are financially unable to front the costs of private programming. Id. at 428. Here, the Parent has demonstrated that she is entitled to direct payment as she cannot afford the tuition for REDACTED (Exh. Z, ¶ 20).

In conclusion, the documentary evidence and witness testimony shows that: (1) the DOE denied the Student a FAPE for the 2019 to 2020, 2020 to 2021 and 2021 to 2022 school year (s), the DOE failed to show that the proposed placement of the Student at the REDACTED Preparatory School was inappropriate and unable to implement the Student’s IEP satisfactorily, (3) the Parent has met Prong 2 and 3 by showing that the placement of the Student in the REDACTED Preparatory School was appropriate and suitable for the Student under the IDEA, and equitable considerations supported their claim for tuition funding/reimbursement.

ISSUE IV: WHETHER THE PARENTS CLAIMS FOR COMPENSATOIRY

EDUCATION PRIOR TO 2019 ARE TIMELY.

The IDEA’s statute of limitations is an affirmative defense and the burden of proving that any of the Parent’s claims are barred falls squarely on the DOE. See K.H. v. N.Y.C. Dep’t of Educ., No. 12-CV-1680, 2014 WL 3866430, at *15 (E.D.N.Y. Aug. 6, 2014). Accordingly, the DOE has the obligation of proving that any of the claims brought here for any of the DOE’s violations are untimely. See, e.g., Y.D. v. N.Y.C. Dep’t of Educ., No. 14-CV-1137, 2016 WL 698139, at *7-8 (S.D.N.Y. Feb. 19, 2016) (holding that it is the DOE’s burden to prove that the claims are untimely when asserting the statute of limitations as an affirmative defense); M.G. v. N.Y.C. Dep’t of Educ., 15 F.Supp.3d 296, 306 (S.D.N.Y. 2014) (explaining that the statute of limitations is an affirmative defense and the burden of raising it falls on the City).

Under the IDEA and New York law, a parent must “request an impartial due process hearing within 2 years of the date the parent . . . knew or should have known about the alleged action that forms the basis of the complaint.” 20 U.S.C. § 1415(f)(3)(C); see N.Y. Educ. Law § 4404(1)(a). See also, K.H., 2014 WL 3866430, at *16; Samoza v. N.Y.C. Dep’t of Educ., 538 F.3d 106, 114 (2d Cir. 2008); C.B. v. Pittsford Cent. Sch. Dist., 2010 WL 1533392, *18 (W.D.N.Y.

2019) (citing M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir. 2003). These claims do not accrue until a family knows or has reason to know that the child may have made more progress with different support. K.H., 2014 WL 3866430 at *19.

The DOE asserts that Parent’s claims related to the 2019-2020 school year and before should be dismissed with prejudice on the basis that they are time barred under the Individuals with Disabilities Education Act (IDEA), which contains a two-year SOL. M.D. v. Southington Board of Education, 334 F.3d 217 (2d Cir 2003). In deciding SOL issues and determining whether plaintiffs “knew or should have known” of the facts that form the basis of their complaint, courts consider whether plaintiffs have acted with due diligence and fulfilled their obligations to inquire into the possible existence of a claim. Ryan v. U.S., 534 F.3d 828, 831 (8th Cir. 2008). The IDEA provides an opportunity for any party to present a complaint related to the identification, evaluation, or educational placement of a child, or the provision of FAPE, that occurred not more than two years before the date the parent or public agency “knew or should have known about the alleged action that forms the basis of the complaint.” Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 106, 114 (2nd Cir. 2008), quoting 20 U.S.C. §1415(b)(6)(B). New York State has affirmatively adopted the two-year period found in the IDEA and the State Review Office (SRO) applies the same standard. Educ. Law § 4404(1)(a); 8 NYCRR § 200.5(j)(1)(i); See Application of a Child with a Disability, Appeal No. 06-086, Each IDEA claim is a “fact-specific inquiry” to determine when the parent knew or should have known about the claim. (K,H, v. New York City Dept’s of Educ., 2014 WL 3866430 at *16 (EDNY Aug, 6, 2014). 2015).

For claims arising under the IDEA, a parent must file a due process complaint within two years of the claim’s accrual date, which commences when the parent knew or should have known about the alleged denial of FAPE. K.C. v. Chappaqua Cent. School Dist., 16-cv-3138 (KMK). 2018 WL 4757965, at *14 (S.D.N.Y. 2018). See Somoza v. New York City Dept. of Educ., 538 F.3d 106 14 114 (2d Cir. 2008); F.L. v Bd. of Educ. of Great Neck U.F.S.D., 274 F, Supp.3d 94,

113 (E.D.N.Y. 2017); Avaras v. Clarkstown Cent. School Dist., 15-cv-2042 (NSR). 2017 WL 3037402, at *13 (S.D.N.Y. 2017); K.H. v. New York City Dept. of Educ., 12-cv-1680 (ARR) (MDG). 2014 WL 3866430, at *3 (E.D.N.Y. 2014). “Case law indicates that a statute of limitations defense is timely interposed so long as it is raised at some point during the impartial hearing.” Application of a Child with a Disability, Appeal No. 19-069 at page 8, quoting M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 (S.D.N.Y. 2014). Thus, a motion to dismiss based on the statute of limitations is timely up to and, indeed, even during the impartial hearing. The statute of limitation accrues when the parent knew or should have known about the alleged denial of FAPE.

For the 2019-2020 school year, the DPC alleges that the District failed to hold an adequate IEP meeting to evaluate the Student. The District contends that the Parent knew or should have known that the IEP was substantively deficient at the time of the meeting on 3/27/2019. However, I find that the Parent knew or should have known that the Student was not making adequate academic progress for the 2019-2020 school year, but not to go as far as assuming the Parent knew or should have known that the IEP for this year was deficient. The IEP is a complex document that given the educational level of the Parents and their inability to comprehend English, it is probable that the Parents were aware of the Student’s poor academic performance but were unable to link the importance and/or relevance of the IEP evaluations and its recommendations to the Student’s progress in school. As a result, I find that the Parent’s claims for redress from 2019 to 2020 are not time-barred and the appropriate remedy shall be reflected in this Order.

As to the allegations of insufficiency prior to 2019, Parent’s counsel alleges that the district did not sufficiently evaluate the Student in any of the previous school years. The Parent testified that she was aware that that her daughter was falling behind in her education when she was a young child (Tr. P. 70). Despite this knowledge, the Parent did not file this claim until the Student was about to graduate from high school. The Parent knew or should have known of at least some of the deficiencies afflicting the Student prior to the 2019-2020 school year. In addition, evidence shows that the Parent received guidelines in REDACTED on how to file a due process complaint (DOE Ex. 2, 5). As such, I am allowing the Parent’s claims for compensatory education starting from the 2019 school year until the 2022 to 2023 school year but barring any claims for compensatory education prior to 2019.

Compensatory education was “designed to compensate a Student who was actually educated under an inadequate IEP.” (Brennan v. Regional School Dist. No. Bd. of Ed., 531 F. Supp. 2nd 245, 265 (D,Conn, 2008). see also S.A. v. New York City Dep’t of Educ., No. 12-CV435 (RMM)(MDG), 2014 WL 1311761, at *7 (E.D.N.Y. Mar. 30, 2014)). It is a prospective award of educational services designed to “catch-up” a Student to where the Student would be absent a denial of a FAPE (Brennan, at p.245). The goal of compensatory education services is to “place the Student in the position she would have occupied had the district complied with its obligations under the IDEA.” (M,M, v. N.Y.C, Dep’t of Educ., No. 15-CV-5846, 2017 WL 1194685 at *8 (S.D.N.Y. Mar, 30, 2017) (quoting Appeal No. 14-179)). A compensatory education 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” (Id. at 2* quoting DOE v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015). quoting Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). The standard for an entitlement of compensatory education requires gross, flagrant, and prolonged violations of the law (Lester H. v. Gilhool, 916 F.2d 865 (3rd Cir. 1990); Mrs. C. on behalf of J.C. v. Wheaton, 916 F.2d 69 (2nd Cir.1990)). A district may not be required to provide compensatory educational services as a remedy if the deficiencies have already been mitigated. (Appeal 21-065; see Phillips v. Dist. of Columbia, 932 F. Supp.2d 42, 50 & n.4 [D.D.C. 2013] [collecting authority for the proposition that an award of compensatory education is not mandatory in cases where a denial of a FAPE is established]; see generally Application of a Student with a Disability, Appeal No. 17-015).

The purpose of compensatory education is not to punish the district (Appeal 21-065; see also C.W. v Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 828 (3d Cir. Sept, 27, 2010) noting that “[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate Students with disabilities who have not received an appropriate education,”). Furthermore, “the purpose of any award of compensatory educational services is not to maximize the Student’s potential or to guarantee that the Student achieves a particular grade-level in his areas of need.” (Appeal 21-065 at p.16, 17, also holding that “it would, for certain, be a pyrrhic victory if the delivery of an award of compensatory educational services only served to overwhelm the Student or outpace the Student’s ability to make progress.”

Prior to the REDACTED evaluation, the Parent did not have the information needed to understand the nature of the Student’s learning disabilities (Exh. Z, ¶ 10). The Parent did not have critical facts relating to the Student’s cognitive functioning and academic needs, until the September 2021 neuropsychological evaluation. The Parent’s argument that the Student will only be able to demonstrate measurable progress in her scholastic, vocational, and social-emotional skills if she is placed in an appropriate educational environment that can provide her with individualized programming and services to address her constellation of needs is supported by the evidence.

Until the REDACTED evaluation in September 2021, the Parent did not have the critical facts to know that the support given by the DOE was inadequate. The Parent should have known after the REDACTED Centers evaluation (completed in February 2021, (Exh. F), which diagnosed the Student with an intellectual disability) that the DOE was not providing her with the appropriate services, that date is also within the two-year statute of limitations. However, because the REDACTED Centers evaluation failed to diagnose the Student’s autism spectrum disorder, that evaluation still did not provide the Parent with a full understanding of the Student’s disabilities and needs and their misplacing her in a 12:1:1 class in a community school. See, Draper, 230 F.3d at 1287 (stating that “until [the independent evaluation, Student]’s family did not know enough to realize that [Student] had been injured by his misdiagnosis and misplacement by the School System [and]. should [not] be blamed for not being experts in learning disabilities”); Jana K. ex rel. Tim K. v. Annville-Cleona Sch. Dist., 39 F.Supp.3d 584, 600 (M.D. Pa., 2014)(stating “[Student]’s father is not trained in special education, psychology, or the IDEA, and therefore should not be deemed qualified to have known that the issues addressed in the report should have triggered the District’s Child Find obligations. Thus, receipt of [the] report did not establish that [the Student]’s father knew or should have known his cause of action at that time.”)

Adding to the complexity and confusion in this case, the DOE has failed, through REDACTED’s entire education, to translate any of the Student’s IEPs or evaluations into REDACTED for the Parent (Exh. Z, ¶ 3). “Under the IDEA, consent means the parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication. . . For parents who read in their native language, providing the parents with written translations of the IEP documents may be one way for a school district to demonstrate that the parent has been fully informed of their child’s educational program.” Letter to Boswell, OSEP Letter, Sept. 2, 2007 https://sites.ed.gov/idea/idea-files/policyletter-september-4-2007-to-linda-boswell-conway arkansas-public-schools/ (accessed March 19, 2023). See also, 34 C.F.R. § 300.9. To meet these requirements, the New York City Chancellor’s Regulation A-663 requires that “documents produced by central DOE offices and schools which contain critical information regarding a child’s education must be translated into the covered languages.” New York City Department of Education, https://www.schools.nyc.gov/schoollife/policies-for-all/language-access-policy’”

While the Parent maintains that her claims are timely under the IDEA, I hold that her claims prior to 2019 are time-barred under the IDEA and she is held to a two-year lookback. The Parent, however, brought this impartial hearing request under both the IDEA and Section 504 of the Rehabilitation Act which carry a two- and three-year statute of limitations, respectively. See, 20 U.S.C. § 1415(f)(3)(C); Morse v. University of Vermont, 973 F.2d 122, 127 (2d Cir. 1992); see, also, Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp. 2d 529, 566 (S.D.N.Y. 2010), citing Darcy v. Lippman, 2008 WL629999, at *11 (S.D.N.Y. Mar. 10, 2008). Under both statutes, schools are required to provide “a free appropriate public education” through special education and related services. See, e.g., 34C.F.R. § 104.33. The three-year statute of limitations for Section 504 claims does not run until a parent “knew or should have known” of the injuries that form the basis for their claim. See, Morse, 973 F.2d at 125. In the present matter, Ms. Benitez filed the impartial hearing request on September 15, 2022, and therefore under Section 504, she is entitled to claim violations back to at least September 15, 2019. As such, the parent’s claims brought under Section 504 are not time-barred back to September 15, 2019. Although I find that the claims prior to September 2019 are time-barred, documents currently in the record prior to that date are deemed relevant to claims for the 2019-2020, 2020-2021, and 2021-2022 school years since they provide useful and relevant background and context as to how the Student ended up in the academic predicament, she currently finds herself. Accordingly, all documents presented by the Parent and the District are admitted into evidence.

Issue V: What Kind and Amount of Relief is the Parent Entitled To under the IDEA.

Aside from the tuition reimbursement/funding that the Parent is seeking and awarded herein for the time the Student was enrolled in the REDACTED, the Student is deemed entitled to other compensatory and equitable relief. However, the nature of this case and the specific harm caused to the Student by the long-standing failure of the DOE to address her academic and social needs, makes it difficult to create a just and fair determination of how much compensatory education the Student is entitled to and the amount of financial compensation due the Parent, especially when the Student is nearing the age of 21.

According to the testimony of Ms. REDACTED, a tutor with 20 years’ experience working with learning disabled students, the Student is “severely delayed” in both English language arts and math (Exh. CC, ¶ 11). According to Ms. REDACTED standardized assessments of the Student’s reading, she does not “know all the sounds of various letters and letter combinations.” (Exh. CC-3-4). The Student has similar gross deficiencies in mathematics. The consensus is that due to the severity of her deficits, the Student requires evidence-based remediation. Likewise, Dr. REDACTED, the evaluator from the REDACTED tests, stressed the importance of the Student’s need for remedial literacy instruction “with a fully qualified professional learning specialist with specific training in a systematic, multisensory, and evidence-based remediation program, such as The Orton-Gillingham Approach.” (Exh. AA, ¶ 16). For mathematics, Dr. REDACTED testified that the Student requires “a remediation program designed to help her develop foundational skills, utilizing empirically based, structured, and diagnostic teaching methods provided by a learning specialist who is knowledgeable about mathematics remediation.” (Exh. AA, ¶ 17).

According to Ms. REDACTED, the Student needs at least 2000 hours of tutoring for English language arts and 2000 hours for mathematics, for a total of 4000 hours (Exh. CC, ¶ 120). Ms. REDACTED estimates this is the amount of time it would take for the Student to reach the level of a 12th grader (Id. at 3-4). Considering that the Student is nearly REDACTED years old and that the REDACTED evaluation placed her academic skills in Grades 1.8 to 3.3 for math and Grades 2.7 to 5.4 for reading, Ms. REDACTED recommended hours of remediation appear reasonable on its face (Exh. G- 27). However, although the District did not challenge the 4000 hours of remediation proposed by Ms. REDACTED, this number of hours is based solely on her unverified assessment of the Student conducted via zoom during the pandemic. Ms. REDACTED did not personally meet the Student or tutored her prior to making her assessment. I, on the other hand, do not have any indication as to how many hours the Student needs to reach a certain level of competency in reading, writing and math. Unfortunately, due mostly to the DOE’s shortcomings in accurately diagnosing the Student in her early years and, in effect, denying her the academic help and behavioral support she needed in her developmental years, a precise number of hours the Student needs to reach a level of vocational competency needs to be better determined. Another more thorough assessment is therefore required, considering the Student's recent autism diagnosis and the fact that the Parent is precluded from making claims for services prior to the 2019 school year.

I am therefore ordering that a new comprehensive assessment be performed no more than 35 days from the date of this order as to how many hours of compensatory education the Student was entitled to from the commencement of the 2019 school year until the present time. This assessment should consider the severity of the Student’s autism and other deficiencies. As stated in the REDACTED evaluation, “[a] common feature of ASD is the difficulty applying/generalizing rules and learned behavior across different situations. As such, the Student requires a high level of support learning how to utilize learned skills.” (Exh. G-17). Additionally, because the DOE never properly diagnosed the Student, the speech therapy provided to her over the years by the DOE has only targeted her expressive and receptive language. As Dr. REDACTED testified, “[a] hallmark of ASD is difficulty with the social and pragmatic use of language. As the Student’s Autism has only recently been diagnosed, she has not had any therapy focused on this aspect of her language.” (Id. at ¶ 19). Compensatory speech language therapy targeted at the nuanced and pragmatic use of language to address the Student’s difficulties with social communications related to her autism diagnosis is necessary to enable her to transition into a meaningful and successful adult life. (See, Exh. G). Whether the Student is entitled to a Level II/III Vocational Transition Evaluation and Recommended Services The Student personally testified that she did not have any idea of what she was going to do if she had graduated last June (Tr. at 92:7-11). Dr. REDACTED’s testimony highlighted the Student’s lack of life skills training, transitional planning and/or vocational counseling. His testimony recommended that the Student should have a full level 2 or level 3 private vocational evaluation to determine what transitional support and life skills training REDACTED requires to function properly upon aging out of the DOE educational services at age 21. These Compensatory Services should be awarded as they are vital to providing a viable and independent future for REDACTED (See, Exh. G). The Student testified to how much she wants to continue to better herself and work to improve her skills (Tr. at 93:7-12). These various evaluations, tutoring and hours of related services will take a substantial amount of time to complete. Additionally, REDACTED will be attending the full-time program at REDACTED and, upon graduation, finding full-time employment. The Student has been denied a FAPE for most of her academic career; it is equitable to give her the same amount of time to remediate her issues. Courts have used this logic in granting the time to use compensatory awards. See, e.g., Doe by and through Doe, 2020 WL 7078727 at *19. It took the DOE thirteen years of academic neglect to put REDACTED in this predicament: it is therefore just that the Student have thirteen years from the date of this order to receive and benefit from level 2 and 3 vocational assessments

Whether the Parent is Entitled to Reimbursement for the Cost of Meals for the 13 Days REDACTED Attended REDACTED During the 2021-2022 School Year and while REDACTED Attends REDACTED for the 2022-2023 School Year Pursuant to Section 504 of the Rehabilitation Act

Impartial Hearing Officers have the authority to rule on claims related to Section 504 of the Rehabilitation Act (Section 504). Section 504 provides that “no otherwise qualified individual with a disability … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance….” 29 U.S.C. § 794(a). To show a violation of Section 504, “a plaintiff must show that he or she (1) has a disability; (2) is ‘otherwise qualified’ for the benefit that has been denied, and (3) has been denied the benefit by reason of the disability.” In C.D. v. New York City Department of Education, the United States District Court for the Southern District of New York found plaintiffs had stated a claim under Section 504 that failure to provide them with school meals because they were placed at private schools constituted illegal disability discrimination. C.D., 2009 WL 400382, at *7. (S.D.N.Y. Feb. 11, 2009) s (Id. at *14). The court emphasized that the DOE “cannot [] rely on their failure to provide a suitable public-school placement . . . to avoid paying for meals for which the [Student] qualif[ies].” (Id. at *11). Further stating that “[d]isabled Students should not have to choose whether to learn or to eat, and the law does not require them to choose.” (Id. at 7. a).

The Student, under Section 504, is an individual with a disability since she “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.” 34 C.F.R. §104.3(j)(1). The Student is diagnosed with an Intellectual Disability, an autism spectrum disorder, an anxiety disorder, and a Depressive Disorder, which are mental impairments that substantially limit the major life activity of learning. Exh. G. See also, 34 C.F.R. § 300.8(c)(1)(i) (“developmental disability significantly affecting verbal and nonverbal communication and social interactions”); 34 C.F.R. § 300.8(c)(6) (“significantly subaverage general intellectual functioning. . . that adversely affects a child’s educational performance.”). Accordingly, the Student is an individual with a disability under Section 504.

In determining whether a Student is entitled to free meals, the Southern District of New York uses a two-step approach to see whether plaintiffs alleging Section 504 discrimination are otherwise qualified for the benefit they have been denied. The Student is otherwise qualified “if she meets the program’s other essential requirements…. If a plaintiff does not meet the essential requirements of a program, however, the court can determine whether the plaintiff would meet those requirements if a reasonable accommodation were made.” C.D., 2009 WL 400382, at *7 (citing Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 288 fn. 17, (1987).

In this case, the Parent argues that if the Student were to attend public school for the end of the 2021-2022 school year and the 2022-2023 school year, she would qualify to receive free meals through the DOE, as all Students who attend New York City Public Schools are entitled to free breakfast and lunch. New York City Department of Education, https://www.schools.nyc.gov/school-life/food/school-meals (last visited March 23, 2023). Therefore, the Student is a New York City Student who would otherwise receive free meals on school days if not for the DOE’s inability to meet her needs as a Student with a disability. Just as with the Students in C.D., the Student should not be forced to choose between attending an appropriate program at a private school and eating. C.D., 2009 WL 400382, at *14.

Although the DOE was aware of REDACTED’s disability and the fact that the Student qualified for, but could not receive, free meals at REDACTED, the DOE did not offer the Student any reasonable accommodation nor did it present any evidence to show the parent’s request for reimbursement is unreasonable. See Henrietta D., 331 F.3d at 280-81 (concluding the defendant had to show that the proposed accommodation would “impose an undue hardship.”). See also, IH Case No. 132043, Amended Decision, at 5-6; IH Case No. 125558, at 9- 12 (matters where the Impartial Hearing Officer ordered reimbursement to the Parent for the cost of meals). The Parent testified that she is required to fund the student’s meals for each school day at REDACTED (Exh. Z, ¶ 23). Reimbursement to the Parent for the costs of the Student’s meals is a reasonable accommodation that would enable her to receive the meals for which she is otherwise entitled. In C.D., the Court held that the DOE’s refusal to provide free lunches to Students who attend private schools, while facially neutral, created a disparate impact on Students with disabilities, thereby denying them a benefit because of their disability. C.D., 2009 WL 400382, at *12-*13. The Court held that the policy of refusing to provide free meals amounted to disparate impact discrimination, as only Students with disabilities attend private schools at the DOE’s expense. Id. The Court concluded that plaintiffs had “successfully stated a claim of disparate impact and a claim for reasonable accommodation.” (Id. at *13). In this case, the Student attends REDACTED because the DOE failed to offer her an appropriate program to meet her needs as a Student with an Intellectual Disability and an autism spectrum disorder (Exh. Z). When the Student attended public school, she received free breakfast and lunch. Thus, I find that the Parent is entitled to reimbursement from the DOE for the cost of the Student’s meals for each instructional day for the 2021-2022 and 2022-2023 school years that REDACTED is enrolled at REDACTED . The parent testified that it costs her approximately $17 to feed the Student each school day, Exh. Z, ¶ 23. However, the Parent also testified that the Student rarely eats breakfast. I am therefore ruling that the Parent is entitled to one-half of the $17.00 per day she quoted. As such, reimbursement to the parent for the cost of the student’s daily meal expenses is awarded in the amounts of $110.50 for 13-days of the 2021-2022 school year and $1530.00 for the 2022-2023 school year for a total reimbursement of $1640.00.

It is therefore ORDERED that the New York City Department of Education:

1. Pay the Student’s outstanding tuition at REDACTED for a portion of the 2021-2022 academic school year and the 2022-2023 academic school year and reimburse the Parent for all monies the Parent paid up front to the school pursuant to the terms and conditions stated in exhibits O, P, Q, R, S.

2. Make reasonable accommodation to either reimburse the Parent for transportation costs to and from the REDACTED or to provide transportation for the Student to and from the school.

3. Reimburse the Parent for meals in the amount of $110.50 for 13 days of the 2021-2022 school yar and $1530.00 for the 2022–2023 school year for a total reimbursement of $1640.00.

4. Fund an independent and comprehensive Level II/III transition assessment to be conducted by REDACTED or another appropriate provider of the parent’s choosing at the market rate which shall not exceed $4000.00. and to fund any services the provider recommends that is deemed essential for the Student’s vocational transition at market rate.

5. Fund an observation and assessment conducted by a BCBA/LBA provider from REDACTED or another appropriate provider, producing the FBA at market rate which shall not exceed $3,375.00.

6. Fund an observation and assessment conducted by a BCBA/LBA provider from REDACTED or another appropriate provider, producing the BIP at the market rate, not to exceed $1,125.00.

7. Fund an assessment conducted by the BCBA/LBA provider from REDACTED or another appropriate provider producing the ABA SKILL Assessment at the market rate, not to exceed $3,375.00.

8. Fund any ABA/SETSS hours determined by said evaluations conducted by a BCBA/LBA provider to be necessary and essential for the Student to progress, at a rate of $225.00 per hour.

9. Fund 500 hours of compensatory intensive 1:1 individualized Orton-Gillingham instruction for reading/writing remediation with a provider of the Parent’s choosing at a rate of $150.00 per hour. The student may request additional hours of compensatory intensive 1:1 individualized Orton-Gillingham instruction for reading/writing remediation thirty-days prior to the expiration of the initial 500 hours of remediation. The decision as to the additional hours needed shall be made by the provider of the Parent’s choosing and a representative of the Department of Education in conformity with this Order. The student shall have the right to use these compensatory services for a term of 13 years from the effective date of this Order.

10. Fund 500 hours of compensatory 1:1 multisensory math/instruction/remediation with a provider of the Parent’s choosing at a rate of $150.00 per hour. The Student may request additional hours of compensatory 1:1 multisensory math/instruction/remediation thirty-days prior to the expiration of the initial 500 hours of remediation. The decision as to the additional hours needed shall be made by the provider of the Parent’s choosing and a representative of the Department of Education in conformity with this Order. The Student shall have the right to use these compensatory services for a term of 13 years from the effective date of this Order.

11. Fund 360 hours of compensatory speech-language therapy to be provided by the REDACTED or another appropriate provider of the Parents choosing at the market rate. The student shall have the right to use these compensatory services for a term of 13 years from the effective date of this Order.

12. The DOE shall reimburse the Parent/Student for reasonable transportation costs related to the Student going to and from any program or services recommended in the vocational evaluations, any ABA/SETSS recommended in any evaluation by a BCBA/LBA provider, as well as compensatory tutoring and speech language therapy.

13. The DOE and a provider/agency of the Parent’s choosing shall make a new comprehensive assessment of the compensatory education the Student needs in conformity with this Order. This paragraph shall not preclude the Student’s right to the initial 500 hours of compensatory education awarded in paragraph 9 and 10 of this Order.

14. This Order shall take effect no later than 35 days from the date of the Order.

Dated: July 24, 2023.

Robert Rodriguez

Robert Rodríguez, Esq., Ph.D

Impartial Hearing Officer

NOTICE OF APPEAL

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD

"STUDENT"

A Impartial hearing request, 9/15/22, 12 pages

B Ten-day notice, 5/16/22, 3 pages

C Ten-day notice, 8/23/22, 4 pages

D Bilingual SEIT, Inc., preschool evaluation, 10/13/07, 66 pages

E REDACTED, Inc., bilingual psychological evaluation, 2/12/09, 49 pages

F REDACTED, Inc., neurological evaluation, 2/2/21, 19 pages

G Neuropsychological reevaluation,9/29/H Individualized education plan, 3/20/19, 10 pages

I Individualized education plan, 5/14/20, 20 pages

J Individualized education plan, 4/26/21, 19 pages

K Meeting notice, 11/29/21, 3 pages

L Email from REDACTED to REDACTED, 12/10/21, 1 page

M Tutor evaluation by REDACTED, 6/30/N Level 1 vocational evaluation, undated, 4 pages O 2021/2022 enrollment contract, 5/17/22, 7 pages

P Finance affidavit of REDACTED, 2/24/23, 1 page Q 2022/2023 enrollment contract, 6/13/22, 7 pages

R Finance affidavit of REDACTED, 2/24/23, 1 page

S Cancelled checks for deposit and tuition, no date, 15 pages T 2022 fall report, no date, 7 pages U 2023 winter report, no date, 8 pages

V Printout of New York Times article, 9/16/17, 1 page

W Printout of New York school's announcement, 9/16/17, 15 pages X C.D. versus Department of Education, 2009 WL 400382, no date, 13 pages Y 7 CFR 245.2, no date, 35 pages

Z Affidavit of Dr. REDACTED, no date, 4 pages

AA Affidavit of Dr. REDACTED, no date, 4 pages

BB Affidavit of Ms. REDACTED, no date, 7 pages

CC Affidavit of Ms. REDACTED, no date, 4 pages

THE DEPARTMENT OF EDUCATION

1 Request for reevaluation, 11/16/13, 1 page

2 Procedural safeguards parent’s rights letter REDACTED (as attached to request for reevaluation), 11/6/2013, 49 pages

3 Procedural safeguards parent’s rights letter English, 11/6/2013, 49 pages

4 Prior written notice, 12/15/2020, 7 pages

5 Procedural safeguards parents' rights letter REDACTED (as attached to PWN), 12/15/2020, 56 pages. 6 Procedural safeguards parents' rights letter English, 12/15/2020, 51 pages