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CASE NUMBER: 593968 - NYC: 244162
FINDINGS OF FACT AND DECISION
Student’s Name [1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: # REDACTED
Hearing Requested by: REDACTED (“Parents”)
Request Date/Date Complaint Filed: 12/21/2022
Date(s) of Hearing: 03/15/2023
Actual Record Closed Date: 04/28/2023
Date of Decision: 05/01/2023
Date of Distribution if Different than Decision Date: n/a
Hearing Officer: Peggy K. Chan
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 15, 2023
For the Student:
REDACTED (hereinafter referred to as “Parents’ Representative”)
REDACTED (hereinafter referred to as “Parent 1”)
REDACTED (hereinafter referred to as “Service Provider”)
REDACTED (hereinafter referred to as “Private School Principal”)
For the Department of Education (“DOE”):
REDACTED (hereinafter referred to as “District’s Representative”)
REDACTED (hereinafter referred to as “DOE Teacher”)
BACKGROUND AND PROCEDURAL HISTORY
Student is a REDACTED -year-old, tenth grader classified as a student with an Intellectual Disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute.
On December 21, 2022, Parents, through Parents’ Representative firm, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA, Section 504 of the Rehabilitation Act (“Section 504”), and the Americans with Disabilities Act (Ex. P-A). I was appointed on January 30, 2023 to determine the claims in the DPC and to conduct an impartial hearing pursuant to 20 U.S.C. § 1415(f) and the New York State Education Law § 4404(1).
It is asserted in the DPC that, based on numerous procedural and substantive grounds, the DOE failed to offer Student a free and appropriate public education (“FAPE”). Parents sought, inter alia, a finding that the DOE denied Student a FAPE for every single school year (“SY”) since the 2015-2016 SY through the present 2022-2023 SY; tuition funding for the cost of Student’s attendance at Private School for a portion of the 2021-2022 SY and for the 2022-2023 SY; appropriate transportation for Student to and from Private School; independent neuropsychological, speech language, and occupational therapy evaluations for Student; and compensatory services (Ex. P-A; Tr. 8-9).
On February 10, 2023 and February 22, 2023, the parties appeared for a prehearing conference and status conference, respectively. On March 2, 2023, the District filed a Due Process Response (Ex. IHO-I). A due process hearing (“DPH”) was held on March 15, 2023.
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[2] and its implementing regulations,[3] and the New York State Education Law[4] and its implementing regulations. [5]
At the DPH, I clarified that Impartial Hearing Officers (“IHOs”) do not have the authority to hear claims raised under the American Disabilities Act (Tr. 8).
IHOs have authority to hear claims under Section 504 if delegated the authority by the Local Education Agency (LEA). The DOE delegated to the New York City Office of Administrative Trials and Hearings (“OATH”) the authority to adjudicate due process complaints under Section 504. 6 In the present case, I find that all of Parents’ Section 504 claims are fully subsumed within the framework of the IDEA. The Parents did not identify any specific regulatory requirement under Section 504 that would merit separate analysis and discussion (Tr. 8). Therefore, I do not separately analyze the Section 504 claims raised in the DPC or address it further in this decision.
PARTIES’ POSITIONS AND CASES PRESENTED
District’s Representative raised the statute of limitations defense for the first time at the DPH and made a motion to dismiss the claims relating to the 2015-2016 through the 2020-2021 SYs (Tr. 9-10; Ex. IHO-II-7). Both parties made oral arguments at the DPH and submitted written closing arguments on this issue (Tr. 9-19; Ex. IHOII and IHO-III).
District’s Representative confirmed at the DPH that the DOE was: defending Prong I, namely that the DOE provided Student with a FAPE for the 2021-2022 and the 2022-2023 SYs (Tr. 44-45); calling one witness, DOE Teacher, to testify strictly about the January 15, 2021 IEP (Tr. 41); and proposing five documents for admission to the record, which were admitted to the record as DOE’s Exhibits 2 through[6] (see Appendix B) after confirming with the Parents’ Representative that there were no objections from the Parents to those documents being admitted into evidence (Tr. 22-23).
Parents, through the Parents’ Representative, proposed forty-nine documents in support of the Parents’ case. The District raised no objection to the introduction of Parents’ proposed exhibits, with the exception of Parents’ proposed exhibits I and T which were withdrawn, and Parents’ proposed exhibits E, F, G, H, J, K, O, P, and Q, which the District’s Representative objected to on the ground of relevancy, arguing that these documents, which were dated between June 2012 and January 2020, related to the SYs that would be barred by the statute of limitations (Tr. 24-25). Parents’ disclosure included the signed affidavits of three witnesses in support of Parents’ case, namely, Parent 1’s affidavit, as well as the affidavits of Private School Principal[7] and Psychologist (Ex. P-TT, P-UU, and P-VV, respectively). Parent 1 and Private School Principal also testified at the DPH.
After considering the parties’ oral arguments regarding the statute of limitations defense, I ruled that I would reserve making a ruling on the motion to dismiss until I heard all the evidence on when the Parents knew or should have known of the alleged action that formed the basis of the DPC (Tr. 16-18). As such, I ruled that all of the Parents’ proposed exhibits (with the exception of I and T, which were withdrawn) are relevant to the extent that they provide facts regarding the statute of limitations defense, whether the DOE provided a FAPE from the 2015-2016 through the 2020-2021 SYs should the DOE not prevail on its motion to dismiss, and for determining the appropriate remedies for Student. Parents’ proposed documents were admitted to the record as Parents’ Exhibits A through H, J through S, U through SS, and VV through YY (Tr. 29-32). Parents’ Exhibits TT and UU were subsequently admitted to the record when the witnesses testified (Tr. 97 and 72) (see Appendix B).
Both parties made opening statements at the DPH. Both parties submitted written closing briefs (Ex. IHO-II and IHO-III).
ISSUE(S) IN DISPUTE
(1) Whether the Parents’ claims for the 2015-2016 through 2020-2021 SYs are barred by the statute of limitations.
(2) Whether Student was provided a FAPE for one, some, or all the SYs at issue.
(3) The relief to be awarded, if it is found that the DOE failed to provide Student with a FAPE for one, some, or all the SYs at issue, is to be determined.
PREVAILING PARTY
Parents are the prevailing party, and an award or Order is granted in favor of Parents.
LEGAL FRAMEWORK
[I] Burden of Proof
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. [8] [II] Statute of Limitations
A DPC must allege a violation 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.[9] New York State has adopted a timeline and limitations period that is consistent with the IDEA.[10] The school district has the burden of proving that the statute of limitations bars a parent’s claim. [11]
In accordance with the IDEA and New York law, a claim begins to accrue when a party in question knew or should have known of the alleged action that forms the basis of the complaint (referred to as the “KOSHK date”) and the complaint must be filed within two years of that date.[12] Determining when a parent knew or should have known of an alleged action "is necessarily a fact-specific inquiry." [13]
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).” [14]
The first tolling exception pertains to when the District specifically misrepresents that it had resolved the issues forming the basis for the due process complaint notice, thereby causing the parent not to file a due process complaint. The specific misrepresentation must be intentional – i.e. the school has “knowledge that its representations of a student’s progress or disability are untrue or inconsistent with the school’s own assessments.” [15]
The second tolling exception pertains to when the District withholds information from the parent that it was required to provide. Federal and New York State regulations require a school district to provide parents with a notice of procedural safeguards “at a minimum one time per year and also: (i) upon initial referral or parental request for evaluation; (ii) upon the first filing of a due process complaint notice…or an impartial hearing; (iii) upon request by a parent; (iv) upon a decision to impose a suspension or removal…; and (v) upon first receipt of a State complaint.”[16] Again, that withholding must thereby cause the parent not to file a due process complaint. [17] Generally, case law looks at whether the District provided written notice of procedural safeguards required under the IDEA such as Prior Written Notice (“PWN”) and how to file a complaint and request an impartial hearing. [18]
Additionally, there may be specific tolling provisions not normally in effect, but applicable under specific circumstances. For example, in New York, during the initial stages of the COVID pandemic, the Governor issued Executive Order 202.8 beginning on March 7, 2020 with subsequent extensions tolling the period through November 3, 2020, for a total of 241 calendar days.
Finally, although determining when a parent knew or should have known about the claim involves a factual analysis, which can be similar to the denial of a FAPE analysis, the issue is simply whether claims are time barred – not whether the parent will prevail if they are timely and litigated.
[III] FAPE
The IDEA provides that children with disabilities are entitled to a FAPE.[19] 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”). [20]
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.[21] In order to meet its substantive FAPE obligations, a school district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” [22]
If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. [23]
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. [24]
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."[25] However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.”[26] “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.”[27] The IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” [28]
Additionally, school districts are not required to “maximize” the potential of students with disabilities. [29] Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’”[30] The IEP must be “reasonably calculated to provide some ‘meaningful benefit.’” [31]
To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP.[32] Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material." [33]
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.”[34] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so.[35] Although an award of damages is not available under the IDEA, 36 “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [37]
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim.[38]
FINDINGS OF FACT AND DECISION
[I] Statute of Limitations:
In arguing that Parents’ claims for the 2015-2016 through 2020-2021 SYs are time-barred, the District considered two dates as the possible KOSHK dates for each SY at issue. Stating that Parents’ claim for each SY is that the District failed to recommend and provide a substantively appropriate program and placement, the District asserts that Parents knew or should have known that the IEP was substantively deficient at the time of the IEP meeting for each SY at issue, or at the latest, upon receiving the PWN soon after each IEP meeting. The District asserts that the relevant dates are as follows:
2015-2016 SY: IEP meeting took place on August 5, 2015; the PWN was dated August 24, 2015. 2016-2017 SY: IEP meeting took place on February 1, 2016; the PWN was dated February 24, 2016. 2017-2018 SY: The District has not asserted KOSHK date(s) for this SY. 2018-2019 SY: IEP meeting took place on January 18, 2018; the PWN was dated January 29, 2018. 2019-2020 SY: IEP meeting took place on January 7, 2019; the PWN was dated January 24, 2019. 2020-2021 SY: IEP meeting took place on January 7, 2020; the PWN was dated January 13, 2020. Using the District’s COVID tolling calculation, the SOL expiration date for this year would be two years plus 229 days from the KOSHK dates, resulting in expiration dates of August 22, 2022 or August 30, 2022. The DPC was filed on December 21, 2022.
(Ex. IHO-II-14-15).
In addition, the District argues that the “specific misrepresentation” tolling exception does not apply, as the DPC does not plead that but-for specific representations from the District, the Parents would have filed a DPC at an earlier date when the claims arising under the 2015-2016 through 2020-2021 SYs would have been timely
36 See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002). (Ex. IHO-II-16-17). As for the second tolling exception concerning the District’s withholding of specific information from the Parents that the District was statutorily required to provide, the District argues that Parents were informed of their parental due process rights as indicated by the “receipt” of Prior Notice Package after every IEP meeting for the 2015-2016 through 2020-2021 SY s (Ex. IHO-II-17). The District cited the PWNs dated January 7, 2021 and February 14, 2021 (Ex. DOE-3 and DOE-4) and the testimony of DOE Teacher (Tr. 60, 66-67) as support that PWNs were provided to the Parents for the 2015-2016 through 2020-2021 SYs (Ex. IHO-II-17). The District’s Due Process Response asserts that the District sent PWNs for the 2015-2016 through the 2021-2022 SYs (Ex. IHOI).
In arguing that the claims related to the 2015-1016 through 2020-2021 SYs are timely, Parents assert that the District failed to appropriately evaluate Student in all areas of suspected disability during the relevant SYs. As a result, without an understanding of Student’s disability, Parents had no specific information upon which to base a claim such that would start the running of a statute of limitations period (Ex. IHO-III-10-12). Parents also argue that the two tolling exceptions to the statute of limitations period would apply. Parents assert that the District made specific misrepresentations to Parents during these SY’s by characterizing Student’s regression and stagnation as progress (Ex. IHO-III-12). Parents also claim that they were not aware of their right to challenge the District’s actions until they were informed by a work colleague in the Fall of 2021 (Ex. P-TT-10 and IHO-III-12; Tr. 102).
I find the District’s determination of the KOSHK date for each of the relevant SYs to be overly narrow. Based upon the evidence on record, which is fully discussed below, I find that Parents knew and should have known in the Fall of 2021 about the claims concerning the 2015-2016 through the 2020-2021 SYs. Accordingly, I find that Parents filed their claims relating to these SYs on a timely basis.
The record shows that Student was initially evaluated in 2012 when the District conducted a Psychoeducational Evaluation, Social History, and a Speech Language Evaluation (Ex. P-A-2, P-E, P-F, and P-G; Tr. 11). In April 2012, Student had been diagnosed with Attention-Deficit Hyperactivity Disorder (“ADHD”) (Ex. P-G2). At the time of the 2012 evaluation, the CSE classified Student under “other health impairment” (Ex. P-G-2). Student was assessed to have an IQ of 78, which was characterized as “moderately below average” (Ex. P-G-2). Student was diagnosed with a severe receptive language deficit and moderate expressive language deficits (Ex. PF-2-3) and “very limited” reading and math skills (Ex. P-G-4).
The record shows that the District next conducted an Educational Evaluation in January, October, and December of 2016 (Ex. P-L). The evaluation revealed that Student had an IQ of 50, which was categorized as “extremely low range.” (Ex. P-L-7), and that Student’s reading and math grade equivalents were in the first kindergarten to first grade range (Ex. P-L-2, 5-6). The evaluation did not address Student’s drop in IQ scores since 2012, include any diagnostic findings or make any educational recommendations (Ex. P-L-8). The record does not show whether this Educational Evaluation was used as a basis for any upcoming IEP meetings or CSE recommendations. Parents claim that they were not provided a copy of the evaluation at the time and did not receive a copy until Parents submitted a document request to the District in the Fall of 2021 (Ex. P-TT-3).
The record reflects no other comprehensive evaluations with cognitive testing since 2016. There is no evidence of any occupational therapy evaluation, although the record reflects that Student was receiving OT services in the 2017-2018 SY (Ex. P-O), the services were reduced in the 2018-2019 SY (Ex. P-P) and ultimately terminated in the 2019-2020 SY (Ex. P-Q). The only speech-language evaluation in the record was conducted on July 14, 2012 (Ex. P-F). The record reflects that Student was recommended SLT services in 2012 and was receiving such services from the 2016-2017 through the 2021-2022 SYs (Ex. P-L-1, P-M-2, P-O, P-R, and DOE-2).
The record shows that after the Educational Evaluation in 2016, the District administered certain assessments to determine Student’s present levels of performance and needs. For the January 18, 2018 IEP, Student was assessed with the Assessment of Basic Language and Learning Skills (“ABLLS”) and was deemed to have “emergent skills” for reading and math (Ex. P-O-2). For the 2019-2022 IEPs, Student was tested via the Student Annual Needs Determination Inventory (“SANDI”) Assessments as follows: In 2019, Student was assessed to have “pre-emergent literacy, writing, and math skills” (Ex. P-P-1); In 2020, “pre-emergent skills” in reading, writing and math (Ex. P-Q1-2); In 2021, “emergent” skills in reading and math (Ex. P-R-1); In 2022, Student’s SANDI test scores were identical to the test scores reflected in the 2021 IEP in reading, writing, and math, and Student was deemed to be functioning at a first grade level in both reading and math (Ex. DOE-2-2). Most recently, in February 2023, Student was assessed by Private School to be reading and doing math at a first-grade level (Ex. P-OO-2-3).
From 2016 until Student was unilaterally placed in Private School in May 2022, Student had not made much academic progress, stagnating between kindergarten and first grade levels, and pre-emergent and emergent with respect to Student’s reading and math levels. Yet, the record reflects no comprehensive evaluations to determine the nature and extent of Student’s cognitive, academic, and social-emotional functioning or explain why Student was not making progress.
Parent 1 testified “I really didn’t know what to challenge at the time because…we [didn’t] really know [Student’s] diagnosis. I don’t think I had the proper information to move forward because I wouldn’t know how. I didn’t know what to challenge” (Tr. 110). Parent 1 testified that they had not been provided with evaluations or any other information that would fully explain Student’s disability or lack of progress (Ex. P-TT-10). In fact, Parents claimed that their current understanding of Student’s history was based upon their review of documents obtained from the District via a records request made in the Fall of 2021, which included documents they had never seen before (Ex. IHO-III-12; Ex. P-TT-2-3 and P-LL).
In addition, Parent 1 testified that at the IEP meeting “every year, we were told [Student] was making progress and that [Student] should continue on with the same general program” (Ex. P-TT-4). From March 2020 until the end of the 2020-2021 SY, Student attended school remotely during the COVID pandemic and regressed significantly (Ex. P-TT-5). Parents expressed their concerns about the regression at the January 5, 2021 IEP meeting, but were told by the DOE staff that all children in special education were experiencing issues and not getting the education they needed remotely (Tr. 109). When Student returned to in-person instruction as a ninth grader, in the Fall of 2021, Parents were concerned that in addition to having regressed, Student began exhibiting negative behaviors in order to fit in with new peers. In November 2021, Parent 1 shared their concerns with and made a request for an evaluation to the guidance counselor but was told that Student did not need an evaluation as Student had an IEP meeting coming up (Ex. P-A-5 and P-TT-6).
Parent 1 testified that they were not aware of their right to challenge CSE decisions: “I didn’t know, no one ever told me. No one ever expressed it to me. I know that in IEP meetings, they would say if you have questions, concerns, let us know, but they never made me feel like I can really challenge anything” (Tr. 102). Parent 1 further testified that they were never informed of their right to seek an independent evaluation outside of the District (Tr. 118). It was only in the Fall of 2021, when Parent 1 spoke with a friend whose child had similar challenges as Student, that Parents came to understand that they had the right to challenge CSE decisions (Ex. P-TT-10; Tr. 102).
Parent 1 testified that at the next IEP meeting on February 11, 2022, the District once again represented that Student was making progress and recommended the same general level of services (Ex. P-TT-6). “I did not believe that was sufficient and I could not understand their lack of concern about [Student’s] needs” (Ex. P-TT-6). It was by this time that it became “abundantly clear to the Parents that [Student] had not made meaningful progress since the Educational Evaluation was conducted during the 2016-2017 SY” (Ex. P-A-5).
I find that the District failed to carry its burden of proving that their motion to dismiss should be granted, including proving when Parents knew or should have known of a claim against the District. It is notable that the District did not introduce any documents or call any witnesses for any SYs prior to 2021 (see Appendix B; Tr. 15-17). Determining the KOSHK date is necessarily a fact-specific inquiry, yet the District presented no evidence other than generally arguing that the KOSHK date is either the date of the IEP meeting or the date of the PWN that was sent following the IEP meeting for each relevant SY.
I find that the District’s interpretation of the Parents’ claims to be overly narrow by arguing that the Parents knew or should have known that the IEP was substantively deficient at the time of each IEP meeting. The crux of the Parents’ claims is that without appropriate evaluations, and with the District’s ongoing representation at every IEP meeting that Student was progressing, they did not know at each SY’s IEP meeting that the IEP was not sufficient.
The District argues that for the 2015-2016 through 2020-2021 SYs, Parents were informed of their parental due process rights as indicated by the “receipt” of PWN after every IEP (Ex. IHO-II-17). Although the District stated that it could present evidence that Parents had been provided with procedural safeguards in these SYs, the District did not in fact introduce such evidence (Tr. 15-16). In its Due Process Response, the District claims that PWN were sent out for the 2015-2016 through the 2021-2022 SYs, but the District did not introduce any witness testimony or documentary evidence to substantiate this claim. On direct examination, DOE Teacher testified to their general practice of providing a procedural handbook to parents at the end of an IEP meeting (Tr. 60). However, I find that such general practice does not demonstrate that Parents in this case were actually provided a procedural handbook by the District in each of the SYs at issue, as required by the Federal and State regulations. [39] Furthermore, DOE Teacher had only become Student’s teacher in January 2021 (Tr. 52, 63-64). As such, I find that DOE Teacher did not have personal knowledge about whether Parents were provided with a procedural handbook in any of the previous SYs. The District failed to present any witnesses, progress reports or any other types of documentary evidence to prove that these notices were actually provided to Parents. The District therefore failed to demonstrate that it provided the requisite procedural handbook to Parents during the 2015-2016 through 2019-2020 SYs. [40]
The District argued at the DPH that at a Social History meeting in June 2012 (as part of Student’s initial evaluation prior to entering Kindergarten), Parents were provided with a handbook of procedural safeguards (Tr. 14; Ex. P-E-3). However, Parents have asserted that the 2012 initial evaluation conducted by the District was appropriate (Tr. 11). I do not accord much weight to the possibility that the District might have provided information to Parents about their procedural rights, at a time when the appropriateness of the evaluation was not in question, more than 3 years before the 2015-2016 SY, the first SY at issue here, as a relevant factor in determining when the Parents knew or should have known of the alleged claims that gave rise to the DPC some years later. I therefore find nothing in the hearing record to challenge Parents’ assertion that they did not know of their due process rights to file a DPC.
In addition, the record supports Parents’ claim that Student has not been fully and comprehensively evaluated in all of Student’s areas of suspected disability since 2012. Although the DOE conducted an Educational Evaluation in 2016, I find that evaluation to be inadequate in that it failed to address Student’s significant drop in IQ scores since the previous Psychoeducational Evaluation in 2012, and it failed to include any diagnostic findings or any educational recommendations (Ex. P-L-8). The record does not reflect if and how any of the cognitive test scores from the 2016 Educational Evaluation were subsequently used to develop an appropriate IEP. Furthermore, Parents’ testimony that they were not provided with a copy of such evaluation at the time it was completed was uncontroverted (Ex. P-TT-3).
Courts have held that without an adequate evaluation that can properly identify, diagnose and address a student’s disabilities, parents could not have the critical facts to challenge the adequacy of the district’s recommended special education program.[41] Parents should not be expected to know “something that the trained professionals of the School System did not admit they knew” or “be blamed for not being experts about learning disabilities.” [42]
I therefore find that without up-to-date and appropriate evaluative data regarding Student’s present levels of needs and performance, and without the District sharing all the requisite educational assessments with Parents, Parents did not have the information to fully understand if the IEPs that were being developed year after year were appropriate, to meaningfully participate in the IEP meetings, and to make informed decisions.
I further find Parent 1 to be credible when they testified that they had relied on the District’s ongoing representation at the IEP meetings year after year that Student was making progress, and that it was not until the District affirmatively failed to address Student’s regression during the COVID remote learning period and denied Parents’ request for an evaluation in the Fall of 2021, and when Parents finally reviewed Student’s educational records obtained via a records request in the Fall of 2021, that Parents finally came to question the District’s representations that Student had been making progress.
As such, I find that Parent knew and should have known that a due process complaint was ripe in the Fall of 2021. However, even if I had determined the KOSHK date to have occurred earlier, for the reasons outlined below, the second tolling exception – i.e. that the District withheld notice of procedural safeguards – would have applied.
Firstly, I turn to the applicability of the first tolling exception as this exception was raised by Parents in their opening statement (Tr. 10) and subsequently addressed in both parties’ closing briefs (Ex. IHO-II-16, IHO-III-12).
The District argues that the first tolling exception – that the District engaged in specific misrepresentations – does not apply because the DPC does not plead that but-for specific representations from the District, the Parents would have filed a DPC at an earlier date (Ex. IHO-II-16). However, the IDEA due process requirements impose “minimal pleading standards.” 43 The IDEA requires parents to plead a description of the nature of the claim, including facts relating to the claim, 44 but nowhere does it require parents to plead additional facts in anticipation of a school district raising a defense. As such, I find Parents are not precluded from arguing for the applicability of the tolling exception after the District raised the statute of limitations defense for the first time at the DPH.
The IDEA does not define the term “misrepresentation.” Some courts, however, have construed its meaning narrowly and require the parents to show an “intentional” or “knowing” misrepresentation by the school district that it has resolved the problem forming the basis of the complaint. 45 In this case, I find that Parents fell short of showing that the District’s representations that Student was making progress at the IEP meetings were intentional or knowing. I find certain representations made by the District to be uninformed or misinformed. For example, when DOE Teacher testified about the January 5, 2021 meeting, DOE Teacher stated that they did not believe a neuropsychological evaluation was necessary because it was their belief that Student had been evaluated the year before (Tr. 60). Such belief was contradicted by the record, as discussed above, which shows that Student’s last
43 Schaffer v. Weast, 546 U.S. 49, 44 IDELR 150 (2005). 44 20 U.S.C. § 1415(b)(7)(A)(ii); 34 C.F.R. § 300.508(b). 45 See, e.g. Ms. S. v. Regional Sch. Unit 72, 65 IDELR 140 (D.C. Maine 2015), 916 F.3d 41, 73 IDELR 223 (1st Cir. 2019) (suggesting that the parent would need to show an intentional misrepresentation by the school district); D.K. v. Abington Sch. Dist., 696 F. 3d 233, 59 IDELR 271 (3d Cir. 2012) (holding that, in order to be excused from the statute of limitations period under misrepresentation exception, parents must show that the school district "intentionally misled them or knowingly deceived them regarding their child's progress"); Coleman v. Pottstown Sch. Dist., 983 F. Supp. 2d 543, 62 IDELR
105 (E.D. Pa. 2013), aff'd, 581 F. App'x 141, 64 IDELR 33 (3d Cir. 2014) (unpublished) (same). Education Evaluation was conducted in 2016. Similarly, Parents alleged that when they made a request to the school guidance counselor for Student to be evaluated in the Fall of 2021, the counselor appeared “puzzled” or “confused” and stated that Student did not need an evaluation (Ex. P-A-5, P-TT-6). While these statements or actions might show a lack of understanding or information on the part of these educators about Student’s present levels of performance or needs, which is not surprising given the lack of comprehensive evaluation since 2012, I do not find that they rose to a level of an intentional or knowing misrepresentation. As such, I find that the first tolling exception – i.e. specific misrepresentation – would not have applied.
However, the second tolling exception – that the District withheld notice of procedural safeguards - is applicable. As there is no evidence that the District had provided the requisite procedural handbook to Parents each year during the 2015-2016 through the 2020-2021 SYs. I find Parent 1’s testimony that they did not understand that they had the right to challenge the District’s action until informed by a friend in the Fall of 2021 to be uncontroverted. As such, I find that the withholding of procedural safeguards had the impact of causing Parents not to file a due process complaint.
Therefore, I find that Parents knew and should have known of the alleged action that formed the basis of the DPC in the Fall of 2021. However, even if the KOSHK date had been determined to be earlier, the fact that the District failed to present any evidence for any of the SYs at issue to rebut Parents’ claims that they did not know about their procedural rights would have tolled the statute of limitations. As such, Parents’ claims in the DPC relating to the 2015-2016 through 2020-2021 SYs are timely.
[II] Denial of a FAPE [Prong I]:
The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able 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.” [46]
2015-2016, 2016-2017, 2017-2018, 2018-2019, 2019-2020 and 2020-2021 SYs
District’s Representative asserted the statute of limitations defense for the first time at the DPH and made a motion to dismiss the claims relating to the 2015-2016 through the 2020-2021 SYs (Tr. 9-10). Other than arguing that the claims for these SYs should be time-barred, the District did not introduce any documents or call any witnesses relating to the claims for these SYs. In the event that the District did not prevail on its motion to dismiss, as is the case here, the District risked not having sufficient evidence to meet its burden that it provided a FAPE for the 2015-2016 through 2020-2021 SYs.
Although the DOE has not conceded that it failed to provide Student with a FAPE for the SYs in issue, it elected not to call any witnesses to testify to offer any explanation let alone a “cogent and responsive” one. As such, I have sought to determine if the programs provided for those SYs were reasonably calculated to enable Student to make progress appropriate in light of Student’s circumstances, based on a preponderance of the evidence which includes all the documents on record as well as the testimonies of Parents’ witnesses. In making this determination, I am mindful that school districts are not required to “maximize” the potential of students with disabilities,[47] but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement’” (my emphasis).[48] The IEPs must have been “reasonably calculated to provide some ‘meaningful’ benefit.” [49]
Parents assert that the DOE failed to appropriately evaluate Student in all of Student’s areas of suspected disability for the 2015-2016 through the 2022-2023 SYs, and that without evaluative data to form the basis of the IEPs, the District failed to provide FAPE for all the SYs at issue (Ex. P-A). In addition, Parents’ other claims included: inappropriate placement, reduction of SLT services in January 2018, and reduction and eventual termination of OT services (Ex. P-A; Ex. IHO-III-13).
It is clear from the lengthy record50 that Student has been struggling with learning and the ability to progress since Student’s earliest school years. In 2012, prior to entering Kindergarten, Student was diagnosed with Attention-Deficit Hyperactivity Disorder (“ADHD”), dyslexia, and poor graphomotor skills (Ex. P-E-1, P-F-1). Student was then referred to the District for an initial evaluation (Ex. P-F-1). Between June and September of 2012, the District conducted a Social History, a Speech Language Evaluation, and a Psychoeducational Evaluation (Ex. P-A-2 and P-E through P-G; Tr. 11). Student was assessed to have an IQ measured at 78, which was characterized as “moderately below average” (Ex. P-G-2). Student was diagnosed with a severe receptive language deficit and moderate expressive language deficits (Ex. P-F-2-3) and “very limited” reading and math skills (Ex. P-
50 Parents claim that over the course of the relevant SYs, the District failed to provide Parents with copies of some of the evaluations and assessments at the time they were conducted. Parents requested Student’s full educational file from the District in the Fall of 2021 (Ex. P-LL). Parents assert that there appears to be IEPs and evaluations not produced to the Parents. Without the District presenting any contrary evidence, I base my findings on what has been introduced to the record by Parents as well as Parents’ recollection of events over the course of the relevant SYs. G-4). At the time, the CSE classified Student under “other health impairment” and the District provided IESP services at home while Student attended parochial schools in the 2012-2013 SY (kindergarten), 2013-2014 SY (repeating kindergarten), and 2014-2015 SY (first grade) (Ex. P-TT-2). Parents also assert that the District failed to conduct a triennial revaluation in 2015 (Ex. P-A, P-TT, and IHO-III-3).
I find that the evidence in the record overwhelmingly supports Parents’ claims.
During the 2015-2016 SY (second grade), Student’s teacher at the parochial school was concerned that Student was far below grade level and that Student “really needs one to one instruction all day,” and referred Student to the District for a reevaluation (Ex. P-K-1, P-TT-2-3). The record shows that the District began conducting an evaluation of Student, as indicated by teacher reports (Ex. P-J, P-K and P-TT-3). The Teacher Report states that, among other things, Student was “far below second grade level” and did not recognize sight words, did not use decoding skills, could not recognize written vocabulary words, often read numbers backward, could not write a sentence without help, had poor handwriting, and spelling skills, had a short attention span, poor retention, poor organization skills, and was distractible and impulsive (Ex. P-K). An Educational Evaluation appeared to have been initiated in January 2016, but it was not completed until at least December 2016 (Ex. P-L).
For the 2016-2017 SY (third grade), the District placed Student in an ICT classroom setting at a public school (Ex. P-TT-2-3 and P-L-2). Parent 1 testified that Student did not respond well to this classroom setting, “seemed out of place there,” and “was going through the motions every day” but “was not learning anything” (Ex. P-TT-3). Student’s third-grade teacher referred Student for a reevaluation (Ex. P-L and P-TT-3). The Educational Evaluation that was begun in January 2016 appeared to have been finalized in December 2016 or January 2017 (Ex. P-L). The evaluation revealed that Student had an IQ of 50, which was categorized as “extremely low range” (Ex. PL-7), and that Student’s reading and math skills fell within the low range and very low range, respectively, with grade equivalents in the kindergarten to first grade range (Ex. P-L-2, 5-6). The evaluation did not address Student’s drop in IQ scores since 2012, include any diagnostic findings or make any educational recommendations (Ex. P-L-8). The record does not show whether or how this Educational Evaluation was used as a basis for any upcoming IEP meetings or CSE recommendations. The record also does not show that the District conducted any S-L evaluation or OT evaluation at the time, areas in which Student had demonstrated challenges (Appendix B; Ex. IHO-III-3).
Parent 1 testified that at some point during Student’s third grade, the District transferred Student to a District 75 12:1+1 classroom (Ex. P-TT-3). Parents were told that Student needed more support, and were not given any other options to consider (Ex. P-TT-3). A student progress report from December 2017 shows Student had a classification of “intellectual disability” and was deemed an alternatively assessed student (Ex. P-M-1). Since the 2016-2017 SY until he was placed in Private School in May 2022, Student was receiving essentially the same recommended program, namely, District 75 12:1+1 classroom, 12-month SY, alternative assessment track, and related services (Ex. P-M, P-O, P-P, P-Q, P-R, and DOE-2).
The January 2018 IEP shows that in the 2016-2017 SY, when Student was a third grader transferring to District 75, Student participated in the fourth grader New York State Alternative Assessment (“NYSAA”) (Ex. P-O1 and P-TT-5). Unbeknownst to Parents at the time, Student had skipped fourth grade despite Student’s academic challenges (Ex. P-TT-4).[51] Thus, in the 2017-2018 SY, Student was considered to be a fifth grader (Ex. P-P-1); in 2018-2019 SY, a sixth grader (Ex. P-Q-1 and P-R-1); in 2019-2020 SY, a seventh grader; in 2020-2021 SY, an eighth grader (Ex. P-R-3); in 2021-2022 SY, a ninth grader; and in 2022-2023 SY, a tenth grader (Ex. P-TT-4 and P-A-2). There was no evidence on record that would have justified the DOE to fast-track or advance Student, given Student’s learning challenges, to a higher grade.
The record reflects no other comprehensive evaluations with cognitive testing since 2016. There is no evidence of any OT evaluation in the record, although the Student was diagnosed in 2012 with poor graphomotor skills (Ex. P-F-1) and had been receiving OT services at least as far back as the 2017-2018 SY (Ex. P-O). When Student’s OT services were reduced from two weekly individual 30-minute sessions to one weekly 30-minute session in a group of 2 in the 2018-2019 SY (Ex. P-P-5) and ultimately terminated in the 2019-2020 SY (Ex. P-Q-5), the changes were made without the support of any evaluation or data (Ex. P-P-5 and P-Q-5).
The only S-L evaluation in the record was conducted on July 14, 2012 (Ex. P-F), and the record reflects Student was first recommended for SLT services in 2012 and was receiving such services from at least the 2016-2017 SY through the 2021-2022 SYs (Ex. P-L-1, P-M-2, P-O, P-R and DOE-2). Student’s SLT services were reduced in the January 18, 2018 IEP from three weekly individual 30-minute sessions to two weekly 30-minute sessions in a group of three (Ex. P-O-3). The January 18, 2018 IEP referenced several assessments made for SLT (i.e. Evaluating Acquired Skills in Communication – Third Edition; Receptive II Inventory and components of the Comprehensive Assessment of Spoken Language, and components of the Test of Problem Solving), and stated that Student “has made progress in [Student’s] ability to maintain interactions with adults and peers by asking questions and commenting,” but otherwise did not elaborate on the basis for the reduction of services (Ex. P-O-3). In fact, these assessments revealed that Student “demonstrated difficulty retelling an orally presented story incorporating character, setting, character reactions, initiating event, a sequence of events, and a conclusion,” and “demonstrated difficulty in predicting what would happen next, determining possible outcomes and making inferences” (Ex. P-O-2), and the progress reports for the two SLT annual goals showed “little progress made,” SLT services were nevertheless reduced (Ex. P-O-4).
From the 2017-2018 SY through the 2021-2022 SYs, the record shows that District administered certain assessments to determine Student’s present levels of performance and needs. For the January 18, 2018 IEP, Student was assessed with the Assessment of Basic Language and Learning Skills (“ABLLS”) and was deemed to have “emergent skills” for reading and math (Ex. P-O-2). For the 2019-2022 IEPs, Student was tested via the Student Annual Needs Determination Inventory (“SANDI”) Assessments as follows: In 2019, Student was assessed to have “pre-emergent literacy, writing, and math skills”(Ex. P-P-1); In 2020, “pre-emergent skills” for reading, writing and math (Ex. P-Q-1-2); In 2021, “emergent” skills in reading and math (Ex. P-R-1); In 2022, Student’s SANDI test scores were identical to the test scores reflected in the 2021 IEP in reading, writing, and math, and Student was deemed to be functioning at a first grade level in both reading and math (Ex. DOE-2-2).
Parents asserted that at every IEP meeting, Parents were told that Student was making progress, while the CSE team ignored evidence of Student’s regression (Ex. P-TT-4). For example, at the January 7, 2019 IEP meeting, despite Student having a “pre-emergent” literacy and math skills, the CSE team described Student as “making progress” and predicted Student “will meet [Student’s] annual goals within one year” (Ex. P-P-1 and 2). Similarly, the January 7, 2020 IEP stated that Student still displayed “pre-emergent” literacy, reading, writing, and math skills (Ex. P-Q-1, 2). Student was still working on decoding CVC words, adding and subtracting and creating bar graphs, just as Student had been two years earlier (compare Ex. P-Q-2 and P-O-2). Despite this stagnation, the IEP again highlighted Student’s work in terms of “progress” and again projected that Student would meet Student’s annual goals within one year (Ex. P-Q-2).
Under IDEA, a reevaluation of a student with disability must occur at least once every three years.[52] In conducting the evaluation, the school district must use a variety of tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, to determine the content of the student's IEP.[53] The evaluation must be sufficiently comprehensive to identify all of the child's special education and related services needs, whether or not commonly linked to the disability category. [54]
Despite Student’s lack of meaningful academic progress, the record shows that the District failed to fully and comprehensively evaluated Student in every area of Student’s suspected disability. Although the District conducted an Educational Evaluation in 2016, the evaluation took almost a year to complete. And despite the results curiously demonstrating a drop in Student’s IQ from 78 in 2012 to 50 in 2016 and “far below age levels” reading and math skills, the evaluation presented no diagnostic or educational recommendations. There was also no evaluations for OT and SLT. As such, I find that the District failed to conduct a comprehensive re-evaluation in 2015 (3 years since the initial evaluation in 2012) and in every SY since then.
Without comprehensive and up-to-date evaluative data to inform its action, the District could not in good faith determine Student’s present levels of performance and what Student was capable of achieving in the classroom, sufficiently identify all of Student’s special education and related services needs, create specific measurable goals, and recommend appropriate type and level of services. Without evaluations assessing all of Student’s areas of suspected disability, the District deprived Parents of their ability to participate meaningfully in the development of Student’s educational programs. As such, the IEPs developed in every SY since 2015-2016 could not have been reasonably calculated to enable Student to make meaningful educational progress.
In fact, Student has made no meaningful progress since he was initially evaluated in 2012. Despite Student’s persistent lack of progress, the District has made little effort 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.”[55] For every relevant SY, the District continued to offer more of the same ineffective program, and failed to explore different settings or intensity of services. In fact, without the support of evaluative data, the District reduced Student’s SLT services, and reduced and then ultimately terminated Student’s OT services. I therefore find District’s actions over the course of all relevant SYs to be unsupported by any data and especially lacking in light of Student’s circumstances.
It is unsurprising that in the face of such overwhelming evidence that the District chose not to put on a case to prove that the Student was provided with a FAPE for the 2015-2016 through 2020-2021 SYs. Although not the Parents’ obligation in the first place, Parents have presented evidence supporting the conclusion that the District denied Student a FAPE for all the relevant SYs, causing a deprivation of educational benefits and the District has not met its burden in this regard. Under these circumstances, I find there was a denial of a FAPE for the 2015-2016, 2016-2017, 2017-2018, 2018-2019, 2019-2020 and 2020-2021 SYs. 2021-2022 and 2022-23 SYs
The District also did not present any evidence to demonstrate that it has comprehensively reevaluated Student in all areas of suspected disability in the 2021-2022 or 2022-2023 SYs. The January 5, 2021 IEP was developed on the basis of SANDI, independent work samples, and teacher observations (Ex. P-R-1). The February 11, 2022 IEP was developed relying on the same, as well as vocational assessments, parent observations, teacher checklists, counseling observations and speech observations (Ex. DOE-2-2). As with the prior SYs, I also find that without comprehensive and current evaluative data to form the basis of the District’s recommendations, the January 5, 2021 and the February 11, 2022 IEPs could not have been reasonably calculated to enable Student to make meaningful educational progress.
Since the District sought to put on a Prong 1 case with respect to these two SYs, I nevertheless address the evidence put forth by both parties related thereto.
For the 2021-2022 SY, the District submitted the January 5, 2021 IEP, Prior Written Notice, and Student Progress Report into evidence and called DOE Teacher to testify specifically to the January 5, 2021 IEP meeting (Ex. P-R, DOE-3, and DOE-5). The District argues that the January 5, 2021 IEP provided Student with a FAPE, in that the SANDI Assessments and progress reports gave the IEP an accurate picture of Student’s academic level and current challenges, the recommended services were appropriate and Student was on par with Student’s peers in the class (Ex. IHO-II-19, P-R and DOE-5; Tr. 56).
I find DOE Teacher’s testimony to be general, conclusory, and inaccurate at times. DOE Teacher testified generally to how IEPs are developed, and how goals are developed and progress is monitored, but provided no specific information regarding Student’s goals (Tr. 53-55). DOE Teacher had just become Student’s special education teacher in remote instruction in January 2021 when DOE Teacher participated in the January 5, 2021 meeting (Tr. 52). Thus, I find that DOE Teacher had no meaningful experience working with Student at the time of the meeting. In fact, DOE Teacher testified “I believe there was an evaluation done prior year. And so, I don’t think that an evaluation would have been necessary that year, as well as the fact that…data didn’t show a reason for a psychological evaluation at the time” (Tr. 60). When asked about Student’s inability to write, DOE Teacher became defensive and stated “I would suggest if you need an answer to that question to speak with an OT and occupational therapist” (Tr. 64-65).
DOE Teacher’s belief that Student had been evaluated in the SY prior to the January 5, 2021 IEP meeting was erroneous. As discussed above, the record does not demonstrate that District has fully evaluated Student since
2012. DOE Teacher testified that Student could not write, but they believed Student was receiving OT at the time of the January 5, 2021 IEP meeting (Tr. 64-65). However, the record reflects that Student’s OT had been terminated in January 2020 due to the CSE’s observation that Student’s “handwriting and fine motor skills have improved greatly” (Ex. P-Q-5). Despite acknowledging Student’s inability to write, the District failed to assess Student’s needs for OT services or otherwise address this need in the IEP (Ex. P-R). DOE Teacher’s statements reflect her lack of knowledge about Student’s unique circumstances. Despite acknowledging that Student “wasn’t able to actually write,” “wasn’t able to read words on the page,” was reading at “kindergarten equivalent,” and “wasn’t able to perform the operation within [Math] word problems” (Tr. 54 and 59), such “data” did not raise sufficient concerns for the District to evaluate or otherwise better understand why Student remained at more of the same reading and math levels and was still unable to write over the course of Student’s entire academic career. Despite the reality of Student’s lagging performance, DOE Teacher still contended that Student was meeting Student’s IEP goals “in the sense that we were in the…progress monitoring…We anticipated [Student would meet the IEP goals] within one year” (Tr. 67).
In addition to the claims previously set forth, Parents additionally assert that the District denied Student with a FAPE by failing to deliver an appropriate remote program during the COVID pandemic from March 2020 through the end of the 2020-2021 SY. Parent 1 testified that the remote learning program was a “disaster” (Ex. P-TT-5). Student was not provided with equipment “for a long time,” and when Student was finally provided with an iPad, Student had trouble working with it. Student was often unable to establish a connection to the class, which was “extremely frustrating” for Student (Ex. P-TT-5). “There was very little live instruction time being provided at all. If [Student] received two hours a day that was a rare exception, generally it was more like an hour. [Student] also found it very difficult to engage in the remote instruction” (Ex. TT-5). Parent 1 testified that Student expressed that remote learning was “hard for [Student] because [Student] is a visual person because of [Student’s] disabilities…[Student] didn’t have enough support with the online classroom. It just wasn’t enough for [Student]” (Tr. 104). Parents believed Student “regressed significantly during that time” (Ex. P-TT-5). When Parents raised their concerns at the January 5, 2021 IEP meeting, Parents were informed by the DOE staff that all students were struggling with remote learning (Tr. 109). The CSE team did not offer any suggestions or services that could address Student’s regression (Tr. 109).
Confronted with Parents’ concerns that Student was not learning, and in fact, was regressing, the District had the responsibility but failed to respond in any meaningful way, such as evaluating Student’s then-current needs or exploring additional services that could help Student engage in learning. The mere fact that Student’s performance might have been “on par with [Student’s] peers” (Tr. 56) or that other students were also struggling during remote instruction did not absolve the District’s obligation to provide this Student with an education that was reasonably calculated to enable Student to make progress appropriate in light of Student’s unique circumstances. The CSE’s failure to address Student’s regression during the remote learning period is itself a denial of a FAPE.
For the 2022-2023 SY, the District submitted the February 11, 2022 IEP, Prior Written Notice, and Student Progress Report (Ex. DOE-2, DOE-4 and DOE-6) as evidence that District provided a FAPE to Student.
Parents additionally assert that when Student began ninth grade in-person in the Fall of 2021, in addition to having regressed during remote learning, Student began to exhibit negative behavior trying to fit in with new peers (Ex. P-TT-5). Parent 1 testified that they met with the guidance counselor regarding Parents’ concerns about Student and asked for Student to be evaluated, but was told that Student “already has an IEP. I don’t know what other evaluations [Student] would need” (Ex. P-TT-5; Tr. 110).
The February 11, 2022 IEP shows that Student’s September 2021 SANDI scores in reading, writing, math, and communication were identical to those taken in September 2020 (Compare Ex. P-R-1 to DOE-2-2), indicating no progress at all. The IEP also notes that Student “will need to be retaught…reading comprehension and making sentences skills and computation skills” (Ex. DOE-2-4). Yet it still optimistically recorded that “it is projected that [Student] will meet [Student’s] annual goals with[in] one year” (Ex. DOE-2-4) and Student was recommended to remain in the same educational setting as the previous years since the 2016-2017 SY (Ex. DOE-2-7, P-O, P-P, P-Q, and P-R).
Three months after the filing of the DPC, the District sent a Prior Written Notice dated February 28, 2023 to Parents, proposing to conduct a reevaluation of Student (Ex. P-SS-1). Remarkably, even then, the District determined that only a classroom observation and a social history update would be necessary to determine Student’s present levels of performance and needs (Ex. P-SS-1).
The documentary evidence submitted by the District was lacking and only confirmed Parents’ account that the January 5, 2021 and February 11, 2022 IEPs relied on nothing more than SANDI assessments, parent and teacher observations, work samples, and/or teacher checklists (Ex. P-R-1 and DOE-2-2). The IEPs, on their face, demonstrate little effort on the District’s part to address Student’s lack of progress, as they continued to offer essentially the same placement program despite Parents’ expressed concerns and Student’s ongoing struggles with academics and handwriting. In addition, DOE Teacher’s general and at times inaccurate testimony about the January 5, 2021 meeting only demonstrates how uninformed they were about Student’s unique circumstances. In fact, even as DOE Teacher acknowledged that Student could not write, the January 5, 2021 and February 11, 2022 failed to address Student’s challenges by assessing Student or reinstating OT services. As such, the District’s evidence fails to demonstrate that it provided a FAPE to Student for the 2021-2022 and 2022-2023 SYs.
Although not the Parents’ obligation in the first place, I find Parents have presented clear and uncontroverted evidence that the District failed to provide a FAPE. In the face of overwhelming evidence of Student’s persistent lack of progress, the District’s ongoing failure to comprehensively reevaluate Student in all areas related to Student’s disability, actual and suspected, and its continued failure to address Student’s needs, deprived Student of a FAPE and resulted in Student being denied educational benefits.
Under these circumstances, I find that there was a denial of a FAPE for the 2021-2022 and 2022-2023 SYs as well and the District did not discharge its burden in this regard.
[III] Appropriate Remedies: Tuition Reimbursement/Funding
Parent is seeking tuition funding for a portion of the 2021-22 SY and for the whole 12-month 2022-2023 SY (Ex. P-A-7; Tr. 8-9). Given my findings above for the denial of a FAPE, Parents have accordingly met the first criterion of the three-part test set out in the Burlington/Carter case for tuition reimbursement/funding (i.e., Prong I).
Prong II - Appropriateness of the Parents’ Placement:
A private school placement must be "proper under the Act."[56] This means that the private school must offer an educational program which met the student's special education needs.[57] Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." [58] Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" [59]
To meet this burden, parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student.” [60] The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[61] The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.” [62]
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially 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. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP. [63]
Evidence on Record:
Private School is a school primarily serving students on the Autism Spectrum between the ages of 5 and 21 through specialized programming tailored to allow students to access learning (Ex. P-UU-2-3). Private School offers highly structured and small classrooms with a 6:1:1 ratio, up to an 8:1:1 ratio (Ex. P-UU-4). Private School offers related services of counseling, physical therapy, occupational therapy, and speech and language therapy, as we as parent training (Ex. P-UU-4).
Private School has two core programs: the first one is tailored for students who have cognitive impairments with a focus on functional academics and teaching students life skills and activities of daily living (“ADL”) skills; the second one is designed for students who are of average to above average intellectual ability and cognitive potential (Ex. P-UU-3). In addition, Private School has created a blended classroom placement which carefully groups selected students from the two core programs – namely, students who may have average IQs but may have specific deficits that make learning challenging and students with lower IQs but better functional, social, and ADL skills – to promote cross-learning to develop stronger social and academic skills (Ex. P-UU-3-4). Student has been placed in such blended program (Ex. P-UU-9).
The majority of Private School’s teachers are New York State licensed or hold provisional certificates and are progressing to the permanent certificate or hold a permanent certificate. Private School’s speech language therapists, occupational therapists, physical therapists, and art therapists are appropriately licensed (Ex. P-UU-4). All staff at Private School receive training in Applied Behavioral Analysis (“ABA”), ASD-related disorders, Collaborative Problem Solving (“CPS”) and additional interventions methods (Ex. P-UU-5). Other staff include a Board-Certified Behavior Analyst (“BCBA”) who trains staff in ABA. Currently, Private School has four registered behavioral technicians (“RBTs”) who are certified to deliver ABA programs and are assigned to classrooms to train classroom staff while instruction is occurring (Ex. P-UU-6).
Student was admitted to Private School in May 2022 after assessment by the admissions team and the therapeutic team consisting of the principal, the supervising assistant principal, the BCBA, and related service providers (Tr. 77-79). The admissions process consisted of a document review, parent tour and interview with the admissions team, student tour and observation in a classroom, and initial screenings by the related service providers, after which the admissions team determined they could offer Student an appropriate placement in a class with peers matching Student’s age, academic, and social-emotional functioning (Ex. P-UU-8; Tr. 77-79).
Student was placed in the blended program, i.e. meaning Student is higher functioning in terms of social skills and can benefit from learning alongside those students who have stronger intellectual abilities (Ex. P-UU-3, 9; Tr. 79). Student requires a small, structured, non-traditional classroom environment, where Student can receive instructional supports using the principles of ABA to facilitate skill acquisition (Ex. P-UU-10 and 12). Student is currently in an 8:1:1 classroom, receiving SLT individually twice a week, OT once a week individually and once per week in a group of two, and counseling once a week in a group of three (Ex. P-UU-9).
Student received a Functional Behavioral Analysis (Ex. P-FF). While Student is not deemed to be in need of a Behavioral Intervention Plan, Private School developed and implemented an Action Plan to implement positive and proactive strategies to help Student engaged in learning (Ex. P-UU-10 and P-HH). Such proactive strategies include, among other things, positive reinforcement; a structured, consistent environment; a daily review of Student’s visual schedule, rules, and behavior expectations; individualized instruction and modified classwork; 1:1 support; multisensory approach to learning; daily social skills training; modeling of positive coping techniques; and the use of ABA and CPS methodologies (Ex. P-UU-10 and P-HH).
Private School Principal testified that Student has responded positively to the use of ABA methodologies such as frequent breaks, structure, and positive reinforcement (Ex. P-UU-10). Student’s frustration level has decreased through the use of CPS and the Social Thinking curriculum (Ex. P-UU-10; Tr. 76).
Student’s curriculum is individualized. Student is receiving math and reading at Student’s functional grade level, but Student’s social skills, vocational skills, and daily socialization are addressed at a high school level (Tr. 75). Student is significantly behind same-aged peers and initially presented with early literacy and math skills (Ex. P-UU-10). Currently, Student was assessed to be performing on a first-grade level in both math and reading (Ex. P-UU-10), and has made meaningful progress that Student’s reading goals are now targeting beginning second grade level (Ex. P-UU-11).
Private School is focusing on building Student’s foundation (Tr. 81), increasing Student’s skill levels gradually and providing Student with strategies to increase Student’s understanding of written passages and ability to work through math problems (Ex. P-UU-11). Student’s progress is monitored by teachers daily, formal assessments such as Wonders Reading Program and Go Math Diagnostic three times a year, and progress reports are completed quarterly (Tr. 81). The feedback is used to create individualized goals and to ensure that progress is made, and that Private School does not skip ahead to work that Student is not yet able to do (Tr. 81-82). In addition, Private School conducts an individualized team meeting to discuss Student’s progress every month (Tr. 88).
Student’s SLT sessions target Student’s receptive, expressive and pragmatic language skills using ABA and CPS strategies. Student has made “steady progress in all targeted goals that have been implemented,” such as answering “wh” questions (Ex. P-UU-11 and P-NN-2). Student’s OT sessions addressed Student’s initial goals relating to Student’s deficits in visual perception, visuomotor, scanning, and spatial relationship skills, organizational, and executive functioning skills, and following direction (Ex. P-UU-12). For the current SY, sessions have focused on visual perceptual skills, handwriting, executive functioning skills, and computer skills. Student has been making significant progress towards Student’s current goals (Ex. P-UU-12). Student’s writing skills have improved tremendously and Student is now able to write a two-sentence response to a prompt, and is learning to write in cursive and to type (Ex. P-OO-2 and P-MM-2; Tr. 105).
In addition, Student has made improvement in counseling sessions utilizing ABA, CPS, and Social Thinking techniques (Ex. P-UU). Student benefits from the use of CPS when working through challenging situations, and has improved in interaction with peers, self-awareness, and impulsivity (Ex. P-UU-12). Furthermore, Student is doing “very well” in vocational activities. Student is currently working at Applebee’s offsite and in the school kitchen onsite (Ex. P-UU-12).
Private School Principal testified that at the Private School, Student’s “unique special education needs are being addressed by the various aspects of the program developed…[Student] is getting significant 1:1 instruction and attention to address [Student’s] needs in all domains and has demonstrated steady progress with all [of Student’s] goals” (Ex. P-UU-13). Student has made “tremendous progress” in reading and math since entering Private School in May 2022 (Tr. 75). Despite Student’s long history of stagnation or regression prior to May 2022, Private School Principal opined that Student has the capacity to make academic progress if Student is provided with the right supports: “that is in my professional opinion, if [Student is] provided with one-on-one attention and re-teaching, ABA methodologies. Also, the curriculum needs to be broken down, and it has to be differentiated for [Student]…So, it’s that extra time that is spent with [Student] and acquired task area within the classroom, that will make [Student] be successful” (Tr. 75).
Private School Principal further testified that Student has made “tremendous progress,” not only in academic skills, but also with respect to Student’s frustration levels and social skills (Tr. 75-76).
[Student] used to shut down and break down whenever it came to…reading within the classroom.
And now, we have given [Student] the skills and [Student] has built a positive rapport in the individualized attention…[W]e are seeing that [Student is] able to break down each sentence phonetically and read a sentence out loud. [Student’s] frustration level, so socially…has definitely… decreased…[T]he things that he used to not be able to do, we use collaborative problem solving, and we work with him with our social thinking curriculum to cope and identify why he is getting upset….[Student used to] get embarrassed when [Student] was unable to read aloud or do the Mathematics…[W]e have given [Student] those skills, A, not to get embarrassed, and then B, being able to address those deficits and work within the classroom.
(Tr. 76). Private School Principal’s testimony regarding Student’s progress is corroborated by Parent 1’s testimony:
We could not be more pleased with [Student’s] response to the educational program at [Private School]. [Student] is finally beginning to improve in all areas. [Student] has become more social and communicative. [Student] has improved in [Student’s] ability to follow directions. [Student] has been pushing [self] to read more, and more often, and to push through and sound out words that [Student] finds difficult to read. [Student’s] reading comprehension has greatly improved, even in things as simple as understanding a text message from us, which [Student] used to find difficult. [Student] has become more responsible at home and is helping out more, has lost [the] fear of handling and managing money. [Student’s] improvement has also translated over to other areas of [Student’s] life.
For example, we have been bringing [Student] to karate classes for four years, but [Student] did not make much progress at all until this year, when [Student] was able to go from a white belt to an orange belt and even won two medals. [Student’s] handwriting—while still not great—is starting to improve now that occupational therapy has resumed.
(Ex. P-TT-8). Parent 1 further testified to Student’s “tremendous progress” at Private School. Private School “sees so much potential for [Student].” Parent 1 noted an increase in Student’s confidence level, that Student is motivated to constantly push self, to “break the barriers” to “function in this world,” and to become more independent. Student’s experience at Private School has given Student hope for a future working in an office or in a school to help people with physical disabilities and has taught Student to have more compassion. Student is “talking about going to college all the time” (Tr. 111-112).
I find that Student’s program at the Private School is specifically designed to cater to the specific needs of Student, providing Student with the 1:1+ intensive program, with a small class size with a low student-to-teacher ratio, individualized attention, individualized curriculum, and small group instruction for behavioral and instructional needs. Private School’s learning methodologies and support such as ABA and CPS address Student’s learning and attention challenges by prompting, redirecting, and encouraging Student to stay on task and engaged. Private School’s regular and consistent monitoring of Student’s progress ensures that Student’s goals are adjusted throughout the SY to allow Student to make progress at Student’s own pace and has enabled him to gain the pre-requisite skills needed for higher-level academics.
The detailed testimonies presented by Parent 1 and Private School Principal, and Parents’ documentary evidence (Ex’s. P-U through P-PP, P-TT, P-UU, and P-WW through P-YY) establish that the Private School is appropriate and is providing Student with educational instruction that is specifically designed to meet Student’s unique special education needs, supported by such services that are necessary to permit Student to benefit from instruction, for the 2021-2022 and 2022-2023 SYs. I find that, based on the Student’s attendance at the Private School since Student’s enrollment, as testified to by Parent 1, and Private School Principal, Student is making academic and social-emotional progress and will likely continue to do so for the remainder of the 2022-2023 SY. The evidence on record, which was not disputed through any testimony, supports the Parents’ assertion that the Private School is an appropriate placement for Student.
Parents have therefore met the second criterion of the three-part test set out in the Burlington/Carter case for tuition funding/reimbursement.
Prong III - Equitable Factors:
Equitable considerations are relevant to fashioning relief under the IDEA. [64]
The IDEA also provides that reimbursement/funding may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. [65]
The IDEA allows that reimbursement/funding may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” [66]
This statutory provision “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools.” [67]
Although a reduction in reimbursement/funding is discretionary, courts have upheld the denial of reimbursement/funding in cases where it was shown that parents failed to comply with this statutory provision. [68]
I find that Parents have cooperated with the District at all times. The record shows that Parents attended all IEP meetings (Ex. P-O, P-P, P-Q, P-R, and DOE-2) and in good faith attempted to work with the District to address Parents’ concerns before exploring alternative options.
The record reflects that Parents, through Parents’ Representative, notified the CSE by email correspondence dated April 21, 2022 and June 24, 2022, of Parents’ intention to enroll Student at Private School and seek public funding for the 2021-2022 and 2022-2023 SYs, respectively (Ex. P-C and P-B). I find that in these letters Parents offered detailed information to put the District on notice about Parents’ concerns regarding the CSE’s failure to make an appropriate program and placement recommendation and informed of Parents’ intentions, giving the District an opportunity to cure any deficiencies, which is the intent underlying the ten-day notice requirement. [69]
Amounts Claimed:
Parents confirmed they have not made any tuition payment to Private School for either the 2021-2022 or 2022-2023 SY (Tr. 115; Ex. P-TT-8-9). Student’s tuition rate at the Private School was $16,800 for the portion of the 2021-2022 SY starting on May 5, 2022, and is $110,500 for the 12-month 2022-2023 SY (Ex. P-V and P-AA). These amounts cover Student’s base tuition and all the related services for the respective years (Ex. P-V and PAA).
Parent 1 also testified regarding Parents’ employment and ability to pay the tuition owing (Ex. P-TT-8-9), as well as an obligation to pay the amount owed if funding is not awarded, which accords with the terms of the Parental Guarantees of Tuition (Ex. P-V-2 and P-AA-2). I find that a case for direct funding based upon need has been made out. This evidence was not contested.
I also do not find any factors applicable to warrant a reduction of the claim for tuition funding based upon equitable factors. No equitable factors were raised by the DOE.
Parents have therefore met the third criterion of the three-part test set out in the Burlington/Carter case for tuition reimbursement/funding. Having met all three criteria of the Burlington/Carter test, Parents are entitled to reimbursement/funding for the cost of Student’s placement at the Private School for the 2021-2022 and 2022-2023 SYs.
Transportation:
Student’s most recent Individualized Education Program (“IEP”) recommends a 12-month school program and door-to-door transportation (Ex. DOE-2-23). The District has not disputed Student’s eligibility to receive transportation services. As such, I find it appropriate to award Student door-to-door transportation to and from Private School for the remainder the 2022-2023 SY.
[IV] Appropriate Remedies: Independent Evaluations
An Independent Educational Evaluation (IEE) is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” [70]
The IDEA and State and Federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation.[71] In Shaffer v. Weast, the Supreme Court explained the role an IEE plays in parental participation and the IDEA’s regulatory scheme as follows: “[an IEE] ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not to left challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” [72]
If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE.[73] A school district can set criteria regarding the IEE, including the qualifications of the examiner, but the district’s criteria must be the same as the criteria it uses for its own evaluations, and the district cannot impose additional conditions or timelines related to the IEE.[74] For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE,[75] nor can it deny an IEE at public expense based solely on financial cost.[76] A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE.[77] Finally, while the school district may “ask for the parent’s reason why he or she objects to the public evaluation,” the district cannot require an explanation or delay providing the IEE until the parent provides an explanation. [78]
A parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need.[79] In D.S., the court stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.” 80 The U.S. Department of Education's Office of Special Education Programs (“OSEP”) has similarly stated that when a parent disagrees with an evaluation because a child was not assessed in a particular area, “the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs.” 81
An IEE may also be requested by an impartial hearing officer “as part of a hearing on a due process complaint.” 82 The Regulations do not provide limitations or guidance about hearing officer requests or directives for IEEs. There are however limitations to an IHO’s authority to order IEEs “‘as part of’ the larger process.” 83
Furthermore, an impartial hearing officer has broad authority to grant any relief such officer deems necessary, under the particular facts and circumstances of each case as supported by the hearing record, to ensure that a child receives the free and appropriate public education to which the child is entitled. 84
The hearing record does not support the conclusion that Parents disagreed with an evaluation obtained by the school district, as contemplated by the State and Federal regulations,[85] as I have already found that the District has failed to meet its obligation to conduct a triennial reevaluation of Student at all times from the 2015-2016 SY forward. There was thus no “evaluation” for Parents to disagree with. While the District appeared to have conducted an evaluation in 2016 (Ex. P-G), albeit not a comprehensive one, Parents did not explicitly argue that they disagree with the 2016 evaluation.
However, I find that an award of independent neuropsychological, speech language, and occupational therapy evaluations under my own authority are amply supported by the facts and circumstances of this case. As already
80 Id. 81 Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016). 82 8 NYCRR § 200.5(g)(2); 8 NYCRR § 200.5(j)(3)(viii); 34 CFR § 300.502(d). 83 Lyons v. Lower Merrion Sch. Dist., 2010 WL 8913276, at *3 (E.D. Pa. Dec. 14, 2010). See also S. Kingstown Sch. Comm. v. Joanna S., 2014 WL 197859, at *9 n.9 (D.R.I. Jan. 14, 2014), where the opinion that the regulation empowers hearing officers to solicit independent expert opinions was acknowledged, but disagreement was expressed that the regulation gives an IHO "the inherent power to make up remedies out of whole cloth", aff'd, 773 F.3d 344 (1st Cir. 2014) (cited in Application of a Student with a Disability, Appeal No. 21-021). 84 See Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359,556 IDELR 389 (1985) (IDEA empowers courts [and hearing officers] with the broad authority to fashion appropriate relief, considering equitable factors, which will effectuate the purposes of IDEA); Forest Grove Sch. Dist. v. TA., 557 U.S. 230, 52 IDELR 151, n. 11 (2009); Cocores v. Portsmouth Sch. Dist., 18 IDELR 461 (D.N.H. 1991) (finding that a hearing officer's ability to award relief must be coextensive with that of the court); Letter to Kohn, 17 EHLR 522 (OSEP 1991) ("Although Part B does not address the specific remedies an impartial hearing officer may order upon a finding that a child has been denied FAPE, OSEP's position is that, based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary, inclusive of compensatory education, to ensure that a child receives the FAPE to which he/she is entitled"). addressed above, the District’s failure to conduct any comprehensive evaluation of Student since 2012 resulted in a denial of FAPE for every single school year since the 2015-2016 SY. A comprehensive evaluation of Student in all areas of Student’s disability, actual or suspected, is necessary to remedy the denial of FAPE. Until such evaluation is completed, the District could not possibly make any informed decision concerning Student’s present levels of performance, capabilities, needs, and appropriate services. Thus, every IEP going forward without such necessary comprehensive evaluative data would be insufficient by default. Additionally, without updated and comprehensive information about the nature and extent of Student’s disability and the services Student needs, Parents would continue to be deprived of meaningful participation in the development of Student’s educational programs.
Despite Student’s documented lack of progress for over a decade, the District appears to show little concern or interest in why this is the case. There has been no attempt to reevaluate Student comprehensively to explain this lack of progress, to understand where Student is currently performing, and what, if anything, could be done to enable Student to make meaningful progress. In fact, Parents’ request to the guidance counselor to evaluate Student in November 2021 was met with puzzlement and dismissed as unnecessary (Ex. P-A-5 and P-TT-6). Notably, on February 28, 2023, more than three months after the filing of the DPC and the District being on notice of Parents’ claims, the District proposed to conduct only a classroom observation and a social history update for Student’s upcoming triennial reevaluation (Ex. P-SS-1). The District’s continued inability to recognize the need to fully evaluate Student in all areas of disability despite the lack of comprehensive data for over a decade only lends support to Parents’ case that IEEs are appropriate.
I find that an independent neuropsychological evaluation is appropriate as it would assess Student’s “cognitive abilities and processes, neurodevelopmental disorders, learning disorders, attention deficits, verbal and visual memory, language abilities and deficits, sensory development and integration, auditory and visual processing, social and emotional issues and executive functioning” (Ex. P-VV). Such comprehensive data would be informative of the nature and extent of Student’s disability and could be relied upon to design an appropriate IEP.
In addition, I find an independent speech-language evaluation to be appropriate. The record reflects that Student was first recommended SLT services in 2012 and continues to receive SLT services presently (Ex. P-L-1, PM-2, P-O, P-R, DOE-2 and P-NN). At Private School, Student continues to require SLT to enhance Student’s receptive, expressive, and pragmatic language skills and is receiving individual SLT sessions two times a week (Ex. P-MM-2). Clearly, speech-language is an area related to Student’s suspected disability where the Student should be appropriately assessed.
Although there is no evidence of any OT evaluation in the record, Student was receiving OT services in the 2017-2018 SY (Ex. P-O), and the services were reduced in the 2018-2019 SY (Ex. P-P) and ultimately terminated in the 2019-2020 SY (Ex. P-Q). Parents assert that the District inappropriately terminated OT in January 2020 without any evaluative data to support its decision and that the District did not provide Parents with accurate information (Ex. P-A-6 and P-TT-10). Parent 1 testified that “At one point [Student] was ‘graduated’ from occupational therapy because [Student] supposedly met [Student’s] handwriting goals, but [Student’s] handwriting was still very bad.” (Ex. P-TT-4). Parents’ claim is corroborated by DOE Teacher who acknowledged that Student could not write during the 2020-2021 SY (Tr. 54). Student is currently receiving OT at Private School twice per week, once individually and once in a group of two, to address: Student’s “poor to fair visual motor skills”; “poor visual perceptual and visual scanning skills”; “poor to fair executive functioning skills”; the need for “moderate to maximal assistance to navigate various computer processes”; and Student’s handwriting (Ex. P-MM). As such, OT is clearly an area related to Student’s disability where Student should be appropriately assessed.
The District did not present any argument or evidence challenging Parents’ requests for IEEs. Nor did the District cross-examine Service Provider or Psychologist or otherwise present any evidence challenging the rates of the providers proposed for the evaluations.
The hearing record includes the following proposed rates:
1. Neuropsychological evaluation - $5,500 (Ex. P-VV)
2. S-L evaluation - $1,500 (Tr. 38)
3. OT evaluation - $1,500 (Tr. 38)
Lacking any contradictory evidence or challenge from the DOE, I find that the proposed evaluators’ rates, for the IEEs that are being ordered, are not unreasonable and are commensurate with prevailing market rates.
[V] Appropriate Remedies: Compensatory Services
Parents also seek compensatory education or compensatory services for the District’s failure to provide Student with a FAPE from the 2015-2016 through the 2022-2023 SYs. A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE. [86]
An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation.
A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation).[87] Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits). [88]
Before addressing details of Parents’ relief for compensatory education or services, it is necessary to address whether an appropriate remedy for the denial of a FAPE should consist of both tuition funding and compensatory education or services, which is being sought in the DPC.
The purpose of an award of compensatory education or services is to provide an appropriate remedy for a denial of a FAPE.[89] Some courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement (or funding) for the costs of a unilateral placement is also at issue for the same time period[90] (my emphasis). The Second Circuit Court of Appeals has not directly addressed this question and, generally, appears to have adopted a broader reading of the purposes of compensatory education than the Third Circuit.
Unlike the Third Circuit, the Second Circuit's approach to compensatory education may leave room for unique circumstances where an award of compensatory education may be warranted where, for example, a student is unilaterally placed but the parent's request for tuition reimbursement (funding) is denied under a Burlington/Carter analysis. [91]
It has been stated that where it is “permitted, it would be the rare case where a unilateral placement is deemed to provide instruction specially designed to meet the student's unique needs but the student is also deemed entitled to compensatory education to fill gaps in the services provided by such unilateral placement.” 92
A presently appropriate educational program does not abate the need for compensatory education. 93 However, even if a denial of a FAPE is shown, "[i]t may be conceivable that no compensatory education is required for the denial of a [FAPE] ... either because it would not help or because [the student] has flourished in his current placement.” 94
Generally, an award of additional services should aim to place a student in the position the student would have been in had the district complied with its obligations under the IDEA.[95] The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE.[96] Any awarded compensatory education would need to provide an appropriate remedy for a denial of a FAPE, factoring in the tuition funding claim being awarded.
As the claims and DOE’s failure to provide a FAPE cover multiple SYs, I find that an award of compensatory services is appropriate.
Given the duration of the deprivation and the evidence on record, this case lends itself more appropriately towards the qualitative approach, but also not wholly unconnected to the period of the deprivation (i.e. the quantitative approach). The DOE provided no evidence to substantiate a reduction of any proposed compensatory hours to be awarded.
Parents present a quantitative approach in proposing the compensatory education relief as follows:
92 See Application of a Student with a Disability, Appeal No. 20-151. 93 See, e.g., D. W. v. District of Columbia, 561 F. Supp. 2d 56, 61, 50 IDELR 193 (D.D.C. 2008), citing Flores ex rel. J.F. v. District of Columbia, 437 F. Supp. 2d 22, 46 IDELR 66 (D.D.C. 2006) (holding that even though the LEA had placed the student in an appropriate school and revised the IEP, the student may still be entitled to an award of compensatory education). Cf. Wheaten v. Dist. of Columbia, 55 IDELR 12 (D.D.C. 2010), aff'd, 2010 WL 5372181 (D.C. Cir. 2010) (affirming hearing officer's denial of compensatory education because school district subsequent private school placement remedied denial of a FAPE). 94 Phillips v. District of Columbia, 55 IDELR 101 (D.D.C. 2010), citing Thomas v. District of Columbia, 407 F. Supp. 2d 102,115, 44 IDELR 246 (D.D.C. 2005). See also Gill v. District of Columbia, 55 IDELR 191 (D.D.C. 2010) ("The Court agrees that there may be situations where a student who was denied a FAPE may not be entitled to an award of compensatory education, especially if the services requested, for whatever reason, would not compensate the student for the denial of a FAPE.").
a. 1,200 compensatory hours of home-based tutoring in ELA and math by a special education teacher trained in the ABA methodology. The 1,200 hours represent approximately one hour of services for each day Student was deprived of a FAPE from the beginning of the 2015-2016 SY until Student was unilaterally placed in Private School on May 5, 2022 (Ex. IHO-III-23).[97] Alternatively, the 1,200 hours represent less than 5 hours per day for each school day during which Student did not benefit from a public education during the remote learning period (Ex. P-TT-10).
b. 240 compensatory hours of BCBA supervision of the ABA-trained special education teacher. The number was derived based on Service Provider’s testimony that its ABA-trained special education teachers are supervised by BCBAs for one hour to every five hours of tutoring support (Tr. 100).
c. 87 compensatory hours of OT. The hours were calculated based on the District’s reduction of Student’s OT sessions by one session (30 minutes) each week from January 7, 2019 to January 7, 2020, or 23 hours, plus the elimination of the remaining OT sessions (once weekly 30-minute group session) from January 7, 2020 until May 5, 2022 when Student transferred to Private School, or 64 hours (Ex. IHO-III-24, P-P-5, and P-Q-5).
d. 60 compensatory hours of SLT. The hours represent one hour per week during the period of remote instruction (from March 13, 2020 through June of 2021) (Ex. P-TT-10). Parents assert that because of technical difficulties, Student was receiving SLT “very few and far in between” (Tr. 105).
(Ex. PP-TT-9-10 and IHO-III-23-25).
Additionally, Service Provider testified to the hourly rates it charges for: SLT at $210 per hour; OT at $210 per hour; tutoring support by special education teacher trained in ABA methodology at $140 per hour; and BCBA supervision at $250 per hour (Tr. 38-39). The District did not challenge any of the proposed rates, which I find to be reasonable and not excessive (Tr. 100).
Equitable considerations:
The formulation of the various recommended hours in each domain should not disregard in its entirety the program and related services the District provided to Student as a whole, over the years in issue. In analyzing the educational program offered from the 2015-2016 SY until Student was unilaterally placed in Private School in May 2022, I find that although the District’s offering did fall short of providing the Student with a FAPE, the DOE did attempt to meet its obligations, revise Student’s IEPs, including altering interventions and goals, albeit minimally and insufficiently.
Student’s educational records were sparse prior to the 2017-2018 SY. In reviewing the IEPs that are on record (the January 18, 2018 IEP through the February 11, 2022 IEP, Ex. P-O, P-P, P-Q, P-R, and DOE-2), I find that although the District’s efforts were not informed by evaluative data and therefore not reasonably calculated to enable Student to receive educational benefits, the District did attempt to provide some personalized instruction to Student, albeit not at a level that resulted in the DOE providing the Student with a FAPE under the regulations. I note that Student was previously recommended and placed in a small class environment, namely ICT services for the earlier part of the 2016-2017 SY (Ex. P-A-3 and P-TT-3) and 12:1+1 at District 75 from mid-year of the 2016-2017 SY through May 4, 2022, and related services consisting of a mix of counseling, SLT, and/or OT throughout the SYs at issue (Ex. P-TT-3, P-A-3, P-O-13, P-P-14, P-Q-14, P-R-13, and DOE-2-16). These efforts, however, were misplaced given the failure to properly evaluate Student, leading to a program that on the face of it appeared to provide Student with appropriate supports and services, but which resulted in Student making minimal progress over a significant period, namely the seven SYs at issue.
There is additional authority that also bears mentioning in the context of the relief sought, namely: “Indeed, an award ordered without considering the nature of the FAPE violation to be remedied and the impact of the award on the child's educational needs could ultimately do more harm than good for a student.”[98] The purpose of compensatory education is neither to punish the District[99] nor to “maximize the student's potential or to guarantee that the student achieves a particular grade-level in his areas of need. Thus, 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.” [100]
Furthermore, when it comes to the change to remote instruction necessitated by the COVID pandemic, there is authority that bears mentioning.[101] The State Review Officer (“SRO”) in this case specifically found that concerns about a student’s regression due to remote learning must be raised before the CSE in the first instance to give the CSE the first opportunity to consider the student’s needs and whether any compensatory services may be warranted as a result of the remote instruction. [102]
The SRO noted that the “CSE's review might include a discussion of whether the student has new or different needs compared to before the pandemic, whether the student experienced a loss of skill or a lack of expected progress towards annual goals and in the general education curriculum, whether evaluations of the student or implementation of an IEP was delayed, and whether some of the student's IEP services could not be implemented due to the available methods of service delivery or whether such methods of service delivery were not appropriate to meet the student's needs ("Return To School Roadmap," 79 IDELR 232; "Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at pp. 3-4; see "Supplement #2 -Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at p. 1).” [103]
The SRO held that only after the CSE has conducted a review may the parent disagree with a CSE’s determination regarding the student’s entitlement to compensatory services by pursuing one of the dispute resolution options provided for in the IDEA.[104] Only then is it appropriate for an IHO to rule on compensatory education services to remedy a student’s regression during the remote learning period necessitated by the Covid19 pandemic. [105]
In the present case, Parent 1 testified that they raised concerns about Student’s regression and learning challenges as a result of the switch to remote learning during COVID with the CSE team at the January 5, 2021 IEP meeting (Tr. 109). At the time, the CSE team simply expressed that all students were struggling with remote learning (Tr. 109), and did not offer any suggestions or services that could address Student’s regression (Tr. 109).
I find that Parents’ articulation of their concerns at the IEP meeting provided the District with the first opportunity to conduct a review and address Student’s learning challenges during remote instruction, which the District failed to seize upon. As the District failed to meet their responsibility to conduct a review and consider whether any additional services may be warranted as a result of the pandemic, I find it appropriate for me to now consider Parents’ request for compensatory services covering the remote learning period. The award does not seek to alter the procedure that must be followed regarding compensatory education services arising out of a change in the delivery of instruction during the Covid-19 pandemic, as outlined by the SRO.
Compensatory OT and SLT services
I find that there is an overlap with OT and SLT services that Student is currently receiving at Private School, and that a separate bank of compensatory services at the levels recommended would be duplicative. Private School Principal confirmed that Student is currently receiving both OT and SLT at Private School (Ex. P-UU-11-12) and is making “significant progress” towards Student’s OT goals and “steady progress” in all SLT goals (Ex. P-MM2 and P-NN-2). When asked directly whether Student might need at-home OT, Private School Principal affirmatively stated that “[r]ight now, [Student] is progressing. So, I do not believe that [Student] needs OT, in particular, at home” (Tr. 89). Private School Principal similarly stated that Student is not in need of SLT at home (Tr. 89). Private School Principal further testified that “if we feel that [Student] does need more support that we are unable to give [Student], we would have a conversation with the mom, and we would also bring in the OT supervisor and the speech supervisor to see if at-home services would be appropriate” (Tr. 89).
I find that Private School Principal’s experience and training in the field of special education (Ex. P-UU-2) and personal knowledge about Student (Ex. P-UU-8) qualify them to provide a professional opinion as to whether Student would currently need at-home OT and SLT services beyond what Student is already receiving at Private School. I find that Private School Principal is thoughtful in providing a process to address what would happen if Student’s circumstances change and might require additional support. If at any point going forward, Student requires additional OT and SLT services beyond what Student is receiving at Private School, there is a process to address such a need at the Private School and at IEP meetings.
Despite acknowledging Student’s progress at Private School and Private School Principal’s testimony regarding Student not currently needing at-home OT and SLT services, Parents argue that Student “should not be left without a remedy to address these specific deprivations of FAPE” (Ex. IHO-III-25; Tr. 105). However, I find that simply granting at-home OT and SLT without regards to Student’s current needs would be punitive to the Distract and contrary to the purpose of compensatory services – namely, the specific services needed to remedy the specific educational deficits that resulted from the FAPE deprivation.[106] The ultimate award must be connected to Student’s actual needs. Given Student’s progress with OT and SLT at Private School, providing additional OT and SLT services without considering the impact of the award on Student’s needs “could ultimately do more harm than good.” [107]
For the foregoing reasons, Parents’ requests for 87 compensatory hours of OT and 60 compensatory hours of SLT are denied.
Compensatory tutoring services using ABA methodology and BCBA supervision
While Parent 1 and Private School Principal both testified to the steady progress Student has made since entering Private School in May 2022 (Tr. 75-76, 111-12; Ex. P-UU-13 and P-TT-8), the fact remains that Student is significantly behind academically. Student, a tenth grader, is currently assessed to be performing at a first-grade level in both math and reading (Ex. P-UU-10 and P-OO-2-3), which represents very little progress since he was assessed to be in the kindergarten to first grade level in 2016 (Ex. P-L-2). Since 2016, Student has been stagnating or regressing, moving between kindergarten and first grade, pre-emergent and emergent with respect to Student’s reading and math levels (Ex. P-O-2, P-Q-1-2, P-R-1, and DOE-2-2). Since entering Private School, Student has made meaningful academic progress that Student’s new reading goals are now targeting beginning second grade level (Ex. P-UU-11).
Despite Student’s recent progress, Parent 1 acknowledged that Student’s stagnation or regression since he entered public school until May 2022 when he was unilaterally placed at Private School, is “an immense deficit that needs to be addressed” (Ex. P-TT-9). In requesting compensatory tutoring services, Parent 1 testified that Student’s “performance at [Private School] thus has shown us that, with appropriate supports, [Student] does have the potential to make meaningful progress, but we doubt that it could ever be enough to make up for what [Student] lost on its own” (Ex. P-TT-9).
Similarly, Private School Principal opined that because of how far behind grade level Student is, Student “definitely would benefit” from tutoring services at home: “It will be crucial for [Student’s] success…I can’t attest that he would get up to grade level because unfortunately, right now, [Student] is significantly behind grade level, but we would need that in order to address all of the deficits that were not addressed prior to [Student] coming to [Private School]” (Tr. 91). Specifically, Private School Principal stated that Student would benefit from receiving reading and math tutoring from a service provider who is either a BCBA or a teacher who is trained in the ABA methodology and supervised periodically by a BCBA (Tr. 89-95). Private School Principal proposed instruction based in the ABA methodology as it is proven to help students with disabilities with their deficits, and a BCBA would ensure that Student would not move on to the next task in the curriculum until Student has mastered the initial concepts being taught (Tr. 93).
The District, in its closing brief, argues that the District has no obligation to “maximize” Student’s potential, and that home-based ABA services would act to generalize skills that are learned in Private School to the home environment (Ex. IHO-II-21-23). While the District has the burden of proof on the appropriateness of compensatory education relief, the District failed to present any evidence or identify an appropriate type or amount of compensatory services for Student. [108]
I find that given Student’s well-documented deficits that resulted from the multiple years of “a FAPE deprivation,” the compensatory services would “aim to place disabled children in the same position they would have occupied but for the school district’s violation of IDEA.”[109] Both Parent 1 and Private School Principal expressed doubt whether Student might be able to fully catch up to Student’s current grade level with Private School instruction alone, given how significant Student’s educational deficits are. The fact that Student is many grade levels behind and the reality that Student would be aging out of the school system in the foreseeable future support the conclusion that Student needs additional home-based services to supplement Private School’s instruction for Student to move towards where Student should have been academically had the District provided a FAPE since the 2015-2016 SY. This is not a case where Student’s potential is being “maximized,” but one in which the remedy serves to provide Student with the educational benefits Student should have received in the first place. The at-home services would serve to reinforce the academic instruction being provided at Private School and prepare Student for the post-secondary goals of working in an office or potentially attending college (Tr. 112). In addition, I find that having ABA services at home would not only serve to “generalize” skills from Private School to Student’s home environment, as the District argued. I find Private School Principal’s testimony credible that ABA has been effective in providing the structure and positive reinforcement to address Student’s learning and attention challenges to enable Student to make meaningful progress (Ex. P-UU-10; Tr. 75). Therefore, I find that home-based tutoring services using the ABA methodology would similarly target Student’s learning challenges and would be likely to induce progress.
In light of Student’s well documented deficits that resulted from the multiple years of “a FAPE deprivation,” Student’s positive response to the use of ABA methodologies at Private School, and Private School Principal’s credible professional opinion that ABA-based tutoring services in math and reading would be “crucial” for Student’s success and necessary to address Student’s significant deficits from the long-term deprivation of a FAPE, I find an award of compensatory home-based instruction in ELA and math by a service provider trained in the ABA methodology to be appropriate.
Furthermore, I give weight to Private School Principal’s recommendation that a BCBA be used to supervise the ABA-trained service provider. A BCBA would be “providing ABA services in order to address Student’s deficits in Math and ELA” (Tr. 91-92), and would also ensure that Student would receive supportive services at a rate that is reasonable for Student to catch up “so we wouldn’t move on to [the next task] until [Student] has mastered the initial concepts being taught” (Tr. 93). Service Provider also testified to the importance of BCBA supervision as part of an ABA-based tutoring instruction, in that “BCBAs are in charge of building the program. And that special education teachers that have that background in ABA are implementing it” (Tr. 99). Service Provider further testified that BCBA supervises ABA-trained special education teachers at a ratio of one hour of supervision to every five hours of instruction (Tr. 100). Furthermore, to ensure that Student is receiving coordinated support athome and in Private School, Private School Principal testified that Private School would “work collaboratively with” the at-home instructor to address Student’s foundational skills” (Tr. 91). I therefore find that BCBA supervision is a critical component in remedying Student’s specific educational deficits in Math and ELA. However, I do not find that the level of BCBA supervision proposed is warranted or reasonable, especially given the Private School’s commitment to work collaboratively with the at-home instructor. The more standard rate of one hour for every ten hours awarded is being applied.
In determining the number of compensatory tutoring hours and the term to be awarded, in addition to the above factors concerning Student’s tremendous deficits, the high level of instructional support Student is currently receiving at Private School that is already producing steady progress, Student’s age and post-secondary goals, I also consider the impact of the award on Student’s educational needs, being mindful that “that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity." [110]
Parent 1 testified that eight hours a week of tutoring would be an achievable, realistic amount for Student given Student’s attention span (Tr. 116). In Parent 1’s opinion, because Student is so far behind, Student would benefit from tutoring for the rest of Student’s schooling (Tr. 116). I find Parent 1 to be a credible witness with respect to the reasonable amount of services Student can handle given Student’s schedule as to not overwhelm Student.
The award has an expiration period to ensure that the compensatory award is carried out to remedy the deprivation of a FAPE and to allow Student to use the services at a time when it would be the most impactful for Student to catch up. Parent 1 testified that because of Student’s progress at Private School, Student has been motivated to read more, and more often, and to push through and sound out words that Student finds difficult to read (Ex. P-TT-8). Parent 1 believes that the tutoring would be the most beneficial in the near term, as “we would see a difference quickly because [Student] is pushing [self]…[T]he momentum right now is really good,” (Tr. 114) and “while the momentum is going…why stop now? This is the time – [Student has] missed so many years…[Student is] REDACTED. This is a time when [Student] needs it” (Tr. 114). As such, the award term balances the reality of Student’s significant lags in ELA and Math with the immediacy of having the tutoring services in place when there is momentum in Student’s progress, provides remedial skills as Student transitions to secondary goals, while offering flexibility to enable Student to learn at a rate that is achievable and not overwhelming.
All these above considerations have factored into my calculation of compensatory hours sought and awarded as follows: a. 1,200 compensatory hours of home-based tutoring in ELA and math by a special education teacher trained in the ABA methodology sough - adjusted award: 1,020 compensatory hours of home-based tutoring in ELA and math by a special education teacher trained in ABA being awarded (i.e., +85%).
b. 240 compensatory hours of BCBA supervision of the ABA-trained special education teacher – adjusted award: 102 compensatory hours of BCBA supervision awarded (based on the standard rate of one hour of supervision for every ten hours of instruction).
Other than the relief set out in my Order below, I do not find any other basis or evidence in the record supporting any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that, the DOE shall directly fund Student’s placement at the Private School for a portion of the 2021-2022 school year in the sum of $16,800.00 (Sixteen Thousand and Eight Hundred Dollars) and for the 12-month 2022-2023 school year in the sum of $110,500.00 (One Hundred, Ten Thousand and Five Hundred Dollars).
2. FURTHER ORDERED that, the DOE shall provide door-to-door transportation for the remainder of the 2022-2023 SY.
3. FURTHER ORDERED that, the DOE is directed to fund the following IEEs, by issuing payment directly to the providers within thirty (30) days of the submission of copies of the evaluations and invoices:
a) A neuropsychological evaluation to be conducted by a New York State licensed psychologist chosen by Parents, at market rate not to exceed $5,500.00.
b) A S-L evaluation to be conducted by a New York State licensed speech therapist chosen by Parents, at market rate not to exceed $1,500.00.
c) An OT evaluation to be conducted by a New York State licensed occupational therapist chosen by Parents, at market rate not to exceed $1,500.00.
4. FURTHER ORDERED that, the CSE shall convene a review meeting within 21 (twenty-one) days of the evaluations (referenced in #3 in this Order) being obtained and provided by Parents to the District, to review the results of such documents, any reports from Private School, and any other evaluations conducted or obtained by the DOE, and prepare an appropriate IEP that includes at a minimum:
a) Accurate PLOPS.
b) Specific, meaningful, and measurable goals tailored to Student and based on Student’s current academic and functional levels.
c) Appropriate related services including OT and SLT, as recommended by the independent evaluations, and at the recommended frequency and service delivery recommendations, in line with those being delivered at Private School.
d) Appropriate modifications and accommodations to be listed as part of the Student’s IEP program.
5. FURTHER ORDERED that, the DOE shall fund the following compensatory services for Student, which may be provided during the school year or during the summer (July and/or August), on weekdays, weekends, on holidays, or during school vacations, by duly New York State licensed providers of the Parents’ own choosing at the providers’ customary and regular rates (i.e. “an enhanced rate”), limited to the amounts set out in #6 of this Order for each of the compensatory services:
a) 1,020 compensatory hours of tutoring services in ELA or Math by a special education teacher trained in the ABA methodology.
b) 102 compensatory hours of BCBA supervision.
6. FURTHER ORDERED that the DOE shall make payment for the compensatory services ordered in #5 of this Order, at the prevailing market rate of Parents’ duly licensed independent provider of choice capped at the following rates for each of the following services: Compensatory hours of tutoring services using the ABA methodology at $140.00 per hour; and Compensatory BCBA services at $250.00 per hour.
7. FURTHER ORDERED that, the bank of compensatory services set out in #5 of this Order shall not expire until the expiration of four (4) years from the date of this Order.
8. IT IS FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services hereby ordered within 15 (fifteen) days.
SO ORDERED.
DATED: May 1, 2023
/s/ Peggy K. Chan
Impartial Hearing Officer
Peggy K. Chan
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.
APPENDIX A – REDACTION IDENTIFICATION PAGE
REDACTED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT’S EXHIBITS
P-A. Impartial Hearing Request 12/21/2022 8 pages
P-B. Ten Day Notice 6/24/2022 5 pages
P-C. Ten Day Notice 4/21/2022 6 pages
P-D. Determination Report 7/18/2022 1 page
P-E. Social History Evaluation 6/20/2012 3 pages
P-F. Speech/Language Evaluation 7/14/2012 3 pages
P-G. Psychoeducational Evaluation 9/7/2012 7 pages
P-H. Teacher Report 3/6/2014 2 pages
P-I. WITHDRAWN
P-J. Vineland-II Teacher Rating Form Report 11/23/2015 9 pages
P-K. Teacher Report P-L 01/06, 10 & Educational Evaluation 12/2016 11 P-M December Student Progress Report-Speech/Language 2017 3 1/13/2016 2 pages
P-N. Occupational Therapy Clinical Guide 1/5/2018 2 pages
P-O. Individualized Education Program 1/18/2018 19 pages
P-P. Individualized Education Program 1/7/2019 19 pages
P-Q. Individualized Education Program 1/7/2020 18 pages
P-R. Individualized Education Program 1/5/2021 17 pages
P-S. Student Report Card/Progress Reports 11/15/2021 13 pages
P-U. P-T Withdrawn as duplicate of DOE Ex. 2 Private School Acceptance Letter 4/14/2022 1 page
P-V. Private School Tuition Affidavit 21-22 with Contract 2/1/2023 3 pages
P-W. Private School Program Brochure 2016 2 pages
P-X. Schedule 2021-2022 1 page
P-Y. Final attendance 2021-2022 1 page
P-Z. Report Card 6/1/2022 5 pages
P-AA. Private School Tuition Affidavit 22-23 with Contract 2/1/2023 5 pages
P-BB. Parent and Student Handbook undated 27 pages
P-CC. Private School OT 45-Day Progress Report 6/8/2022 3 pages
P-DD. Private School SLT 45-Day Progress Report 6/8/2022 3 pages
P-EE. Private School Academic 45-Day Report 10/14/2022 2 pages
P-FF. Private School Social Emotional 45-Day Report 10/24/2022 2 pages
P-GG. Private School FBA 12/13/2022 3 pages
P-HH. Private School Action Plan 12/13/2022 3 pages
P-II. Class Schedule Summer 2022 Summer 1 page
P-JJ. Class Schedule 2022-2023 1 page
P-KK. Attendance Record 2/3/2023 1 page
P-LL. Records request and response various 7 pages
P-MM. Private School Occupational Therapy Annual Review 2/1/2023 4 pages
P-NN. Private School Speech Language Therapy Annual Review 2/1/2023 4 pages
P-OO. Private School Academic Annual Review 2/2/2023 4 pages
P-PP. Private School Social Emotional Annual Review 2/3/2023 3 pages
P-QQ. Parent 1 Tax Return 2021 2 pages
P-RR. Parent 2 Tax Return 2021 2 pages
P-SS. Prior Written Notice 2/28/2023 5 pages
P-TT. Affidavit of Parent 1 3/8/2023 10 pages
P-UU. Affidavit of Private School Principal 3/9/2023 13 pages
P-VV. Affidavit of Psychologist 4/7/2021 2 pages
P-WW. Functional Behavioral Assessment 3/8/2023 4 pages
P-XX. Action Plan 3/8/2023 3 pages
P-YY. Transition Report 3/7/2023 2 pages
DOE’S EXHIBITS
DOE-1 Withdrawn 1/5/2021 28
DOE-2 Individual Education Plan 2/11/2022 26
DOE-3 Prior Written Notice 1/7/2021 9
DOE-4 Prior Written Notice 2/14/2022 11
DOE-5 Student Progress Report 2021 3
DOE-6 Student Progress Report 2/18/2022 2
IHO’S EXHIBITS
IHO-I Due Process Response 03/02/2023 3
IHO-II Closing Brief for the New York City Department of Education 4/6/2023 25
IHO-III Closing Brief on Behalf of the Parents 4/6/2023 25
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] 20 U.S.C. § 1400 et seq.
[3] 34 C.F.R. § 300 et seq.
[4] Educ. Law Art. 89 § 4404 et seq.
[5] 8 NYCRR § Part 200.
[6] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504- delegation-Signed.pdf.
[7] In the Affidavit of Private School Principal (Ex. P-UU-1), the witness testified that they served as the Assistant Principal of the Private School. During live testimony, the witness clarified that they have been promoted to the position of Principal (Tr. 73). The witness is referred to as “Private School Principal” throughout this decision.
[8] NYS Educ. Law § 4404(1)(c).
[9] 20 U.S.C. § 1415(b)(6)(B); 34 C.F.R. § 300.507(a)(7).
[10] 8 NYCRR § 200.5(j)(1(i).
[11] K.H. v. New York City Dep't of Educ., 2014 U.S. Dist. Lexis 108393 at 51 (E.D.N.Y. Aug. 6, 2014).
[12] 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).
[13] K.C. ex rel. J.C.T. v. Chappaqua Cent. Sch. Dist., 218 WL 475965 at 14 (S.D.N.Y. 2018); K.H. v. New York City Dep't of Educ., 2014 WL 3866430, at *16 (E.D.N.Y. Aug. 6, 2014).
[14] K.H., supra; 8 NYCRR §200.5(j)(1)(i).
[15] See D.K. v. Abington Sch. Dist., 696 F.3d 233, 246 (3d Cir. 2012) (holding that, in order to be excused from the statute of limitations under the misrepresentation exception, parents must show that the school district “intentionally misled them or knowing deceived them regarding their child’s progress”).
[16] 8 NYCRR § 200.5(f)(3); see also 34 CFR. §300.504.
[17] See 20 U.S.C. § 1415(f)(3)(D); 34 CFR § 300.511(f); Educ. Law § 4404(1)(a); 8 NYCRR 200.5(j)(1)(i); R.B. v. Dept. of Educ., 2011 WL 4375694, at *6-7 (S.D.N.Y. Sept. 16, 2011).
[18] See e.g. R.B., 2011 WL 4375694, at *4, *6; D.K., 696 F.3d at 246; see also 20 U.S.C. § 1415(b)(3), (d); 34 CFR § 300.503; 34 CFR § 300.504; 8 NYCRR § 200.5(a), (f).
[19] See 20 U.S.C. § 1400 (d)(1)(A).
[20] See 20 U.S.C. § 1401(9).
[21] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[22] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[23] 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
[24] 20 U.S.C. § 1415(f)(3)(E)(i).
[25] Rowley, 458 U.S. at 203.
[26] Walczak v. Florida Union Free School Dist., 142 F.3d 119, 130 (2d Cir. 1998); Rowley, 458 U.S. at 189.
[27] Endrew F., 137 S. Ct. at 1001.
[28] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 (2d Cir. 1989).
[29] Rowley, 458 U.S. at 189; Walczak, 142 F.3d at 132.
[30] Cerra v. Pawling Central School Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130.
[31] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”); Rowley, 458 U.S. at 192.
[32] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 (3d Cir. Aug. 14, 2008); Couture v. Bd. of Educ., 535 F.3d 1243 (10th Cir. 2008); Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 (8th Cir. 2003).
[33] A.P. v. Woodstock Bd. of Ed., 370 Fed. App'x 202, 205 (2d Cir. 2010); Van Duyn v. Baker Sch. Dist., 502 F.3d 811, 822 (9th Cir. 2007); Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 (D.D.C. 2007).
[34] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[35] Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993).
[37] Doe v. East Lyme, 790 F.3d at 454.
[38] 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); See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 (Oct. 15, 2007).
[39] 8 NYCRR § 200.5(f)(3); see also 34 CFR. §300.504.
[40] For 2020-2021 SY, the District presented evidence that it provided notice of procedural safeguards to Parents. Specifically, DOE Teacher testified that during COVID’s remote learning period, DOE Teacher provided a link to the DOE website to access the procedural handbook to Parents via email after the January 5, 2021 IEP meeting (Tr. 66-67). In addition, the District introduced into evidence a PWN, dated January 7, 2021, that was mailed to Parent 1, which provided instructions to download a copy of the Procedural Safeguards Notice from the DOE’s website or to request a copy from DOE personnel (Ex. DOE-3-3). Parent 1, in her live testimony, stated that she had not received such procedural handbook via e- mail after the January 2021 IEP meeting (Tr. 103). Without making a credibility finding, I note that even if it were determined that DOE Teacher’s testimony would have the impact of moving the KOSHK date for the 2015-2016 through the 2020-2021 SYs to January 2021, since the DPC was filed on December 21, 2022, the claims concerning these SYs would still have been raised within the 2-year statute of limitations period.
[41] K.H. v. New York City Dep't of Educ., 2014 U.S. Dist. Lexis 108393 at 59 (E.D.N.Y. Aug. 6, 2014).
[42] Id., citing Draper v. Atlanta Independent School System, 518 F.3d 1275, 1288 (11th Cir. 2008).
[46] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[47] Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Central School Dist., 346 F.3d 377, 379 (2d Cir. 1998); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).
[48] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[49] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
[51] Parents claim that they did not know that Student had “lost” a grade until after they reviewed Student’s documents obtained via a records request made in the Fall of 2021, which included documents they had never seen before (Ex. IHO-III- 12).
[52] 34 C.F.R. § 300.303(b)(2); 8 NYCRR § 200.4(b)(4).
[53] 34 C.F.R. § 300.304(b)(1); 8 NYCRR § 200.4(b)(1).
[54] 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
[55] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[56] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985).
[57] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).
[58] Gagliardo, 489 F.3d at 112.
[59] Id. at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
[60] Id. at 112.
[61] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d. Cr. 2006).
[62] Gagliardo, 489 F.3d at 115.
[63] Id. at 112, quoting Frank G., 459 F.3d at 364-65.
[64] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 (2d Cir., 2014); M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000); see Carter, 510 U.S. at 16 ("Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable").
[65] 20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff'd, 192 Fed. App'x 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 (S.D.N.Y. 2005); see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 (N.D.N.Y. 2001).
[66] 20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[67] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).
[68] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 (6th Cir. 2003); Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 (2d Cir. 2006); Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 (E.D. Pa. Oct. 22, 2007).
[69] Greenland Sch. Dist., 358 F.3d at 160.
[70] 8 NYCRR § 200.1(z).
[71] 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted).
[72] Shaffer v. Weast, 546 U.S. 49, 60-61 (2005).
[73] 8 NYCRR § 200.5(g)(1)(i).
[74] 34 C.F.R. § 300.502(e)(1); 8 NYCRR § 200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989).
[75] Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 (4th Cir. 2011).
[76] Letter of OSERS, 2002.
[77] Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[78] 8 N.Y.C.R.R. § 200.5(g)(1)(iii).
[79] D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020).
[85] 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1).
[86] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[87] See, e.g., M.C. v. Cent. Reg'l Sch. Dist., 81 F.3d 389, 23 IDELR 1181 (3d Cir. 1996); Manchester Sch. Dist. v. Christopher B., 807, F. Supp. 860, 19 IDELR 389 (D.N.H. 1992).
[88] See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005).
[89] See, e.g. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 (2d Cir. 2014), holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE.
[90] See, e.g. D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498 (3rd Cir. 2012), holding that "[b]ecause compensatory education is at issue only when tuition reimbursement is not, it is implicated only where parents could not afford to 'front' the costs of a child's education"; and P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 739 (3rd Cir. 2009) holding that "compensatory education is not an available remedy when a student has been unilaterally enrolled in private school."
[91] See Application of a Student with a Disability, Appeal No. 16-050.
[95] P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008).
[96] See for example E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 (2d Cir. 2014), holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE.
[97] Parents assert that Students was deprived of a FAPE for a total of 6.5 years or 1,407 school days, based on 180 school days during the 10-month portion of the 2015-2016 SY, plus 210 days in each of the following SYs when Student was a 12- month student, less 33 school days when Student transferred to Private School in May 2022 (Ex. IHO-III-23). A review of Student’s educational record shows that Student was a 12-month student from at least the 2018-2019 SY through the 2021- 2022 SY (Ex P-O, P-P, P-Q, P-R, and DOE-2) but it is unclear whether Student was a 10-month or 12-month student prior to the 2018-2019 SY. However, even assuming Student was a 10-month student from the 2015-2016 through the 2017-2018 SYs, the calculation still reflects that Student would have been deprived of FAPE for 1,347 hours. Therefore, the 1,200 hours requested would still represent less than 1 hour for every school day Student was deprived of FAPE.
[98] See M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 (S.D.N.Y. Mar. 30, 2017) ("Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity").
[99] See C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 (3d Cir. Sept. 27, 2010).
[100] See Application of the Bd. of Ed. of the S.C.S.D, Appeal No. 21-065.
[101] See Application of a Student with a Disability, Appeal No. 22-031.
[102] Id., at 20.
[103] Id., at 19.
[104] Id., at 20.
[105] Id.
[106] See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005).
[107] see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 (S.D.N.Y. Mar. 30, 2017) ("Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity").
[108] See SRO Decision 14-014 (“It is not persuasive for the district to simply fault the parent’s request for relief without also explaining its own view of what type of compensatory education relief would be appropriate to remediate the district’s failure to provide the student with a FAPE”).
[109] Reid, 401 F.3d at 518 (Compensatory education is "replacement of educational services the child should have received in the first place.")
[110] M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 (S.D.N.Y. Mar. 30, 2017).