New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 594335 - NYC: 244452

FINDINGS OF FACT & DECISION

Case No. City/State: 244452 / 594335

Student’s Name: [REDACTED] (hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: [REDACTED] (hereinafter referred to as “Parent”)

Hearing Dates: 5/24/23; 6/7/23

Actual Record Close: July 9, 2023

Hearing Officer: David R. Gronbach, Esq.

Date of Decision: July 23, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

[REDACTED], Director, Agency

For the Department of Education:

[REDACTED], ESQ., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about January 3, 2023 (P-Ex. A) ^[1]. The DPC alleged that the District failed to provide the Student with a Free Appropriate Public Education as required by the Individuals with Disabilities Education Act by not providing the Student with services during the 2020/21, 2021/22, and 2022/23 school years (P-Ex. A). The Parent requested Special Education Teacher Support Services (“SETSS”) at an enhanced rate, compensatory education , and funding for testing. (P-Ex.A; T.pg. 42-45). ^[2]

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on January 30, 2023. A Pre-Hearing Conference was held on February 7, 2023. Status Conferences were held on 3/3/23; 4/3/23, at which time a hearing was scheduled for 5/24/23. A Status Conference was held on 5/3/23. Prior to the May 24th Hearing, District filed a Motion to Dismiss based on Statute of Limitations. Parent filed an opposition. (T.pg.31-32).

At the May 24th Hearing, District did not present a case with either exhibits or witnesses. (T.pg.32). Parent presented documents that were entered as exhibits and the testimony of two witnesses. (T.pg.37-38). The matter was adjourned at District’s request to June 7, 2023.

At the June 7th Hearing, District cross-examined Parent’s witness and the parties rested.

Four joint/unopposed requests to extend the compliance date were granted. The record closed on July 9, 2023.

FINDINGS OF FACT

Parent testified Student is behind in core areas like reading, math, and writing and is classified with a “Learning Disability.” Student’s most recent IESP, dated November 16, 2022, recommends “Special Education Teacher Support Services (“SETSS”), which were not provided. Parent asserted the CSE did not convene to develop an IEP for the 2021-2022 school year and failed to convene on at least an annual basis. (P-Ex.J).

During the 2020-2021 school year, Student attended school on a “remote” basis. During the 2021-2022 school year, Student attended “in person”. Parent testified Student is behind same-aged peers in core academic areas and is not showing signs of meaningful progress in school. According to his IEPs, he has consistently been below standards in many areas. Despite evidence that Student has not been achieving meaningful progress, the DOE has continued to recommend placements and programming that have not been effective or appropriate. (P-Ex.J).

Entering the 2020–2021 school year (4th grade), Student was demonstrating struggles in core academic areas. An October 2020 IEP states “Writing Level (TC on Demand)- 2.5 Grade level equivalent... Instructional/Functional Levels: Reading: 3rd Grade, Math: 3rd Grade.” (P-Ex.D). The DOE provided an ICT classroom for the 2020-2021 school year with no individualized instructional supports. Student struggled during the 2020-2021 school year without meaningful progress. (P-Ex.J).

Entering the 2021-2022 (fifth grade) school year, Student’s difficulties continued with reading, writing, and math. The CSE did not convene to develop an IEP prior to the 2021-2022 school year, and Parent was not provided with an IEP for that school year. Student continued to struggle throughout the 2021-2022 school year without meaningful progress. (P-Ex.J).

Student’s promotion has been “in doubt” during the years at issue. He is still behind his same aged peers in core academic areas. (P-Ex.J).

The CSE met in February of 2022, near the end of the 2021-2022 school year. Student’s February 2022 IEP states, “Instructional/Functional Levels: Math: 4th Grade...Writing: Teacher’s College Narrative On Demand: Level 1.5, Below Grade Level-Mid Third Grade (September 2021)...Math: Unit 1 Finding Volume, 42%-Below Grade Level Expectations (October 2021), Unit 2 Fractions as Quotients and Fraction Multiplication, 43%-Below Grade Level Expectations (November 2021), Unit 3 Multiplying and Dividing Fractions, 47%- Below Grade Level Expectations (December 2021), Unit 4 Wrapping Up Multiplication and Division with Multi-Digit Numbers, 10 %- Below Grade Level Expectations (January 2022).” (P-Ex.C; J).

The CSE met most recently in November of 2022 and the IESP states, “Weaknesses: struggles to keep up with class reading...Reading Comprehension: [Student] struggles to answer questions about materials read, especially when he needs to infer the answer...[Student] struggles with arithmetic and understanding what the question is asking...[Student] struggles with reading math word problems and comprehending the question.” (P-Ex.B). The IESP recommended group based SETSS, which have not been provided consistently. Parent testified Student is falling further behind his peers and not achieving meaningful growth. (P-Ex.J).

Parent testified over the past several school years, Student has continued to struggle in nearly every academic area. However, the DOE has failed to provide Student with an appropriate program, failed to recommend appropriate instruction and services, and failed to provide any one on one support. (P-Ex.J).

Parent requested tutoring services to address the DOE’s failure to provide Student with an appropriate program. (P-Ex.J).

In April of 2023, Student was assessed by the [REDACTED] (“Agency”). The testing confirmed Student was very much behind his peers academically and in need of remediation. Parent requested MetroCards to access the tutoring services. (P-Ex.J).

Agency Director testified Agency is a full-service learning center, offering individualized tutoring in reading, writing, math, exam preparation and subject tutoring. Agency works with regular and special education students of all classifications, including autism, from kindergarten through high school. Director testified Student was tested on April 29, 2023 on a one-to-one basis by a certified special education teacher. (P-Ex.I; F) Agency found Student to be operating more than two years below grade level in verbal (ELA) and math skills with significant gaps in his academic skills across all areas. (P-Ex.I; F)

Agency determined Student’s independent reading level is no higher than third grade. Student was not able fully to comprehend material that was two years below his grade level. He had a grade equivalent of 4.2 in reading comprehension, rating his performance as “Very Poor”. Student’s writing sample was consistent with what one might expect to see as a first draft from a third grade student. In math, Student was unable to show mastery of skills that should have been mastered as early as first grade. A significant amount of remedial work is necessary in order to allow Student to progress in math. Director testified Student’s independent level was third grade in verbal (ELA) and first grade in math. (P-Ex.I).

Director recommended 726 hours of one-on-one tutoring. (P-Ex.G). The Individualized Prescribed Hours (P-Ex. G) identifies the skills to be worked on and some of the curriculum to be used to teach Student the skills he is expected to have mastered, but which he lacks, and the number of hours that it will take to cover each of the skills that Student is lacking. (P-Ex.I).

Director testified the fee for the diagnostic evaluation is $295.00; the registration fee is $100.00, and tuition is billed at a rate of $110.00 per hour for one-to-one instruction. (P-Ex.I).

DISTRICT’S MOTION TO DISMISS BASED ON STATUTE OF LIMITATIONS

The IDEA provides an opportunity for any party to present a complaint related to the identification, evaluation, or educational placement of a child, or the provision of FAPE, that occurred not more than two years before the date the parent or public agency “knew or should have known about the alleged action that forms the basis of the complaint.” Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 106, 114 (2nd Cir. 2008), quoting 20 U.S.C. §1415(b)(6)(B). New York State has affirmatively adopted the two-year period found in the IDEA and the State Review Office (SRO) applies the same standard. Educ. Law § 4404(1)(a); 8 NYCRR § 200.5(j)(1)(i); See Application of a Child with a Disability, Appeal No. 06-086. Each IDEA claim is a “factspecific inquiry” to determine when the parent knew or should have known about the claim (K.H. v. New York City Dept’s of Educ. 2014 WL 3866430 at *16 (EDNY Aug. 6, 2014). The limitations periods under the IDEA and New York Education Law do not apply where the parent was prevented from requesting the hearing because the district did not provide IDEA mandated information to the parent. See 20 U.S.C. § 1415(f)(3)(D); N.Y. Ed. Law § 4404(1)(a); 8 N.Y.C.R.R. § 200.5(j)(i). Specifically, the IDEA requires that notice of the procedural safeguards be provided to the parent at least once a year. 20 U.S.C. § 1415(d)(1)(A); see also 8 N.Y.C.R.R. § 200.5(f). Failure to properly provide procedural safeguards of a parent’s due process rights tolls the statute of limitations. See MD. v. Southington Board of Education, 334 F.3d 217, 223-24 (2d Cir. 2003).

The DOE bears the burden of proving that the parent’s claims are time barred by the applicable statute of limitations. See K.H. v. New York City Dep’t of Educ., 2014 WL 3866430, at 17-20 (E.D.N.Y. Aug. 6, 2014). Accordingly, the DOE—not the Parent—has the burden of proving that any of the claims brought here for any of the DOE’s violations are untimely. See, e.g., Y.D. v. N.Y.C. Dep’t of Educ., No. 14-CV-1137, 2016 WL 698139, at 7-8 (S.D.N.Y. Feb. 19, 2016) (holding that it is the DOE’s burden to prove that the claims are untimely when asserting the statute of limitations as an affirmative defense); M.G. v. N.Y.C Dep’t of Educ., 15 F. Supp. 3d 296, 306 (S.D.N.Y. 2014) (explaining that the statute of limitations is an affirmative defense and the burden of raising it falls on the City).

The Parties’ Claims

District filed a Motion to Dismiss seeking to dismiss Parent’s claims regarding the 2020/21 school as time barred by the 2 year statute of limitation. Since the DPC was filed on January 3, 2023, District argued the claims regarding the 2020/21 school year are time barred. (District Motion; T.pg.3).

Parent filed the Due Process Complaint on January 3, 2023. Thus, all claims after January 3, 2021 are within the 2 year limitation period. District asserts the “knew or should have known” (KOSHK) date was September 1, 2020, the beginning of the 2020/21 school year. No facts were submitted to support the assertion that the parent knew or should have known on the first day of the 2020/21 school year, that the District denied them a FAPE. Furthermore, the Parent’s claims involve claims throughout the 2020/21 school year, including allegations regarding the October 14, 2020 IEP. (P-Ex.D). District has not demonstrated Parent should have known of the denial of FAPE, given that the recommended program was not made until October 2020 and the implementation of the Program was throughout the 2020/21 school year.

District asserted the 11/7/2019 Prior Written Notice notified the Parent that a copy of the procedural safeguards notice can be downloaded on the DOE’s website or Parent could request the procedural safeguards notice from the DOE representative listed on the Prior Written Notice, which contained the DOE representative’s phone number. (District Motion; D-Ex.3).

As set forth in the June 29, 2019 letter from the United Stated Department of Education Office of Special Education and Rehabilitative Services to Judy Nathan, Executive Deputy Council for the DOE’s Office of Legal Services, “although IDEA permits an LEA to post a copy of the procedural safeguards notice on its web site, the public agency would not meet its obligation to provide a parent the notice of procedural safeguards by simply directing a parent to the web site. Rather, a public agency must still offer parents a printed copy of the procedural safeguards notice.” See January 29, 2019 OSEP Letter to Nathan at Page 3, available at https://sites.ed.gov/idea/idea-files/osep-letter-jan-29-2019-to-nathan/ (emphasis added).

To comply with the procedural safeguard notice requirement in 20 U.S.C. § 1415(f)(3)(D) — the DOE must give the parent actual notice, and directing Parent to the District’s website is not enough to meet this mandate.

As set forth in 20 U.S.C. § 1415(f)(3) and 34 C.F.R. § 300.511(f), the two-year statute of limitation does not apply to a parent if the District withheld information from that parent that it was required to provide (e.g., procedural safeguards). The District argues that Parent was given the requisite procedural safeguards in the 11/7/2019 Prior Written Notice. However, the Prior Written Notice does not contain the procedural safeguards required by the IDEA or CFR. See for example 34 C.F.R. 303.421, “Prior written notice and procedural safeguards notice”, (b) Content of notice. The notice must be in sufficient detail to inform parents about—

…(3) All procedural safeguards that are available under this subpart, including a description of mediation in §303.431, how to file a State complaint in §§303.432 through 303.434 and a due process complaint in the provisions adopted under §303.430(d), and any timelines under those procedures.

It is undisputed that the District’s Prior Written Notice to Parent did not satisfy the procedural safeguards notice. The District’s Notice set forth in D.Ex.3 states, “YOU HAVE PROTECTIONS UNDER THE PROCEDURAL SAFEGUARDS OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION.” The Notice states Parent can download a copy from the DOE’s website or request a copy. (D-Ex.3).

Failure to provide the required procedural notice is considered the withholding of information. See e.g. El Paso Indep. Sch. Dist. v. Richard R., 567 F.Supp.2d 918 (W.D. Tex. 2008) aff’d 591 F.3d 417 (5th Cir. 2009) (failure to provide parents with procedural safeguards and prior written notice resulted in school district withholding information from parents); D.G. v. Somerset Hills Sch. Dist., 559 F.Supp.2d 484 (D.N.J. 2008) (setting aside SOL for withholding procedural safeguards notice after parent’s repeated request for evaluation).

District has not satisfied its burden to demonstrate that the date Parent knew or should have known of a denial of FAPE was triggered by the 11/7/2019 PWN or that KOSHK date was September 2020. Parent’s claims are not barred by the two-year statute of limitations because Parent’s claims span the 2020/21 school year, which ended in June 2021. Furthermore, the District’s reference to Parent to “download a copy of the Procedural Safeguards” in the PWN withheld notice of procedural safeguards that the District was required to provide.

Therefore, Parent is not precluded from asserting claims based on the 2020/21 school year.

The District’s Motion to Dismiss Parent’s Claims arising from the 2020/21 school year, is DENIED.

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998). Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

Under New York State Education Law section 3602-c, students with disabilities who are placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public-school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them. The CSE of the district of location must develop an IESP in the same manner and with the same contents as an IEP. See, Memorandum from James P. DeLorenzo, re: Chapter 378 of the Laws of 2007, New York State Education Department, Sept 2007. A parent who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location. See, Id. at 5.

While the statutory scheme of Education Law section 3602-c places the responsibility of selecting and placing the student in a nonpublic school on the parent, the implementation of the services called for by a student's IESP falls on the district insofar as “boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent” (Educ. Law § 3602-c[2][a]). See, Application of Student with a Disability, SRO Appeal 16-008. The CSE must “assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” Id. Additionally, unlike the provisions of the IDEA, section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404. Id. Except for in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

While it may very well be permissible for a district to include the parent in the identification of a particular provider, especially if the parent is willing and able to do so, it does not follow that the responsibility to redress a parents’ inability to locate a provider is shifted permanently to the parent. See, Application of Student with a Disability, SRO Appeal 17-034. The district has the obligation to provide services in conformity with the IESP. See, Educ. Law § 3602-c(2)(a), (b)(1); 20 U.S.C. § 1401(9)(D); 34 CFR 300.17(d); see also 20 U.S.C. § 1414(d); 34 CFR 300.320.

ANALYSIS and DECISION

District did not contest Parent’s claims and did not satisfy its burden to prove it provided Student with FAPE during the 2020/21, 2021/22, and 2022/23 school years. The evidence presented by the Parent in the form of the Agency testing and testimony is that Student suffered from a learning disability that resulted in academic performance significantly below grade level, which required an individualized program designed to meet Student’s needs.

Based on all of the above, I find that the District did not provide the Student with FAPE for the 2020/21, 2021/22, and 2022/23 school years. Student is entitled to the SETSS services set forth in the 11/16/22 IESP. (P-Ex.B).

Parent has requested an award of compensatory education for the deprivation of FAPE for the 2020/21, 2021/22, and 2022/23 school years. Under IDEA, an award of compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place” and be “appropriate in light of the purposes of the Act.” Doe v. E. Lyme Bd. of Educ., 790 F.3d at 454, 457 (internal citations omitted) (emphasis added).

The record reflects that compensatory services in the form of tutoring hours is necessary for Student to catch up to the levels he may have otherwise attained. Agency Director testified Student is more than two years below grade level in verbal (ELA) and math skills with significant gaps in his academic skills across all areas. (P-Ex.I; F). A significant amount of remedial work is necessary.

Director recommended 726 hours of one-on-one tutoring, broken down into subjects and goals. (P-Ex.G). The Individualized Prescribed Hours (P-Ex. G) identifies the skills to be worked on and some of the curriculum to be used to teach Student the skills he is expected to have mastered, but which he lacks, and the number of hours that it will take to cover each of the skills that Student is lacking. (P-Ex.I). The District failed to offer any evidence in opposition to the recommendation.

Based on the District’s failure to provide Student FAPE for the 2020/21, 2021/22, and 2022/23 school years, the Student is entitled to the compensatory education set forth in my Order.

Parent’s remaining claims are rejected for lack evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered: 1) ORDER THAT, the District shall reimburse Parent/directly fund the following program that the Student is entitled to for the 10-month 2022-23 school year:

• SETSS, 5 periods per week, Direct, Group, by a licensed/certified provider of Parent’s choosing, at market rate.

2) ORDER THAT, District shall fund compensatory education for the 2020/21, 2021/22, and 2022/23 school years, in the form of a bank of 726 hours of 1:1 academic tutoring, which shall not expire, to be provided by a certified provider of Parent’s choosing, at a rate not to exceed $110/hour, and including Metro Cards for Parent and Student to and from the services;

3) ORDER THAT, The District shall fund / reimburse Parent for the Agency testing and registration in the amount of $395.

SO ORDERED

DATED: July 23, 2023

David R. Gronbach

David R. Gronbach, Impartial Hearing Officer

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.

DISTRICT EVIDENCE

N/A

PARENT EVIDENCE

A. Ex. Title Date Pages Impartial Hearing Request 1/3/23 5pp.

B. Individualized Education Services Program 11/16/22 9pp.

C. Individualized Education Program 2/3/22 13pp.

D. Individualized Education Program 10/14/20 14pp.

E. Student Report Card Undated 1p.

F. Agency Student Academic Evaluation Results 4/29/23 3pp. G Agency Individualized Prescribed Hours 4/29/23 3pp. H Agency Student Test Results 4/29/23 44pp.

I. Provider Affidavit; Agency Director 5/8/23 13pp.

J. Parent Affidavit 5/15/23 5pp.

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.

[2] Reference to the Transcript shall be referred to as “T”.