New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 596499-246018

Student’s Name: [REDACTED]

School District: N.Y.C. Dept. of Ed., District [REDACTED]

Impartial Hearing Officer: Cynthia M. Lindblom

Date of Filing: February 16, 2023

Hearing Requested by: Parent

Date(s) of Hearing: April 17, 2023 & June 5, 2023 Record Close Date: August 4, 2023

Date of Decision: August 7, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 17, 2023

For the Student:

[REDACTED], Esq., Parent Attorney/Representative

[REDACTED], Student’s [REDACTED]

[REDACTED], Student’s [REDACTED]

For the Department of Education:

[REDACTED], Esq., Agency Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 5, 2023

For the Student:

[REDACTED], Esq., Parent Attorney/Representative

[REDACTED], Student’s [REDACTED]

For the Department of Education:

[REDACTED], Esq., Agency Attorney

BACKGROUND

Student1 is an [REDACTED] child who is classified by the New York City Department of Education (“DOE” or “District”) as a student with Autism (Ex. E at 1; Ex. H at 1; Ex. J at 1).^[2] According to Student’s three prior Individualized Education Programs (“IEP”), dated May ^[1], 2020, May 6, 2021 and April 28, 2022, Student attends a DOE Non-Specialized School and receives related services of occupational therapy, speech-language therapy, and counseling (Ex. E at 20; Ex. H at 20; Ex J at 15). Student also receives private tutoring sessions at Service Provider since February 28, 2022 (Ex. P at 4). There is no evidence that Student was recently evaluated by the District or received a comprehensive evaluation upon turning five years old (Tr1. 113). ^[3]

Student’s classification and entitlement to special education programming and services are not in dispute. Parent alleges that DOE failed to provide Student a Free Appropriate Public Education (“FAPE”) for the 2020-2021 and 2021-2022 school years (Ex. D at 1-2). More specifically, Parent alleged violations which included the DOE’s failure to: (i) evaluate Student; (ii) develop an appropriate IEP that offers a program that addresses all of Student’s behavioral, academic and emotional needs; (iii) develop appropriately ambitious goals that enable Student to make meaningful progress during a school year; (iv) make necessary changes to Student’s program or placement to address their academic and behavioral delays; and (iv) provide Student with all of their mandated related services, inter alia.

The Parent requests that the IHO (i) find that the Student was denied a FAPE for the 2020-2021 and 2021-2022 school years; (ii) order the DOE to fund the cost of the following six Independent Educational Evaluations (“IEE”) conducted by the Parent’s chosen providers at their normal and customary rates: (1) neuropsychological evaluation; (2) speech language (“SL”) evaluation; (3) occupational therapy (“OT”) evaluation; (4) assistive technology (“AT”) evaluation; (5) applied behavior analysis (“ABA”) assessment; (6) Functional Behavioral Assessment (“FBA”) and Behavioral Intervention Plan (“BIP”) (Tr1. 12; IHO Exhibit II at 26);^[4] (iii) upon completion of the aforementioned evaluations, order the Committee on Special Education (“CSE”) to reconvene and develop a new IEP with an appropriate program to address all of Student’s behavioral, academic and emotional needs (Ex. A at 18; IHO Exhibit II at 27); (iv) reimburse Parent in the amount of $10,985.00 for the purchase of tutoring sessions by Service Provider (IHO Exhibit II at 27); (v) order the DOE to fund compensatory education services for the school years at issue, consisting of 431 hours5 of compensatory tutoring to be provided by Service Provider (IHO Exhibit II at 27);6 (vi) order the DOE to fund 76 sessions, that being 38 hours, of compensatory counseling by a provider of the Parent’s choosing at their normal and customary rate; (vii) order the DOE to fund 190 sessions, that being 95 hours,^[7] of compensatory speech therapy by a provider of the Parent’s choosing at their normal and customary rate; and (viii) order the DOE to fund 152 sessions, that being 76 hours,^[8] of compensatory OT by a provider of the Parent’s choosing at their normal and customary rate. Id.

The DOE did not present a case, introduce any witness testimony, or place any documents in evidence. Parent presented a case that consisted of direct live testimony and testimony by affidavit from Director of Educational Services at Service Provider (“Director”), direct live testimony and testimony by affidavit from Parent of Student, and documents introduced into evidence. During opening statements, DOE raised the affirmative defense that the 2020 – 2021 school year was time barred by the statute of limitations (Tr1. at 29-30). In response, Parent believed there was no time bar to the relief requested; to the extent that there was, Parent then sought relief for the period of time, outside the 2020 – 2021 school year, which ran two years back from the date the due process complaint was filed (Tr1. at 33-34).

5 Or in the alternative 356 hours (IHO Exhibit II at 27).

6 I note that the original request was for 567 hours of compensatory tutoring (Ex. A at 19; Tr. 13).

PROCEDURAL HISTORY

On February 16, 2023, a Due Process Complaint (“DPC”) was filed on behalf of Student, by Parent’s Attorney, under Case No. 246018, pursuant to the Individuals with Disabilities Education Act (“IDEA”). See, 20 U.S.C. 1415(f); and § 4404(1) of the New York State Educ. Law. On February 17, 2023, I was appointed as the Impartial Hearing Officer (“IHO”) to determine the claims in the DPC and conduct an impartial hearing pursuant to IDEA and the New York State Education Law § 4404(1). On March 24, 2023, a settlement and a pre-hearing conference (“PHC”) were held.^[9] Both the District and the Parent appeared. A Due Process Hearing (“DPH”) was scheduled for April 17, 2023.

At the DPH, Parent’s Counsel submitted Exhibits A-Q, all of which were admitted into evidence. Parent’s Counsel also presented two witnesses: 1) Director and 2) Parent. The DOE did not present any witnesses and conceded that it did not provide Student with a FAPE for the 2021-2022 school year (Tr. at 35). During opening statements, DOE raised a statute of limitations defense that the 2020 – 2021 school year was time barred (Tr1. at 29-30). At the end of the hearing, the Parties agreed to submit written briefs in lieu of oral arguments (Tr1. at 123-124). Subsequently, on June 5, 2023, I asked the parties to appear again for the limited purpose of clarifying issues regarding the District’s statute of limitations defense, as well as Parent’s request for IEEs. A list of the documentary evidence in this proceeding is appended to this Decision and Order.

JURISDICTION

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

LEGAL STANDARDS AND FRAMEWORK

FAPE

The IDEA provides that children with disabilities are entitled to a FAPE. See 20 U.S.C. § 1400 (d)(1)(A). 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. See 20 U.S.C. § 1401(9). A school district has offered a student a FAPE when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a 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.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381-82 (2d Cir. 2003); W.G. v. Bd. of Trustees of Target Range School Dist. No. 23, 960 F. 2d 1479, 1484 (9th Cir. 1992); J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000); 8 NYCRR § 200.5(4)(ii). School districts are obligated to provide the special education services listed in a student’s IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d).

The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free School Dist., 142 F.3d 119, 130 (2d Cir. 1998); Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of students with disabilities. Rowley, 458 U.S. at 189; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra v. Pawling Central School Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130. The IEP must be “reasonably calculated to provide some ‘meaningful benefit’” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see 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).

In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted)). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454).

Statute of Limitations

A parent’s due process complaint must be filed “within 2 years of the date [the parent] knew or should have known about the alleged action that forms the basis for the complaint,” unless a state establishes a different limitations period under state law. See, 20 U.S.C. §1415(f)(3)(C); see also 20 U.S.C. § 1415; NYS Education Law § 4404(1)(a); 34 C.F.R. §300.507(a)(2); 34 C.F.R. § 300.51 l(e); 8 NYCRR § 200.5(i)(l)(i); Somoza v. New York City Dept. of Educ., 538 F.3d 106, 114-15 & n.8 (2d Cir. 2008). New York State affirmatively adopted the two-year period found in the IDEA. See, NYS Educ. Law § 4404(1)(a); 8 NYCRR 200.5(j)(1)(i); see also NYS State Review Officer (“SRO”) No. 22-105. “The two-year statute of limitations does not apply if the parent was prevented from requesting the hearing by the local educational agency’s misrepresentations, or because the agency withheld information it was required to provide.” M.G. and V.M v. N.Y. City Dep't of Educ., 15 F. Supp. 3d 296, 304 (S.D.N.Y. 2014). Additionally, “[d]etermining when a parent knew or should have known is necessarily a fact-specific inquiry.” K.C. Ex rel. J.C.T. v. Chappaqua Cent. Sch. Dist., 2018 WL 4757965, at *14 (S.D.N.Y. 2018).

Under the Federal Rules of Civil Procedure (“FRCP”), statute of limitations is an affirmative defense that can be deemed waived if not included in an answer to a complaint. See, FRCP 8(c). However, “[t]he IDEA’s statute of limitations is an affirmative defense, rather than a jurisdictional prerequisite.” M.G, 15 F. Supp. 3d at 304; see also K.H. v. New York City Dep't of Educ., 2014 WL 3866430, at *16 (E.D.N.Y. Aug. 6, 2014). Courts have held that a statute of limitations defense is timely raised so long as it is raised at some point during the impartial hearing. See, SRO 19-069; M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 (S.D.N.Y. 2014) [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 (S.D.N.Y. Sept. 16, 2011) [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice where the district articulated its position prior to the impartial hearing]; Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 (E.D.N.Y. 2002) [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]).

Since affirmative defenses “normally cannot be decided on a motion to dismiss,”^[10] they are deemed waived if they are not otherwise raised during administrative proceedings. See R.B. ex rel. A.B. v. Department of Educ. of City of NY, 2011 WL 4375694, at *5-7 (S.D.N.Y. 2011). Accordingly, the district has the burden of proving that the statute of limitations barred plaintiff’s claims. M.G. v. NYC Dept of Educ., 62 IDELR 195 (S.D.N.Y. 2014), citing Somoza, supra. For a defendant to avail itself of this argument, factual development beyond those plead is typically required. See, Wong v. State Department of Education, 71 IDELR 128 (D. Conn. 2018), citing In re S. African Apartheid Litig., 617 F. Supp 2d 228, 287 (E.D.N.Y. 2009). A party asserting that a claim is time barred by the statute of limitations must establish the date by which the other party “knew or should have known” (“KOSHK”) of the alleged action that forms the basis of that party’s complaint. K.C. v. Chappaqua Cent. Sch. Dist., 2018 LEXIS 169438, at *37 (S.D.N.Y. Sept. 29, 2018) (internal citations and quotation marks omitted).

Furthermore, this discovery rule is considered forward looking. Absent a permissible exception under IDEA, the mere fact that the parent is unaware that they have a right to request an IDEA due process hearing is of no significance. See J.P. v. Enid Pub. Sch., 53 IDELR 112 (W.D. Okla. 2009). IDEA’s plain language states that the SOL begins to run from when the parent knew of the complained-of-action and not when the Parent becomes aware that the DOE’s actions and/or inactions are actionable. Id.

Statute of Limitations (“SOL”) Exceptions

Moreover, the IDEA creates two tolling exceptions to the two-year statute of limitations period. A claim will not be considered if “the parent was prevented from requesting the hearing due to (i) specific misrepresentations by the local education agency that it had resolved the problem forming the basis of the complaint or (ii) the local educational agency’s withholding of information from the parent that is required to be provided under the IDEA 20 U.S.C § 1415(f)(3)(D).” K.H., supra; 8 NYCRR §200.5(j)(1)(i).

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

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.” 8 NYCRR § 200.5(f)(3); see also 34 CFR. §300.504. Again, that withholding must thereby cause the parent not to file a due process complaint. 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).

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. 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).

COVID-19 Tolling

Additionally, there may be specific tolling provisions not normally in effect, but applicable under specific circumstances. For example, NYS Executive Law § 29-a(1) states that the Governor of the State of New York “may by executive order temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster.” NYS Executive Law § 29-a(1).

NYS Exec. Law § 29-a(2)(d) additionally states that any such order “may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions.” Id. During the COVID-19 pandemic, former Governor Andrew Cuomo issued Executive Order No. 202.8 on March 8, 2020, which tolled any specific time limit for the commencement of filing a legal action as prescribed by NYS Educ. Law § 4404(1)(a); 8 NYCRR 200.5(j)(1)(i).11

Governor Cuomo continued to toll12 the statute of limitations for administrative proceedings through subsequent executive orders, specifically Executive Orders 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1, 202.60. These executive orders had the effect of tolling13 all statutory timeframes from March 20, 2020, through November 3, 2020, for a total of 228 days. Lopez-Motherway v. City of Long Beach, 2021 LEXIS 48597 (E.D.N.Y. March 15, 2021); see also Brash v. Richards, 195 A.D.3d 582, 585 (2d Dept. 2021).

Request for Independent Educational Evaluations (IEE)

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.” See 8 NYCRR § 200.1(z).

11 Executive Order 202.8, expressly stated that the subject time limits were “hereby tolled,” and two of the subsequent executive orders referred to the temporary alternation of the subject time limits as a “toll[].” Executive Order Nos. 202.67, 202.72 (9 NYCRR 8.202.67, 8.202.72). 12 While most of the subsequent executive orders did not use the word “toll,” Executive Order (A. Cuomo) 202.67 (9

NYCRR 8.202.67) issued on October 5, 2020, provided that the “suspension in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby continued, as modified by prior executive orders, provided however, for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled.” Executive Order 202.67 (9 NYCRR 8.202.67).

13 Even though the seven subsequent executive orders issued after Executive Order 202.8 did not use the word “toll,” those executive orders all either stated that Governor Cuomo “hereby continue[s] the suspensions, and modifications of law, and any directives, not superseded by a subsequent directive,” made in the prior executive orders, Executive Orders 202.14, 202.28, 202.38, 202.48, or had nearly identical language to that effect, like Executive Orders 202.55, 202.55.1, 202.60.

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. See 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). 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 left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” Shaffer v. Weast, 546 U.S. 49, 60-61 (2005).

If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE. See 8 NYCRR § 200.5(g)(1)(i). 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. See 34 C.F.R. § 300.502(e)(1); 8 NYCRR § 200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989). For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE, Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 (4th Cir. 2011), nor can it deny an IEE at public expense based solely on financial cost. Letter of OSERS, 2002.

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. Letter to Carroll, 68 IDELR 279 (OSEP 2016). 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. 8 N.Y.C.R.R. § 200.5(g)(1)(iii).

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. D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020). 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.”

Id. 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.” Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016).

An IEE may also be requested by an impartial hearing officer “as part of a hearing on a due process complaint.” 8 NYCRR § 200.5(g)(2); 8 NYCRR § 200.5(j)(3)(viii); 34 CFR § 300.502(d). 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.” 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).

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. 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").

FINDINGS OF FACT AND DECISION

A. STATUTE OF LIMITATIONS

Timeliness of District’s Affirmative Defense

A preliminary issue before me is whether District’s affirmative defense was raised in a timely manner. Parent’s position is the District waived this defense when they failed to either assert it in a Due Process Response or raise it at the initial administrative hearing (IHO Exhibit II at 4-5). According to Parent, the pre-hearing conference, held on March 24, 2023, was the initial administrative hearing in this case (Tr2. 20).^[14] District argued that the pre-hearing conference was not a “substantive hearing” (Tr2. 22) and cited to caselaw that held the DOE is not precluded from raising affirmative defenses during the impartial hearing (IHO Exhibit I at 6).

I find that the statute of limitations is an affirmative defense15 which is timely so long as it is raised at some point during the impartial hearing. See, SRO 19-069; M.G. v. New York City Dep't of Educ.,^[15] F. Supp. 3d 296, 304, 306 (S.D.N.Y. 2014) [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]. Here, the District raised this defense during their opening statement at the due process hearing (Tr1. 29-30). I find that the due process hearing was the functional equivalent of an initial administrative hearing and, therefore, was timely made. While Parent disagreed, Parent failed to provide any authority to support their position, that a pre-hearing conference is defined as an initial administrative hearing, and I decline to make that finding (Tr2. 20-21). Thus, I find the District timely raised this affirmative defense.

Applicable KOSHK Date

Having found that District raised a timely defense, the next issue to determine is whether the District met their burden to show Parent’s 2020-2021 claims are time barred. District argued that the applicable KOSHK date should be May 1, 2020, since that is the date of the IEP that governed the 2020-2021 school year and which the hearing request lists numerous complaints about (IHO Exhibit I at 4-5). DOE presented no witness testimony to support their affirmative defense and, instead, relied upon the allegations in the DPC combined with Parent’s direct testimony (Tr2. 19-20). Parent argued that the applicable KOSHK is not May 1, 2020, since (1) DOE failed to show that it provided a copy of the May 1, 2020 IEP to Parent and (2) there is no way Parent could have, or should have known, that DOE would fail to implement the IEP and therefore would not have known about Student’s lack of progress until their first quarter report card (IHO Exhibit II at 6-7).

The DPC in this case is approximately 20 pages long and includes a detailed factual background (Ex. A at 2-6), as well as a comprehensive list of claims and violations made by the District for each school year (Id. at 6-18).^[16] The question is whether the Parent knew or should have known about the alleged action that forms the basis of that party’s complaint. K.C. v. Chappaqua Cent. Sch. Dist., 2018 LEXIS 169438, at *37 (S.D.N.Y. Sept. 29, 2018) (internal citations and quotation marks omitted). Here, I find that the Parent knew or should have known about the claims raised in the DPC based upon the May 1, 2020 IEP meeting.

With respect to the 2020-2021 school year, the DPC alleges that the District (1) failed to provide Student with a FAPE, (2) failed to provide Student with an adequate IEP to meet their unique needs, (3) failed to implement all of Student’s mandated services, (4) failed to develop appropriate, meaningful and measurable goals, which resulted in Student’s failure to make meaningful educational progress (Ex. A at 17-18).

There are a number of claims asserted under the 2020-2021 school year that are relevant to this discussion, however I note in particular Paragraph 47 which states, “Student’s failure to make progress in school was immediate and continued throughout the entirety of the 2020-2021 school year” (Ex. A at 7). Use of the term “immediate” in Paragraph 47 contradicts a KOSHK date in November when Parent received Student’s first quarter report card. In addition, when Parent was asked what the KOSHK date in November would be, Parent could not provide a date, other than “in or about November of 2020” (Tr2. At 10-11).^[17] I find this response insufficient as Parent should have provided a date certain in support of their position. Having failed to provide a specific KOSHK date, I decline to conduct a SOL analysis using “in or about November of 2020.”

Even if Parent provided a specific KOSHK date in November, I am persuaded by the District’s argument regarding Parent’s claims that the May 1, 2020 IEP was inherently defective, thereby making the claim about implementation irrelevant (Tr2. At 12-14). Parent claimed DOE failed to conduct any evaluations of Student prior to the 2020-2021 school year.^[18] This resulted in the DOE being unable to develop appropriately ambitious IEP goals to target Student’s needs.^[19] I find that these preliminary inquiries would impact the other claims raised, to the extent that, if Parent knew or should have known there was something wrong with the IEP, then Student’s lack of progress is immaterial.

Here, I find Parent knew or should have known that the May 1, 2020 IEP denied Student a FAPE. In support of this finding, I relied on Parent’s own testimony, both live and via affidavit. Parent testified that on May 1, 2020, Parent participated in the CSE’s meeting to develop Student’s IEP for the upcoming 2020-2021 school year (Ex. Q at 2). Parent testified that the IEP had Student’s reading and math skills at Pre-Kindergarten levels when Parent knew otherwise that Student could not read. Id. Parent further testified that Student had been struggling with basic life functions and was “surprised that the May 2020CSE did not develop any IEP goals targeting these basic skills” (Id. at 4). Parent also testified that there was inconsistent information between Student’s OT Progress Report and Parent’s own observations, prompting Parent to advocate for an OT evaluation to provide to the CSE to develop an IEP goal which targets Student’s needs (Id. at 4-5).

In another example, Parent testified that they were upset that the CSE did not develop any IEP goals targeting Student’s ability to play with peers during the 2020-2021 school year. Id. The fact that the District failed to evaluate Student was also raised by Parent as a concern. Parent testified that “without sufficient and appropriate evaluations the May 2020 CSE was unable to develop appropriately ambitious IEP goals targeting all of Student’s unique needs and as a result, Student failed to make meaningful progress towards their IEP goals” (Id. at 7). Based upon the foregoing, I find that the applicable KOSHK date in this case is May 1, 2020.

In reaching this conclusion, I further relied upon Parent’s live testimony on June 5, 2023. I noted that there were positive comments by Parent in the May 1, 2020 IEP, therefore, I wanted to seek clarification. When Parent was asked about their impression of the goals and recommendations that had been discussed at the May 1, 2020 IEP meeting, Parent responded that they weren’t satisfied with the goals and thought DOE should have tried to give Student more help (Tr2. 32-33). I credit this testimony, not only as Parent’s prevailing mindset at the time of the May 1, 2020 IEP meeting, but as evidence of Parent’s knowledge of the actions that formed the basis of their complaint.

COVID Tolling

Having found the KOSHK date to be May 1, 2020, a timely DPC would need to be filed on or before May 1, 2022. Even if the applicable COVID tolling period was applied, that being May 1, 2020, through November 3, 2020, a period of 186 days, the SOL would only be tolled until November 3, 2022. Given the fact that the DPC was filed on February 16, 2023, Parent’s claim for the 2020-2021 school year would still be deemed untimely.

Statute of Limitations Exceptions

The District raised both tolling exceptions to the statute of limitations period and argued that neither applied. First, the District argued there was no evidence to show they intentionally misled or knowingly deceived the Parent regarding any potential claims (IHO Exhibit I at 5). I agree with the District that there is no evidence in the record to support this conclusion. The second exception requires evidence that the District withheld information that it was required to provide under the IDEA, which resulted in Parent’s unknowing waiver of right (Id. at 5-6). Here, the District argued there was no evidence to show they withheld information from Parent; however, I find there is evidence to the contrary.

During the hearing, the District was asked to confirm that neither a due process response nor prior written notice (“PWN”) was served in this case (Tr1. 14). In response, the District stated, “I don’t see a filing.” PWN is a procedural safeguard and the failure to provide such notice is considered the withholding of information. See, e.g., El Paso Indep. Sch. Dist. v. Richard R., 567 F. Supp. 2d 918, 50 IDELR 256 (W.D. Tex. 2008) afj'd El Paso Indep. Sch Dist.

v. Richard R., 591 F.3d 417, 53 IDELR 175 (5th Cir. 2009) (failure to provide parents with the procedural safeguards and prior written notice resulted in school district withholding information from the parents); D.G. v. Somerset Hills Sch. Dist., 559 F. Supp. 2d 484, 50 IDELR 70 (D.N.J.

2008) (setting aside SOL for withholding procedural safeguards notice after parent's repeated request for evaluation).

Here, once the District failed to show Parent received PWN following the May 1, 2020 IEP meeting, I find this is the functional equivalent of withholding information. Without knowledge of their procedural rights and safeguards, Parent would not have known about the ability to file a claim against DOE, until such time as they retained counsel. Thus, I find that the SOL is tolled by the applicable exception, thereby making Parent’s claims regarding the 2020-2021 school year timely.

B. FAILURE TO PROVIDE A FAPE

The DOE did not present a case, did not present any witness testimony, and conceded Prong 1 as to the 2021-2022 school year (Tr. 15; 35-36). DOE did not concede FAPE as to the 2020-2021 school year which they argued was time barred. Id. Moreover, even though Student’s IEPs, dated May 6, 2021, and April 28, 2022, were introduced into evidence, DOE still failed to meet its burden under the Burlington/Carter standard. A review of the IEPs offers no explanation as to how the CSE made its recommendations, how the IEPs appropriately describe Student, or whether the IEPs are meaningfully calculated to confer an educational benefit. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating these IEPs, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.” Endrew F., 137 S.Ct. at 1002. Accordingly, the Parent is entitled to a presumption as to the truth of the asserted facts underlying their claims that are contained in the documentary evidence and testimony, to the extent they are credible and are not contradicted by the hearing record. Based on that presumption, and the DOE’s failure to sustain its burden under the Education Law, the record establishes that the DOE failed to provide the Student with a FAPE for the 2020-2021 and 2021-2022 school year.

C. REQUESTED RELIEF

The relief requested by the Parent is equitable in nature, as Parent is asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide the Student with a FAPE for the 2020-2021 and 2021-2022 school years. Specifically, the Parent has requested that the IHO order the DOE to fund compensatory education services for the school years at issue, consisting of the following:

1. 431 hours^[20] of compensatory tutoring with an appropriate provider at the provider’s normal and customary rates (IHO Exhibit II at 27);^[21]

2. 76 sessions, that being 38 hours, of compensatory counseling by a provider of the Parent’s choosing at their normal and customary rate;

3. 190 sessions, that being 95 hours,^[22] of compensatory speech therapy by a provider of the Parent’s choosing at their normal and customary rate; and

4. 152 sessions, that being 76 hours,^[23] of compensatory OT by a provider of the Parent’s choosing at their normal and customary rate.

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy” (Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16). In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe v. East Lyme, 790 F.3d at 454).

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

There are generally two approaches to fashioning a compensatory education award, viz, the “quantitative” approach followed in the Third Circuit (see, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996) (holding that a student denied a FAPE is entitled to compensatory education equal to the period of deprivation), and the “qualitative” approach relied on by the 6th and D.C. Circuits (see, e.g., Reid, 401 F.3d at 518, 524 (requiring a flexible, fact-specific approach in which the award relies “on individual assessments” and is “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place”).

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

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

Compensatory Tutoring

The Parent has requested an order directing the DOE to provide Student with 431 hours of compensatory tutoring, or in the alternative 356 hours (IHO Exhibit II at 27). For the reasons stated below, I am awarding Parent tutoring services in the amount of 356 hours.

Director is employed part-time at Service Provider as the Director of Educational Services (Ex. P at 1). Director is experienced with administering and scoring assessments and evaluations and has been evaluating students at Service Provider since 2012 (Id. at 2). In addition, Director regularly participates in IEP meetings regarding students at Service Provider and is an approved Special Education Teacher Support Services provider through the DOE (Id. at 3).

Service Provider is a tutoring agency whose mission is to give every child the best education possible by developing programs tailored to each student’s specific needs (Ex. N at 1). Student was evaluated by Service Provider on February 21, 2022, at which time Student was in first grade (Ex. P at 4).^[24] Parent subsequently prepaid for 136 hours of private tutoring sessions to begin on February 28, 2022 (Ex. P at 4; 12; Ex. O at 1).

Student was evaluated a second time in 2023, and based upon those results, Director recommended a total of 567 hours of tutoring to “teach Student the academic skills they were missing” (Ex. P at 6). As of March 23, 2023, Student used 91 of the 136 prepaid tutoring hours; therefore, upon completion of the remaining 45 hours, Director recommended 431 hours of tutoring for Student to acquire the fundamental skills they are missing to independently access the curriculum in school (Id. at 13-14).

To monitor Student’s progress, Director testified that they use a web-based application called “Navigator” where teachers input data after each tutoring session with a student (Id. at 62). This data includes scores as well as teacher commentary, all of which can be accessed by Director to develop a progress report. Id. In addition, Parent testified that Student made progress in their reading and math levels, but not a year’s worth of progress as suggested by the CSE (Ex. Q at 29). Specifically, Parent testified that Student is now able to solve math problems on their own and is also learning how to tell time (Tr1. 105-106). Parent has also seen a change in Student’s behavior in terms of being calm and more focused when doing work because of Service Provider (Tr1. 107).

According to Director, Student is academically in the second grade, but functioning on a kindergarten/first grade level because of their deficiencies (Id. at 84). Therefore, to address Student’s unique needs, the recommended tutoring hours were broken down into the following categories: 507 hours of a verbal program; 72 hours of Core Reading program; 240 Splinter Skills; 135 hours of Vocabulary/Word/Attack/Spelling; 60 hours of Writing; and 60 hours to address 12 deficient math skills (Ex. P at 6). This recommendation did not indicate what grade level Student would ultimately achieve; instead, the goal is to give Student as many skills as they need to function independently and be successful in the classroom (Tr1. 74; 83).

I find Director’s recommendation of 431 hours of tutoring to be reasonable and is likely to assist Student in approaching the academic level Student would have otherwise attained but for the instructional delays Student experienced during the 2020-2021 and 2021-2022 school years. While the uncontroverted testimony credibly and persuasively establishes that compensatory tutoring is needed, I am modifying the number of hours to compensate a period of two school years.^[25] As such, Student is entitled to 356 hours of tutoring sessions by Service Provider, at their rate of $97.00 per hour. This number takes into account a reduction of hours for those categories which contained projected third grade curriculum work. In addition, I am ordering that Student may receive these services immediately, as Service Provider is available for tutoring weekdays, weekends, as well as during summer and holiday breaks (Id. at 79).

Reimbursement of Tutoring Services

Parent testified that by February 2022, given Student’s failure to make meaningful progress in school, Parent had Student evaluated and enrolled at Service Provider, for private tutoring at personal expense (Ex. Q at 28). Parent prepaid for 136 hours of private tutoring sessions to begin on February 28, 2022 (Ex. P at 4; 12; Ex. O at 1). Parent submitted a Financial Record from Service Provider which details the number of tutoring sessions attended by Student and the cost (Ex. O). According to Parent, on February 21, 2022, Parent made a credit card payment to Service Provider in the amount of $95.00 for an evaluation fee; and then took out a loan on February 28, 2022, to make a second payment to Service Provider in the amount of $10,890.00, for a total amount of $10,985.00 (Ex. Q at 28). As of March 23, 2023, Student is still enrolled at Service Provider and used 91 of the prepaid hours and will continue to receive tutoring services until the remaining 45 hours are used (Ex. P at 12). Having found a denial of FAPE for the 2020-2021 and 2021-2022 school years, Parent is entitled to compensatory tutoring services; therefore, DOE will be ordered to reimburse Parent in the amount of $10,985.00, upon proof of payment for said services.

Related Services

I find that Student is entitled to receive related services of Counseling, OT and SLT to compensate for the denials of FAPE during the 2020-2021and 2021-2022 school years. I am modifying the number of hours requested to reflect the fact that Student attends a 10-month school year (Ex. E at 21; Ex. H at 21; Ex. J at 16).26

2020 – 2021 School Year

There are 2 IEPs applicable for the 2020-2021 school year. I find that the IEP, dated May 1, 2020, is applicable for the months of September 2020 through April 2021; and that the IEP dated May 6, 2021 is applicable for the months of May 2021 and June 2021.

Student’s IEPs, dated May 1, 2020, recommends Counseling services, 1 session per week, 30 minutes per session; OT, 2 sessions per week, 30 minutes per session; SLT, individual, 2 sessions per week, 30 minutes per session (Ex. E at 20).

Student’s IEP, dated May 6, 2021, recommends Counseling services, 1 session per week, 30 minutes per session; OT, 2 sessions per week, 30 minutes per session; SLT, individual, 2 sessions per week, 30 minutes per session; SLT, group, 1 session per week, 30 minutes per session (Ex. H at 20).

Counseling Services

There is no evidence that Student received any Counseling sessions for the 2020-2021 school year. Parent testified that DOE failed to provide their attorney with records to show that Student received counseling for the 2020-2021 school year (Ex. Q at 26). Furthermore, Parent testified that Student did not receive any counseling services for the 2021-2022 school year (Ex. Q at ^[26]; Tr1. 110). Based upon the aforementioned IEPs, Student will be entitled to 36 sessions, that being 18 hours, of compensatory Counseling services.

OT Services

Parent testified that their attorney received service records from DOE regarding Student’s OT sessions and presented evidence that 33 sessions, that being 16.5 hours, had been provided during the 2020-2021 school year (Ex. Q at 26; Ex, L at 1-7). Based upon the aforementioned IEPs, Student should have received 72 sessions, that being 36 hours; therefore, Student will be entitled to 39 sessions, that being 19.5 hours, of compensatory OT services.

SLT Services

Parent testified that their attorney received service records from DOE regarding Student’s SLT sessions and presented evidence that 40 sessions, that being 20 hours, had been provided during the 2020-2021 school year (Ex. Q at 27; Ex, L at 19-26). Based upon the IEP, dated May 1, 2020, Student should have received 56 sessions, that being 28 hours; and based upon the IEP, dated May 6, 202127, Student should have received 24 sessions, that being 12 hours, for a total amount of 80 sessions, that being 40 hours. Therefore, Student will be entitled to 40 sessions, that being 20 hours, of compensatory SLT services.

2021 – 2022 School Year

There are 2 IEPs applicable for the 2021-2022 school year. I find that the IEP, dated May 6, 2021, is applicable for the months of September 2021 through April 2022; and that the IEP dated April 28, 2022 is applicable for the months of May 2022 and June 2022.

Student’s IEP, dated May 6, 2021, recommends Counseling services, 1 session per week, 30 minutes per session; OT, 2 sessions per week, 30 minutes per session; SLT, individual, 2 sessions per week, 30 minutes per session and in a group, 1 session per week, 30 minutes per session (Ex. H at 20).

27 I note that this IEP increased the SLT services to 2 sessions a week, 30 minutes per session of individual, and 1 session per week, 30 minutes per session of group (Ex. H at 20). Since this IEP was implemented on May 7, 2021 (Ex. H at 1), a total of 8 weeks, out of the 36 weeks, will be calculated using the services recommended in this IEP.

Student’s IEP, dated April 28, 2022, recommends Counseling services, 1 session per week, 30 minutes per session; OT, individual, 1 session per week, 30 minutes per session; OT, group, one session per week, 30 minutes per session; SLT, individual, 1 session per week, 30 minutes per session; SLT, group, 2 sessions per week, 30 minutes per session (Ex. J at 15-16).

Counseling Services

There is limited evidence that Student may have received some Counseling sessions for the 2021-2022 school year. Parent initially testified that Student did receive Counseling services, but later changed their testimony stating they were not sure if all the sessions were provided (Tr1. 111-112). Parent further testified that DOE failed to provide their attorney with records to show whether Student received counseling for the 2021-2022 school year (Ex. Q at 35). I find there is no definitive evidence as to whether Student received all their mandated counseling services, however, there is definitive evidence that DOE conceded FAPE for the 2021-2022 school year (Tr1. 35-36). Therefore, Student will be entitled to 36 sessions, that being 18 hours, of compensatory Counseling services.

OT Services

Parent testified that their attorney received service records from DOE regarding Student’s OT sessions and presented evidence that 30 sessions, that being 15 hours, had been provided during the 2021-2022 school year (Ex. Q at 35; Ex, L at 8-18). Based upon the aforementioned IEPs, Student should have received 72 sessions, that being 36 hours; therefore, Student will be entitled to 42 sessions, that being 21 hours, of compensatory OT services.^[28]

SLT Services

Parent testified that their attorney received service records from DOE regarding Student’s SLT sessions and presented evidence that 39 sessions, that being 19.5 hours, had been provided during the 2021-2022 school year (Ex. Q at 35; Ex, L at 27-30). Based upon the aforementioned IEPs, Student should have received 108 sessions, that being 54 hours; therefore, Student will be entitled to 69 sessions, that being 34.5 hours, of compensatory SLT services.^[29]

Thus, for all those reasons stated above, given the District’s failure to implement the IEP’s for the 2020-2021 and 2021-2022 school years, Student is entitled to the following related services:

1. A total of 72 sessions, that being 36 hours, of Counseling services.

2. A total of 81 sessions, that being 40.5 hours of OT services.

3. A total of 109 sessions, that being 54.5 hours of SLT services.

Request for Independent Educational Evaluations (IEE)

Parent requested that the District fund the cost of the following evaluations, to be conducted by the Parent’s chosen evaluators at their normal and customary rates (IHO Exhibit II at 26): (1) neuropsychological; (2) speech language; (3) occupational therapy; (4) assistive technology; (5) applied behavior analysis assessment; (6) Functional Behavioral Assessment and Behavioral Intervention Plan.

In the alternative, Parent requested that DOE be ordered to immediately conduct a SL evaluation, OT evaluation, AT evaluation, a comprehensive psychoeducational evaluation, an FBA, BIP, and to fund an ABA assessment. Id. Parent argues that the District failed to evaluate Student’s identified areas of need, including SL, OT and Counseling, which have all been mandated as related services. Id. at 25. In addition, given Student’s diagnosis, Parent argued that they are entitled to a neuropsychological evaluation that will determine Student’s cognitive and achievement abilities, adaptive functioning and social-emotional needs. Id. at 26.

The District argues that Parent is not entitled to the requested IEEs because the Parent failed to identify with particularity which DOE conducted evaluation they are disputing. (IHO Exhibit I at 3). In addition, District argues that Parent’s testimony, where they stated that they did not disagree with any DOE evaluation, further supports their position that the Parent’s request should be denied. Id. Parent argues that DOE failed to conduct a comprehensive evaluation of Student in all areas of their suspected and identified needs (IHO Exhibit II at 26).

For the reasons stated below, I am ordering DOE to fund all the requested evaluations, except for the Assistive Technology evaluation. The evaluations will be conducted by a provider of Parent’s choice at their normal and customary rates.

Student is diagnosed with autism and has been receiving services since pre-kindergarten. While the hearing record does not establish that Parent disagreed with any evaluations, there is no evidence in the record to show that DOE conducted any. According to Parent’s testimony, which I credit, Student was not evaluated by DOE prior to the 2020-2021 and 2021-2022 school years (Ex. Q at 11; 27). In addition, when asked if Student received an evaluation from DOE upon turning five, Parent responded that the only time Student received an evaluation was when they were two or two and a half years old (Tr1. 113). Thus, there were no “evaluations” in existence for Parent to disagree with.^[30]

Under IDEA, a reevaluation of a student with disability must occur at least once every three years. 34 C.F.R. § 300.303(b)(2); 8 NYCRR § 200.4(b)(4). 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. 34 C.F.R. § 300.304(b)(1); 8 NYCRR § 200.4(b)(1). 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. 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).

Therefore, under my authority, I find that an award of independent neuropsychological, SL, and OT evaluations, along with an ABA assessment, FBA and BIP are appropriate and supported by the facts and circumstances of this case. As previously stated, the District’s failure to conduct any comprehensive evaluation of Student since they turned five would result in a denial of FAPE. Until such evaluations are completed, the District could not make any informed decisions concerning Student’s present levels of performance, capabilities, needs, and appropriate services. Additionally, without updated and comprehensive information about the nature and extent of Student’s disability and the services Student needs, Parent would continue to be deprived of meaningful participation in the development of Student’s educational programs.

I find that an independent neuropsychological evaluation is appropriate as it would properly assess Student’s cognitive and achievement abilities, adaptive functioning, and socialemotional needs. In addition, according to Director, a neuropsychological evaluation would be beneficial for their purposes, as they would incorporate any recommendations into their services provided to Student (Tr1. 81). Finally, 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.

I further find that an ABA assessment, FBA and BIP are appropriate given Student’s behavioral issues. In the past, Student engaged in temper tantrums when Student did not get their way (Ex. E at 5); exhibited behavioral problems such as biting and hitting their teachers (Ex. H at 5); struggled with transitioning from one activity to another (Ex. H at 5); and became defiant in the classroom when emotions were heightened (Ex. J at 3). Clearly, Student’s social, emotional and behavioral background should be evaluated for a comprehensive understanding of their needs.

In addition, I find that an independent SL and OT evaluations are appropriate. Student has been receiving both services since pre-kindergarten. In April of 2021, Student was receiving two weekly individual sessions of SL therapy, with a recommendation that Student continue these sessions and add one additional weekly group session (Ex. G at 1). In January of 2020, Student was receiving two weekly sessions of OT, with a recommendation that Student continue to address deficits in their grasping skills, visual-motor skills, gross motor skills, and visual perceptual skills (Ex. D at 3). All three of Student’s IEPs, recommend related services of SL therapy and OT (Ex. E at 20; Ex. H at 20; Ex. J at 15). Therefore, I find both SL and OT are areas related to Student’s suspected disability where Student should be appropriately assessed.

Finally, there has been no evidence presented to support the request for an AT evaluation. All three IEPs indicate that Student does not need an AT device and/or service (Ex. E at 10; Ex. H at 8; Ex. J at 6). Director testified that AT is not needed for Student to receive their tutoring services (Tr1. 80). Parent also testified that they have never spoken to Student’s teachers about the need for AT (Tr2. 31-32). Therefore, absent a showing as to why an AT evaluation is necessary or how it would address Student’s needs, Parent’s request is denied.

Equities

Finally, there is no evidence or claim made by the District asserting or suggesting that the Parent failed to cooperate with DOE or interfered in any manner with DOE’s obligation to provide the Student with a FAPE for the 2020-2021 and 2021-2022 school years. To the contrary, it appears Parent cooperated at each IEP meeting and engaged in the process, as evidenced by Parent’s comments noted throughout each of Student’s three IEPs. Furthermore, Parent asked DOE for a paraprofessional to assist Student during the 2021-2022 school year, only to be told that Student had to be re-evaluated to determine if there was a need (Ex, H at 4; 26; Tr2. 31-32). Thus, I find that equities favor the Parent.

OTHER REQUESTED RELIEF

I have reviewed the Parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based on the foregoing, it is hereby: ORDERED that, the DOE shall fund the following Independent Evaluations by issuing payment directly to the provider of the Parent’s choosing, at their normal and customary rates:

1. Neuropsychological evaluation

2. Speech-Language evaluation

3. Occupational therapy evaluation

4. Applied Behavior Analysis assessment,

5. Functional Behavioral Assessment

6. Behavioral Intervention Plan The DOE shall issue payment directly to providers, upon completion of the evaluation, within 30 days of submission of the provider’s invoice.

FURTHER ORDERED that, within 14 days of completion of the aforementioned evaluations, the CSE will reconvene in order to develop an appropriate IEP that offers a program that addresses all of Student’s behavioral, academic, and emotional needs.

FURTHER ORDERED that, the DOE reimburse Parent in the amount of $10,985.00 for prepaid private tutoring sessions. DOE shall issue payment directly to Parent within 14 days of providing proof of payment.

FURTHER ORDERED that, the DOE shall fund 356 hours of compensatory tutoring sessions, to Service Provider, at their rate of $97.00 per hour. Services may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations. The DOE shall issue payment directly to Service Provider within 14 days of submission of invoices for services rendered.

FURTHER ORDERED that, the DOE shall fund the following compensatory related services:

1. 72 sessions, that being 36 hours, of Counseling services.

2. 81 sessions, that being 40.5 hours of OT services.

3. 109 sessions, that being 54.5 hours of SLT services.

These services will be provided to Student by a qualified, independent provider of Parent’s choosing, at provider’s normal and customary rates. Services may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations. The DOE shall issue payment directly to the provider within 14 days of submission of invoices for services rendered.

IT IS FURTHER ORDERED that, to the extent such services, as described above, are not utilized by Student by five years from the date of this Order, any remaining services shall expire.

So Ordered.

August 7, 2023

Cynthia M. Lindblom

Cynthia M. Lindblom

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.

APPENDIX A- REDACTION IDENTIFICATION PAGE

[REDACTED] Information Term Used In FOFD [REDACTED] Student [REDACTED] Parent ([REDACTED]) [REDACTED] Parent ([REDACTED]) [REDACTED] Parent’s Attorney [REDACTED] District or DOE [REDACTED] Rep District [REDACTED] Service Provider [REDACTED] Director

APPENDIX B- DOCUMENTATION ENTERED INTO EVIDENCE

PARENT EXHIBIT(S)

A. Due Process Complaint 2/16/23 21 pages

B. [REDACTED] Speech Language Report 12/11/19 7 pages

C. [REDACTED] Educational Annual Progress Report 1/1/20 4 pages

D. [REDACTED] Occupational Therapy Update 1/16/20 3 pages

E. Individualized Education Program 5/1/20 28 pages

F. Occupational Therapy Progress Report 4/21/21 1 page

G. Speech Progress Report 4/21/21 2 pages

H. Individualized Education Program 5/6/21 27 pages

I. Final Report Card June 2021 2020-2021 4 pages

J. Individualized Education Program 4/28/22 21 pages

K. Final Report Card 8/24/22 2021-2022 2 pages

L. Related Services Records Various 30 pages

M. [REDACTED] Evaluation Report 2/2/23 6 pages

N. [REDACTED] Progress Report 3/27/23 4 pages

O. [REDACTED] Financial Report 3/27/23 4 pages

P. Affidavit of [REDACTED] 4/3/23 15 pages

Q. Affidavit of [REDACTED] 3/9/23 37 pages

DOE EXHIBIT(S)

None

IHO EXHIBIT(S)

I. DOE Closing Brief 6/5/23 9 pages

PARENT

II. Closing Brief 6/5/23 28 pages

Footnotes

[1] No personal identifying information is contained within the body of this Findings of Fact and Decision (“FOFD”). For personal identifying information, please refer to the attached appendix. Further, this FOFD contains no references to the gender binary.

[2] References to exhibits from the Due Process Hearing are denoted “Ex.”

[3] References to the transcript from the Due Process Hearing held on April 17, 2023 are denoted “Tr1.”

[4] In the alternative, Parent requested that DOE be ordered to “immediately conduct a speech language evaluation, OT evaluation, AT evaluation, a comprehensive psychoeducational evaluation that includes cognitive and achievement testing as well as adaptive and social-emotional assessments, an FBA, BIP and fund an ABA assessment” (IHO Exhibit II at 26).

[7] Or in the alternative 111 sessions, that being 56 hours (IHO Exhibit II at 27).

[8] Or in the alternative 89 sessions, that being 44.5 hours (IHO Exhibit II at 27).

[9] Settlement conferences are conducted by an OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. The content of the conferences is confidential, and the parties are directed to attend with knowledge of the dispute and settlement authority should there be an interest in resolution.

[10] In re S. Afr. Apartheid Litig., 617 F. Supp. 2d 228, 287 (S.D.N.Y. 2009), untrue or inconsistent with the school’s own assessments.” 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”).

[14] References to the transcript from the Due Process Hearing held on June 5, 2023 are denoted “Tr2.”

[15] See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 50 IDELR 182 (2d Cir. 2008)

[16] I note the 2020-2021 school year is listed on pages 6-13.

[17] Parent referred to Ex. I in their response which indicates Student’s Academic Report for 2020-2021. I note that each category is separated into 4 sections, labelled T1, T2, T3 and T4. I further note that many of the scores listed under T4 were higher than the scores listed in T1 (Ex. I at 2-3).

[18] See, Paragraph 45 of the DPC (Ex. A).

[19] See, Paragraph 35 of the DPC (Ex. A).

[20] Or in the alternative 356 hours (IHO Exhibit II at 27).

[21] While the relief requested does not specify a provider and specific rate, given Director’s testimony, any funding ordered would be awarded to Service Provider at their rate of $97.00 per hour (Ex. P at 14).

[22] Or in the alternative 111 sessions, that being 56 hours (IHO Exhibit II at 27).

[23] Or in the alternative 89 sessions, that being 44.5 hours (IHO Exhibit II at 27).

[24] Service Provider administered the following evaluations: Slosson Visual Motor Performance Test, WOLD Sentence Copying Test, Boehm Test of Basic Concepts, Reading Readiness Evaluation, Rosner’s Test of Auditory Perception, Chall Phonetic Analysis, Slosson Oral Reading Test (“SORT”), Informal Reading Inventory (“IRI”), Writing Sample, and a Math Placement Exam. Id.

[25] Each tutoring category is assigned a total number of recommended hours as well as an average number of hours per grade level (Ex. M at 2). Some of the categories included 3rd grade levels which I find are beyond the 2020- 2021 and 2021-2022 school years. Therefore, a reduction in the number of hours meant subtracting the average number of hours per grade level from the total number of recommended hours (Ex. M at 2; Tr1. 76-77).

[26] I note that Parent’s requested relief incorporated 38 weeks into their calculations; I decline to follow this calculation and will incorporate 36 weeks instead for a 10-month school year. I reached this number based upon the school year being comprised of 180 days of instruction over the course of a 5-day week.

[28] I note that the OT sessions differed between the May 6, 2021 and April 28, 2022 IEPs; however they equaled the same amount of time in terms of sessions and hours recommended.

[29] I note that the SLT sessions differed between the May 6, 2021 and April 28, 2022 IEPs; however they equaled the same amount of time in terms of sessions and hours recommended.

[30] I find District’s argument that Parent testified “she did not disagree with any DOE evaluation” to be misinterpreted (IHO Exhibit I at 3). To provide context, the question posed immediately prior asked Parent about their affidavit where they alleged that DOE failed to conduct any evaluations (Tr1. 89-90). After responding “Yes, that’s correct,” Parent was then asked, “Are there…any specific evaluations that the DOE conducted of your son that you’re disagreeing with?” Id. Parent responded “No.” Id. I find this answer responsive to the first part of the inquiry that suggests DOE conducted specific evaluations. To interpret otherwise would not comport with Parent’s previous answer; therefore I reject this argument.