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FINDINGS OF FACT AND DECISION
Case Number: 246723
Student’s Name: [REDACTED] (Student)
Date of Birth: [REDACTED]
School District: New York City Department of Education (District)
Hearing Requested by: [REDACTED] (Parent)
Request Date/Date Complaint Filed: 3/16/2023
Dates of Hearing: 08/23/2023
Actual Record Close Date: 09/18/2023
Date of Decision: 09/18/2023
Date of Distribution: 09/18/2023
Time Sensitive: Yes ☐ No ☒
Impartial Hearing Officer: Teresa R. Nuccio, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/23/2023
For the Student:
• [REDACTED], Esq., Attorney for Petitioner
• [REDACTED] (Parent[s])
For the Department of Education:
• [REDACTED], Esq., Attorney for Respondent.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/29/2023
For the Student:
• [REDACTED], Esq., Attorney for Petitioner
For the Department of Education:
• [REDACTED], Esq., Attorney for Respondent.
INTRODUCTION, PROCEDURAL HISTORY & JURISDICTION
(a) Introduction & Procedural History
The parent filed a Due Process Complaint (DPC) against the district on 3/16/2023 and an amended DPC (ADPC) on 06/07/2023.[1] The ADPC alleges violations of the Individuals with Disabilities Education Act (IDEA) and the New York State Education Law, resulting in a denial of a free appropriate public education (FAPE) for the school years of 2020/2021 and 2021/2022.
The ADPC alleges that the district failed to implement the student’s related services mandates and removed vision therapy from the student’s Individualized Education Program (IEP) dated 07/06/2020, notwithstanding the fact she is legally blind. The vision services were restored in the 06/25/2021 IEP. Further, despite the parent’s efforts, he was unable to timely secure related service providers from the district’s service list for occupational therapy, physical therapy, and vision therapy at the beginning of each school year. Therefore, it alleged that the student is entitled to compensatory education services as follows: (a) 350 hours of Occupational Therapy, (b) 350 hours of Physical Therapy, and (c) 50 hours of Vision Therapy.2 The parent is also requesting reimbursement for the cost of an online school the student attended due to the significant health conditions that prevented her from physically attending school during the 2020/2021 and 2021/2022 school years.[3]
The district did not serve a response to the DPC and ADPC or disclose evidence of a Prior Written Notice (PWN) sent to the parent for either school year. A pre-hearing conference was held on 07/21/2023, and an Order & Summary (PHCO) 4 was issued. The PHCO scheduled the due process hearing for 08/23/2023 at 12:00 P.M. and directed the parties to serve (a) disclosure on or before 08/16/2023 [five business days prior to the hearing] and (b) any motions on or before 08/13/2023 [i.e., at least ten (10) calendar days prior to the hearing]. 5 Once disclosure was served, the parties were to serve a memorandum of law at least two (2) business days before the hearing.6 The PHCO put all parties on notice that claims or defenses asserted for the first time in their opening statement or closing argument would be deemed waived.[7] At the PHC, the district represented that it would be presenting two witnesses to “defend the IEP program and placement.” [8]
The parent timely served exhibits on Wednesday, 08/16/2023.[9] However, the disclosure was not forwarded to the tribunal until 08/23/2023 at 10:34 A.M., approximately 1.[5] hours prior to the start of the hearing. This deprived the tribunal of a full opportunity to review the disclosure before the hearing. The district served disclosure on the morning of the hearing at 9:52 A.M., approximately two (2) hours before the start of the hearing.10 The district also did not serve written objections to the parent’s Exhibits A through N before the hearing.[11] Therefore, the exhibits were admitted in evidence over the district’s objection. 12 The parent’s motion to exclude the district’s evidence as untimely was granted.[13] Although neither party served a memorandum of law as to the applicability of the statute of limitations, the district asserted the defense for the first time in its opening statement. In light of both parties’ non-compliance with the PHCO, the tribunal afforded them an opportunity to be heard concerning this defense.
Each party presented an opening statement and closing argument. The parent testified by affidavit, was cross-examined by the district, and then asked redirect and clarifying questions. 14
On 08/28/2023 at 12:09 P.M., the tribunal emailed the parties and advised the parent’s attorney:
Please be advised that upon reviewing the evidence, I have insufficient information regarding the tuition for the 2021/2022 school year. The payment information (Exhibit H) only has the statement for the 2020/2021 school year.
However, even though I did not close the record at the conclusion of the hearing, I cannot request additional evidence as this case is out of compliance. Therefore, I am requesting whether the parent wishes to make an application to withdraw the claim for tuition reimbursement for the 2021/2022 school year without prejudice. If so, I will schedule a further hearing for the parties to present an oral argument. (IHO-3:pp.3-4).
In response to this email, the following email exchange occurred: (1) The parent’s attorney wrote at 12:16 P.M.: “Good afternoon IHO
Nuccio. What will the oral argument relate to?” (IHO-3:3).
(2) The IHO wrote at 12:23 P.M., The oral argument is whether I should dismiss with prejudice the parent’s claim for tuition reimbursement absent a motion by your office to withdraw the claim without prejudice and refile. The district has already objected to the withdrawal without prejudice. Therefore, the oral argument has to be later today or tomorrow morning. I cannot consider additional evidence because, as per my prior email, the case is out of compliance. Neither party requested an extension of the compliance date at the conclusion of the hearing, and I was under the misunderstanding that the compliance date was 09/02/2023 (IHO3:3).
Apparently, the missing documentation was within the disclosure package but inadvertently not labeled as an exhibit. 15 Therefore, this exhibit was neither read into the record nor admitted in evidence during the hearing. 16 The IHO directed the parent’s attorney to resubmit the exhibits correctly marked before the close of business on 08/28/2023 and scheduled a conference for 08/29/2023 regarding the exhibits. 17 The parent’s attorney resubmitted the exhibits marked as parent’s Exhibits A through
O. 18 The parties appeared on 08/29/2023.19 The parent requested and was granted an extension of the compliance date over the district’s objection. The parent’s exhibits were admitted into evidence over the district’s objections since the previously unmarked
15
IHO-4:1
16 IHO-3
17 IHO-3
18 IHO-5
documents were within the initial disclosure forwarded to the district by the parent. Accordingly, there was no prejudice to the district as the documents were timely disclosed which afforded the district an ample opportunity to review them before the hearing.
(b) Jurisdiction
The undersigned, a certified New York State Special Education Impartial Hearing Officer (IHO), is employed by the New York City Office of Administrative Trials and Hearings. I was appointed to adjudicate this hearing on 03/17/2023 pursuant to both the IDEA, Article 89 of the Education Law, and the Federal and State implementing regulations. The undersigned meets all the qualifications and requirements outlined in the Federal and State statutes that grant me the authority to adjudicate this hearing. [20]
FINDINGS OF FACT
The student is currently [REDACTED] years old and a high school graduate. She was classified by the district as “Other Health Impairment.” The student’s medical conditions stem from an undetected tick bite. The student is legally blind and has been diagnosed with encephalopathy, adrenal dysfunction, dysautonomia, flaccid paralysis, and a spinal cord injury. As a result, the student is wheelchair-bound because she cannot feel or move both legs and has postural orthostatic tachycardia syndrome. 21 The student was attending a New York State-approved nonpublic school (NPS), but unfortunately, she did not have the strength or endurance to physically attend school in a traditional setting. 22 Since the NPS acknowledged that it could not meet her needs within the school building, the district recommended an online, pace-based educational program for the student in conjunction with the NPS. However, upon enrolling the student, the parent learned that this online program was tuition-based.[23] The parent filed a due process complaint and was awarded reimbursement of the cost of the online program for prior school years.[24] The parent paid the tuition for the 2020/2021 and 2021/2022 school years, which are the subject of this DPC. 25
As per the 07/06/2020 IEP, the student was to receive five (5) sessions of occupational therapy per week, 60 minutes each, five (5) sessions of physical therapy per week, 60 minutes each, and two (2) sessions of counseling per week, 30 minutes each.[26] The 06/25/2021 IEP recommended the same related services plus one (1) session of vision therapy per week, 30 minutes each.[27]
The parent testified that once service providers were assigned to the student, all related services were provided on an inconsistent basis. 28 Additionally, the vision therapist did not start to render services until 12/2021. Therefore, the parent is seeking compensatory education service hours for all missed therapy sessions during the 2020/2021 and 2021/2022 school years.
CONCLUSIONS OF LAW & ANALYSIS
(a) Burdens of Proof In New York State, the district has the burden of proof, including the burden of persuasion and production, except that a parent seeking tuition reimbursement for a unilateral parental placement has this burden concerning the appropriateness of such placement.[29] The standard required is a preponderance of the evidence. [30]
Here, the district carries the burden on all issues because the student was placed by the district in an approved NPS with a collaborative online program to receive a FAPE. The parent did not unilaterally place the student in a private online school. The parent is seeking reimbursement of the necessary cost of the online component of the placement in the NPS that the district should have funded, together with an award of compensatory education.
The district failed to fund the cost of the recommended placement in an online program. It is undisputed that the student was not attending a community school due to her acute medical conditions. I note that the IEPs were inconsistent on their face and incorrectly stated that the student was being homeschooled[31] while recommending placement in a “NYC DOE School Non-Specialized [District 1-32].”[32] The parent’s uncontroverted testimony and documentary evidence established that the online high school program was attended in conjunction with the NPS recommended by the district.[33] The parent had no alternative but to pay the cost of the online program since the student could not attend a community school. The district neither raised the defense that the parent unilaterally placed the student in the online program nor challenged the cost of the program on the merits by seeking an equitable denial or reduction of an award of reimbursement for either school year.
It is noted that the only defense asserted by the district to all the parent’s claims for the 2020/2021 school year was the statute of limitations. However, as discussed below, the district asserted this defense on the morning of the hearing and failed to establish through the parent’s evidence or testimony concerning the accrual date when the parent knew or should have known of the claim for reimbursement and compensatory education.
(b) A Free Appropriate Public Education The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded a FAPE.[34] The two purposes of the IDEA are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and
(2) to ensure that the rights of students with disabilities and parents of such students are protected. 35
Further, the IDEA directs that a tribunal’s decision must be made on substantive grounds based on a determination of whether the student received a specifically tailored FAPE in conformity with a comprehensive, written IEP.[36] An IEP must contain assessments of the student’s needs, strategies to meet those needs, and goals used to measure the effectiveness of the plan.[37] A FAPE is offered to a student when the IEP is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[38] A FAPE is further defined as “educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” [39]
If a procedural violation is alleged, a tribunal may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. [40]
The district meets its burden by offering a “cogent and responsive explanation for their decision that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”[41] Moreover, it is the district’s burden “to demonstrate which evaluative materials were reviewed during each CSE meeting in reaching the terms of the IEP[s].”[42] Otherwise, a tribunal is …left to speculate many months . . . many years, later as to how the CSE reached the terms of the child's IEP (i.e., which, if any, evaluative materials the CSE actually considered). The resulting implication of this procedural violation is that it provides the reviewing authority with almost unfettered discretion, as it combs through the evaluative materials generated at the time the IEP was formulated, to match terms of the IEP to any assertion contained in any existing document, irrespective of whether it was actually viewed and considered by the CSE or even in possession of the CSE at the time of the meeting. [43]
This is impermissible because “it permits the reviewing body to offer post hoc rationalizations for how the CSE reached its conclusions and refer to documents that may or may not have been in possession of the CSE at the time of the meeting.” 44
The district did not offer a cogent and responsive explanation concerning either (a) the failure to fund the online program to ensure the student received a FAPE in light of her substantial physical disabilities or (b) the discontinuance of the vision services for the 2020/2021 school year. The district also did not present evidence that (a) the vision services were provided to the student prior to December of the 2021/2022 school year and (b) that the student actually received five sessions per week of occupational and physical therapy. Accordingly, the parent’s claims are uncontroverted.
Therefore, as a matter of law, I find that the district failed to provide the student with a FAPE for the 2020/2021 and 2021/2022 school years.
(c) The Remedy of Compensatory Education An appropriate equitable remedy for a denial of a FAPE can include an award of compensatory education 45 in the form of supplemental special education or related services. 46 An award of compensatory education is an equitable remedy that “should aim to place disabled children in the same position they would have occupied but for the school district’s violation of the IDEA.” 47
A hearing officer is authorized under the IDEA to fashion an appropriate remedy[48] in the form of retroactive and prospective equitable relief that requires a school district to fund compensatory education services.”[49] Yet, unlike an IEP that need only provide some benefit, compensatory awards must do more, i.e., they must compensate, and thus, hearing officers may award educational services to be provided prospectively to compensate for a past deficient program. [50]
There are generally two approaches to fashioning a compensatory education award: 1) the “quantitative” approach[51] and 2) the “qualitative” approach.[52] The quantitative approach provides for compensatory education equal to the period of deprivation, whereas the qualitative approach fashions an award based upon individual
45 E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 [2d Cir. 2014]. 46 P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] 47 Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005]and P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008] 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.”[53] This inquiry is a fact-specific, case-by-case determination to accomplish IDEA’s purpose.” [54]
The Second Circuit has generally adopted the practice of leaving “the mechanics of structuring the compensatory education award” to the sound discretion of the court to fashion a relief that is appropriate in light of the purpose of the IDEA without articulating a specific formula or approach. [55]
The Second Circuit has also held that compensatory education may be awarded to students who are ineligible for services under the IDEA by reason of age or graduation only if the district committed a “gross violation” of the IDEA, which resulted in the denial of or exclusion from, educational services for a substantial period of time. [56]
Here, the district did not impeach the parent’s testimony on cross-examination that the student (a) was excluded from vision therapy for the entire 2020/2021 school year and from 09/2021 through 12/2021 during the 2021/2022 school year, (b) received vision therapy on an inconsistent basis from 12/2021 through 06/2022; and (c) that the occupational and physical therapy were also provided inconsistently for each school year. I find the parent’s testimony credible. The district had the burden to establish that it did not commit a gross violation resulting in the denial of or exclusion from educational services for a substantial period of time.[57] The district failed to meet this burden.
Under New York law, the district has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award,[58] but the parent must identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the years it is claimed the student was denied a FAPE.[59] This is akin to a pleading requirement to provide the district with fair notice of the claim. [60] The IHO may order that an award of services be placed in a bank to allow flexibility in the implementation. [61]
Neither the district nor the parent offered evidence as to the number of vision therapy sessions the student was to receive in the 2020/2021 school year. Therefore, the tribunal is awarding compensatory education for this school year as per the mandates in the 06/25/2021 IEP, i.e., one (1) session per week, 30 minutes each (37 sessions), for a 40-week/10-month school year, less three weeks for winter break in
12/2020, mid-winter break in 02/2021, and spring recess in 04/2021. This calculation is supported by the parent’s testimony that the vision therapy was “restored” for the 2021/2022 school year. The district did not offer evidence to the contrary.
The parent was unable to articulate the number of missed sessions for vision therapy on or after 12/2021. Therefore, based on the 40-week/10-month school year calculation set forth above, the student was entitled to 37 sessions in the 2021/2022 school. The student missed appropriately nine (9) sessions from September to December 2021 and then an undetermined number of sessions from 12/2021 through 06/2022. There is no evidence of regression for the tribunal to craft a qualitative award of compensatory education.
As to occupational and physical therapy, the parent testified that the student received services approximately two to three times a week, as opposed to the mandated five sessions per week for each school year. Again, based on the above calculation for a 40-week/10-month school year, the student was entitled to approximately 185 sessions (5 x 37) of occupational therapy and 185 sessions of physical therapy in each school year. The maximum number of hours is approximately 370 for each service. Again, there is no evidence of regression for the tribunal to craft a qualitative award of compensatory education.
Without evidence to the contrary, the failure to provide vision services during the 2020/2021 school year and the failure to provide all related services on a consistent which resulted in the denial of or exclusion from, educational services for a substantial period of time. [62]
The tribunal is granting a quantitative hour-for-hour compensatory education award. The hours shall be placed in a non-expiring bank to be used at the parent’s discretion as follows:
1) For the 2020/2021 school year: (i) 37 sessions of vision therapy, 30 minutes each.
(ii) 185 sessions of occupational therapy, 60 minutes less the number of sessions the student actually received.
(iii) 185 sessions of physical therapy, 60 minutes less the number of sessions the student actually received.
2) For the 2021/2022 school year: (i) 37 sessions of vision therapy, 30 minutes each less the number of sessions the student actually received.
(ii) 185 sessions of occupational therapy, 60 minutes less the number of sessions the student actually received.
(iii) 185 sessions of physical therapy, 60 minutes less the number of sessions the student actually received.
3) The district’s implementation unit shall calculate the number of sessions the student is owed within 35 days of the date of this order.
(d) Statute of Limitations The IDEA and New York State,[63] provide 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.”[64] It is well settled that the date when the parent knew or should have known about the claim is a “fact-specific inquiry.” [65]
The defense of the statute of limitations is an affirmative defense.[66] Therefore, the district carries the burden of proof to establish that the parent’s claim is timebarred.[67] This defense can be waived if the district fails to timely and affirmatively raise it.[68] The failure to raise an affirmative defense at the lowest administrative level in the proceedings, either in a written response to the DPC, at the pre-hearing conference, or in a pre-trial motion, constitutes a waiver of the defense.[69] The parent must have an adequate opportunity to address this issue, and the IHO is foreclosed from conducting a sua sponte inquiry into a defense. [70]
Based on the case law, the district’s argument that M.G. v. New York City Dep't of Educ., stands for the proposition that the district can raise the defense of the statute of limitations for the first time at the due process hearing, is without merit. The district essentially misconstrues the holding in M.G. The Court held that the federal court was precluded from considering the defense because the district raised it for the first time on a federal appeal. This is black-letter appellate law. Therefore, the defense was waived.
Next, a presiding administrative tribunal may regulate the course of a hearing, including fixing the time for filing briefs and other documents.[71] Therefore, unless expressly prohibited by regulation, an IHO is provided with broad discretion, subject to review, concerning the conduct of an impartial hearing, “so long as they accord each party a meaningful opportunity to exercise their rights during the impartial hearing,” and a “sufficient opportunity to prepare their respective cases and review evidence.” [72] The sanctions imposed due to a party’s failure to follow the IHO’s directives do not constitute a denial of due process. [73]
Here, the district failed to comply with multiple provisions of the PHCO. The PHCO stated,” The parties may not assert claims and defenses for the first time in their opening statement or closing argument, and shall be deemed waived” (IHO-2:¶¶6-8, and see ¶17). At the prehearing conference, the district did not indicate that it would be asserting the defense (IHO-2:¶7). It is further noted that the district failed to object to the tribunal’s directives or point out misstatements in the prehearing conference order within three (3) calendar days of the date of the order (IHO-2:¶17).
The district further failed to timely serve disclosure or a memorandum of law outlining its legal arguments two business days prior to the due process hearing (IHO2:¶8). The memorandum of law would have given the parent an opportunity to fully prepare and address the defense of the statute of limitations at the due process hearing.[74] The parent was deprived of the opportunity to prepare testimony regarding when the district refused to fund that portion of the NPS program to provide the student with a FAPE. Therefore, not only did the district consent to the terms of the PHCO, but it failed to avail itself of multiple opportunities to assert the defense as outlined in the PHCO. A due process hearing is not a “summary gotcha game.” [75]
Without a witness from the district, it is unknown whether the district representatives engaged in conduct that led the parent to believe that (a) the IEPs would be corrected to remove inconsistencies noted above regarding school placement, (b) payment would be forthcoming, and (c) the 07/06/2020 IEP would be corrected to include the vision services that were removed from for the 2020/2021 school year. It is also unknown whether the district (a) withheld procedural safeguards, a school location letter, and a PWN and (b) actually provided the disputed IEPs to the parent. The foregoing documentation would have timely put the parent on notice of the school placement inconsistencies in the IEPs.[76] To require the parent to testify “on the spot” to rebut the defense of the statute of limitations would be prejudicial and deprive them of the opportunity to meaningfully participate in the hearing.
ORDER
Based upon the above, it is hereby, ORDERED that the District/Respondent denied the Student a FAPE for the 2020-2021 and 2021-2022 school years, and it is further
ORDERED that the Petitioner/Parent’s claim for reimbursement of the online program is GRANTED as follows: 1) the District/Respondent shall reimburse the parent the amount of $1,921.00for the 2020/2021 school year,[77] and 2) the District/Respondent shall reimburse the parent the amount of $2,692.00 for the 2021/2022 school year,[78] and it is further
ORDERED that the Parent/Petitioner’s claim for an award of compensatory education is awarded as follows: 1) For the 2020/2021 school year: (i) 37 sessions of vision therapy, 30 minutes each; and (ii) 185 sessions of occupational therapy, 60 minutes less the number of sessions the Student actually received, (iii) 185 sessions of physical therapy, 60 minutes less the number of sessions the student actually received, and 2) For the 2021/2022 school year: (i) 37 sessions of vision therapy, 30 minutes each less the number of sessions the student actually received, (ii) 185 sessions of occupational therapy, 60 minutes less the number of sessions the student actually received, (iii) 185 sessions of physical therapy, 60 minutes less the number of sessions the student actually received, and 3) The district’s implementation unit shall calculate the number of sessions the student is owed within 35 days of the date of this order, and it is further
ORDERED that the Respondent/District shall directly fund the compensatory vision, occupational, and physical therapy service hours by providers of the Parent/Petitioner’s choosing at the providers’ customary rate within 35 days of submission of invoices and proof of services rendered.
SO ORDERED
Teresa R. Nuccio, Esq., IHO
Dated: September 18, 2023
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 proceedings 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 PAGE
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
Petitioners: [REDACTED]
Nonpublic School: [REDACTED]
Online Program: [REDACTED]
APPENDIX B - DOCUMENTS IN EVIDENCE
EXHIBIT DESCRIPTION DATE PAGES
A. Impartial Hearing Request 06/07/2023 3 pages
B. IEP 07/06/2023 13 pages
C. [REDACTED] School Program Description 12/19/2018 1 page
D. [REDACTED] Course Approval 12/19/2018 1 page
E. Letter from Physician 12/10/2018 3 pages
F. [REDACTED] Enrollment Contract 12/20/2018 4 pages
G. [REDACTED] Evaluation 11/30/2020 5 pages
H. [REDACTED] Payment Information 05/04/2021 3 pages
I. [REDACTED] Program Description Undated 12 pages
J. Progress Reports Dates Multiple 7 pages
K. Transcript 03/30/2021 1 page
L. IEP 06/25/2021 14 pages
M. FOFD 06/13/2022 27 pages
N. [REDACTED] 21-22 Payment Information 04/16/2021 4 pages
O. Affidavit of [PARENT] 79 08/23/2023 3 pages
Footnotes
[1] P-A
[3] P-A:pp.2-3
[5] PHCO ¶9 and 10
[7] Id.
[8] PHCO ¶7[a]
[9] T19:1-11 (Transcript Page: Line)
[11] PHCO ¶19[d]
[13] T17:18-25, 18:1-25 19 The transcript is not available as of the date of this decision.
[20] 20 U.S.C. § 1400 et seq., Education Law § 4404 et seq., 34 C.F.R. § 300 et seq.; and 8 NYCRR § 200.5 et seq., 28 Tr.32:4-8, 33-44, 39:17-21
[23] P-O:¶10-14
[24] P-O:¶2-5, ¶12-13, ¶16. The IHO did not consider the Findings of Fact and Decision (P-M) as to the prior school years, as each DPC stands on its own evidence. This FOFD is considered for the procedural history only.
[26] P-B-8
[27] P-L-8
[29] Education Law § 4404 (1)(c)
[30] 20 U.S.C. § 1415 (i) (2) (c) (iii), See also Reid v. District of Columbia, 401 F.3d 516, 521 (D.C. Cir 2005)
[31] P-B-2 and P-L-2. This is a separate violation of the Education Law since a homeschooled student would receive services through an Individualized Education Program pursuant to Education Law § 3602-c.
[32] P-B-11 and P-L-11 35 20 U.S.C. § 1400 (d) (1) (A)-(B)
[33] See P-K-1 (High School Transcript). The credits earned through the online program were reported by the NPS (and see C1).
[34] See 20 U.S.C. §1400 (d) (1) (A); Schaffer v. Weast, 546 US 49 (2005)
[36] See 20 U.S.C. § 1415 (f) (3) (E) (i) and 34 C.F.R. § 300.13
[37] 20 U.S.C. § 1414 (d) (1) (A)
[38] Endrew F. v. Douglas County Sch. Dist. RE-1, 580 US 386, 399 (2017)
[39] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982)
[40] 20 U.S.C. § 1415 (f) (3) (E) (ii), 34 C.F.R. § 300.513 (a) (2) and 8 NYCRR § 200.5 (j) (4) (ii)
[41] Endrew F., 137 S.Ct. 1002 44 Id. (italics added).
[42] L.O. v. N.Y. City Dep’t of Educ., 822 F.3d 95, 110 [2nd Cir. 2016]
[43] Id. (italics added).
[48] P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 123.
[49] Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 [2d Cir. 2008]; and Doe v. East Lyme, 790 F.3d 454
[50] See Reid v. Dist. of Columbia, 401 F.3d 525
[51] 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.].
[52] See, e.g., Reid, 401 F.3d 524
[53] Id.
[54] Id.
[55] 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. 2015]; see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 [E.D.N.Y 2008]
[56] See Doe v. E. Lyme Bd. of Educ., 790 F.3d 456 n.15 [2d Cir. 2015], and Somoza v. New York City Dep't of Educ., 538 F.3d at p.109 n.2, and p.113 n.6
[57] See Doe v. E. Lyme Bd. of Educ., 790 F.3d 456 n.15, and Somoza v. New York City Dep't of Educ., 538 F.3d at p.109 n.2, and p.113 n.6
[58] Education Law § 4404[1][c]
[59] See JKG v. Wissahickon Sch. Dist., 2021 U.S. Dist. LEXIS 55235 *25 [E.D. Pa. 2021], [noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”]; Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 [D.D.C. 2017] [holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits”] [internal quotes and citation omitted].
[60] See generally, Rombach v. Change, 355 F.3d 164, 171 [2d Cir. 2004]
[61] M.M. v. New York City Dep’t of Educ., 2017 U.S. Dist. LEXIS 47812, *25 [S.D.N.Y. 2017] basis during the 2021/2022 school year constituted a “gross violation” of the IDEA, p.109 n.2, and p.113 n.6
[62] See Doe v. E. Lyme Bd. of Educ., 790 F.3d 456 n.15, and Somoza v. New York City Dep't of Educ., 538 F.3d at
[63] Educ. Law § 4404 (1) (a)
[64] Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 114, quoting 20 U.S.C. § 1415 (b) (6) (B).
[65] K.H. v. New York City Dep't of Educ., 2014 U.S. Dist. LEXIS 108393, *52 [EDNY 2014]
[66] K.H. v. New York City Dep't of Educ., 2014 U.S. Dist. LEXIS 108393, *52, citing M.G. v. N.Y. City Dep't of Educ., 15 F. Supp. 3d 296, 305 [SDNY 2014]
[67] Id.
[68] M.G. v. N.Y. City Dep't of Educ., 15 F. Supp. 3d 305, citing Somoza v. New York City Dep’t of Educ., 538 F3d 111, fn.50, and European Am. Bank v. Benedict, 90 F.3d 50, 54, fn.51 [2d Cir. 1996]
[69] R.B. v. Dep't of Educ. of the City of New York, 2011 U.S. Dist. LEXIS 106273, p.15-19 [SDNY 2011]; and see Application of a Student with a Disability, Appeal No. 23-032, p.8 citing M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 304, 306
[70] Application of a Student with a Disability, Appeal No. 23-036, p.8
[71] State Administrative Procedure Act § 304 [4] [emphasis added]
[72] Application of a Student with Disability, 23-019, p.14 [internal citations omitted]
[73] Id.
[74] Application of a Student with a Disability, Appeal No. 23-036, p.8
[75] Jusino v. New York City Dep’t, 2016 U.S. Dist. LEXIS 203006, *17 [EDNY 2016], affirmed 700 Fed. Appx. 25 [2017]
[76] 20 U.S.C. § 1415 (f) (3) (D) (i) and (ii) and Educ. Law § 4404 (1) (a)
[77] P-H
[78] P-N 79 The parent attested to the truth of the contents of the affidavit under oath at the hearing (See Transcript at p. 28).