New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 597541 - NYC: 246838

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED] (“Student”) ^[1]

School District: NYC DOE Serv. Dist. #[REDACTED]

(“DOE”)

Impartial Hearing Officer: William Yukstas

Date of Filing: 3/21/2023

Hearing Requested by: [REDACTED] (“Parent”)

Dates of Hearing: 7/24/2023

8/8/2023

Record Close Date: 8/31/2023

Time Sensitive: No

Date of Decision: 9/2/2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/24/2023:

For the Student:

[REDACTED] (“Parent’s Attorney”)

[REDACTED] (“Legal Intern”)

For the Parents:

[REDACTED] (“Pediatric Neuropsychologist”)

[REDACTED] (“Tutoring Director”)

For the District:

[REDACTED] (“DOE’s Attorney)

Interpreter:

[REDACTED], ID #3611166

NAMES AND TITLES OF PERSONS WHO APPEARED ON 8/8/2023:

For the Student:

Parent’s Attorney

[REDACTED] (“NPS Coordinator”)

For the District:

DOE’s Attorney

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”), the New York State Education Law, and Section 504 of the Rehabilitation Act. Parent filed a due process complaint (“DPC”) on 3/21/2023 alleging that the DOE failed to offer Student a free appropriate public education (“FAPE”) for the 2018-2019; 2019-2020; 2020-2021, 2021-2022, and 2022-2023 school years. P-F-1,2.^[2] By way of relief, Parent seeks an order requiring the DOE to: reimburse Parent for tuition payments to NPS for the 2021-2022 school year in the amount of $41,518.22; fund 1,000 hours of 1:1 academic tutoring at Tutoring Agency at a rate of $175 per hour; and, provide for transportation to and from Tutoring Agency. IHO-III. Considering the foregoing and as more fully discussed below, I find that (a) the DOE failed to meet its burden that it offered Student a FAPE, and (b) Parent’s requested relief is appropriate with modification.

PROCEDURAL HISTORY

Parent filed a due process complaint (“DPC”) on 3/21/2023. P-F. I was appointed on 3/22/2023. A pre-hearing conference was held on 4/27/2023. Status conferences were held on 5/23/2023, 6/9/2023, and 6/28/2023. The parties requested extensions of the compliance date on 5/23/2023, 6/28/2023, and 8/1/2023, all of which were granted. On 6/22/2023, DOE submitted a motion to dismiss Parent’s IDEA claims for the 2018-2019, 2019-2020, and 2020-2021 school years on the basis that those claims were barred by the IDEA’s statute of limitations. IHO-I. In my Pre-Hearing Conference Order, I specifically instructed the DOE to file any motion regarding the statute of limitations before 5/30/2022. IHO-II. I reiterated this instruction at our status conference on 5/23/2023. IHO-III. Despite this, on 6/28/2023, I informed both parties that I would accept DOE’s motion, that the motion raised specific factual questions, that I would treat the statute of limitations as an affirmative defense, and that both parties should present evidence on the issues as they deemed appropriate. IHO-V. Parent’s Attorney requested the opportunity to respond to the allegations at the hearing and in closing arguments, and I granted this request. IHO-V. On 6/28/2023, Parent’s Attorney requested a subpoena for “all documents” in Student’s file. IHO-IV. By email, I told the parties I would not sign such a subpoena without an affirmation indicating what documents Parent expected to locate and their relevance. IHO-IV. Parent’s Attorney stated that Parent would follow up for necessary documents with DOE and did not renew the subpoena request. A due process hearing was held on 7/24/2023 and 8/8/2023. At the due process hearing, the DOE did not call any witnesses and submitted exhibits 1 through 19, which were accepted into evidence without objection. Tr. 16. Parent submitted exhibits A through Y, which were accepted into evidence without objection. Tr.21 (A through X); Tr.64 (Y). Included in Parent’s exhibits were affidavits from Pediatric Neuropsychologist (P-A), Tutoring Director (P-B), Parent (P-C), and NPS Coordinator (P-Y). Both parties requested the opportunity to submit written closing arguments, which were submitted on 8/16/2023. IHO-VI; IHO-VII.

FINDINGS OF FACT

As this is a multi-year claim, I will address each school year at issue in turn.

2018-2019

Student was initially found eligible for special education and related services during the 2017-2018 school year as a student with a Learning Disability. D-2-1; D-3. Student’s father gave consent for Student to be evaluated and acknowledged receiving “A Parent’s Guide to Special Education” from the DOE on 10/4/2017. D-1. There is no indication that Parent was provided with a copy of the Procedural Safeguards and no evidence in the record regarding the information that is included in “A Parent’s Guide to Special Education.” The first Prior Written Notice in evidence is from 4/11/2018 and recommends Parent to go to the DOE’s website to retrieve a copy of the Procedural Safeguards. D-6-2.^[3] An IEP was developed on 11/29/2017 recommending that Student receive the following special education and related services: Integrated Co-Teaching, in Spanish, ^[4] fifteen periods per week in ELA, ten periods per week in Math, three periods per week in Social Studies, and two periods per week in Science. D-3-12. Student’s academic performance was at a kindergarten level in both reading and math. D-3-17. Student’s cognitive ability was assessed to be in the Low Range. D-3-2. Student was reported to be well-behaved and well-liked by peers and teachers. D-3-3.

On 11/15/2018, a new IEP was developed for Student. D-10. In reading, Student had progressed from a level A to a level D but was still performing at a kindergarten level overall. D10-1. In math, Student was assessed to be at a level one, which is not further explained. The 11/15/2018 IEP recommending that Student receive the following special education and related services: Integrated Co-Teaching, in Spanish, ten periods per week in Math, ten periods per week in ELA (in English), three periods per week in Social Studies, and two periods per week in Science. D-10-8. The Prior Written Notice, dated 12/1/2018, in evidence is not signed. D-11. On 5/7/2019, Parent agreed to an amendment of Student’s IEP so that Student would receive instruction in Science and Math in English. D-12 (it is unclear why this change was not followed in the next year’s IEP).

DOE did not call any witnesses to explain Student’s progress during the 2018-2019 school year or any of the communications that the DOE had with Parent. Parent did not present any evidence regarding the 2018-2019 school year except for Parent’s blanket statement that she attended IEP meetings every year at Elementary School and told Elementary School that she was concerned about Student’s lack of academic progress. P-C-8.

In Parent’s DPC, Parent claimed that the IEPs in effect during the 2018-2019 school year were substantively deficient because Student failed to make any progress in reading and instead of offering different or increased services, the DOE did not substantially change the IEP or add any goals to it. P-F-5.

2019-2020

Student attended the fifth grade at Elementary School during the 2019-2020 school year. P-F-4. On 11/15/2029, a new IEP was developed for Student. D-13. Very limited additional evaluation data was available for this IEP. D-13-1 (it appears to be diagnostic testing data from the beginning of the school year). The limited data suggests that Student was performing at roughly a first-grade level in reading and a second-grade level in writing. D-13-1. Student was able to identify high frequency words and identify the main idea in first and second grade texts. D-13-1. In math, Student had mastered some basic skills but was struggling with word problems and learning basic multiplication facts. D-13-2. Student was reported to be well-behaved, respectful, and helpful though easily distracted with a short attention span. D-13-2. The 11/15/2019 IEP recommended that Student receive the following special education and related services: Integrated Co-Teaching, in Spanish, ten periods per week in Math, ten periods per week in ELA (in English), two periods per week in Social Studies (in Spanish), and two periods per week in Science (in English). D-10-8.

DOE did not present any additional evidence regarding this school year.

Parent testified that she repeatedly told Elementary School that she was concerned that Student was not making any progress. P-C-8.

In Parent’s DPC, Parent alleged that the IEPs developed, and program offered, to Student for the 2019-2020 school year was substantively insufficient because the goals were insufficient in reading and the IEP failed to address Student’s most glaring weakness, which was decoding. PF-4.

2020-2021

Student attended the sixth grade at Middle School during the 2020-2021 school year. P-C-

9. On 11/12/2020, a new IEP was developed for Student. D-16. Very limited additional evaluation data was available for this IEP. D-16-1 (the 2019 state test results, mid-unit teacher assessments, and some general diagnostic testing is referenced). The limited data suggests that Student was still performing at roughly a kindergarten or first-grade level in reading and math. D-16-1. Student was observed to follow Google Classroom norms appropriately, participate in class when called upon, and to be a gentle and well-behaved student. D-16-4. The 11/12/2020 IEP recommending that Student receive the following special education and related services: Integrated Co-Teaching, in English, ten periods per week in Math and ten periods per week in ELA. D-16-10. There is a Prior Written Notice from 11/13/2020 in English in the record. D-17-1.

DOE did not present any additional evidence regarding this school year.

Parent was concerned about Student’s ongoing failure to make academic progress and arranged for him to have a Neuropsychological Evaluation through Evaluation Provider, which issued a report on 1/7/2021. P-T. The Neuropsychological Evaluation notes that Student had been dealing with clinically significant anxiety since at least the fall of 2017. P-T-2. Student was observed to be friendly and engage in appropriate conversation. P-T-4. However, Student had difficulty staying on topic, engaging in difficult tasks, and in fully articulating his thoughts. P-T-

4. Evaluating Fellow diagnosed Student with Attention-Deficit/Hyperactivity Disorder, Combined Presentation (“ADHD”). P-T-7.

It appears that Student’s language skills in both Spanish and English were fully evaluated for the first time during the Neuropsychological Evaluation. P-T-5. Because of Student’s expressive language delays, the Evaluating Fellow noted that Student needed a full bilingual speech and language therapy evaluation as well as speech-language therapy (“SLT”) and specific instruction to build Student’s phonological awareness and expressive language ability. P-T-10. The Evaluating Fellow determined that Student’s cognitive abilities could not be fully evaluated due to his significant language challenges, specifically, in his verbal comprehension abilities. PT-5. The Neuropsychological Evaluation also noted that Student’s auditory working memory and processing speed were areas of deficiency. P-T-6. Academically, Student was estimated to be well below age level in decoding and word knowledge in both English and Spanish. P-T-7. Student’s writing was another area of weakness. P-T-7. Student was performing better in math but was still estimated to be below age expectations. P-T-7.

Overall, the Neuropsychological Evaluation made plain several things that were only hinted at in the prior IEPs and appear to have been largely unaddressed by Student’s prior schooling – primarily that Student was in significant need of support in acquiring more language skills, particularly in expressive language and decoding, and that Student needed more socialemotional support given his clinically significant anxiety and being diagnosed with ADHD.

2021-2022

Parent obtained legal representation at some point in June 2021. P-S. Parent, through counsel, requested an updated IEP meeting on 6/22/2021. P-S. Parent provided a copy of the Neuropsychological Evaluation with this request. P-S.

DOE eventually agreed to conduct a Speech and Language Evaluation and hold a new IEP meeting, but it took several months. The Speech and Language Evaluation occurred on 10/10/2021 (P-I) and the IEP team convened on 4/4/2022 (P-G).

In the interim, Parent sent a ten-day notice to DOE on 8/27/2021 informing DOE that Parent intended to enroll Student at NPS for the 2020-2021 school year if Student was accepted. P-K (Parent’s ten-day notice specifically relates many of the issues raised by the Neuropsychological Evaluation reviewed above). Parent signed an enrollment contract with NPS on 9/14/2021. P-J-3. Student started the 2021-2022 school year at NPS in seventh grade. P-H-2.

On 10/10/2021, the DOE conducted a Speech and Language Evaluation of Student. P-I. Student performed with “severe delays” on all sub-tests administered. P-I-2. DOE Evaluator noted that Student was experiencing much more significant delays than would be expected for a student who is simply a sequential bilingual learner. P-I-3. DOE Evaluator noted that Student has “poor decoding skills.” P-I-4. DOE Evaluator recommended that Student receive SLT. P-I-7.

On 4/4/2022, a new IEP was developed for Student with reliance on the Neuropsychological Evaluation and the Speech and Language Evaluation. P-G. Student was recommended to be placed in a New York State Approved Day School and receive full-time special education instruction in all classes in a 12:1+1 setting; Counseling, in a group of three, one time a week for thirty minutes; SLT, individual, two times a week for thirty minutes each time; and, SLT, in a group of four, one time a week for thirty minutes. Effectively, DOE agreed that Parent’s unilateral placement was appropriate for Student by mandating that Student attend that program for the duration of the 2021-2022 school year and by funding the balance of Student’s tuition at NPS. Tr.75; Tr.79.

During the 2021-2022 school year, Student attended NPS. NPS is a New York State Approved Non-Public School serving students with average cognitive abilities who require support to access curriculum due to learning differences. P-Y-2. Tuition is set by the New York State Education Department at $58,162.29. P-Y-4. All lead teachers are state-certified or working to earn state certification. P-Y-2. Student attended a 12:1+1 class for the 2021-2022 school year. P-Y-3. Student was instructed using a multisensory teaching modality with significant 1:1 support. P-Y-

4. Student demonstrated progress in all areas during the 2021-2022 school year. P-Y. He demonstrated increased confidence in social settings and made steady academic progress in all areas – Student’s reading was assessed as approaching a fifth-grade level, which is significantly higher than any reading assessment reflected in his prior IEPs. P-Y-4. Pediatric Neuropsychologist testified that she is familiar with NPS and believes it is appropriate for Student. P-A-10. NPS provided an appropriate program for Student.

Parent took out a loan to pay Student’s tuition to NPS for the 2021-2022 school year. P-C-

10. Parent is seeking reimbursement in the amount of $41,518.22 I would also note that Parent testified that she neither reads nor writes in Spanish or English. P-C.

Tutoring

On 9/27/2022 Tutoring Agency assessed Student. P-B-3. In general, Student’s reading skills were assessed to be significantly below grade-level, falling between a late first-grade level and late third-grade level depending on the subtest (this is lower than Student’s performance reported by NPS Coordinator’s testimony). P-B-4. Student’s math skills were assessed to be at roughly a fourth-grade level. P-B-4. Tutoring Director stated that Tutoring Agency has worked extensively with students with learning profiles like Student’s and that it would take roughly 800 – 1,000 hours of individualized tutoring for Student’s skills to progress to grade-level based on their intervention. P-B-5. The evaluation itself was not presented. Tutoring Director did not testify regarding whether the recommended intervention would change given that Student was attending a school program with more intensive supports for a second consecutive school year (given that the assessment was conducted in September 2022).

Parent alleged that the DOE failed to offer Student a FAPE for the 2021-2022 school year by not developing a timely IEP, by not considering evaluations in a reasonable amount of time, and by not proposing an appropriate program until April 2022. P-F-7.

The due process hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “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 N.Y.C.R.R. Part 200, and Section 504 of the Rehabilitation Act.

CONCLUSIONS OF LAW AND ANALYSIS

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except to show the appropriateness of a unilateral placement. NY Educ. Law § 4404(1)(c). The school district has the burden of proof on the issue of compensatory education. See M.M. v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169 (SRO 2021). Statute of Limitations

The DOE argued that Parent’s claims for the 2018-2019, 2019-2020, 2020-2021 school years should be dismissed due to the IDEA’s statute of limitations. ^[5]

The IDEA requires that a party must request a due process hearing within two years of when the party knew or should have known of the alleged action that forms the basis of the complaint. 20 USC § 1415(f)(3)(C); see also 20 USC § 1415(b)(6)(B); NY Educ. Law § 4404(1)(a); 34 CFR § 300.507(a)(2); 34 CFR § 300.511(e); 8 NYCRR § 200.5(j)(1)(i); Somoza v. New York City Dept. of Educ., 538 F.3d 106, 114-15 & n.8 (2d Cir. 2008). Since an IDEA claim accrues when a parent knew or should have known about the claim, “[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 (SDNY 2018) (internal citation and quotation marks omitted).

Congress did not intend the IDEA's statute of limitations to be governed by a strict occurrence rule. G.L. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3d Cir. 2015). Both § 1415(b)(6)(B) and § 1415(f)(3)(C) include language regarding the date on which the parent or agency "knew or should have known about the alleged action that forms the basis of the complaint," not the date on which the action occurred. § 1415(b)(6)(B), (f)(3)(C); Avila v. Spokane Sch. Dist. 81, 852 F.3d 936 (9th Cir. 2107). If Congress intended a strict occurrence rule, there would have been no need to include the "knew or should have known" language in § 1415(b)(6)(B) and § 1415(f)(3)(C). Thus, the statute of limitations for IDEA claims begins to run not when the injury has occurred, but when the parent “knew or should have known” of the injury. Once the known or should have known date is established, the claim is ripe for judicial adjudication and the two-year statute of limitations begins to accrue from that date.

On March 7, 2020, due to the unprecedented COVID-19 pandemic, New York State Governor Cuomo signed Executive Order (“EO”) 202.8, which was subsequently extended by a series of EOs, which both on their face and following judicial interpretation, had the effect of tolling, rather than suspending, all statutory timeframes through November 3, 2020. See Brash v. Richards, 195 A.D.3d 582 (2nd Dept., 2021); Matter of Roach v. Cornell Univ., 207 A.D.3d 931 (3rd Dept., 2022). The effect of the tolling depends on the facts, but, essentially, the 241 days from March 7, 2020, to November 3, 2020, cannot be counted against the party bringing a claim.

The IDEA’s statute of limitations is treated as an affirmative defense in New York. M.G. v. NYC Dept of Educ., 62 IDELR 195 (S.D.N.Y. 2014). Accordingly, the DOE has the burden of proving that the statute of limitations bars Parents’ claims. As an affirmative defense, the statute of limitations is considered waived if not raised at the initial administrative proceeding. Typically, factual development beyond mere pleadings is required to use this affirmative defense. 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).

There are two tolling exceptions to the two-year statute of limitations period in the IDEA. A claim will not be considered untimely 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 USC § 1415(f)(3)(D).” K.H. v. New York City Dep't of Educ., 2014 WL 3866430 (E.D.N.Y. 2014).

“A copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents only one time a year.” 20 USC 1415(d)(1)(a). Procedural safeguards may be posted on a public website. 20 USC 1415(d)(1)(b).

Here, DOE filed a Motion to Dismiss all claims related to the 2018-2019, 2019-2020, and 2020-2021 school years as being time barred under the IDEA’s Statute of Limitations. IHO-I. Essentially, DOE argued that Parent knew or should have known about Student’s academic struggles and been aware of Parent’s due process rights for each of these years as of the date that Parent received the various Prior Written Notices introduced into evidence. For the 2020-2021 school year, DOE argues that Parent should have been aware of the claims raised in the IEP as of the first day of school. IHO-I-8.

I find that Parent was not provided with information that Parent is required to be given by the IDEA. Accordingly, I find that Parent knew or should have known of the issues complained of in the DPC as of 6/1/2021, which is after Parent had obtained the Private Evaluation and legal representation. ^[6] I make this finding because there is no evidence to support DOE’s contention that Parent ever received Procedural Safeguards. While there is some evidence that at the time of the determination of Student’s initial eligibility, in 2017, that Parent was provided with information about the special education process (D-2),^[7] there is no similar evidence to show that Parent was specifically provided with Procedural Safeguards for each school year at issue. The Prior Written Notices are insufficient because they are not signed, and the Prior Written Notices only allude to the existence of the Procedural Safeguards. There is no evidence that Parent was ever, in fact, informed of her due process rights. Further, Parent testified that she does not read or write in English or Spanish. While it appears that certain communications were directed to Student’s other parent, there is nothing in the record to suggest that any efforts were made to ensure Parent understood her due process rights. In a situation like this, DOE should have been sure to explain to Parent the documents that she was receiving or provided evidence of any efforts made to ensure that Parent understood what was happening.

I will note that Parent presented limited evidence regarding the statute of limitations. Parent did not specifically testify regarding why Parent did not file a claim until 2023, and Parent did not state that she did not receive procedural safeguards until I questioned her. Tr.55. However, Parent did testify that she repeatedly asked for support of DOE in having Student receive more services, and I find that Parent clearly was not aware of her ability to file due process complaint until June 2021. Given this finding, I am considering all school years complained of in the DPC. Section 504 The Parent did not identify any claims under Section 504 that are not subsumed under the IDEA or that would merit separate analysis and discussion. I find that the Parent’s 504 claims are subsumed within the framework of the IDEA, and I will not separately analyze the 504 claims raised in the complaint. While Section 504 has a three-year statute of limitations, I do not find it is necessary to analyze Parent’s Section 504 arguments for the reasons discussed in the statute of limitations discussion above. Provision of FAPE / Prong 1 The IDEA provides that children with disabilities are entitled to a FAPE. 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 IEP. 34 C.F.R. § 300.13. 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. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must prove that it offered the student in question 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).

Here, I will briefly repeat my finding regarding whether the DOE offered Student a FAPE for each school year, with a summary of the basis for my decision. However, I want to emphasize that DOE did not present any witnesses, did not present any evidence at all regarding the 2020-2021 school year, and did not sufficiently evaluate Student at any point during the school years in question (as evidenced by the dramatically different placement that was offered by DOE after the Neuropsychological Evaluation and Speech and Language Evaluation were conducted). For the 2018-2019 school year, as to the provision of a FAPE, the DOE failed to meet its burden at hearing. While the DOE submitted exhibits one through nineteen into the record, a review of same offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describes Student, or whether the IEP is meaningfully calculated to confer educational benefit. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, 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. Therefore, I find that the DOE failed to offer Student FAPE for the 2018-2019 school year. For example, Parent alleged that Student was clearly struggling in reading and had demonstrated no progress in that area, yet, despite that, the 11/15/2018 IEP failed to address Student’s reading needs. In addition, as was evident from the Neuropsychological Evaluation, Student was clearly in need of SLT at this time, yet the DOE never considered adding it as a related service for Student. For the 2019-2020 school year, as to the provision of a FAPE, the DOE failed to meet its burden at hearing. While the DOE submitted exhibits one through nineteen into the record, a review of same offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describes Student, or whether the IEP is meaningfully calculated to confer educational benefit. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, 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. Therefore, I find that the DOE failed to offer Student FAPE for the 2019-2020 school year. Again, DOE failed to address Student’s obvious decoding and speech and language deficiencies in a way that was designed to ensure that Student would receive educational benefit.

For the 2020-2021 school year, as to the provision of a FAPE, the DOE failed to meet its burden at hearing. While the DOE submitted exhibits one through nineteen into the record, a review of same offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describes Student, or whether the IEP is meaningfully calculated to confer educational benefit. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, 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. Therefore, I find that the DOE failed to offer Student FAPE for the 2020-2021 school year. The Neuropsychological Evaluation was uncontroverted and clearly established that Student needed additional services that were not being offered to make educational progress.

For the 2021-2022 school year, as to the provision of a FAPE, the DOE failed to meet its burden at hearing. While the DOE submitted exhibits one through nineteen into the record, a review of same offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describes Student, or whether the IEP is meaningfully calculated to confer educational benefit. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, 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. Therefore, I find that the DOE failed to offer Student FAPE for the 2021-2022 school year. The DOE failed to have an IEP in place for Student until April and failed to offer any explanation for why the services offered until that point were appropriate for Student.

Prong II

A private school placement must be “proper under the Act.” Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” Gagliardo, 489 F.3d at 112 quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006) (“Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’”).

Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether a unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether the placement is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R. § 300.39(a)(1); 8 NYCRR § 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.

As noted above, Student presents with significant language-related deficits. Despite this, Student made notable progress at NPS during the 2021-2022 school year. NPS Coordinator testified that Student’s reading improved to a fifth-grade level. P-Y-4. Improved academics can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 365 (2d Cir. 2006) (citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 (6th Cir. 2001). NPS offers Student small group instruction, either in a small group, in a 1:1 setting, or by having a special education teacher available, in all academic areas to address Student’s academic and social-emotional needs. Small class sizes can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 365 (2d Cir. 2006) (citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 (6th Cir. 2001).

I find that Parent has met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard. The record establishes that Student’s individual special education needs were addressed by the Private School and that the instruction offered was “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364. I note that the DOE offered no arguments concerning the appropriateness of Parent’s unilateral placement. Under these circumstances, I find that the Parent’s witnesses are credible.

DOE plainly agrees that Private School is an appropriate placement. DOE amended Student’s IEP so that Student would continue to attend NPS and funded Student’s tuition at NPS after the 4/4/2022 IEP.

Equities

Even if a parent establishes a right to reimbursement under the IDEA, “courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of needbased scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Here, Parent sent a detailed letter outlining her specific concerns on 8/27/2021. P-K. DOE never responded to Parent (but did, eventually, agree to fund Student’s attendance at NPS as of April 2022). No evidence was submitted at hearing describing the DOE’s response to the Ten-Day Letter.

By way of relief, Parent seeks have the DOE reimburse her for the balance of unpaid tuition for the 2021-2022 school year. DOE funded only part of the school year. Equity demands that the DOE reimburse Parent for the remainder of Student’s NPS tuition in this instance.

I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2021-2022 school year. NPS’ tuition is set by the State, and I find it to be reasonable. Overall and after considering the record at hearing, I find that the equities support Parent’s claim for direct tuition funding.

Compensatory Relief

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. 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 Bd. of Educ., 790 F.3d 454 (2d Cir. 2015).

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, F.3d 106, 109 n.2 (citations omitted). 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 Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). An award of compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid, 401 F.3d at 518, 524.

There are generally two approaches to fashioning a compensatory education award, the “quantitative” approach, and the “qualitative” approach. M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996); See, e.g., Reid, 401 F.3d at 518, 524. The quantitative approach provides for compensatory education equal to the period of deprivation, whereas the qualitative approach fashions an award based upon 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.” Reid, 401 F.3d at 518, 524. 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 considering the purpose of the Act, without articulating a specific formula or approach. 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). When 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 the student’s current needs,” but 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.

Under New York law, the district has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award, 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. Education Law § 4404[1][c]; See JKG v. Wissahickon Sch. Dist., 2021 U.S. Dist. LEXIS 55235 *25 (E.D. Pa. 2021). The IHO may order that an award of services be placed in a bank to be used by a certain date to allow flexibility in the implementation. M.M. v. New York City Dep’t of Educ., 2017 U.S. Dist. LEXIS 47812, *25 (S.D.N.Y. 2017).

Where the DOE fails to meet its burden of proving it provided a FAPE, as is the case here, it is “nevertheless incumbent on the district to develop the hearing record to establish the appropriate amount of relief needed to remediate the district's failure.” Application of the New York City Department of Education, Appeal No. 14-014 (SRO NY 2014). Further, it is not persuasive for the district to simply fault the parent’s request for relief without also explaining its own view of what type of compensatory education relief would be appropriate to remediate the district's failure to provide the student with a FAPE.

DOE did not present any evidence on what an appropriate remedy might be. DOE argued that Parent may not obtain tuition reimbursement and compensatory services for the same school year. IHO-VI-6,7. However, here, I have found that DOE denied Student a FAPE for four school years. In addition, The IDEA allows awards of compensatory services and tuition in the same year (awarding compensatory services and tuition for a private school are not mutually exclusive). VW v. N.Y.C. Dep’t of Educ., 2022 U.S. Dist. LEXIS 147630, at *14 (S.D.N.Y. Aug. 17, 2022) (citing Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 445 (2d Cir. 2015) (concluding that “appropriate equitable relief” can include “reimbursement or compensatory education (or both) for the full value of services that the educational agency was required to fund”); Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (SRO 2023) (SRO found that a combination of reimbursement and compensatory education was appropriate where the parent’s unilaterally obtained reading instruction was appropriate but insufficient to remedy the denial of a FAPE.).

In contrast, Parent met her obligation to offer evidence in the record of a specific remedy for the denial of FAPE from the school years in question. I find that the compensatory relief requested by the Parent is appropriate to remedy Student’s documented academic and socialemotional deficits, and the requested relief is reasonably calculated to provide Student with the skills that he would likely have accrued but for the DOE’s failure to provide a FAPE.

To support the requested remedy, Parent provided the testimony of Tutoring Director. As previously discussed, Tutoring Director recommended 800 to 1,000 hours of individual academic tutoring. This recommendation aligns with the evaluative data in the record. Further, Tutoring Director has experience supporting the academic growth of students in a similar position as Student here. I understand Parent is seeking that I apply a qualitative analysis based on Student’s assessed performance and learning needs. While I am following this analysis, I am reducing the amount of compensatory relief based on all the factors presented. While the 2022-2023 school year was not at issue here, the record showed that Student continued to attend NPS during the 2022-2023 school year, where he is receiving significantly enhanced services. NPS Coordinator testified that Student is reading at a fifth-grade level, which would show Student is already making significant progress at NPS. As a result, I believe a reduction in the compensatory award is appropriate, given that Student is already receiving additional intervention and making progress beyond the level he was at when Tutoring Agency originally assessed him. Because of this, I am reducing the award to 600 hours. In Application of a Student with a Disability, Appeal No. 23-059, the SRO “ordered that the student must be placed in a State approved nonpublic school that provides ABA for the remainder of the 2022-2023 school year as well as the entire 2023-2024 school year, and such a prospective placement is akin to, and may obviate the need for, compensatory education in the future,” which led to the SRO finding that additional compensatory education beyond the prospective placement was unnecessary. SRO 23-059 *22 (citing Demarcus L. v. Bd of Educ. Of the City of Chicago, 2014 WL 948883 at *8 [N.D. Ill, Mar. 11, 2014]). While I am not granting a prospective placement, this case presents a factually similar scenario as Student has attended an NPS meeting his needs for two years after an earlier denial of a FAPE. Accordingly, I find it appropriate to reduce the amount of tutoring being awarded.

I find no other issue with the reasonableness of the request for 600 hours of one-on-one, remedial tutoring at a rate of $175/hour. The number of requested hours is supported by Tutoring Agency’s evaluation. There is no evidence in the record which suggests that some other form or quantity of relief would better redress the harm caused by the DOE’s failure to provide Student with a FAPE for four consecutive school years. The only testimony in the record regarding the quantity of relief comes from Tutoring Director, who recommended that number of hours as being appropriate to compensate Student for Student’s learning loss during the four years at question. I see no reason to deviate from the proposed rate. See Application of a Student with a Disability, Appeal No. 23-080 (SRO 23-080) (“In the absence of any documentary or testimonial evidence to counter the parent’s requested rates, there was no basis for the IHO to reduce the provider’s rates to an amount unsupported by the hearing record.”).

I am ordering that the tutoring award will expire in three years. In Application of a Student with a Disability, Appeal No. 23-080, the SRO recently ruled that an award designed to make a student whole for a FAPE denial of one year should expire after two years and “should not exist into perpetuity.” SRO 23-080 *15(fn.10). With this guidance, I am ordering that the bank of services shall expire after three years despite finding a longer period of a FAPE denial.

Even if a parent establishes a right to relief under the IDEA, “courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether there was any fraud or collusion in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014). Here, there are no equitable issues which would be a barrier to the requested relief. Further, the record shows that Parent participated in the IEP meetings and made a good faith effort to work with the DOE.

ORDER

Based upon the above findings of fact, it is hereby:

1. ORDERED, that the DOE shall fund compensatory services for Student in the form of 600 hours of 1:1 tutoring be provided by Tutoring Agency at a rate of $175.00 per hour, to be paid within 30 days of receipt of the Tutoring Agency’s invoices for these services, and this bank of services shall expire on 9/2/2026; it is further

2. ORDERED, that the DOE shall provide Student and Parent with MetroCards to allow them to travel to and from Tutoring Center; it is further

3. ORDERED, Parent’s claim for tuition reimbursement for the Student’s unilateral placement at NPS is GRANTED for the 2021-2022 school year as follows: The District shall reimburse the Parent in the amount of $41,518.22 within thirty (30) days of submission of either proof of payment of Parent to Loan Association in that amount or proof of payment of Loan Association to NPS in that amount.

SO ORDERED.

DATED: September 2, 2023

William Yukstas (signed electronically)

Impartial Hearing Officer

William Yukstas

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 INFORMATION PAGE [REDACTED]

APPENDIX B: EXHIBITS ADMITTED INTO THE RECORD

DOE EVIDENCE

1. Consent for Services – Initial with Translation 9/26/2017 2 pages DOE

2. Consent for Services – (Spanish) Signed 10/4/2017 9/26/2017 1 page DOE

3. IEP 11/29/2017 20 pages DOE

4. Classroom Observation 10/18/2017 1 page DOE

5. Psychoeducational 11/29/2017 2 pages DOE

6. PWN with Translation 4/11/2018 5 pages DOE

7. Consent for Initial Provision of Services – English 4/11/2018 1 page DOE

8. Consent for Initial Provision of Services Signed 4/13/2018 4/11/2018 1 page DOE

9. Meeting Notice Committee on Special Education (“CSE”) 11/13/2018 5 pages DOE

10. IEP 11/15/2018 2 pages DOE

11. PWN 12/1/2018 5 pages DOE

12. Waiver to Attend 5/7/2019 1 page DOE

13. IEP 11/15/2019 17 pages DOE

14. PWN 11/19/2019 5 pages DOE

15. PWN 12/12/2019 5 pages DOE

16. IEP 11/12/2020 17 pages DOE

17. PWN 11/13/2020 5 pages DOE

18. New York State Education Department Procedural Safeguards Notice (URL) Accessed 7/17/2023 July 2017 56 pages DOE

19. New York State Education Department Procedural Safeguards Notice (Spanish) (URL) Accessed 7/17/2023 July 2017 56 pages DOE

PARENT’S EVIDENCE

A. Affidavit of Pediatric Neuropsychologist 7/17/2023 12 pages

B. Affidavit of Tutoring Director 7/17/2023 6 pages

C. Affidavit of Parent 7/17/2023 11 pages

D. Tutoring Agency Recommendation 9/27/2022 4 pages

E. Tutoring Agency Learning Ability Evaluation Summary 9/27/2022 4 pages

F. Impartial Hearing Request (“DPC”) 3/21/2023 9 pages

G. IEP 4/4/2022 33 pages

H. DOE Social History Update 1/18/2022 2 pages

I. DOE Speech and Language Evaluation 10/10/2021 8 pages

J. NPS Enrollment Contract 9/14/2021 3 pages

K. Ten Day Notice 8/27/2021 4 pages

L. Prior Written Notice (Notice of Recommendation) 8/13/2021 9 pages

M. Special Education Student Information System (“SESIS”) Log of Events re: IEP Meeting Request 8/13/2021 2 pages

N. Emails to DOE re: Request for IEP Meeting 8/9/2021 3 pages

O. NPS Acceptance Letter 8/3/2021 1 page

P. Email to DOE re: Request for IEP Meeting 7/12/2021 1 page

Q. Email to CSE 1 Requesting IEP Meeting 7/9/2021 2 pages

R. Emails to Middle School Staff About IEP Meeting 6/24/2021 5 pages

S. Email to Middle School Staff About IEP Meeting 6/22/2021 1 page

T. Neuropsychological Evaluation 1/2021 20 pages

U. Letter from U.S. Dept. of Ed. OSEP to Judy Nathan, NYC DOE Office of Legal Services (“OLS”) 1/29/2019 4 pages

V. Initial Referral 9/19/2017 1 page

W. K.H. v. NYC Dept. of Educ., 2014 WL 3866430 (E.D.N.Y. 2014) 2014 18 pages

X. C.B. v. Pittsford Cent. School Dist., 2010 WL 1533392 2010 25 pages

(W.D.N.Y. 2010)

IHO EVIDENCE

I. DOE Motion to Dismiss for Statute of Limitations 6/23/2023 118 pages

II. PHC Order 4/27/2023 6 pages

III. Status Conference Transcript 5/23/2023 5/23/2023 10 pages

IV. Emails Regarding Subpoena Request 6/28/2023 4 pages

V. Status Conference Transcript 6/28/2023 6/28/2023 12 pages

VI. DOE Closing Argument 8/16/2023 8 pages

PARENT

VII. Closing Argument 8/16/2023 12 pages

Footnotes

[1] Generic titles will be used throughout this decision. Personally identifiable information is attached in Appendix A, “Redaction Identification Page,” to this decision and will be removed prior to public distribution.

[2] The Parent’s exhibits are cited as “P” followed by a letter, District’s exhibits are cited as “D” followed by a number, and IHO exhibits are cited as “IHO” followed by a roman numeral. The transcript of the due process hearing is cited as “Tr” followed by a page number. A full list of exhibits is included as Appendix B.

[3] The statute of limitations will be addressed below. All the Prior Written Notices in evidence are not signed (the consent for evaluations and consent for services are signed) and direct Parent to DOE’s website to obtain a copy of the Procedural Safeguards. DOE argues that I should assume that Parent received a copy of each Prior Written Notice on the assumption that DOE followed normal business practices in mailing the Prior Written Notice (IHO- VI); however, there is no evidence regarding DOE’s mailing practices in the record.

[4] Despite this notation on the IEP, Student was reported to not be able to identify words or letters in Spanish but was able to identify most letters in English in Psychoeducational Evaluation conducted on 11/29/2017. D-5-2.

[5] DOE did not raise any challenge to Parent’s claims related to the 2021-2022 school year. DOE did not challenge Parent’s Section 504 claims under the statute of limitations.

[6] It is not clear why Parent’s Attorney did not file the DPC sooner given that Parent began to be represented in June 2021.

[7] There is no evidence of what information was conveyed to Parent.