New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 247075

Student’s Name: REDACTED (hereinafter “Student”)

Date of Birth: REDACTED

School District: REDACTED (hereinafter “School District”)

Impartial Hearing Officer: R. Emily Rodriguez, Esq.

Date of Filing: 03/29/2023

Hearing Requested by: REDACTED (hereinafter “Parent”)

Dates of Hearings: 05/01/2023

06/08/2023

06/09/2023

Record Close Date: 08/09/2023

Date of Decision: 08/09/2023

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 01, 2023:

For the Student:

REDACTED (hereinafter “Parent’s Attorney I”)

For the Department of Education:

REDACTED (hereinafter “DOE Representative I”)

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 08, 2023:

For the Student:

Parent’s Attorney I

REDACTED (hereinafter “Parent’s Attorney II”)

For the Department of Education:

REDACTED (hereinafter “DOE Representative II”)

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 09, 2023:

For the Student:

Parent’s Attorney

Parent’s Attorney II

REDACTED (hereinafter “Parent”)

REDACTED (hereinafter “Current School Principal”)

For the Department of Education:

DOE Representative II

BACKGROUND

Student^[1] is a REDACTED-year-old child who is classified by the New York City Department of Education’s (“DOE”) Committee on Special Education (“CSE”) as a student with Other Health Impairment. (P – A) ^[2]. Student has diagnoses of (1) autism spectrum disorder (“ASD”), (2) Unspecified Attention-Deficit/Hyperactivity Disorder (“ADHD”), and (3) Mixed Receptive/Expressive Language Impairment. (P – A). These diagnoses significantly impact Student’s ability to function at home and in the classroom. The DOE evaluated Student in 2018, where they failed to identify Student as a student with autism. Indeed, Parent first learned that Student was on the autism spectrum after they obtained an independent evaluation in 2020. Although Parent shared the evaluation with the DOE, the DOE never classified Student as having ASD on their IEP. Student’s classification and entitlement to special education programming and services is not in dispute.

Parent’s Attorney alleges that the DOE failed to provide Student with a Free and Appropriate Public Education (“FAPE”) for the 2019-2020, 2020-2021, 2021-2022 and 2022-2023 school years by failing to adequately assess Student in all areas of suspected disability, address their disabilities, and provide them with an appropriate program and placement. As a result, Student struggled to make meaningful academic and social progress. Without highly specialized supports for their learning, social-emotional, and neurodevelopmental needs, Student continued to fall further behind academically and socially. Parent’s Attorney brought these claims pursuant to the Individuals with Disabilities Education Act (IDEA) Section 504 of the Rehabilitation Act and New York Education Law.

Parent’s Attorney is seeking: “(1) payment of Student’s tuition at Current School for the 2021-2022 school year, (2) prospective payment of Student’s tuition at Current School for the 12 month 2022-2023 school year, (3) reimbursement for Student’s breakfasts and lunches during the 2021-2022 school year, (4) the provision of or payment for Student’s breakfasts and lunches while they attend Current School in the 2022-2023 school year, (5) door-to-door roundtrip transportation for Student from their home to Current School for the duration of the 2022-2023 school year, (6) compensatory services in the form of SLT and OT services (7) transportation for Student and an adult to and from the compensatory services, (8) Student’s IEP to be changed to recommend 12 month services, and (9) any and all other relief as is appropriate.” (P – A).

DOE Representative filed a motion to dismiss Parent’s claims related to the 2019-2020 and 2020-2021 school years. (IHO – I, IHO - II). DOE Representative did not present any witness testimony or place any documents into evidence regarding the 2021-2022 and 2022-2023 claims. (June 8, 2023 T). Parent presented a case that consisted of direct testimony by affidavit from Current School Principal, Parent, Current School 2021-2022 Head Teacher, Current School Head Teacher, and documents placed in evidence by Parent’s Attorney. (June 8, 2023 T, June 9, 2023 T; P - A-AC). All the Parent’s exhibits were admitted into evidence. DOE Representative cross-examined Parent and Current School Principal. (June 9, 2023 T). There are five IHO exhibits including DOE’s motion to dismiss and Parent’s responses. (IHO – I, IHO – II, IHO – III, IHO – IV, IHO – V).

PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s due process complaint (“DPC”), filed on or around March 29, 2023. (P – A). The resolution period expired without the parties reaching an agreement. I was appointed on March 30, 2023, to conduct an impartial hearing pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1) to determine the claims in the DPC. A prehearing conference was held on May 1, 2023. Closed hearings were held on June 8, 2023 and June 9, 2023. The initial compliance date was June 12, 2023. One extension was granted extending the compliance date to August 11, 2023. The record closed on August 09, 2023.

JURISDICTION

A decision in this matter is being 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 FRAMEWORK

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. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 NYCRR § 200.5(j)(4)(ii).

The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 34 C.F.R. § 300.13. 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.” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 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. 20 U.S.C. § 1400(d)(1)(A)-(B).

A board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions constitute the Burlington/Carter test in a tuition reimbursement case.

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. NYS Educ. Law § 4404(1)(c). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).

FINDINGS OF FACT

Statute of Limitation (“SOL”): 2019-2020 and 2020-2021 School Years The IDEA requires that unless a state establishes a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known (“KOSHK”) of the alleged action that forms the basis of the complaint. 20 U.S.C. § 1415(f)(3)(C); see also 20 U.S.C. § 1415(b)(6)(B); Education Law § 4404(1)(a); 34 C.F.R. § 300.507(a)(2); 34 C.F.R. § 300.511(e); 8 NYCRR § 200.5(j)(1)(i); Somoza v. New York City Dept. of Educ., 538 F.3d 106, 114-15 & n.8 (2d Cir. 2008). 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 [S.D.N.Y. 2018]) (internal citation and quotation marks omitted).

In 2004, Congress amended 20 U.S.C. §1415(b)(6), which essentially mirrored the SOL at §1415(f)(3)(C) in almost all respects: they both describe a two-year time limit that hinges on the reasonable discovery date; they both provide that any state statute of limitations will override this timeline; and they both incorporate the two exceptions to the statute of limitations set forth in §1415(f)(3)(D). Unlike §1415(f)(3)(C), however, §1415(b)(6)(B)’s two-year limitations period runs backward instead of forward from the reasonable discovery date. G.L. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3d Cir. 2015). Courts have resolved this ambiguity by holding that the discovery rule applies. Congress did not intend the IDEA's statute of limitations to be governed by a strict occurrence rule. Both § 1415(b)(6)(B) and § 1415(f)(3)(C) include language pegging the limitations period to 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. See § 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). Id. The SOL begins to run not when the injury has occurred, but when the parent “knew or should have known” of the injury. These dates, of course, can be the same.

Once the KOSHK date is established, the claim is ripe for judicial adjudication and the two-year SOL begins to accrue from that date. On March 7, 2020, due to the unprecedented COVID-19 pandemic, then New York State Governor Cuomo signed an Executive Order (“EO”) which was subsequently extended by a series of EO’s, which both on their face and following judicial interpretation, had the effect of tolling, rather than suspending, all statutory timeframes through November 3, 2020. This tolling of the SOL necessarily adds an additional 241 days to the two-year time from the KOSHK for a timely filing of a DPC.

The IDEA’s statute of limitations is viewed as an affirmative defense in New York. M.G. v. NYC Dept of Educ., 62 IDELR 195 (S.D.N.Y. 2014), citing Somoza, supra. Accordingly, the DOE has the burden of proving that the statute of limitations barred plaintiff’s claims. Id. As an affirmative defense, the statute of limitations is considered waived if not raised at the initial administrative proceeding. Id. For a defendant to avail itself of this affirmative defense, factual development beyond those plead is typically required. 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).

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. v. New York City Dep't of Educ., 2014 WL 3866430 (E.D.N.Y. 2014). Here, neither of the exceptions apply to the facts of this case. DOE has argued that Parent’s claims related to the 2019-2020 and 2020-2021 school years should be barred by the statute of limitations. This defense was timely raised by the DOE before the due process hearing on June 7, 2023. (IHO - I). The DOE asserts that Parent was aware of their Due Process Rights and Procedural Safeguards when they were notified of the final notice of recommendation on April 11, 2019. (IHO – II). Parent signed this document on May 7, 2019. (IHO – II). The DOE submitted several documents regarding the 2019-2020 and 2020-2021 school years which notified Parent of their Due Process Rights and Procedural Safeguards. (IHO - II). Parent testified inconsistently that they did not receive the Procedural Safeguard Notice for the 2019-2020 and 2020-2021 school years. (P – Y, P - AC)). The hearing record confirms that Parent did receive these documents.

The first exception is limited to circumstances where a school district falsely claims that the alleged problem that forms the basis for the Parent’s complaint has been resolved. See 20 U.S.C. §1415(f)(3)(D)(i); 8 NYCRR §200.5(j)(1)(i). It requires the identification of a specific misrepresentation that prevented the plaintiff from requesting a hearing. The misrepresentation must be intentional and knowing – i.e. the DOE must have intentionally misled or knowingly deceived the parent regarding the relevant fact. D.K, 696 F.3d at 245-46. Here, there is no evidence that the DOE intentionally misled or knowingly deceived the parent. The second exception requires evidence that the DOE withheld specific information that it was required to provide under the IDEA and that resulted in the parent’s unknowing waiver of right. See, 20 U.S.C. §1415(f)(3)(D)(i); 8 NYCRR §200.5(j)(1)(i); C.H. v. Northwest Indep. Sch. Dist., 815 F. Supp. 2d 977, 986 (E.D. Texas 2011); R.B. V. Dep’t of Educ., 2011 WL 4375694, at *6-7 (S.D.N.Y. Sept. 16, 2011). Once again, the Parent was clearly aware of their rights under the IDEA because prior written notices were sent to the Parent. See Application of a Child with a Disability, Appeal No. 18-069. The Prior Written Notices (or Final Notice of Recommendations) notified the Parent in writing that a copy of the procedural safeguards notice can be downloaded on the DOE’s website or Parent could request the procedural safeguards notice from the DOE representative listed on the Prior Written Notice (or Final Notice of Recommendation), which also contains the DOE representative’s phone number. In addition, the Prior Written Notice or Final Notice of Recommendation sent to the Parent stated that if the Parent did not agree with the CSE’s recommendation, the Parent had the right to an impartial hearing or to request mediation in writing to the CSE Chairperson. (IHO - II).

Lastly, there is no evidence of the DOE withholding information from the Parent. At no point did the DOE dissuade or deceive Parent from filing a timely DPC for the 2019-2020 and 2020-2021 school year claims. Accordingly, the facts of this case do not support a finding that either of the two exceptions apply. Given this testimony and evidence, I find that Parent knew or should have known of the alleged violations making up the claim by this point in time during the 2019-2020 and 2020-2021 school years. Therefore, under the IDEA statutes of limitations, and considering the COVID-19 EO tolling provisions, I find that Parent’s claims with respect to the 2019-2020 and 2020-2021 school years are barred. Section 504 violations 2019-2020 and 2020-2021 School Years

Impartial hearing officers have the authority to adjudicate claims under section 504 of the Rehabilitation Act of 1973. See 29 U.S.C. § 794. A violation of Section 504 requires proof from the plaintiff that: “(1) he is a ‘[disabled] person’ under the Rehabilitation Act; (2) he is ‘otherwise qualified’ for the program; (3) he is excluded from benefits solely because of his [disability]; and (4) the program or special service receives federal funding.” Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990). Courts in this Circuit have recognized that a Section 504 claim may be predicated on the claim that a disabled student was “denied access to a free appropriate education, as compared to the free appropriate education non-disabled students receive.” S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007); see also BD v. DeBuono, 130 F.Supp.2d 401, 439 (S.D.N.Y.2001). “[S]omething more than a mere violation of the IDEA is necessary in order to show a violation of Section 504 in the context of educating children with disabilities, i.e., a plaintiff must demonstrate that a school district acted with bad faith or gross misjudgment.” Wenger v. Canastota Cent. Sch. Dist., 979 F.Supp. 147, 152 (N.D.N.Y. 1997), aff'd mem, 208 F.3d 204 (2d Cir. 2000).

I find no evidence that the DOE excluded Student from benefits solely because of their disability, or that it acted with bad faith or gross misjudgment in developing their special education programs for the school years at issue. Accordingly, I find no violations of Section 504 for the 2019-2020 and 2020-2021 school years.

Failure to Provide a FAPE

In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE. M.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013). DOE implicitly conceded that they did not provide Student with a FAPE for the 2021-2022 and 2022-2023 school years at issue. (June 8, 2023 T). Since the DOE did not present any witness testimony or documentary evidence the DOE failed to address or sustain its burden under the Education Law and failed to demonstrate it provided Student with a FAPE for the 2021-2022 and 2022-2023 school years. Additionally, the DOE did not object to or contest the evidentiary material submitted by the Parent in support of their claims, and it offered no rebuttal to the testimony provided by Parent’s witnesses. Consequently, 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 those facts 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, I find that the DOE failed to provide the Student with a FAPE for the 2021-2022 and 2022-2023 school years. Accordingly, I find Parent has met the first prong of the Burlington/Carter test for tuition funding and/or reimbursement.

Student’s Placement at Current School When parents unilaterally place their child in a private program and seek funding and/or reimbursement for that program, they must demonstrate the program they have selected is appropriate to meet their child’s needs. A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G., 459 F.3d 356 at 364). Parents are not barred from an award of tuition reimbursement or funding even if the private program does not meet the IDEA definition of a FAPE; the selected program need not employ certified special education teachers or develop its own IEP for the student, and Parent’s selection of a program that has not been approved by the state does not bar reimbursement. Frank G., 459 F.3d 356 at 364 (citing Carter, 510 U.S. 7 at 14). Parents need not show that a private placement provides every special service necessary to maximize their child’s potential, but only that it is likely to produce progress and not regression and provides “educational instruction specially designed to meet the unique needs of the . . . child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d Cir. 2007].

The uncontroverted credible testimony of Parent, Current School Principal, Current School 2021-2022 Head Teacher, and Current School Head Teacher coupled with the uncontested documentary evidence support a finding that Current School is an appropriate placement for Student. The hearing record establishes that Current School appropriately addressed Student’s needs for the 2021-2022 and 2022-2023 school years. Based on the foregoing, I find that Parent has met the second prong of the Burlington/Carter test for tuition funding and/or reimbursement.

Equitable Considerations

To receive an award of tuition reimbursement associated with a private school program, a weighing of the equities must support that award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” Frank G., 459 F.3d at 363-64; 20 U.S.C. § 1412[a][10][C][iii]. When a school district fails to provide a student with a FAPE and the private placement is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief” Gagliardo, 489 F. 3d 105 at 112, citing Carter, 510 U.S. 7 at 16. “A major consideration . . . is whether the parents have cooperated [with the school district] throughout the process to ensure that their child receives a FAPE” N.R. ex rel. T.R. v. Dept. of Educ., 2009 WL 874061, at *6 [S.D.N.Y. 2009] [citation omitted].

The hearing record does not demonstrate that the Parent “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds.” Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 [S.D.N.Y. 2008]. There is nothing in the hearing record to suggest, let alone demonstrate, that Parents interfered in any manner with the CSE’s evaluation of Student or prevented it from providing the Student with a FAPE for the 2021-2022 and 2022-2023 school years.

Furthermore, Parent’s Attorney, provided the DOE with the statutorily required ten-day notice in which they informed the DOE, among other things, that Student had not received an appropriate placement recommendation for the 2021-2022 and 2022-2023 school years, and that as a result, they would be placing the Student at Current School for the 2022-2023 school year and would seek tuition funding for the unilateral placement. (P – B, P - C).

One of the purposes of the statutory notice provision is to provide the school district with “an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a free appropriate public education can be provided in the public schools” Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]; see also R.B. and H.Z. ex rel. C.Z. v. New York City Dept. of Educ., 713 F. Supp. 2d 235, 248 [S.D.N.Y. 2010]. The DOE failed to present any evidence or witness testimony to demonstrate that it replied to Parent’s ten-day notice, or that it offered an appropriate placement for Student for the 2021-2022 and 2022-2023 school years. Based on the foregoing, I find Parent has met the third prong of the Burlington/Carter Test, as a weighing of the equities supports an award of tuition funding and/or reimbursement to Parent.

The record establishes that Parent incurred the obligation to pay Current School’s aggregate tuition in the sum of $74,750 for Student’s enrollment in Current School’s 10-month program for the 2021-2022 school year. (P – G). The record also establishes that Parent has paid $500 toward the aggregate tuition obligation incurred for Student’s placement at Current School for the 2021-2022 school year. (P – U). As such, I find the DOE shall fund the full cost of the Parents’ tuition obligation for Student’s placement at Current School for the 2021-2022 school year, in the amount of $74,250 to be paid to Current School within thirty (30) days of this decision.

The record establishes that Parent incurred the obligation to pay Current School’s aggregate tuition in the sum of $87,787.50 for Student’s enrollment in Current School’s 12-month program for the 2022-2023 school year. (P – H). The record also establishes that Parent has paid $500 toward the aggregate tuition obligation incurred for Student’s placement at Current School for the 2022-2023 school year. (P – V). As such, I find the DOE shall fund the full cost of the Parents’ tuition obligation for Student’s placement at Current School for the 2022-2023 school year, in the amount of $87,287.50 to be paid to Current School within thirty (30) days of this decision.

Parent has paid a total of $1,000 toward the aggregate tuition obligation incurred for Student’s placement at Current School for the 2021-2022 and 2022-2023 school years. (P – U, P – V). As such, I find the DOE shall reimburse Parent the sum of $1,000 for Parent’s payment of a portion of the cost of the aggregate tuition obligation incurred for Student’s placement at Current School for the 2021-2022 and 2022-2023 school years, to be paid to Parent within thirty (30) days of this decision.

12-month Extended School Year

Parent requests that Student IEP be changed to recommend 12-month services. Current School Head Teacher testified credibly as to why Student requires a 12-month program. Specifically, “Student needs a 12-month program to maintain the skills that they have developed over the course of the school year and to prevent significant regression. I have noticed that following a school or holiday break, it takes Student up to two weeks to return to the level of academic performance demonstrated before the break. Additionally, Student's social skills and behavior in the classroom deteriorate during extended breaks from school. Student is significantly less able to negotiate the classroom routine and fulfill the established behavioral expectations of the classroom after a long break from school.” (P – AB). DOE Representative did not seek cross examination of Current School Head Teacher and did not offer any evidence to contradict Parent’s assertions regarding the extended school year. I find the CSE will convene within (15) fifteen days of this decision to develop an appropriate IEP for Student that recommends a 12-month extended school year and any other services the CSE deems appropriate based on Student’s evaluations and progress reports.

Section 504 violations 2021-2022 and 2022-2023 School Years: Meals Reimbursement

The Parents have requested an order directing DOE to reimburse them for the cost of Student’s breakfast and lunch provided while they attended Current School during the 2021-2022 and 2022-2023 school years. Under Section 504, a school district must provide individuals with an opportunity for an impartial hearing to resolve disagreements arising under the statute and IHOs in New York have jurisdiction over Section 504 claims. To support a Section 504 claim, a party must show that they have a disability, is otherwise qualified for the benefit that has been denied and has been denied the benefit by reason of the disability. C.D. ex rel. S.D. v. New York City Dept. of Educ., 2009 WL 400382, at *7 (S.D.N.Y. 2009) (citing Weixel v. Bd. of Educ., 287 F.3d 138, 146-47 (2d Cir. 2002)). The Court in C.D. ex rel. S.D. found that DOE’s policy of not providing free meals to minor students with disabilities who attended private special education schools was impermissibly discriminatory and a violation of Section 504 because it denied those students a benefit otherwise conferred to public school students solely by reason of the students’ attendance at private schools based on their disabilities. Here, DOE’s failure to provide Student with free breakfast and lunch while attending Current School when it provided free breakfast and lunch to similarly situated public-school students, is equally discriminatory and a violation of Section 504. Consequently, DOE must reimburse Parent for the expenses they incurred in providing those meals to Student while attending Current School during the 2021-2022 and 2022-2023 school years. Parent notified DOE on August 27, 2021, that they intended to unilaterally place Student at Current School and seeking reimbursement for Student’s breakfast and lunch because they would qualify for free breakfast and lunch in public school. (P – B). DOE did not respond. At the hearing, Parents provided evidence of their financial circumstances and evidence of the food cost they incurred during the 2021-2022 and 2022-23 school years. (P – L, P – P). Parent’s food receipts were unclear, and I requested a summary of the submitted receipts. (June 9, 2023 T, IHO - VI). Parent’s Attorney I submitted a spreadsheet to summarize Parent’s food expenses for 2021-2022 and 2022-23 school years. The spreadsheet did not clearly summarize the receipts Parent submitted to support this claim. (P – P). Nevertheless, DOE did not contest Parent’s claim for reimbursement or documentation offered to establish Student’s eligibility for free meals. In the absence of any contrary evidence, I find that the Parents are entitled to receive reimbursement for the cost of Student’s breakfast and lunch on school days while they attended Current School during the 2021-2022 and 2022-23 school years. However, without clear information as to the Parents’ expenses, I limit reimbursement at a rate not to exceed an average of $7 per school day. Parent is seeking reimbursement for 10-month 2021-2022 school year and 12-month 2022-2023 school year. 10-month school year is 180 days, and a 12-month school year is 210 days. (IHO – VI). I find DOE shall reimburse Parent $1,440 for monies paid for Student’s breakfast and lunch during the 10-month 2021-2022 school year (180 days) at rate not to exceed an average of $8 per school day. I find DOE shall reimburse Parent $1680 for monies paid for Student’s breakfast and lunch during the 12-month 2022-2023 school year (210 days) at rate not to exceed an average of $8 per school day.

Compensatory Related Services

Student has been denied a FAPE for multiple years despite the DOE’s acknowledgement of Student’s need for related services. The hearing record confirms that Student did not receive all the mandated related services for 2021-2022 and 2022-2023 school years. 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); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7, 15-16 (1993). 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]. 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 v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005). “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.” See Id. at 522. Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.” See Id. at 518.

There are generally two approaches to fashioning a compensatory education award: 1) 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 2) 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 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.

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 “[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]. Here, Parent indicated that Student requires “compensatory services in the form of speech language therapy (“SLT”) and occupational therapy (‘OT”) services.” (P - A).

The hearing record establishes that Student was not provided a FAPE for the 2021-2022 and 2022-2023 school years. The uncontroverted testimony of Parent confirms that Student was denied related services in OT and SLT during the 2021-2022 and 2022-2023 school years and is entitled to compensatory education to compensate for what they were deprived of during the school years in question. The DOE did not present any witness testimony or documentary evidence to explain why it made the program recommendations contained in the IEPs it developed for Student or to explain why they did not develop an IEP at all, notwithstanding the Supreme Court’s admonition that “[a] reviewing court may fairly expect those authorities [school district staff] to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 999 [2017], (D – 13-1, 2-1). The DOE also failed to present any evidence or testimony to challenge or rebut the findings and recommendations presented by the Parent.

Student was mandated to receive related services as follows 3: 2021-2022 school year

Related Services Frequency Duration Total Hours

OT 2 times per week 30 minutes 36 hours ^[4]

Speech-Language 2 times per week 30 minutes 36 hours

Therapy

2022-2023 school year

Related Services Frequency Duration Total Hours

OT 2 times per week 30 minutes 36 hours

Speech-Language 2 times per week 30 minutes 36 hours

Therapy

Based on the hearing record, I find Student was denied approximately 72 hours of related services for each school year in question 2020-2021 and 2021-2022 for an approximate total of 144 hours. Accordingly, an award of 144 hours in OT and SLT is necessary to bring Student to where they should have been had they been provided with the appropriate related services during the school years at issue. An award of 144 hours of OT and SLT will put Student in the position they would have been in had they been provided appropriate related services in the first place, and it will appropriately compensate Student for the DOE’s denial of a FAPE for the 2021-2022 and 2022-2023 school years.

3 Based on the only IEP in the hearing record. (P – D). Transportation

The IDEA requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ . . . even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport” Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 [11th Cir. 1997] (internal citation omitted). Transportation may be deemed necessary “if in its absence a disabled child in Current school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education program benefits “comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools’” Donald B., 117 F.3d at 1375 (internal citations omitted). In addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” Education Law §§ 4401[1], 4402[4][a]; see also Education Law § 4401(2); 8 NYCRR § 200.1[ww]). Since I am finding Current School to be the appropriate placement, I will order that the DOE provide appropriate transportation services and/or funding for Student to commute to and from Current School.

Other Relief

The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party; and entitlement, if any, to costs must be determined by a court of competent jurisdiction. Only a court can determine who is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that Parents are the prevailing parties entitled to costs.

Other than the relief set out in my Order below, I find that no basis and/or evidence in the Record supports any additional relief.

ORDER

Based on the foregoing, it is hereby:

1. ORDERED, Parent’s claims regarding the 2019-2020 and 2020-2021 school years are time barred, and it is further,

2. ORDERED, the DOE failed to provide Student a FAPE for the 2021-2022 and 2022-2023 school year, and it is further.

3. ORDERED, Current School is an appropriate placement for Student for the 2021-2022 and 2022-2023 school years, and it is further,

4. ORDERED, Current School shall be Student’s pendency placement, and it is further,

5. ORDERED, the DOE shall fund the full cost of Parent’s tuition obligation for Student’s placement at Current School for the 2021-2022 school year, in the amount of $74,250 to be paid to Current School within thirty (30) days of this decision, and it is further,

6. ORDERED, the DOE shall fund the full cost of Parent’s tuition obligation for Student’s placement at Current School for the 2022-2023 school year, in the amount of $87,287.50 to be paid to Current School within thirty (30) days of this decision, and it is further,

7. ORDERED, that the DOE shall reimburse Parent the sum of $1,000 for Parent’s payment of a portion of the cost of the aggregate tuition obligation incurred for Student’s placement at Current School for the 2021-2022 and 2022-2023 school years, to be paid to Parent within thirty (30) days of this decision, and it is further,

8. ORDERED, that the DOE shall, within fifteen (15) days of the date of this decision, convene a Committee on Special Education (“CSE”) meeting to develop an appropriate IEP for Student that recommends a 12-month extended school year and any other services the CSE deems appropriate based on Student’s evaluations and progress reports, and it is further,

9. ORDERED, DOE shall reimburse Parent $1,440 for monies paid for Student’s breakfast and lunch during the 10-month 2021-2022 school year (180 days) at rate not to exceed an average of $8 per school day, to be paid to Parent within thirty (30) days of this decision, and it is further,

10. ORDERED, DOE shall reimburse Parent $1680 for monies paid for Student’s breakfast and lunch during the 12-month 2022-2023 school year (210 days) at rate not to exceed an average of $8 per school day, to be paid to Parent within thirty (30) days of this decision, and it is further,

11. ORDERED, that Student is entitled to appropriate transportation services and/or funding for Student to commute to and from Current School, and it is further,

12. ORDERED, the DOE shall provide and fund compensatory hours of related services as follows: 72 hours of Occupational Therapy and 72 hours of Speech Language Therapy, to be provided outside of school hours (and may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations), by a provider of the Parent’s own choosing at the providers’ customary and regular rates by issuing payment directly to the provider within 30 (thirty) days upon the submission of invoices for services rendered, and it is further,

13. ORDERED that the bank of compensatory hours set out in this Order shall not expire until the expiration of 3 (three) years from the date of this Order, and it is further

14. ORDERED that the DOE shall fund the necessary transportation costs to and from the service provider providing the awarded compensatory services if these are provided outside of Student’s home.

SO ORDERED.

DATED: August 09, 2023

___RER____(Signed Electronically)___

Impartial Hearing Officer

R. Emily Rodriguez, Esq.

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.

DOE EXHIBITS

None

PARENT EXHIBITS

A. Impartial Hearing Request 3/22/23 14 pages

B. Ten-Day Notice (TDN) to the DOE 8/27/21 4 pages

C. Ten-Day Notice (TDN) to the DOE 6/17/22 6 pages

D. Individualized Education Program 10/14/20 17 pages

E. Neuropsychological Evaluation, 1/3/20 22 pages

F. Evaluation, Medical Group 9/14/21 32 pages

G. Current School Enrollment Contract 21-22 3/23/21 5 pages

H. Current School Enrollment Contract 22-23 6/23/22 5 pages

I. Student 21-22 Schedule 1 page

J. Student 22-23 Schedule 1 page

K. Program Description, Current School 8 pages

M. L. Parent Federal 2022 Tax Return 2 New York Times Article re Free Breakfast and Lunch for All Students 9/6/17 1 page

N. C.D. v. NYC Dept. of Edu., 2009 WL 400382 (SDNY 2009), 2009 2/11/09 13 pages

O. Printout of Chancellor's Announcement re Free Meals 9/6/17 15 pages

P. Meals Receipts for 22-23 7 pages

Q. Email to Prior School Sharing Evaluation 8/24/20 1 page

R. School Visit Request Emails to Prior School 3/2/22 2 pages

S. Email to DOE Sharing Evaluation 10/14/20 1 page

T. Email to DOE Sharing Evaluation 2/3/22 1 page

U. Tuition Affidavit from Current School for 21-22 7/27/22 1 page

V. Tuition Affidavit from Current School for 22-23 8/17/22 1 page

W. Current School Attendance Report for Student for 21-22 6/17/22 1 page

X. Current School Attendance Report for Student for 22-23 2/28/23 1 page

Y. Affidavit of Parent 6/6/23 9 pages

Z. Affidavit of Current School Principal 6/2/23 6 pages

AA. Affidavit of Current School 2021-2022 Head Teacher 6/6/23 7 pages

AB. Affidavit of Current School Head Teacher 6/6/23 7 pages

AC. Affidavit of Parent in Opposition to Motion to Dismiss 6/8/23 3 pages

IHO EXHIBITS

I. DOE Motion to Dismiss claims related to 2019-2020 and 2020-2021 6/7/2023 6 pages IHO

II. DOE Motion to Dismiss Exhibits 6/7/2023 19 pages IHO

PARENT

III. first response to DOE’s Motion to Dismiss 6/16/2023 8 pages IHO

IV. DOE response to Parent’s response 6/26/2023 5 pages IHO

PARENT

V. second response to DOE’s Motion to Dismiss 6/27/2023 4 pages IHO

PARENT

VI. meal receipt spreadsheet 6/23/2023 4 pages IHO

Footnotes

[1] No personal identifying information is contained within the body of this FOFD. For personal identifying information, please refer to the attached appendix. Further, this FOFD contains no references to the gender binary. The pronoun “they” is used as needed

[2] The Hearing Officer Exhibits will be cited to as “IHO - followed by a roman numeral”; Parent’s Exhibits will be cited to as “P - followed by a letter”; and DOE Exhibits will be cited to as “D - followed by a number”. References to the hearing transcript will be cited to as “T - followed by a page number”.

[4] Based on 36-week school year. Total weekly minutes of related services 60 minutes (1 hour) x 36 weeks = 36 hours of related services per school year.