New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 598681 - NYC: 247654

FINDINGS OF FACT AND DECISION

Case Number: 247654

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

School District: NYC DOE Serv. Dist. #REDACTED

Impartial Hearing Officer: Yukstas, William

Date of Filing: 4/20/2023

Hearing Requested by: REDACTED (“Parent”)

Dates of Hearing: 7/17/2023

Record Close Date: 8/31/2023

Time Sensitive: No

Date of Decision: 9/1/2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/17/2023:

REDACTED (“Parent’s Attorney”) — Parents

REDACTED (“Tutoring Director”) — Parents

REDACTED (“DOE’s Attorney) — District

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”), the New York State Education Law, NY Educ. Law Art 89, and Section 504 of the Rehabilitation Act.^[2] Parent filed a due process complaint (“DPC”) on 4/20/2023 alleging that the DOE failed to offer Student a free appropriate public education (“FAPE”) for the 2020-2021, 2021- 2022, and 2022-2023 school years. P-A-2.^[3] By way of relief, Parent seeks an order requiring the DOE: to fund an independent neuropsychological evaluation by a provider of Parent’s choosing at provider’s ordinary rate; to fund 871 hours of 1:1 academic tutoring at Tutoring Agency at a rate of $110 per hour; to fund $295 for Tutoring Agency’s diagnostic testing and $100 for Tutoring Agency’s registration fee; to administer a Functional Behavior Assessment (“FBA”) and develop a Behavior Intervention Plan (“BIP”) for Student; to provide “additional services and/or tutoring as warranted;” and, to 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 for the 2021-2022 and 2022-2023 school years, and

(b) Parent’s requested relief is appropriate with modification.

PROCEDURAL HISTORY

Parent filed a due process complaint (“DPC”) on 4/20/2023. P-A. I was appointed on

4/21/2023. A pre-hearing conference was held on 6/2/2023. The parties requested extensions of the compliance date on 6/2/2023 and 7/17/2023, which were both granted. A due process hearing was held on 7/17/2023. At the due process hearing, the DOE did not call any witnesses and submitted exhibits 1 through 17, 4 which were accepted into evidence without objection. Tr. 11.

Parent submitted exhibits A through H, which were accepted into evidence without objection.

Tr.14. Included in Parent’s exhibits were affidavits, one from Tutoring Director and one from Parent. DOE’s Attorney cross-examined both witnesses. Two exhibits are duplicates – P-C and D-

8 are the 5/13/2022 IEP and P-B and D-16 are the 3/9/2023 IEP. On 7/7/2023, DOE submitted a motion to dismiss Parent’s claims for the 2020-2021 school on the basis that those claims were barred by the statute of limitations. IHO-I. I asked the parties to address the statute of limitations issue before we began the due process hearing. Tr.6. Parent’s Attorney requested the opportunity to submit written argument regarding the statute of limitations at the conclusion of the hearing and acknowledged that Parent was on notice that DOE would attempt to use the statute of limitations as an affirmative defense for the 2020-2021 school year claims. Tr.6-7. Both parties requested to submit written closing arguments at the conclusion of the hearing to address the issues presented at the hearing, the relief being sought, and the statute of limitations. Tr. 51-52. Both parties submitted written closing arguments on 8/1/2023. IHO-II; IHO-III.

FINDINGS OF FACT

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

2020-2021

Parent alleged that Student’s “learning problems had been evident as he had consistently exhibited poor academic progress” for all school years at issue. P-A-2. Parent alleges that DOE committed a Child Find violation by not identifying Student sooner. P-A-2. In the DPC, Parent stated that Student attended Middle School “for the past several years.” P-A-2. This is not accurate.

A full record of exhibits admitted into the record is included as Appendix B.

Student attended Elementary School in 2020-2021 for fifth grade. Student attended Middle School in 2021-2022 and 2022-2023 for sixth grade and seventh grade. Tr.45.

To start, there is limited information in the hearing record regarding the 2020-2021 school year. During the 2020-2021 school year, Student was a fifth-grade student attending Elementary School and had not been identified as a student with a disability.

In support of Parent’s allegations, Parent testified, “[p]rior to [Student’s] initial classification in May of 2022, [Student’s] learning problems had been evident as he had consistently exhibited poor academic progress. [Student] needed more help during the 2020-2021 and 2021-2022 school years, and I asked for it.” P-H-2. In addition, Parent testified that “[t]he

COVID-19 crisis led to [Student] being home for several months without direct instruction, a formal school program, and various related services.” P-H-4. On cross-examination, DOE’s Attorney asked Parent if she received report cards for Student during the 2020-2021 school year showing that Student was struggling, and Parent said that she had received such report cards. Tr.43-

44. This is, essentially, all the testimony in the hearing record to suggest that Student was experiencing any academic or social-emotional issues during the 2020-2021 school year. 5 DOE did not call any witnesses to explain Student’s academic profile during the 2020- 2021 school year, and all of DOE’s exhibits are dated for the 2021-2022 school year or after. D-1

through D-17.

Despite the lack of evidence from the DOE and Parent’s testimony referenced above, I find that Student was, in fact, doing well during his fifth-grade school year at Elementary School and exhibited no academic or social-emotional issues that would have necessitated intervention. While

Parent’s testimony appears to contradict this finding, I find that Parent’s references to Student’s

A few of the evaluations allude to Student having experienced certain challenges starting in elementary school.

struggles during the 2020-2021 school year were inaccurate, or, more likely, simply mistaken as to when those events occurred. Parent’s testimony on cross-examination and on questioning from me is instructive:

[DOE’s Attorney]: When did you first notice that [Student] struggles in school?

[Parent]: His first year in sixth grade when it was parent/teacher conference and they had expressed that he was having some issues and – in the classroom. And that’s when the whole process of this journey began.

[IHO]: Can I interject for a second? You had said first year in sixth grade. Did he repeat sixth grade?

[Parent]: No, he didn’t.

…

[DOE’s Attorney]: Now, did you discuss his struggles with the school?

[Parent]: The school discussed his struggles – his struggles in education and his behavioral issues. And that’s when I had proceeded to follow up with asking for an IEP.

…

[IHO]: [Parent], when you say – that parent-teacher conference, when was that? Was that – what school year was that if you could –

[Parent]: That was – that was the 20 – we just finished the school year. It was last year, sixth grade, because he’s just finished seventh grade. So I believe it’s 2021.

[IHO]: Okay. So the fall of 2021, you attended a parent-teacher conference, and were there

– there were concerns. You had concerns that you hadn’t had previously?

[Parent]: No, because my son has always been an A-student in school.

…

[IHO]: Okay. Was that [at] a different school than he had attended previously [referencing

Parent’s testimony that Student had been struggling], or had he been at that school for a prior school years?” (sic)

[Parent]: No, this was his first year in middle school, and prior he was [Elementary School]

that was run pre-K through fifth grade.

[IHO]: Okay. So his first year in middle school was when you started to notice that he was having academic and behavior issues. Is that right?

[Parent]: That is correct.

Tr. 43-46. While there is some discrepancy in the DPC and Parent’s affidavit, it is clear from Parent’s testimony that, in fact, Student did not begin to experience significant academic or behavioral issues until he started sixth grade at Intermediate School, which was during the 2021- 2022 school year.

2021-2022

Student was a sixth grader enrolled at Middle School during the 2021-2022 school year.

As noted above, Student presented with academic and behavioral issues from nearly the start of the school year. Tr.43-46. In Parent’s DPC, Parent alleged that DOE failed to identify Student for an extended period and then provided services that were substantively deficient for Student during the 2021-2022 school year. P-A.

Parent testified that she first requested that Student receive special education services in November or December of Student’s sixth-grade year. Tr.48. On 12/1/2021, DOE requested permission to evaluate Student. D-1-1. DOE proposed to meet with Parent to discuss the evaluation and other matters on 12/13/2021 (D-2-1), 12/17/2021 (D-2-3), 12/10/2021 (D-2-5), but these times did not fit with Parent’s work schedule and ultimately the meeting was postponed. Many emails were exchanged between Parent and DOE employees to this effect. D-3. On 12/20/2021, the DOE sent Parent a letter informing Parent that she would need to request the evaluation process to start over again. D-4-1. There is an unattested email dated 2/8/2022 that purports to be from Parent to DOE stating that Parent was ready to begin the IEP process again on 2/8/2022. D-6-1.

Ultimately, a social history evaluation was completed on 2/18/2022. D-10. In the social history, Parent noted that Student’s problematic behavior, specifically angry outbursts, had started to occur consistently during the 2021-2022 school year. D-10-2. Parent reiterated that Student had not experienced academic issues prior to the 2021-202 school year. D-10-2. Parent noted that Student experienced some bullying and had been in physical altercations at school during the first half of the 2021-2022 school year. D-10-2. Parent received procedural safeguards during the social history evaluation. D-10-3. Parent gave consent for Student to be evaluated on 2/22/2022. D-10-4

(it appears that Parent signed the form on 2/22/2022 but the form itself is dated 2/18/2022).

A classroom observation was conducted on 4/4/2022. D-11-1. During the observation, Student was given a worksheet and immediately became “fidgety,” had a brief conversation with the special education teacher, and then went out to the hallway and kicked the classroom door. D-

11-1. Student also kicked a chair and a bookbag and, for the most part, only participated in the class activity with individualized attention from a teacher. D-11.

A psychoeducational evaluation was conducted on 4/28/2022, 4/29/2022, and 5/2/2022. Of note, in the evaluation the Evaluator stated that Student participated in testing on three occasions and that, on two of those occasions, Student was walking in the school hallways during what should have been class time. D-12-2. Evaluator noted that Student had been observed engaging in negative behaviors such as physical outbursts like banging on his desk, throwing objects, kicking chairs, and yelling out negative comments to peers before the evaluation. D-12-2. In the cognitive portion of testing, Student’s overall cognitive ability was assessed to fall in the Low Average range with lower scores on the Visual Spatial subtests, Verbal Comprehension subtests, and Fluid Reasoning subtests, and average scores in Working Memory and Processing Speed. D-12-3. Student’s academic performance was similarly mixed. D-12-5. Student’s Word Reading and Essay

Composition skills were determined to fall in the Average range, but Student performed in the Low Average range for Numerical Operations and Very Low in Reading Comprehension and Math Problem Solving. D-12-10,11. Perhaps more descriptively, Student’s 5/13/2022 IEP notes that, on classroom testing, Student was reading at approximately a third-grade level; Student exhibited solid word recognition skills but possessed limited reading fluency and experienced significant difficulty in making inferences. D-8-3. In math, Student could do basic computations and recognize patterns but had trouble adding and subtracting three-digit numbers. D-8-4. The evaluation also suggested that Student was experiencing Clinically Significant social-emotional issues in numerous areas, such as Hyperactivity, Aggression, Conduct Problems, Externalizing

Problems, Depression, Attention Problems, Adaptability, Social Skills, Leadership, and Study

Skills. D-12-6,7.

An FBA was finalized on 5/13/2022. D-13. A BIP was developed on 5/17/2022 based on this FBA. D-14. Student’s outburst behavior was the target behavior identified in need of intervention. D-13-4. Transitions were noted to be another area of concern. D-8-3. Student completed a portion of the FBA and noted that “nothing feels good at school besides recess and friends.” D-13-16. Despite the extensive FBA (D-13) and BIP (D-14) prepared by DOE, it appears that the interventions have, largely, been unsuccessful to date. Tr.48 (“[IHO]: [T]he District introduced the functional behavior assessment and behavior intervention plan. Have there been any behavior interventions that have been successful in helping [Student]? [Parent]: Absolutely not. He was assigned a new one-to-one para who was more effective with him….”). Parent repeatedly asserted, on direct, on cross, and on questioning from me, that the interventions put in place so far by the DOE have been largely ineffective in supporting Student academically or behaviorally. Given that there is no evidence to the contrary, I credit Parent’s assertion.

On 5/13/2022, an initial IEP was developed for Student, which relied on the evaluations and observations noted above. D-8. The 5/13/2022 IEP classified Student as a Student with an Emotional Disability. D-8-16. It recommended the following special education and related services for Student: Integrated Co-Teaching (“ICT”) for five (5) periods per week in Math, ELA, Social Studies, and Science; Counseling, in a group of five (5), one (1) time per week for forty (40)

minutes; and a full-time individual paraprofessional for behavioral support. D-8-12.

At the end of Student’s sixth-grade year, Parent testified that she requested that Middle School consider having Student repeat sixth grade because of his lack of progress during the school year. Tr.47. Parent testified that Middle School Principal told her that Student was being promoted for his social-emotional development, to which Parent testified that she told Principal that Student had done so poorly in sixth grade that there was little hope for improvement the next year. Tr.47.

As noted, Parent alleged in her DPC that the DOE took too long to provide services to Student and that the services provided to Student did not provide him an adequate opportunity to receive educational benefit for the 2021-2022 school year. P-A. DOE did not present any evidence beyond the documents referenced above to explain Student’s performance during the 2021-2022

school year.

2022-2023

Student was a seventh grader at Middle School during the 2022-2023 school year. Parent testified that Student continued to experience academic and behavioral issues that were like those of the preceding school year. P-H.

A Psychiatric Assessment was conducted by the DOE on 2/10/2023. D-15. Similar concerns regarding Student’s behavior were noted as had been observed previously. D-15-2.

Psychiatric Evaluator recommended that Student receive group and individual therapy, that Student receive instruction in a “smaller, warm classroom setting with great structure and close supervision (especially due to aggression), low stimulation, a safe space to de-escalate, and significant individualized academic and social-emotional supports, coordination between various mental health supports, family, and teachers, among other recommendations. D-15-4.

On 4/13/2023, Student was assessed by Tutoring Agency. P-D; P-E; P-F. Tutoring Agency estimated that Student was performing three years below grade level in ELA and Math skills based on their assessments. P-G-2. Based on Student’s performance, Tutoring Director stated that Student required 871 hours of 1:1 tutoring by a highly trained tutor from Tutoring Agency to remediate Student’s academic deficits. P-G-7. Tutoring Agency determines the amount of time a student needs to acquire certain skills based on their experience in working with other students who were performing at similar levels previously, not on information specific to the student. P-G-

8. On cross-examination, Tutoring Director acknowledged that she never met Student. Tr.25. Tutoring Director also stated that thirty (30) of the recommended tutoring hours were for building Student’s study skills, but that this instruction would only occur after Student reaches grade-level and that Student’s study skills had not been separately assessed. Tr.31. Frankly, I have some misgivings regarding Tutoring Agency’s methodology given the very rough estimate for time a particular student may need to master certain tasks. Tr.35-36. In general, Tutoring Director testified that the estimate for the number of hours Student needs to spend on each skill is based on her experience in observing other student’s progress. Tr.35-36. Tutoring Director also testified that Student could complete 871 hours in as little as two years but that, given Tutoring Agency’s minimum weekly hour requirements, it could take Student up to four years to complete the recommended number of hours though “obviously, I don’t think that’s [taking four years to complete the recommended program] in his best interest.” Tr.38. DOE did not present an alternative suggestion for compensatory services for Student. Tr.20.

An IEP was developed for Student on 3/9/2023. D-16. Additional academic testing was conducted that suggested that Student’s performance was below standards in math and between a third and fifth grade level in reading (fairly consistent with Tutoring Agency’s evaluation). D-16-

1. The FBA and BIP from the 5/13/2022 IEP were repeated in the 3/9/2023 IEP. D-16-2. The

3/9/2023 IEP suggests that Student had made significant progress in reading, at least decoding, during the 2022-2023 school year. D-16-3. The 3/9/2023 IEP noted that Student still struggled to express complex ideas based on a text without teacher support and that Student was more likely to recite information from a text than to be able to analyze it. D-16-3. The 3/9/2023 IEP notes “[Student] is not making much progress in math and currently has a 66% for the year.” D-16-4.

Student was observed to still take “exorbitant” amounts of time between classes and engage in similar problematic behaviors as during the preceding school year, consistent with Parent’s testimony that no intervention has been successful to address Student’s negative behaviors so far.

D-16-5. The 3/9/2023 IEP recommended the same special education and related services as the

5/13/2022 IEP except that it appears to have dropped the recommendation of a full-time individual paraprofessional to support Student’s behavior. D-16.

Parent alleged that DOE failed to determine Student’s present levels of performance by conducting insufficient evaluations and failed to offer substantively appropriate services for Student during the 2022-2023 school year. P-A-3.

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 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 (EDNY 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). I

Here, DOE filed a Motion to Dismiss all claims related to the 2020-2021 school year 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 during the 2020-2021 school year based on Parent’s allegations in the DPC related to that school year, which suggest that Parent was aware of Student’s struggles at the time. However, as I noted above, I have found that these allegations appear to be related to the 2021-2022 school year, not the 2020-2021 school year. Parent did not receive procedural safeguards until February 2022. Parent was not aware of Case No. 247654

Student’s academic issues until the fall of 2021, during the parent-teacher conference Parent referenced in her testimony.

Accordingly, I find that the known or should have known date is February 22, 2022, for Parent’s claims for the 2021-2022 school year (roughly the date at which Parent was aware of Student’s academic issues and had been provided with procedural safeguards). As such, I find that Parent’s claims for the 2020-2021 school year are not barred by the statute of limitations.

Provision of FAPE

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).

For the 2020-2021 school year, Student was not denied a FAPE because he was not eligible for special education and related services. As I noted above, Student’s academic and behavior issues did not fully present until the 2021-2022 school year. During the 2020-2021 school year, Student was still attending Elementary School, where he demonstrated strong academic skills according to Parent.

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 seventeen 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.

Parent alleged that DOE violated the Child Find provision of the IDEA, which requires that states have in place procedures to ensure that all children with disabilities residing in the state are identified, located, and evaluated. 34 C.F.R. § 300.111 (c)(1)(i). A school's failure to comply with Child Find may constitute a procedural violation of the IDEA. D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d Cir. 2012); D.A. ex rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d

450, 453 (5th Cir.2010). Under the IDEA, where procedural violations are alleged, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies led to a deprivation of education benefits to a student or the student’s right to a FAPE is significantly impeded. When a child requires special education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an inadequate IEP. Forest Grove School Dist. v. T.A., 557 U.S. 230 (2009). The Child Find requirements apply explicitly to children who are “suspected of being a child with a disability . . .

and in need of special education, even though they are advancing from grade to grade". 34 C.F.R.

§ 300.111 (c)(1).

Upon receipt of a proper referral “the school district shall, within ten (10) school days” either request parental consent to evaluate or provide the parent with certain information. 8 NYCRR § 200.4(a)(2)(iv). Subsequently, an initial evaluation must be completed within sixty (60)

days of receiving parental consent for an evaluation. 8 NYCRR § 200.4(b)(1); 34 C.F.R §

300.301(c)(1)(i). The evaluation must consist, at a minimum, of a physical examination, an individual psychological evaluation (unless determined that further evaluation is unnecessary), an observation of the student in student’s learning environment, and other appropriate assessments or evaluations including a functional behavioral assessment for students “whose behavior impedes his or her learning.” 8 NYCRR § 200.4(b)(1)(i)-(v). If the school finds that additional data is not necessary to meet these requirements, “the school district must notify the parents of that determination and the reasons for it and the rights of the parents to request an assessment” to determine student’s academic needs. 8 NYCRR § 200.4(b)(5)(iv). Here, the DOE was able to complete at least some version of the required assessments, roughly, within the appropriate period, given some scheduling difficulties with Parent. However, once the services were in place, there is no evidence to suggest that they were appropriate or provided the services recommended in the evaluations themselves.

For the 2022-2023 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 seventeen 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 2022-2023

school year.

To further underscore this point, for example, in the 3/9/2023 IEP, it is noted that Student is not making progress in Math. And it is further noted that Student’s behaviors have not improved.

Despite those points, there are no additional services or goals for Math in the IEP, and Student’s individual behavior paraprofessional appears to have been removed as a service.^[6] Without some explanation for how these changes would help Student, it is impossible to determine that DOE offered services that would confer some level of educational benefit to Student.

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. I asked DOE if DOE expected to introduce any evidence regarding a remedy. DOE indicated that there was no evidence that the DOE would present on that point, and the DOE did not have an alternative to Parent’s suggested relief. Tr.21;

IHO-II.

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 social-emotional 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 871 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 am reducing the number of hours awarded to 841, as Tutoring Director testified that 30 of the hours are for the acquisition of study skills after Student is already at grade-level. The need for further intervention should, ideally, be completed if Student is performing at grade-level. Also, Student’s study skills were not assessed, in any way, by Tutoring Agency.

I find no other issue with the reasonableness of the request for 841 hours of one-on-one, remedial tutoring at a rate of $110/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 three consecutive school years. Under the quantitative approach, a two-year deprivation of FAPE would amount to a period of deprivation spanning roughly eight hundred hours (40 weeks x 20 hours of specialized instruction per week as recommended in both IEPs). An analysis under the qualitative approach would likewise arrive at the same conclusion, as 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 two years at question. DOE’s Attorney cross-examined Tutoring Director regarding the rate charged but did not introduce any evidence to the contrary, 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 two years given Tutoring Director’s testimony that Student will most fully benefit if he completes the programming in two years. I also understand that I retain broad discretion to craft an appropriate award. 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 two years despite finding a longer period of a FAPE denial than in the case referenced.

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.

In this vein, Parent requested “an order that the DOE administer an appropriate FBA, and that an appropriate BIP be developed.” P-A-5. Parent does not allege any specific deficiency in the current FBA / BIP, beyond noting that the interventions have been unsuccessful so far. Given that the DOE agrees that Student requires an FBA / BIP (as evidenced by including in Student’s IEPs),

I will not specifically order this beyond ordering the CSE to consider conducting a new FBA at Student’s next IEP meeting.

Independent Neuropsychological Evaluation

An Independent Educational Evaluation (IEE) is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 NYCRR §

200.1(z).

The IDEA and State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation. 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted). In Shaffer v. Weast, the Supreme Court explained the role an IEE plays in parental participation and the IDEA’s regulatory scheme as follows: “[an IEE] ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” 546 U.S. 49, 60-61 (2005).

If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE. 8 NYCRR § 200.5(g)(1)(i). A school district can set criteria regarding the IEE, including the qualifications of the examiner, but the district’s criteria must be the same as the criteria it uses for its own evaluations, and the district cannot impose additional conditions or timelines related to the IEE. 34 CFR § 300.502(e)(1); 8 NYCRR § 200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989). For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE (Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 [4th Cir. 2011]), nor can it deny an IEE at public expense based solely on financial cost. Letter of OSERS, 2002. A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE. Letter to Carroll, 68 IDELR 279 (OSEP 2016). Finally, while the school district may “ask for the parent’s reason why he or she objects to the public evaluation,” the district cannot require an explanation or delay providing the IEE until the parent provides an explanation. 8 NYCRR § 200.5(g)(1)(iii).

When a parent disagrees with a school district’s evaluation and requests an IEE at public expense, the school district “must, without unnecessary delay,” either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.

34 CFR § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv) (emphasis added).

A parent who disagrees with an evaluation conducted by the district may pay for an IEE and later seek reimbursement from the district. See Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 87 (3d Cir. 1999) (noting that to hold otherwise “would render the regulation pointless because the object of parents' obtaining their own evaluation is to determine whether grounds exist to challenge the District's”); Hudson by and Through Tyree v. Wilson, 828 F.2d 1059, 1065 (4th Cir. 1987) (noting that to require a parent to notify the school that it disagrees with its evaluation “before the parent obtains the private testing” is a “strained reading of the regulation” that “would leave the parent with no way to challenge a school’s evaluation with a reimbursed private evaluation”) (emphasis in original); Bd. of Educ. of Murphysboro Community Unit Sch. Dist. No.

186 v. Ill. State Bd. of Educ., 41 F.3d 1162, 1169 (7th Cir. 1994) (concurring with the 4th Circuit’s holding in Hudson that “parents can initiate an evaluation before notifying a school district that they disagree with the district’s evaluation”); and Raymond S. and Janet S. v. Ramirez, 918 F.

Supp. 1280, 1291 (N.D. Iowa 1996), (concluding “the failure of the [parents] here to notify the School District prior to obtaining an independent educational evaluation . . . is not fatal to their claim”).

Informal guidance from the United States Department of Education's Office of Special Education Programs (“OSEP”) is consistent with these determinations, as OSEP has stated “[t]here is no Federal requirement that a parent notify the public agency in writing . . . that the parent will be requesting an IEE at public expense.” Letter to Anonymous, 55 IDELR 106 (OSEP 2010); further, “[a] public agency may not require that a parent provide notification of the parent’s intent to obtain an IEE at public expense as a precondition for public payment for an IEE.” Letter to

Saperstone, 21 IDELR 1127 (OSEP 1994). Moreover, the procedural protections enumerated in the IDEA concerning IEEs address a school district’s responsibility to fund the evaluations; the Committee on Special Education must review any IEEs regardless of which party is ultimately responsible for funding. See 8 NYCRR 200.5(g)(1)(v). The timing of the notice to the school district, whether before the parent has secured an evaluation or after, in no way impacts the school district’s responsibilities and rights under the Act: to either agree to fund the requested IEEs or file for due process and defend.

In this case, the DOE did not initiate an impartial hearing to establish that its evaluations were appropriate, nor did it take the necessary action to ensure that the Parent’s requested IEE was provided at public expense. The Parent is therefore entitled to an order for an independent neuropsychological evaluation at a reasonable market rate (I decline to order at the provider’s normal rate). Parent included bare allegations regarding the need for the IEE in Parent’s DPC and evidentiary submissions. It does appear that a fuller evaluation of Student may be useful for the IEP team in determining future programming for Student.

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

841 hours of 1:1 tutoring be provided by Tutoring Agency at a rate of $110.00 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 9/1/2025; it is further

2. ORDERED, that the DOE shall pay the Tutoring Center $295.00 for the cost of Student’s diagnostic testing and $100.00 for Student’s standard registration fee at Tutoring Center within 30 days of receipt of Tutoring Center’s invoices for these costs; it is further

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

4. ORDERED, that the DOE shall fund an independent neuropsychological evaluation for Student by a provider of Parent’s choosing at a reasonable market rate within 30 days of receipt of an invoice by a qualified provider; it is further

5. ORDERED, the CSE shall convene a new IEP meeting for Student within 30 days of receiving the independent neuropsychological evaluation and consider updating Student’s

FBA and BIP at that meeting. SO ORDERED. DATED: September 1, 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

Exhibit Title Date Pages

1. Prior Written Notice (Notice of Recommendation) 12/1/2021 7

2. Reschedule Notification Various dates 6

spanning

12/8 –

12/14/2021

3. E-mail communications with Parent Various dates 23

spanning

from 12/2021

– 6/2022

4. Final Notice of Evaluation: Initial 12/12/2021 2

5. SESIS Events Log Various 5

6. Initial Referral 2/8/2022 1

7. Meeting Notice CSE 5/13/2022 3

8. IEP 5/13/2022 18

9. Notice of Social History 2/9/2022 2

10. Social History Evaluation and Communication Various dates spanning from 2/18 –

2/22/2022

11. Classroom Observation 4/4/2022 2

12. Psychoeducational Evaluation Report Various dates 8

spanning

from

4/28/2022 –

5/2/2022

13. Functional Behavioral Assessment 4/2022 & 19

5/2022

14. Behavioral Intervention Plan 5/17/2022 7

15. Psychiatric Assessment 2/10/2023 5

16. IEP 3/9/2023 23

17. Prior Written Notice – School Location Letter 4/17/2023 3

PARENT’S EVIDENCE

Exhibit Title Date Pages

A. Impartial Hearing Request 4/20/2023 6

B. IEP 3/9/2023 20

C. IEP 5/13/2022 18

D. Tutoring Agency Student Academic Evaluation Results 4/13/2023 3

E. Tutoring Agency Individualized Prescribed Hours 4/13/2023 3

F. Tutoring Agency Student Test Results 4/13/2023 44

G. Tutoring Director Affidavit 6/13/2023 13

H. Parent Affidavit 7/10/2023 6

IHO EVIDENCE

Exhibit Title Date Pages

I. DOE Statute of Limitations Motion 7/7/2023 7

II. DOE Closing Argument 8/1/2023 5

III. Parent Closing Argument 8/1/2023 10

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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 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 below.

[3] 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.

[6] I say appears because this significant change is not otherwise commented on in the IEP. Also, Parent testified that, at some point, Student’s individual behavior paraprofessional changed, and that Student was doing slightly better with the new paraprofessional. Still, without further explanation, I cannot credit the DOE’s bare assertion that Student was provided a FAPE.