NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: [REDACTED]
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., [REDACTED]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: 05/18/2023
Hearing Requested by: Parent
Dates of Hearing: [REDACTED]
Record Close Date: 11/21/2023
Date of Decision: 12/05/2023 Case No. [REDACTED]
Names and Titles of Persons Who Appeared [REDACTED]
For the Student:
[REDACTED], Parent Attorney
[REDACTED], Parent Representative
[REDACTED], Parent Student
For the Department of Education:
[REDACTED], Department Attorney
Names and Titles of Persons Who Appeared [REDACTED]
For the Student:
[REDACTED], Parent Attorney
[REDACTED], Parent Representative
[REDACTED], Director, Tutoring Facility
[REDACTED], Parent Student
For the Department of Education:
[REDACTED], Department Attorney
Names and Titles of Persons Who Appeared [REDACTED]
For the Student:
[REDACTED], Parent Attorney
[REDACTED], Parent Representative
[REDACTED], Speech-Language Pathologist
For the Department of Education:
[REDACTED], Department Attorney
Names and Titles of Persons Who Appeared [REDACTED]
For the Student:
[REDACTED], Parent Attorney
[REDACTED], Parent Representative
[REDACTED], Psychologist
[REDACTED], Parent Student
For the Department of Education:
[REDACTED], Department Attorney
Names and Titles of Persons Who Appeared [REDACTED]
For the Student:
[REDACTED], Parent Attorney
[REDACTED], Parent Representative
For the Department of Education:
[REDACTED], Department Attorney
Background
On May 18, 2023, the Parent, by and through the Parent’s attorneys, filed a due process complaint (DPC) against the New York City Department of Education (DOE or Department), on behalf of the Student, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”) and Section 504 of the Rehabilitation Act.[1] The DPC asserts that the Committee on Special Education (CSE) developed an individualized education program (IEP) for the 2021-2022 school year and then failed to implement it and provide the Student with Speech-Language Therapy (SLT); failed to provide the Student with SLT during 2022-2023 school year; failed to provide the Student with Occupational Therapy (OT) for part of the 2022-2023 school year; and failed to facilitate appropriate education during the Student’s remote learning due to the COVID19 pandemic, specifically from March 15, 2020, to February 25, 2021; all of which failed to enable the Student to progress and accrue educational benefits. 2 As a result, the Parent seeks: 630 hours of compensatory education in the form of tutoring; 168 hours of one-to-one (1:1) compensatory SLT; 20 hours of 1:1 compensatory OT; and the cost of transportation to and from these services. [3]
Procedural History
I was appointed the impartial hearing officer (IHO) over this matter on May 22, 2023.
On June 26, 2026, a pre-hearing conference was held, and on July 18, 2023, I issued a Pre-Hearing Conference Summary and Order.[4] I issued Orders of Extension on August 8, 2023, August 31, 2023, and October [2], 2023,[5] and Scheduling Orders on July 21, 2023, August 8, 2023, August 24, 2023, September 20, 2023, and September 21, 2023.[6] In addition, I issued a Subpoena Duces Tecum on July 20, 2023, which had been requested by the Parent.[7] The merits Case No. [REDACTED] hearing was held before me on [REDACTED].[8] At the hearing, the Department did not offer exhibits, and all the Parent exhibits were admitted into evidence,[9] as well as some additional IHO exhibits I requested. 10 The Department did not produce witnesses, while the Parent offered the testimony of the Student’s Psychologist, the Director of the Tutoring Facility, the Student’s Speech-Language Pathologist, and the Parent herself.[11] During the course of the hearing, the Department Attorney raised two affirmative defenses, res judicata and the statute of limitations pursuant to the State Education Department’s Commissioner’s Rules. I allowed the parties to submit post-hearing briefs on these issues, which were timely submitted by both sides. 12 This decision now follows.
Findings of Fact
The following was not in dispute. The Student is REDACTED years old and, for the 2022-2023 school year, attended 8th grade at the Public School.[13] The Student is classified by the CSE as a student with “Intellectual Disability[,]”[14] and is diagnosed with Down Syndrome. 15 In accordance with a Findings of Fact and Decision and IEPs developed thereafter, the Student was mandated bilingual SLT since 2018; during part of the COVID-19 pandemic (March [15], 2020, to July of 2021), however, the Parent could not find a Spanish-speaking SLT provider that would come to their home to provide services for the Student.[16] Moreover, the DOE did not provide bilingual SLT to the Student during the 2021-2022 and 2022-2023 school years. [17]
An IEP was developed on February 7, 2020, that recommended the following: a special class with[12] students, one teacher, and one teaching assistant (12:1:1) in Math five times per week, English Language Arts (ELA)[10] times per week, and Social Studies and Sciences four Case No. [REDACTED] times per week each, with all such classes in Spanish except for ELA; Occupational Therapy (OT) once per week for 30 minutes (1x30) in a group, and 2x30 as an individual service (1:1); Physical Therapy (PT) 1x30 (2:1) and 1x30 (1:1); bilingual Speech-Language Therapy (SLT) 2x60 (1:1); Parent Counseling and Training (PCAT) once per month for 30 minutes, in a group; a dynamic display Speech Generating Device (SGD), for individual service, all day, every day, at school and at home; and various classroom modifications.[18] All of the special education and related services were recommended for the extended 12-month school year.[19] When the Public School “switched to remote instruction on March 15, 2020” due to the COVID-19 pandemic, the Student “was provided with a device to access her instruction remotely” but “the amount of 1:1 attention, concrete manipulatives, visual cues, and prompting that her IEPs have consistently said she needs to learn was limited” and this form of “remote instruction . . . did not facilitate her progress.”[20] In addition, “[a]fter the return [to school] from [the] COVID”-19 remote learning on February 25, 2021, “the DOE . . . stated a policy that it would review the cases of all students in special education to see if additional special education services were needed to help overcome deficits that were created by interruptions in instruction due to COVID[-19]” but “no such services have been recommended” for the Student. 21
The next IEP, developed on June 25, 2021, maintained the same recommended program, except that the group OT was defined as 2:1, PCAT was increased to one hour per month, a tablet computer with software was added on top of the SGD (for individual service, all day, every day, at school and at home), and the classroom modifications were changed.[22] The last IEP in evidence was developed on June [21], 2022, which modified the June 25, 2021 program to offer 30 minutes less of OT (now 1x30 [2:1] and 1x30 [1:1]), PT became solely 2:1 (still 2x30), Case No. [REDACTED] and the classroom modifications were substantially changed.[23] The Department, however, did not provide the Student with all of her recommended OT because, “in January of 2023 . . . [the] OT . . . provider went on leave and the school did not contract with a provider to ensure [the Student’s] mandate continued” for the 2022-2023 school year. [24]
Department’s Case
The DOE did not present any evidence and therefore did not support its obligation to demonstrate that it provided the Student with a FAPE for the 2020-2021, 2021-2022, or 2022-2023 school years. It did, however, move to dismiss the Parent’s claims on two affirmative defenses, namely the statute of limitations and res judicata. These will be addressed in the analysis, upon the record developed at the hearing.
Parent’s Case
Tutoring Facility Director
The Parent’s first witness was the Tutoring Facility Director (Director), who testified as follows. The Director has a Master’s degree in Special Education and a doctorate degree (Ed.d.) in General Education.[25] The Tutoring Facility “specializes in providing one-on-one tutorial support to students who have special needs” including those “with learning disabilities, intellectual disabilities, ADHD, executive functioning challenges, speech and language impairments, and students who are on the autism spectrum.”[26] It’s methodologies “are research-based and multi-sensory,” including the “Orton Gillingham method, which is a structured . . . approach designed to develop students’ reading and spelling skills.”[27] In addition, its “tutors are able to provide tutoring at night and on weekends, as well as during school and summer breaks.” [28]
The Director reviewed the Student’s IEPs and noted that the program developed on June 22, 2022, “indicates that she has an intellectual disability and academic delays in reading, Case No. [REDACTED] writing, and math” such that “she is functioning at a kindergarten level for reading and math.” [29] Moreover, the “IEP dated 02/21/20 indicates that she is significantly below grade level and struggles across all academic areas”; in fact, a “psychoeducational evaluation dated 12/16/19 indicates that she has a full scale IQ in the ‘very poor’ range[.]” [30]
Based upon her assessment of the Student’s file, it is the Director’s professional opinion that the Student “is in critical need of 700 hours of intensive one-to-one instruction using the Orton Gillingham technique to develop her reading and spelling skills and similar research-based, multi-sensory techniques to develop her reading comprehension, writing, and mathematics skills.”[31] The Tutoring Facility’s 1:1 rate is $150.00 per hour, which is within, if not below, the typical market rate for tutoring companies and individuals in the New York City area that provide similar services[.]” [32]
During cross-examination and upon further questioning, the Director testified as follows. She is not a neuropsychologist, a psychologist, or a certified special education teacher in the State of the New York.[33] Most of the Tutoring Facilities tutors are, however, New York State certified special education teachers, and they are trained and certified in Orton Gillingham methodology.[34] She determined that the Student requires 700 hours of tutoring based upon her “thorough review of [the Student’s] three different IEPs as well as her psychoeducational evaluation” and upon her “having done extensive work with students who have very similar profiles . . . who have Down Syndrome and who are really lacking academic skills across the board the way that she is.”[35] She believes that tutoring for the Student “would start with the very basics of very basic decoding of three-letter words, four-letter words, and then beyond that, very basic writing, basic arithmetic of addition, subtraction, and then we would build upward.” [36]
It is the Director’s opinion that with the 700 hours of tutoring, the Student “has the potential to achieve roughly a 5th to 6th grade level academically, if not beyond that, which would Case No. [REDACTED] really allow her to be functional in society.”[37] Had the Student “received the right support all along . . . she could be at that level at this time.”[38] The hours of tutoring the Student would receive could be calculated as 8-to-10 for a 10-month school year, or 6-to-8 hours during a 12-month school year (both approximately for two years), but ultimately the most important factor is that she receive 700 hours over the course of her tutoring. [39]
Speech-Language Pathologist
The Parent’s next witness was the Speech-Language Pathologist (SLP), who testified as follows. She holds a Masters degree in Speech-Language Pathology, a Bachelor’s degree in English with a minor in Spanish, and is a certified SLP and a Teacher of the Speech and Hearing Handicapped (TSHH) who has worked with children having speech and language impairments since 2006.[40] She has also provided SLT to the Student since 2018. [41]
The Student is a “sequential Spanish-English bilingual learner[,]” meaning that she was “exposed to a second language [English] before significant progress has been made towards the acquisition of the first language [Spanish.]”[42] The Student has “moderate receptive and significant expressive language delays in Spanish and English as well, with significant speech impairment in both languages.” [43]
Spanish is the only language spoken in her home, and the SLP determined that the Student “is the type of student who needs someone at her elbow constantly redirecting her[,]” so “[a]fter discussing the prospect of remote therapy with her mother” during the COVID-19 remote learning period, they “determined that [the Student] would not benefit from remote services” because the “type of redirection [she] needs and the extent of her difficulties maintaining focus made the prospect of remote therapy that would benefit [her] impossible.” [44]
The Student benefitted from SLT before the pandemic and is still in need of it since school has gone back to in-person learning. For instances, her “utterance length is brief when Case No. [REDACTED] replying to inquiries” but “during [her] sessions, she [can] expand[] on her phrasing and makes references to events or family member[s.]”[45] Whereas she “once relied predominantly on gestures and mime to express herself . . . she has [also] demonstrated significant progress using words and sentences.”[46] Despite her “progress since [the SLP] began working with her,” the Student “still needs significant remediation/assistant/therapy” and “has plenty of room to continue growing linguistically to deploy language to navigate the world with some degree of independence[.]” [47]
The SLP is of the opinion that the Student “would benefit from tutoring to further her academic skill development” because “tutoring is of critical importance to [the Student] as she faces a transition to high school and throughout the next four years of her education.” [48] Continuing “bilingual speech therapy with the addition of tutoring will help [her] with telling someone where she lives and where she is going; reading a street sign; making a purchase; writing her name; meaningfully engaging with her community; and learning a vocation.” [49]
During cross-examination and upon further questioning, the SLP testified as follows. She provided SLT to the Student, in Spanish, until the DOE ordered remote learning, in March of 2020.[50] She has been providing SLT to the Student again in September or October of the 2021-2022 school year, after the pandemic ended.[51] Their sessions would be twice per week, at 60 minutes each, pursuant to a bank of 126 SLT hours the Student already had.[52] There were 55 hours left in a bank ordered in a prior Findings of Fact and Decision (FOFD). [53]
Since working with the Student again at the beginning of the 2021-2022 school year, the SLP testified that her “sentence structure . . . is still limited but her verbal output has increased.”[54] In fact, there is “a huge difference between the beginning [2018] and now . . . [b]ut Case No. [REDACTED] she still has a long way to go.”[55] Even while she “makes a little progress[,]” it is “very difficult to understand her still.”[56] It is the SLP’s opinion that after the pandemic ended, and SLT could begin again in the Fall of 2021, any “regression . . . was very minimal, and . . . as [the Student] eased into speech again, she picked up again where she left off.”[57] In fact, “[a]ny regression . . . was behavioral because she had to readjust to seeing [the SLP] again . . . [b]ut then, as he eased back into a routine . . . she started to make the improvements again” because “she remembers a lot . . . from previous sessions.”[58] Moreover, as the Student is getting “older[,] she [is] get[ting] more mature . . . and the more mature she gets the more seriously she’s been taking speech[,]” so she is “much more easily redirected now” and “sits down more quickly” and can be “redirected more quickly to the task at hand” and “it doesn’t take as long to get her to refocus.”[59] She is not sure, however, if these improved skills translate to the Student retaining them when the SLP is not with her to redirect and refocus her.[60] It is still the case that “[o]ften . . . [the SLP] will have to remind her to – she has the ability to say some of these sounds better than she used to but [the SLP] ha[s] to remind her to be consistent” because “she’s not consistent” and “still needs that . . . reinforcement to be consistent and to carry it over on her own.” 61(pg. 154)
Psychologist
The next witness was the Student’s Psychologist, who testified as follows. She holds Bachelor’s and Master’s degrees, as well as a Ph.D. in psychology, and is a practicing licensed psychologist in the State of New York and a medical school professor.[62] She has reviewed the Student’s IEPs in evidence, the SLT progress report, and the Student’s 2019 DOE psychoeducational evaluation, “the results of [which] . . . suggest that [the Student] is a student who is severely intellectually disabled.”[63] For example, the Student’s “Reasoning Abilities” were score between less-than the first percentile (<1%) to the 2nd percentile; her full-scale
Id. at pg. 154. Case No. [REDACTED] intelligence quotient (FSIQ) “falls within the Very Poor range” where FSQI “provides a broad representation of cognitive functioning”; she was determined to be “performing well below the level of a person her age” and was “significantly below grade level performance across all academic areas.” [64]
On the above findings, the Psychologist determined that the Student “requires a great deal of support to function, given that she has impairments in multiple domains of functioning, i.e., intellectual, academic, and adaptive.”[65] The Student also “presents with difficulties with attention and focusing” which requires that “someone [be] physically present to provide redirection and prompting.”[66] The Psychologist noted the Student’s IEP for the 2020-2021 and 2021-2022 school years included that “she benefits from modeling, repetition, redirection, structure, and tasks/directions broken down into smaller steps[,]” all of which is meant to address her “high level of distractibility” and thus “deemed necessary” because she requires “a high level of supervision.”[67] It is the Psychologist’s opinion that, because the Student “is the type of student that needs a high level of prompting, scaffolding, repetition, and modeling to learn[,]” the “DOE’s remote instruction during the COVID-19 pandemic did not provide the . . . supports or approach to learning that a student like [the Student] needs to engage effectively in the curriculum.”[68] Therefore, according to the Psychologist, the Student “requires compensatory services appropriate and individualized to her unique learning, language, and executive needs.” [69]
During cross-examination and upon further questioning, the Psychologist testified as follows. During the COVD-19 pandemic, the Student “needed to have her supports and services” and “[s]he was not being supported” or receiving “her modifications and accommodations during the remote instruction period.”[70] By “compensatory services” as used in her affidavit, the Psychologist means that the Student needs “instruction, educational instruction, learning instruction . . . provided to her that she missed out on” during the remote learning Case No. [REDACTED] period.[71] The number of such hours that should be provided to the Student should “be based on the number of hours of instruction that she missed out on” which are “the hours that [she] was on her own doing independent learning during time[s] of remote instruction[.]”[72] Whatever form the make-up education takes, it should be provided by “an individual who can provide [the Student] with one-on-one academic instruction” who also has “an understanding of her . . . learning needs and [is] able to apply appropriate interventions, such as evidence-based interventions, to be able to help her access curricula.”[73] A tutoring program would be appropriate if it utilized multi-sensory strategies, skills, and methodologies in one-to-one instruction.[74] Finally, the compensatory hours should not have a expiration, because the hours should be tailored to the Student’s needs and it cannot be discerned yet “how much [the Student] can tolerate after school when[] the service is provided.” 75 If the Student does not receive these services, she will not be able to “narrow the gap” between her skills and her abilities. [76]
Parent
The final witness was the Parent, who testified as follows.[77] The Student was in 8th grade at the District[75] (D75) Public School during the 2022-2023 school year.[78] “The period of COVID-19 remote learning was exceedingly difficult for [the Student]” because her “needs as a learner were not met.”[79] She “needs to engage with physical materials to learn; she needs constant repetition” and has to be “taught in a variety of different ways[,]” as well as “continuous rewards” and “she needs the physical presence of someone to redirect her when she loses focus.”[80] During “the first few months of remote learning, [the Student] did not have a device” and the Student could not see the screen using their only private device, which was a mobile Case No. [REDACTED] phone.[81] The Parent was working from home during this time and “could not be [the Student’s] surrogate para or teacher to prompt her to stay focused.”[82] Lessons were taught with videos followed by questions to check for understanding, and the Student “could not engage with the material and could not respond correctly to the periodic assessments.”[83] There were times after hours when the Parent could go over material with the Student, and the Parent believes that “[a]ny progress [the Student] made during remote learning was the result of [the Parent’s] work with her after the school day was over.” [84]
After students returned to in-school learning in March of 2021, “there was no discussion from her school about providing her with additional services or instruction to compensate [her] for the time she lost during COVID[-19]” and there was “no discussion” or consideration “by the school or anyone from the DOE about making up for what [the Student] lost[,]” either during the June 21, 2021, or in the IEP document created after that meeting, “and everything continued as if there was no period of remote instruction.” [85]
As for SLT, the DOE has never provided the Student with a Spanish language SLP, despite the IEPs recommending SLT as a service in Spanish.[86] The Department gave the Parent a list of providers, none of whom were willing and able to implement the SLT for the Student, so the Parent had to seek out and find a Spanish language SLP for the Student.[87] She brought a claim against the DOE for the 2019-2020 and the 2020-2021 school years, and an IHO awarded the Student compensatory SLT. [88]
Closing Arguments
DOE Closing
In closing, the DOE Attorney contended the following.[89] The DPC alleges a denial of FAPE based upon the following claimed failures: the failure to provide remote instruction Case No. [REDACTED] facilitating progress between March 15, 2020, and February 25, 2021; the failure to provide bilingual SLT during the 2021-2022 and 2022-2023 school years; and the failure to provide OT during the 2022-2023 school year. With respect to compensatory education during the remote instruction period, the Parent did not allege or provide evidence to prove any deprivation of education beyond the COVID-19 pandemic period, so tutoring should not be awarded for the 2021-2022 or 2022-2023 school years, which should only be considered with respect to the claims for compensatory SLT and OT. Moreover, the Parent only requested a finding of a lack of FAPE for the 2020-2021 school year at the earliest, so the request for tutoring should only include the beginning of the 2020-2021 school year to February 25, 2021.
With respect to the number of tutoring hours awarded, the Parent did not establish that it should be 700 hours. The hours do not justify the limited portion of a school day that would have been for independent learning, and the Parent did not demonstrate how many hours out of the remote school day were dedicated to independent learning. In addition, the Student did make some academic progress, which is significant, given that her intellectual disability impacts her ability to demonstrate progress in a general education curriculum. Finally, it has not been shown how 700 hours would increase the pace at which the Student could progress, or why so many hours are necessary to make up for any loss during the pandemic remote learning period. The request for compensatory education, therefore, should be denied.
The Department does not contest the request for 20 compensatory OT hours, and if compensatory SLT is awarded, it should be less than 168 hours because the Student received a bank of SLT hours in the prior FOFD, and because there is evidence that the Student experienced progress as a result of that SLT. To the extent that any hours of tutoring, SLT and/or OT are awarded, the time for them to be completed should not be unbounded.
Parent Closing
In closing, the Parent Representative argued as follows.[90] The DOE failed to provide an adequate program during the pandemic remote learning period, and the Student, therefore, fell behind. When in-person learning resumed, the Department failed to address what the Student Case No. [REDACTED] had lost, and she feel further behind during the 2021-2022 and 2022-2023 school years as well. The Student is now in grave need of compensatory hours.
The Department offered no evidence to prove that it provided the Student with a FAPE from the 2020-2021 through the 2022-2023 school years. It therefore effectively conceded that a FAPE was not provided. The evidence also proves that a FAPE was not offered. For example, the Student had been recommended a daily SGD to assist with her ability to communicate but none was provided during the pandemic remote learning period, nor did the DOE provide other supports that had been recommended in the IEP, including graphic organizers, a word wall, and other manipulatives. The Parent confirmed this when she testified that the remote program was never modified, despite it not working for the Student. The Psychologist verified that the Student’s education needs were such that her loss could only be compensated with multisensory instruction commensurate with the number of instructional hours the DOE failed to provide the Student during the pandemic remote learning period.
The Tutoring Facility has the staff and tools necessary to provide the type of compensatory education the Student lost during the relevant time period. Notwithstanding that the Parent sought 630 compensatory education hours in the DPC, the Tutoring Facility Director determined that that the Student should receive 700 hours of tutoring. This was based upon the Director’s over 20 years of education experience, her review of the Student’s record, and her understanding of what the Student should have received during the relevant timeframe. These are the hours that the DOE should have offered – but did not – to the Student per its “Determining the Need for Compensatory Services at IEP Meetings” document issued at the beginning of the 2022-2023 school year. This failure further proves the continued denial of a FAPE through the 2022-2023 school year.
Regarding the Parent’s claims for compensatory related services, the Parent last made a claim for SLT for the 2019-2020 and 2020-2021 school years via a separate DPC. That claim was decided by an FOFD for services through the end of the 2020-2021 school year, and the Parent is now seeking 168 compensatory SLT hours at a rate of $210.00 per session, only for the 2021-2022 and 2022-2023 school years. The Parent also seeks 20 hours of OT at a rate of $210.00 per session, and compensatory education in the form of tutoring, at a rate of $150.00 per Case No. [REDACTED] session, as well as the cost of transportation to and from these services, in the form of MetroCards for the Student and her Parent.
Credibility
Upon considering the evidence, including all admitted documents and the testimonies of the witnesses, I determine the following. In admitting the documents, I found them all relevant, representative of the facts for which they were offered, and consistent with the allegations. I therefore credit all the exhibits. As for the witnesses, I found no reason to doubt the veracity of their statements or the earnestness of their relevant opinions, and therefore find all the witnesses and their testimonies credible. The relative weight I afford the exhibits and testimonies will be reflected in the analysis.
Legal Framework Free Appropriate Public Education The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[91] 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.[92] When the education district complies with the procedural requirements set forth in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established. [93]
Substantively, an IEP must include a statement of the student's present levels of academic achievement and functional performance, establish annual goals designed to meet the student's needs resulting from the student's disability and enable the student to make progress in the general education curriculum, and must provide appropriate special education and services. [94] Appropriateness means that the IEP accurately reflects the results of evaluations to identify the Case No. [REDACTED]
Student's needs,[95] and that its recommended program provides for the utilization of sufficient special education services.[96] An appropriate program will be “‘likely to produce progress, not regression,’ and . . . [will] afford[] the student with an opportunity greater than mere ‘trivial advancement’” [97]; that is, the IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.”[98] Finally, the school district must demonstrate that its IEP was properly implemented. [99]
Except for circumstances that are not present in the instant matter, the DOE shall have the burden of proof at a Due Process Hearing, including the burden to demonstrate that it provided the Student with a FAPE in the development and implementation of its IEPs.[100] If the Department violates a student’s right to FAPE, and IHO has at their disposal “various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies,”[101] with the only limitation being that the remedy “be appropriate in light of the purpose of the Act,”[102] and that damage awards are not available under the IDEA. [103]
Compensatory Education and Services
Compensatory education or services are equitable remedies tailored to meet the unique circumstances of each case.[104] They must be designed to “make up” for past denials of FAPE and place the student in the position they would have been had the district complied with its Case No. [REDACTED] obligations under the IDEA.[105] “[T]he inquiry must be fact-specific, and [in order] to accomplish IDEA’s purposes, 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.”[106] The compensation may take the form of supplemental special education or in related services, with the goal of fashioning appropriate relief for a denial of a FAPE.[107] The compensation can also be crafted by either a “quantitative” approach (provided equal to the period of the FAPE deprivation),[108] or a “qualitative” approach (provided as needed to address the student’s educational deficits resulting from the FAPE deprivation) approach.[109] Courts have noted, however, that a “flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student’s] educational problems successfully.” [110]
In New York, when there is a lack of FAPE the a parent or guardian seeks a compensation award, the burden lies with that district to “describ[e] its views, based on a factspecific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that [they] would have been but for the denial of FAPE.”[111] Even where the DOE fails to offer its “position regarding the appropriate compensatory education remedy . . . an outright default judgment awarding compensatory education . . . and all of the relief requested without question . . . is a disfavored outcome[,] even where the district’s conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious[.]”[112] The Case No. [REDACTED] specific award sought must be scrutinized because “services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity[,]”[113] and because “[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education.”[114] Also, a full award may be tempered when a student “did make some advancement over the course of [their] time in . . . school, even though [they] were not presented with what [they] were due under [the] IDEA.” [115]
Analysis
Affirmative Defenses
During the hearing, the Department raised two affirmative defenses to the Parent’s claims, the statute of limitations and the doctrine of res judicata. Before addressing the merits of the Parent’s claims, I will address each of these defenses first, because they would have the effect of limiting the claims I may determine on the merits.
Statute of Limitations
The Department Attorney argues that the statute of limitations bars any claims based upon events that occurred before May 18, 2021, which is the two-year mark preceding the instant DPC’s filing date of May 18, 2023.[116] According to the Department Attorney, the Parent knew or should have known about the Student’s claim for compensatory education for the 2020-2021 school year as early as July 2, 2020, because remote learning began on March 15, 2020,[117] and the DPC the Parent filed on July 2, 2020, specifically states, in part, “that the Student had ‘difficulty accessing remote learning through video or phone during the pandemic’ and that ‘she [could ]not remain focused during online instruction due to her disability.’”[118] According to the DOE, even taking into account the New York Governor’s Executive Orders (EO) that tolled Case No. [REDACTED] statutes of limitations in New York from March 20, 2020, to November 4, 2020, the Parent’s claim should be considered time-barred because it was not filed by July 2, 2022, which is two years after the Parent knew or should have known that “the remote learning program . . . did not meet the Student’s needs.”[119] This is the case even if the date of the Parent’s imputed knowledge was April 30, 2021, when the prior FOFD confirmed the Student’s difficulties,[120] because it was before May 18, 2021. Finally, neither of the statutory exceptions to the statute of limitations apply in this case.
In response to the above, the Parent argues as follows. The Parent’s claims, filed on May 18, 2023, were timely because the Student’s need for compensatory services included the 2022-2023 school year, which “stem[s] from the DOE’s fail[ure] to provide [a] FAPE” in the development of the June 21, 2022, IEP after the Department declared that IEPs developed for the 2022-2023 school year would “include individualized determinations as to whether [a] student needs any additional ‘compensatory’ services . . . to address lost skills and lack of sufficient progress, with a focus on services missed between March 2020 and August 2021.”[121] The Department did not develop this policy to revisit students who lost education during the pandemic until September of 2022, which is “much later than . . . July of 2020, when the DOE . . . says the Parent should have known that there was a harm[.]”[122] The Parent, therefore, could have filed a DPC until June 30, 2025, two years after the end of the school year (2022-2023) that announced this policy. In addition, the three-year statute of limitations set by Section 504 of the Rehabilitation Act applies, so the Parent can seek claims that accrued as far back as May 18, 2020.[123] Finally, a statute of limitations tolling stipulation in Federal court allowed nine months to be added to IDEA claims, which allows for claims to have accrued as early as August of 2020. [124] Case No. [REDACTED]
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 of the alleged action that forms the basis of the complaint.” 125 New York State law has adopted this standard as well. 126 Determining when a parent knew (actual knowledge) or should have known (constructive knowledge) of the accrual of a claim "is necessarily a fact-specific inquiry."[127] Once the date of imputed knowledge (actual or constructive) is established, the claim is ripe for adjudication and the 2-year period begins.
There are two exceptions to the limitations period. The first pertains to when a district specifically misrepresents that it had resolved the issues forming the basis for the due process complaint notice, thereby causing the parent not to file a due process complaint. The specific misrepresentation must be one that intentionally misled the parent or knowingly deceived them regarding Student’s progress.[128] The second pertains when a district withholds information from the parent that it was required to provide, and that withholding causes the parent not to file a due process complaint.[129] The typical inquiry is whether the school district provided the written notice of procedural safeguards required under the IDEA, such as Prior Written Notice (“PWN”) and how to request an impartial hearing.[130] In addition to these exceptions, there may be specific tolling provisions not normally in effect but applicable under certain circumstances, such as the New York Governor’s EO’s that tolled statutes of limitations from March 7, 2020, to November 4, 2020.
Here, I cannot conclude that the Parent had actual or constructive knowledge of the instant claim for compensatory education in the form of tutoring on July 2, 2020, when she filed her prior DPC. The DPC asserted IDEA and Rehabilitation Act 504 violations stemming from the DOE’s “fail[ure] to provide an appropriate placement for [the Student] that can provide her 20 U.S.C. § 1415(f)(3)(C); see also 20 U.S.C. § 1415(b)(6)(B); and 34 CFR § 300.511(e). 126
See Educ. Law § 4404(1)(a); 8 NYCRR § 200.5(j)(1)(i); Somoza v. New York City Dep't of Educ., 538 F.3d 106, 114 n.8 (2d Cir. 2008); and M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-222 (2d Cir. 2003). Case No. [REDACTED]
with Speech-Language Therapy for the 2020-2021 school year.”[131] It further alleged that “[d]ue to [the Student’s] disability and her difficulty accessing remote learning through video or phone during the pandemic, which began in March of 2020, [she] has lost 32 hours of speech therapy.”[132] I read this to mean that the Parent was asserting a relationship between remote learning and the Department’s failure to provide SLT. It is entirely reasonable, then, that the Parent believed obtaining SLT the Student was denied would resolve her remote learning issues. She would have no reason to believe (i.e., know), therefore, in July of 2020 (less than four months into remote learning), that the Student would need more than SLT. I find, in fact, that the Parent could not have had imputed knowledge of how insufficient SLT was until the CSE confirmed this during the next IEP meeting, held on June 25, 2021.[133] I therefore hold that June 25, 2021, is the accrual date for purposes of the statute of limitations.[134] The May 18, 2023, DPC, being filed before the two-year anniversary of that date, was thus was timely.
I further conclude that even if July 2, 2020, was the accrual date, the instant DPC would still not be time-barred. I agree with the Parent that the DOE’s Determining the Need for Compensatory Services at IEP Meetings policy (Policy), issued in September of 2022, included a lookback provision, wherein it stated that “IEP meetings during the 2022-2023 school year must include individualized determinations as to whether the student needs any additional ‘compensatory’ services . . . to address lost skills and lack of sufficient progress, with a focus on services missed between March 2020 and August 2021.”[135] The Parent could not have known in July of 2020 that there would be a future policy that effectively created a nunc pro tunc right of review for services that were lost due to the effects of remote learning. Moreover, the Policy specifically qualifies that this review cover “services missed between March 2020 and August 2021[,]” not just the remote learning period that ended on February 21, 2021. The Policy, therefore, can be read to effectively treat the statute of limitations as having been tolled between August of 2021 and September of 2022 (when the Policy was issued), meaning that the Parent’s right to file a claim accrued in August of 2021 (the end of the deprivation period, as described in Case No. [REDACTED]
the Policy); or, the Policy can be viewed as having created a new accrual period beginning September of 2022 (when policy and its lookback provision took effect), as the Parent asserts. Applying the above accrual and tolling dates, the date of the instant DPC, May 18, 2023, is less than 24 months under each of the above scenarios. Therefore, the DPC was timely under all the applicable interpretations. I conclude from this that the affirmative defense was not established.
Res Judicata
The second argument raised by the DOE Attorney was that the Parent’s claims for the 2020-2021 school year should be dismissed because res judicata does not allow a Parent who is aware of a Student’s issues with remote learning to file a DPC only for a related service (SLT) and then bring additional claims based upon those same issues in a future DPC. Since the current claims for tutoring and OT could have been raised in the prior DPC, they should be considered bared as already adjudicated under the doctrine of res judicata.
The Parent responded as follows. The DOE bears the burden to establish res judicata as a defense. The July 2, 2020, DPC asserted that the Student suffered a loss of SLT services during a portion of the 2019-2020 school year,[136] and requested that compensatory SLT be awarded for that loss, as well as a request for an order ensuring that SLT services would continue during the 2020-2021 school year, per the then-IEP.[137] The FOFD limited its findings with respect to a FAPE only with respect to those school years.[138] To the extent the DOE is arguing that the Parent should have raised additional charges in the prior DPC, this is not the case. The arguments and evidence the Parent offered at the hearing on that DPC were with regard only to SLT; “[t]he facts that lead to the [P]arent filing a Due Process Complaint [now] were not present in the first proceeding.”[139] In fact, the Parent’s “claims for the pandemic era remote learning plan were not fully realized until much later in the pandemic.”[140] The Parent could not have amended the July 2, 2020, DPC upon information with which she was not yet aware, and therefore she should not be barred by res judicata now.
The SRO has described the doctrine thus: Case No. [REDACTED]
It is well established that the doctrine of res judicata . . . appl[ies] to administrative proceedings when the agency acts in a judicial capacity. The doctrine precludes parties from relitigating issues that were or could have been raised in a prior proceeding. Res judicata applies when: (1) the prior proceeding involved an adjudication on the merits; (2) the prior proceeding involved the same parties or those in privity with the parties; and (3) the claims alleged in the subsequent action were, or could have been, raised in the prior proceeding. Claims that could have been raised are described as those that "emerge from the same 'nucleus of operative fact' as any claim actually asserted" in the prior adjudication. [141]
The determination of the third factor, i.e., when subsequent claims “were, or could have been, raised in the prior proceeding” depends on whether (a) the allegations involve the same conduct or actions; (b) the same evidence is required to support both the prior and current claims; and (c) the essential facts of the current proceeding were present in the prior claim. [142]
Applying these standards to the case before me, I conclude that the Department failed to establish the third element of the defense, in that the claims before me now could not have been raised in the first proceeding. With respect to (a), the prior and current claims do “involve the same conduct or actions” since the compensatory education and compensatory OT claims raised in the instant DPC were alleged to have arisen from deprivations the Student experience during the 2020-2021 school year, namely the remote learning period that was in existence on July 2, 2020, and continued to February 25, 2021, which was the same school year for which SLT had been requested.
With respect to (b) and (c), however, I do not see how the same evidence would be required to support both the prior and current claims, or how the essential facts of the current proceeding were present in the prior claim.[143] As explained in my statute of limitations analysis, remote learning had been in effect for around four months when the July 2, 2023, DPC was filed, and the Parent would not become aware of the degree to which the Student did not access the curriculum and thus require compensatory education in the form of tutoring until after the remote learning period ended and, in fact, until the results of the Student’s June 25, 2021, IEP. Moreover, the IEP and its findings, as well as the September 2023 DOE Policy requiring a Case No. [REDACTED] lookback at student’s learning during the COVID-19 remote learning period, are all essential facts necessary for the claims before me now that were not essential to the compensatory SLT claim in the July 2, 2020, DPC. At the merits hearing on that DPC, the Parent was able to successfully prove compensatory SLT was necessary with only three pieces of evidence: the July 2, 2020, DPC; a February 21, 2020, IEP; and a September 17, 2019, FOFD. Given the differentiation in the evidence between the two claims, and the lack of essential facts affecting the current claims for tutoring and OT herein that were not present or necessary for the prior claim, the Department did not demonstrate that “the claims alleged in the subsequent action were, or could have been, raised in the prior proceeding.”[144] This affirmative defense, therefore, was likewise not established.
Free Appropriate Public Education
The DOE, having failed to prove the affirmative defenses, had the burden to prove it offered the Student with a FAPE for the school years in question. It presented no documentary evidence or witness testimony, however, to demonstrate that the IEPs in evidence were properly implemented and otherwise were appropriate. Without such evidence, I cannot conclude that the Student was afforded a FAPE,[145] and I therefore find in favor of the Parent. I must then turn to the remedy.
Compensation Award
In the instant DPC, the Parent requested compensatory education in the form of 630 hours of 1:1 tutoring, as well as compensatory services in the form of 168 hours of 1:1 SLT and 8 hours of 1:1 OT. At the hearing, the DOE stipulated to the Parent’s request to modify the application for OT to 20 hours, which I approved upon consent of the parties. As for tutoring, the Tutoring Facility Director testified that the Student, in fact, required 700 hours “to develop her reading and spelling skills and . . . her reading comprehension, writing, and mathematics skills.”[146] The Department did not stipulate to these additional 70 hours. I find, notwithstanding the DPC’s request for “any other relief that may be appropriate[,]”[147] that adding 70 hours of Case No. [REDACTED] tutoring is more than a minor modification, and imposing it now, without there having been an amendment to the DPC, would deny the DOE of due process notice, as the rules limit the scope to what is actually raised in the DPC.[148] I therefore decline to consider the additional hours, and the maximum award can be 630 hours, as requested in the DPC.
Compensatory Education
The evidence presented in this case establishes that the Student began to experience a loss of education on or after March 25, 2020, when remote learning began, although, as noted above, it was not fully realized until after remote learning ended on February 25, 2021, when it was confirmed at the June 25, 2021, IEP meeting. In the February 7, 2020, IEP, developed about five weeks before remote learning began, when the Student was 10 years old, the CSE found that when reading, the Student could verbalize some phonemes but not others, that her writing was at a “preconventional”[149] level, and that her skill with mathematics was at a Kindergarten level. [150] The IEP also included a “Management Needs” section, wherein the team recommended: “small group instruction”; “visual supports”; “manipulatives”; “revised test format”; “human read aloud”; “revised test directions”; and “modify how answers are recorded[.]”[151] On these findings, the CSE recommended a program of 23 hours of special education per week in a 12:1:1 special education class, as well as related services and a SGD, all to begin on February 21, 2020. [152] It is undisputed that the Student did not receive the above special education classroom or any of the above supports for the rest of the 2019-2020 school year and into the 2020-2021, from March 15, 2020, through February 25, 2021, when the Student was compelled to stay home during the COVID-19 pandemic period of remote learning. At the first post-remote learning IEP meeting, held on June 25, 2021, the team acknowledged that the Student’s “goals are best met through a small, specialized school that combines academics and work-based learning.”[153] It is Case No. [REDACTED] not surprising, then, that after almost a year of in sufficient and unsupported remote learning, her writing was still “preconventional,” her math skills remained at a Kindergarten level, and her reading was pre-emergent.[154] The Psychologist confirmed this with her conclusion that, because the Student “is the type of student that needs a high level of prompting, scaffolding, repetition, and modeling to learn[,]” the “DOE’s remote instruction during the COVID-19 pandemic did not provide the . . . supports or approach to learning that a student like [the Student] needs to engage effectively in the curriculum.”[155] This is consistent with the Parent’s observation that “[t]he period of COVID-19 remote learning was exceedingly difficult for [the Student]” because her “needs as a learner were not met[,]”[156] and she did not get her “physical materials to learn” or the “constant repetition” she needed, because she has to be “taught in a variety of different ways[,]” and requires “continuous rewards” and “the physical presence of someone to redirect her when she loses focus.”[157] I did not help that during “the first few months of remote learning, [the Student] did not have [her assistive technology] device” and the Student could not see the screen using the only screen she had available, which was a mobile phone. [158]
Given the above, I find that the Tutoring Facility Director’s opinion, that the Student “is in critical need of 700 hours of intensive one-to-one instruction using the Orton Gillingham technique to develop her reading and spelling skills and similar research-based, multi-sensory techniques to develop her reading comprehension, writing, and mathematics skills[,]”[159] is not unreasonable. I come to this conclusion utilizing the qualitative approach, notwithstanding the Psychologist’s opinion that the number of hours the Student requires could be quantified as “the number of hours of instruction that [the Student] missed out on[,]” i.e., “the hours that [she] was on her own doing independent learning during time[s] of remote instruction[.]”[160] I cannot quantify this, as I agree with the DOE that the evidence does not bear out how much of the Student’s day was scheduled for video classes versus how much was dedicated to independent learning. Case No. [REDACTED]
Under the qualitative method, however, there is support for the recommended hours. The IEP in effect for the 2020-2021 school year described a program with 23 hours per week of special education classes along with a plethora of management needs and supports and, according to the Psychologist, the Student “needed to have her supports and services” but “[s]he was not being supported” or receiving “her modifications and accommodations during the remote instruction period.”[161] Thus, even if the Student receive 23 hours per week of video instruction for the 23 weeks beginning September 16, 2020, the first day of that school year, [162] and ending when remote learning stopped on February 25, 2021, that is 529 hours of unsupported – and therefore insufficient and inappropriate – special education that the Student did not receive. Coupling that with the effect this lost education had on the Student’s ability to access the curriculum for the rest of the 2020-2021 school year, and then into the 2021-2022 and 2022-2023 school years as well (covered by IEPs that also recommended 23 hours per week of special education classes), it is clear that the record supports, by a preponderance of the evidence, a finding that the Student would require at least an additional 101 hours (630 minus
529) of compensatory education hours, as requested by the Parents, in order to achieve the opportunity to benefit from her education. I note that DOE did not “describ[e] its views, based on a fact-specific inquiry . . . regarding an appropriate compensatory education remedy[,]” as was its burden.[163] Nor did it offer evidence to refute the Parent’s qualitative evidence. I therefore conclude that 630 hours of compensatory education, in the form of tutoring as described by the Tutoring Facility Director, is appropriate relief for the denial of a FAPE with respect to the Student’s lost academic instruction for the 2020-2021 through 2022-2023 school years. [164]
Finally, I have considered the Parent’s requested that I place no time limit on when the services should be completed, and decline to do so, for three reasons. First, placing no time limit on the services allows for their dilution, which would likely result in the educational benefits Case No. [REDACTED] they confer being vitiated. Second, it is not practical to unnecessarily hold the Department responsible for tracking and paying for services over an indefinite period. Third, the Student’s loss of education occurred over a defined period of time – three 12-month school years, as cited by the Parent in the DPC and confirmed by the evidence. I see no reason why that same amount of time should not be sufficient for the Student to reasonably receive and benefit from tutoring over that period. Indeed, 630 hours over 36 months translates to 17.5 hours per month (approximately four hours per week over a 52-week year, or five hours per week over a 42-week, 12-month school year 165), and this shall be the period I allow for tutoring to be implemented.
Compensatory Services
In addition to tutoring, the Parent seeks compensatory SLT and compensatory OT, to make up for lost related services necessary for the Student to be able to learn. With respect to SLT, the DOE did not dispute the Parent’s assertion that SLT was not implemented during the 2021-2022 and 2022-2023 school years, in that, “[f]or the 2021-2022 and 2022-2023 school years, the DOE sent [the Parent] a Related Service Individual Authorization, which states that the DOE [wa]s unable to provide [the Student’s] S[LT] in Spanish and agree[d] to fund [the] services through [an] independence provider of [the Parent’s] choosing.”[166] The CSE recommended two hours per week (2x60) in Spanish for both 12-month school years.[167] The Department did not offer evidence to demonstrate that the Student required anything less, but it did argue that the hours should be reduced because the Student received some SLT hours after the pandemic remote learning period ended, which resulted in some progress. [168]
At the hearing, the SLP testified that it is “very difficult to understand [the Student] still” when she communicates, despite her having received a bank of hours of SLT from the previous FOFD, for the 2019-2020 and 2020-2021 school years.[169] Since working with the Student again after the beginning of the 2021-2022 school year, she has seen some progress in the Student, See Application of a Student with a Disability, Appeal No. 23-153 (Aug. 30, 2023). Case No. [REDACTED] including that “her verbal output has increased.”[170] Notwithstanding that the Student has “ma[d]e[] a little progress[,]” however, “she still has a long way to go.” [171]
To the extent I may consider whether there has been progress and limit the amount of a compensation award, I find no cause to do so in this case. First, and as described more fully below, there is no dispute that the hours requested by the Parent are what the DOE recommended the Student needed. Second, the only reason there was any progress at all is because the DOE was as absent in providing SLT for the 2019-2020 and 2020-2021 school years as it was for the subsequent two school years, which resulted in an FOFD that compelled the hours of SLT the Student received after the pandemic remote learning period ended. I will not reward the Department for causing the delay and the timing of the SLT the Student received.
As for the amount of relief, the quantitative analysis suffices, because no one disputes that the IEPs described exactly what the Student needed (2x60/week of bilingual SLT), or that the Student never received that SLT for the 2021-2022 and 2022-2023 school years. Given that a 12-month school year is 42 weeks,[172] this translates to 84 hours for the 2021-2022 school year, and 84 hours for the 2022-2023 school year, which is exactly what the Parent is requesting in this case. As I have declined the DOE’s request to reduce the award under the circumstances of this record, the compensatory SLT services award shall be 168 hours of SLT, as described by the SLP, to be provided in Spanish.
Finally, the Department consented to the Parent increasing the request for OT from 8 to 20 hours, and it expressly did not contest the Student’s need for compensatory OT.[173] There being no dispute, the OT shall be awarded, as requested.[174] As with the compensatory education, these compensatory service awards must be completed over a period commensurate with how long the deprivations were alleged, that is two 12-month school years for the SLT and one school year for the OT. [175] Case No. [REDACTED]
The Tutoring Facility Director testified that the Facility’s tutoring rate of $150.000 per hour is a typical rate within the New York City market.[176] The Department offered nothing to refute this. Moreover, during closing arguments, the Parent Representative described the SLT and OT providers as charging $210.00 per “session” without further evidence. To the extent “session” is a reference to “hour,” I find that rate reasonable, notwithstanding the lack of evidence, as the SRO has upheld SLT and OT rates as high as $300.00 per hour.[177] I therefore will apply $210.00 per hour in the order. I will also grant the Parent’s request for two MetroCards to cover the cost of transportation.
Remaining Contentions
To the extent any further contentions have been made by the parties that are not addressed in this decision, I have found them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any claims or relief not specifically discussed in this decision are dismissed with prejudice, or denied, respectively.
DECISION AND ORDER
Upon the foregoing, it is hereby, Ordered, that the New York City Department of Education shall fund, to the Tutoring Facility or another tutoring service provider (so long as that provider offers tutoring services in the same or substantially similar manner as the Tutoring Facility’s services described in this decision), compensatory education in the form of up to 630 hours of tutoring services to the Student, including services provided any time, including weekdays, weekends, holidays, or during school vacations or school breaks, at a reasonable rate not to exceed $150.00 per hour, to be paid within 35 days of the submission to the DOE of a reasonably acceptable invoice and affidavit describing services provided, and payment will not be required for any of these hours of services provided after the third anniversary of the date of this order; and it is further, Case No. [REDACTED]
Ordered, that the New York City Department of Education shall fund, to the Speech-Language Pathologist or another provider of the Parent’s choice (so long as that provider offers services in the same or substantially similar manner as the SLP’s services described in this decision), compensatory services in the form of up to 168 hours of Speech-Language Therapy including services provided any time, including weekdays, weekends, holidays, or during school vacations or school breaks, at a reasonable rate not to exceed $210.00 per hour, to be paid within 35 days of the submission to the DOE of a reasonably acceptable invoice and affidavit describing services provided, and payment will not be required for any of these hours of services provided after the second anniversary of the date of this order; and it is further, Ordered, that the New York City Department of Education shall fund, to an Occupational Therapist of the Parent’s choice, compensatory services in the form of up to 20 hours of Occupational Therapy, including services provided any time, including weekdays, weekends, holidays, or during school vacations or school breaks, at a reasonable rate not to exceed $210.00 per hour, to be paid within 35 days of the submission to the DOE of a reasonably acceptable invoice and affidavit describing services provided, and payment will not be required for any of these hours of services provided after the one-year anniversary of the date of this order; and it is further, Ordered, that the New York City Department of Education shall fund the cost of transportation for the compensatory education and services in the form of one MetroCard for the Student and one MetroCard for the Parent, for their use of public transportation to and from the Tutoring Facility or other tutoring service provider, to and from the SLP or other SLT provider, and to and from an OT provider, for all sessions as authorized and ordered herein, including the time limitations set forth in this order.
So Ordered.
Dated: December 5, 2023
Richard J. Zeitler, Jr. (signed electronically) Impartial Hearing Office Case No. [REDACTED]
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. Case No. [REDACTED]
DISTRICT EVIDENCE
1. N/A DOE
PARENT EVIDENCE
A. Impartial Hearing Request 05/18/2023 6 pages
B. Subpoena Duces Tecum 07/20/2023 2 pages
C. NYTPS Speech Progress Report 07/28/2023 2 pages
D. Psychoeducational Evaluation 12/16/2019 3 pages
E. [REDACTED] Resume 07/28/2023 1 page
F. [REDACTED] Resume 08/10/2023 5 pages
G. [REDACTED] Resume 08/09/2023 4 pages
H. SESIS Events Log 06/27/2023 44 pages
I. Related Service Provider Attendance 07/24/2023 Records 2022-2023 69 pages
J. IEP 02/07/2021 2020-2021 25 pages
K. IEP 06/25/2021 2021-2022 29 pages
L. IEP 06/21/2022 2022-2023 28 pages
M. DOE Policy Regarding Determining the Need for Compensatory Services at IEP Meeting Aff. Affidavit of Psychologist 08/16/2023 3 Aff. Affidavit of Tutoring Facility Director 08/29/2023 3 Aff. Affidavit of Speech-Language Pathologist 08/09/2023 4 Aff. Statement of Parent 178 September 2023 4 09/01/2022 178 3 pages
IHO EVIDENCE
I. Pre-Hearing Conference Summary and Order 07/18/2023 3 pages IHO
II. Order of Extension 08/08/2023 1 page IHO
III. Order of Extension 2 08/31/2023 1 page IHO
IV. Order of Extension 3 10/02/2023 1 page IHO
V. Scheduling Order 07/21/2023 2 pages IHO
VI. Scheduling Order 2 and Subpoena Modification 08/08/2023 2 pages IHO
VII. Scheduling Order 3 08/24/2023 2 pages IHO
VIII. Scheduling Order 4 09/20/2023 2 pages IHO
IX. Scheduling Order 4.1 09/21/2023 1 page IHO
X. Subpoena 07/20/2023 2 pages IHO
XI. DPC Case No. [REDACTED] 07/92/2020 7 pages IHO
XII. FOFD Case No. [REDACTED] 04/30/2021 10 pages IHO
XIII. Stipulation and Order Tolling Statute of Limitations for Filing DPCs, Case No. [REDACTED] 03/08/2022 4 pages IHO
XIV. Vineland-3 Comprehensive Teacher Form Report 12/17/2019 22 pages IHO
XV. DOE Brief in Support of Defenses 09/28/2023 9 pages IHO
PARENT
XVI. Brief in Opposition to Defenses 09/28/2023 9 pages IHO
Footnotes
[1] See 20 U.S.C. § 1415(f), and New York State Education Law §§ 4404(1) and 3602-c (2)(b)(1); see Ex. A.
[2] See id. at A-1 to A-2.
[3] See Ex. A-7. I note that the DPC originally requested 8 hours but, upon the Parent’s application to modify the request to 20 hours, to which the DOE did not object when asked, I exercised my authority under the DPC’s “any other relief that may be appropriate” clause to include an additional 12 hours in the requested award for OT. See id. at A-5; see also Tr. at pp. 119 to 122.
[4] See IHO Ex. I.
[5] See IHO Exs. II to IV.
[6] See IHO Exs. V to IX.
[7] See IHO Ex. X.
[8] The transcript is denoted as “Tr.”
[9] See Exs. A through M. Exhibit I and J were admitted over the DOE’s objection to each.
[10] See IHO Exs. XI to XIV.
[11] All direct testimony was presented via affidavit, and the witnesses appeared for cross-examination and further questioning.
[12] See IHO Exs. XV and XVI.
[13] See Ex. A-1 to A-2.
[14] See Ex. J-1, K-1, and L-1.
[15] See Ex. A-2.
[16] See id.
[17] See id.
[18] This included extra time to complete assignments, small group instruction, manipulatives, “human read aloud,” revised test format, revised test directions, and answers recorded; all on an individual basis, “as needed,” and “throughout the day.” See Ex. J-16 to J-18.
[19] See id. at J-18 to J-19.
[20] Ex. A-4.
[21] Id.; see also Ex. A-2.
[22] Extra time to complete assignments and small group instruction were dropped, two undefined modifications were added (“NYSAA: Entering Student R” and “NYSAA: Partner-Assisted S”) and the rest remained the same. See Ex. K-19 to K-22.
[23] The modifications now listed study guide outlines of key concepts, extra time to complete assignments, visual aids, “thinking maps,” manipulatives, modeling, and a “personal word wall.” See Ex. L-18 to L-20.
[24] Ex. A-3.
[25] See Director Aff. ¶ 4.
[26] Id. ¶¶ 2 and 6.
[27] Id. ¶ 9.
[28] Id. ¶ 22.
[29] Id. ¶ 12.
[30] Id. ¶¶ 14 to 15
[31] Id. ¶¶ 16 and 20 (emphasis in original).
[32] Id. ¶ 21.
[33] See Tr. at pg. 78.
[34] See id. at pp. 79 to 80.
[35] Id. at pp. 82 to 83.
[36] Id. at pg. 84.
[37] Id. at pg. 85.
[38] Id.
[39] See id. at pp. 91 to 92.
[40] See SLP Aff. ¶¶ 2 to 4, 6, and 7.
[41] See id. ¶ 11.
[42] Id. ¶ 14.
[43] Id. ¶ 15.
[44] Id. ¶¶ 16 and 18 to 21.
[45] Id. ¶ 30.
[46] Id. ¶ 31.
[47] Id. ¶¶ 36 to 37.
[48] Id. ¶¶ 40 to 41.
[49] Id. ¶ 42.
[50] See Tr. at pg. 130.
[51] See id. at pp. 128 to 129, 131, and 141.
[52] See id. at pp. 132 to 133.
[53] See id. at pg. 133.
[54] Id. at pg. 136.
[55] Id. at pp. 136 to 137; see also SLP Aff. ¶ 36.
[56] Id. at pg. 137.
[57] Id. at pg. 149.
[58] Id. at pg. 150.
[59] Id. at pg. 152.
[60] See id. at pp. 152 to 154.
[62] See Psychologist Aff. ¶¶ 2 to 5.
[63] Id. ¶ 8.
[64] Ex. D-2 to D-3.
[65] Psychologist Aff. ¶ 9.
[66] Id. ¶ 10.
[67] Id.
[68] Id. ¶¶ 13 to 14.
[69] Id. ¶ 14.
[70] Tr. at pg. 184.
[71] Id. at pg. 185.
[72] Id.
[73] Id. at pg. 190.
[74] See id. at pp. 191 to 192.
[75] Id. at pg. 193.
[76] See id. at pp. 194 to 195.
[77] The Parent’s affidavit was not signed or notarized; however, the Parent testified to its accuracy and adopted it as her direct testimony on the record and while she was under oath. See Tr. at pp. 202 to 203.
[78] See Parent Aff. ¶ 5.
[79] Id. ¶ 15.
[80] Id. ¶¶ 14 to 15.
[81] Id. ¶ 16.
[82] Id. ¶ 17.
[83] Id. ¶ 18.
[84] Id. ¶ 21.
[85] Id. ¶¶ 23 to 27.
[86] See id. ¶¶ 28 to 29.
[87] See id. ¶¶ 30 to 31.
[88] See id. ¶¶ 23 to 27; see also IHO Exs. XI and XII.
[89] Tr. at pp. 235 to 244.
[90] Tr. at pp. 245 to 259.
[91] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[92] See 34 C.F.R. § 300.13.
[93] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[94] See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2).
[95] See 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]).
[96] See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[97] Cerra v. Pawling Cent. Schl. Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130.
[98] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
[99] See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[100] See Education Law §§ 4404(1).
[101] See Doe v. East Lyme, 790 F.3d at 454.
[102] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[103] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[104] See Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997].
[105] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].
[106] Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").
[107] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, 546 F.3d at 123.
[108] See M.C. v. Cent. Reg’l Sch Dist., 81 F.3d 389 (3d Cir. 1996).
[109] See Reid, 401 F.3d at 518; see also Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007).
[110] Id.
[111] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.
[112] Application of a Child with a Disability, Appeal No. 22-004 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005).
[113] M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8, supra.
[114] C.W. v. Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 838 (3d Cir. 2010).
[115] Somberg v. Utica Community Schs., 2017 WL 242840, at *4 (E.D. Mich. 2017).
[116] See DOE Brief at pp. 4 to 6; see also Ex. A-1.
[117] See id. at A-1 to A-2.
[118] DOE Brief at pg. 4; see also IHO Ex. XI-3.
[119] DOE Brief at pp. 5 to 6; see also EO 202.8 and EO 202.72. I note that, given the tolling of claims between July 2, 2020, and November 4, 2020, this would have added 125 days under the DOE’s theory; however, adding 125 days to July 2, 2022, would have been November 4, 2022, still short of the May 18, 2023 date the DPC before me was filed.
[120] DOE Brief at pg. 6; see also IHO Ex. XII-2 to XII-4.
[121] Parent Brief at pp. 2 to 3; see also Ex. M-1.
[122] Tr. at pp. 22 to 23.
[123] Parent Brief at pg. 4.
[124] See id. at pg. 5.
[127] K.C. ex rel. J.C.T. v. Chappaqua Cent. Sch. Dist., 218 WL 475965 at 14 (S.D.N.Y. 2018); and K.H. v. New York City Dep't of Educ., 2014 WL 3866430, at *16 (E.D.N.Y. Aug. 6, 2014).
[128] See D.K. v. Abington Sch. Dist., 696 F.3d 233, 246 (3d Cir. 2012).
[129] See 20 U.S.C. § 1415(f)(3)(D)(i); 34 CFR § 300.511(f); Educ. Law § 4404(1)(a); 8 NYCRR 200.5(j)(1)(i); and R.B. v. Dept. of Educ., 2011 WL 4375694, at *6-7 (S.D.N.Y. Sept. 16, 2011).
[130] See e.g. R.B., 2011 WL 4375694, at *4, *6; D.K., 696 F.3d at 246; see also 20 U.S.C. § 1415(b)(3), (d); 34 CFR § 300.503; 34 CFR § 300.504; and 8 NYCRR § 200.5(a), (f).
[131] IHO Ex. XI-1.
[132] Id. at IHO Ex. XI-3.
[133] Compare Ex. J-1 to J-6, to Ex. K-1 to K-2.
[134] See Ex. K.
[135] Ex. M-1.
[136] See IHO Ex. XI-2.
[137] Id. at Ex. XI-3.
[138] Parent Brief at pg. 6; see also IHO Ex. XII-7.
[139] Parent Brief at pg. 7.
[140] Id. at pg. 8.
[141] Application of a Student with a Disability, Appeal No. 21-215 (Dec. 20, 2021), at pg. 8 (internal citations and quotations omitted).
[142] See TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 499 (2d Cir. 2014), citing Woods v. Dunlop Tire Corp., 972 F.2d 36, 38 (2d Cir. 1992).
[143] See id.
[144] Application of a Student with a Disability, Appeal No. 21-215 (Dec. 20, 2021), at pg. 8 (internal citations and quotations omitted).
[145] See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[146] Director Aff. ¶¶16.
[147] Ex. A-5.
[148] See 8 NYCRR 200.5 (j)(l)(ii), 20 U.S.C. 1415F) (3)(b); B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); and R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 Civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012).
[149] It is not clear whether this was meant to be a reference to “prekindergarten.”
[150] See Ex. J-3.
[151] Id. at J-6.
[152] See id. at J-16 to J-18.
[153] Ex. K-2.
[154] See id. at K-1.
[155] Psychologist Aff. ¶¶ 13 to 14.
[156] Id. ¶ 15.
[157] Id. ¶¶ 14 to 15.
[158] Id. ¶ 16.
[159] Director Aff. ¶¶ 16 and 20 (emphasis in original).
[160] Tr. at pg. 185.
[161] Id. at pg. 184.
[162] See NYC DOE 2020-21 School Year Calendar, found at <https://www.schools.nyc.gov/docs/default-source/default-document-library/school-calendar-for-families-2020-2021> (last visited December 2, 2023).
[163] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.
[164] See E.M. v. New York City Dep't of Educ., 758 F.3d at 451; see also Newington, 546 F.3d at 123.
[166] See Ex. A-3.
[167] See Ex. K-21 to K-22, and Ex L-19 to L-20.
[168] See Tr. at pp. 242 to 243.
[169] Tr. at pg. 137; see also IHO Ex. XII-8.
[170] See Tr. at pg. 136.
[171] Id. at pp. 136 to 137; see also SLP Aff. ¶ 36.
[172] See Application of a Student with a Disability, Appeal No. 23-153 (Aug. 30, 2023).
[173] See Tr. at pg. 242.
[174] The June 21W, 2022 IEP recommended 2x30 minutes, or one hour per week, for 46 weeks. See Ex. L-18.
[175] See Ex. A-3 to A-4.
[176] See Director Aff. ¶ 21.
[177] See Application of a Student with a Disability, Appeal No. 23-080 (Jun. 9, 2023).