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CASE NUMBER: 601393 - NYC: 249347
FINDINGS OF FACT AND DECISION
Student’s Name 1: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date Complaint Filed: June 27, 2023
Date(s) of Hearing: September 29, 2023
October 24, 2023
Actual Record Closed Date: November [1], 2023
Date of Decision: November 9, 2023
Time Sensitive No
Hearing Officer: Robin Levin, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 29, 2023
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 24, 2023
For the Student:
[REDACTED] [REDACTED] [REDACTED]
For the Department of Education:
[REDACTED]
INTRODUCTION
This is a decision rendered after a due process hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law Article 89 §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.[2] This case concerns Student, a [REDACTED] -year-old, who attended a private school (“Private School”) for the 2021-2022 school year. [3]
On June 27, 2023, the Parent, through Parent’s Advocate, filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“DOE” or District”).[4] In the DPC, the Parent alleged that the DOE failed to offer the Student a Free Appropriate Public Education (“FAPE”) for the 2021-2022 school year.[5] The Parent alleged that the Committee on Special Education (“CSE”) convened on February 22, 2021 to develop an Individualized Education Program (“IEP”) for the Student for the 2021-2022 school year.[6] The CSE classified the Student as a student with a Speech or Language Impairment and recommended an Integrated Co-Teaching (“ICT”) classroom with Special Education Teacher Support Services (“SETSS”) in EnglishLanguage Arts (“ELA”) and speech-language therapy.[7] The Parent disagreed with the recommended program and alleged numerous procedural and substantive FAPE violations. [8]
By way of relief, the Parent seeks an award of tuition reimbursement and direct funding for the Student’s attendance at the Private School for the 2021-2022 school year.[9] The Parent argued that the Private School was an appropriate placement for the Student.[10] In addition, the Parent argued that the equities support her claim for tuition reimbursement and direct funding for the school year at issue since the Parent fully cooperated with the CSE. [11]
PROCEDURAL HISTORY
On June 27, 2023, I was appointed as the Impartial Hearing Officer (“IHO”). On August 1, 2023, the parties appeared virtually for a pre-hearing conference (“PHC”). At the PHC, the DOE Attorney raised the statute of limitations as an affirmative defense and indicated that the DOE would be filing a motion to dismiss.[12] I set a motion schedule and scheduled a date for a limited hearing on the motion to dismiss.[13] On August 15, 2023, the DOE Attorney filed a motion to dismiss.[14] In the motion, the DOE Attorney argued that the Parent’s claims arising from the 2021-2022 school year are barred by the statute of limitations because the Parent knew or should have known about the alleged denial of FAPE at the time of the IEP meeting on February 22, 2021 or, at the latest, after the Parent received the Prior Written Notice package dated March 3, 2021. [15] Therefore, since the Parent filed the DPC on June 27, 2023, the Parent’s claims must be dismissed since the latest date when the Parent could have filed the claims was March 4, 2023.[16] The DOE argued that neither of the two exceptions to the statute of limitations applied to this case. [17]
On August 29, 2023, the Parent’s Advocate filed a response to the DOE’s motion to dismiss.[18] The Parent’s Advocate argued that the Parent’s claims are not barred by the statute of limitations, and the case should proceed to a full impartial hearing so that the Parent can have a fair opportunity to present her case and explain when she became aware that she disagreed with the February 22, 2021 IEP.[19] A limited hearing on the DOE’s motion was scheduled for September 5, 2023, however, the Parent’s Advocate requested an adjournment and an extension of the compliance date, which I granted on consent of the DOE. [20]
A limited hearing was held on September 29, 2023 regarding the DOE’s motion to dismiss. At the limited hearing, both parties gave oral arguments in support of their positions regarding the DOE’s motion to dismiss. The DOE Attorney argued that the case must be dismissed because the date in which the Parent knew or should have known of the alleged action that forms the basis of the Parent’s DPC was, at the latest, in March of 2021.[21] The Parent’s Advocate argued that the Parent did not know after the February 22, 2021 IEP meeting that she was not going to accept the program and placement offered by the DOE until she had an opportunity to investigate the placement and determine if she thought it was appropriate for the Student.[22] In addition, the Parent’s Advocate argued that, if the case proceeds to a full due process hearing, the Parent will testify that she had no knowledge from reading any documents provided by the DOE that there was a two year statute of limitations.[23] In order to allow the parties to fully develop and complete the hearing record, I reserved decision on the DOE’s motion until a full due process hearing could be held in this matter and factual determinations could be made. 24
A virtual due process hearing was held on October [24], 2023. It was a closed hearing. The Parent was present and was represented by the Parent’s Advocate. The DOE Attorney was present. The DOE Attorney declined to give an opening statement, and the Parent’s Advocate gave an opening statement.[25] The DOE Attorney submitted three exhibits in support of the DOE’s motion to dismiss: the Parent’s DPC, the February 22, 2021 IEP, and the Prior Written Notice package dated March 3, 2021.[26] On consent of the parties, DOE’s Exhibit 1, the Prior Written Notice Package, was admitted into the hearing record, and the Parent’s DPC and the February 22, 2021 IEP came into evidence as Parent’s Exhibits A and C respectively.[27] The Parent’s Advocate submitted 11 additional exhibits, which were entered into evidence without objection.[28] The Parent’s Advocate called two witnesses, the Parent, and the Principal at the Private School, and the DOE Attorney cross-examined both witnesses.[29] The Parent rested, and the parties agreed to submit written closing briefs.[30] The record was closed on November 1, 2023 after receipt of the parties’ written closing briefs. [31]
LEGAL FRAMEWORK
Tuition Funding and/or Reimbursement
This case concerns the Parent’s request that the DOE reimburse the Parent and directly fund the cost of the Student’s tuition for the 2021-2022 school year.[32] When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint.[33] The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.”[34] A school district must pay for the cost of a student’s tuition at a private school if the three “prongs” of the Burlington/Carter test are met: (1) the district denied the student a FAPE; (2) the private school unilateral placement is appropriate; and (3) the equities favor an order of tuition reimbursement or funding. [35]
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.[36] 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.[37] A school district has offered a student a FAPE when it complies with the procedural requirements set forth in the IDEA, and the IEP is reasonably calculated to enable the student to receive educational benefits.[38] Under the IDEA, students with disabilities are entitled to be educated in the least restrictive environment that meets their unique needs. [39]
Parents may allege procedural and/or substantive FAPE violations. For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.”[40] To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[41] The District must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’” [42]
Moreover, a school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.[43] The IEP must be reviewed at least annually, and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year.[44] The IEP should: (1) accurately reflect the results of evaluations to identify the student’s needs, 45 (2) provide for the utilization of sufficient special education programs or services,[46] and then (3) the IEP must be properly and timely implemented.[47] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. [48]
In due process hearings under the IDEA in New York, school districts have the burden of proof, including the burden of production and burden of persuasion. However, there is an exception in that a parent seeking tuition reimbursement or funding for a unilateral parental placement has the burden of persuasion and burden of production regarding the appropriateness of such placement.[49] Parents seeking reimbursement or tuition funding “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[50] While there are some exceptions, “’the same considerations and criteria that apply in determining whether the [DOE’s] placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” [51]
45 34 C.F.R. § 300.320(a)(1); 8 N.Y.C.R.R. 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008).
A unilateral private school placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.”[52] Parents need not show that the unilateral placement is perfect or that it meets all state educational standards.[53] Instead, parents must “demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”[54] In addition, a unilateral placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.[55] The determination of whether the unilateral placement serves a student’s individual needs and is reasonable calculated to enable a student to receive educational benefits does not depend only on one factor. Instead, courts assessing the appropriateness of a unilateral placement must consider the totality of the circumstances, including but not only, academic progress demonstrated through grades, test scores, progress reports, and regular advancement.[56] A private school placement must be “proper under the Act.”[57] This means that the Private School must offer an educational program which meets the Student’s special education needs. [58]
Under Burlington/Carter, if the parents are financially obligated to pay for the contracted tuition costs and have met their prong 2 burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced.[59] The courts have “broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”[60] Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."[61] “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.” [62]
Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the District.[63] In addition, a hearing officer may consider many additional factors, including whether a parent’s unilateral withdrawal of the child from the public school was justified, whether the parent should have sought need-based scholarships or other financial aid from the private school, whether there was any fraud or collusion in generating, or inflating, the tuition to be charged to the school district, and whether the arrangement with the school was fraudulent or collusive in any other respect.[64] “Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable.”[65] Furthermore, direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA.[66] Under the law, “once the Burlington prerequisites are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately.” [67]
Statute of Limitations
A parent’s due process complaint must be filed “within 2 years of the date [the parent] knew or should have known about the alleged action that forms the basis for the complaint,” unless a state establishes a different limitations period under state law.[68] New York State affirmatively adopted the two-year period found in the IDEA.[69] “The two-year statute of limitations does not apply if the parent was prevented from requesting the hearing by the local educational agency’s misrepresentations, or because the agency withheld information it was required to provide.” [70] Additionally, “[d]etermining when a parent knew or should have known is necessarily a factspecific inquiry.” [71]
Under the Federal Rules of Civil Procedure, statute of limitations is an affirmative defense that can be deemed waived if not included in an answer to a complaint.[72] However, “[t]he IDEA’s statute of limitations is an affirmative defense, rather than a jurisdictional prerequisite.”[73] Courts have held that a statute of limitations defense is timely raised so long as it is raised at some point during the impartial hearing.[74] Since affirmative defenses “normally cannot be decided on a
FINDINGS OF FACT AND DECISION
Primarily, I must determine whether the Parent’s DPC filed on June 27, 2023 is barred by the statute of limitations. It is undisputed that the DOE’s affirmative defense was asserted in a timely manner as the DOE Attorney raised the affirmative defense at the PHC on August 1, 2023.[79] Thereafter, the DOE timely filed the motion to dismiss on August 15, 2023 pursuant to the motion schedule the parties agreed to, and the Parent’s Advocate submitted a reply on August 29, 2023.[80]
As discussed above, this case concerns the Parent’s request that the DOE reimburse the Parent and directly fund the cost of the Student’s tuition for the 2021-2022 school year.[81] Courts in the Second Circuit have held that a parent’s claim for tuition reimbursement under the IDEA begins to accrue “when the parents of a child who is entitled to an IEP unilaterally remove the student from school, place him or her in a new program, and make a payment to the new school.”[82] The Second Circuit determined that in cases in which “a parent seeks tuition reimbursement based on a claim that the local school district failed to provide a FAPE, the cause of action accrues at the time the parents withdraw their child from the placement provided by the local school district and unilaterally enroll their child at the school of their choice.”[83] Only then would parents know or have reason to know of their injury, since it is at that point that they become “aware that they would have a substantial monetary loss as a result of their decision.”[84] Determining when a parent knew or should have known of an alleged action “is necessarily a fact-specific inquiry.” [85]
The Parent testified that she participated in the February 22, 2021 IEP Meeting.[86] At the meeting, the CSE recommended an ICT classroom for the Student with SETSS in ELA and speech-language therapy.[87] In addition, the CSE told the Parent at the IEP meeting which Public School where the district articulated its position prior to the impartial hearing]; Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 (E.D.N.Y. 2002) [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]).
75 In re S. Afr. Apartheid Litig., 617 F. Supp. 2d 228, 287 (S.D.N.Y. 2009).
76 See R.B. ex rel. A.B. v. Department of Educ. of City of NY, 2011 WL 4375694, at *5-7 (S.D.N.Y. 2011).
77 M.G. v. NYC Dept of Educ., 62 IDELR 195 (S.D.N.Y. 2014), citing Somoza, supra.
78 K.C. v. Chappaqua Cent. Sch. Dist., 2018 LEXIS 169438, at *37 (S.D.N.Y. Sept. 29, 2018) (internal citations and quotation marks omitted). placement would be recommended to implement the Student’s IEP.[88] The Parent testified that she “procrastinate[d] quite a bit” and was undecided whether she agreed with the program and the placement until the end of June when she tried to contact the proposed Public School placement and left a message.[89] The Public School did not reply to the Parent since the summer began and therefore, the Parent was unable to visit the Public School.[90] The Parent also testified that she was familiar with the Public School because her daughter previously attended the Public School.[91] The Parent did not remember whether she received the school location letter. [92]
According to the February 22, 2021 IEP, the Parent expressed her concerns during the IEP meeting “that an Integrated Co-Teaching program would have a large number of children in the classroom. This would put [the Student] at a greater risk due to his immunocompromised status. It would also distract him significantly, as his current class size is 12 students to one teacher.” [93] Moreover, in the Parent’s DPC, the Parent admits to receiving both the Prior Written Notice and the school location letter.[94] The Prior Written Notice dated March 3, 2021 informed the Parent of the DOE’s recommended program and specifically states, “you have protection under the procedural safeguards of the regulations of the commissioner of education. You can down a copy of the Procedural Safeguards Notice from the New York City Department of Education website or request a copy from [the Social Worker].” [95]
On May 25, 2021, the Parent signed an Enrollment Contract at the Private School for the 2021-2022 school year.[96] The Parent gave the Private School a deposit in the amount of $1,000 to secure the Student’s seat on May 24, 2021.[97] The Parent believed that the Private School would refund the deposit if, after executing the Enrollment Contract, the Parent gave the Private School “sufficient notice” of the Student’s withdrawal from the Private School.[98] However, according to the Enrollment Contract, “all fees are non-refundable…[including the] registration fee, administrative costs, books, [and] supplies and holding a child’s place in the class.”[99] The total tuition for the 2021-2022 school year was $80,000.[100] No additional payments have been made to the Private School, and therefore, the remaining balance is $79,000.[101] For the 2021-2022 school year, the Student attended the Private School from September 9, 2021 to June 23, 2022. [102]
The Court in L.B. v. N.Y.C. Dep't of Educ., 2022 U.S. Dist. LEXIS 40974 (S.D.N.Y., Nov. 7, 2022), held that in tuition reimbursement cases brought under the IDEA, the statute of limitations begins “[a]t the time that Parent placed Student in Private School on a tuition basis, [as] Parent was aware they would have substantial monetary loss as a result of their decision.” [103] In L.B., the parent unilaterally placed their child in a non-public school and brought a claim under the IDEA for tuition reimbursement.[104] The district moved to dismiss on the basis that parent’s claims were time-barred under the IDEA’s two-year statute of limitations.[105] The Court held that parent’s claims were time-barred, as parent’s cause of action accrued the date that the contract was signed, and a deposit was made to the school.[106] In L.B., the parent was found to have known or should have known that their claim arose at the time the contract with the Private School was signed, as that was when they had substantial monetary loss. [107]
Here, while the Parent did not testify to a specific date, the Parent alleged that she knew of her disagreement with the Student’s IEP at the end of June 2021, when she could not get in touch with the Public School to schedule a visit and learn about the placement.[108] However, I find that the DOE met its burden at the hearing to show that the Parent knew or should have known of the alleged action that forms the basis of that Parent’s complaint prior to the end of June 2021. Although the DOE argued that the latest date the Parent knew or should have known was after receiving the Prior Written Notice and school location letter dated March 3, 2021, I find that the under the applicable law in this Circuit, the date the Parent signed the Private School Enrollment Contract, May 25, 2021, is the date the Parent knew or should have known about the alleged action that forms the basis for her DPC. In addition, the day before the Parent signed the Enrollment Contract, she paid a registration deposit of $1,000 to the Private School.[109] By signing the Enrollment Contract to unilaterally place the Student in the Private School for the 2021-2022 school year and paying the registration deposit, the Parent “suffered an actionable injury” and became at risk for “substantial monetary loss.”[110] Even though the Parent testified at the hearing and argued in the Parent’s closing brief that she believed the registration deposit would be refunded if the Parent gave the Private School “sufficient notice” of the Student’s withdrawal from the Private School, the Enrollment Contract does not provide any release or refund clause and instead, it specifically states “all fees are non-refundable…[including the] registration fee, administrative costs, books, [and] supplies and holding a child’s place in the class”[111] The statute of limitations for the claims in this case for the 2021-2022 school year would have expired, at the latest, on May 25, 2023, when the Enrollment Contract was signed. However, my analysis does not conclude here as I will now consider if any exceptions to the statute of limitation applies to this matter.
Exceptions to the timeline to request an impartial hearing apply if a parent was 1) prevented from filing a due process complaint notice due to a “specific misrepresentation” by the district that it had resolved the issues forming the basis for the due process complaint notice; or 2) the district withheld information from the parent that it was required to provide.[112] Here, the Parent did not specifically assert that the DOE made any specific misrepresentations that made the Parent believe the District had resolved the issues forming the basis for her complaint or that the DOE withheld information. However, in the Parent’s written response to the DOE’s motion to dismiss, the Parent’s Advocate argued that it was “not clear what due process rights [the DOE] is referring to and how the Parent should have known her rights concerning the statute of limitations.”[113] The "withholding of information" exception to the timeline to request an impartial hearing applies "if the parent was prevented from filing a due process complaint notice due to . . . the [district's] withholding of information from the parent that was required . . . to be provided to the parent.[114] Cases interpreting the “withholding of information” exception have typically applied it to the requirement that DOE provide written notice of the procedural safeguards prescribed by the IDEA.[115] Under the IDEA and Federal and State regulations, a district must provide parents with a copy of a procedural safeguards notice annually.[116] The IDEA guarantees a parent procedural safeguards with respect to the provision of a FAPE, and DOE must provide written notice of those safeguards “whenever [it] (1) proposes to initiate or change; or (2) refuses to initiate or change, the identification, evaluation, or educational placement of a child, or the provision of a [FAPE] to the child.”[117] Such safeguards contain information on how to request an impartial due process hearing, how to obtain independent educational evaluations, and how to access educational records, among other things. [118]
Withheld information in violation of the IDEA's procedural safeguards satisfies the exception to the statute of limitation only when the parent shows that the withholding “caused [their] failure to” file a due process complaint within the two-year limitation period.[119] While courts in the Second Circuit have “not expounded on the precise requirements for this exception to the statute of limitation, [] district courts in this Circuit have reasoned that the exception applies only when the parent does not know of her rights because of the local educational agency's failure to disclose information it was required to disclose under the IDEA's procedural safeguards.”[120] Case law interpreting the "withholding of information" exception to the limitations period has found that the exception almost always applies to the requirement that parents be provided with the written notice of procedural safeguards required under the IDEA [121].
In R.B. v. New York City, 2011 U.S. Dist. LEXIS 106273 (S.D.N.Y September 16, 2011), the parent in that matter argued that the statute of limitations on their claims were tolled under the exception that the District withheld information and failed to provide them with a notice of their procedural safeguards.[122] The parent additionally argued that as a result, they filed a DPC outside of the statute of limitations.[123] Although the Court ultimately decided that the parent waived their statute of limitations argument by not first raising this argument before the IHO, the Court still analyzed whether the statute of limitations had been tolled on the parent’s case.[124] The Court found that there was no evidence in the record the Parent had been denied meaningful participation in the development of the student’s IEP and that Parent actually attended the CSE meeting with an education law attorney.[125] Additionally, that same attorney represented the parent on “‘more than 5’ prior due process complaint notices in connection with [student’s] education.”[126] The Court found that the parent “was aware of [their] substantive rights throughout the development of [student’s] IEP and during [their] subsequent placement decisions.”[127] The Court ultimately held that even if the District had failed to provide the parent with a copy of their procedural safeguards, “there is little chance that such a failure did anything to undermine Plaintiff’s participation in the decision-making process.” [128]
In evidence is DOE’s Exhibit 1, the Prior Written Notice package, which includes the school location letter, both dated March 3, 2021. While the Parent testified that she could not recall receiving the documents, the Parent’s DPC specifically states that both the Prior Written Notice and the school location letter were received.[129] The Prior Written Notice dated March 3, 2021 informed the Parent of the DOE’s recommended program and specifically states, “you have protection under the procedural safeguards of the regulations of the commissioner of education. You can down a copy of the Procedural Safeguards Notice from the New York City Department of Education website or request a copy from [the Social Worker].”[130] Therefore, I find that the Parent’s claims were not tolled by the withholding of information exception because the evidence in the record supports that the Parent was provided with prior written notice by the Parent’s own admission in the DPC.
Furthermore, even if the Parent did not receive the Prior Written Notice dated March 3, 2021, the Parent would not have been prevented from requesting a due process hearing for the 2021-2022 school year, as the evidence in the hearing record demonstrates that the Parent retained the Parent’s Advocate to assist her with her claims sometime on or before August 25, 2021, the day the Parent’s Advocate sent a Ten-Day Notice to the DOE on the Parent’s behalf.[131] In the Ten Day Notice, the Parent specifically states a “request for an impartial hearing will be forthcoming under a separate letter.”[132] Therefore, I cannot find, by preponderance of the evidence, that the Parent did not know of her rights due to the DOE’s failure to send her prior written notice which included information about the procedural safeguards and the Parent’s protections under the law.[133] In addition, I also cannot find that such failure was the cause of the Parent’s decision to not file a DPC within the statute of limitations period. I find that neither of the exceptions to the statute of limitations apply, as the evidence in this case indicates otherwise.
ORDER
For the foregoing reasons, the New York City Department of Education’s motion to dismiss is GRANTED, and the Parent’s due process complaint for the 2021-2022 school year is barred by the statute of limitations and dismissed with prejudice.
SO ORDERED.
DATED: November 9, 2023
Robin Levin, Esq.
Impartial Hearing Officer
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 – EXHIBITS ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Impartial Hearing Request 6/27/2023 5 pages
B. Program Description Undated 2 pages
C. Individualized Education Program 2/22/2021 18 pages
D. Ten Day Notice 8/25/2021 2 pages
E. Class Schedule 2021-2022 1 page
F. Teacher’s Report 6/21/2022 2 pages
G. Speech Report 6/27/2022 1 page
H. Report Card 2021-2022 1 page
I. School Affidavit 8/17/2023 1 page
J. Enrollment Contract 5/25/2021 3 pages
K. Proof of Payment 2021-2022 1 page
L. Attendance Record 2021-2022 1 page
M. Affidavit Testimony – Principal at the Private School Undated 2 pages
DOE EXHIBITS
1. Prior Written Notice Package 3/03/2021 11 pages DOE
IHO EXHIBITS
I. DOE’s Motion to Dismiss 8/15/2023 9 pages
II. Parent’s Reply to DOE’s Motion to Dismiss Undated 4 pages
III. DOE’s Closing Brief 11/01/2023 20 pages
IV. Parent’s Closing Brief 11/01/2023 8 pages
Footnotes
[1] Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits will be referred to as “Ex.” followed by lettered designations for Parents’ Exhibits, numbered designations for DOE’s Exhibits, and uppercase roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1). Transcripts will be referred to as “Tr.” followed by the page number(s) within the transcript as needed.
[3] Ex. A-2.
[4] Ex. A.
[5] Id.
[6] Ex. A; Ex. C.
[7] Ex A-2; Ex. C-12
[8] Ex. A-2-3.
[9] Ex. A-3-4.
[10] Id.
[11] Ex. A-4.
[12] Tr. 3-4.
[13] Tr. 5-9.
[14] IHO Ex. I.
[15] Id.
[16] Id.
[17] Id.
[18] IHO Ex. II.
[19] Id.
[20] See Order of Extension dated September 5, 2023.
[21] Tr. 14-15.
[22] Tr. 15-16.
[23] Id.
[24] Tr. 17-18. I also granted a joint request to extend the compliance date (See Order of Extension dated September 29, 2023).
[25] Tr. 33-34.
[26] Tr. 35-36.
[27] Tr. 39-40, 47.
[28] Id. A detailed list of the admitted exhibits is attached to this decision as Appendix A, “Exhibits Entered Into the Record.”
[29] Ex. M; Tr. 45-75.
[30] Tr. 75-79.
[31] The parties’ closing briefs were admitted into the hearing record as IHO Exhibits III and IV.
[32] Ex. A.
[33] Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 (2d Cir. 2014)).
[34] 20 U.S.C. § 1415(b)(6)(A).
[35] Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985).
[36] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[37] 34 C.F.R. §300.13.
[38] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[39] Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993).
[40] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).
[41] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[42] Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).
[43] Endrew F.,137 S.Ct. 988, 999.
[44] 34 C.F.R. §300.324(b)(1)(i); 8 N.Y.C.R.R. §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010).
[46] 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. 200.4(d)(2)(v).
[47] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[48] J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
[49] NY Educ. Law § 4404(1)(c)).
[50] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).
[51] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
[52] Frank G., 459 F.3d at 364-65; Gagliardo, 489 F.3d at 112.
[53] Frank G., 459 F.3d 356, 364; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).
[54] Frank G., 459 F.3d 356, 364; Gagliardo, 489 F.3d 105, 112.
[55] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R 300.39(a)(1); 8 N.Y.C.R.R. 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[56] Frank G., 459 F.3d at 364; See Gagliardo, 489 F.3d at 112.
[57] Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985).
[58] Gagliardo, 489 F.3d 105, 112,115; Walczak142 F.3d 119.
[59] See Carter, 510 U.S. at 16.
[60] J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011).
[61] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009).
[62] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007).
[63] D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).
[64] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[65] Carter, 510 U.S. at 16; see also J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).
[66] See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (Parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”).
[67] Connors v. Mills, 34 F.Supp.2d 795, 799, 805-06 (N.D.N.Y. 1998); See Mr. & Mrs. A. v. New York City Dep’t. of Educ., 769 F. Supp. 2d at 427 (Stating that where the Burlington factors are met, the court may award retroactive direct payment of private school tuition.)
[68] 20 U.S.C. § 1415(f)(3)(C); see also 20 U.S.C. § 1415; NYS Education Law § 4404(1)(a); 34 C.F.R. § 300.507(a)(2); 34 C.F.R. § 300.51 l(e); 8 NYCRR § 200.5(i)(l)(i); Somoza v. New York City Dept. of Educ., 538 F.3d 106, 114-15 & n.8 (2d Cir. 2008).
[69] NYS Educ. Law § 4404(1)(a); 8 NYCRR 200.5(j)(1)(i); see also NYS State Review Officer (“SRO”) No. 22-105.
[70] M.G. and V.M v. N.Y. City Dep't of Educ., 15 F. Supp. 3d 296, 304 (S.D.N.Y. 2014).
[71] K.C. Ex rel. J.C.T. v. Chappaqua Cent. Sch. Dist., 2018 WL 4757965, at *14 (S.D.N.Y. 2018).
[72] FRCP 8(c).
[73] See M.G, 15 F. Supp. 3d at 304; see also K.H. v. New York City Dep't of Educ., 2014 WL 3866430, at *16 (E.D.N.Y. Aug. 6, 2014).
[74] See SRO 19-069; M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 (S.D.N.Y. 2014) [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 (S.D.N.Y. Sept. 16, 2011) [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice motion to dismiss,” 75 they are deemed waived if they are not otherwise raised during administrative proceedings. 76 Accordingly, the district has the burden of proving that the statute of limitations barred a parent’s claims. 77 A party asserting that a claim is time barred by the statute of limitations must establish the date by which the other party “knew or should have known” of the alleged action that forms the basis of that party’s complaint. 78
[79] Tr. 4.
[80] IHO Ex. III; IHO Ex. IV.
[81] Ex. A.
[82] L.B. v. N.Y.C. Dept. of Education, 2022 U.S. Dist. LEXIS 40974 (S.D.N.Y. March 8, 2022); see also K.C. v. Chappaqua Cent. Sch. Dist., 2018 U.S. Dist. LEXIS 169438, at *14 (S.D.N.Y. Sept. 30, 2018) (collecting cases); R.B. ex rel. A.B. v. Dept. of Educ. N.Y., 2011 U.S. Dist. LEXIS 106273, at *4 (S.D.N.Y. Sept. 16, 2011).
[83] R.B., 2011 WL 4375694, at *4, citing M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir. 2003).
[84] M.D., 334 F.3d at 221.
[85] K.H. v. New York City Dep't of Educ., 2014 WL 3866430, at *16 (E.D.N.Y. Aug. 6, 2014).
[86] Tr. 60.
[87] Id.
[88] Tr. 70.
[89] Tr. 61, 68-73.
[90] Tr. 71.
[91] Tr. 72.
[92] Tr. 69.
[93] Ex. C-17.
[94] Ex. A-2.
[95] Ex. 1-2.
[96] Ex. J; Tr. 65-66, 73.
[97] Ex. K-1; Tr. 74
[98] Tr. 74.
[99] Ex. J-1.
[100] Id.
[101] Ex. I-1.
[102] Id.
[103] L.B. v. N.Y.C. Dep't of Educ., 2022 U.S. Dist. LEXIS 40974, at *14 (S.D.N.Y., Nov. 7, 2022); citing M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir. 2003)
[104] L.B., at *2.
[105] Id at *5.
[106] Id. at *15.
[107] Id.
[108] Tr. 70-71; IHO Ex. IV-8.
[109] Ex. K-1; Tr. 74.
[110] Id.
[111] Tr. 74; IHO Ex. IV-8; Ex. J-1.
[112] See 20 U.S.C. § 1415(f)(3)(D); Educ. Law 4404(1)(a); 34 CFR 300.511(f); 8 NYCRR 200.5(j)(1)(i); R.B., 2011 WL 4375694, at *6). SRO 22-043.
[113] IHO Ex. II-3.
[114] 20 U.S.C. § 1415(f)(3)(D); Educ. Law 4404(1)(a); 34 CFR 300.511(f); 8 NYCRR 200.5(j)(1)(i).
[115] Bd. of Educ. of N. Rockland Cent. Sch. Dist. v. C.M., 2017 LEXIS 94546, at *25 (S.D.N.Y. June 19, 2017), aff’d, 744 F. App’x 7 (2d. Cir. 2018).
[116] See 20 U.S.C. § 1415(d)(1)(A); 34 CFR 300.504(a); 8 NYCRR 200.5(f)(3).
[117] 20 U.S.C. §§ 1415(a), (b)(3)(a); 34 C.F.R. § 300.503(a); 8 NYCRR § 200.5(a)).
[118] 20 U.S.C. § 1415(d); 34 C.F.R. § 300.504; 8 NYCRR § 200.5(f); NYSED Procedural Safeguards Notice, available at http://www.p12.nysed.gov/specialed/formsnotices/documents/NYSEDProceduralSafeguards NoticeJuly2017v2.pdf (last checked April 15, 2023).
[119] D.K. v. Abington Sch. Dist., 696 F.3d 233, 246-47 (3d Cir. 2012) (emphasis in original) ("Thus, where the evidence shows, for example, that parents were already fully aware of their procedural options, they cannot excuse a late filing by pointing to" the withheld information); see also 20 U.S.C. § 1415(f)(3)(D) (providing that the statute of limitation applies only "if the parent was prevented from" filing the due process complaint due to a specific misrepresentation or withheld information) (emphasis added)).
[120] N.J. v. N.Y.C. Dep't of Educ., No. 18-CV-6173 (JMF), 2021 U.S. Dist. LEXIS 47980, 2021 WL 965323, at *12 (S.D.N.Y. Mar. 15, 2021) (quoting Bd. of Educ. of N. Rockland Cent. Sch. Dist. v. C.M., No. 16 CV 3924 (VB), 2017 U.S. Dist. LEXIS 94546, 2017 WL 2656253, at *9-10 (S.D.N.Y. June 20, 2017), aff'd, 744 F. App'x 7, 11 (2d Cir. 2018) (summary order).
[121] Bd. of Educ. of N. Rockland Cent. School Dist. v. C.M., 744 Fed Appx 7, 11 (2d Cir. Aug. 1, 2018); R.B., 2011 WL 4375694, at *4, *6; see D.K. v. Abington Sch. Dist., 696 F.3d 233, 246 (3d Cir. 2012); C.H. v. Northwest Ind. Sch. Dist., 815 F. Supp. 2d 997, 986 (E.D. Tex. 2011); Tindell v. Evansville-Vanderburgh Sch. Corp., 805 F. Supp. 2d 630, 644-45 (S.D. Ind. 2011); El Paso Indep. Sch. Dist. v. Richard R., 567 F. Supp. 2d 918, 943-45 (W.D. Tex. 2008); Evan H. v. Unionville-Chadds Ford Sch. Dist., 2008 WL 4791634, at *7 (E.D. Pa. Nov. 4, 2008).
[122] See R.B., at *17.
[123] Id., at *18-19.
[124] Id., at *19-20.
[125] Id., at *20.
[126] Id.
[127] Id.
[128] Id., at 21.
[129] Ex. A-2.
[130] Ex. 1-2.
[131] Ex. D.
[132] Ex. D-1.
[133] Ex. 1.