Impartial Hearing Decision

CASE NUMBER: 601482 - NYC: 249401

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

School District: NYC DOE

Hearing Requested by: Parent

Request Date/Date Complaint Filed: 06/28/2023 Date[s] of Hearing: 09/08/2023, 09/29/2023 Actual Record Closed Date: 10/10/2023

Date of Decision: 10/11/2023

Hearing Officer: Paul J. DeSena

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act [hereinafter, “IDEA”] and Section 504 of the Rehabilitation Act of 1973. This case concerns Student, who was, at the start of the 2023/24 school year, a [REDACTED]-year-old Student currently repeating the seventh grade in a District placement, that being an 8:1+1 program at an NYS-approved school. Ex. A, at 1; Ex. P, at ¶

1. In the Parent’s Due Process Complaint [hereinafter, “DPC”], the Parent alleged that the Department of Education [hereinafter, “District” or “DOE”] failed to provide the Student a Free and Appropriate Public Education [hereinafter, “FAPE”] for the 2019/20, 2020/21, 2021/22, and 2022/23 school years. Ex. A, at 11.

The Parent requests 700 hours of compensatory individual, special education instruction utilizing the [REDACTED] methodology, transportation to and from the Tutor compensatory counseling and occupational therapy, a speech and language Independent Educational Evaluation [hereinafter, “IEE”], and a change to the Student’s IEP to include any and all accommodations or recommendations included in the Student’s most recent neuropsychological evaluation in October and November of 2022. Ex. A, at 12; Ex. I.

As discussed below, I find that the DOE denied the Student a FAPE for the 2019/20, 2020/21, 2021/22, and 2022/23 school years. Additionally, I find that the Student is entitled not only to 700 hours of compensatory individual, special education instruction utilizing the [REDACTED] methodology and transportation to and from the same, but also a speech and language IEE, compensatory hours of counseling and occupational therapy, and a psychiatric IEE. Finally, I find that the CSE shall convene to consider the results of the Student’s neuropsychological evaluation from 2022, speech and language IEE, and psychiatric IEE.

PROCEDURAL HISTORY

The Parent filed this case on June 28, 2023. Ex. A, at 1. I was appointed to hear this case on June 29, 2023. I conducted a Pre-Hearing Conference [hereinafter, “PHC”] with the Parties on August 1, 2023. See generally PHC Tr. On August 4, 2023, the District filed a motion to dismiss on statute of limitations grounds. The Parent opposed, the District replied, and the Parent requested and was granted a surreply. I reserved a decision on the motion until after the Hearing. Hearing Tr., at 35.

A due process hearing was held over two days on September 8, 2023, and September 29, 2023, due to witness availability. See generally, Hearing Tr. The Parent’s attorney represented the Parent. Id. The DOE attorney represented the District. Id.

The District argued that the DOE provided the Student with a FAPE, that the Student’s claims for the 2019/20 and 2020/21 school years were barred by the statute of limitations, and that the Student was not entitled to compensatory education or compensatory related services, transportation, or IEEs. Hearing Tr., at 55. At the hearing, the District introduced Exhibits 1-12 and 14-19 for admission into the record, but provided no witnesses to show that it provided the Student with a FAPE.^[1] Hearing Tr., at 46. The District made an opening statement but presented no witnesses. Hearing Tr., at 55, 61-62. The District cross-examined all of Parent’s witnesses and made a closing statement. Hearing Tr., at 106-107.

The Parents argued that the District denied the Student a FAPE for school years 2019/20, 2020/21, 2021/22, and 2022/23, that the Student was entitled to compensatory education and compensatory related services, and transportation the related service provider, and IEEs. Hearing Tr., at 55-61. The Parents introduced exhibits A–P into evidence. 2 Id., at 23-25. The Parent’s attorney delivered an opening statement. Id., at 49-52. The Parent called three witnesses including the Parent, the Student’s Neuropsychological Evaluator, and the Student’s [REDACTED] Evaluator [all by affidavit]. Exs. N-P. The District cross-examined all witnesses. The Parent’s attorney made a closing statement. Hearing Tr., at 107-129. This order follows.

FINDINGS OF FACT

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

At the time of the DPC, the Student was a [REDACTED]-year-old repeating the seventh grade in a District placement, that being an 8:1+1 program at an NYS-approved school. Ex. A, at 1; Ex. P, at ¶ 1. In November of 2022, the Student was diagnosed with moderate Attention Deficit and Hyperactivity Disorder [“ADHD”], moderate, recurrent Depressive Disorder, moderate Generalized Anxiety Disorder, severe Specific Reading Disorder, severe Specific Learning Disorder with Impairment in Mathematics, and severe Specific Learning Disorder with Impairment in Written Expression. Ex. I, at 1; Ex. O, at ¶ 34. The Student’s disabilities impact her in school. Ex. I, at 2; Ex. N, at ¶ 18. Specifically, the Student’s “challenges with abstract reasoning, attention, and executive functioning” impact “many of her academic performances.” Ex. I, at 2. As of March 7, 2023, and based on the administration of the “Wide Range Achievement Test,” the completion of a writing sample, and the administration of a Qualitative Reading Inventory, the Student “tested at an upper second-grade level for mathematics and a low third-grade level for both decoding and spelling.” Ex. N, at ¶¶ 15-18. On that date, the Student also tested “at an upper second-grade level for writing and a third-grade level for reading comprehension.” Id.

On October 20, 2017, when the Student was in the third grade, the Student received a District re-evaluation at the request of her teachers as she “continued to struggle academically.” Ex. B, at 1. At that time, the Student received “full time integrated co-teaching services and occupational therapy.” Id. As part of the evaluation, she was administered the Wechsler Individual Achievement Test – 3rd Edition. Id., at 2. She scored in the 2nd percentile in reading skills, .3rd percentile in reading comprehension, 1st percentile in vocabulary, 3rd percentile in decoding, .5th percentile in “oral reading fluency,” 7th percentile in sentence composition, 4th percentile in spelling, 7th percentile in “numerical operations”, and the 8th percentile in “math problem solving.” Ex. B, at ^[2]. Additionally, the Student was administered the Connors-3, upon which the Student exhibited elevated scores in the “inattention” and “executive functioning” domains. Ex. B, at 3. This evaluation made no specific recommendations for the Student. See generally, Ex. B.

Shortly thereafter, on November 6, 2017, the Student’s Individual Education Program [“IEP”] meeting was held. Ex. C, at 21. The Student was classified as a Student with a Learning Disability. Id. The Student was reading at a kindergarten level and was at a first-grade level in mathematics. Id. The results of her October 20, 2017 evaluation were largely incorporated into the IEP.

Id., at 1-2. In her social-emotional present levels of performance, it was noted that the Student was “well-behaved in the classroom and gets along well with others,” though one of her annual goals at that time was to “learn strategies to better cope with and manage feelings of sadness/anxiety” [towards which “little progress” was reported].

Id., at 8-9. Indeed, for nearly all of the annual goals on the November 6, 2017 IEP, “little progress” was reported as having been made.

Id., at 6-15. The Committee on Special Education [“CSE”] recommended a full-time 12:1:1 special education classroom for the Student for ELA and Math, a 12:1:1 special education classroom twice weekly for each of social studies and the sciences, counseling in a group of three once per week for thirty minutes per session, and occupational therapy in a group of 2 twice weekly for thirty minutes per session.

The Student’s next IEP meeting held was on September 24, 2019, when the Student was a [REDACTED]-year-old, fifth-grade student at a public school. Ex. D, at 1, 20. At this time, the Student was performing at a second-grade level in both reading and mathematics.

Id., at 20. In the progress reports for all the Student’s measurable annual goals, little or no progress is reported.

Id., at 5-11. The CSE recommended a full-time 12:1:1 special education classroom for the Student for ELA and Math, a 12:1:1 special education classroom five times weekly for each of social studies and the sciences, counseling in a group of three once per week for thirty minutes per session, and 1:1 occupational therapy twice weekly for thirty minutes per session.

Id., at 12. At the IEP meeting, the Parent was not asked for her input, nor were any new evaluations recommended. Ex. P, at ¶¶ 2, 10. At home around that time, the Student could neither read to herself, nor write answers about a reading passage. Ex P, at ¶ 12. In addition, the Student required a diaper because she would not eliminate during school. Ex. P, at ¶ 13. The IEP notes that the Student’s social and academic struggles caused her “emotional distress” that made it “hard for her to learn.” Ex. P, at ¶ 14. During the period of March 2020 to June 2020, no related services were provided to the Student even though they were mandated by her IEP. Ex. P, at ¶ 17.

The Student’s next IEP meeting was held on June 23, 2020, when the Student was an [REDACTED]-year-old fifth-grade student at a public school. Ex. 8, at 1. At this time, the Student was performing at a third-grade level in both reading and mathematics. Id., at 17. The IEP does not note whether the Student made progress toward any measurable annual goals. Ex. 8, at 6-11. The CSE recommended a full-time 12:1:1 special education classroom for the Student for ELA and Math, a 12:1:1 special education classroom five times weekly for each of social studies and the sciences, group counseling once per week for thirty minutes per session, and group occupational therapy twice weekly for thirty minutes per session. Ex. 8, at 12.

The Student’s next IEP meeting was held on October 21, 2020, when the Student was in the sixthgrade. Ex. E, at 1. At this time, the Student was performing at a third-grade level in both reading and mathematics. Ex. E, at 1, 18. Out of 7 measurable annual goals, progress was only noted in two of them. Ex. E, at 6-11. The CSE recommended a full-time 12:1:1 special education classroom for the Student for ELA and Math [8 times per week], a 12:1:1 special education classroom three times weekly for social studies and twice weekly for the sciences, group counseling once per week for thirty minutes per session, and group occupational therapy once weekly for thirty minutes per session. Ex. 8, at 12. As the pandemic was still ongoing, the Student was still in school via remote learning, and “continued to struggle with reading and writing.” Ex. P, at ¶¶ 21-23. The school was “unsuccessful” in getting the Student to engage with remote learning. Ex. P, at ¶ 30. The District did not provide the student with certain mandated related services [counseling] during this time. Ex. P, at ¶ 23-30.

The Student’s next IEP meeting was held on October 18, 2021, when the Student was in seventh grade. Ex. P, at ¶ 31; Ex. F, at 17. At this time, the Student was at a first-grade level in reading, and a second-grade level in Math. Ex. F, at 17. Curiously, the IEP nevertheless notes that the Student “has made significant academic progress throughout her middle school years.” Ex. F, at 5. The IEP does not state whether the Student made progress towards any measurable annual goals. Ex. F, at 6-15. The CSE recommended a full-time 12:1:1 special education classroom for the Student for all subjects [5 times per week for Math and ELA], as well as counseling and occupational therapy. Ex. F, at 18; Ex. P, at ¶. The frequencies of the related services are not noted on the Student’s IEP. Ex. F. Despite the Student’s apparent regression, the District ordered no new evaluations for the Student. Ex. P, at ¶ 32. The Student was further behind than the year before and was “not understanding what was taught.” Ex. P, at ¶ 36. Further, when the Student needed help in the 12:1:1 classroom, the paraprofessional was not always available. Ex. P, at ¶ 35. The Student felt bullied by students and teachers alike: specifically, the paraprofessional in her classroom stated to her that she was, inter alia, “lazy.” Ex. P, at ¶ 43. Despite the Parent’s efforts to halt the bullying, it nevertheless continued, and the Student stopped going to school in January of 2022. Ex. P, at ¶¶ 45-46. The Parent attempted on more than one occasion to obtain the Student’s assignments from the school, stating that it was her intent to homeschool the Student, but the Public School would not give the Parent the Student’s homework assignments and stated that homeschooling was only available for Students with a “physical illness.” Ex. P, at ¶¶ 46-50. The Student did not attend school in January of 2022, but beginning at some point in February of 2022, the Student “struggled to attend school for the rest of the year.” Ex. P, at ¶ 48. The Student did not attend school from September of 2022 to March of 2023, and the Parent requested, but did not receive, home instruction assistance from the Public School. Ex. P, at ¶ 61. The Parent requested, and received authorization for a neuropsychological IEE in February of 2022, which was completed in October-November of 2022. Ex. P, at ¶ 50-57. In January of 2023, the Parent requested a psychiatric IEE so that “the Student’s application for Home Instruction” could be completed. Ex. L.

In October-November of 2022, the Student’s Neuropsychologist diagnosed the Student as mentioned above, namely, with moderate ADHD, moderate, recurrent depressive disorder, moderate generalized anxiety disorder, severe Specific Reading Disorder, severe Specific Learning Disorder with Impairment in Mathematics, and severe Specific Learning Disorder with Impairment in Written Expression. Ex. I, at 1; Ex. O, at ¶ 34. See supra, at 3. The Neuropsychologist recommended, inter alia, placement in a non-public school; a small class size with a small student-to-teacher ratio, and “specialized interventions for the Student’s neuro-cognitive, attentional, and emotional vulnerabilities.” Ex. I, at 8; Ex. O, at ¶ 36. Specifically, the Student was recommended “compensatory services” to compensate for the Student’s “significant gaps” in reading, math, and writing. Ex. I, at 9; Ex. O, at ¶ 36. In reading, the evaluator recommended a “developmental multi-sensory phonics-based intervention program”; in math, an “evidence-based intervention that teaches math skills systematically and developmentally”; and in writing, “direct instruction in effective writing strategies.” Id.; Ex. O, at ¶ 36. Additionally, the Neuropsychologist recommended “treatments for anxiety and depression” as well as classroom accommodations, specialized instruction techniques, and speech-language and occupational therapy. Ex. I, at 9-10; Ex. O, at ¶ 36.

The Student’s next IEP meetings were held in February and May of 2023. Ex. P, at ¶ 62. At this time, the Student was at a second-grade level in reading and math. Id. The IEP incorporates the findings from the Student’s neuropsychological examination in 2022. Ex. G, at 1-3. The CSE recommended an 8:1:1 classroom in a non-public school for the Student three times daily for “academics”, a 12:1:1 classroom for the Student in a non-public school for “electives”, and related services of 1:1 counseling once per week for thirty minutes per session, group occupational therapy once per week for thirty minutes per session, 1:1 specially designed reading once per week for thirty minutes per session, and small group specially designed reading once per week for thirty minutes per session. Ex. G, at 13-14.

In March of 2023, the Student was evaluated by an [REDACTED] coach. Ex. N. On that date, the Student also tested “at an upper second grade level for writing and a third grade level for reading comprehension.” Id. The [REDACTED] Coach recommended, inter alia, “one-on-one tutoring in reading and spelling, particularly using the Orton Gilligham method” for 700 hours, “without an expiration date” for maximal flexibility, at a rate of $150 per hour. Ex. N, at ¶¶ 20-22.

At no time relevant to this litigation did the District provide the Parent with a copy of the Procedural Safeguards notice, nor had any District employee inform the Parent of those procedural rights, “including the two-year statute of limitations.” Ex. P, at ¶¶ 58-59.

CONCLUSIONS OF LAW AND ANALYSIS

This case concerns the Parent’s request for compensatory education for alleged denials of FAPE for four consecutive school years, those being 2019/20, 2020/21, 2021/22, and 2022/23. In response, the District argues, inter alia, that claims of denial of FAPE for school years 2019/20 and 2020/21 are timebarred, or, alternatively, that the District provided the Student with a FAPE for school years 2021/22 and 2022/23.

It is well-settled that a DPC may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” 20 U.S.C. § 1415[b][6][A]. In IDEA due process hearings in New York, school districts have the burden of proof – including the burden of production and burden of persuasion. See NY Educ. Law § 4404[1][c].

A. Determination as to Whether the District’s Statute of Limitations Defense Applies Hinges on Determination of the Date When the Party Knew or Should Have Known of the Claim

The IDEA requires that unless a state establishes a different statute of limitations [“SOL”] period under state law, a party must request a due process hearing within two years of when the party knew or should have known [“KOSHK”] of the alleged action that forms the basis of the complaint; New York has not adopted a different SOL standard. Since an IDEA claim accrues when a parent knew or should have known about the claim, “[d]etermining when a parent knew or should have known is necessarily a fact-specific inquiry.” See 20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; Education Law § 4404[1][a]; 34 C.F.R. § 300.507[a][2]; 34 C.F.R. § 300.511[e]; 8 NYCRR § 200.5[j][1][i]; Somoza v. New York City Dept. of Educ., 538 F.3d 106, 114-15 & n.8 [2d Cir. 2008]; see also K.C. ex rel. J.C.T. v. Chappaqua Cent. Sch. Dist., 2018 WL 4757965, at 14 [S.D.N.Y. 2018].

In 2004, Congress amended 20 U.S.C. §1415[b][6], which essentially mirrored the SOL at §1415[f][3][C] in almost all respects: they both describe a two-year time limit that hinges on the reasonable discovery date; they both provide that any state statute of limitations will override this timeline; and they both incorporate the two exceptions to the statute of limitations set forth in 20 U.S.C. §1415[f][3][D]. Unlike 20 U.S.C. §1415[f][3][C], however, 20 U.S.C. §1415[b][6][B]’s two-year limitations period runs backward instead of forward from the reasonable discovery date. See G.L. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 [3d Cir. 2015].

Courts have resolved this ambiguity by holding that the discovery rule applies. Congress did not intend the IDEA's SOL to be governed by a strict occurrence rule. Both 20 U.S.C. § 1415[b][6][B] and 20 U.S.C. § 1415[f][3][C] include language pegging the limitations period to the date on which the parent or agency “knew or should have known about the alleged action that forms the basis of the complaint,” not the date on which the action occurred. See § 1415[b][6][B], [f][3][C]; see also, Avila v. Spokane Sch. Dist. 81, 852 F.3d 936 [9th Cir. 2107]. If Congress intended a strict occurrence rule, there would have been no need to include the “knew or should have known” language in 20 U.S.C. § 1415[b][6][B] and 20 U.S.C. § 1415[f][3][C]. Id. The SOL begins to run not when the injury has occurred, but when the parent “knew or should have known” of the injury. These dates, of course, can be the same.

The IDEA’s “limitations period functions in a traditional way ... as a filing deadline that runs from the date of reasonable discovery and not act as a cap on a child's remedy for timely-filed claims that happen to date back more than two years before the complaint is filed.” See G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 [3d Cir. 2015]. Should a parent file a timely complaint and liability is proven, “a disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem.” See M.C. v. Central Regional Sch. Dist., 81 F.3d 389 [3d Cir. 1996].

After the District raised the defense of SOL, it was incumbent upon the Parent to assert exceptions to the SOL. See, e.g., Bd. of Educ. of N. Rockland Cent. School Dist., 744 Fed Appx at 10 n.1.

A. The KOSHK Date in This Matter is December 19th, 2022

It is clear from the evidence submitted by both the District and the Parent that the Student was not diagnosed as a child with moderate ADHD, moderate, Recurrent Depressive Disorder, moderate Generalized Anxiety Disorder, severe Specific Reading Disorder, severe Specific Learning Disorder with Impairment in Mathematics, and severe Specific Learning Disorder with Impairment in Written Expression [Ex. I, at 1; Ex. O, at ¶ 34] until the Student’s neuropsychological evaluation in December of 2022. The Parent testified she received the evaluation report on December 19th, 2022, at which point she contacted an advocacy group and requested a psychiatric evaluation and a new IEP meeting from employees at the Student’s then-current placement. Ex. P, at ¶ 51; Ex. M. Thereafter, in the IEP generated after the February and May 2023 meetings, and while the Student’s disability classification remained the same as it had been since the 2019/20 school year, the CSE recommended an 8:1:1 classroom in a non-public school for the Student three times daily for “academics”, a 12:1:1 classroom for the Student in a non-public school for “electives”, and related services of 1:1 counseling once per week for thirty minutes per session, group occupational therapy once per week for thirty minutes per session, 1:1 specially designed reading once per week for thirty minutes per session, and small group specially designed reading once per week for thirty minutes per session. Ex. G, at 13-14. The recommendations on the May 2023 IEP marked a sea change in the Student’s recommended educational program, which, before that time, had remained essentially the same since the 2019/20 school year, even as the Student either failed to make progress or regressed in her education. Exs. D-G.

Federal and State regulations require districts to conduct an evaluation to “gather functional developmental and academic information” to determine disability categories under IDEA and to as to obtain information to enable the student to be “involved in and progress in the general education curriculum.” See 34 CFR 300.304[b][1]; see 8 NYCRR 200.4[b][1]. Although the classification of a Student is not a dispositive indication that the District did not provide him with a special education tailored to the student’s specific needs, the inquiry cannot end there. Specifically dealing with the issue of diagnosis vis-à-vis the KOSHK standard, in K.H. v NY City Dept. of Educ., the Court held that:

“…the IHO and SRO erred in summarily dismissing all of plaintiff's IDEA claims before the 2008-09 school year as time-barred because plaintiff has asserted a timely IDEA claim spanning his entire educational career. Among his claims, plaintiff asserts that the DOE failed to identify, diagnose, and address his learning disabilities. I conclude that this claim did not accrue until 2010, when plaintiff obtained the evaluation from [the Psychologist] that diagnosed him with specific learning disabilities. Until that point, plaintiff could not have been aware of his claim challenging the adequacy of the DOE's prior evaluations. Nor could plaintiff have been aware of his related claim that the DOE, acting on inadequate evaluations, placed him in settings that were inappropriate for his particular needs...” 2014 US Dist LEXIS 108393 [EDNY Aug. 6, 2014, No. 12-CV-1680, ARR, MDG] (emphasis added)

In Draper v. Atlanta Independent School System, 518 F.3d 1275 [11th Cir. 2008], an 11th Circuit case the K.H. Court cited with approval and followed, a man had been placed, in the fourth grade, in a class of students with “mild intellectual disabilities” (emphasis added). Id. Upon receiving a diagnosis in the ninth grade showing that he did not have an intellectual disability, but rather, had a learning disability, the Court found that the claim did not accrue until the man received the new diagnosis, stating that Plaintiff “did not have the critical facts to know that [he] had been injured by this placement” until such time as his new diagnosis was made. See Draper, at 1288.

In following Draper, the K.H. Court went on to state that:

“Here, too, even though K.H.'s mother and grandmother attended IEP meetings and consented to special education placements over the years, plaintiff did not have the ‘critical facts’ to know that he had been injured until he received the evaluation by Dr. Newman in 2010 that called his prior evaluations and placements into question.” Id.

On the facts of this case, I agree with the Draper and K.H. Courts and follow them. Here, there was no way for the Parent to know, until such time as the Student received the new diagnosis in December of 2022, that the placement and educational programs the District had, to that point, furnished the Student were inappropriate, even despite the lack of progress their daughter was making. There was no clear link prior to December of 2022 between the nature of the Student’s learning disability and the appropriateness, or lack thereof, of the Student’s educational program provided by the District. Once the Student received the diagnosis, however, the Parent received the “critical facts” that cast into new light the educational programs her daughter had received in years past, and at that time, knew or should have known that the District had been failing the Student. This is borne out by the District’s actions: after leaving the Student’s educational program largely unchanged throughout the four school years preceding the May 2023 IEP, the Student’s recommended program suddenly changed considerably. Clearly, this was in response to the Student’s new diagnosis, and a clear signal, when coupled with the Student’s almost complete lack of progress over the preceding four years, that the previous program had been “inappropriate for [the Student’s] particular needs.” See Ex. G; K.H. v NY City Dept. of Educ. Simply put, to assert that the Parents knew or should have known about the nature of their claims in school years 2019/20, 2020/21, or even 2021/22 is belied by the evidence, most apparently by the Student’s neuropsychological evaluation, it’s new and comprehensive diagnosis, and the change it wrought in the Student’s recommended program subsequent to that evaluation. Accordingly, I find that the KOSHK date in this matter is December 19, 2022, or, that date when the Parent first was made aware of the results of her daughter’s neuropsychological evaluation and, at that time, finally obtained the “critical facts” necessary for her to know that the Student’s educational program was in fact inappropriate for the needs of the Student.

B. Exceptions to the Statute of Limitations Rule Apply Here

Even assuming, arguendo, that the Parent’s claim accrued more than two years prior to the filing of the DPC, 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. 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.

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.” 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]. Case law interpreting the “withholding of information” exception to the statute of limitations has found that the exception applies only to the requirement that parents be provided with certain procedural safeguards required under the IDEA. See D.K. v. Abington Sch. Dist., 696 F.3d 233, 246 [3d Cir. 2012]; Avila v. Spokane Sch. Dist. 81, 2014 WL 5585349, at *8 [E.D. Wash. Nov. 3, 2014]; R.B., 2011 WL 4375694, at * 6; 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, 945 [W.D. Tex. 2008]; Evan H. v. UnionvilleChadds Ford Sch. Dist., 2008 WL 4791634, at *7 [E.D. Pa. Nov. 4, 2008]. Such safeguards include the requirement to provide parents with prior written notice and procedural safeguards notice containing, among other things, information about requesting an impartial hearing. See 20 U.S.C. § 1415[b][3], [d]; 34 CFR 300.503, 300.504; 8 NYCRR 200.5[a], [f]. Under the IDEA and federal and State regulation, a district must provide parents with a copy of a procedural safeguards notice annually, as well as: upon initial referral or parental request for evaluation; the first occurrence of the filing of a due process complaint; and upon parental request. 20 U.S.C. § 1415[d][1][A]; 34 CFR 300.504[a]; 8 NYCRR 200.5[f][3]. However, if a parent is aware of his or her rights in developing a student's educational program, it has been held that the failure to provide the procedural safeguards does not under all circumstances prevent the parent from requesting an impartial hearing. See R.B., 2011 WL 4375694, at *7; Richard R., 567 F. Supp. 2d at 944-45.

The District’s motion to dismiss avers that the Parent was supplied with the procedural safeguards notices with the prior written notices included in the record. The prior written notices the District has included in the record, however, include only instructions to obtain a physical copy of the procedural safeguards notices, but do not include physical copy of the notices themselves. Ex. 1, 4, 9, 11, 14, 16. The Parent’s response indicates that, in order to satisfy the IDEA and its implementing regulations, a physical copy of the procedural safeguards must be provided to the Parent of the student annually. See generally, Ex. AA.

A review of the case law in the several Circuits reveals nothing squarely addressing this issue, that being, whether a LEA must deliver a physical copy of the procedural safeguards notice to the Parent or whether, as the District avers, it is enough for the District to provide instructions on how to obtain them. In such a situation, we must defer to the statute and the plain language therein. 20 USC § 1415[d][1][A] provides that “[a] copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents only 1 time a year.” 20 USC § 1415[d][1][A]. Under 20 USC § 1415[c], however, entitled “Notification requirements,” the statute provides that “[t]he [prior written notice]…shall include…a statement that the parents of a child with a disability have protection under the procedural safeguards of this part…and…the means by which a copy of a description of the procedural safeguards can be obtained.” 20 USC § 1415[c][1][C].

In commentary accompanying the final regulations on the implementation of these sections of the Statute, in 2006, the Department of Education stated that:

Section 300.504(b), incorporates section 615(d)(1)(B) of the Act, and permits, but does not require, a public agency to post a current copy of the procedural safeguards notice on its Web site, if one exists. The public agency would not meet its obligation in § 300.504(a) by simply directing a parent to the Web site. Rather, a public agency must still offer parents a printed copy of the procedural safeguards notice. 71 FR 46540, 46693 (emphasis added).

A proper reading of the statute, then, especially in light of the commentary accompanying its implementing regulations, is that an LEA must, once per year, assure that each Parent of a Student covered by the Act receives a physical copy of the procedural safeguards notice, but that an LEA satisfies its obligations under 20 USC § 1415[c][1][C] by merely providing instructions on how to obtain a copy of such procedural safeguards amid the other information required in the prior written notice. Compare 20 USC § 1415[d][1] with 20 USC § 1415[c][1].

Here, the Parent testified that she never received a copy of the procedural safeguards notice. Specifically, the Parent stated that “[t]he NYC DOE has also not provided me a copy of the Procedural Safeguards Notice, which sets forth rights for parents of children with disabilities from ages 3-21” and that “[h]ad I been made aware by NYC DOE of the two-year statute of limitations on claims under IDEA, I would have filed a request for an impartial hearing to decide Noelani’s claims earlier.” Ex. P, at ¶¶ 58,

60. The District let this statement pass uncontroverted at the Hearing, despite taking the opportunity to cross the Parent. See Hearing Tr., at 77-78. Nor is there any information in this record to suggest that the Parent was sufficiently “aware of his or her rights in developing a student's educational program” at some prior date that would excuse the District’s failure to provide the Parent with a copy of the Procedural Safeguards. See R.B., 2011 WL 4375694. Thus, in accordance with the above reading of the statute and the commentary of the IDEA’s implementing regulations cited above, and in light of the facts above, I find that, on these facts, the District “withheld information” from the Parent sufficient to warrant the application of the “withholding information” exception to the two-year statute of limitations by failing to deliver the Parent a copy of the procedural safeguards notice, despite ample opportunities in which to do so.

C. The District’s Motion to Dismiss Must Be Denied

In their motion to dismiss, the District argues, in sum and substance, that claims for school years 2019/20 and 2020/21 should be dismissed as time-barred, as the claims for those years had accrued contemporaneously with the school years themselves. The Parent argues, in sum and substance, that the KOSHK date for the claims was not until after the neuropsychological evaluation in 2022.

In light of my finding above that the KOSHK date is December 19, 2022, and, alternatively, that application of the “withholding information” exception applies to the instant circumstances, as the Parent’s DPC in this matter was filed in June of 2023, the Parent’s claims on all years alleged were filed well within the applicable statute of limitations. Accordingly, the District’s motion to dismiss is denied.

D. The Parent’s Claims for Compensatory Education

In her DPC, the Parent requests, inter alia, 700 hours of compensatory individual special education instruction utilizing the [REDACTED] methodology, transportation to and from the [REDACTED] services, and compensatory counseling and occupational therapy. For the reasons that follow, I find that the Student is entitled to her requests.

1. FAPE

The IDEA [20 U.S.C. §§ 1400-1482] contemplates two specific purposes 1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and 2) to ensure that the rights of students with disabilities and parents of such students are protected. See 20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]. The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85. Here, the Parent is not seeking the remedy of tuition reimbursement. Ex. A. Thus, the DOE has the burden of proof on all issues in dispute.

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (See 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. See 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]. A FAPE can be said to be offered to a student when a) the board of education complies with the procedural requirements set forth in the IDEA, and b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]] “[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” See Walczak v. Fla. Union Free Sch. Dist.,^[142] F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]. The Supreme Court ruled that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” See Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S., 137 S. Ct. 988, 999 [2017].

Although school districts must comply with the checklist of procedures for developing a student's IEP and indicated that “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,” (R.E., 694 F.3d at 190-91) the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA. See M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]. Under the IDEA, if procedural violations are alleged, an IHO may find that a student did not receive a FAPE only if the procedural inadequacies a) impeded the student's right to a FAPE, b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.

An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415[f][3][E][i]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,” (Rowley, 458 U.S. at 203) but the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. Indeed, “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,” (Endrew F., 137 S. Ct. at 1001) and an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents,” is what is required. See Walczak, 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132. An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), and outlines annual goals specifically designed to address the Student’s needs resulting from her disability in order to make progress in the general education curriculum (34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]) through the use of appropriate special education services. See 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]. Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” See Endrew F., 137 S. Ct. at 1000.

As of the IEP meeting on September 24, 2019, the Student was performing at a second-grade level in reading and math. Ex. D. As of the IEP meeting on October 21, 2020, the Student was performing at a third-grade level in both reading and math. Ex. E. As of the IEP meeting on October 18, 2021, the Student was performing at a first-grade level in reading and a second-grade level in math. Ex. F. A teacher’s report dated January 1, 2022 stated that the Student was performing at a kindergarten level in reading, and a first-grade level in math. Ex. 16. Finally, similar to the September 24, 2019 IEP meeting, the Student was performing at a second-grade level in reading and math at the March 4, 2023 IEP meeting. Ex. G. Despite this lack of progress [and even regression] year over year, the program offered the Student remained essentially the same from the 2019 IEP until the 2023 IEP: a 12:1:1 special education class in ELA, Math, and electives; 1 or 2 sessions of occupational therapy (at thirty minutes per session) in either an individual or group setting weekly; and group counseling once per week for thirty minutes. Exs. D-G.

The District has failed to place any meaningful progress report into evidence. Indeed, the District has the responsibility to report on a Student’s progress towards meeting IEP goals, which would be necessary to show that the Student is responding to the recommended interventions, programs, supports, and services. 20 USC § 1414[d][1][A][III]. The September 24, 2019 IEP indicates little to no progress across all measurable annual goals. Ex. D. The October 21, 2020 IEP reports progress in only 2 of 7 areas; otherwise, nothing is reported. Ex. E. The October 18, 2021 IEP reports nothing in terms of progress on any measurable annual goals. Ex. F.

As a whole, the District’s frequent failure to report progress on the IEPs; its failure to appropriately evaluate the Student even though it was clear that the Student was struggling; the failure to provide the Student with the supports, services, and education, required under IDEA, regardless of Student’s classification; and years of indications that Student has made little or no progress—or wholesale failure to assess progress and/or document the same—all clearly point to the fact that the District failed to provide Student with a FAPE for the 2019/20, 2020/21, 2021/22, and 2022/23 school years. On a substantive basis, the program the District implemented for the Student was demonstrably unable to result in any meaningful benefit to the Student, and further, the totality of the procedural inadequacies articulated [a] impeded the Student’s right to a FAPE, [b] significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, and [c] caused a deprivation of educational benefits. See 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.

2. Student’s Claims for Compensatory Education

a. 700 Hours of [REDACTED] Instruction

In her DPC, the Parent requests 700 hours of compensatory individual special education instruction utilizing the [REDACTED] methodology. For the reasons that follow, the Student is entitled to her request.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]), with the purpose of providing an appropriate remedy for a denial of a FAPE. See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; Newington, 546 F.3d at 123. In fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and 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.” See Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005]. An award of compensatory education should be designed so as to “appropriately address…the problems with the IEP,” (Newington, 546 F.3d at 123) “place children in the position they would have been in but for the violation of the Act,” (Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008]) “replace…educational services the child should have received in the first place” (Reid, 401 F.3d at 518) and “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Id.

New York State Education Law § 4404[1][c] places the ultimate burden of production and persuasion on the District to express its views as part of the evidentiary record on the issue of the appropriate compensatory education which would place the Student in the position, the student would have been but for the denial of a FAPE. See E. Lyme, 790 F.3d at 457; Reid, 401 F.3d at 524. Despite ample opportunity to make relevant disclosures, call relevant witnesses, cross-examine the Parent’s witnesses in ways relevant to an award of compensatory education, and make statements regarding the Parent’s requested award of compensatory education in closing, the District appears to have relied on the exhibits it put forth in order to meet its burden. See generally, Hearing Tr. Since “[t]he District did not alternatively assert any arguments to provide evidentiary support on the issue of what, if any, compensatory education award would be appropriate to remedy its denial of FAPE, despite having a full and fair opportunity to be heard at the impartial hearing,” (Appeal No. 19-056 p.24) the undersigned hearing officer is limited to the record before him and the uncontroverted testimony of the Parents’ witnesses.

Although the District did not present testamentary or documentary evidence, they focused on categorizing the Parent’s claims as a unilateral placement under Burlington/Carter, and questioned the appropriateness of “placement” of the Student with an [REDACTED] and whether there was any obligation to pay for the same. Hearing Tr., at 55, 66-78. However, the District’s use of Burlington/Carter analysis is misplaced in the instant claims for compensatory education. In fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and 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.” See Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005]. Here, there is no “placement” as such: the Parent sent the Student to the Neuropsychologist to determine the full breadth and scope of Student’s disabilities and concomitant needs, and the Parent sought an evaluation of the Student from the [REDACTED] Coach in order to fashion a plan that would allow the Student to attain education at something approaching grade level. Ex. J; Ex. N, at ¶¶ 20-25; Ex. O, at ¶ 36.

Further, the Parent supplied ample evidence of the necessity for 700 hours through the testimony of the [REDACTED] Coach. Hearing Tr., at 67-68. When asked how she came up with 700 hours for [REDACTED] coaching, the [REDACTED] Coach responded as follows:

“I based that on several different factors. One was my own personal evaluation of [the Student] on [March 7, 2023] when [the Student] was in 7th grade and tested at a 2nd to 3rd grade level across the board academically. It was also based on having thoroughly reviewed her neuropsychological evaluation from 2022 and her IEP from 2023. And it’s [also] based on having done extensive work with Students very similar to her who have a learning disability in reading, writing, and math, along with ADHD, and who are functioning below grade level as she is. It’s really based on all these factors that I came up with the recommendation of an average of roughly 8 to 10 hours per week over approximately a two-year school time period for a total of 700 hours.” Hearing Tr., at 67-68.

I find the [REDACTED] Coach’s multi-factor analysis persuasive and I agree, not least because the District did nothing to controvert this analysis at the Hearing that 700 hours of [REDACTED] tutoring is an appropriate compensatory remedy. See generally, Hearing Tr. Further, I find that Student’s needs are significant and require substantial intervention both in quantity and quality. The Student is significantly behind grade level in education, and both of the Student’s evaluators recommended significant interventions. See generally, Exs. N, O. Given that the Neuropsychologist recommended significant compensatory services (Ex. O, at ¶ 36), that the Student’s [REDACTED] Coach recommended 700 hours of individual special education instruction utilizing the [REDACTED] methodology, and that the District dis not present evidence to challenge the program recommended by the Parent’s experts, I find that the 700 hours of individual special education instruction utilizing the [REDACTED] methodology is an appropriate and warranted remedy to begin to correct the District’s longstanding denial of FAPE. As the Student’s learning disabilities will present ongoing needs and challenges during her educational career, I further decline to set a time limit on when these hours may be used.

b. Compensatory Counseling and Occupational Therapy Services Parent also requests compensatory counseling and occupational therapy. For the reasons that follow, the Student is entitled to her request.

An award of compensatory education should be designed to “place children in the position they would have been in but for the violation of the Act,” (Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289) “replace…educational services the child should have received in the first place” (Reid, 401 F.3d at 518) and “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Id.

At the Hearing, the Parent averred that, during the period of March 2020 to June 2020, no related services were provided to the Student even though they were mandated by her IEP, and that the District did not provide the Student with counseling services at all during the 2020/21 school year. Ex. P, at ¶¶ 17, 30. The District did not controvert these statements at the hearing, except to introduce an Exhibit entitled “Related Service Adaptations for Blended and Remote Learning,” which included, ostensibly, the District’s plan for executing the Student’s related services during the school year 2020/21. Exs. 2, 7. The District, however, called no witnesses and elicited no testimony that would controvert the Parent’s account given above. According to the Supreme Court, “a reviewing court may fairly expect [public] authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” See Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 404 [2017]. Given that the Parent and the Parent’s witnesses were credible, and given that the District did nothing to controvert the above statements and show that the related services were not just planned, but provided, I find that the parent is entitled to compensatory counseling and occupational therapy in recompense for the missed related services in the periods March to June of 2020, and for the 2020/21 school year.

The Student also suffered missed time in school, owing largely to her academic and social struggles, and did not attend school in January of 2022, but beginning at some point in February of 2022, the Student “struggled to attend school for the rest of the year.” Ex. P, at ¶ 48. The Student did not attend school from September of 2022 to March of 2023, and the Parent requested, but did not receive, home instruction assistance from the Student’s previous school. Ex. P, at ¶ 61. In January of 2023, the Parent requested a psychiatric IEE so that “the Student’s application for Home Instruction” could be completed. Ex. L.

As noted above, the District presented neither documentary nor testamentary evidence that meaningfully controverted the Parent’s allegations. Indeed, a “teacher’s report” dated Jamuary 1, 2022 corroborates the Parent’s account that the Student was not attending school at that time. Ex. 16. Further, the Parent’s e-mail to the school [Ex. L] requesting a psychiatric IEE suggests that home instruction had been contemplated for some time.

In V.D. v. New York, 403 F. Supp. 3d 76, 84-85 [E.D.N.Y. 2019], the Eastern District stated that:

“Though the IDEA is silent regarding the provision of special education services to homeschooled students, New York's Education Law § 3602c allows students with disabilities who are educated in home instruction programs to receive special education services provided by their school district of residence. N.Y. Educ. Law § 3602-c[2-c] [McKinney 2008]; 71 Fed. Reg. 46,540, 46,594 [Aug. 14, 2006]; see also Matthews Decl., Ex. E, ECF No. 14-5 [‘DeLorenzo Memo’]. In order to receive these services, a parent must first complete an Individualized Home Instruction Plan ["IHIP"] and make a written request for services to the local school district's board of education. See DeLorenzo Memo 1-2. Then, in collaboration with the Committee on Special Education, an Individualized Education Services Plan [‘IESP’] is [*85] developed for a homeschooled child, which specifies the services that must be provided by the district. Id. at 2. Such services must be provided to homeschooled students "on an equitable basis as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools within the district.” Id.

8 NYCRR § 100.10 provides that “parents or other persons in parental relation to a student of compulsory school attendance age shall annually provide written notice to the superintendent of schools of their school district of residence of their intention to educate their child at home by July 1st of each school year.” See 8 NYCRR § 100.10[b][1]. This section further provides that “parents who determine to commence home instruction after the start of the school year…shall provide written notice of their intention to educate their child at home within 14 days following the commencement of home instruction within the school district.” See 8 NYCRR § 100.10[b][2]. Finally, this section provides that “[w]ithin 10 business days of the receipt of the notice of intention to instruct at home, the school district shall send to the parents a copy of this section 100.10 of the Regulations of the Commissioner of Education and a form on which to submit an individualized home instruction plan [IHIP] for each child of compulsory attendance age who is to be taught at home.” See 8 NYCRR § 100.10[c][1].

In the instant case, the Parent testified that, after the Student refused to go to school in January of 2022, she “asked the school many times for homework assignments and classroom work to be sent home until we could find a school that [worked],” but that the school refused to do so. Ex. P, at ¶ 47. Further, the Parent testified that she had “asked the District to provide home instruction since January 2022. Ex. P, at ¶ 61. Finally, the Parent had sent an e-mail requesting an IEE so that the “home instruction application might be commenced.” Ex. L. In light of the circumstances of this case, I find that these requests, uncontroverted by the District, satisfied the Parent’s obligations under 8 NYCRR § 100.10[b][2] and sufficed to trigger the District’s obligations under 8 NYCRR § 100.10[b][2]. Further, I find that the District’s failure to provide additional assistance to the Parent in order to generate either a workable IHIP or IESP does not remove the District’s obligation to provide equitable services to the child under Ny Ed. Law § 3602-c[2-c] during the above periods totaling 10 months, those being January to February of 2022 and September 2022 to March of 2023.

Accordingly, I find that the parent is entitled to compensatory counseling and occupational therapy in recompense for the missed related services in the periods January to February of 2022 and September 2022 to March of 2023.

c. Transportation

The Student requests, in their DPC, transportation to and from compensatory and related services. Ex. A, at 12. New York Educ. Law § 4401 provides that “‘[s]pecial education’ means specially designed instruction which includes special services or programs as delineated in subdivision two of this section, and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability.” Accordingly, since the Education Law dictates that transportation is meant to be included in the provision of any special education services, I find that the Student is entitled to transportation to and from the compensatory and related services awarded below.

E. The Parent’s Claim for a Speech Language IEE

The Parent seeks a speech and language IEE. Ex. A, at 12. For the reasons that follow, I find that the Parent is entitled to a speech language IEE based upon my discretionary authority pursuant to 8 NYCRR § 200.5[g][2] despite the fact that she is not entitled to the IEE based upon an analysis of 8 NYCRR § 200.5[g][1].

If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an IEE at public expense. See 8 NYCRR § 200.5[g][1]. If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either 1) ensure that an IEE is provided at public expense; or 2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv] (emphasis added). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although the district will not be required to provide it at public expense. See 34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]; see also A.H. v. Colonial Sch. Dist., 2019 WL 3021232, at *3 [3d Cir. July 10, 2019]. Additionally, both federal and State regulations provide that “[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees.” 34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1].

In the instant matter, Parent is not entitled to an IEE according to the above provisions as the Parent did not disagree with any evaluation completed by the District. Accordingly, I am constrained to find that, as a matter of law, the Parents are not entitled to a speech and language IEE based upon 8 NYCRR § 200.5[g][1]. That said, given the Student’s Neuropsychologist’s statements that the Student struggles with, inter alia, receptive and expressive language along with moderate generalized anxiety and depression, given the evaluator’s recommendations for both a speech/language and a psychiatric IEE, and given that the District never evaluated the Student in these areas of obvious need, I find that, pursuant to my discretionary authority and 8 NYCRR § 200.5[g][2], both speech/language and psychiatric IEEs are warranted in order to properly determine the educational needs of the Student.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

1. The District shall fund 700 hours of private, individual special education instruction using an [REDACTED] methodology at a provider of Parent’s choosing at a rate of $150 per hour; the time limit of this award is limited only by the Student’s eligibility for special education services in the State of New York, and the recipient of the award on behalf of Student may include Parent, Grandparent, guardian, future guardian, or Student;

2. The District shall fund 79 hours of individual occupational therapy at the prevailing market rate with a provider of Parent’s choosing; the award may be used for up to four [4] years from the date of this Order, and the recipient of the award on behalf of Student may include Parent, Grandparent, guardian, future guardian, or Student;

3. The District shall fund 50 hours of individual counseling services at the prevailing market rate with a provider of Parent’s choosing; the award may be used for up to four [2] years from the date of this Order, and the recipient of the award on behalf of Student may include Parent, Grandparent, guardian, future guardian, or Student;

4. The Office of Student Transport [OTP] shall contact the Parents to arrange and implement appropriate transportation for the Student to and from the above Ordered compensatory and related services for the duration of the award.

5. A speech language IEE shall be completed at a reasonable market rate with a provider of the Parent’s choosing. Within 35 days of receipt by the DOE of an invoice for services rendered, the DOE shall directly fund the provider for the IEE.

6. A psychiatric IEE of the student shall be completed at a reasonable market rate with a provider of the parent’s choosing. Within 35 days of receipt by the DOE of an invoice for services rendered, the DOE shall directly fund the provider for the IEE.

7. After the IEEs are completed, the CSE shall reconvene within 30 days and consider the findings of these IEEs in crafting goals and recommendations for the student.

SO ORDERED.

DATED: 10/11/2023

Paul DeSena

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 – REDACTION IDENTIFICATION PAGE

Term Used In FOFD [REDACTED] Information

Student [REDACTED]

Parent/Guardian [REDACTED]

Parent Attorney/Representative [REDACTED]

District Attorney/Representative [REDACTED]

Public School [REDACTED]

NYS Approved School [REDACTED]

District [REDACTED]

[REDACTED] Coach, [REDACTED] [REDACTED]

Evaluator

Neuropsychological [REDACTED]

Evaluator/Neuropsychologist

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Impartial Hearing Request 6/28/2023 13 pages

B. Psychological Update 10/20/2017 3 pages

C. Individualized Education Program for [REDACTED] 11/6/2017 23 pages

D. Individualized Education Program for [REDACTED] 9/24/2019 20 pages

E. Individualized Education Program for [REDACTED] 10/21/2020 20 pages

F. Individualized Education Program for [REDACTED] 10/18/2021 19 pages

G. Individualized Education Program for [REDACTED] 10/2022- 5/4/2023 21 pages

I. Neuropsychological Evaluation of [REDACTED] 11/2022 21 pages

J. Letter from [REDACTED] 3/10/2023 1 page

K. Email from [REDACTED] to [REDACTED] 2/10/2022 1 page

L. Email from [REDACTED] to [REDACTED] 1/11/2023 1 page

M. Email from [REDACTED] to [REDACTED] 1/17/2023 1 page

N. Affidavit of [REDACTED] 8/23/2023 3 pages

O. Affidavit of [REDACTED] 8/30/2023 17 pages

P. Affidavit of [REDACTED] 8/31/2023 16 pages

DOE EXHIBITS

1. Prior Written Notice Related Service Adaptations for Blended and Remote 10/29/2020 9 pages DOE

2. Learning – Counseling Services 10/27/2020 3 pages DOE

3. Individualized Education Program 10/21/2020 20 pages DOE

4. Prior Written Notice Program Adaptations Document for Blended and Remote 9/25/2020 3 pages DOE

5. Learning – Special Classes 9/23/2020 4 pages DOE

6. Prior Written Notice Related Service Adaptations for Blended and Remote 9/23/2020 9 pages DOE

7. Learning – Occupational Therapy 9/23/2020 3 pages DOE

8. Individualized Education Program 6/23/2020 20 pages DOE

9. Prior Written Notice 12/11/2019 4 pages DOE

10. Meeting Notice Committee on Special Education 11/13/2019 3 pages DOE

11. Prior Written Notice 10/11/2019 4 pages DOE

12. Individualized Education Program 9/24/2019 20 pages DOE

14. Psychological Update 10/23/2017 3 pages DOE

15. Prior Written Notice 4/26/2022 5 pages DOE

16. Teacher’s Report 01/01/2022 1 page DOE

17. Prior Written Notice 12/21/2021 9 pages DOE

18. Individualized Educational Service Plan 10/18/2021 18 pages DOE

19. Occupational and Physical Therapy Report 10/02/2021 1 page DOE

IHO EXHIBITS

AA. Motion Practice and Accompanying Disclosures 08/2023 260 pages

Footnotes

[1] A detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

[2] A detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision. It should be noted that District Exhibits 3, 12, and 18 are identical to Parent Exhibits E, F, and P. Only the Parent’s copy of these exhibits is in the Certified Hearing Record, though all proffered District Exhibits were admitted with the exception of exhibits 13, 14, and 20.

[142] F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379. School districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132), but are required to provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’” See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit,” (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001) and designed to be provided in the least restrictive environment [hereinafter, “LRE”]. See 20 U.S.C. § 1412[a][5][A]; Consistent with Rowley, I find that [a] the District failed to comply with the procedural requirements set forth in the IDEA, and [b] all of the IEPs at issue that were developed by the CSE through the IDEA's procedures were not reasonably calculated to enable the Student to receive educational benefits. See Appeal No. 22-025. I also find that the IEPs did not “aim to enable the child to make progress.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S., 137 S. Ct. 988, 999 [2017].