New York City Department of Education, Impartial Hearing Decision

FINDING OF FACT AND DECISION Case Number: Student’s Name: Hearing Requested By: Hearing Officer: ARCD:11/12/20 180526 Parents Martin J. Kehoe IIT, Esq.

Introduction This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (HO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parents as Parents and the student will be referred to as Student. This is a “reimbursement” case that springs from a “Child Find” analysis. The Parents filed a complaint notice (HO #3), dated December 14, 2018 and an amended complaint notice (Ex. A), dated March 19, 2019. A hearing was held over multiple days including May 29, 2019; August 6, 2019; September 11, 2019; November 6, 2019; February 26, 2020; March 4, 2020; March 25; April 2, 2020; May 15, 2020; and May 22, 2020. At first, the case was under investigation for settlement (T. 13, 22 — 23), and was then approved for settlement (T. 27, 37), but ultimately the parties came to an impasse. The Parents decided to present a case in March 2020 (T. 37, 48). Overview I first look at this record for support of the allegation that the District overlooked “clear signs of disability”. I find that they did, and were therefore in violation of their Child Find obligation to the Student. Application of a Student with a Disability Appeal No. 12-138 (citing A.P. Woodstock Bd. OfEduc., 572 F.Supp. 2d 221,225 (D. Conn)). I will then move toward a reimbursement analysis. Here the District conceds the Prong I failure to have a program available at the beginning of the school year, so I find for the Parent, then move on to address the Parents’ Prong II burden and finally a word about the equities (Prong ITI). In each instance I find for the Parents and ultimately direct tuition reimbursement/direct payment for the unilateral placements made by the Parents. I also award retmbursement for the cost of the Independent Educational Evaluation (IEE) obtained by the Parent and provided to the District. Parents’ Position In the amended complaint notice (Ex. A) the Parents assert: 1. The District failed their Child Find obligations; 2. The District failed to hold a Committee on Special Education (CSE) meeting in the required time period. The Parents requested a CSE meeting on May 1, 2018 and the meeting did not occur until October 22, 2018; 3. The District failed to develop an Individualized Educational Program (IEP) for the Student by the beginning of the 2018-2019 school year; and 4. The District failed to implement the October 22, 2018 IEP by not arranging for an appropriate residential placement for the Student (Ex. A). The Parents request funding for 1) the Private Residential Treatment Center from July 2018—March 18, 2019, and 2) for the Student’s placement in the Private School from March 25, 2019 until the end of the 2018-2019 school year. They also seek reimbursement/direct payment for the cost of an Independent Educational Evaluation.

District’s Position It is the District’s position that they provided assistance to address the Student’s academic and emotional needs, that the Student attended the District Schools for a short period of time, and it was not a long enough time for them to have to meet Child Find obligations. The District admitted that they did not provide a timely placement (T. 57) but they argue that the Parents are not entitled to reimbursement for the entire school year because the Student was not classified as a Student with a disability until October 22, 2018. The District claims that the CSE meeting was timely as it was held within 60 days of receiving parental consent to evaluate, according to regulations 200.4 (b). Therefore, they contend the Parents are not entitled to reimbursement for the entire 12-month 2018-2019 school year. The District also makes the assertion that the Parents did not cooperate with the District. They give as examples, that the Parent did not reveal the Student was suicidal in e-mails, (T. 179, 187, 189)!, never responded to the Assistant Principal of the Second High School’, p This assertion is from the District brief IHO #2 p. 3, yet oddly, upon review of the transcript pages, the point is misleading because, to the contrary, the Parent had regular communications with the District personell of her urgent concems for her son, the Student. The Parent testified that she told the school that she was concerned that the Student was at risk for suicide (T. 189-191) 2 This was a volatile time for the family as the Student’s dangerous behaviours were escalating and the Second School was not prepared with a seat for the Student. The mother testified that on the day of the medical transfer, she and the Student went to the Second High School, but the school staff said that they didn’t have room for him, so the Parent went back to the District office. She said the District called the school and told them they had to accept the Student (T. 191 — 195}. Because of her negative experience that day, she did not think that she could discuss the Student’s problems with the Second High School (T. 192, 194). The Assistant Principal at the Second High School testified that the Student only attended the school for about two — three days (T. 68). She said the Student left the school after a disciplinary incident (T. 69). The incident involved him lighting a piece of paper on fire that was sticking out of another student’s backpack (T. 76). She did not know if he was suspended (T. 77). The Assistant Principal testified that the Parents informed the schoo! that they were withdrawing the Student and placing him in another program (T. 69). She assumed that they spoke with the attendance secretary (T. 86). The Parent sent the Assistant Principal an email dated May 1, 2018 asking to have the Student evaluated for an [EP (T. 70).

and the Parents did not sign consent for the District to evaluate the Student until September 13, 2018°. Issues The central issue in this dispute is whether the District properly discharged their Child Find obligations. A district's Child Find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability” (LS., 826 F. Supp. 2d at 660; New Paltz. 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ. v. Cari Rae $., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001] As I find for the Parents on this issue, the numerous defenses raised regarding the [EP process and the equities that may or may not have a bearing on this case effectively are subsumed in my finding. Accordingly, | move directly from the Child Find analysis to the Parents’ presentation regarding their Prong II burden to demonstrate the appropriateness of the unilateral placement. Regarding each placement I find that the Parent carried their burden and I then move on to a Prong Hi balancing of equities. In this case I find no bad intention on the part of either party and I do not reduce or deny reimbursement. Condcerning the cost of the [EE, I see no showing that the District sought to challenge the demand found in the complaint notice or the amended complaint noitice and on that basis alone I find the Parents’ right to reimbursement. > This is following months of disagreement over whether the Student was enrolled in the public schools at all. My decision that child find was violated as of December 2017 renders this a moot point insofar as the District had an obligation to begin the process long before September 2018

Child Find Legal Underpinnings The purpose of the "child find” provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446 F.3d 335, 347- 48 [2d Cir. 2006]; E.T. v. Bd. of Educ., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; AP. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], affd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3]{A]; 34 CFR 300.111; 8 NYCRR 200.2{a][1], [7]). The IDEA places an ongoing, affirmative duty on State and local educational agencies to identify, locate, and evaluate students with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a]{3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245: E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412{a][10][AJ fii]; see also 8 _ NYCRR 200.2{a][J], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2{a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; JS. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.11 1[aJ[1]; 8 NYCRR 200.2fa][1], [7]). Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"); see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 1 1-094), SRO 18-001 Student History The evaluator reported: “[The Student] is a bright young man who has many strengths, including a good sense of humor, an engaging personality, and an athletic propensity.” The Student now has a disability classification of emotional disturbance (Ex. 3) which is not in dispute. The Student has diagnoses of attention deficit hyperactivity disorder (ADHD), combined presentation; cyclothymic disorder, with anxious distress; cannabis use disorder, moderate; parent — child relational problem; and high expressed emotion level within family. The Student struggles significantly with executive functioning abilities and with slow processing speed (Ex. C). On the Weschler Intelligence Scale for Children — Fifth Edition (WISC-V), the Student had a verbal comprehension index score in the above average range, a visual-spatial index score in the above average range, and a fluid reasoning score in the average range; a working memory index score in the average range; and a processing speed index score in the below average range (Ex. C). On the Weschler Individual Achievement Test-third edition (WIAT-IID, the Student scored in the above average range on the majority of the reading subtests; he scored in the above average range on all of the writing subtests, and he scored in the average range on most of the math tests, and on a general subtest in math, the Student scored in the above average range (Ex. C). Background of the Case The Student’s Parent (Mother) testified by affidavit about the Student’s difficulties when ~ he first enrolled in the First High School, starting in September 2017. The Student had joined the soccer team and was facing a rigorous academic year. According to the Parent, “As soon as classes began, [the Student] became extremely anxious and depressed, was overwhelmed, and unable to focus in classes, and stay on task with homework assignments. He fell behind academically...” She said that same month the Student began to see a private therapist. (Ex. Q) The Parent continued that she met with the Assistant Principal of Guidance at the First High School in November 2017. She said that the Assistant Principal recommended that she contact an organizational tutor, and gave her the name of an agency that provides this service. The Parent stated that she scheduled a session for the Student, but it was not helpful (Ex. Q). The Parent also affied that she emailed the Student’s Guidance Counselor [the School Counselor] about the Student’s difficulties. This is consistent with the testimony of the School Counselor who worked with the Student from September 2017-March 2018 (T. 128). The School Counselor stated that they discussed the Student’s “academic performance, his social-emotional needs” (T. 134). She said the Student had anxiety because he was not doing well in math and biology (T. 134). The Parent also said one of the Student’s teachers shared concerns about the Student with the School Counselor. The School Counselor invited the Parents to meet with her on December 20, 2017; the Student also attended the meeting. At the meeting they began the process of a medical transfer to the Second District High School. The School Counselor recommended that the Student finish the first semester at the First High School. The Student was assigned a different math teacher in the Spring semester and an additional free period. At first, the Student seemed to enjoy school according to the Parent; however, she testified he “again experienced a severe depression and anxiety soon into the Spring semester.” (Ex. Q) The Parent testified that when she spoke to the Student’s Guidance Counselor in February 2018, the cousnselor suggested that the Student start taking an antidepressant. When asked the School Counselor replied that she did not refer the Student for an IEP because he was an incoming freshman and many freshmen have a time of adjustment. She said it would have been too early to refer him. She also stated that she thinks students learn best in the least restrictive environment, and that she knew that the Student had the support of an outside therapist (T. 141 — 142). She said that the Student shared his struggles in their meetings (T. 145). She communicated with the Student’s therapist and discussed school performance (T. 146, 148, 149). She said the Teacher’s concerns were that the Student was not performing well academically and that when the Student came into the room, he would put his head down (T. 154). As the deferred interventions were being considered, the Parent again relied upon the the Student’s private therapist who recommended that the Student see a child psychiatrist. She followed that advise, and that relationship began in February 2018. The Psychiatrist diagnosed the Student with severe depression and anxiety, began aggressive therapy and prescribed an antidepressant. See Psychiatrist’s June 8, 2019 letter (EX. D). The Medical Transfer to the Second High School The Parent testified that because of the Student’s psychiatric problems, the District followed through with medical transfer that was first discussed in December 2017 (Ex. Q, # 13), and the Student went to the Second High School on March 26, 2018. He began attending the Second High Schoo! on March 27, 2018, but on March 29, 2018, the Parent said she received a phone call from the Assistant Principal about the incident with the Student setting fire to a piece of paper in a another student’s backpack. (Ex. Q #22) Suicide Watch and Transfer to the Wilderness Program The Parent said she contacted the psychiatrist who evaluated the Student at home the following day and he “recommended that he receive 24-hour full-time psychiatric care and be placed on suicide watch.” She said that he also recommended that the Parents contact an educational and therapeutic consulting firm. A representative of the consulting firm recommended that the Student be placed in a wilderness program, and afterwards in a residential treatment center. The Parent stated that on the same day (April 2, 2018), the Student was admitted to a hospital’s inpatient psychiatric and behavioral health unit. When the Student was discharged from the hospital two days later, he began attending the wilderness program. The Parent testified that she called the Second High School to inform them of the Student’s transfer and requested that when the Student returned that he receive an IEP and that she would share the results of the Student’s psychological testing with the school (Ex. Q). The Parent testified that she received an email from the registrar at the Second High School on April 27, 2018, who told her that the Student needed to be officially discharged from the school because he was not returning that semester. There was some back and forth on this point and presumably this is the basis for the District’s current assertion that there was no “Child Find ‘ violation. I find that this is immaterial because after reviewing the record, the operative time for the Child Find violation was arguably at the December 2017 meeting supra and certainly by the time the transfer to the Second School took place in March. At those times the Student was clearly enrolled in the District and the jurisdiction of the CSE could have been invoked with a simple note to the chairperson. 10

To summarize, during this freshman year at the First School there were interventions: The school offered 1:1 tutoring from the biology teacher, peer tutoring, organizational skills training, meetings with the school social worker, and full time access to the School Guidance Counselor when the Student could meet with her anytime for support (T. 135). These interventions involved the School Teacher, the School Principal, the Student’s Guidance Counselor, advocacy by the Parents, and evaluation and counseling with a Private Therapist, all resulting in a consensus that a medical transfer to the Second Highschool was required. Unfortunately this was delayed until the end of the first semester and then again until a private Psychiatrist became involved. Finally following a significant increase in signs and symptoms of serious medical problems, the Student was transferred to the Second Highschool where he was removed after only a couple of days. Too Little Too Late The the rigors of the First High School experience are captured in the following perspective: “. . . [T]he assistant principal of guidance, always stated that a super-anxious kid was the typical [First Highschool] kid, and this was normal...” (Tr. 178) Asa result, the District was at risk of undestimating cases of Disability. In this case, that is what happened. The multiple documented diagnoses were simply missed by District personell from the First School. The record is repleat with examples of their efforts, good faith and 11 empathy, but they failed to realize the atypicality of the Student, and the impact of the environment of the First School upon his sensibilities. J find that a referral to the CSE was obligatory before the medical transfer in March 2018 and that the failure to evaluate this Student was a Child Find violation. The Parents’ attorney sent a letter to the CSE Chair, dated June 18, 2018, detailing their requests to the District for a CSE meeting and an IEP for the Student, and stating their intention to unilaterally place the Student in the Private Residential Treatment Center and seek tuition reimbursement (Ex. 6). A vocational interview was conducted with the Parent on September 6, 2018 (Ex. 8). The Student’s father signed consent to evaluate on September 13, 2018 (Ex. 7). A CSE meeting was held on October 22, 2018 (Ex. 3, Ex. 4, Ex. 5). The District sent prior written notice of recommendation to the Parents on or about November 15, 2018 recommending placement in a New York State Approved Non-Public day school; a special class of 12:1:1; group and individual counseling (Ex. 1). The IEP noted the Parents’ concerns: “Parents are concerned about the day program recommendation, and feel that [the Student] requires 24/7 monitoring and support. Parents and school disagree that a residential program is too restrictive. Parents feel that a residential setting is needed to keep [the Student] safe and healthy.” The IEP also noted: “[The Student] has a history of suicide ideation, substance abuse, and physical aggression.” (Ex. 3). 12 The Parent stated that after the October 22, 2018 CSE meeting, the District never contacted the Parents about a potential school placement (Ex. Q). The Parent testified that when the Student completed the Residential Treatment Center program on March 18, 2019, he was discharged and the Parents enrolled him in the Private School, which is a therapeutic boarding school, on March 25, 2019 where he remained for the rest of the 2018 — 2019 school year (Ex. Q). Reimbursement Prong I The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walezak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her 13 education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley) This straightforward obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR200.6[a][T )). The District submitted evidence and called three witnesses: the School Psychologist, the Assistant Principal and the Assistant Principal for Pupil Personel Services to defend Child Find and their program for the 2018-2019 school year. However, they did not prevail regarding Child Find, see above, and they conceded that a timely placement was not made (T. 57). 1, therefore, rule for the Parents on Prong I. Prong II I must now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied 14 to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated: “__. [Parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only 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.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006 | Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [24 Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G, v. Cumberland County Sch. Dist., 190 F.3d 80, 84 {3d Cir. 1999] (holding that "the test for the parents’ private placement is that it is appropriate, and not that it is perfect"). Recommendations The Psychologist who evaluated the Student recommended “a specialized program that will be able to address his therapeutic needs in a supportive residential academic environment that focuses on addressing his social — developmental needs. Ideally, [the Student] would attend a program with a strong therapeutic community model and strong educational program that can support his intellectual capacity for learning, together with specialized structured supervision and therapeutic interventions.... It is critical that [the Student] continues to have ongoing positive peer exposure, group and individual therapy, 15 as well as integrative family therapy. Additionally, [the Student] needs accommodations for deficits in executive functioning and with attention and executive functioning. (Ex. C). The Residential Treatment Program The Residential Treatment Program is for boys in grades 9-12, and has small classes and therapeutic interventions (Ex. E). The Student recieved therapeutic support to address his behavior, anxiety, and addiction issues. The setting provided 24/7 supervision for his safety (Ex. J). The Student made great progress at the Residential Treatment Center with the teacher reporting above average performance in reading, writing, and math. The Teacher’s comments included: “He is able to process abstract concepts and often provides commentary during class time.”... [The Student’s] writing is nuanced and complex for his grade.” And the Student “is an excellent math student.” (Ex. 2). The Private School The Private School has an average class size of 12, and a student/faculty ratio of 7:1. The Private School has an academic support program in which students meet with a learning specialist four times a week and learn strategies to improve organization and time management, reading comprehension, vocabulary and word skills, written expression, notetaking, test preparation, and performance (Ex. L). The Director of Counseling at the Private School wrote a letter, dated May 8, 2019, stating that he has worked with the 16

Student as a school counselor since March 25, 2019. He wrote that the Student participated in scheduled weekly therapy sessions on campus to address his mood, behavior, and thought patterns, was given random weekly drug screens, and was involved in extracurricular activities. A licensed therapist was available through the Private School’s health office after school and on weekends as needed. The Student received accommodations for his diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) through the school’s academic support department and the Student attended an academic support class four times per week (Ex. N). The Academic Support Teacher wrote a letter, dated April 3, 2019, stating that the Student made a good transition to the Private School and had a positive attitude (Ex. R). The Academic Support Teacher’s last update for the school year stated, “He is staying on top of his work, managing his time well, and preparing effectively for assignments.” She wrote the Student did practice problems in Academic Support before tests and quizzes, took thorough notes, and has stayed focused (Ex. T). The Student’s third quarter grades at the Private School showed that he made excellent progress. He received a B+ in Honors Chemistry and Ceramics, and A’s in Literature and Composition II, Algebra II, and United States History (Ex. S). The Parent testified that she is happy with the progress the Student made at the Residential Treatment Center and at the Private School (Ex. Q). Accordingly, I find that the two placements in this school year each provided educational instruction specially designed to meet the unique needs of the Student. Moreover, the 17

Parents have established that such services as are necessary to permit the Student to benefit from instruction. The Parents have prevailed in discharging their Prong I burden. Prong HI As a final point, a board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents where equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). in Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 ULS.C. § 1412[aj[10][C] [ii]; 34 CFR 300.148). 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 (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010}). Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from 18 public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][T] ; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) The Parent’s attorney sent the CSE a 10-day notice letter, dated June 18, 2018, detailing the Student’s difficulties in school, and the Parent’s request on May 1, 2018 for referral to the CSE for an IEP. The attorney stated that unless the CSE conducted the necessary evaluations, created an IEP, and recommended an appropriate therapeutic residential school program, within 10 days, the Parents would unilaterally place the Student in the Private Residential Treatment Center and seek tuition reimbursement (Ex. B). In this case I find that the Parents provided ample notice to the CSE and cooperated with the First High School, the Second High School and the CSE. I find no basis to reduce or deny tuition reimbursement/direct payment. In this record there is no due process response to the complaint notice; no resolution; and no apparent commencement of due process complaint to support the District’s failure to pay for the IEE in question (Ex. C date 4/30/18). In fact this testing is the only 19 comprehensive psycho-educational evaluation made at or around the time that the Student was experiencing the most strident symptoms of his disability. This is relevant and timely and useful to inform the record in this case, While I agree that a District should have evaluative materials before the CSE for consideration, here no CSE was convened until the next school year. The Regulations allow an impartial hearing officer to order independent evaluations as part of a hearing to inform the record; “Requests for evaluations by hearing officers. Ifa hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.” 8 N.Y.C.R.R. § 200.5(g)(2). The Part 200 Regulations specifically describe and provide for independent educational evaluations: (1) Requests by parents. If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. A parent is entitled to only one independent educational evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees. (i) If requested by the parent, the school district shall provide to parenis, information about where an independent educational evaluation may be obtained, and the school district’s criteria applicable for independent educational evaluations, as described in subparagraph (ii) of this section. (11) The criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria which the schoo! district uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an 20 independent educational evaluation. A school district may not impose additional conditions or timelines related to obtaining an independent educational evaluation at public expense. (iii) Ifa parent requests an independent educational evaluation at public expense, the school district may ask for the parent’s reason why he or she objects to the public evaluation. (a) The explanation by the parent in subparagraph (ili) of this paragraph may not be required and the school district may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint notice to request a hearing to defend the public evaluation. (iv) Ifa parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 8 N.Y.C.R.R. § 200.5(g); and see 34 C.F.R. § 300.502; 20 U.S. C. § 1415 (b){1) and (d)(2)(A). The Supreme Court pointed out the importance of the IEE to parental participation, noting that ..-parents have the right to review all records that the school possesses in relation to their child. [20 U.S.C.] § 1415 (b)(1). They also have the right to an “independent educational evaluation of thefir] child.” /bid. The regulations clarify this entitlement by providing that a “parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.” 34 CFR § 300.502(b)(1) (2005). IDEA thus ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition. Shaffer v. Weast, 546 U.S. 49, 60-61 (2005). 21

Accordingly, I direct that the District ‘s Impartial Hearing Implementation Unit fund and/or satisfy the Parent’s debt for the IEE (Ex. B) for the Student at the market rate upon presentation of the invoice for the cost of same. I Therefore Order The District to reimburse/direct pay the Parents for the tuition at the Private Residential Treatment center from July 1, 2018 — March 18, 2019 and tuition for the Private School from March 25, 2019 to the remander of the 2018-2019 school year together with reasonable associated transportation for the Student and the Parents, and reimbursement for the independent educational evaluation upon presentation of a proper invoices for same. / LA, a Martin J.1 ‘Rah nid Esq. Impartial Hearing Officer Dated: November 12, 2020 22

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 shail 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. 23