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Case Number: 534808 – NYC: 192158
FINDINGS OF FACT & DECISION
Case Number: 192158
Student Name: [REDACTED] (hereinafter referred to as “Student”)
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parent
Date of Hearing: March 29, 2023
Actual Record Close Date: March 30, 2023
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF THOSE WHO APPEARED ON MARCH 29, 2023
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], Parent Student
For the Department of Education:
[REDACTED], Consultant Impartial Hearing Representative
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the advocates for student and the parent in a due process complaint dated January 16, 2020. The primary issue to be determined at this hearing is whether the District offered the student a free appropriate public education (“FAPE”) for the 2019/20 school year (Ex. P-A). [1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1).
An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).
The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
On July 1, 2020, the District appointed the undersigned to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). A hearing on the merits of the matter was thereafter held on March 29, 2023. 2 Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the January 16, 2020 due process complaint, the student was sixteen (16) years old and has been diagnosed with a complex bereavement disorder, a major depressive disorder, and a generalized anxiety disorder (Exs. P-A at [2], P-D at 28-29). For the 2019/20 school year, the student received specialized instruction at the [REDACTED] (hereinafter referred to as the “Private School”) (Ex. P-H). The Private School has not been approved by the Commissioner of Education as an independent school with which public school districts may contract to provide special education and related services to student with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with an emotional disturbance is not in dispute in this hearing (Ex. P-A, SD-1 at 1). See 8 NYCRR § 200.1(zz)(4). [3]
When the student was [REDACTED] years old, her mother passed away due to cancer. That loss had a lasting effect on the student. In her seventh (7th) grade, the student reported a history of self-harm and suicidal ideation due to the trauma of her mother's death that led to difficulties with emotional adjustment (Exs. P-A at 2, P-D at 4).
The student attended [REDACTED] for grades 6-10 and did well academically until the beginning of her sophomore year. The student's grades began to drastically drop resulting in a medical leave of absence after a protracted episode of school refusal. The student reported that she was “too depressed for school” and “couldn't get out of bed” (Ex. P-A at 2, SD-5 at 3).
In January 2019, the parent enrolled the student in [REDACTED]. The student remained at that school through May of 2019. While at that school the student tried to make up schoolwork. The student, however, was not attending school and not earning any credits. The student continued to be anxious and depressed (Ex. P-A at 2, SD-5 at 3).
On the recommendation of the student's treating psychiatrist, the student was enrolled in an out-of-state wilderness program for ten (10) weeks beginning in July 2019. At the end of that program, a specialist there recommended an environment where the student's emotional issued could be addressed (Ex. P-A at 2, SD-5 at 3).
On September 17, 2019, the student participated in a private psychological assessment to clarify her diagnoses and assess her then-current levels of cognitive, emotional, and behavioral functioning. The evaluator recommended that the student continue her academic career within a long-term, residential, therapeutic setting, where she could learn therapeutic skills alongside standard ability-appropriate coursework (Ex. P-D at 1, 30).
In a letter dated September 23, 2019, the parent referred the student for evaluation by the CSE. Included with the letter was a signed consent form for initial evaluation (Ex. P-B). The parent received no response from the CSE to his September 23, 2019 letter (Ex. P-A at 2). In a letter to the CSE dated September 23, 2019, the parent enclosed a copy of the private psychological evaluation report (Ex. P-E).
In early October 2019, the parent brought the student to the Private School (Ex. SD-5 at 4). In a letter dated October 15, 2019, the parent advised the CSE had in the absence of an appropriate public educational program, he intended to unilaterally place the student at the Private School at public expense for the balance of the 2019/20 school year (Ex. P-C). The student remained at the Private School for the duration of the 2019/20 school year (Ex. P-H).
The CSE convened on December 10, 2019 to develop an IEP for the student through December 2020. The CSE recommended that the student receive the majority of her instruction in an 8:1+1 special class in a specialized school on a twelve (12) month basis. The CSE also recommended that the student receive related services of individual counseling, two (2) times per week for forty-five (45) minutes per session, and group (5:1) counseling, one time per week for forty-five (45) minutes per session (Ex. SD-1 at 20-21, 25). The parent did not receive any placement offer for the student following the December 2019 CSE meeting (Ex. P-A at 5). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The District
The District concedes that it failed to offer the student a FAPE in a timely manner for the 2019/20 school year. The parent's request for tuition reimbursement and/or direct payment for the student's unilateral placement at the Private School should be denied because there is insufficient evidence that the Private School provided the student with specialized instruction to meet her educational and therapeutic needs. Alternatively, any award should be prorated from sixty (60) days after the parent provided his informed written consent for an initial evaluation of the student.
B. The Parent
The District denied the student a FAPE during the 2019/20 school year. The District should be ordered to reimburse the parent, and/or directly pay, for the student's unilateral placement at the Private School for the 2019/20 school year. The Private School was an appropriate educational and therapeutic placement for the student, and there are no equitable reasons to withhold or reduce reimbursement and/or direct payment for private instruction and counseling services provided to the student during the 2019/20 school year. The parent also seeks reimbursement for all costs associated with the September 2019 private psychological evaluation (Ex. P-A).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (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 v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). [4]
A FAPE is 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); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); 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.’” Walczak v. Florida 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 has indicated 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.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. not all procedural errors render an IEP legally inadequate under the IDEA, 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); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007).
Under the IDEA, if procedural violations are alleged, an administrative officer 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 C.F.R. § 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; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008). The IDEA directs that, in general, 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.” See Rowley, 458 U.S. at 203. The “IDEA, [however,] 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. “The adequacy of a given IEP turns on the unique circumstances of the “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.
Additionally, school districts are not required to “maximize” the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must 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); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. 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 also Endrew F., 137 S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”); Rowley, 458 U.S. at 192.
The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also 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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2008).
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 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals 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 C.F.R. §§ 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 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v). [5]
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, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. See Mr. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).
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 N.Y. Educ. Law § 4404(1)(c); see also 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).
B. Recommended Public Program
The District conceded that it failed to offer the student a FAPE in a timely manner during the 2019/20 school year. Accordingly, I find that the District denied the student a FAPE for the 2019/20 school year.
C. Appropriateness of the Private School Given my finding that the District failed to offer the student a FAPE for the 2019/20 school year, I turn to the appropriateness of the private program and services secured by the parent for the student during that school year. With respect to the second criterion for an award of reimbursement, parents must show that the private services obtained for the student were appropriate to meet his or her special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student's special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize a student's potential. See Frank G., 459 F.3d at 364-65. When determining whether the parent's unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the credible testimony of the parent, I find that the Private School provided the student with specifically designed, individualized instruction to meet her unique educational and therapeutic needs during the 2019/20 school year (Ex. P-F).
D. Relevant Equities
The final criterion for a reimbursement/direct payment award is that a parent's claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
The IDEA provides that reimbursement and/or direct payment may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff'd, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The IDEA also provides that reimbursement and/or direct payment 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 student from public school, or by written notice ten (10) 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.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). 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). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger, 348 F.3d at 523-24; Rafferty, 315 F.3d at 27; see also Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68.
The relevant equities support an award of tuition reimbursement and/or direct payment for the student's unilateral placement at the Private School during the 2019/20 school year. In a letter dated October 15, 2019, the parent provided the District with adequate prior written notice of his intent to make a unilateral placement of the student at public expense during the disputed school year (Ex. P-C). There is also no evidence indicating that the parent was uncooperative with the CSE (Exs. Exs. P-E, SD-1, SD-3, SD-4, SD-5), see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the tuition and other costs for the Private School unreasonable given the severity of the student's educational and therapeutic needs (Exs. P-G), see Carter, 510 U.S. at 16.
As the District had sixty (60) school days, see 8 NYCRR § 200.1(n)(1), from its receipt of consent to evaluate the student, see 8 NYCRR §§ 200.1(l), 200.5(b)(1)(i), to complete the initial individual evaluation of the student, see 8 NYCRR § 200.4(b)(1), to determine if the student was a student with a disability, see 8 NYCRR §§ 200.1(zz), 200.4(b)(7), and to arrange for the provision of an appropriate special education program to the student, see 8 NYCRR §§ 200.4(d)(e), the ordered tuition remedy shall be prorated accordingly. As the District received parental consent to evaluate the student on September 24, 2019 (Ex. P-B at 1-2, 4), it had until January 2, 2020 to accomplish its regulatory obligations to the student. As the District failed to arrange for the provision of an appropriate special education program to the student by that date, it will be directed to reimburse the parent, and/or directly pay the private school, for tuition costs the parent incurred from January 3, 2020 through June 30, 2020.
E. Independent Evaluation
The parent seeks reimbursement of costs associated with an independent psychological evaluation of the student conducted in September 2019 (Exs. P-A at 6, P-D).
The IDEA provides parents with a number of procedural safeguards. Among them is the “right . . . to obtain an independent educational evaluation of the child,” which in turn means “an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question.” 34 C.F.R. §§ 300.502(a)(1), (3)(i). Parents who express a disagreement with an evaluation conducted by the district also have the right to seek an IEE conducted at public expense in some circumstances. See 34 C.F.R. § 300.502(b); 8 NYCRR §§ 200.5(g)(1), 200.16(d)(3); see also K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. Jan. 13, 2012) (noting that “a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district”); M.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2012 WL 834350, at *11–12 (S.D.N.Y. Mar. 5, 2012); M.V. v. Shenendehowa Cent. Sch. Dist., 2013 WL 936438, at *6 (N.D.N.Y. Mar. 8, 2013); R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 (D. Conn. 2005) (finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense that was sought for additional information). “If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation [m]ust be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child.” 34 C.F.R. § 300.502(c).
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. See 34 C.F.R. §§ 300.502(b)(2)(i)-(ii); 8 NYCRR §§ 200.5(g)(1)(iv), 200.16(d). 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). 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 C.F.R. § 300.502(b)(5); 8 NYCRR § 200.5(g)(1).[6] An IEE must use the same criteria as the public agency's criteria. See Seth B. v. Orleans Par. Sch. Bd., 810 F.3d 961, 973–79 (5th Cir. 2016). Informal guidance from the United States Department of Education's Office of Special Education Programs (“OSEP”) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area, see Letter to Baus, 65 IDELR 81 (OSEP 2015), however recent caselaw clarifies that parents may not demand a comprehensive IEE at public expense while at the same time refusing to consent to the school district's offer to conduct the same assessments, see D.S. v. Trumbull Bd. of Educ., 357 F. Supp. 3d 166, 178 (D. Conn. 2019).
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 N.Y. Educ. Law § 4404(1)(c); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012). In accordance with this burden, the school district bears the burden of showing that its evaluation of the student was appropriate in order to prevail in its challenge to the parent's requests for IEEs at public expense. See Application of a Student with a Disability (New York City Dep't of Educ.), Appeal No. 19-101 at 10 (SRO Dec. 6, 2019).
Here, it is undisputed that in developing the December 2019 IEP for the student, the CSE relied on, and adopted, the data contained in the September 2019 independent psychological evaluation of the student in determining her then-present levels of academic, developmental and functional needs for purposes of developing measurable annual goals and recommending a special education program for the student (Exs. P-D, SD-1 at 1-9). The District will therefore be directed to reimburse the parent for all costs associated with that independent evaluation.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
1. The parent's claim that the student was denied a free appropriate public education (FAPE) for the 2019/20 school year is SUSTAINED;
2. Within thirty (30) days of the date of this Order, the District shall reimburse the parent, and/or directly pay the Private School, for all costs associated with the student's unilateral placement at that school from January 3, 2020 through June 30, 2020; and
3. Within thirty (30) days of the date of this Order, the District shall reimburse the parent for all costs associated with the September 2019 independent psychological evaluation of the student.
Dated: March 31, 2023
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
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 plan 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.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENTS
A. Due Process Complaint/Impartial Hearing Request, 1/16/20, 8 pgs.
B. Letter to CSE from parent (initial referral/request for evaluation), 9/23/19, 4 pgs.
C. Letter to CSE from parent (ten-day notice), 10/15/19, 1 pg.
D. Neuropsychological Evaluation, 9/23/19, 49 pgs.
E. Letter to CSE from parent (neuropsychological evaluation), 10/29/19, 1 pg.
F. Student Schedule & Final Grade Report, 6/28/20, 6 pgs.
G. School Contract, Payment Affidavit, & Proof-of-Payments, 10/14/19, 19 pgs.
H. Student Attendance Record, 2/1/22, 1 pg.
SCHOOL DISTRICT
1. Individualized Education Program (IEP), 12/10/19, 29 pgs.
2. [Reserved]
3. Informed Consent, 10/31/19, 1 pg.
4. IEP Meeting Minutes, 12/10/19, 3 pgs.
5. Social History Report, 10/31/19, 5 pgs.
IMPARTIAL HEARING OFFICER
I. Extension Order, 8/15/20, 1 pg.
II. Extension Order, 9/14/20, 1 pg.
III. Extension Order, 10/14/20, 1 pg.
IV. Extension Order, 11/13/20, 1 pg.
V. Extension Order, 12/13/20, 1 pg.
VI. Extension Order, 1/12/21, 1 pg.
VII. Extension Order, 2/11/21, 1 pg.
VIII. Extension Order, 3/13/21, 1 pg.
IX. Extension Order, 4/12/21, 1 pg.
X. Extension Order, 5/12/21, 1 pg.
XI. Extension Order, 6/11/21, 1 pg.
XII. Extension Order, 7/11/21, 1 pg.
XIII. Extension Order, 8/10/21, 1 pg.
XIV. Extension Order, 9/9/21, 1 pg.
XV. Extension Order, 10/9/21, 1 pg.
XVI. Extension Order, 11/8/21, 1 pg.
XVII. Extension Order, 12/8/21, 1 pg. XVIII. Extension Order, 1/7/22, 1 pg.
XIX. Extension Order, 2/6/22, 1 pg.
XX. Extension Order, 3/8/22, 1 pg.
XXI. Extension Order, 4/7/22, 1 pg.
XXII. Extension Order, 5/7/22, 1 pg. XXIII. Extension Order, 6/6/22, 1 pg.
XXIV. Extension Order, 7/6/22, 1 pg.
XXV. Extension Order, 8/5/22, 1 pg.
XXVI. Extension Order, 9/4/22, 1 pg. XXVII. Extension Order, 10/4/22, 1 pg. XXVIII. Extension Order, 11/3/22, 1 pg.
XXIX. Extension Order, 12/3/22, 1 pg.
XXX. Extension Order, 1/2/23, 1 pg.
XXXI. Extension Order, 2/1/23, 1 pg. XXXII. Extension Order, 3/3/23, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties' respective witnesses and to allow the parties to negotiate a potential settlement of the case. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (Exs. IHO-I – IHO-XXXII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student's educational performance: (i) an inability to learn that cannot be explained by intellectual, sensory, or health factors; (ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood of unhappiness or depression; or (v) a tendency to develop physical symptoms or fears associated with personal or school problems. The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance. 8 NYCRR § 200.1(zz)(4).
[4] The term “free appropriate public education” means special education and related services that – considered individually do not,” see R.E., 694 F.3d at 190-91, the Court has also explained that child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The statute ensures an 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y.
[5] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP “must be appropriately ambitious in light of his [or her] 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.
[6] The time period for asserting claims based upon a disagreement with a school district's evaluation can be shorter than the mandatory three-year reevaluation period in some cases. See D.S., 357 F. Supp. 3d at 179.