Skip to main content
Special Education Law
DECISIONParent PrevailedIHO Case No. 207509

New York City Department of Education, Impartial Hearing Decision

January 18, 2023·Jeffrey J. Schiro·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 551259 - NYC: 207509

FINDINGS OF FACT & DECISION

Case Number: 207509

Student Name: [REDACTED]

(hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Dates of Hearings: September 8, 2022

September 16, 2022

Actual Record Close Date: January 4, 2023

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 8, 2022

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], ESQ., Attorney

[REDACTED], Parent

For the District:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 16, 2022

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], ESQ., Attorney

[REACTED], Parent

[REDACTED], Vice President, Private School

For the District:

[REDACTED], District 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 originally requested by the attorneys for student and the parent in a due process complaint dated March 26, 2021. The primary issue to be determined at this hearing is whether the New York City Department of Education (the “DOE”) offered the student a free appropriate public education (“FAPE”) for the 2020/21 and 2021/22 school years (R. 4-6; Exs. P-A, P-B).[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 December 8, 2021, the DOE appointed the undersigned to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). On February 15, 2022, the parent filed an amended due process complaint (Ex. P-A). See 8 NYCRR § 200.5(i)(7)(i)(b). On July 20, 2002 and August 29, 2022, pre-hearing conferences were held with the parties to clarify the hearing issues and set dates for the hearing (R. 1-29). See 8 NYCRR §200.5(j)(3)(xi). Hearings on the merits of the matter were thereafter held on September 8, 2022 and September 16, 2022 (R. 30, 56).[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 February 15, 2022 amended due process complaint, the student was [REDACTED] years old and has been diagnosed with an autism spectrum disorder (“ASD”) and an attention deficit hyperactivity disorder (“ADHD”) (Exs. P-A at 2, P-V at 1, 19). For the 2020/21 and 2021/22 school years, the student received specialized instruction and related services at the [REDACTED] (hereinafter referred to as the “Private School”) (Exs. P-I, P-L, P-M, P-O, P-S, P-U). 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 autism is not in dispute in this hearing (Exs. P-A, P-B). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).[3]

The student exhibits many academic skills at or near grade level but faces significant difficulties and developmental delays with respect to her attention, behavioral, communication, socialization and working memory skills, which interfere with her education. Since the student’s third grade year, i.e., the 2013/14 school year, she has attended the Private School through DOE funding (Exs. P-A at 2, P-FF at 1).

In August 2017, the parent obtained an independent neuropsychological evaluation of the student conducted by [REDACTED] (hereinafter referred to as the “Private Neuropsychologist”), which was provided to the DOE on August 15, 2017. The Private Neuropsychologist diagnosed the student with ASD, with an accompanying language impairment, and ADHD, combined type. The Private Neuropsychologist observed that the student exhibited difficulty maintaining eye contact and inhibiting her physical and mental impulses, and that the student’s speech was atypical and stilted with respect to rate and tone. The Private Neuropsychologist concluded that the student struggles with cognitive flexibility and strategic planning, and that the student’s sustained attention and behavioral regulation during tedious tasks fall short of the level of functioning expected for her age. The Private Neuropsychologist further noted that while the student’s reading and writing skills are strong, her mathematics skills are below the expected level for her grade (Ex. P-V).

The Private Neuropsychologist recommended that the student attend a twelve (12) month specialized program for high functioning children with ASD to prevent skill loss in during the summer months, as characteristics of ASD, like difficulty with generalization and insistence on routines, necessitate very short vacation intervals. In her recommendations, the Private Neuropsychologist specifically noted that the student requires a classroom setting with a low student-to-teacher ratio, frequent individual attention and support, and teachers trained in evidence-based approaches to ASD. The Private Neuropsychologist went on to note that the student’s school placement must have a social skills curriculum to promote the student’s social development. The Private Neuropsychologist also recommended that, due to some of the student’s more typical functioning skills, she should be placed in a class with children who are of comparable intellectual capabilities. The Private Neuropsychologist recommended interventions to promote active reading and daily writing and math support, either individually or in a small group. The Private Neuropsychologist also recommended several specific interventions for the student’s related services, social-emotional and behavioral challenges (Ex. P-V).

The CSE convened on February 13, 2020 to develop an IEP for the student for the 2020/21 school year. The CSE recommended that the student receive the majority of her instruction in an 8:1+1 special class in a specialized (District [REDACTED]) school on a twelve (12) month basis (Ex. P-A at 6). In a letter dated June 17, 2020, the parent advised the CSE that she was rejecting its proposed placement for the student because it was not supportive enough for the student’s significant socioemotional and behavioral needs, nor appropriately challenging academically. The parent also advised the CSE of her intent to unilaterally place the student at the Private School for the 2020/21 school year at public expense (Ex. P-C). The student attended the Private School for the duration of the 2020/21 school year (Ex. P-L).

The CSE reconvened on January 5, 2021 to develop an IEP for the student for the 2021/22 school year. The CSE recommended that the student receive the majority of her instruction in a 15:1 special class in a community school on a ten (10) month basis, with related services and supplementary aids and services (Ex. P-A at 7). In a letter dated June 17, 2021, the parent advised the CSE that she was rejecting its proposed placement for the student on a number of procedural and substantive grounds, including the removal of summer programming, insufficient support for the student’s significant socioemotional and behavioral needs, insufficient transition services, and inappropriate annual educational goals. The parent also advised the CSE of her intent to unilaterally place the student at the Private School for the 2021/22 school year at public expense (Ex. P-P). The student attended the Private School for the duration of the 2021/22 school year (Ex. P-U).

IV. POSITIONS OF THE PARTIES

A. The DOE The DOE declined to make an opening statement, offer testimony of any witnesses, or offer any exhibits for entry into the hearing record in support of its recommended programs for the student for the 2020/21 or 2021/22 school years. The DOE asserts that the Private School was not appropriate or the least restrictive environment for the student. The DOE also objects to the parent’s requests for independent evaluations (R. 47, 104-106).

B. The Parent The DOE denied the student a FAPE during both the 2020/21 and 2021/22 school years. The DOE should be ordered to reimburse the parent, and/or directly pay, for the student’s unilateral placement at the Private School for both the 2020/21 and 2021/22 school years on a twelve (12) month basis. The Private School was an appropriate placement for the student and there are no equitable reasons to withhold or reduce reimbursement and/or direct payment for private educational instruction and services. The parent also requests that the DOE be directed to fund a comprehensive neuropsychological evaluation of the student that includes executive functioning testing and a Level 2 vocational assessment at market rates (R. 48-51, 100-104).

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 considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that 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 child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The statute ensures an "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. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 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 Programs The DOE declined to make an opening statement, offer testimony of any witnesses, or offer any exhibits for entry into the hearing record in support of its recommended programs for the student for the 2020/21 or 2021/22 school years. Accordingly, I find that the DOE denied the student a FAPE for the 2020/21 and 2021/22 school years.

C. Appropriateness of the Private School

Given my finding that the DOE failed to offer the student a FAPE for the 2020/21 and 2021/22 school years, I turn to the appropriateness of the private program and services secured by the parent for the student during those school years. 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 [REDACTED], Vice President of Educational Operations at the Private School, and the parent, I find that the Private School provided the student with specifically designed, individualized instruction to meet her unique educational needs during the 2020/21 and 2021/22 school years (R. 67-95; Exs. P-F, P-G, P-J, P-K, P-M, P-O, P-T, P-FF, P-GG).

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 2020/21 and 2021/22 school years. In letters dated June 17, 2020 and June 17, 2021, the parent provided the DOE with adequate prior written notice of her intent to make unilateral placements of the student at public expense during the disputed school years (Ex. P-C, P-P). There is also no evidence indicating that the parent was uncooperative with the CSE (Exs. P-E, P-N, P-X, P-Y, P-Z, P-AA, P-CC, P-DD, P-EE, P-FF), see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the tuition and related services costs for the Private School unreasonable given the severity of the student’s educational needs (Exs. P-H, P-I, P-R, P-S, P-V, P-W), see Carter, 510 U.S. at 16.

E. Independent Educational Evaluations (IEEs)

Among other relief, the parent seeks a comprehensive neuropsychological evaluation that includes executive functioning testing and an independent Level 2 Vocational Assessment (R. 104; Exs. P-A at 13, P-B at 15).

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); see 8 NYCRR § 200.1(z). Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the school district and requests that an IEE be conducted at public expense. See 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); 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”); 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). 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 to determine whether the child has a disability and the nature and extent of the special education and related services that child needs.” Letter to Baus, 65 IDELR 81 (OSEP 2015); see Letter to Carroll, 68 IDELR 279 (OSEP 2016).

Review of the hearing record shows that the parent first requested IEEs from the DOE in her March 26, 2021 due process complaint (Ex. P-B at 15). The parent testified by affidavit that she disagrees with the DOE’s July 13, 2020 psychoeducational evaluation because “the whole social-emotional section of the report was just based on the self-report from [the student]” and because “the part of the report about writing” was not accurate (Ex. P-FF at ¶¶ 10-11). The parent also asserted that she was not provided with a copy of the DOE’s July 13, 2020 psychoeducational evaluation until January 2021 (Ex. P-FF at ¶ 9). The DOE offered no specific arguments opposing the IEEs, other than vague statements during its closing remarks (R. 105-106).

In past decisions, SROs have held that a parent may request that a school district fund an IEE in a due process complaint in the first instance. See, e.g., Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 19-094 at 7-9 (SRO Hauge Nov. 20, 2019) (“Absent any requirement that the parent express her disagreement with the results of a district evaluation in a specific format, there is no reason why a due process complaint notice may not serve the function of expressing the parent's disagreement to the district.”). Other SROs have noted, however, that “this is not exactly the process contemplated by the IDEA and its implementing regulations.” See Application of a Student Suspected of Having a Disability (New York City Dep’t of Educ.), Appeal No. 22-105 at 41 (SRO Bates Oct. 3, 2022), citing 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1).

During the impartial hearing, the neuropsychologist who the parent identified to perform the neuropsychological evaluation would do so at a market rate of $7,500. The agency identified to perform the Level 2 Vocational Assessment would do so at a market rate of $3,500 (R. 104). The DOE did not argue that the costs were excessive or that the rates exceeded the DOE’s cost containment criteria, and it did not offer into evidence its policy regarding reimbursement rates for IEEs or its maximum rates for specific tests. Nor did the DOE offer any evidence that the rates sought by the parent were excessive, such as evidence of rates charged by other evaluators for similar assessments. Thus, there is no evidence of the DOE’s IEE rate in this case, and that is not the type of fact of which one may take judicial notice, especially when the parent must be given the opportunity to challenge cost containment policies as applicable to IEEs of a particular child.

Accordingly, the parent will be granted one neuropsychological IEE in the amount of $7,500 and one Level 2 Vocational Assessment IEE in the amount of $3,500.

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED THAT:

  • • The parent’s claims that the student was denied a free appropriate public education
  • • (FAPE) for the 2020/21 and 2021/22 school years are SUSTAINED;
  • • Within thirty (30) days of the date of this Order, the DOE shall reimburse the parent, and/or directly pay, for all costs associated with the student’s unilateral placement at the Private School during the 2020/21 and 2021/22 school years; and
  • • Within thirty (30) days of the date of this Order, the DOE shall authorize: (i) an independent neuropsychological evaluation of the student from a provider of the parent’s choosing at a cost not to exceed $7,500 and (ii) an independent Level 2 Vocational Assessment of the student from a provider of the parent’s choosing at a cost not to exceed $3,500.

Dated: January 18, 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

  • • Amended Due Process Complaint/Impartial Hearing Request, 2/15/22, 15 pgs.
  • • Due Process Complaint/Impartial Hearing Request, 3/26/21, 15 pgs.
  • • Ten Day Notice, 6/17/20, 5 pgs.
  • • Consent to Evaluate, 1/10/20, 1 pg.
  • • Annual Review Worksheet (Notes), 2/13/20, 8 pgs.
  • • Annual Review Reports, 1/13/20 – 1/14/20, 27 pgs.
  • • Brochure, undated, 2 pgs.
  • • Tuition Affidavit (2020/21), 7/8/21, 1 pg.
  • • Enrollment Contracts, 7/14/20 (summer 2020) & 9/16/20 (2020/21), 4 pgs.
  • • Distance Learning Plan, 4/30/20, 3 pgs.
  • • Class Schedule, 2020/21, 1 pg.
  • • Daily Attendance (2020/21), 7/23/21, 1 pg.
  • • Progress Report, 2020/21, 6 pgs.
  • • Annual Review Worksheet (Notes), 1/5/21, 5 pgs.
  • • Annual Review Reports, 12/1/20 – 8/1/21, 45 pgs.
  • • Ten Day Notice, 6/17/21, 9 pgs.
  • • DOE Determination Report, 7/1/21, 1 pg.
  • • Tuition Affidavit (2021/22), 8/30/22, 1 pg.
  • • Enrollment Contracts, 7/6/21 (2021/22), 4 pgs.
  • • Class Schedule, 2021/22, 1 pg.
  • • Daily Attendance (2021/22), 8/30/22, 1 pg.
  • • Neuropsychological Evaluation, 8/11/17, 24 pgs.
  • • Psychological/Educational Evaluation, 7/13/20, 4 pgs.
  • • Emails re: School Location Letter dated 1/11/21 (part 1), 1/26/21 – 2/2/21, 2 pgs.
  • • Emails re: School Location Letter dated 1/11/21 (part 2), 2/3/21 – 2/4/21, 1 pg.
  • • Emails re: School Location Letter dated 1/11/21 (part 3), 1/26/21 – 2/5/21, 2 pgs.
  • • Emails re: School Location Letter dated 1/11/21 (part 4), 1/11/21 – 2/23/21, 7 pgs.
  • • Waiver of IEP Meeting to Amend IEP Form (unsigned), 6/25/21, 2 pgs.
  • • Emails re: Waiver of IEP Meeting to Amend IEP, 6/28/21 – 7/2/21, 2 pgs.
  • • Emails re: School Location Letter dated 6/29/21 (part 1), 1/11/21 – 8/11/21, 7 pgs.
  • • Emails re: School Location Letter dated 6/29/21 (part 2), 7/22/21 – 9/23/21, 1 pg.
  • • Affidavit of Parent, 9/15/22, 6 pgs.
  • • Affidavit of [REDACTED], 9/16/22, 11 pgs.

SCHOOL DISTRICT

None

IMPARTIAL HEARING OFFICER

  • • Extension Order, 5/1/22, 1 pg.
  • • Extension Order, 5/31/22, 1 pg.
  • • Extension Order, 6/30/22, 1 pg.
  • • Extension Order, 7/30/22, 1 pg.
  • • Extension Order, 8/29/22, 1 pg.
  • • Extension Order, 9/28/22, 1 pg.
  • • Extension Order, 10/28/22, 1 pg.
  • • Extension Order, 11/27/22, 1 pg.
  • • Extension Order, 12/27/22, 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 for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. 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 (R. 15-16, 98-99, 106; Exs. IHO-I – IHO-IX). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

[3] Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied. 8 NYCRR § 200.1(zz)(1).

[4] The term “free appropriate public education” means special education and related services that – (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.

[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.