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Special Education Law
DECISIONMixed ResultIHO Case No. 208419

New York City Department of Education, Impartial Hearing Decision

August 28, 2022·Patricia L. Murrell·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: 552221 - NYC: 208419

[REDACTED]

Petitioners,

Patricia L. Murrell, Hearing Officer

- against -

New York City Department of Education

School District # [Redacted] FINDINGS OF FACT AND

DECISION

Respondent.

INTRODUCTION[1]

This matter comes before the undersigned Impartial Hearing Officer (“Hearing Officer” or “IHO”), pursuant to the impartial hearing request and demand for due process (“Complaint”) filed on May 20, 2021, by petitioner, [Redacted], the parent (“Petitioner” or “Parent) of [Redacted], a [Redacted]-year-old student with disabilities (“Student”), as against the New York City Department of Education (“NYC-DOE”), Committee on Special Education (“CSE”) [Redacted], District [Redacted] (“Respondent” or “District”, together with Petitioner or Parent, the “Parties”).

On December 13, 2021, this Hearing Officer was appointed to preside over Case No. 208419, and a Prehearing Conference (“PHC”) was held on December 21, 2021. The Parent confirmed that the primary issues alleged and relief requested and presented for determination, included, inter alia, denial of free appropriate public education (“FAPE”) for the 2019/2020; failure to obtain or consider sufficient evaluative data; failure to conduct vocational assessment or develop transition plan; failure to develop individualized education plan (“IEP”) with appropriate placement for the Student.

JURISDICTION

This Hearing Officer scheduled and held proceedings for the Hearing telephonically and via videoconference on March 1, 2022 and March 2, 2022, and a Decision in this matter is being rendered in accordance with the Individuals with Disabilities Education Act, 20 U.S.C. §§1400 et. seq. (“IDEA”); the Federal Regulations implementing IDEA, 34 CFR 300.1 et seq.; the New York State Education Law, Educ. Law Art 89 §4404 et. seq.; and its implementing Regulations, 8 NYCRR § Part 200.

BACKGROUND

The Petitioner was represented by [Redacted], Esq., Attorney for the Parent; and [Redacted], Esq., Attorney observing for the Parent. Respondent was represented by [Redacted], Attorney for the District; and [Redacted], Esq., Attorney observing for the District. The Hearing was Closed. The Respondent and Petitioner provided oral opening statements on the record during the Hearing (the “Hearing Record”). The Respondent presented testimony by Special Education Teacher, [Redacted] (the “Special Education Teacher”); and Assistant Principal of the High School of [Redacted] (the “High School”) [Redacted] (the “Assistant Principal”). The Petitioner presented testimony by the Parent; Assistant Director, [Redacted] (the “Assistant Director”) of [Redacted] (the “Private School”); Director, [Redacted] (the “Director”) of [Redacted] (the “Preparatory School”); and Psychologist, [Redacted], Ph.D. (the “Psychologist”). Each of the witnesses were subjected to cross-examination. Each of the witnesses attested that the testimony provided during the Hearing was true and correct.

Prior to the Hearing, in accordance with the directives of this Hearing Officer, the District submitted a Statement of Facts;[2] the Parent submitted a Statement of Facts;[3] and the Parent submitted a Statement of Issues to be Adjudicated.[4] At the outset of the Hearing, the Parent’s proposed exhibits (“A through K”) were proffered for submission into evidence, without objection; and the District’s proposed exhibits (“1 through 5”) were proffered for submission into evidence, without objection. The District asserted an objection relating to the admissibility of testimony regarding a loan from the Parent’s Father for the Student’s tuition, and the Parties were directed to brief the contested issue; in response to which, the District submitted a Letter Brief;[5] and the Parent submitted a Memorandum of Law.[6] During the Hearing, the Parties debated the admissibility of a Vocational Interview Form.[7] On March 2, 2022, subsequent to the Parties’ presentment of oral closing arguments, the Hearing was concluded. Hearing Transcript(s) were circulated to the Parties on March 2, 2022 and March 7, 2022. The Petitioner exchanged and submitted the Parent’s Closing Brief on April 5, 2022.[8] The Respondent exchanged and submitted the District’s Closing Brief on April 5, 2022.[9] The Record was Closed on August 14, 2022.

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ISSUES PRESENTED

This Hearing Officer certified the following issue(s) for adjudication at the Hearing:

  • • Whether the District denied the Student a FAPE by failing to conduct, obtain or consider sufficient evaluative data, vocational assessment and/or a transition plan prior to developing an IEP for the 2019/2020 school year.
  • • Whether the District recommended an appropriate placement and program in the IEP for the Student’s 2019/2020 school year.
  • • Whether the Private School constitutes an appropriate placement for the Student.
  • • Whether the District should fund the cost of the Student’s tuition at the Private School; and the cost of the private psychoeducational evaluation.
  • • FINDINGS OF FACT

After considering all the evidence in the Hearing Record, as well as the arguments asserted by both Parties, this Hearing Officer’s Findings of Fact are as follows:

  • • The Student was evaluated during his third grade by the NYC-DOE, due to attentional issues, work behavioral problems, and academic delays in most major subject areas. Subsequently, the Student was provided with an IEP, SETSS (5x60), testing accommodations, and home-based private tutoring, which continued throughout the remainder of Student’s attendance at P.S. [Redacted] (the “Public School”). Upon entering the sixth grade, the Student was enrolled in a program designed to help support learning disabled students function within a mainstream setting, at the Preparatory School. The Student was evaluated by the Psychologist in 2015, wherein academic fluency deficits were revealed, together with inconsistently developed Reading and Writing skills; it was determined that he met the criteria for Attention Deficit Hyperactivity Disorder (“ADHD”).[10]
  • • On May 16, 2018, a Social History Update was conducted as part of an annual reevaluation of the Student, wherein it was reported that he had made progress in all areas; however, he was still functioning at a lower level; and he continued to struggle at the Preparatory School with English, History, Writing and Reading Comprehension.[11]
  • • On May 16, 2018, a Level 1 Vocational Interview was conducted of the Parent who indicated that the Student needed organizational, comprehension, communication and analyzation skills to reach his academic goals.[12]
  • • On July 13, 2018, pursuant to the Parent’s request to better understand the Student’s then-current level of functioning, the Psychologist conducted a Psychoeducational Evaluation of the Student, who presented with a history of learning disabilities. The Psychologist’s findings indicated that the Student had above-average intelligence, with strengths in word knowledge, visual spatial processing and non-verbal reasoning ability; however, he lacked an age-appropriate degree of self-awareness; and exhibited significant challenges in attention and inhibition, together with associated limitations in executive functions, including working memory, organization, self-monitoring, and processing speed with Reading and Math fluency issues. The Psychologist confirmed the previous diagnosis of ADHD; and determined that the Student also had a Specific Learning Disorder (“SLD”) with Impairment in Reading Fluency; an SLD with Impairment in Mathematics (accurate/fluent calculations); and an SLD with Impairment in Written Expression (clarity/organization).[13]
  • • The Psychologist opined that given the Student’s long-term learning challenges, ADHD-related behaviors and associated executive function issues, he continues to require an inclusion setting, with both individual and small group special education services integrated throughout the school day. The Psychologist recommended that it was essential that the Student be provided with a low-student-to-teacher-ratio within the classroom; certain testing accommodations; and a psychiatric evaluation to explore the possibility of a pharmacological intervention to help address his challenges associated with ADHD.[14] The Psychologist’s invoice in the amount of $2,000.00, was denoted as paid in full for psychological services rendered to the Student on July 13, 2018.[15]
  • • On March 5, 2019, the Preparatory School issued the Teacher’s Progress Report, wherein it was indicated that the Student responded well to the 1:1 twice weekly support received from the Teacher, which proved instrumental in helping him recognize and manage expectations, keep organized, on-task and in-step with his assignments and academic trajectory.[16]
  • • On March 5, 2019, the District convened a CSE meeting (the “2019 CSE Meeting”), which was attended by the Parent; [Redacted], Parent Advocate; [Redacted], CSE Coordinator from the Preparatory School; [Redacted], Related Service Provider/Special Education Teacher; [Redacted], District Representative; and [Redacted], who participated in a dual-capacity as the General Education Teacher and Psychologist (together, the “2019 CSE Team”). During the 2019 CSE Meeting, the Student was classified as a child with a Learning Disability, and an IEP was developed with an implementation date of March 19, 2019, for the remainder of the 2019/2020 school year, and the first six (6) months of the 2019/2021 school year (the “2019 IEP”).[17]
  • • The 2019 IEP referenced the observations and findings of the 2018 Psychoeducational Evaluation and the 2019 Teacher’s Progress Report. Notably, the IEP neither indicates that any additional evaluations were conducted by the District prior to the 2019 CSE Meeting, nor that the Student needed strategies, behavioral interventions plans or other supports to address behaviors that impeded his learning or that of others. Thereafter, the 2019 IEP recommended placement at a NYC-DOE Non-Specialized District (1-32) School; a ten-month special education program consisting of SETSS (2/week); integrated co-teaching (ICT) services (5/week) for Math, English Language Arts (“ELA”), Social Studies and Science; and related services of 1:1 Counseling (1x40) (together, the “Recommended Program”). The IEP noted that other options were considered, including SETSS, which was rejected because the Student requires a more intensive adult-to-student-ratio; and a special class in a community school (12:1:1) was considered but rejected because the Student does not require such intensive special education instruction to address his educational needs. The 2019 IEP indicates that the Parent expressed no concerns during the 2019 CSE Meeting regarding the Student’s academic, developmental, functional, social and/or physical needs.[18]
  • • On June 10, 2019, a prior written notice and school location letter (together, the “PWN”) was issued by the District, which indicated that the Recommended Program would be provided to the Student at [Redacted]:High School (the “Recommended Placement” or “High School”). Upon receipt of the PWN, the Parent scheduled a visit at the High School and met with the Head of Special Education and the Assistant Principal, wherein she determined that the Recommended Placement had limited resources and lacked the ability to provide the Student with necessary and mandated support.[19]
  • • Thereafter, on August 20, 2019, a ten-day-notice (“TDN”) was submitted to the District on behalf of the Parent, which advised, inter alia, that the District failed to offer an appropriate IEP or placement to the Student; and that the Parent intended to place the Student at the Preparatory School for the 2019/2020 school year. On August 21, 2019, the District confirmed receipt of the TDN.[20]
  • • In September 2019, the Student was enrolled into the Preparatory School; however, due to disengagement, depression and behavioral issues, it was recommended that the Student withdraw and locate alternative placement, with an individualized program; thereafter, the Student briefly attended an inpatient, then outpatient program.[21]
  • • On December 22, 2019, the Parent executed an enrollment contract with the Private School for the Student’s attendance thereat commencing on January 6, 2020 for the remainder of the 2019/2020 school year, at a total tuition cost of $21,270.00 (the “Enrollment Contract”). Thereafter, on March 17, 2020, the Parent executed a supplement to the Enrollment Contract, which set forth the Student’s tuition at an additional $22,690.00.[22] On April 30, 2020, [Redacted], the Account Specialist for the Private School duly executed an affidavit, which attested that the Parent had paid $43,960.00 in tuition for the Student’ attendance at the Private School during the period between January 6, 2020 and June 30, 2020 (the “Tuition Affidavit”).[23]
  • • The Student’s daily class schedules at the Private School for the Winter and Spring 2019/2020 school year included Algebra with Trigonometry, Ancient Civilizations, Chemistry, Spanish, English, together with Prepaid Tutoring and Prepaid Mastery in English, Math, Ancient Civilizations and Spanish (the “Class Schedules”).[24]
  • • The Private School’s program description indicated that its holistic curriculum offered two-hundred (250) academic and elective courses, which promotes self-awareness, resourcefulness, creativity and critical thinking. The Private School’s Remote Learning Plan indicated its intent to continue to offer 1:1 instruction and online/digital resources to meet the Student’s course objectives and standards during the school’s closure pursuant to Governor’s Executive directive and in accord with the best practices established by the NYC-DOE.[25]
  • • On January 30, 2020 through and including July 2, 2020, the Private School issued its Monthly Progress Reports, which documented the Student steadfastness in all subjects, which ranged from B to A+; together with improvements in Algebra, wherein his grades increased from 35% (F) t0 79.2% (C+).[26]
  • • On May 20, 2021 the Parent filed the Complaint, alleging a denial of FAPE and seeking reimbursement for the cost of the private Psychological Evaluation conducted in 2018, which the District relied upon in developing the 2019 IEP; together with reimbursement for the cost of tuition at the Private School for the Student’s attendance during the period between December 12, 2019 through and including June 30, 2019.[27]
  • • The District proffered the Special Education Teacher, [Redacted] as a witness, who holds a Master’s in Special Education; Bachelor’s in Special Education; and is a New York State (“NYS”) Licensed and Permanently Certified Special Education Teacher.
  • • The Special Education Teacher testified that in advance of making its recommendations for the 2019/2020 school year, the 2019 CSE Team considered the Psychoeducational Evaluation, Social History Update, Vocational Assessment, and the Preparatory School Progress Report; all of which were conducted in 2018 and reportedly contained sufficient details and information regarding the Student’s strengths and needs; and thereby eliminated the necessity to conduct a classroom observation and/or another psychoeducation evaluation, which could skew the results.[28]
  • • The Special Education Teacher testified that the 2019 CSE Team determined that the Recommended Placement and Recommended Program was the least restrictive environment (“LRE”), which would enable the Student to receive exposure to the general education curriculum and other typically developing peers. Further testifying that the Management Needs and Goals were developed in conjunction with the Parent and the Preparatory School, both of whom were in agreement with the recommendations for each during the 2019 CSE meeting.[29] More particularly, the Post-Secondary Goals on the 2019 IEP were developed during the 2019 CSE Meeting and included that the Student would graduate high school; attend a four-year college; investigate career fields in areas of interest and aptitude; improve his time management and organizational skills to successfully function independently; and continue counseling.[30] (See, Tr. 86:9-18).
  • • During cross-examination, the Special Education Teacher admitted that she was unaware that the Student’s last IEP was developed in 2015; unaware that completion of a vocational assessment form for both the Parent and Student was a necessary requirement for transition planning; and admitted that three (3) of Student’s ‘Coordinated Set of Transition Activities’ were left blank on the 2019 IEP.[31]
  • • The District proffered the Assistant Principal, [Redacted] as a witness, who holds a NYS License in Administration and Business and Distributive Education. The Assistant Principal testified that the Recommended Placement was able to fully implement the Student’s IEP program for the 2019/2020 school year; specifically, averring that there was an available seat in the ICT classroom for the Student, where he could receive SETSS in an afterschool program; 1:1 counseling in accordance with the IEP recommendation; and public-school sports.[32]
  • • The Petitioner proffered the Parent as a witness, who testified that prior to the 2019 CSE Meeting, three (3) or four (4) years had lapsed since the last time the District either evaluated the Student, conducted a classroom observation, held a CSE meeting and/or developed an IEP. The Parent testified that she provided the 2019 CSE Team with a copy of the Preparatory School Progress Reports and private Psychoeducational Evaluation, which “they seemed to take quite seriously”. In addition, the Parent testified that neither she nor the Student completed a Vocational Assessment Form prior to the 2019 CSE Meeting.[33] Notably, the Hearing Record reflects that a Vocational Interview Form was completed by the Parent on May 16, 2018.
  • • The Parent testified that subsequent to accepting a loan from her Father, she fully paid the Student’s tuition for attendance at the Private School for the 2019/2020 school year. During the second day of testimony, the Parent confirmed that she is financially liable to pay the Student’s tuition; she remains obligated to repay the loan; and although unable to produce the original loan agreement, the Parent and her Father subsequently executed an Affidavit attesting that the funds were a loan from the Father to the Parent.[34]
  • • During cross-examination, the Parent testified that prior to obtaining the private Psychoeducational Evaluation, she did not request funding from the District for an independent evaluation.[35]
  • • The Petitioner proffered Assistant Director, [Redacted] as a witness, who holds a Bachelor’s in History and Early Childhood Education. The Assistant Director testified that the Private School is accredited by Middle States Association (“MSA”); has a school philosophy of love, motivate and teach; provides an individualized instruction program based on student development preferences; with a 1:1 student-to-teacher ratio; and a homework café, which provides additional teacher support and peer socialization.[36]
  • • The Assistant Director testified that all Teachers at the Private School hold at least a Bachelor’s degree and are specialized in the particular topic they teach; each of whom received initial training and annual professional development; and during the 2019/2020 school year, the Teachers were able to consult with the Special Education Lead Teacher for help with accessing the curriculum for students with disabilities. The Teachers also collaborated to discuss modifying or maintaining the goals established in the Student’s individualized reassessment of commitments (the “IROC”).[37]
  • • The Assistant Director also testified that the Student was provided accommodations by the Teachers, including, scheduled breaks, extended time, scaffolding and visual aids. Further testifying that the Student made progress in the Private School, specifically stating that his English improved from a “B” to an “A”. Notably, the Progress Reports reflect that the Student’s “English 11 A” grade of 85% (B) increased to 88.27% (B+). The Assistant Director opined that the Private School was appropriate for the Student and he benefited from being there because he “was able to finish all of his classes; there were no real issues; and his attendance was a success.”[38] Further opining that the Private School addressed the Student’s diagnosis and/or special education needs by providing individualized attention, support, scheduled breaks, extra time on assignments and tests, and the homework café.[39]
  • • During cross-examination, the Assistant Director testified that the Private School does not require the Teachers to hold either NYS Teaching Licenses or Special Education Licenses; he did not specifically remember whether the Teachers were provided training to work with students who had a learning disability diagnosis; and he was uncertain as to the specific number of students in attendance who the Special Education Lead Teacher would be in charge of at the Private School.[40]
  • • The Assistant Director further testified that although the Special Education Lead Teacher provided actual instruction to some of the students at the Private School; however, the Special Education Lead Teacher never taught any classes to the Student.[41] The Assistant Director confirmed that the Admissions Team and Teachers at the Private School received and reviewed the Student’s 2019 IEP; and while the Private School does not develop its own IEP, they sometimes would consolidate information from the Student’s IEP and neuropsychological reports, which could be quickly referenced by the Teachers while planning their lessons. However, the Private School did not create its own set of special education goals for the Student; and neither offered counseling nor afterschool sports.[42]
  • • The Assistant Director testified that all students at the Private School do not have an educational disability; stating that some want to take advantage of the scheduling; others need social emotional support where the traditional school setting is too overwhelming; and then some struggle with learning or learning differences.[43] Subsequently, the Assistant Director clarified that there were approximately twenty-to-thirty (20-to-30) Teachers at the Private School; and of the roughly fifty (50) students in attendance at the Private School, thirty (30%) had special education needs, including, attention, processing or executive functioning.[44]
  • • During redirect, the Assistant Director testified that the Student’s Class Schedule is unique because it was developed during the planning meeting, wherein the subsequently selected Teachers were handpicked based on matching the Student’s preference for a particular type, style and personality of the Teachers.[45]
  • • The Petitioner proffered the Director of the Preparatory School, [Redacted] as a witness, who holds a Masters in Literacy; Bachelors in Elementary and Special Education; and NYS Certifications in Childhood Education, Students with Disabilities and Literacy. The Director testified that the Preparatory School is a college preparatory inclusion program for students with and without learning disabilities. The Student attended the Preparatory School from the sixth grade up until two months after commencement of the 2019/2020 school year, when he struggled academically with Writing, attention, organization, lack of motivation, homework, time management, executive functioning skills, defiance and at-risk behavioral problems; which resulted in the Student becoming a disciplinary issue and requiring more one-to-one support than the Preparatory School was able to provide. The Director testified that the Student needed an individualized program to suit his needs.[46]
  • • During cross-examination, the Director testified that she neither worked directly with, taught nor observed the Student in his classroom during the 2019/2020 school year; however, she met frequently with his Teachers who were very concerned about the Student. The Director confirmed that the Student was receiving Counseling at the Preparatory School for his at-risk behaviors, which were affecting his overall school participation. Subsequent to review of the Preparatory School Progress Report, which was issued in March 2019, the Director agreed that the program offered thereat to the Student, at that time, was the appropriate level of support; however, it was a different situation in September and October 2019, when the Student began to need more support due to the at-risk behaviors that he was engaging in, which were causing him difficulties.[47]
  • • The Director further testified that because the Student was struggling academically to maintain attention, focus, effort and motivation due to his at-risk behaviors, it was felt that working with someone on a one-on-one basis would be a more appropriate placement for the Student. The Director also confirmed that the student-to-teacher ratio at the Preparatory School during the Student’s attendance in the 2019/2020 school year for subject area classes averaged 15:1 to 18:1; for special programs it averaged 8:1 to 10:1; and in addition, the Student had 1:1 sessions, twice weekly, with his Teachers.[48]
  • • The Petitioner proffered the Psychologist, [Redacted] as a witness, who holds a Doctorate in Clinical Child Psychology; Masters in Clinical Child Psychology; Bachelors in Psychology; and a NYS License as a Psychologist. The Psychologist testified that pursuant to the Parent’s request she conducted a psychological evaluation of the Student in 2015 and again in 2018, wherein he was initially diagnosed with ADHD in 2015, which was reconfirmed in 2018, together with SLD with Impairments in Reading Fluency, Mathematics and Written Expression. Subsequent to both psychoeducational analyses, the Psychologist recommended the Student’s educational placement and program in an inclusion setting, to provide him with the opportunity for individual and small group special education services throughout the day, in a low-student-to-teacher ratio classroom. The Psychologist opined that based on her evaluations of the Student, he was a child who absolutely continued to need special education services.[49]
  • • The Psychologist further opined that the ICT placement recommended in the 2019 IEP, was not an appropriate placement because the Student needed a smaller class, more individualized attention and support around executive functions. The Psychologist further testified that although the 2019 IEP quoted the findings contained in the 2018 Psychoeducational Evaluation; however, the 2019 IEP did not incorporate all of the recommendations contained therein; specifically, stating that she did not recommend ‘just an ICT class placement’, she also recommended an opportunity for special education support throughout the day, a homework portal and certain testing accommodations. Further opining that ICT with SETSS (2/week) would not provide the level of executive functioning support that the Student needed on a daily basis.[50]
  • • During cross-examination, the Psychologist confirmed that the last time she met with the Student or Parent was in 2018 when she conducted the Psychoeducational Evaluation; during which, she neither conducted a classroom observation nor met with the Student’s Teachers. The Psychologist opined that the program at the Preparatory School was appropriate for the Student; and she was unaware that the Student had switched to a different school, which she learned during the Hearing process. The Psychologist confirmed that she recommended an inclusion classroom for the Student, which she understood to include both general education and special education students; and confirmed that counseling could be beneficial in addressing self-advocacy skills.[51]
  • • CONCLUSIONS OF LAW AND DISCUSSION

This Hearing Officer will examine the following in this Decision: (1) whether the Hearing Record adequately demonstrates the District’s failure to provide the Student with a FAPE for the 2019/2020 school year; (2) whether the District met its statutory burden of proof; (3) whether the unilateral placement was appropriate; and (4) whether the Parent is entitled to reimbursement for cost of Private School tuition and the private Psychoeducational Evaluation.

  • • IDEA

The IDEA’s purpose is “to ensure that all children with disabilities have available to them a free appropriate public education.” T.K. v. N.Y.C. Dep’t of Educ., 810 F.3d 869, 875, (2d Cir. 2016); citing 20 U.S.C. § 1400(d)(1)(A). More particularly, the IDEA seeks to ensure that (1) 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) the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). The Second Circuit finds that, “[i]n practice, this means that [the Districts] have an affirmative obligation to provide a basic floor of opportunity for all children with disabilities, … described [as] an education likely to produce progress, not regression, and one that affords the student with an opportunity greater than mere trivial advancement.” T.K., 810 F.3d 869, 875; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005); quoting Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009); P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008).

The centerpiece of the IDEA and its principal mechanism for achieving the goal of “a basic floor of opportunity for all children with disabilities” is the IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); D.S. v. Bayonne Bd. of Educ., 54 IDELR 141 (2010); quoting Polk v. Cent. Susquehanna Intermediate Unit, 16, 853 F.2d 171, 173 (3d Cir. 1988). The IEP is the means by which special education and related services are tailored to the unique needs of a particular child. Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017); quoting, Rowley, 458 U.S. 176, 181. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak, 142 F.3d 119, 130; see Rowley, 458 U.S. 176, 203. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” Walczak, 142 F.3d 119, 132; quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989).

  • • FAPE

FAPE must be offered to each Student with a disability residing in the District who requires special education services or programs. 20 U.S.C. §1412(a)(1)(A); Educ. Laws §4402(2)(a)(b)(2). The District offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”. Rowley, 458 U.S. 176, 203. 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. Rowley, 458 U.S. 176, 206-207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra, 427 F.3d 186, 192. However, under the IDEA, a substantive violation may arise where the substantive content, such as the educational services, contained in the IEP, is insufficient to afford FAPE; and procedural violations may occur when the District fails to comply with the IDEA’s process-based requirements.

The IDEA directs that a two-part inquiry must be made based on substantive grounds and procedural inadequacies, to determine whether a Student received a FAPE. 20 U.S.C. §1415(f)(3)(E). At the first step, Courts examine whether there were procedural violations of the IDEA, namely, “whether the state has complied with the procedures set forth in the IDEA.” Cerra, 427 F.3d 186, 192. If procedural violations are alleged, then a determination is made that the Student did not receive a FAPE, only if the District’s alleged procedural inadequacies: (a) impeded the Student’s right to a FAPE, (b) significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student, or (c) caused a deprivation of his/her educational benefits. 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 167, 190; M.H., 685 F.3d. 217, 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009). Courts then examine whether the IEP was substantively adequate, namely, whether it was “reasonably calculated to enable the child to receive educational benefit[s].” Cerra, 427 F.3d 186, 192; quoting, Rowley, 458 U.S. 176, 206-07. Since Rowley, Courts have generally viewed violations of FAPE as substantive when they involve: (1) content, adequacy and compliance with an IEP; (2) implementation of the IEP; or (3) failure to educate in the least restrictive learning environment. Substantive inadequacy automatically entitles the Parents to reimbursement. As discussed more fully infra, an examination was undertaken to determine whether the Student’s right to a FAPE was procedurally and/or substantively hindered by the District, during the 2019/2020 school year.

  • • IEP

The centerpiece for the implementation of FAPE is the IEP. S.H. v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 264 (3d Cir. 2003). An appropriate educational program begins with an IEP, which includes a statement of the student’s present levels of academic achievement and functional performance (34 C.F.R. 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. 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 enables him or her to make progress in the general education curriculum (34 C.F.R. 300.320(a)(2)(i); 34 C.F.R. 300.320(2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)); and provides for the use of appropriate special education services. 34 C.F.R. 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(6). 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., 137 S. Ct. 988, 999. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created”. Endrew F., 137 S. Ct. 988, 1001. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit”. Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); Endrew F., 137 S. Ct. 988, 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. 176, 192. The student’s recommended program must also be provided in the LRE. 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); 8 NYCRR 200.6(a)(1); Newington, 546 F.3d 111, 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d 119, 132. However, in order to determine whether a Student is eligible to receive a FAPE under the IDEA, the District must first conduct an initial evaluation to identify the Student’s educational needs. 20 U.S.C. § 1414(a)(1)(A); 34 C.F.R. 300.301(a). Thereafter, the District must develop and recommend an IEP, which reflects the evaluation results (8 NYCRR § 200.4(d)(2)(i)); classifies the Student under one disability category (34 C.F.R. 300.641(c)); and “include[s] special education and related services tailored to meet the unique needs of a particular child and be reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Dd. Of Educ. Of Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006).

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. 20 U.S.C. §1415(f)(3)(E)(i). The District offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”. Rowley, 458 U.S. 176, 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an [IEP].” Walczak, 142 F.3d 119, 130. “The adequacy of a given [IEP] turns on the unique circumstances of the child for whom it was created”. Endrew F., 137 S. Ct. 988, 1001. The IDEA’s purpose is “to ensure that all children with disabilities have available to them a free appropriate public education.” T.K., 810 F.3d 869, 875, citing 20 U.S.C. § 1400(d)(1)(A).

  • • DEVELOPMENT OF IEP

The Parent asserts that the District’s failure to conduct a CSE Meeting and develop an IEP, which recommended an appropriate placement and supportive program, constituted a denial of the Student’s FAPE for the 2019/2020 school year.

In order to meet its legal obligations, the District must have an IEP in effect at the beginning of each school year for each child with a disability, in its jurisdiction. 34 CFR 300.323(a); 8 NYCRR 200.4(e)(1)(ii); Cerra, 427 F.3d 186, 194; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff’d, 530 Fed. App’x 81 (2d Cir. 2013); B.P. v. New York City Dep’t of Educ., 841 F. Supp.2d 605, 614 (E.D.N.Y. 2012); Tarlowe, 2008 WL 2736027, at *6. In accordance therewith, the IDEA requires a CSE to review and, if necessary, revise the Student’s [IEP] at least annually. 20 U.S.C. §1414(d)(4)(A); 34 CFR 300.324(b)(1); 8 NYCRR 200.4(f). In addition, Federal and State Regulations mandate that the CSE must revise the Student’s IEP, as necessary, to address “[i]nformation about the child provided to, or by, the Parents during the course of a reevaluation of the Student. 34 CFR 300.324(b)(1)(ii)(C); 8 NYCRR 200.4(f)(2)(ii); and State Regulations provide that, if parents believe that their child’s placement is no longer appropriate, they “may refer the student to the [CSE] for review”. 8 NYCRR 200.4(e)(4). State Regulations further provide that, if appropriate, an IEP must be revised to address “any lack of expected progress toward the annual goals and in the general education curriculum... the results of any reevaluation conducted... and any information about the student provided to, or by, the parents... or... the student’s anticipated needs.” 8 NYCRR 200.4(f)(2)(i-iii). Additionally, the District is required to take certain measures to ensure the Parent’s participation in CSE meetings, which includes notifying the Parent prior to the meeting, scheduling the meeting at a mutually agreed upon time and place, and “[i]f neither parent can attend a [CSE] meeting, the [District] must use other methods to ensure parent participation, including individual or conference telephone calls.” 34 CFR 300.322(a),(c); 8 NYCRR 200.5(d)(1)(iii). Although a CSE meeting may be conducted without a parent in attendance, if the District is unable to convince the parents that they should attend, the District is required to maintain detailed records of its attempts to ensure the parents’ involvement and its attempts to arrange a mutually agreed upon time and place for the meeting. 34 CFR 300.322(d); 8 NYCRR 200.5(d)(3), (4).

As discussed infra, the District neither presented any additional evaluative materials it relied upon during the 2019 CSE Meeting nor proffered any testimony during the Hearing that established how the Student could have benefitted academically from the 2019 IEP developed for the 2019/2020 school year, which failed to fully address the Student’s academic, executive functioning and social/emotional needs. “R.E. stands for the unremarkable proposition that when the reports and evaluative materials present at the CSE meeting yield a clear consensus, an [IEP] formulated for the child that fails to provide services consistent with that consensus is not ‘reasonably calculated to enable the child to receive educational benefits’” A.M. v. N.Y.C. Dep’t of Educ., 845 F.3d 523, 543 (2d. Cir. 2017); quoting, Rowley, 458 U.S. 176, 207.

  • • EVALUATIONS

The Parent contends that the District failed to comprehensively evaluate the Student, which led to a denial of FAPE for the 2019/2020 school year.

Prior to the development of an IEP, the child must be evaluated to determine whether a need for special education exists. Evaluations are a foundational tool by which students are determined [or not] to be eligible for special education and related services under the IDEA. An evaluation of a student must be sufficiently comprehensive to identify all of the student’s special education and related services’ needs, whether or not commonly linked to the disability category in which the student has been classified. 34 C.F.R. 300.304(c)(6); 8 NYCRR 200.4(b)(6)(ix). The District may elect to conduct additional evaluations or assessments to appropriately assess the Student in all areas related to the suspected disabilities. 8 NYCRR 200.4(b)(3). However, Federal and State Regulations mandate that the District must conduct an evaluation of a Student where the educational or related services needs of a Student warrant a reevaluation or if the Student’s Parent or Teacher requests a reevaluation. 34 C.F.R. 300.303(a); 8 NYCRR 200.4(b)(4). While a District need not conduct a reevaluation more frequently than once per year unless the Parent and the District agree otherwise. 34 CFR 300.303(b)(1); a reevaluation of a student with a disability must be conducted by a multidisciplinary team or group that includes at least one teacher or specialist with knowledge in the area of the Student’s disability. 8 NYCRR 200.4(b)(4). The reevaluation must be “sufficient to determine the Student’s ability to participate in instructional programs in regular education and the Student’s continuing eligibility for special education.” 8 NYCRR 200.4(b)(5).

As stated supra, the IDEA seeks (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. 20 U.S.C. § 1400(d)(1)(A)-(B); Forest Grove, 557 U.S. 230, 239; Rowley, 458 U.S. 176, 206-07. Therefore, in order to determine whether a Student with a disability is eligible to receive a FAPE under the IDEA, the District must conduct evaluations that employ a variety of assessment tools and strategies to gather relevant functional, developmental and academic information about the Student, including information provided by the Parent that may assist in informing, among other things, the content of the Student’s IEP. 20 U.S.C. § 1414(b)(2)(A), (B); 34 CFR 300.304(b)(1)(ii); Letter to Clarke, 48 IDELR 77 (OSEP 2007). In particular, a District must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. 20 U.S.C. § 1414(b)(2)(C); 34 CFR 300.304(b)(3); 8 NYCRR 200.4(b)(6)(x). Here however, notwithstanding that the Student struggled with academic, executive functioning and social/emotional challenges, the Hearing Record does not evince that in advance of the 2019 CSE Meeting, the District conducted or considered any other assessments or evaluations of the Student, with the exception of the 2018 Psychoeducational Evaluation, 2018 Social History Update, 2018 (partial) Vocational Assessment, and the 2019 Preparatory School Progress Report. During the Hearing, it remained incumbent upon the District to offer evidence which demonstrated that the Student could receive appropriate access to and educational benefit from the Recommended Program at the Recommended Placement, during the 2019/2020 school year; despite that the preceding comprehensive evaluations of the Student were conducted in 2015, four (4) years prior to the 2019 CSE Meeting.

Pursuant to the Federal and State procedures for determining a student’s eligibility and educational needs, a “[CSE] and other qualified individuals must draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the student’s physical condition, social or cultural background, and adaptive behavior.” 8 NYCRR 200.4(c)(1); 34 CFR 300.306(c)(i). However, the Hearing Record evinces that the District did not have sufficient evaluative data and information relative to the Student, which would have enabled the CSE to properly formulate a determination that incorporated pertinent information regarding the Student’s academic, executive functioning and social-behavioral deficits, arising from his disabilities. Fundamentally, the absence of comprehensive evaluations, which should have been considered during the 2019 CSE Meeting, reasonably raises questions as to the appropriateness of the 2019 IEP that was developed and the special educational programs and/or provisions recommended thereunder to address the Student’s needs. Therefore, having acted in opposition to certain statutory requirements, including, inter alia, 20 U.S.C. §1414(b)(3)(B); 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii), this Hearing Officer finds that the District failed in its obligation to ensure that the Student was fully and appropriately evaluated and assessed in all areas related to his suspected disabilities, prior to developing the 2019 IEP.

Further, a CSE must consider privately-obtained evaluations, provided that such evaluations meet the District’s criteria, in any decision made with respect to the provision of a FAPE to a student. 34 CFR 300.502(c); 8 NYCRR 200.5(g)(1)(vi). However, ‘consideration’ does not require substantive discussion, that every member of the CSE team read the document, or that the District accord the private evaluation any particular weight. T.S. v. Bd. of Educ., 10 F.3d 87, 89-90 (2d Cir. 1993); G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 947 (1st Cir. 1991); K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 805-06 (8th Cir. 2011). Although the IDEA did not require the 2019 CSE Team to adopt the recommendations made by the Psychologist (Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 (N.D.N.Y. 2004) (holding that a CSE’s recommendation is not necessarily rendered inappropriate by “[t]he mere fact that a separately hired expert has recommended different programming”), aff’d, 142 Fed. App’x 9 (2d Cir. July 25, 2005); however, the law does require that the recommendations contained in the Psychoeducational Evaluation be at least considered in deciding classification and/or developing as IEP. See, e.g., J.C.S. v. Blind Brook-Rye Union Free Sch. Dist, 2013 WL 3975942, at *11. The Hearing Record evidences that the District had access to evaluative data relative to the Student, contained in the independent Psychoeducational Evaluation, which the Parent testified “they seemed to take quite seriously”. If fully considered together with other comprehensive evaluations of the Student, it would have enabled the 2019 CSE Team to properly formulate a determination that incorporated pertinent information regarding the Student’s academic, executive functioning and social-emotional needs. Accordingly, the District further failed to fully consider all evaluative data presented for the 2019 CSE Meeting, prior to rendering its determination regarding the Student’s placement and programing. Consequently, the District’s substantive violations under the IDEA resulted in its failure to offer the Student a FAPE for the 2019/2020 school year.

  • • INDEPENDENT PSYCHOEDUCATIONAL EVALUATION

The Parent contends that the District should reimburse the full cost of the privately obtained Psychoeducational Evaluation, due to the District’s failure to timely and comprehensively evaluate the Student in advance of the 2019 CSE Meeting.

The Parent has the right to have an evaluation conducted at public expense if the Parent expresses disagreement with an evaluation conducted by the District and requests that an independent educational evaluation (“IEE”) be conducted at public expense. 34 CFR 300.502(b); 8 NYCRR 200.5(g)(1); K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. 2012) (noting that “a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district”). In addition, the United States Department of Education Office of Special Education Programs (“OSEP”) provides that when 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.” Letter to Baus, 65 IDELR 81 (OSEP 2015). IEEs are defined by State Regulation as “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 NYCRR 200.1(z); 34 CFR 300.502(a)(3)(i). Accordingly, entitlement to an IEE does not ripen only after the District conducts an evaluation, it is also borne by the District’s failure to evaluate or reevaluate the Student in all areas related to the suspected disabilities.

Generally, parents are “entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees.” 34 CFR 300.502(b)(5); 8 NYCRR 200.5(g)(1). However, the ‘one-IEE limitation’ does not mean that the District may limit the Parent to only one examiner when the Student’s disability (or suspected disability) requires assessment in multiple areas. Student with a Disability v. Wisconsin State Educ. Agency, 70 IDELR 215 (SEA WI 2017) (noting that “while the [District IEE] procedures correctly limit parents to requesting one IEE per school district evaluation, the evaluation may not be limited to one outside examiner when multiple components of the student’s disabilities need to be assessed”). Therefore, where the Student is diagnosed [or suspected] with multiple disabilities and the Parent expresses a disagreement with the [lack of] evaluations conducted, the District remains obligated to ensure that the Student is appropriately assessed in all areas related to his/her suspected disabilities, including, if appropriate, “health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.” 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. 300.304(b)(4); 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii). Notably, parental failure to disagree with an evaluation obtained by a public agency may defeat a parent’s claim for an IEE at public expense. R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 (D. Conn. 2005). Further, if the District and Parent agree that a Student should be evaluated before the required triennial evaluation, “the parent must disagree with any given evaluation before the child’s next regularly scheduled evaluation occurs” or “[o]therwise, the parent’s disagreement will be rendered irrelevant by the subsequent evaluation.” D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 170 2d Cir. 2020). Here however, the Parent’s expression of disagreement with the District’s failure to evaluate the Student in all areas of suspected disability, as set forth in the Complaint, formed the basis for a request for an IEE. Letter to Baus, 65 IDELR 81.

Upon filing the Complaint on May 20, 2021, which indicated that the CSE failed to conduct any evaluations or to collect adequate and appropriate data on which to base its recommendation, the Parent simultaneously sought relief, inter alia, in the form of reimbursement for private evaluations. As such, the District was tasked to act, without unnecessary delay, to either: (1) ensure that the IEE was provided at public expense; or (2) to initiate an impartial hearing to establish that its evaluations were appropriate. 34 CFR 300.502(b)(2)(i)-(ii); 8 NYCRR 200.5(g)(1)(iv). “Public Expense” is defined to mean that the District must “either pay the full cost of the evaluation or ensure that the evaluation is otherwise provided at no cost to the parent.” 34 C.F.R. § 300.502(a)(3)(ii). “The purpose of requiring the public agency to either initiate a due process hearing if it wishes to challenge a parent’s request for an IEE, or otherwise to provide an IEE at public expense, is to require public agencies to respond to IEE requests and to ensure parents are able to obtain an IEE.” 64 Fed. Reg. 12406, 12607 (Mar. 12, 1999). Courts and Hearing Officers have generally concluded that the District’s “failure to act on a request for an independent evaluation is certainly not a mere procedural inadequacy; indeed, such inaction jeopardizes the whole of Congress’ objectives in enacting the IDEA.” Harris v. District of Columbia, 561 F. Supp. 2d 63, 69 (D.D.C. 2008) (ordering the school to fund the parent’s IEE request); see also, Taylor v. District of Columbia, 770 F. Supp. 2d 105, 109 (D.D.C. 2011) (holding that “failure to timely reevaluate is at base a procedural violation of IDEA”).

Conversely, the District asserts that the Parent is not entitled to reimbursement for the Psychoeducational Evaluation because it was obtained by the Parent before a request for an IEE was made to the District; and an IEE request cannot be raised for the first time in a Complaint. It is well-settled that a Parent may file a Complaint with respect to ‘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 [FAPE] to such student’. 8 NYCRR 200.5(i)(1); see 20 U.S.C. § 1415(b)(6)-(7); 34 CFR 300.503(a)(1)-(2), 300.507(a)(1). As such, the Complaint may serve as a vehicle for informing the District of a disagreement with an evaluation and/or requesting funding for an IEE. Consequently, the Parent has an “equitable right” to public funding of the IEE because the District should have but did not appropriately evaluate the Student in a timely manner. Los Angeles Unified Sch. Dist. v. D.L., 49 IDELR 252 548 F. Supp. 2d 815, 822 (C.D. Cal. 2008). In addition, based on the District’s dependence on the privately-obtained Psychological Evaluation in the stead of comprehensive evaluations they should have conducted of the Student in advance of the 2019 CSE Meeting, it is further deemed appropriate by this Hearing Officer that the District should bear the full cost for the evaluative data, albeit limited, which was used in the development of the 2019 IEP. Consequently, the District shall reimburse the Parent for the full cost of the Psychoeducational Evaluation, conducted on July 13, 2018, in an amount not to exceed two-thousand ($2,000.00) dollars, upon presentment of a copy of Parent’s Exhibit K, herein, the Psychological Services Invoice.

  • • VOCATIONAL ASSESSMENT and TRANSITION PLAN The Parent contends that the District’s failure to conduct a comprehensive vocational assessment, identify appropriate post-secondary goals, and develop a transition plan for the Student, contributed to a denial of FAPE.

A seminal facet of the IDEA is transitioning, which involves the preparation of students with disabilities for further education, employment and independent living. 34 C.F.R. §300.1(a). To that end, an IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the Student’s needs that result from the Student’s disability to enable the Student to be involved in and make progress in the general education curriculum; and meet each of the Student’s other educational needs that result from the Student’s disability. 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 CFR 300.320(a)(2)(i); 8 NYCRR 200.4(d)(2)(iii).  Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. 8 NYCRR 200.4(d)(2)(iii)(b); 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 CFR 300.320(a)(3). However, the IDEA does not require that the District create a specific number of goals for each of a Student’s deficits, and the failure to create a specific annual goal does not necessarily rise to the level of a denial of FAPE; rather, a determination must be made as to whether the IEP, as a whole, contained sufficient goals to address the Student’s areas of need. J.L. v. New York City Dep’t of Educ., 2013 WL 625064, at *13 (S.D.N.Y. Feb. 20, 2013); P.K. v. New York City Dep’t of Educ., 819 F. Supp. 2d 90, 109 (S.D.N.Y. 2011), aff'd, 526 Fed. App’x 135 (2d Cir. 2013); C.M. v. New York City Dep’t of Educ., 2017 WL 607579, at *20-*21 (S.D.N.Y. Feb. 14, 2017).

State regulations mandate that the District conduct vocational assessments of the student, upon reaching twelve (12) years of age, in order to determine the student’s vocational skills, aptitudes and interests. 8 NYCRR 200.4(b)(6)(viii). In accordance therewith, one of the purposes of the CSE meeting is to consider the student’s postsecondary goals and the transition services needed to assist the Student in reaching those goals. 8 NYCRR 200.4(d)(4)(i)(c). As such, under the IDEA, to the extent appropriate for each individual student, an IEP must focus on providing each individual student with instruction and experiences that enables the student to prepare for future educational experiences and post-school activities, including postsecondary education, employment and independent living. 20 U.S.C. §1401(34); Educ. Law §4401(9); 34 CFR 300.43; 8 NYCRR 200.1(fff).

More particularly, in accordance with Federal law, an IEP for a student who is at least sixteen (16) years of age, fifteen (15) under State regulations, or younger if determined appropriate by the CSE, must include transition services and plans needed to assist the student in reaching their postsecondary goals. The development of transition goals and services must include a discussion with the student’s parents on graduation requirements and the student’s progress toward receipt of a diploma; and parents must be provided with written information explaining graduation requirements at the CSE meeting in which transition services are discussed. 8 NYCRR §200.4(d)(2)(ix)(b) and (c). Transition services must be based on the student’s needs, taking into account the student’s strengths, preferences and interests. Transition plans generally include (a) a statement of the student’s needs, taking into account the student’s strengths, preferences and interests; (b) appropriate measurable postsecondary goals based upon age appropriate transition assessments relating to training, education, employment, and where appropriate, independent living skills; (c) statement of participation in advanced-placement courses or a vocational education program; (d) needed activities to facilitate the student’s movement from school to post-school activities, including instruction, related services, community experiences, development of employment skills and other post-school adult living objectives; and (e) statement of the responsibilities of the school district, and when applicable, participating agencies for the provision of such services and activities that promote movement from school to post-school opportunities, or both, before the student leaves the school setting. 8 NYCRR §200.4(d)(2)(i)(c); 8 NYCRR §200.4(d)(2)(ix); 8 NYCRR §200.1(fff); 20 U.S.C. § 1414(d)(1)(A)(i)(VIII); 34 CFR 300.320(b).

The Courts have determined that “a deficient transition plan is a procedural flaw”, which will only rise to a denial of a FAPE if it impeded the Student’s right to a FAPE; significantly impeded the Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student; or caused a deprivation of educational benefits. M.Z. v. New York City Dep’t of Educ., 2013 WL 1314992, at *6, *9 (S.D.N.Y. Mar. 21, 2013), citing Klein Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 398 (5th Cir. 2012); C.W. v City Sch. Dist. of the City of New York, 171 F. Supp. 3d 126, 134 (S.D.N.Y. 2016); J.M. v New York City Dep’t of Educ., 171 F. Supp. 3d 236, 247-48 (S.D.N.Y. 2016). A review of the Hearing Record demonstrates that a Level I Vocational Interview was conducted of the Parent on May 16, 2018, which was nine (9) months in advance of the 2019 IEP; and transition planning questions were discussed with the Parent on March 5, 2019, during the 2019 CSE Meeting. Notably, however, the Hearing Record does not evidence that the Student was either interviewed or assessed, at any point subsequent to his twelfth (12th) birthday regarding the Student’s vocational strengths, preferences, skills, aptitudes and/or interests; and resultingly, details related specifically to his post-secondary transition goals, remain undocumented and were not incorporated into the 2019 IEP. Accordingly, the absence of a Vocational Assessment and Transition Goals for the Student, in advance of the 2019 CSE Meeting, rises above a mere procedural flaw because it resulted in a deprivation of educational benefits to the Student and a significant impediment to the Parent’s right of meaningful participation during the 2019 CSE Meeting. Consequently, it is this Hearing Officer’s determination that the District denied the Student’s FAPE during the 2019/2020 school year, as it relates to Student’s vocational assessment and transition plan.

  • • RECOMMENDATION OF APPROPRIATE PLACEMENT/PROGRAM

The Parent avers that the District’s failure to recommend or provide an appropriate placement and/or program for the 2019/2020 school year, where the Student could receive proper educational support to address his individual and unique needs, constituted a denial of the Student’s FAPE.

The United States Department of Education (“USDOE”) has noted that it “referred to ‘placement’ as points along the continuum of placement options available for a child with a disability, and ‘location’ as the physical surrounding, such as the classroom, in which a child with a disability receives special education and related services”. Placements, 71 Fed. Reg. 46588 (August 14, 2006). This view is consistent with an OSEP opinion, which indicates that the assignment of a particular school is an administrative decision provided it is made in conformance with the CSE’s educational placement recommendation. Letter to Veazey, 37 IDELR 10 (OSEP 2001); see also, White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir. 2003); Veazey v. Ascension Parish Sch. Bd., 2005 WL 19496 (5th Cir. 2005); A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 (4th Cir. 2004); Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 (2d Cir. 1980).

Under New York State Law, the Commissioner of Education may approve the provision of “special services or programs” to students with disabilities through a variety of methods, including contracts entered into by boards of education of public schools and “private non-residential schools... which are within the State. Educ. Law §§4401(2)(e), 4402(2)(a); 8 NYCRR 200.1(d); 8 NYCRR 200.7. It is the individualized needs of all students with disabilities in a District that will ultimately determine which special education services shall be rendered by an approved private provider. Educ. Law §4402(2)(a). Accordingly, the Student’s placement must be individually determined based on the Student’s abilities and needs. The IDEA requires parental participation in determining the educational placement of a child (34 CFR §§ 300.116, 300.327, 300.501(c)); however, ultimately it is the program of specialized instruction and related service contained in the Student’s IEP that forms the basis for the placement decision.

Program and placement decisions must be based on the Student’s unique needs as reflected in the IEP, rather than based on the existing availability of services in the District or general policies unrelated to the Student’s needs. 34 CFR 300.116(b)(2); 8 NYCRR 200.6(a)(2); T.M., 752 F.3d 145, 163 (finding that the IDEA’s LRE requirement is not limited, in the extended school year context, by what programs the school district already offers, but rather must be based on the student’s needs); Adams v. State, 195 F.3d 1141, 1151 (9th Cir. 1999); Reusch v. Fountain, 872 F. Supp. 1421, 1425-26 (D. Md. 1994); Placements, 71 Fed. Reg. 46588 (noting that “placement decisions must be individually determined on the basis of each child’s abilities and needs and each child’s IEP, and not solely on factors such as... availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience”). Although parents may prefer a particular class ratio, districts are not necessarily required to replicate the identical setting used in private schools. Watson, 325 F. Supp. 2d 141, 145; Z.D. v. Niskayuna Cent. Sch. Dist., 2009 WL 1748794, at *6 (N.D.N.Y. June 19, 2009); M.C. v. Mamaroneck Union Free Sch. Dist., 2018 WL 4997516, at *28 (S.D.N.Y. Sept. 28, 2018).

The Hearing Record corroborates the Parent’s contention that the District’s failure to recommend an appropriate placement and program, is due to the CSE’s failure to create an IEP, which, inter alia, incorporated evaluations of the Student in all areas of his suspected disability; and adequately identified and recommended appropriate interventions and services to address the Student’s academic, executive functioning and social-emotional challenges and needs. More particularly, although the District was aware that the Student had not been evaluated since 2015, nevertheless, the District failed to obtain full assessments of the Student, inclusive of a classroom observation, to acquire a more comprehensive evaluative basis of data regarding the Student in advance of holding the 2019 CSE Meeting, developing the 2019 IEP, recommending a placement at the High School and recommending a program in an ICT class.

Accordingly, upon full review and due consideration, it is this Hearing Officer’s finding that the Student was entitled to but denied an appropriate educational placement and program, with supportive related services that addressed his individual academic, executive functioning and social/emotional deficits and needs related to his diagnoses and disabilities. Consequently, it is this Hearing Officer’s determination that the District’s proposed Recommended Program as set forth in the 2019 IEP, coupled with the District’s failure to offer an appropriate placement in relation thereto, denied the Student a FAPE for the 2019/2020 school year.

BURDEN OF PROOF

Under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief. Schaffer v. Weast, 546 U.S. 49, 59 (2005) (finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not). However, under New York State law, the burden of proof has been placed 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 also, Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014); C.F.,746 F.3d 68, 76; R.E., 694 F.3d 167, 184-85. Here, the burden rests with the District to establish sufficient facts and introduce proper evidence to demonstrate that recommendations made based on the Student’s educational needs, were appropriate. In order to meet its burden, the District must show (a) that it complied with the procedural requirements set forth in the IDEA; and (b) that the IEP developed for the Student was reasonably calculated to confer educational benefits to the Student. Rowley, 458 U.S. 176, 206-07; M.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir. 2000), cert. denied, 532 U.S. 942 (2001).

The District is required under the due process procedures set forth by New York State law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record. Here, the District failed to proffer sufficient testimonial or documentary evidence, which could substantiate or otherwise prove that the District had offered the Student a FAPE for the 2019/2020 school year. Consequently, as the Hearing Record is devoid of any persuasive evidence, arguments or statutory authority proffered by the District, which can adequately support a contention or otherwise negate the Parent’s allegations, it is this Hearing Officer’s finding, as discussed more fully supra, that the District both procedurally and substantively denied the Student a FAPE for the 2019/2020 school year.

  • • UNILATERAL PLACEMENT

The Parent contends that the Student was enrolled into the Private School for the 2019/2020 school year, subsequent to the District’s failure to recommend an appropriate placement and program for the Student, pursuant to the Parent’s TDN, which was issued to the District on August 20, 2019. The Parent asserts that the Private School is an appropriate placement for the Student; and that resultantly, the District is mandated to provide reimbursement to the Parent in an amount aggregating forty-three-thousand-nine-hundred-sixty ($43,960.00) dollars, which represents the full tuition paid by the Parent for the Student’s enrollment and attendance at the Private School during the 2019/2020 school year.

The IDEA provides Federal funding to State programs for the education of children with disabilities, conditioned on the States implementing laws, which guarantee educational standards. 20 U.S.C. §1412(a). Students with a disability must receive a FAPE “that emphasizes special education and related services...” 20 U.S.C. §1400(d)(1)(A). The FAPE must “meet the standards of the State educational agency” and conform to the IEP required by 20 U.S.C. §1414(d); 20 U.S.C. §1401(9)(B), (D). “The Act contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as [non-disabled] children, but the Act also provides for placement in private schools at public expense where this is not possible.” Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369 (1985).

Under certain conditions, the District may be required to reimburse the parents for their expenditures for private educational services obtained for the student, if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parent’s claim. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Burlington, 471 U.S. 359, 369-70. The Supreme Court found that Congress intended retroactive reimbursement to parents by the District as an available remedy in a proper case under the IDEA. Burlington, 471 U.S. 359, 370-71; Gagliardo, 489 F.3d 105, 111; Cerra, 427 F.3d 186, 192. “Reimbursement merely requires [the 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. 359, 370-71; 20 U.S.C. § 1412(a)(10)(C)(ii); 34 CFR 300.148.

Federal and State law requires that private schools selected for placement must satisfy defined criteria for providing a FAPE and guarantee that students “have the same rights as those [disabled] students placed in facilities of the State.” Antkowiak v. Ambach, 838 F.2d 635, 640 (2d Cir. 1988), abrogated in part by Carter, 510 U.S. 7. Thereafter, in Carter, the Court addressed the narrower issue as to whether a parent could receive reimbursement for private-school expenses, when the parents’ selected school did not satisfy the IDEA’s definition of a FAPE. The parents’ failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. Carter, 510 U.S. 7, 14. The Supreme Court held that under IDEA, the parents may independently place a student in private school, even when the District objects to the placement. Carter, 510 U.S. 7, 13-14. However, Carter expressly distinguished the District’s direct placement of a child in a NPS, from the parents’ unilateral placement of a child in a non-approved NPS. Carter, 510 U.S. 7, 14. On the one hand, the District may consider placement of the student in an NPS but must be certain that the NPS satisfies the Commissioner’s approval standards. Conversely, the Court found that tuition reimbursement is warranted when the student is denied a FAPE, and the parents unilaterally place the student in an appropriate non-approved NPS. Carter, 510 U.S. 7, 14-15.

  • • Appropriateness of Unilateral Placement Parents seeking tuition reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” Gagliardo, 489 F.3d 105, 112; M.S., 231 F.3d 96, 104; Educ. Law § 4404(1)(c). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [District’s] placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, 489 F.3d 105, 112; Frank G., 459 F.3d 356, 364; quoting Rowley, 458 U.S. 176, 207. In addition, the parents need not show that the placement provides every special service necessary to maximize the Student’s potential. Frank G., 459 F.3d 356, 364-65. When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d 356, 364; Gagliardo, 489 F.3d 105, 115; citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003) (stating “evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA”). A private placement is only appropriate if it provides educational instruction specially designed to meet the unique needs of the Student. 20 U.S.C. § 1401(29); 34 CFR 300.39(a)(1); Educ. Law § 4401(1); 8 NYCRR 200.1(ww); Rowley, 458 U.S. 176, 188-89; Gagliardo, 489 F.3d 105, 114-15 (noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student); Frank G., 459 F.3d 356, 365. The Court concluded that the “basic floor of opportunity provided by the [IDEA] consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the [] child.” Rowley, 458 U.S. 176, 201.
  • • Private School Program Traditionally, an appropriate educational program begins with an IEP, which includes a statement of the Student’s present levels of academic achievement and functional performance; establishes annual goals designed to meet the Student’s needs resulting from the Student’s disability and enables him or her to make progress in the general education curriculum; and provides for the use of appropriate special education services. However, even in the absence of a formulated IEP, no one factor is necessarily dispositive in determining whether a Parent’s unilateral placement is reasonably calculated to enable the Student to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that the Student is receiving educational benefit, but Courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves the Student’s individual needs. To qualify for reimbursement under the IDEA, the Parents need not show that a private placement furnishes every special service necessary to maximize the Student’s potential. The Parents need only to demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a Student with disabilities, supported by such services as are necessary to permit the Student to benefit from instruction. Gagliardo, 489 F.3d 105, 112; Frank G., 459 F.3d 356, 364-65.

A unilateral placement is not deemed appropriate simply because it removes a student from an anxiety-provoking environment, as avoiding a need does not serve the same purpose or have the same effect as addressing it; rather, the placement must be tailored to address the student’s specific needs to qualify for reimbursement under the IDEA. John M. v Brentwood Union Free Sch. Dist., 2015 WL 5695648, at *9 (E.D.N.Y. Sept. 28, 2015); see also, W.A. v. Hendrick Hudson C. Sch. Dist., 219 F. Supp. 3d 421, 472, 474 (S.D.N.Y. 2016) (when assessing the propriety of a unilateral placement [one should] consider “totality of the circumstances” including grades, test scores, regular advancement, or other objective evidence, and improved attendance). Here, the Student was removed from the Preparatory School due in large part to his at-risk behaviors, and thereafter unilaterally placed at the Private School.

The District contends that the unilateral placement was not appropriate because the Private School staff were not qualified to provide instruction to the Student. It is well regarded that Teachers at a unilateral placement need not meet standards such as State certification. Carter, 510 U.S. 7, 14. However, it has also been held that there must be objective evidence of special education instruction or supports that are specially designed by the student’s providers at the private school who have reasonable qualifications. Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 387 (2d Cir. 2014). Here, the Assistant Director testified that all Teachers at the Private School held a Bachelor’s degree; were not required to hold either NYS Teaching Licenses or Special Education Licenses; were specialized in the topic they taught; and received an initial training relating to the Private School upon their employment, together with subsequent annual professional development. However, he was uncertain as to whether the Teachers were provided any training to work with students who had a learning disability diagnosis. Moreover, the Private School Program Description neither indicated that it offered a special education program nor referenced the qualifications of its teaching staff or that it had a Special Education Lead Teacher. Further, the Hearing Record evidences that the Private School’s singular Special Education Lead Teacher never taught any classes to the Student, during the 2019/2020 school year. In addition, the Private School neither provided any reference to the General Education Teachers’ use of any specific special education techniques in the courses taken by the Student; identified the goals established in the Student’s IROC; nor provided any indication that the Teachers either modified or maintained their respective curricula to address the Student’s special education academic needs in relation to his diagnoses of ADHD and/or SLD Impairments in Reading, Math and Written Expression. Although the Remote Learning Plan generically stated that the Private School’s goal was to continue to provide instructional services that support the Student’s progress towards meeting his IEP goals; however, it contained no information specifically individualized to the Student.

Finally, the District contends that the Assistant Director was not properly suited to speak to whether the Private School was appropriate for the Student, which is supported by the Hearing Record. Notwithstanding the Assistant Director’s uncertainty as to the number of Teachers at the Private School and/or the students in attendance, the Assistant Director was not very adept regarding the specifics relating to the Student’s diagnoses, challenges, individualized program or progress therein. Further, he offered generalities relating as to why the Private School was appropriate; specifically stating that the Student ‘benefited’ from being there because he “was able to finish all of his classes; there were no real issues; and his attendance was a success.” Consequently, the Parent failed to proffer evidence to adequately address whether the Private School program was appropriate for the Student.

  • • Specially Designed Instruction As provided supra, to qualify for reimbursement under the IDEA, the Parent must demonstrate that the unilateral placement provided educational instruction specially designed to meet the Student’s unique needs, supported by services necessary to permit the student to benefit from instruction. Gagliardo, 489 F.3d 105, 112; Frank G., 459 F.3d 356, 364-65. State regulation defines ‘specially designed instruction’, in part, as “adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student’s disability.” 8 NYCRR 200.1(vv).

The District contends that the Private School did not provide adequate special education instruction and services to the Student. A review of the Hearing Record indicates an absence of apt documentary or testimonial evidence that the Private School developed or provided the Student with any instruction specially designed to address his unique needs and deficits relating to attention, organization, motivation, homework, time management, executive functioning, anxiety and/or behavior; all of which were identified as challenges by the Psychologist in 2018 and continued to exist in 2019, as confirmed by the Director’s testimony. In addition, notwithstanding that the Student was removed from the Preparatory School due primarily to his at-risk behavioral issues, the Hearing Record is also devoid of evidence that the Private School suitably addressed the Student’s social-emotional needs. Specifically, the Private School did not provide the Student with any counseling support during the 2019/2020 school year, despite the Psychologist’s specific recommendation for counseling, together with the Federal and State mandate to include counseling services in the 2019 IEP, in accordance with 34 CFR 300.34(a); 8 NYCRR 200.1(qq), which was deemed necessary by the Parent.

Further, the Hearing Record does not contain adequate documentary or testimonial evidence to support the Parent’s contention that unilateral placement of the Student at the Private School was appropriate. More particularly, as averred by the District, the Private School offered 1:1 instruction universally to every student; which the Assistant Director admitted included those who wanted to take advantage of the scheduling; others who were overwhelmed by the traditional school setting; and then some who struggled with learning or learning differences. However, the Parent did not proffer any evidence concerning the special education services offered by the Private School, the Student’s individualized program structure, learning environment, instructional framework and/or teaching methodologies that may have been employed during the 2019/2020 school year to address the Student’s unique needs. Conversely, the Hearing Record demonstrates that with the exception of certain accommodations, the Student did not receive specialized instruction or services specially designed to meet his academic, executive functioning or social-emotional needs.

On its face, the Private School may be viewed as the type of NPS that offers the kind of benefits that parents of any student would prefer, such as a small class size and the availability of an expansive curriculum. Here however, notwithstanding the more relaxed legal standard as applied to a Parent’s burden of proving the appropriateness of a unilateral placement, the Hearing Record fails to demonstrate that the Private School offered specially designed instruction to address the Student’s identified disabilities and unique needs.

  • • Student’s Progress The Second Circuit has noted that while evidence of the Student’s actual progress is “relevant to the court’s review,... such progress does not [in and of] itself demonstrate that a private placement was appropriate”. Gagliardo, 489 F.3d 105, 115; Berger, 348 F.3d 513, 522; Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir.2002). It is generally understood, that in a private school “it is more difficult to assess the significance of grades and regular advancement”. Frank G., 459 F.3d 356, 364. Therefore, evidence of academic progress is not dispositive in determining whether a Student’s unilateral placement is appropriate. Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 (S.D.N.Y. Feb. 4, 2013); M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App’x 76, 78 (2d Cir. Mar. 29, 2013). However, a finding of progress is, nevertheless, a relevant factor to be considered. Gagliardo, 489 F.3d 105, 115, citing Berger, 348 F.3d 513, 522; T.K., 810 F.3d 869, 878. Similarly, “if the child’s lack of progress under a particular IEP does not render the IEP inappropriate... the fact that the child may not have progressed under the parents’ chosen program should not automatically mean that the program was inappropriate at the time the placement decision was made.” C.B., 2005 WL 1388964, at *18; citing Antonaccio v. Bd. of Educ. of Arlington Cent. Sch. Dist., 281 F. Supp. 2d at 710, 724 (S.D.N.Y. 2003).

As documented in the Progress Reports, on January 30, 2020, at the end of his first month at the Private School, the majority of the Student’s grades were between 85% (B) to 100% (A+), together with a 35% (F) in Algebra. On July 2, 2022, five (5) months thereafter, the Student continued to display steadfastness in all subjects, which ranged from 88.27% (B+) to 97.33% (A+); however, he demonstrated progress in Algebra, which increased to 79.2%(C+).

  • • Least Restrictive Environment Traditionally, the Student’s recommended program must be provided in the LRE. 20 U.S.C. §1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc); 8 NYCRR 200.6(a)(1); Newington, 546 F.3d 111, 114; Gagliardo, 489 F.3d 105, 108; Walczak, 142 F.3d 119, 132. R.B. v. New York Dep’t of Educ., 603 Fed App’x 36, 40 (2d Cir. Mar. 19, 2015) (stating that “[t]he requirement that students be educated in the least restrictive environment applies to the type of classroom setting, not the level of additional support a student receives within a placement”; T.C., 2016 WL 1261137 at *13 (stating that “[a] less restrictive environment refers to the ratio of special education to general education students in the same classroom, not the ratio of special education students to teachers”). Here, the District avers that the exclusive 1:1 instruction provided to the Student in the Private School was a ‘highly restrictive’ environment. However, “while the restrictiveness of a private placement is a factor [in assessing the appropriateness of a unilateral placement], by no means is it dispositive”; and that “[r]estrictiveness may be relevant in choosing between two or more otherwise appropriate private placement alternatives, or in considering whether a private placement would be more restrictive than necessary to meet the child’s needs, but where the public school system denied the child a FAPE, the restrictiveness of the private placement cannot be measured against the restrictiveness of the public school option.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837, 840 (2d Cir. 2014).

The Second Circuit Court reasoned that “parents whose children are denied a FAPE may be and often are forced to turn to specialized private schools that educate only disabled children. Such private schools are necessarily restrictive as they do not educate disabled and nondisabled children together and may be more restrictive than the public school from which the child was removed. Inflexibly requiring that the parents secure a private school that is nonrestrictive, or at least as nonrestrictive as the FAPE-denying public school, would undermine the right of unilateral withdrawal as recognized by the Supreme Court in Burlington. See 471 U.S. 359, 370; C.L., 744 F.3d 826, 837; see also, Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss ex rel. Boss, 144 F.3d 391. 400 (6th Cir. 1998) (noting Congress did not intend for a parent to choose between, on the one hand, letting a child remain in FAPE-denying public school, and, on the other hand, removing the child to specialized private school without tuition reimbursement merely because the specialized private school is more restrictive than a FAPE-denying public school). Accordingly, it this Hearing Officer’s finding that LRE should not be a deciding factor applicable to the Parent’s unilateral placement of the Student at the Private School.

  • • Balancing of the Equities Generally, the last determinant for tuition reimbursement is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. Burlington, 471 U.S. 359, 374; R.E., 694 F.3d 167, 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). “Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the Court determines that the cost of the private education was unreasonable.” Carter, 510 U.S. 7, 16; L.K. v. New York City Dep’t of Educ., 674 Fed. App’x 100, 101 (2d Cir. Jan. 19, 2017). The IDEA also provides that reimbursement 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. 20 U.S.C. § 1412(a)(10)(C)(iii); 34 CFR 300.148(d). The Second Circuit identified certain factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school. E.M., 758 F.3d 442, 461; C.L., 744 F.3d 826, 840 (noting that “[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA”).
  • • Parent’s Notice of Unilateral Placement Federal and State regulations provide that tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent IEP meeting prior to their removal of 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.” 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 CFR 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 rather than mandatory, Courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. Greenland, 358 F.3d 150, 160; Rafferty, 315 F.3d 21, 27; Frank G., 459 F.3d 356, 376; Voluntown, 226 F.3d 60, 68.

Here, there is no indication that the Parent unreasonably failed to provide timely notice of the unilateral placement to the District. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 CFR 300.148(d)(1). The Hearing Record reflects that the Parent provided the District with a TDN on August 20, 2019, which informed the District that she intended to enroll the Student into the Preparatory School for the 2019/2020 school year; and on August 21, 2019, the District acknowledged receipt of the TDN.

  • • Parent’s Cooperation with District The Supreme Court stated that “[t]he core of the [IDEA] is the cooperative process that it establishes between parents and schools.” Schaffer, 546 U.S. 49, 53, citing Rowley, 458 U.S. 176, 205-06. The Second Circuit has held that where a Parent cooperates with a District in its attempts to develop an appropriate educational program for the Student, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming... that the parents never intended to keep [the student] in public school.” C.L., 744 F.3d 826, 840. New York State Regulations impose specific requirements for District placements such as: (i) levels of academic or educational achievement and learning characteristics; (ii) levels of social development; (iii) levels of physical development; and (iv) the management needs of the students in the classroom as well as the specific age range of the students. NYCRR 8 §200.6(h). Ultimately, both the Parent and the District must take certain affirmative steps to ensure completion of the placement process. The Hearing Record does not reflect that the Parent acted in a manner that was uncooperative prior, during or subsequent to the 2019 CSE Meeting; obstructive in providing evaluative information and/or timely responses to the District; reluctant to attend a CSE meeting; or otherwise unwilling to consider an alternative placement. Which when considered together with the Parent’s timely TDN, would generally indicate that equitable considerations favor the Parent. However, as demonstrated supra, the Hearing Record does not demonstrate that the Private School provided an education program with specially designed instruction to address the Student’s particular strengths, deficits and abilities, which resulted from his diagnoses and disabilities.

Based on the foregoing, and upon full consideration of the totality of the circumstances, the evidence in the Hearing Record demonstrates that the Parent’s unilateral placement of the Student at the Private School during the 2019/2020 school year was neither appropriate nor reasonably calculated to offer specially designed instruction to address the Student’s individual needs; as it relates to his academic, executive functioning and social-emotional needs, which according to the Psychologist required Counseling and redress for his SLD Impairments and ADHD-related behaviors. More particularly, placement at the Private School was not in alignment with the recommendations of the Psychologist who attested that the Student was a child who absolutely continued to need special education services, to be provided in an ICT, low-student-to-teacher ratio inclusion classroom, with both general education and special education students. Accordingly, the unilateral placement did not meet the standards of the Burlington/Carter Test. Consequently, it is this Hearing Officer’s determination that the Parent has not met the burden of demonstrating the appropriateness of the Student’s unilateral placement at the Private School, and relief sought for reimbursement of the cost of the Student’s tuition paid to the Private School for the 2019/2020 school year, is hereby Denied.

ORDER

WHEREFORE IT APPEARING that the Hearing Record adequately demonstrates that after full consideration of the Hearing Record, together with the applicable Federal and State Regulations, and the Conclusions of Law herein, this Hearing Officer has determined that the (i) District failed to ensure that the Student was fully and appropriately evaluated and assessed in all areas related to his suspected disabilities, prior to developing the 2019 IEP; (ii) District failed to fully consider all evaluative data presented for the 2019 CSE Meeting, prior to rendering its determination regarding the Student’s placement and programing; (iii) District relied on the findings, opinions and recommendations in the independent Psychological Evaluation in the stead of conducting comprehensive evaluations of the Student in advance of the 2019 CSE Meeting; (iv) District failed to conduct a Vocational Assessment and develop Transition Goals for the Student, during the 2019/2020 school year; (v) District denied the Student an appropriate educational placement and program, during the 2019/2020 school year; (vi) District failed to satisfy its statutory burden of persuasion of refuting that it procedurally and/or substantively denied the Student a FAPE; and (vii) Parent failed to satisfy its burden of demonstrating the appropriateness of the Student’s unilateral placement at the Private School, during the 2019/2020 school year.

IT IS HEREBY ORDERED that the District failed to provide a FAPE to the Student during the 2019/2020 school year; and

IT IS HEREBY FURTHER ORDERED that within fifteen (15) days from the date of this Decision, the District shall reimburse, in its entirety, the full cost of the Psychoeducational Evaluation conducted by the Psychologist on July 13, 2018; specifically, upon presentment of Exhibit K, herein, the District shall make direct payment to the Parent in an amount not to exceed two-thousand ($2,000.00) dollars; and

IT IS HEREBY FURTHER ORDERED that the Parent’s request for reimbursement of the tuition paid to the Private School for the Student’s attendance thereat, during the 2019/2020, is hereby Denied; and

IT IS HEREBY FURTHER ORDERED that the Parent’s request for any additional relief sought in the Complaint, for which no supporting testimonial or documentary evidence was provided during the Hearing or otherwise supported by the Hearing Record, is hereby Denied; and

IT IS HEREBY FURTHER ORDERED that the Parent’s request for any relief sought or claims asserted, which were withdrawn prior, during or subsequent to the Hearing, is hereby Denied; and

IT IS HEREBY FURTHER ORDERED that the Parent’s request for any relief sought that is not within the jurisdictional ambit or authority of this Hearing Officer, is not properly seated before me, and is hereby Denied; and

IT IS HEREBY FURTHER ORDERED that the Parent’s request for any relief sought or claims asserted, which were raised subsequent to filing the Complaint, raised during the Hearing and/or raised for the first time in the Closing Brief, is hereby Denied; and

IT IS HEREBY FURTHER ORDERED that the Parent’s request for Attorney Fees and Costs, is Denied; as this Hearing Officer is not authorized to award attorneys’ fees or other costs to a prevailing party; entitlement, if any, must be determined by a Court of competent jurisdiction;[52] and

IT IS HEREBY FURTHER ORDERED that any remaining issue, claim or contention not expressly addressed in this Decision, is hereby Denied.

IT IS SO ORDERED.

Dated: August 28, 2022

_/s/ Patricia L. Murrell______________,

Impartial Hearing Officer, Patricia L. Murrell

IHO.PatriciaMurrell@gmail.com

Copies to: All Parties

NOTICE OF RIGHT TO APPEAL

Within forty (40) days of the date of this Decision, the Parents and/or the 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 twenty-five (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 forty (40) days from the date of the decision sought to be reviewed. An appealing party shall file the (i) notice of intention to seek review, (ii) notice of request for review, (iii) request for review, and (iv) proof of service with the Office of State Review of the New York State Education Department within two (2) days after service of the request for review is complete. The Rules of Procedure for Proceedings 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.

INDEX OF EVIDENCE

PARENTS’ EVIDENCE/EXHIBITS

Ex. Description Date(s) No. Page(s)

A Due Process Request (“Complaint”) May 20, 2021 9

B Ten Day Notice of Unilateral Placement w/Service August 20, 2019 4

C Psychoeducational Evaluation July 13, 2018 13

D [Redacted] – Program Description 2019/2020 2

E [Redacted] – Remote Learning Plan 2019/2020 1

F [Redacted] – Progress Reports Jan - July 2020 7

G [Redacted] – Enrollment Contract December 22, 2019 10

H [Redacted] – Enrollment Contract Supplement March 17, 2020 3 I [Redacted] – Tuition Affidavit April 30, 2020 1

J [Redacted] – Class Schedules 2019/2020 10

K Psychological Services Invoice July 13, 2018 1

Total Pages w/Cover: 62

DISTRICT EVIDENCE/EXHIBITS

Ex. Description Date(s) No. Page(s)

1 Individualized Education Program March 05, 2019 23

2 Prior Written Notice June 10, 2019 6

3 Social History Update May 16, 2018 2

4 Psychoeducational Evaluation July 13, 2018 13

5 [Redacted] Progress Report March 5, 2019 5 Total Pages w/Cover: 50

HEARING OFFICER EXHIBITS

Ex. Description _____ Date(s) No. Page(s)

IHO-1 District’s Statement of Facts February 23, 2022 1

IHO-2 Parent’s Statement of Facts February 23, 2022 1

IHO-3 Updated Statement of Issues for Adjudication February 23, 2022 2

IHO-4 District’s Letter Brief re Tuition March 2, 2022 1

IHO-5 Parent’s Memorandum of Law re Tuition March 2, 2022 2

IHO-6 Affidavits of Tuition for Loan March 7, 2022 4

IHO-7 Vocational Interview Form May 16, 2018 3

IHO-8 Parent’s Closing Brief April 5, 2022 20

IHO-9 District’s Closing Brief April 5, 2022 16

Total Pages w/Cover: 50

INDEX OF EVIDENCE

(cont.)

TRANSCRIPTS

Type of Conference/Hearing Date(s) __No. Page(s)

Prehearing Conference December 21, 2021 23

Status Conference February 3, 2022 22

Due Process Hearing – Day 1 March 1, 2022 203

Due Process Hearing – Day 2 March 2, 2022 158

Total Transcripts: 406

Total Document Page(s): 568

Footnotes

[1] The Hearing Record cited to in these Findings of Fact and Decision (hereinafter, the “Decision”) includes and references documents, which are designated as follows: to the Transcript, “Tr.” followed by the respective page/line number(s); to the Exhibits, as designated by the Parent’s Disclosure/Exhibit List, which are identified alphabetically: (A through K); as designated by the District’s Disclosure/Exhibit List, which are identified numerically: (1 through 5); and “IHO” for Impartial Hearing Officer Exhibits, (IHO-1 through IHO-7); and, as to any other document(s) included in the Hearing Record not specifically assigned an exhibit number, each of which will be identified by the respective document name and relevant page numbers, therein.

[2] See, IHO-1 – District’s Statement of Facts.

[3] See, IHO-2 – Parent’s Statement of Facts

[4] See, IHO-3 – Updated Statement of Issues to be Adjudicated.

[5] See, IHO-4 – District’s Letter Brief re Tuition.

[6] See, IHO-5 – Parent’s Memorandum of Law re Tuition.

[7] See, IHO-7 – Vocational Interview Form.

[8] See, IHO-8 – Parent’s Closing Brief.

[9] See, IHO-9 – District’s Closing Brief.

[10] See, 4-4; 4-5; 4-11; C-4; C-5; C-11; see also, Tr. 173:11-25; Tr. 174:7-12; Tr. 175:23-25; through, Tr. 178:1-10.

[11] See, 3-1; 3-2.

[12] See, IHO-6-1 through IHO-6-3.

[13] See, 4-4; 4-11; 4-12; see also, C-4; C-11; C-12; see also, Tr. 178:11-25; Tr. 179:1-9.

[14] See, 4-12; 4-13; see also, C-12; C-13.

[15] See, K-1.

[16] See, 5-1 through 5-5.

[17] See, 1-2; 1-22; 1-23;

[18] See, 1-1 through 1-21.

[19] See, 2-1 through 2-5; see also, A-5; A-6.

[20] See, B-1 through B-4.

[21] See, Tr. 188:20-25; Tr. 189:1-25; Tr. 190:1-13; Tr. 198:1-18; through Tr. 201:1-5; see also, Tr. 286:1-7.

[22] See, G-1 through G-10; see also, H-1 through H-3.

[23] See, I-1.

[24] See, J-1; J-2.

[25] See, D-1; E-1.

[26] See, F-1 through F-7.

[27] See, A-1 through A-9.

[28] See, Tr. 73:7-25; Tr. 74:1-4; Tr. 76:20-25; Tr. 87:13-20; Tr. 103:5-25; Tr. 104:1-15; Tr. 114:16-25; Tr. 115:1-11.

[29] See, Tr. 77:1-25; through and including, Tr. 82:1-15; see also, 1-6.

[30] See, Tr. 83:5-25; Tr. 84:1-25: Tr. 85:1-25; Tr. 86:1-18; see also, 1-18.

[31] See, Tr. 92:1-25; Tr. 93:1; Tr. 94:16-25; Tr. 95:1-19; Tr, 96:1-25; through and including, Tr. 99:1-25.

[32] See, Tr. 128:19-25; Tr. 129:1-4; Tr. 130:1-25; Tr. 131:1-20.

[33] See, Tr. 179:20-25; Tr. 180:1-25; Tr. 181:1-19; Tr. 182:6-11.

[34] See, Tr. 196:15-19; Tr. 211:17-25; Tr. 212:1-22; IHO-6 – Affidavits of Loan; Tr. 223:8-25; Tr. 224:1-12.

[35] See, Tr. 204:23-25; Tr. 205:1-2.

[36] See, Tr. 231:15-25; Tr. 232:1-25; Tr. 233:1-25; Tr. 234:1-20.

[37] See, Tr. 234:21-25: Tr. 235:1-25; Tr. 236:1-25; Tr. 237:1-10.

[38] See, Tr. 240:1-25; Tr. 241:1-9; Tr. 241:13-21; Tr. 243:2-7.

[39] See, Tr. 270:1-9.

[40] See, Tr. 244: 1-7; Tr. 244:18-22.

[41] See, Tr. 246:16-25; Tr. 247:1.

[42] See, Tr. 260:15-23; Tr. 262:10-25: Tr. 263:1-7.

[43] See, Tr. 259:14-25; Tr. 260:1.

[44] See, Tr. 268:18-25: Tr. 269:1-10.

[45] See, Tr. 267:12-25; Tr. 268:1-11.

[46] See, Tr. 283:9-19; Tr. 284:1-25; Tr. 285:1-25; Tr. 286:1-11.

[47] See, Tr. 287:24-25; Tr. 288:1-13; Tr. 289:4-14; Tr. 290:13-25; Tr. 291:1-13; Tr. 295:1-24.

[48] See, Tr. 292:21-25: Tr. 293:1-2; Tr. 293:8-25;

[49] See, Tr. 312:24-25; through and including, Tr. 324:1-8

[50] See, Tr. 324:9-25; through and including, Tr. 328:1-13

[51] See, Tr. 329:24-25; Tr. 330:1-25: Tr. 331:1-23; Tr. 334:14-25; through and including, Tr. 336:1-25.

[52] See, 20 U.S.C. § 1415(i)(3)(B); 34 CFR 300.517; Mr. B. v. E. Granby Bd. of Educ., 201 Fed. App’x 834, 837 (2d Cir. Oct. 27, 2006).