New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 560137- NYC: 216117

FINDINGS OF FACT AND DECISION

Student's Name 1: [REDACTED] ("Student")

Date of Birth: 6/15/2004

School District: New York City Department of Education Hearing Requested by: [REDACTED] ("Parent(s)")

Request Date/Date Complaint Filed: September 9, 2021

Date(s) of Hearing: March 28, 2023

Actual Record Closed Date: August ^[1], 2023

Date of Decision: August 2, 2023

Hearing Officer: Mercedes Cesaratto

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 28, 2023

For the Student:

[REDACTED], Esq.

[REDACTED] - Parent

[REDACTED] - CSE Liaison of Private School

[REDACTED] - Neuropsychologist

For the Department of Education:

[REDACTED], Esq.

INTRODUCTION

This matter comes before the undersigned Impartial Hearing Officer ("IHO") on Parent's Due Process Complaint ("DPC") filed on or about September 9, 2021 (Ex. P-A).^[2] The Parent alleges that the New York City Department of Education ("DOE/District") failed to provide the Student with a Free Appropriate Public Education (FAPE) for the 2021-22 school year ("SY at Issue" or "2021-22 School Year"). (Ex. P-A) For the failure to provide the Student with a FAPE, the Parent is requesting direct funding and/or reimbursement for the 2021-2022 school year at the [REDACTED] School ("Private School"); and funding for an Independent Educational Evaluation ("IEE"), specifically, a neuropsychological evaluation, to be conducted by an evaluator of the Parent's choosing at a rate not to exceed $7, 500.00. (Ex. P-A)

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, "IDEA"), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

PROCEDURAL HISTORY

On September 9, 2021, a DPC was filed against the New York City Department of Education ("DOE/District") by the [REDACTED] ("Law Firm"), as attorney for Parent ("Parent") and on behalf of the Student, pursuant to the Individuals with Disabilities Education Act ("IDEA", or the "Act") [20 U.S.C. § 1415(f)] and Section 4404(1) of the New York State Education Law ("Education Law"). (Ex. P-A) The DPC asserts that the DOE failed to provide the Student with a FAPE by engaging in both procedural and substantive violations for the 2021-2022 school year. (Ex. P-A)

This matter was assigned to IHO Itzla on January 31, 2023. There were several conferences held and extensions of the compliance date issued. On March 28, 2023, a merit's hearing was held. Parent was represented by [REDACTED], Esq. ("Parent Attorney"). The DOE was represented by [REDACTED], Esq. ("DOE Attorney"). The DOE offered two documents into evidence but did not present any witnesses. The DOE did not present a case or defend the allegations in the DPC that the DOE failed to provide the Student with a FAPE for the 2021-2022 (Tr. 77-78) The DOE did not challenge the Parent's claim that the unilateral placement was appropriate or that the equities favor the Parent. Parent presented testimonial and documentary evidence. Parent submitted exhibits P-A through P-M which were admitted into evidence without objection from the DOE. The DOE did not present an opening statement. The Parent presented an opening statement. In addition to the documentary evidence, Parent submitted three witness affidavits and presented the witnesses for cross examination: Parent, [REDACTED] ("CSE Liaison" for the Private School) and [REDACTED] ("Neuropsychologist"). The DOE declined to cross examine any of the witnesses. (Tr. 82,86) The DOE waived a closing statement. (Tr. 91) The Parent indicated they would like their opening statement to serve as their closing statement. (Tr. 91) On May 30, 2023, IHO Itzla's appointment was rescinded. On May 31, 2023, I was appointed to hear this matter. Since the merit's hearing was held before a prior IHO, I requested that the parties submit closing briefs in this matter. The DOE declined to submit a closing brief. The Parent submitted a closing brief attached as an IHO exhibit. A list of the documentary evidence in this proceeding is appended to this decision.

ISSUES

The issues to be addressed are whether (i) the District met their burden in providing the Student with a FAPE for the 2021-2022 SY (under Prong I); (ii) the Parent demonstrated that the unilateral placement at the Private School is an appropriate placement for the Student (under Prong II); (iii) the equities favor the Parent and tuition reimbursement/direct funding of the Private School tuition is an appropriate remedy (under Prong III); and (iv) the Parent is entitled to have the DOE fund the requested IEE.

FINDINGS OF FACT

Student's Prior History

The DOE's Committee on Special Education ("CSE") classified the Student as having a disability classification of "Other Health Impairment", the Student's classification and entitlement to special education programming is not in dispute. The Student has been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD"); Language Disorder, Specific Language Disorder with impairment in written expression, and Development Coordination Disorder. (Ex. P-A; D9) The Student was last evaluated in November 2017, almost 6 years ago. (Ex. P-D) The Parent enrolled the Student in the Private School starting in the 2018-2019 school year because the Private School's program was consistent with the recommendations made by the comprehensive evaluation conducted in 2017. (Ex. P-L; D) The DOE has funded the Parent's unilateral placement in the Private School for 2018-2019; 2019-2020; and 2020-2021 school years. (Ex. P-A) The Parent contends the Student has made meaningful progress each year the Student has attended the Private School. (Ex. P-A)

On February 10, 2021, the CSE held an individualized education program ("IEP") meeting for Student for the 2021-2022 school year. (Ex. P-A, C) The Parent attended the IEP meeting and stated the DOE recommended placing the Student in an integrated co-teaching ("ICT") classroom in a DOE Community school with related services of counseling and speech-language therapy. Parent contends she disagreed with the DOE recommendation because it was inconsistent with the recommendations made by both the neuropsychologist who conducted the Student's prior evaluation and the Private School staff. (Ex. P-L)

Parent alleges the February 10, 2021 IEP was both procedurally and substantively deficient, including, inter alia: (i) the program recommendations conflicted with the recommendations made by the neuropsychologist and the professionals from the Private School; (ii) the ICT classroom would be too large for the Student to make any meaningful progress and there was no evaluative information provided to indicate the Student would make progress in a large, less supportive classroom; (iii) the IEP did not recommend the multi-sensory, intensive reading and writing the Student required which had been provided by the Private School for the last three years; (iv) the IEP was based on "DOE evaluations" that were not provided to the Parent; and (v) the DOE failed to provide the Parent with a copy of the IEP.

The DOE sent the Parent a school location letter designating [REDACTED] School ("Public School") as the recommended placement. Parent requested a tour of the Public School and inquired of the DOE how the Public School intended to implement the special education program and related services for the Student. (Ex. P-A) Parent states the DOE did not respond to her questions and failed to provide a tour of the Public School, despite the Parent's willingness to consider the Public School placement. (Ex. P-A)

On August 25, 2021, the Parent sent a letter to the DOE informing the DOE they had not received a copy of the February 10, 2021 IEP and that absent receiving an appropriate placement and recommendation for the Student, they intended to re-enroll the Student in the Private School and seek tuition reimbursement for the 2021-2022 school year. (Ex. P-A). The August 25, 2021, letter further informed the DOE that the Parent disagreed with the "DOE

Evaluations" and that the DOE failed to evaluate the Student in all areas of suspected disability. On August 25, 2021, the Parent requested the DOE fund an independent neuropsychological evaluation and speech language evaluation ^[3]. Parent states the DOE has not funded the requested independent educational evaluation nor defended the DOE evaluations as mandated by law. (Ex. P-A)

Private School

The CSE Liaison testified via affidavit that the Private School is a co-educational specialized school for students from kindergarten through 12th grade. Most of the students at the Private School struggle with language and learning. (Ex. P-J1) The Private School provides Occupational Therapy, Speech and Language Therapy, and counseling services. All the Head teachers at the Private School are required to have their master's degree and certified to teach students with disabilities in New York State. (Id.) All the assistant teachers are required to have graduated from a four-year college. (Id.) All related service providers are licensed in New York State in their area of expertise. (Id.) All teachers are offered professional development. The teachers at the Private School meet weekly to discuss the academic progress and social emotional status of all students. The Private School offers small group instruction with various levels of support in small class sizes of up to 12 students with two teachers. The high school program at the Private School provides small classroom settings and teachers with expertise in their content areas including students with disabilities. (Ex. PJ2) The Private School utilizes the New York State Regents Curriculum and provides lessons in a variety of modalities to reach the learning styles of the individual students. (Ex. P-J2)

The CSE Liaison testified he is familiar with the Student and the Student's diagnosis of ADHD with Specific Learning Disorder with impairment in written language, and developmental coordination disorder. The Student is in a small class with one head teacher and one assistant teacher. The Student requires frequent prompts and reminders to stay on task. (Ex. P-J2) The teachers at the Private School breakdown directions into discreet steps and model directions for the Student with the use of graphic organizers and scaffolding. (Ex. P-J2) The Student receives Speech and Language therapy on a push-in basis once a week. (Ex. P-J2) The Student receives numerous supports to address his social-emotional issues with Health and Human Relations (HHR) class in a group setting. (Ex. P-J4) The CSE Liaison further testified that the Student has made academic progress across all his subjects, particularly in decoding, organizational skills, math, and in regulating his emotions. (Ex. P-J5)

CONCLUSIONS OF LAW

A. Burden of Proof

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c) ^[4]; see also R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).

B. Free Appropriate Public Education

The IDEA and the New York State Education Law provide that children with disabilities are entitled to a Free Appropriate Public Education (FAPE). 20 U.S.C. § 1400 (d)(1)(A); Educ. Law §§ 4402(2)(a), (b)(2). Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are:

(1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and

(2) to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B). A FAPE consists of specialized education and related services designed to meet a student's unique needs, provided in conformity with a comprehensive Individualized Education Plan (IEP). 20 U.S.C. §§ 1401(9), (29); see also Bd. Of Educ. Of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-207 (1982).

A school district has offered a student a FAPE when: (i) the board of education complies with the procedural requirements set forth in the IDEA; and (ii) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07. "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206; see also T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009).

To meet its substantive FAPE obligations, a district must offer a student an IEP that is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). As the Supreme Court has stated, "After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (citing §§ 1414(d)(1)(A)(i)(I)– (IV)). Id.

"Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not." R.E., 694 F.3d at 190-191. Not all procedural errors, however, render an IEP defective and warrant relief. See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). If procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012). School districts are obligated to provide the special education services listed in a student's IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d) ("FAPE means special education and related services that . . . [a]re provided in conformity with an individualized education program (IEP) that meets the requirements of §§ 300.320 through 300.324"). School district actions that constitute a "material failure of implementing the IEP" deny a FAPE. See A.P. v. Woodstock Bd. Of Educ., 370 Fed. Appx. 202, 205 (2d Cir. 2010) (citing Van Duyn ex. Rel. v. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821 (9th Cir. 2007) ("A material failure occurs when the services provided to a disabled child fall significantly short of those required by the IEP").

C. Parent's Private Placement

Parents who think that their child is not receiving a FAPE may pay for private services and seek reimbursement from the school district for "'expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.'" M.H. v. New York City Dep't of Educ., 685 F.3d 217, 246 (2d Cir. 2012) (quoting, T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir.2009) (quoting Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 370-71, (1985)). In making a claim for reimbursement, "the burden shifts to the parents to demonstrate that the school in which they have chosen to enroll their child is appropriate." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007); M.H., 685 F.3d at 245. The parent has the burden of proving that the unilateral placement provided "educational instruction specifically designed to meet the unique needs" of the student. Gagliardo, 489 F.3d at 112. Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000).

The "same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement. [T]he issue turns on whether a placement – public or private – is 'reasonably calculated to enable the child to receive educational benefits.'" Gagliardo, 489 F.3d at 112 (quoting Frank G. v. Bd of Educ., 459 F.3d 356, 364 (2d Cir. 2006)). A private placement meeting this standard is one that is "likely to produce progress, not regression." Gagliardo, 489 F.3d at 112 (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]).

Parents are, therefore, not barred from reimbursement even where a private school they choose does not meet the IDEA definition of a FAPE. Frank G., 459 F.3d at 364. In satisfying their burden, Parents need not show that the private placement: (i) meets state education standards or requirements; (ii) provides certified special education teachers; or (iii) provides for an IEP. Id. (citing Florence County Sch. Dist. Four v. Carter, 520 U.S. 7, 14 [1993]). "IDEA's requirement that an appropriate education be in the mainstream to the extent possible ... remains a consideration that bears upon a parent's choice of an alternative placement and may be considered by the hearing officer in determining whether the placement was appropriate." M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir.2000) (citing 20 U.S.C. § 1412(5)(B)) (emphasis added). However, parents "'may not be subject to the same mainstreaming requirements as a school board.'" Frank G. v. Bd. of Educ., 459 F.3d at 364 (quoting M.S., 231 F.3d at 102. see also C.L. v. Scarsdale Union Free Sch. Dist., 744 F. 3d 826, 837 (2d Cir. 2014) ("[P]arents whose children are denied a FAPE may be and often are forced to turn to specialized private schools that educate only disabled children.").

The Second Circuit has explained that whether the placement is "reasonably calculated to enable the child to receive educational benefits" is determined by a consideration of the "totality of circumstances":

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child 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 a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112 (quoting Frank G. v. Bd of Educ., 459 F.3d at 364-65).

A school district may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the District were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); see also Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. Burlington, 471 U.S. at 370-71; Gagliardo, 489 F.3d at 111. "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). Compensatory education is an available equitable remedy to make up for denial of a free and appropriate public education. P. v. Newington Bd., 546 F.3d at 111, 123 (2d Cir. 2008). A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. Carter, 510 U.S. at 7 Burlington, 471 U.S. at 369-70.

D. Equitable Considerations

To receive an award of tuition reimbursement associated with a private school program, a weighing of the equities must support that award, as "equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief" (Frank G., 459 F.3d at 363-64; 20 U.S.C. § 1412[a][10][C][iii]). When a school district fails to provide a student with a FAPE and the private placement is found to be appropriate, "the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief" (Gagliardo, 489 F. 3d at 112, citing Carter, 510 U.S. at 16). "A major consideration . . . is whether the parents have cooperated [with the school district] throughout the process to ensure that their child receives a FAPE" (N.R. ex rel. T.R. v. Dept. of Educ., 2009 WL 874061, at *6 (S.D.N.Y. 2009) (citation omitted). Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting before their removal of a student from public school, or by written notice ten business days before that removal. See 20 U.S.C. §1412(a)(10)(C)(iii)(I) and 34 CFR 300.148(d)(1).

ANALYSIS

A. District's Failure to Provide A FAPE

The DOE did not present a case or present any witness testimony at the hearing. The DOE did not present an opening statement or a closing statement. The DOE did not crossexamine any of the Parent's witnesses. The DOE failed to address or sustain its burden under the Education Law and failed to demonstrate it provided the Student with a FAPE for the 2021-2022 school year. Furthermore, the DOE did not object to or contest the substance of the evidentiary material submitted by the Parent in support of their claims, and it offered no documentary evidence contradicting the Parent's evidentiary material or any rebuttal to the testimony provided by the Parent's witnesses. Consequently, the Parent is entitled to a presumption as to the truth of the asserted facts underlying their claims that are contained in the documentary evidence and testimony to the extent they are credible and are not contradicted by the hearing record. See Comdyne I, Inc. v. Corbin, 908 F. 2d 1142, 1149 (3d Cir. 1990) [noting that the consequence of a defendant's failure to contest the claims alleged in a complaint is that "the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true"].

Based on that presumption and the DOE's failure to sustain its burden under the Education Law, the record establishes that the DOE failed to provide the Student with a FAPE for the 2021-2022 school year. Accordingly, the Parent has met the first prong of the Burlington/Carter Test for tuition funding and/or reimbursement.

B. Parent's Unilateral Placement at the Private School was Appropriate

Given the District's failure to meet its burden of proof to demonstrate a FAPE, the next issue to determine is whether the Parent's unilateral placement of the Student at the Private School was appropriate. I find the testimony provided by the Parent, and the CSE Liaison to be credible. For the following reasons, I find that the Parent met their burden of proof in demonstrating the unilateral placement at the Private School was appropriate.

The question of whether the Private School was an appropriate unilateral placement is principally determined by analyzing whether the program provided "educational instruction specially designed to meet the unique needs of [the student]" (Rowley, 458 U.S. at 188-89; see Gagliardo, 489 F.3d at 115; Frank G., 459 F.3d at 365). A review of the hearing record establishes that the testimonial and documentary evidence submitted by the Parent in this case was sufficient to identify the Student's unique individual needs and to satisfy the Parent's burden to establish the appropriateness of the Student's unilateral placement at Private School for the 2021-2022 school year.

The placement of Student in the Private School was reasonably calculated to enable the Student to receive the educational benefits and supports the Student required to progress allowing the Student to succeed academically and emotionally. The Student progressed while in the Private School during the 2021-2022 school year. As summarized above, the Parent and the CSE Liaison of the Private School credibly testified that Student's program at Private School was individualized and specifically targeted to address the Student's unique needs. The CSE Liaison's testimony reflected her very detailed knowledge and familiarity with the needs and behavior of the Student. The environment and program created by the Private School specifically addressed the Student's challenging behavior in a variety of modalities. The Private School uses different teaching modalities which demonstrate a comprehensive understanding and ability to cope with the Student's atypical learning styles and behaviors. The Student is making progress in learning how to regulate his emotions. The Parent detailed the Student's progress in improving from a social-emotional standpoint and in academic areas. (Ex. P-L2) Parent stressed the Student has benefitted greatly from the small class sizes and multi-sensory instruction that he receives at the Private School. (Ex. P-L2)

Thus, the Parent's selection of the Private School was appropriate and reasonably calculated to allow the Student to make meaningful educational benefits and progress. The Parent has met the second prong of the Burlington/Carter analysis in sustaining their burden in demonstrating the unilateral placement at the Private School for the 2021-2022 school year was appropriate.

C. Consideration of the Equities and Reimbursement Amount

The Parent acted reasonably, equitably, and cooperated with the District in the IEP process. The equitable considerations support the Parent's request for reimbursement.

The Parent cooperated fully with the CSE team and took part in the February 10, 2021, IEP meeting. The Parent testified they were willing to consider any appropriate placement and program for the Student and requested a tour of the Public School recommended by the DOE, despite their disagreement with the recommendations. However, the DOE did not provide the Parent with a tour of the Public School and failed to respond to the Parent's questions regarding how the IEP would be implemented at the Public School. The DOE also failed to provide the Parent with a copy of the IEP. On August 25, 2021, the Parent timely provided the DOE with notice of their intention to re-enroll the Student at the Private School. The Parent testified the District did not respond to the August 25, 2021 letter. Parent re-enrolled the Student at the Private School for the 2021-2022 school year. There is nothing in the record indicating the Parent failed to cooperate, delayed, interfered with, or hindered the CSE's evaluation, program development, or placement process in any way. Furthermore, the District does not contest that the Parent cooperated fully with the CSE. I find the equitable factors support the Parent's claim for tuition reimbursement for the 2021-2022 school year.

There is nothing in the record to indicate that the amount of tuition sought for the Private School was unreasonable. The Private School tuition for the 2021-2022 school year is $63,500.00. (Ex. P-E) The Parent paid $500.00 towards the 2021-2022 school year tuition. (Ex. P-F) The Parent's request for funding and reimbursement upon submission of proof of payment of the tuition to the Private School is granted. Based on the foregoing, the Parent has met the third prong of the Burlington/Carter Test, as a weighing of the equities supports an award of tuition funding and/or reimbursement to the Parent.

The Supreme Court has indicated that "[c]ourts fashioning equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required", and that "[t]otal reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable" (Carter, 510 U.S. at 16). Here, the Private School's tuition is not unreasonable. See Mr. and Mrs. A. ex rel. D.A. v. New York City Dept. of Educ., 769 F. Supp. 2d 403, 429 (S.D.N.Y. 2011) (determining that the private school tuition was not unreasonable in light of the education and related services the school provided). Accordingly, the Parent is entitled to an order directing the DOE to reimburse/fund the tuition for Private School, as discussed above for the 2021-2022 school year.

Independent Educational Evaluations

An Independent Educational Evaluation ("IEE") is 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). If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. 8 NYCRR § 200.5(g)(1). An IEE may be requested by parents, 8 NYCRR § 200.5(g)(1), or by an impartial hearing officer, 8 NYCRR § 200.5(g)(2). If an IEE at public expense is requested by parents, "the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria." 8 NYCRR § 200.5(g)(1)(iv). This is because evaluations identify the student's needs, establish annual goals related to those needs, and provide for the use of special education services to formulate an appropriate educational program synthesized in an IEP. See Application of a Student with a Disability, Appeal No. 08-052; Application of a Student with a Disability, Appeal No. 08-060. Re-evaluations must be conducted at least every three years unless both the parents and the district agree that a re-evaluation is unnecessary. 34 CFR §300.303(b)(2).

"A district must ensure that the student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. §1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). 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 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]." Application of a Student with a Disability, Appeal No. 22-004 at 11.

A parent may express disagreement with a district's evaluations via a due process complaint and need not even identify specific reasons for such disagreement, in order to trigger the entitlement to an IEE. (See Application of a Student with a Disability, Appeal No. 19-094 at pp. 6-7). In Appeal No. 19-094, the SRO noted, "Contrary to the district's argument that a claim for an IEE cannot be raised for the first time in a due process complaint notice, a parent may file a due process complaint notice 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 free appropriate education 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])." Id. at 7. The SRO's decision in Appeals No. 19-094 rejecting the school district's argument or appeal that has equal applicability here: "Absent any requirement that the parent express her disagreement with the results of a district's evaluation in a specific format, there is no reason why a due process complaint notice may not serve the function of expressing the parent's disagreement to the district." Id.; see also Application of a Student with a Disability, Appeal No. 22-008, at 38 n. 26 ("where the parents requested the IEE in the due process complaint notice, it was incumbent on the district to respond, yet there is no evidence in the hearing record that the district took advantage of the resolution process to agree to fund the IEE (see 34 CFR 300.510[a]) or set out to defend its evaluation of the student during the impartial hearing") (affirming the IHO's decision ordering the district to reimburse the parent for the costs of a psychoeducational evaluation).

In this case, the Parent expressly raised disagreement with the District's evaluation via the August 25, 2021 letter. Parent contends they were not provided copies of the DOE evaluations and the DOE evaluations failed to appropriately and thoroughly assess the Student in all areas of suspected disability. The Parent noted their disagreement in multiple respects; i.e., (i) the District's evaluation was insufficient to assess the Student's special education needs, (ii) the District's evaluation contained material deficiencies and failed to appropriately and thoroughly assess the Student in all areas related to his suspected disability. (Ex. P-C) In addition, the DPC placed the District on clear notice as to the component evaluations requested by the Parent as part of a comprehensive IEE, and the associated costs. (P-Ex. A).

Moreover, it is fundamental that the CSE's placement recommendation be based upon the IEP (34 CFR §300.116[b][2]) and that the IEP be based upon current evaluations (34 CFR §300.303[b][2]); see also Application of Student with a Disability, Appeal No. 11-126 at 20. The regulations do not provide limitations or guidance about hearing officer requests or directives for IEEs. As the Parents contend in their DPC, the Student's IEP developed on February 7, 2022 was based on the DOE's evaluations which relied on documents that failed to thoroughly assess the Student in all areas of the Student's suspected disability. (Ex. P-A)

The District did not file a request for a due process hearing or offer documentary evidence defending its evaluation or any components thereof. Trumball v. Board of Educ., 975 F.3d 152 (2d Cir. 2020) see also Application of a Student with a Disability, Appeal No. 22-008, at 37 n. 25 ("Guidance for the United States Department of Education Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, 'the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs' (Letter to Baus, 65 IDELR 81 [OSEP 2015]; see Letter to Carroll, 68 IDELR 279 [OSEP 2016])." Here, the DOE has neither provided the independent evaluation requested, nor initiated a hearing to demonstrate the appropriateness of its actions. The District also failed to challenge the rate requested for the IEE. The District has failed, therefore, to carry its burden of proof and production that its evaluation was appropriate. Thus, the DOE has not refuted the Parent's entitlement to an evaluation, nor challenged the amount requested for the IEE. Parent submitted an affidavit and a CV from the Neuropsychologist describing her extensive credentials and the amount requested for the neuropsychological evaluation, to wit: $7,500. (Ex. P-K1-2; M) (see, e.g., Application of Student with a Disability, Appeal No. 20-490: "A prominent feature of this case is that the district did not attempt to defend itself at the impartial hearing against the parent's claim that a reevaluation of the student was needed and that the district failed to conduct one"). Accordingly, the Parent is entitled to the independent educational evaluation requested. The Student requires a comprehensive independent educational evaluation so that the Student's needs can be fully understood and appropriately addressed, and so that an appropriate educational program can be developed. Therefore, this IHO finds that the Student is entitled to the independent educational evaluation, specifically, a neuropsychological evaluation requested and funded at public expense.

ORDER

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

1. ORDERED, that the District failed to provide a FAPE to the Student for the 2021-2022 School Year;

2. ORDERED that the Parent is entitled to reimbursement and direct funding for the Student's tuition at the Private School for the 2021-2022 school year and the Department of Education shall fund the tuition in a total amount not to exceed $63, 500.00 and reimburse the Parent for any portion of the tuition the Parent has paid, within 30 days of the submission of the paid invoice by the Parent; and invoice from the Private School, it is further;

3. ORDERED, that the DOE shall fund an Independent Educational Evaluation, specifically, a comprehensive neuropsychological evaluation, to be conducted by[REDACTED], or a similarly qualified evaluator of the Parent's choosing at a rate not to exceed $7,500.00; and it is further

4. ORDERED, that the DOE shall reimburse the Parents or make a direct payment to the provider/evaluator within 30 days of receipt of the invoice.

SO ORDERED.

DATED: August 2, 2023

Mercedes Cesaratto (signed electronically)

Mercedes Cesaratto

Impartial Hearing Officer

APPENDIX A – REDACTION IDENTIFICATION PAGE

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

DOE'S EXHIBITS

1. IEP 2/10/2021 23 pages DOE

2. Prior Written Notice & School Location Letter 7/2/2021 6 pages DOE

PARENT'S EXHIBITS

PARENT

DATE DOCUMENT No. of Pages

EXHIBIT

A. Due Process Complaint 09/09/2021 10 pages

B. Ten Day Notice 08/25/2021 3 pages

C. Ten Day Notice Proof of Mailing 08/25/2021 1 page

D. Neuropsychological Evaluation 11/07/2017 14 pages

E. Enrollment Contract, [REDACTED] 02/17/2021 7 pages

F. Tuition Affidavit, [REDACTED] 04/12/2022 1 page

G. Program Description, [REDACTED] 2021-2022 1 page

H. Student Schedule, [REDACTED] 2021-2022 2 pages

I. IEP Progress Report 01/24/2022 4 pages

J. [REDACTED] Affidavit 03/16/2023 5 pages

K. [REDACTED] Affidavit 03/20/2023 2 pages

L. [REDACTED] Affidavit M NA [REDACTED] CV 10 4 pages

IHO'S EXHIBITS

IHO-I Parent's Closing Brief undated 9

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[1] Personally identifiable information is attached as Appendix A, "Redaction Identification Page," to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: "P" for Parents' Exhibit followed by a letter; "D" followed by a number for District's or Department's Exhibits; and "IHO" for Impartial Hearing Officer's Exhibits; Transcript is referenced by "Tr." followed by a page number. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[3] Parent withdrew the request for a speech evaluation on 7/28/2023 via email.

[4] "The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing, except that a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement." Educ. Law § 4404(1)(c).