New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 568022 - NYC: 223089

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

REDACTED, a Minor, by and through his/her Parent(s),

PETITIONER FINDINGS OF FACT AND DECISION

against Case # 223089 THE NEW YORK CITY Dustin Johnson, Esq.

DEPARTMENT OF EDUCATION, Impartial Hearing Officer

RESPONDENT

FINDINGS OF FACT AND DECISION

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.

The undersigned Impartial Hearing Officer is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant me the authority to adjudicate this hearing. Furthermore, the undersigned is not currently, nor have I ever been, an employee of the NYC Department of Education. Finally, I do not have any personal or professional interest or bias that conflicts with my objectivity to hear this matter.

II. Overview – Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (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]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an Impartial Hearing Officer (“IHO”) (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).

III. Background and Procedural History

Petitioner is the parent of REDACTED (“Student” or “Child”). On December 22, 2021, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) (see Exhibit P-A) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”).

On March 29, 2022, the undersigned IHO was appointed to preside over this case. On April 5, 2022, a Prehearing Conference was held (See Exhibit IHO-1). On April 29, 2022, an impartial hearing on the merits of the DPC was held and completed the same day.

By due process complaint notice dated December 22, 2021, the Parent alleged, generally, that the DOE failed to provide the Student a free appropriate public education (“FAPE”) by, among other things, not holding a CSE meeting for the 2021-2022 school year, not developing an IEP for the Student, not recommending any program or services for the student, and by not providing prior written notice to the Parent (P-A). Additionally, the Parent alleged that the DOE failed in its Child Find obligations (id.). The Parent asserted that the Student is currently a redacted-year-old in 8th grade during the 2021-2022 school year (id. at p. 2). The Parent asserted that the Student attended a District public school for the 2020-2021 school year and struggled with reading comprehension, listening comprehension, expressive language, and was barely able to pass his classes (id.). The Parent alleged that they advocated for the Student to get an IEP but were constantly thwarted in their efforts by the District and that the District never provided an IEP (id.). After having sought out and received their own neuropsychological evaluation, which diagnosed the Student with ADHD and Learning Disabilities, among other things, and after being constantly frustrated in their efforts to obtain assistance from the District, the Parent ultimately withdrew the Student from the District school and unilaterally placed the Student in a private school (id. at p. 2-5). For relief, the Parent sought a finding that the District denied the Student a FAPE, a finding that the unilateral placement is appropriate, a finding that the equities lean in favor of granting full tuition reimbursement, reimbursement for independent evaluations, and an award of compensatory education (id. at p. 6).

IV. Findings of Fact The Student is currently redacted-years-old and in 8th grade for the 2021-2022 school year (P-M-2). The Student attended a private immersion redacted program from preschool until the end of 6th grade. (P-M-2). Up until the Student started middle school, he did well at the private school and enjoyed attending the immersion program (id.). As he started 6th grade and the schoolwork became harder and more project based, he started having more and more difficulty (id.). In 6th grade the Student “fell off the cliff,” was having “more and more difficulty”, was unable to complete his academic requirements without help, and was not progressing (id.).

The Parent discussed the Student’s worsening performance with his teachers, hired tutors, and continued to try to work with the Student to limited effect (P-M-3). For 7th grade, the Parent’s placed the Student in a public school (id.). The Student started off fine with remote instruction and he continued to have a private tutor, but as the months went by the Student fell farther and farther behind in his classes, struggled with completing both classwork and homework, his self-confidence dropped significantly, and he would avoid being on camera during remote instruction (id.).

The Parents were in contact with the school via email and phone calls on a regular basis regarding the Student’s struggles with school (id.). By the end of the first semester, the Student was lost (id.). In January 2021, the Parents emailed the Student’s teacher to ask to meet with her and let her know that the Parents had hired a professional educator to work with the Student to help him catch up (id.). The teacher emailed the Parent back to let the Parent know that the teacher had reached out to one of the Assistant Principals who was the head of special education at the school and that the Parents should contact the Assistant Principal directly (id.). The Parents again asked the teacher for a parent-teacher meeting and to have someone else from the District school at the meeting to help facilitate the discussion (id.). The Parents told the teacher that the Student needed help that he was not receiving (id.).

In January 2021, the Parents spoke with the Assistant Principal, who avoided the Parent’s request for help (P-M-4). The Assistant Principal told the Parents about accommodations but suggested that a psychoeducational evaluation would not happen efficiently through the school, so the Parents obtained their own independent neuropsychological evaluation in February and March 2021, to diagnose the Student’s educational needs (P-M-2; P-M-4; P-C).

The Evaluator diagnosed the Student with Attention Deficit Hyperactivity Disorder: Combined Presentation; Specific Learning Disorder with Impairment in Reading; Specific Learning Disorder with Impairment in Writing; Specific Learning Disorder with Impairment in Mathematics; and Unspecified Adjustment Disorder (P-M-3; P-C). According to the Evaluator, the Student’s reading comprehension, sentence writing, mathematical operations, listening comprehension, and oral expression skills are all significantly below the expected range based on his cognitive abilities and that these significant differences contribute to the Student’s academic difficulties and may influence his ability to attend to classroom material that involves these skills (P-M-5; P-C). The Evaluator indicated that the Student had a significant weakness in verbal immediate memory and a near-clinical level weaknesses in verbal delayed memory (id.). The Evaluator believed the Student’s academic difficulties may be partly due to an inability to process, store, or retrieve information presented auditorily and that the Student presented a significant weakness in recognition memory tasks (id.). The Evaluator indicated that testing revealed at-risk and clinically significant levels of impulsivity and inattention (id.). The Evaluator indicated that responses from the Student, his teachers, and his father indicated consistent executive functioning weaknesses associated with inattentiveness and cognitive regulation, including difficulty in all three core areas of executive functioning: cognitive regulation, behavioral regulation, and emotional regulation (id.).

The Parent shared this report with the Student’s teachers (P-M-5). By September 2021, the School still had not created any plan for the Student (P-M-7). On September 13, 2021, the Parents emailed the Assistant Principal and informed her that they wanted to withdraw the Student from the school (id.). On October 30, 2021, the Parent sent formal notice to the District informing them that the Parents believed that the Student had been denied a free and appropriate public education in the 2020-2021 school year, that they were placing him in private school and would seek tuition reimbursement, and that the Parents were requesting that the CSE meet and prepare an IEP for the Student (P-M-7; P-B).

The Parents unilaterally placed the Student in a private school for the 2021-2022 school year (P-F) and the student is now thriving (P-M-8; P-I). After placing the Student in the private school, the Parent’s asked the Evaluator to update his report from early 2021 (P-M-8). The Evaluator saw the Student again in November 2021 and January 2022 (id.). In his addendum to his initial report (P-D), the Evaluator noted that, while the Student still has difficulty with executive functioning, mood regulation, and anxiety at home, the Student now feels better able to control his emotions in his current school placement and the Student is demonstrating more appropriate behaviors in the classroom than in his previous placement (P-M-8; P-D). There are also reports that the Student’s executive functioning is much higher than it was in his previous placement, and the Student self-reports that he feels more confident in exhibiting appropriate executive functioning skills (id.).

V. Applicable Standards

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]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

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. at 206-07; 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 v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple 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 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (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., 685 F.3d at 245).

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]). A school 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. at 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 at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). 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]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (“LRE”) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 36970 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's 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. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). 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]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that their unilateral placement provides every service necessary to maximize the student's potential, but rather, must demonstrate that the placement provides education instruction specially designed to meet the unique needs of a student (M.H., 685 F.3d at 252; Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 365). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["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 appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

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., 459 F.3d at 364-65).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

VI. Discussion

A. FAPE

At the Due Process Hearing, the District conceded that the Student is a student with a disability who is entitled to Special Education services; the District conceded that it had failed to offer the student a FAPE; and the District conceded that it had failed in its Child Find obligations regarding this Student. The District rested its case without offering any documentary evidence into the record and without calling any witnesses.

For these reasons, and for the reasons indicated above in the Findings of Fact, I find that the District failed to offer the Student a Free Appropriate Public Education as required by Federal and State law.

B. Unilateral Placement In this case, as the District conceded that it did not offer the Student a FAPE for the 2021-2022 school year, the next issue to determine is whether the Parent’s unilateral placement of the student at REDACTED School (“York” or “REDACTED”), combined with the Jump Start program, during the 2021-2022 school year, was appropriate. The Parent argues that REDACTED, along with its Jump Start Program, is an appropriate unilateral placement for the Student as it provides instruction and services that are specifically designed to meet the Student’s unique needs and that enable the Student to make meaningful progress there. In opposition, the District contends that REDACTED Prep was not an appropriate unilateral placement. For the reasons described below, I find that the Parent’s unilateral placement was appropriate.

Under the circumstances of this case, where the District conceded that it failed to offer the Student a FAPE for the school year in question and elected not to submit any evaluative information or assessments of the Student as evidence of the District's view of the Student's special education needs into the hearing record—the District has effectively abandoned any opportunity to assert its position regarding the Student's special education needs and the extent to which the Parent's unilateral placement either addressed or failed to address those needs. Additionally, the District's failure to enter any evaluative information into the hearing record or create an IEP leading up to 2021-2022 school year also effectively precludes it from arguing a credible alternate view of the Student's needs or successfully rebutting the evidence proffered at the hearing by the Parents in support of the appropriateness of the unilateral placement for the Student. Accordingly, to the extent that REDACTED or Jump Start staff relied upon evaluation reports or assessments of the Student to identify the Student's needs and develop the Student's educational program, or any allegation on the part of the District that the Parent's evidence of the appropriateness of the unilateral placement was not sufficiently comprehensive for the purposes of determining the Student's needs, the responsibility for such deficiency lies with the District and not the Parent (see 34 CFR 300.305[c]; 8 NYCRR 200.4[b][5][iii]; A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]; see also Application of the Dep't of Educ., Appeal No. 21-194; Application of the Dep't of Educ., Appeal No. 20-131; Application of the Dep't of Educ., Appeal No. 18-125; Application of a Student with a Disability, Appeal No. 180-049; Application of a Student with a Disability, Appeal No. 15-076; Application of a Student Suspected of Having a Disability, Appeal No. 15-038; 17 Application of a Student with a Disability, Appeal No. 14-033; Application of a Student with a Disability, Appeal No. 14-028; Application of a Student Suspected of Having a Disability, Appeal No. 14-003; Application of the Dep't of Educ., Appeal No. 13-198; Application of the Dep't of Educ., Appeal No. 13-072; Application of a Student with a Disability, Appeal No. 12-027). Moreover, because a "private placement need not provide... an IEP for the disabled student," REDACTED had no duty to conduct the tests or evaluations typically relied upon by a district to develop an IEP (Frank G., 459 F.3d at 364).

Thus, the question of whether REDACTED, combined with the Jump Start program, was an appropriate unilateral placement is principally determined by analyzing whether the combined 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). Furthermore, even if the District were to allege that the hearing record did not contain sufficient information to determine the Student's needs, as discussed below, a review of the hearing record establishes that the evidence submitted by the Parents in this case was sufficient to identify the Student's unique individual needs and to satisfy the Parents' burden to establish the appropriateness of the Student's unilateral placement at REDACTED for the 2021-2022 school year.

• • The Student’s Needs Here, the Parent submitted a March 2021 neuropsychological evaluation along with a January 2022 reevaluation report, both of which accurately described the Student’s special education needs (see P-C; P-D). The Evaluator concluded that the Student’s “reading comprehension, sentence writing, mathematical operations, listening comprehension, and oral expression skills are all significantly below the expected range based on the Student’s cognitive abilities. These significant differences contribute to [the Student’s] academic difficulties and may influence his ability to attend to classroom material that involves these skills (P-C-13). The Evaluator also concluded the Student “demonstrates a significant weakness in verbal immediate memory and also shows near-clinical level weaknesses in verbal delayed memory (id.). The Evaluator diagnosed the Student with Attention-Deficit Hyperactivity Disorder – Combined Presentation; Moderate Impairment; Specific Learning Disorder with Impairment in Reading – Areas affected: reading comprehension, Moderate Impairment; Specific Learning Disorder with Impairment in Writing – with deficits in grammar and punctuation accuracy, Mild Impairment; Specific Learning Disorder with Impairment in Mathematics – Areas affected: accurate math reasoning, Mild Impairment; and Unspecified Adjustment Disorder (P-C-13-14). Based on these findings, the Evaluator recommended the Student receive academic interventions (including small group academic instruction), related services, and testing accommodations (P-C-14-15).

In the January 2022 revaluation, the Evaluator concluded that the Student continued to present with Attention Deficit Hyperactivity Disorder – Combined Presentation (ADHD), as well as specific learning disabilities (P-D-12). The Evaluator continued to recommend that the Student be considered for an inclusion program in a small school with a low student to teacher ratio; a class schedule modified to be taught at a pace appropriate for the Student’s academic weaknesses; daily small group and weekly individual meetings to learn and practice academic, organizational, and executive functioning skills; and other recommendations (P-D-12-13).

• • The REDACTED and Jump Start Programs According to a REDACTED Program Description for the 2021-2022 school year, REDACTED created a tracking system to produce an environment by which students are grouped according to their abilities (P-G-1). REDACTED maintains small class sizes of about twelve students in a class in the middle school (id.). Students must have a Department of Education individualized education plan (“IEP”) or a neuropsychological or psychoeducational evaluation to be admitted into the Jump Start program (P-G-2). A student in the Jump Start program is assigned to a Jump Start teacher, who is a State-certified special education teacher or certified in a remedial specialty (id.). The Jump Start teacher meets with each student individually twice a week for one period (id.). In these sessions, the Jump Start teacher provides skills-based instruction to address the student's learning deficits (id.). In addition, the Jump Start teacher meets with his or her students in a group both before and after school (id.). In the group sessions, the Jump Start teacher focuses largely on executive functioning skills related to homework, organization, and test-taking, but the teacher also addresses skills-based problems when necessary (id.).

The Director of the REDACTED Jump Start program (“Director”) credibly testified that in order for a student to be enrolled in the Jump Start Program, a student must have a Department of Education IEP or a neuropsychological or psycho-educational evaluation indicating the nature of their disability and their needs, and then REDACTED Admissions team reviews such documents to determine whether a student is appropriate for the program (P-L-3). Additionally, the Director testified that a component of the Jump Start Program is individual sessions, which occur twice a week (P-L-4). During that time, the Jump Start teacher meets individually with students for 40 minutes and works on supporting them with their specific needs and providing extra support for their classes (id.). Individual sessions are tailored specifically to the student's needs (id.). During these sessions, special attention is paid to organization, reteaching, and clarifying what is taught in the classroom, and if necessary, breaking down assignments and planning difficult projects or long-term assignments (id.). There was additional testimony that Jump Start teachers and classroom teachers work together to modify instruction to meet the needs of the Jump Start students (P-L-6).

Regarding this Student in particular, the Director testified in detail to the Student’s specific needs and expressed familiarity with the Student’s specific learning disabilities in reading, writing and math; as well as his diagnosis with ADHD and an Unspecified Adjustment Disorder (P-L-8). The Director was familiar with the Student’s difficulties with reading and listening comprehension, writing, math, executive functioning skills, and attention, and his need for assistance to organize his writing as well as getting his ideas down on paper (id.). Also, the Director testified that the Student struggles with grammar, capitalization, spelling and punctuation, and reported his struggles with time management and planning skills (id.). Furthermore, the Director testified that the Student needed demonstration, repetition, clarification and checks for understanding to make sure he understands the assignments and that the Student benefits from repeating the directions to make sure he is meeting the expectations of the assignment (id.). The Director testified to knowledge that the Student’s Jump Start teacher has developed an organizational system tailored to the Student’s executive functioning deficits, as well as supports tailored to the Student’s difficulties with writing (P-L-9). The Director also testified to knowledge of the Student’s English and Math teacher’s evaluations of the Student’s needs and how those needs are being supported in each of those subject areas (P-L-10-11). Additionally, the Director testified that the Student meets with a counselor to focus on managing the Student’s anxiety (P-L-12). Finally, the Director testified that the Student derives meaningful academic benefit from the Jump Start program, which allows him to access a grade level curriculum, leveled for his particular strengths and needs (id.).

• • Progress Although not dispositive, the hearing record also contains evidence to support a finding that the Student made progress at REDACTED (see P-I; P-D; P-M-8). With respect to the Student's progress at REDACTED, a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78, 2013 WL 1277308 [2d Cir. Mar. 29, 2013]; D.DS. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81, 2012 WL 6684585, [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364). However, a finding of progress is, nevertheless, a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

Based upon the foregoing, the hearing record demonstrates sufficient evidence describing how REDACTED and the Jump Start program generally—as well as how the REDACTED teachers and the Jump Start teachers specifically— addressed the Student's special educational needs and how the program is reasonably calculated to confer educational benefits on the Student. Therefore, I find that REDACTED was an appropriate unilateral placement for the Student.

C. Equitable Considerations

Having found that REDACTED was an appropriate unilateral placement for the Student for the 2021-2022 school year, the final criterion for a reimbursement award is that the Parent’s claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["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"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]).

With respect to equitable considerations, 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]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying 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]; C.L., 744 F.3d at 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"]).

Reimbursement may also be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 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. § 14129(a)(10)(C)(iii)(I); see 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, 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 at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68). Parents of students enrolled in private school are not exempted from 10-day notice requirements (S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-63 [S.D.N.Y. 2009]).

The Second Circuit has recently reiterated that "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint" and that "if parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement" (Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 [2d Cir. 2021]).

However, the hearing officer must excuse the failure to provide timely notice if, in his discretion, he determines that the reason for the lack of timely notice is that the school district prevented the parents from providing the notice, the parents had not received the procedural safeguards notice advising of the requirement to provide notice, or compliance with the notice requirement would likely result in physical harm to the student (See 20 U.S.C. § 1412(a)(10)(C)(iv); 34 C.F.R. § 300.148(e)(1)).

On the record before me, I see no equitable factors that would weigh against full tuition reimbursement to the Parents. The District offered no testimony or evidence that it provided any notice to the Parents regarding their procedural safeguards. Furthermore, the District conceded that it abrogated its Child Find duties with regards to this Student. Furthermore, the Parent credibly testified that it was not until after the Student was enrolled at REDACTED that the Parents became aware that they could request tuition reimbursement and then subsequently provided the District with notice (P-M-7). Therefore, on the record before me, I find that the Parents had not received the procedural safeguards notice advising them of the requirement to provide notice and that their failure to so provide such notice shall have no impact on their reimbursement claim (20 U.S.C. § 1412(a)(10)(C)(iv); 34 C.F.R. § 300.148(e)(1)).

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). As one circuit court explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs), or if it provides some things that do not meet educational needs at all (such as purely recreational options), or if it is overpriced" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]; Still v. DeBuono, 101 F.3d 888, 893 [2d Cir. 1996] [finding that "[t]he appropriate amount (of reimbursement) thus bears a relationship to the quantum of services that the state would have been required to furnish"]; J.P. v County Sch. Bd., 447 F. Supp. 2d 553, 591 [E.D. Va. 2006], rev'd on other grounds 516 F.3d 254 [4th Cir. 2008] [explaining that the district "must reimburse the parents for the reasonable costs of educating (the student) at the (private school) and any related services and accommodations that would have been covered under the IDEA had (the district) provided (the student) with an appropriate education"]).

To the extent the District asserts that the amount of reimbursement the Parents are seeking for relief for a limited special education program is excessive, I find that argument to be unavailing and contradicted by the hearing record. For the reasons set forth above, the hearing record demonstrates that the student's Jump Start program was sufficiently integrated into the REDACTED program, that the Jump Start teachers and REDACTED classroom teachers work together to modify instruction to meet the needs of the Jump Start students (P-L-6), and that the program, as a whole, met the Student’s specific special education needs. Under these circumstances, the specialized instruction cannot be solely attributed to a specific school program—REDACTED or Jump Start—and cannot be viewed separately from the general education instruction (Bd. of Educ. v. Gustafson, 2002 WL 313798, at *6-*7 [S.D.N.Y. Feb. 27, 2002]).

VII. Orders

• • Compensatory Education At the Due Process Hearing, counsel for the Petitioner withdrew the Petitioner’s request for compensatory education; accordingly, no award will be granted.
• • Tuition Reimbursement For the reasons outlined above, the equities and the evidence in the hearing record supports an award of tuition reimbursement to the Parents in this case, which shall include reimbursement of the cost of the 2021-2022 REDACTED Tuition with Jumpstart in the amount of $84,562.50, less the discount the Parents received in the amount of $1,515.25, for a total reimbursable amount of $83,047.25 (see Parent Ex. P-F-6).

Regarding the $1,200.00 Bookstore charge, the enrollment contract indicates that the Bookstore charge is a mandatory deposit wherein money not used is applied to the following year unless a refund is requested (P-F-1). Because the enrollment contract indicates the deposit is mandatory but may also be refunded, I will only award reimbursement upon a showing that the monies paid were actually utilized in the 2021-2022 school year and only up to $1,200.00. The Parent’s will be required to provide an invoice or affidavit from REDACTED indicating specifically how and when the money was utilized for the 2021-2022 school year. Any amount not utilized for the 2021-2022 school year will not be reimbursed to the Parents as unused portions can be refunded to the Parents. Finally, any amount in excess of $1,200.00 will not be reimbursed as such an excess amount would be an optional expenditure.

I decline to award reimbursement for the Tuition Refund Insurance purchased by the Parents, as the insurance was not a mandatory charge and the Parents were given the option to decline coverage. Furthermore, a plain reading of the Due Process complaint does not indicate a request for reimbursement of the Tuition Refund Insurance (P-A-6).

• • Cost of Evaluations Regarding the request for reimbursement of the cost of evaluations, the hearing record supports the conclusion that no evaluation was provided to the Parents by the District and that the Parents initial independent neuropsychological evaluation of the Student was appropriate under the circumstances of this case, specifically because the District informed the Parents that an evaluation would not happen efficiently through the school and intimated that the Parents should obtain their own evaluation (P-M-4). The District offered no testimony or evidence to rebut this conclusion.

The IDEA and state and federal regulations guarantee parents the right to obtain an Independent Educational Evaluation (“IEE”) (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]), which is 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]; see 34 CFR 300.502[a][3][i]). Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]).

If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]). Additionally, both federal and state regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). The Second Circuit Court of Appeals has recently found that, if a district and a 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]).

At the hearing on the merits, the District offered no evidence of any evaluations conducted by the District. The Parents were in contact with the school via email and phone calls on a regular basis regarding the Student’s struggles with school (P-M-3). In January 2021, the Parents emailed the Student’s teacher to ask to meet with her and let her know that the Parent’s had hired a professional educator to work with the Student to help him catch up (id.). The teacher emailed the Parent back to let the Parent know that the teacher had reached out to one of the Assistant Principals who was the head of special education at the school and that the Parents should contact the Assistant Principal directly (id.). The Parents again asked the teacher for a parent-teacher meeting and to have someone else from the District school at the meeting to help facilitate the discussion (id.). The Parents told the teacher that the Student needed help that he was not receiving (id.). In January 2021, the Parent spoke with the Assistant Principal, who avoided the Parent’s request for help (P-M-4). The Assistant Principal told the Parent’s about accommodations but suggested that a psychoeducational evaluation would not happen efficiently through the school, so the Parent’s obtained their own neuropsychological evaluation in February and March 2021, to diagnose the Student’s educational needs (P-M-2; P-M-4; P-C). This testimony was unrebutted by the District. Finally, the Parents did not receive a response from the District CSE until February 2022 informing them that a meeting would be held in March 2022 (P-M-7). These sequences of events clearly indicate repeated efforts by the Parents to have the school assist the Student, all of which were thwarted or ignored by the District.

Based on the totality of the circumstances, I find the Parents are entitled to reimbursement for the initial March 2021 neuropsychological evaluation report in the amount of $5,700.00.

However, I decline to grant reimbursement for the reevaluation of the student. A reevaluation of a child with a disability must occur when conditions warrant or if the parent or teacher requests a reevaluation (34 C.F.R. § 300.303(a); 8 NYCRR § 200.4(b)(4)). The reevaluation must occur at least once every three years, unless the parent and the LEA agree that a reevaluation is unnecessary (34 C.F.R. § 300.303(b)(2); 8 NYCRR § 200.4(b)(4)). Additionally, the reevaluation is limited to one per year, unless the parent and the LEA agree otherwise (34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4)).

Here, the Student was referred for a reevaluation by his Parents on November 1, 2021, and January 11, 2022, less than one year from the initial March 2021 evaluation (compare P-C and P-D). The record does not contain any evidence or testimony from the Parents that they requested a reevaluation from the District or that conditions warranted an updated evaluation. Most noteworthy, in the initial March 2021 evaluation, the Evaluator himself recommended that the Student be reevaluated in three years to determine if cognitive, academic and memory discrepancies persist or have changed (P-C-15) (emphasis added).

The record does not support a need to have the student reevaluated less than one year after the initial comprehensive evaluation and in contravention of the recommendation contained within the initial evaluation. Furthermore, a plain reading of the Due Process Complaint indicates a request for reimbursement only for the March 27, 2021, evaluation (P-A-6). The January 2022 reevaluation post-dated the December 22, 2021, filing of the Due Process Complaint and the Complaint was never amended to seek reimbursement for the cost of the reevaluation. As such, the District would not have been on notice that reimbursement for the reevaluation was being sought. For all these reasons, I decline to grant reimbursement for the January 2022 reevaluation.

• • Other Requests for Relief I have reviewed the Parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

VIII. Conclusion In summary, a review of the evidence in the hearing record demonstrates that the District denied the Student a FAPE, the Parent sustained their burden to establish that REDACTED was an appropriate unilateral placement for the Student for the 2021-2022 school year, and that equitable considerations support an award of tuition reimbursement. The evidence in the hearing record also supports an order requiring the District to fund the costs of the privately obtained March 2021 neuropsychological evaluation.

IT IS HEREBY ORDERED that within 60 calendar days from the date of this decision, the District shall reimburse Petitioner the cost of the 2021-2022 REDACTED tuition in the amount of $83,047.25 (calculated by taking the $84,562.50 Tuition reflected on P-F-6, less the Discount the Parents received in the amount of $1,515.25, for a total reimbursable amount of $83,047.25). For the purposes of this Order, I find the evidence submitted in Petitioner’s Exhibit F to be adequate proof of payment made by Petitioner entitling Petitioner to immediate reimbursement. Furthermore, I find that the District has already been provided with adequate proof via this proceeding and so the District shall reimburse Petitioner within 60 calendar days from the date of this decision without any action on the part of Petitioner.

IT IS FURTHER ORDERED that the District shall reimburse the Petitioner the amount of $1,200.00 for the Bookstore deposit on the following conditions. Petitioner is required to provide an invoice or affidavit from REDACTED indicating specifically how and when the Bookstore deposit was utilized for the 2021-2022 school year. Any amount not utilized for the 2021-2022 school year will not be reimbursed to the Petitioner. Any amount in excess of $1,200.00 will also not be reimbursed to the Petitioner. Within 60 calendar days of the District receiving such an invoice or affidavit from the Petitioner indicating specifically how and when the money was utilized for the 2021-2022 school year, the District shall then reimburse the Petitioner up to $1,200.00.

IT IS FURTHER ORDERED that the District shall reimburse the Petitioner in the amount of $5,700.00 for only the March 2021 neuropsychological evaluation report on the following conditions. Petitioner is required to provide proof of payment for the evaluation to the District for any amount up to $5,700.00. For the purposes of this Order, I find the evidence submitted in Petitioner’s Exhibit K to be adequate proof of an invoice for the amount of $5,700.00 owed by Petitioner. Within 60 calendar days of the District receiving proof of payment on the part of the Petitioner in the form of a cancelled check, credit card statement, bank statement, affidavit of payment from the psychologist providing services, or other reasonably acceptable form of proof, the District shall then reimburse the Petitioner any amount paid by the Petitioner up to $5,700.00.

IT IS FURTHER ORDERED that, if they have not already done so, the District CSE is to convene a meeting with the Parents within 30 calendar days of the date of this decision to review all updated evaluations for this Student obtained by the Parent, conduct any reevaluations the District deems appropriate, and develop an IEP or IESP for the Student for the 2022-2023 school year in accordance with the Student's present levels of performance and special education needs.

DATED: SO ORDERED

5/10/2022 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

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 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.

EXHIBITS

Parent Exhibit

Date

Title

Number of Pages

P - A

12/22/21

Hearing Request

8

P - B

10/30/21

Parent Letter to CSE

2

P - C

3/27/21

Neuropsychological evaluation report

16

P - D

1/11/22

Neuropsychological evaluation report - addendum

13

P - E

11/10/21

Letter from professional educator

1

P - F

9/8/2021

Tuition contract, payment affidavit and proof of payments

8

P - G

2021-2022

School program description

3

P - H

9/16/21

Student Class Schedule

2

P - I

4/22/21

Student Report card

1

P - J

4/22/22

Student Attendance Report

2

P - K

3/6/21

Invoices for Neuropsychological Evaluation

2

P - L

4/22/22

Affidavit of School Witness REDACTED

12

P - M

4/22/22

Affidavit of Parent REDACTED

8

P - N

undated

Curriculum Vitae of REDACTED

3

IHO Exhibit

Date

Title

Number of Pages

IHO-1

4/5/21

Prehearing Conference Summary and Order

9