New York City Department of Education, Impartial Hearing Decision

NYSED # 570443 / NYC # 224730

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

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

PETITIONER FINDINGS OF FACT AND DECISION

against Case # 224730 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 STUDENT (“Student”). On February 24, 2022, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”) (see Exhibit P-A).

The undersigned Hearing Officer was appointed to preside over this case on April 29, 2022. On May 9, 2022, a prehearing conference was held (See Exhibit IHO-I). On June 13, 2022, and June 30, 2022, an impartial hearing on the merits of the DPC was held.

By DPC notice dated February 24, 2022, the parent alleged, generally, that the DOE failed to provide the student a free appropriate public education (“FAPE”) in the least restrictive environment for the 2021-2022 school year by, among other things, failing in its Child Find duties, providing inappropriate recommendations in the student’s IEP, holding a procedurally flawed CSE meeting, failing to develop an appropriate IEP, failing to recommend an appropriate placement, and failing to provide the parent with Prior Written Notice (see generally P-A).

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.).

IV. Findings of Fact The student here is a very bright student, private-school educated her entire life, who exhibits exceptionally strong academics, and is in multiple honors level classes (see Tr. pgs. 54, 57, 109; see also P-N; DOE-16).

The student’s parent is a partnered attorney at one of the world’s top law firms in Manhattan (see P-B-3; DOE-14).

The parent obtained an independent Neuropsychological Evaluation for the student which was conducted on July 26, 2021, and July 27, 2021, and a report issued on August 10, 2021 (P-B; DOE-10 (subsequent citations only to Petitioner’s exhibit)). The evaluation was conducted after the student was diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD) in March 2021 and after a psychiatric hospitalization occurred in June 2021 (P-B-1; P-E-1). As referenced in the report, the student attended private school at SCHOOL in New York City from pre-Kindergarten through 8th grade, then transitioned to another private school, SCHOOL in New Jersey, for 9th and 10th grade (P-B-1). While at SCHOOL, the student exceled academically with all A and B grades (DOE-16). The student has never been diagnosed with a learning disability (P-B-2). The student noted to the Neuropsychological Evaluator that she did not like SCHOOL because it is very stressful and is “all about grades and college” and that she is exhausted when she comes home from school and became completely overwhelmed at school towards the end of the year (P-B-7; P-B-8).

The Neuropsychological Evaluator found that the student academically “exhibited well-developed calculation, reading speed, phonemic decoding, spelling, sight reading and writing skills” (P-B-8). The student also “…did not demonstrate specific expressive language deficits relating to verbal fluency, word retrieval or confrontation naming” and “tests of executive function indicated good sequential problem-solving skills” (id.). The Neuropsychological Evaluator noted that “It remains unclear whether the [the student’s] depression and anxiety are being caused by stressors around her (social, academic, etc.), whether she is biologically predisposed to such depression and anxiety, or some combination of both” (P-B-9). The Neuropsychologist recommended that the student transition to an academic environment that was not overly competitive or rigorous (P-B-9). The Neuropsychological Evaluator diagnosed the student with Major Depressive Disorder, Persistent Depressive Disorder, Other Specified Anxiety Disorder, and Developmental Coordination Disorder, with learning weaknesses in inferential reading comprehension (P-B-10). Given the student’s feelings of depression, the Neuropsychological Evaluator recommended, among other things, that the student continue in counseling with her current doctor to develop more adaptive coping strategies, transition to an inclusive school with small classes and a low student to teacher ratio, that an Individualized Education Plan (IEP) be put in place for the student that includes accommodations for extended time on exams, testing in a separate location, and access to note-taking services, be seated in the front of the classroom, and be provided with class notes/lesson outlines (P-B-10-13).

The student’s Psychiatrist and Clinical Psychologist parroted some of the same recommendations as the Neuropsychological Evaluator in recommending executive functioning supports, among other things (P-D; P-E; DOE-11; DOE-12). The student’s Clinical Psychologist specifically recommended that the student, “requires a small, structured inclusion setting with one-to-one and small group support and a low student to teacher ratio to be able to engage in academic learning. This setting should include executive functioning supports built into the classrooms throughout the day. She should also have access to a learning support specialist to help her learn and implement organizational and executive functioning strategies” (P-D; DOE-11). The student’s Psychiatrist specifically recommended, among other things, that the student receive individual school counseling, extended time on exams, testing in separate locations, and access to note-taking services, and seating at front of the room (P-E; DOE-12).

On August 12, 2021, two days after receiving the Neuropsychological Evaluation report, and prior to any outreach to the NYC DOE, the Petitioner executed an enrollment agreement to enroll the student in SCHOOL School (“SCHOOL” or “SCHOOL”) for the 11th grade (compare P-H to P-B). On August 16, 2021, the Petitioner wrote two checks and submitted payment in full for the total cost of tuition and fees at SCHOOL (P-J-1; P-K-1; P-L-1).

Over a month later, on September 23, 2021, the Petitioner submitted an initial request for an IEP to the DOE, the first such contact this family had with the DOE, which included a signed consent for evaluations (P-C; DOE-1; DOE-2). As indicated on the September 23, 2021, request, the Student was already attending SCHOOL at the time of the initial request (P-C-3; DOE-2; see also P-K).

On September 29, 2021, and October 13, 2021, Petitioner was provided with Prior Written Notice of the district’s desire to discuss the student’s referral for special education services and to conduct a social history (DOE-3; DOE-4). On October 22, 2021, the District conducted a Vocational Interview of the Petitioner (DOE-8).

For reasons further discussed below, on December 6, 2021, the district created a procedurally and substantively valid IEP for the student (see DOE-17) which was reasonably calculated to enable the student to receive educational benefit in light of her unique circumstances (Endrew F., 137 S. Ct. at 1001; Gagliardo, 489 F.3d at 112; Frank G. v. Board of Educ., 459 F.3d 356, 364-65 [2d Cir. 2006]). Additionally, the district offered credible testimony that its proposed placement was appropriate and would have been able to offer all the services recommended in the student’s IEP.

On December 16, 2021, the Petitioner was provided with Prior Written Notice of the district’s recommendations regarding the identification, evaluation, educational placement and provision of special education services for the student and was also given information on procedural safeguards (P-O).

On April 8, 2022, seven months after the student had already been attending SCHOOL, months after the parent had already received the IEP and spoken to the proposed DOE school placement, and six weeks after the current DPC had already been filed, the Petitioner claimed in a letter to the CSE that the district’s proposed school placement was inappropriate and notified the district of the parent’s intent to unilaterally place the student at SCHOOL and seek tuition reimbursement (P-F).^[1]

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. Additional Findings of Fact and Discussion In the overly-broad and unsubstantiated DPC filed by the parent, the parent alleges that the DOE failed to provide the student a free appropriate public education (“FAPE”) for the 2021-2022 school year for a litany of reasons, none of which are persuasive or supported by the record, all of which will be dispensed with below.

• • FAPE

Based on a thorough and independent review of all the documentary evidence and testimony, as further discussed below, I find that the District offered the student a FAPE for the 2021-2022 school year as required by Federal and State law. As such, I decline to grant the Petitioner any requested relief and am dismissing the entire DPC with prejudice.

• • Child Find Violation The parent first alleges in the DPC that “staff at the SCHOOL knew or had reason to suspect that the Student has a disability, and the school district failed in its affirmative “Child Find” duties to identify, locate, and evaluate them” (P-A). This argument is unavailing.

The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1], [7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [S.D.N.Y. Oct. 28, 2019]; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability... and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7]).

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. Dist. of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To support a finding that a child find violation has occurred, school officials must have "overlooked clear signs of disability" and been "negligent in failing to order testing," or have "no rational justification for deciding not to evaluate" the student (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting Bd. of Educ. of Fayette County, Ky. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D. Cal. 2008], citing 20 U.S.C. § 1400[c][5]). Additionally, a school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program (8 NYCRR 200.4[a]), see also 8 NYCRR 100.2[ii]).

The hearing record fails to contain any evidence that the student exhibited signs of a disability while she attended the private school SCHOOL from pre-Kindergarten through 8th grade, that the DOE ignored any signs of a disability, or that there was anything that gave the DOE reason to suspect that the student had a disability and required special education to address that disability while she attended the private school. The first arguable indication that the student may have had a disability would have resulted from her psychiatric hospitalization in July 2021, while the student was attending an out-of-state private school, SCHOOL in New Jersey, where she had excelled academically (DOE-16).

Districts are responsible for locating, identifying, and evaluating all children with disabilities who are enrolled by their parents in private, including religious, elementary schools located in the district's jurisdiction (Doe v. Metropolitan Nashville Pub. Schs., 34 IDELR 256 (6th Cir. 2001, unpublished); Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schs., 80 IDELR 197 (OSERS 2022); and Letter to Wayne, 73 IDELR 263 (OSEP 2019)). The district where the private school is located is responsible for conducting child find for parentally placed private school children (Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schs., 80 IDELR 197 (OSERS 2022). The IDEA requires LEAs to evaluate parentally placed private school students who attend schools within their borders and determine whether those students are entitled to equitable services (34 CFR 300.111 (a)(1)). Moreover, the home district must make FAPE available to all students who live within its borders. Thus, if a parent asks the home district to evaluate a student's eligibility for IDEA services, the district cannot refuse to do so on the grounds that the student attends private school in another LEA (Letter to Eig, 52 IDELR 136 (OSEP 2009)).

Here, the student was parentally placed in a private school out of state and outside the NYC DOE’s jurisdiction for the 9th and 10th grades. Once the parent placed the student in a different private school within the DOE’s jurisdiction for the 2021-2022 school year, and the parent requested an evaluation of the student, the district complied with that request, as they are required by law to do, and evaluated the student.

Even assuming arguendo that the student had a disability during her time at SCHOOL, the student was last at SCHOOL during the 2018-2019 school years, and such an argument is foreclosed by the 2-year statute of limitations governing such allegations.^[2]

I also note that even if the district had reason to suspect a disability at some point prior to the student's referral by the parent, the remedy for such a child find violation would typically be an order for the student to be evaluated, which has already occurred in this matter (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]).

For the reasons stated above, I do not find that the district violated the "child find" provisions of the IDEA. Nor do I find that the district had any reason to suspect that this student was a student with a disability and thereby may be in need of special education and related services. And I further find that any such “child find” argument is foreclosed by the statute of limitations.

• • Appropriateness of IEP The parent next alleges that the December 6, 2021, IEP was not appropriate. The record does not support this contention.

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]).

At the hearing on the merits, the DOE offered credible testimony from a DOE Special Education teacher who was a member of the CSE, who participated in the IEP meeting, and who formulated the student’s IEP. The Special Education teacher credibly testified to being familiar with the student (Tr. at p. 103). He credibly testified that he recalled the student’s classification and the documents he reviewed during the meeting (id. at p. 105). He credibly testified in detail to the student’s primary areas of need, the goals that reflected those needs, and the recommendations for the student (id. at pgs. 107-108). He further credibly testified to the process that went into the recommendations contained within the IEP and the CSE’s desire that the student’s placement be in the least restrictive environment (id. at p. 109). He also credibly testified that he believed the recommendations made by the IEP team would have allowed the student to receive a meaningful education (id. at p. 110). Upon cross-examination which occurred more than two weeks after his initial direct examination, the Special Education teacher again credibly and consistently testified that the recommendations for the student would provide her with small group instruction in the lease restrictive environment (id. at p. 147) and that the ICT recommendations were appropriate for this student (id. at p. 170).

The Special Education teacher’s credible testimony is further corroborated by the IEP generated by the CSE (see generally DOE-17). On December 6, 2021, the District generated a thorough and exhaustive IEP for the student, classified the student as Other Health Impairment, and recommended a placement in a NYC DOE non-specialized school with appropriate supports and services (DOE-17). In developing its recommendations for the student’s IEP, for the student’s present levels of performance and individual needs, the district reviewed numerous evaluation results, including the student’s school transcript and results from the July 2021 Neuropsychological Evaluation, specifically the Wechsler Adult Intelligence Scale- 4th Edition (WAIS-IV) (id.). The CSE also reviewed reports from the SCHOOL CSE Coordinator as well as a December 6, 2021, teacher report (id.). The CSE further reviewed letters from the student’s treating Psychologist and Psychiatrist (id.). Upon reviewing the available records, the CSE concluded that with services in counseling and placement in an ICT^[3] classroom, as well as specific accommodations, the student will be able to access instruction in the general education classroom (id.).

As mentioned in the December 2021 IEP, the parent’s concerns were noted, and significant discussion was devoted to the most appropriate classroom setting for the student (ICT vs 15:1) (DOE-17-28-29). Additionally, concerns were noted regarding classroom size of an ICT classroom in addition to the limited access the student would have to the general education curriculum and a nondisabled population (id.). Other options were considered by the IEP team, such as related services only, Special Education Teacher Support Services, and special classes with smaller student to teacher ratios (id.). These other options were rejected because it was determined by the IEP team that the student would be able to receive instruction in an integrated co-teaching class with the support of counseling services and that she is able to participate and receive access to the general education curriculum while receiving special education supports (id.).

In formulating its IEP recommendations, the CSE established specific measurable annual goals designed to meet the student's needs resulting from the student's disability and to enable her to make progress in the general education curriculum. To accomplish this, the CSE recommended that the student be given reminders and encouragement, improve time management by learning ways to use time effectively and stay on track throughout the day, by developing and maintaining a scheduling system that is reviewed and refined on an ongoing basis, and by accurately listing all assignments and their due dates on a planner with fading adult assistance; developing strategies to reduce distractibility including the use of a timer when studying; developing strategies to manage procrastination or avoidance such as the use of reminder technologies; referring to available resources, such as a toolbox of strategies, to aid in completing assignments; and devising a method of dealing with the missed deadlines (DOE-17).

The CSE further recommended measurable annual goals to address the student’s Executive Functioning by helping the student to develop a self-regulatory plan for carrying out any multiple step task (i.e., completing homework, writing an essay, doing a project) and by being given practice, visual cues, and fading adult supports, so that the student will be able to apply the plan independently to new situations (id.). Also, with the use of taught self-regulation strategies and self-monitoring checklists, the student will increase the ability to maintain focus and resist distractions in the home and classroom environment for at least 15 minutes, free from adult prompts (id.). Furthermore, the student is to be given reminders and prior instruction, in the event that the student does not understand directions, vocabulary or a concept being discussed, she will alert the teacher that she does not understand and will ask a clarifying question to aid in self-advocacy and comprehension in 4 out of 5 trials (id.).

The CSE additionally recommended measurable annual goals to address the student’s work completion by recommending the student be given prior instruction and prompting, use teacher provided checklist and strategies to ensure work is completed to grade level expectations, with 80% accuracy in 4 out of 5 trials, as measured by teacher/provider observations (id.).

The CSE further recommended measurable annual goals to address the student’s Coping/Self-Help by recommending the student be given prompts to identify and implement three calming strategies (e.g., counting to 10, taking deep diaphragmatic breaths, positive visualization) she can use when faced with potentially stressful or anxiety-provoking situations (id.).

The CSE likewise recommended measurable annual goals in various subject areas such as Reading (being given prior instruction and prompting, the student will examine texts and use details from the text in order to develop ideas, analyze, and make inferences with 80% accuracy in 4 out of 5 trials, as measured by teacher/provider observations), Writing (being given prior instruction and prompting, the student will use graphic organizers and outlines to write well-developed essays that include a strong thesis, three body paragraphs with a topic sentence, three supporting details, textual evidence, clearly explained analysis, and a concluding sentence with 80% accuracy in 4/5 trials, as measured by teacher/provider observation and written samples), and Math (being given a specific work checking routine for math, the student will apply a systematic approach to go back, check work and identify errors when completed with fading teacher assistance) (id.).

Finally, the CSE recommended measurable annual goals to address the student’s counseling needs by recommending that when asked to complete a structured task or initiate a task that is challenging, the student will be able to use coping strategies (e.g. deep breathing, counting) to focus on the task for 15-minutes with little to no interruption, and also, with provider support, the student will build positive talk about herself when challenged with academic or social stressful situations (id.).

To accomplish all these goals, the CSE recommended the following special education programs and services: Integrated Co-Teaching Services in ELA, Math, Social Studies, and Sciences, as well as individual and group counseling services multiple times per week (id.). The CSE further recommended numerous testing accommodations for the student to include extended time, breaks, location with minimal distractions, additional paper for math calculations, and on-task focusing prompts (id.).

Finally, the CSE recommended a coordinated set of transition activities to assist the student and recommended several measurable postsecondary goals for the student, such as understanding how to obtain employment and determine what skills are needed for a career in the field of interest; identify and research vocational preferences, interests and aptitudes by using vocational assessments, informal interviews, computer software and/or reference materials, e.g., The Occupational Outlook Handbook, Dictionary of Occupational Titles or Internet sites; participate in instruction on self-advocacy and employment skills through a school-based occupational skills program; and will learn different skills on how to maintain/find a job, complete a resume, properly interview for a job, and professionalism (id.). The CSE also recommended assistance for the acquisition of daily living skills (id.).

Having conducted a thorough independent review of the IEP, I find that the goals and management needs portion of the December 2021 IEP provides the supports necessary to address the student's unique challenges and the ICT program would provide the necessary small group and direct instruction to address the student's deficits, while allowing the student to interact with typically developing peers.

In sum, the record reflects that the CSE developed a thorough and exhaustive IEP that included a statement of the student’s present levels of academic achievement and functional performance, reviewed the recommendations of numerous individuals, established measurable annual goals designed to meet the student's needs resulting from the student's disability and to enable her to make progress in the general education curriculum, and provided the use of appropriate special education services, all in compliance with Federal and State law.

For the reasons stated above and contained within the record, I do not find that the December 6, 2021, IEP is substantively deficient in any way. I find that the IEP is reasonably calculated to enable the student to make progress appropriate with her abilities and I also find that the IEP establishes annual goals designed to meet the student's needs resulting from the student's disability and enable her to make progress in the general education curriculum. Therefore, I find that the IEP developed for the student provided the student with a Free Appropriate Public Education in compliance with Federal and State law.

• • CSE Procedurally Flawed The parent next alleges that the December 6, 2021, CSE was procedurally flawed for various reasons (P-A). The record not only fails to support these contentions, but it clearly contradicts it in multiple occasions.
• • IEP Attendance Under the IDEA, the IEP team must include: the parents of the child; at least one regular education teacher of the child (if the child is, or may be, participating in the regular education environment); at least one special education teacher/provider of the child; a district representative qualified to supervise or provide special education who is knowledgeable about the general education curriculum and the district's available resources; and, an individual who can interpret the instructional implications of evaluation results (who may be an existing, required member of the team other than the parent). The IEP team may also include, at the discretion of the parents or LEA, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate. The child may also attend whenever appropriate (34 C.F.R. §§ 300.321(a) and (b)).

The Attendance Page of the IEP indicates that the IEP was attended by a Related Service Provider/Special Education Teacher, a General Education Teacher, a District Representative who was also the School Psychologist, a Parent Member, the student’s Mother, and the SCHOOL CSE Coordinator (DOE-17; DOE-18).

Based on my independent review of the record, I find that the CSE was properly comprised.

• • Alleged Failure to Consider Independent Evaluation In developing the recommendations for a student's IEP, the CSE must consider: the results of the most recent evaluation of the student; the student's strengths; the concerns of the parent for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]). However, neither the IDEA nor State law requires a CSE to "'consider all potentially relevant evaluations'" of a student in the development of an IEP or to consider "'every single item of data available'" about the student in the development of an IEP (T.G. v. New York City Dep't of Educ., 973 F. Supp. 2d 320, 340 [S.D.N.Y. 2013], quoting F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 581-82 [S.D.N.Y. 2013]; see L.O. v. New York City Dep't of Educ., 822 F.3d 95, 110-11 [2d Cir. 2016]; M.Z., 2013 WL 1314992, at *8). In addition, while the CSE is required to consider recent evaluative data in developing an IEP, so long as the IEP accurately reflects the student's needs, the IDEA does not require the CSE to exhaustively describe the student's needs by incorporating into the IEP every detail of the evaluative information available to it (20 U.S.C. § 1414[d][3][A]; see M.Z., 2013 WL 1314992, at *9; D.B. v. New York City Dep't of Educ., 2011 WL 4916435, at *7-*9 [S.D.N.Y. Oct. 12, 2011]).

The IEP indicates that in developing its recommendations for the student’s IEP, the district reviewed numerous evaluation results including the student’s July 2021 Neuropsychological Evaluation and letters from the student’s treating Psychologist and Psychiatrist (DOE-17). Not only did the CSE consider the Neuropsychological Evaluator’s recommendations, as well as the recommendations of the student’s Psychiatrist and Clinical Psychologist, but the IEP incorporates many of these recommendations (compare P-B, P-D; P-E to DOE-17).

Additionally, as discussed above, the parent’s concerns were noted and significant discussion was devoted to the most appropriate classroom setting for the student (ICT vs 15:1) (DOE-17-28-29). Additionally, concerns were noted regarding classroom size of an ICT classroom in addition to the limited access to the general education curriculum and a nondisabled population (id.). Other options were considered by the IEP team, such as related services only, Special Education Teacher Support Services, and special classes with smaller student to teacher ratios (id.). These other options were rejected because it was determined by the IEP team that the student would be able to receive instruction in an integrated co-teaching class with the support of counseling services and that she is able to participate and receive access to the general education curriculum while receiving special education supports (id.).

Even though the CSE clearly reviewed and considered the Independent Evaluation and adopted many of the Neuropsychologist’s recommendations, had they not, such a failure would not have resulted in a violation of FAPE, as the law does not obligate the CSE to adopt the recommendations of a private psychologist (J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, at *11 [S.D.N.Y. Aug. 5, 2013] [holding that "the law does not require an IEP to adopt the particular recommendation of an expert; it only requires that that recommendation be considered in developing the IEP"]; Watson, 325 F. Supp. 2d at 145 [holding that a CSE's recommendation is not necessarily rendered inappropriate by "[t]he mere fact that a separately hired expert has recommended different programming"]).

Furthermore, I am not inclined to afford the private Neuropsychological Evaluator, Psychiatrist, or Clinical Psychologist’s opinions and recommendations any greater weight than the judgment of district staff, which generally is afforded some amount of deference (see Lessard v. Wilton Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 270 [1st Cir. 2010] [noting that "the underlying judgment" of those having primary responsibility for formulating a student's IEP "is given considerable weight"]; J.E. & C.E. v. Chappaqua Cent. Sch. Dist., 2016 WL 3636677, at *16 [S.D.N.Y. June 28, 2016], aff'd, 2017 WL 2569701 [2d Cir. June 14, 2017], citing E.S. v. Katonah-Lewisboro Sch. Dist., 742 F. Supp. 2d 417, 436 [S.D.N.Y. 2010] ["The mere fact that a separately hired expert has recommended different programming does nothing to change [the] deference to the district and its trained educators"], aff'd, 487 Fed. App'x 619 [2d Cir. July 6, 2012]; Z.D. v. Niskayuna Cent. Sch. Dist., 2009 WL 1748794, at *6 [N.D.N.Y. June 19, 2009] [explaining that deference is frequently given to the school district over the opinion of outside experts]).

For the reasons stated above, I give considerable weight to the CSE’s recommendations and I find that the IEP developed by the CSE was specifically individualized for this student, was appropriate for this student, and was reasonably calculated to enable this student to make progress appropriate with her unique abilities.

• • Prior Written Notice The Petitioner next alleges that they were not provided with Prior Written Notice which is a denial of FAPE (P-A-6 at paragraph 22). This argument is not only unavailing, but it is contradicted by the record and by documentary evidence offered by the Petitioner themselves (see P-O).

On September 29, 2021, and October 13, 2021, Petitioner was provided with written notice of the district’s desire to discuss the student’s referral for special education services and to conduct a social history (DOE-3; DOE-4). On December 16, 2021, the Petitioner was provided with Prior Written Notice of the district’s recommendations regarding the identification, evaluation, educational placement and provision of special education services for the student and was also given information on procedural safeguards (P-O). And on December 20, 2021, Petitioner was again provided with Prior Written Notice (DOE-19).

For these reasons, I find that the district provided the parent with Prior Written Notice.

• • Classroom Placement and Implementing IEP The parent next alleges that the student’s recommended school placement was not an appropriate placement for the student as the recommended school is unable to implement the student’s IEP. This argument is unavailing and contradicted by the credible testimony of the district’s witnesses.

The parent raises various challenges to the district's capacity to implement the program recommended in the December 2021 IEP at the assigned public-school site. Most of these allegations come from speculation and contradicted attributions to the Assistant Principal of the proposed school placement from which the parent pretextually and arbitrarily concluded that the school placement was not appropriate and was unable to implement the student’s IEP.

In light of the vastly contradictory allegations contained within the DPC and the conflicting testimony offered by the parties, a threshold discussion regarding the credibility and potential bias of the witnesses presented by both parties is of unique and particular relevance here and contributed greatly to the weight I afforded such testimony.

Decisions of the New York Court of Appeals have recognized that a witness’s partiality for or against a party in the proceeding may be shown to impeach the witness’s credibility. (See e.g. Coleman v New York City Tr. Auth., 37 NY2d 137, 142 [1975] [noting “the relevancy of all facts which bear on the probable partiality” of a witness for impeachment purposes]; Schultz v Third Ave. R.R. Co., 89 NY 242, 248-249 [1882] [“It is always competent to show that a witness produced upon the trial of an action is hostile in his feelings toward the party against whom he is called to testify or that he entertains malice toward that party, and so it has been held in many cases”].) Illustrative examples of partiality recognized by the Court include a witness’s bias in favor of the party calling the witness (see People v Webster, 139 NY 73, 85 [1893] [“bias is always of importance in determining credibility” and noting that bias may arise from family, business or close social relationships]; People v Brown, 26 NY2d 88, 94-95 [1970]); hostility to the party against whom the witness testifies (see Brink v Stratton, 176 NY 150, 152 [1903] [“it was competent to prove the hostility of any or all of these witnesses towards the defendants”]; People v Brooks, 131 NY 321, 325-326 [1892]); or the witness’s interest in the case, personal, financial or other (see People v Jackson, 74 NY2d 787, 790 [1989] [witness who cooperated with prosecutor only after receiving a reduced sentence on a pending charge had an “obvious interest”]; Coleman, 37 NY2d at 142 [“an interest in a cause being a circumstance available for impeachment”]). Furthermore, the credibility of a witness may be impeached by asking the witness on cross-examination about the witness’s bias, hostility, or interest for or against any party to the proceeding and by extrinsic evidence of such bias, hostility, or interest (see Guide to NY Evidence Rule 6.13, Impeachment by Bias, Hostility, Interest).

All of the witnesses at this hearing testified on camera and their demeanor, tone, and eye-contact was observed by the undersigned IHO. Both witnesses offered by the Respondent, the Assistant Principal, and the Special Education Teacher, each exhibited a calm demeanor, were consistent, direct, forthcoming in their testimony (which had the distinct mark of genuineness), and neither of the Respondent’s witnesses exhibited any defensiveness when being questioned by any party. Furthermore, neither of the Respondent’s witnesses have any apparent bias, conflict of interest, material gain to be obtained, motive to lie, or anything that may influence the veracity of their testimony. For these and other reasons discussed herein, I find the Respondent’s witnesses credible and give greater weight and deference to their testimony.

On the contrary, I find the witnesses offered by the Petitioner to all be biased and possessed of a clear business relationship or obvious financial interest in a favorable outcome to this case, which influenced their partiality and the credibility I attributed to their testimony. This negative credibility and bias determination includes the parent’s testimony.

The district’s witness, an Assistant Principal of the proposed school placement, [REDACTED], who oversees the Special Education Department at [REDACTED] as part of his duties and responsibilities, credibly and consistently testified under oath that he was familiar with the programs offered by [REDACTED] and the services extended to students (Tr. at pgs. 70-71). He further testified that [REDACTED] offers integrated co-teaching services and counseling services (id. at p. 72). Regarding the specific recommendations contained within this student’s IEP, the Assistant Principal credibly testified that [REDACTED] can offer all of those recommendations (id. at p. 76). Furthermore, the Assistant Principal reviewed the allegations allegedly attributed to him in the DPC and contradicted many of them (id. at p. 82). The Assistant Principal testified that ICT classes are not large and that there were not normally 25 students in an ICT class, but that they averaged 20 students (id. at p. 83). He also testified that there is not only one ICT class for each of the core subjects (id. at p. 83). He further denied telling the parent that there were no organized tutoring programs for IEP students (id. at p. 83). He also testified that counseling services could be scheduled around the student’s classroom schedule (id. at p. 84). He further testified that [REDACTED] “can meet all of the services as indicated by the IEP” and that the student would receive a meaningful education at [REDACTED] (id. at p. 84). Under cross-examination, the Assistant Principal continued to credibly and consistently testify that there can be ten classes in English language arts for a student and that a student can be programmed for more than one English class (id. at p. 86-87). He provided a similar answer when asked about math programming (id. at p. 88). Finally, the Assistant Principal again testified that [REDACTED] would have been able to implement the student’s IEP as written is she were to have attended [REDACTED] (id. at p. 94).

The Headmaster at SCHOOL, who’s educational background is as an attorney, testified that he did not possess any formal higher education degrees in education, although he does have considerable professional experience working in educational settings and was therefore certified as an expert in in the field of education (Tr. at pg. 187-189). Despite being certified as an expert in the field of education, the Headmaster testified that he was not familiar with the public-school program recommendation of Integrated Co-Teaching (Tr. at pg. 182). He further testified that he had not reviewed this student’s IEP and was not familiar with all of the documents that the IEP team considered in making its recommendations (id. at pg. 183; 194). After being provided the student’s IEP during the hearing, he was asked his opinion regarding its recommendations (id. at pg. 184). He opined that in his opinion the recommendations were irregular and that he had never come across it before (id. at pg. 190). He did concede that, regarding the appropriateness of such a program recommendation as this student was recommended for, that “…everything depends upon the nature of the circumstances. If there are two regular English classes I would think that's inappropriate. It might be that the student could be taught reading and writing in one class and a regular English class in another; I could see that” (id. at pg. 191). He further minimized the weight of his own expert opinion by testifying that “I think the representative of the Department of Education is appropriate in questioning whether or not my qualifications allow me to say this…but I think probably is for better, other people than me to decide” (id. at pg. 192).

I do not doubt the respect that the Headmaster has as an administrator of an elite private school in Manhattan. However, the Headmaster himself professed ignorance of the very ICT recommendations utilized in public-school settings, was not familiar with this student’s IEP, conceded that he could see a circumstance where the proposed recommendation was appropriate, and ultimately minimized the weight of his own expert testimony by suggesting that such decisions were better left for other people to decide. I couldn’t agree more with the Headmaster that such decision are better left for other people than him to decide, and with his conclusion that “everything depends on the nature of the circumstances.” For those reasons, I give no weight to any of the Headmasters opinions that the individualized educational recommendations for this student were irregular or inappropriate.

The Petitioner additionally offered another expert in special education, an ex-DOE employee who left the DOE nearly 15 years ago, to further advance the theory that the DOE’s recommendations were inappropriate. The ex-DOE employee testified regarding ICT classes but could not recall specific details regarding the ratio of Special Education students to General Education students (Tr. at pg. 209-210). She testified to working as a freelancer for [REDACTED] Associates and being compensated for her work by [REDACTED] Associates, the same Educational Advocate who filed the instant DPC (compare Tr. at pg. 220; 222 to P-A). The undersigned IHO questioned the ex-DOE employee regarding whether or not it was feasible or possible for a district to implement such a recommendation as contained in this student’s IEP (Tr. at pg. 223). The witness was defensive, hesitant and evasive in her response, stating “I can't answer that. I think, I think it depends on the school. I don't really -- I think it would be -- I think, I don't know, but it seems difficult to me to implement” (id. at pg. 224). She further testified that there are multiple math classes available for a student and that she “suppose[d]” but did not know if it would be possible for a student to take two different math classes in one term (id. at pg. 224). The witness finally relented and testified that she assumed that a school can offer two classes in the same subject to one student and that it is possible for a school to offer two separate ELA classes (id. at pgs. 224-225).

Although both witnesses offered by the Petitioner disagreed with the appropriateness of the recommendations for this student, they both effectually testified that such a recommendation could actually be implemented by a school.

And as discussed above regarding evaluations, in addition to my findings that the Petitioner’s witnesses lacked credibility, I am likewise not inclined to afford the opinions of the experts offered by the Petitioner any greater weight than the judgment of district staff, which generally is afforded some amount of deference (see Lessard v. Wilton Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 270 [1st Cir. 2010] [noting that "the underlying judgment" of those having primary responsibility for formulating a student's IEP "is given considerable weight"]; J.E. & C.E. v. Chappaqua Cent. Sch. Dist., 2016 WL 3636677, at *16 [S.D.N.Y. June 28, 2016], aff'd, 2017 WL 2569701 [2d Cir. June 14, 2017], citing E.S. v. Katonah-Lewisboro Sch. Dist., 742 F. Supp. 2d 417, 436 [S.D.N.Y. 2010] ["The mere fact that a separately hired expert has recommended different programming does nothing to change [the] deference to the district and its trained educators"], aff'd, 487 Fed. App'x 619 [2d Cir. July 6, 2012]; Z.D. v. Niskayuna Cent. Sch. Dist., 2009 WL 1748794, at *6 [N.D.N.Y. June 19, 2009] [explaining that deference is frequently given to the school district over the opinion of outside experts]).

Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself (R.E., 694 F.3d at 186-88). The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (R.E., 694 F.3d at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B., 589 Fed. App'x at 576). However, a district's assignment of a student to a particular public school site must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014] [holding that while parents are entitled to participate in the decision-making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site]). The Second Circuit has held that claims regarding an assigned school's ability to implement an IEP may not be speculative when they consist of "prospective challenges to [the assigned school's] capacity to provide the services mandated by the IEP" (M.O., 793 F.3d at 245; see Y.F. v. New York City Dep't of Educ., 659 Fed. App'x 3, 5-6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. Mar. 16, 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49[2d Cir. Dec. 30, 2015]). Such challenges must be "tethered" to actual mandates in the student's IEP (see Y.F., 659 Fed. App'x at 5). Additionally, the Second Circuit indicated that such challenges are only appropriate, if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so (M.O., 793 F.3d at 244). In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP (see M.E. v. New York City Dep't of Educ., 2018 WL 582601, at *12 [S.D.N.Y. Jan. 26, 2018]; Z.C. v. New York City Dep't of Educ., 2016 WL 7410783, at *9 [S.D.N.Y. Nov. 28, 2016]; L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016]). Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public-school site was not appropriate (K.F. v. New York City Dep't of Educ., 2016 WL 3981370, at *13 [S.D.N.Y. Mar. 31, 2016]; Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 [S.D.N.Y. Mar. 7, 2016]; N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 [S.D.N.Y. Feb. 11, 2016]).

Here, the student never attended the assigned public-school site under the proposed IEP as she was unilaterally placed at SCHOOL for the 2021-2022 school year well before the parent even requested special education services from the district (compare DOE-1, P-C to P-H, P-J, P-K, and P-L). Therefore, any claim that the proposed school is unable to implement the student’s IEP is mere speculation and contradicted by the evidence presented by the district. Furthermore, I do not find that any of the parent’s arguments or petitioner’s witnesses persuasively established that the school is "factually incapable" of implementing the student’s IEP or that the IEP’s recommendations were inappropriate. To the contrary, the petitioner’s witnesses themselves conceded that the school was actually capable of implementing the student’s IEP.

For the reasons discussed above and contained within the record, I find that the district offered the student a FAPE as required by Federal and State law and that the student’s IEP was appropriate and reasonably calculated to enable the student to make progress appropriate with her abilities.^[4] As such, I decline to grant the Petitioner any requested relief and am dismissing the DPC in its entirety with prejudice.

Having found that the district offered the student a FAPE, I need not reach the issues of whether the private educational services obtained by the parents were appropriate for the student or whether equitable considerations supported the parent's request for relief and the necessary inquiry is at an end. However, for the sake of thoroughness and completeness of the record, I have reviewed all the evidence in the hearing record and undertaken an analysis regarding the remaining two prongs in the Burlington-Carter analysis.

• • Unilateral Placement Had I found a violation of FAPE and moved onto the second prong of the analysis, I would have found that the unilateral placement would have been appropriate.

The Parent argues that SCHOOL, along with its PROGRAM 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. The question of whether SCHOOL, combined with the PROGRAM 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).

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 SCHOOL for the 2021-2022 school year.

According to a SCHOOL Program Description for the 2021-2022 school year, SCHOOL created a tracking system to produce an environment by which students are grouped according to their abilities (P-G). Students must have a Department of Education individualized education plan (“IEP”) or a neuropsychological or psychoeducational evaluation to be admitted into the PROGRAM program (id.). A student in the PROGRAM program is assigned to a PROGRAM teacher, who is a State-certified special education teacher or certified in a remedial specialty (id.). The PROGRAM teacher meets with each student individually twice a week for one period (id.). In these sessions, the PROGRAM teacher provides skills-based instruction to address the student's learning deficits (id.). In addition, the PROGRAM teacher meets with his or her students in a group both before and after school (id.). In the group sessions, the PROGRAM 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 SCHOOL PROGRAM program (“Director”) additionally testified about SCHOOL and its PROGRAM program and that in order for a student to be enrolled in the PROGRAM 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 (P-Q). Additionally, the Director testified that a component of the PROGRAM Program is individual sessions, which occur twice a week (id.). During that time, the PROGRAM teacher meets individually with students 40 minutes and works on supporting them specific skills and educational needs (id.). The Director further testified about the additional academic and emotional supports offered by SCHOOL (id.). 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, the support provided by SCHOOL for this individual student, and the student’s progress (id.). Finally, the Director testified that the student derives meaningful academic benefit from the PROGRAM program and that SCHOOL is an appropriate placement (id.).

Although not dispositive, the hearing record also contains evidence to support a finding that the student made progress at SCHOOL (see P-N; P-Q). With respect to the student's progress at SCHOOL, 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 SCHOOL and the PROGRAM program generally—as well as how the SCHOOL teachers and the PROGRAM teachers specifically— addressed the student's needs and how the program is reasonably calculated to confer educational benefits on the Student. Therefore, I find that SCHOOL would have been an appropriate unilateral placement for the Student had I found that the District failed to offer the student a FAPE.

C. Equitable Considerations

Having found, for the sake of argument, that SCHOOL was an appropriate unilateral placement for the student for the 2021-2022 school year, the final criterion for a reimbursement award would have been that the Parent’s claim be supported by equitable considerations. For the reasons discussed below, I would not have found that equitable considerations support a claim for reimbursement and would have denied reimbursement on equitable grounds.

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]).

In her February 24, 2022, DPC, the Petitioner vaguely and disingenuously alleged that the parent notified the CSE that they were placing the student at SCHOOL for the 2021-2022 school year and would be seeking tuition reimbursement (P-A-7 at paragraph 24). Noticeably absent from that allegation was the date in which the purported notice was provided by the parent to the DOE. Petitioner’s Exhibit F, entered in evidence, indicates that it was not until April 8, 2022, six weeks after the DPC was already filed on February 24, 2022, and nearly seven months after the student was already placed at SCHOOL (P-H), that the Petitioner, in an unsigned letter to the CSE, claimed that the District’s proposed school placement was inappropriate and notified the district of Petitioner’s intent to unilaterally place the student at SCHOOL and seek tuition reimbursement (P-F). Furthermore, on December 20, 2021, Petitioner was provided with notice of the Procedural Safeguards (DOE-19-2) and yet the parent still did not provide notice of her intent to unilaterally place the student until April 8, 2022. I find these facts to weigh heavily against any equitable award of tuition reimbursement. Further weighing against equitable reimbursement is that this is not a parent who is a legal neophyte, unsophisticated in the ways of procedural compliance; but rather, as mentioned above, the Petitioner here is herself a partnered attorney at one of the world’s top law firms in Manhattan (see P-B-3; DOE-14).

Notwithstanding any of my findings above, based solely on the parent’s failure to provide proper notice in compliance with statutory mandate and the parent’s disingenuous representations in the DPC and lack of credibility as a testifying witness, I would have denied reimbursement entirely on equitable grounds and found that the equitable considerations weigh against any award of tuition reimbursement.

D. Additional Requests for Relief

• • Compensatory Education In the boilerplate DPC, Petitioner also generally requests “Compensatory education” with no elaboration or specificity (P-A-7 at paragraph 33).

Having found above that the district offered the student a FAPE, no award of compensatory education is appropriate. Furthermore, the Petitioner entirely failed to offer any testimony or evidence regarding the nature of any compensatory relief they were seeking.

• • Cost of Evaluations In the DPC, Petitioner also requests “Cost of Evaluations” for the Neuropsychological Evaluation (P-A-8 at paragraph 35). Like the above allegation, the Petitioner here entirely failed to offer any testimony or evidence regarding the cost of the evaluation or any amount of relief they were seeking. This was either an oversight on the part of the counsel litigating this case or yet another example of the overly-broad, generalized, and formulaic nature of this and similar Due Process Complaints filed by the Educational Advocate retained by the parent.

Despite Petitioner’s failure to adequately substantiate this allegation, an independent examination of the record finds that no relief is warranted.

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]).

The parent obtained an independent Neuropsychological Evaluation for the student which was conducted on July 26, 2021, and July 27, 2021, and a report issued on August 10, 2021 (P-B). On September 23, 2021, after having already obtained an independent evaluation, the Petitioner then submitted an initial request for an IEP to the District, which included a signed consent for evaluations (P-C; DOE-1; DOE-2). Petitioner failed to offer any testimony or evidence that Petitioner expressed any disagreement with an evaluation conducted by the district and that they were requesting that an IEE be conducted at public expense. Additionally, as mentioned above, the Petitioner failed to offer any testimony or evidence of the actual cost of the evaluation to substantiate their request for reimbursement.

For the above reasons, I decline to grant any reimbursement for the independent Neuropsychological evaluation obtained by the parent.

• • All Other Requests for Relief I have reviewed all of the Petitioner’s remaining contentions contained within the DPC 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 Petitioner’s remaining claims not discussed herein are all dismissed with prejudice.

VII. Conclusion In reaching my conclusions above, I have considered all of the testimonial and documentary evidence presented by both parties, and carefully marshaled and weighed all of the evidence in the hearing record before me.

FOR THE REASONS SET FORTH ABOVE, THE FEBRUARY 24, 2022, DUE PROCESS COMPLAINT IS DISMISSED WITH PREJUDICE.

DATED: SO ORDERED

10/7/2022 /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.

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

I, Dustin Johnson, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.

DATED: CERTIFIED BY

10/7/2022 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

CASE # 224730 EXHIBITS

Parent Exhibit

Date

Title

Number of Pages

P - A

2-24-2022

Impartial Hearing Request

8

P - B

July 2021

Neuropsychological Evaluation PhD

20

P - C

9-23-2021

Parent letter to the CSE

3

P - D

10-9-2021

Letter from PhD

1

P - E

12-1-2021

Letter from MD

3

P - F

4-8-2022

Parent letter to the CSE

2

P - G

2021-2022

SCHOOL School: Program Description

3

P - H

Aug. 2021

SCHOOL School: Enrollment Agreement

4

P - I

2021-2022

SCHOOL School: Weekly Schedule

1

P - J

8-17-2021

SCHOOL School: Invoice

1

P - K

1-24-2022

SCHOOL School: Affidavit

1

P - L

8-16-2021

Citibank: Canceled check – Proof of payment

3

P - M

1-31-2022

SCHOOL School: Attendance Report

1

P - N

3-15-2022

SCHOOL School: Academic Report

1

P-O

Undated

NYC Department of Education: Prior Written Notice

11

P-P

5-19-2022

NYC Department of Education: Due Process Response

4

P-Q

6-8-2022

Affidavit

13

P-R

June 2022

Email thread

5

P-S

9-9-2022

Petitioner’s Closing Argument

17

DOE Exhibit

Date

Title

Number of Pages

DOE-1

09/23/2021

Parental Referral Letter

2

DOE-2

09/23/2021

Consent for Evaluation

1

DOE-3

09/29/2021

Notice of Social History

2

DOE-4

10/13/2021

Notice of Social History

2

DOE-5

10/22/2021

Consent for Evaluation

1

DOE-6

10/22/2021

Consent for Use of Electronic Mail

1

DOE-7

10/22/2021

Request for Release of Records

1

DOE-8

10/22/2021

Vocational Interview of Parent/Guardian

3

DOE-9

10/22/2021

Ethnic Identification Form

1

DOE-10

07/2021

Confidential Neuropsychological Evaluation

20

DOE-11

10/09/2021

Letter of PhD

1

DOE-12

12/01/2021

Letter of MD

3

DOE-13

12/01/2021

Classroom Observation Notice

1

DOE-14

10/28/2021

SCHOOL School – Class Schedule

3

DOE-15

12/06/2021

Teacher Report – SCHOOL School

2

DOE-16

10/27/2021

Unofficial Transcript of Student

1

DOE-17

12/06/2021

Individualized Education Plan (IEP)

29

DOE-18

12/06/2021

IEP Attendance Form

1

DOE-19

12/20/2021

Notice of Recommendation

4

DOE-20

9/16/2022

Closing Brief

11

IHO Exhibit

Date

Title

Number of Pages

IHO-I

5/9/2022

Prehearing Conference Summary and Order

9

IHO-II

Various

Email correspondence regarding subpoena

3

IHO-III

Various

Email correspondence regarding Closing Arguments

6

Footnotes

[1] Other than being indicative of the date in which the district was put on notice of the Petitioner’s intent to unilaterally place the student in private school and seek tuition reimbursement, I give no weight to the Petitioner’s allegations contained within the unsigned and unnotarized letter to the CSE purporting to extoll the deficits of the district’s proposed placement, the substance of which was directly contradicted by the credible testimony of the Assistant Principal of [REDACTED] further discussed below (compare P-F to Transcript).

[2] The IDEA requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged action that forms the basis of the complaint (20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; Educ. Law § 4404[1][a]; 34 CFR 300.511[e]; 8 NYCRR 200.5[j][1][i]; Somoza v. New York City Dep't of Educ., 538 F.3d 106, 114 n.8 [2d Cir. 2008] [noting that the Second Circuit applied the same "knows or has reason to know" standard of IDEA claim accrual both prior to and after codification of the standard by Congress]; M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir. 2003]; G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *17 [S.D.N.Y. Mar. 29, 2013], aff'd, 554 Fed. App'x 56, 57 [2d Cir Feb. 11, 2014]; R.B. v. Dept. of Educ., 2011 WL 4375694, at *2, *4 [S.D.N.Y. Sept. 16, 2011]; Piazza v. Florida Union Free Sch. Dist., 777 F. Supp. 2d 669, 687-88 [S.D.N.Y. 2011]). New York State has affirmatively adopted the two-year period found in the IDEA (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j][1][i]). Determining when a parent knew or should have known of an alleged action "is necessarily a fact-specific inquiry" (K.H. v. New York City Dep't of Educ., 2014 WL 3866430, at *16 [E.D.N.Y. Aug. 6, 2014]).

[3] State regulation describes ICT services within the continuum of services as the "provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students" (8 NYCRR 200.6[g]). According to State regulation, ICT services minimally require the assignment of a special education teacher and a regular education teacher (8 NYCRR 200.6[g]2]).

[4] A persistent procedural issue throughout this case related to the Petitioner’s attempt to subpoena any and all IEPs for other students that were identical to this Student’s IEP (see IHO Exhibit II). The Petitioner presumably sought to prove that the lack of other identical IEPs then in existence at the proposed placement somehow rendered this Student’s IEP invalid. However, such intent did not have the desired result. An IEP, by its very name and nature, is individualized. The similarity (or lack of similarity) of this student’s IEP to any other student’s IEP is not dispositive to the validity or appropriateness of this student’s IEP. If anything, the lack of similar IEPs only proves to further bolsters the specificity with which the district’s CSE endeavored to create personalized instruction with sufficient support services to permit this student to benefit educationally from that instruction and which was reasonably tailored to this student’s unique needs. The district’s inability to produce any other identical IEPs in no way rendered this student’s IEP inappropriate or invalid.