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CASE NUMBER: 573319 - NYC: 226578
FINDINGS OF FACT AND DECISION
NAMES AND TITLES OF PERSONS WHO APPEARED
June 23, 2022
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
REDACTED REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
August 3, 2022
For the Student:
REDACTED REDACTED, Esq.
REDACTED REDACTED, Esq.
For the Department of Education:
REDACTED REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
September 14, 2022
For the Student:
REDACTED REDACTED, Esq.
REDACTED REDACTED, Parent Student
REDACTED REDACTED, Parent Student
For the Department of Education:
REDACTED REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
September 19, 2022
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
REDACTED REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
October 4, 2022
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED
November 21, 2022
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
REDACTED REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
December 7, 2022
For the Student:
REDACTED REDACTED, Esq.
REDACTED REDACTED, Parent Student
REDACTED REDACTED, Parent Student
For the Department of Education:
REDACTED REDACTED, Esq.
REDACTED REDACTED, School Psychologist
REDACTED REDACTED, Principal
REDACTED REDACTED, Parent Coordinator
NAMES AND TITLES OF PERSONS WHO APPEARED
December 16, 2022
For the Student:
REDACTED REDACTED, Esq.
REDACTED REDACTED, Parent Student
REDACTED REDACTED, Parent Student
For the Department of Education:
REDACTED REDACTED, Esq.
REDACTED REDACTED, School Psychologist
NAMES AND TITLES OF PERSONS WHO APPEARED
January 6, 2023
For the Student:
REDACTED REDACTED, Esq.
REDACTED REDACTED, Parent Student
REDACTED REDACTED, Parent Student
For the Department of Education:
REDACTED REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
January 27, 2023
For the Student:
REDACTED REDACTED, Esq.
REDACTED REDACTED, Parent Student
REDACTED REDACTED, Parent Student
REDACTED REDACTED, Assistant Head of School, REDACTED REDACTED School
For the Department of Education:
REDACTED REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
March 22, 2023
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
None
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer ("IHO") on Parent's Due Process Complaint ("DPC") filed on or about May 23, 2022. Ex. A.[1] On May 27, 2022, I was appointed by the New York City Department of Education to hear this matter. Parent seeks reimbursement for tuition for REDACTED's placement at The REDACTED REDACTED School ("REDACTED") and transportation for the 2021-2022 school year. Exs. A, B.
I conducted a prehearing conference on June 23, 2022, and scheduled a hearing date for August 3. On August 3, counsel for the Department reported that the matter remaining under "investigation for settlement" by the Department and requested more time to continue with the investigation; Parents' counsel consented to a continuance. Tr. 10-12. I granted the continuance to September 14.
On September 14, Parents' counsel requested a continuance because she had received, for the first time, an IEP for REDACTED and wished to amend the DPC to include allegations with respect to that IEP. Tr. 21-22. The parties were encouraged to move ahead with this case in a timely manner. Tr. 31-34. The matter continued on September 19; Parents' counsel had filed an amended DPC; Department's counsel reported that the Department would accept the amended DPC. The amended DPC was not processed by the Impartial Hearing Office until October 3. The Department's acceptance of the amended DPC was processed by the Impartial Hearing Office on October 18, 2022.
A prehearing conference following the amendment was conducted on November 21, 2022, promptly after the conclusion of the second resolution period. The parties reported that the matter would not be resolved through settlement; procedural matters were discussed and the hearing scheduled for December 7.
On December 7, the Department presented an opening statement and the testimony of two witnesses, a Department school psychologist and a Department parent coordinator. The cross-examination of the school psychologist continued on December 16. Parent's Exhibits A through E, G through I, K, M, and O were admitted in evidence. Department Exhibits 1 through 13, 16, 20, 21, 23, 24, 27 and 28 were admitted in evidence. The Department rested its case.
On January 6, 2023, REDACTED's parents requested a continuance because the witness from REDACTED was unavailable. The request was granted, and the hearing was scheduled to continue on January 27.
On January 27, REDACTED's father and the assistant head of REDACTED testified. Exhibits P and Q were admitted in evidence. Parents rested their case. Parties requested leave to file written closing statements and such leave was granted, with a mutually-agreed upon due date of February 22.
Both parties requested extensions of the due date of the written closing statements, and such extensions were granted. Parents' counsel filed a written closing statement on March 1, which was the extended due date. The Department did not file a written closing statement; the Department did not respond to an inquiry from the Hearing Officer as to whether the Department had or would be submitting a written closing statement.
I scheduled a status conference for March 22 to inquire further into the Department's failure to file a written closing statement, to enter documents in evidence that had been provided by the Department after the January 27 hearing date, and to address other issues with respect to exhibits. The Department did not appear for the status conference and did not request an adjournment or otherwise respond to the scheduling of the status conference. Department's Exhibit 30 and IHO Exhibits I and II were entered in evidence on March 22.
The record was closed on March 22, 2023, upon the admission of Department Exhibit 30 and IHO Exhibits I and II.
The parties requested extensions of the compliance date, and written Orders of Extension were issued on June 23, August 3, October 5 and December 16, 2022, and January 6 and January 27, 2023. The reasons for granting the extensions are set forth in the Orders.
JURISDICTION
The due process hearing was held, and a decision in this matter is now rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, "IDEA"), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and New York State Education Law § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. Part 200 et seq.
Parents consented to the hearing being conducted via videoconference and to the electronic transmission of this Findings of Fact and Decision.
ISSUES
Parents request reimbursement for tuition they paid to REDACTED for REDACTED's enrollment at REDACTED for the 2021-2022 school year. The issues to be resolved are:
1. Did the Department offer REDACTED a free appropriate public education for the 2021-2022 school year?
a. When was the Department required to offer REDACTED a FAPE?
b. Did the Department have sufficient evaluative material to develop an IEP for REDACTED?
c. Was the Department's failure to provide REDACTED's parents a copy of the IEP a denial of FAPE?
d. Was the Department's program recommendation substantively appropriate for REDACTED?
e. Did the Department offer REDACTED a school placement in which his IEP could be implemented?
2. Was REDACTED an appropriate placement for REDACTED for the 2021-2022 school year?
3. Does the balance of the equities favor REDACTED's parents?
4. Should reimbursement be awarded, for what time period should the award cover?
FINDINGS OF FACT
1. REDACTED is a now REDACTED-year-old boy who is eligible for special education and services under the IDEA and whose disability, for the purposes of the IDEA, is classified as other health impairment. Ex. 1 at 1.
2. REDACTED has been diagnosed with REDACTED, combined type ("REDACTED"), REDACTED, REDACTED (also known as REDACTED), a REDACTED, a REDACTED (specifically REDACTED), and a REDACTED. Ex. 2 at 18-20.
3. REDACTED is a private school for students from three through fourteen years of age with language-based learning disabilities. There are currently 380 students enrolled in the school. Tr. 77; Ex. Q at 2.
4. As a young child, REDACTED experienced language delays, attention difficulties, sensory issues, and anxiety and emotional sensitivities. IHO I at 3, Ex. 2 at 2-3. He received speech therapy and occupational therapy during his preschool years. Ex. 2 at 1, 2, 4.
5. REDACTED attended REDACTED REDACTED School, a nonpublic general education school, for kindergarten through fifth grade, participating in general education classes and receiving small group remediation in reading starting in first grade. Tr. 240, 248, 281-282; Ex. 2 at 10, 18.
6. REDACTED received IESP services from the Department while he attended REDACTED REDACTED. These services included occupational therapy to address fine motor skills and handwriting.[2] Tr. 248-249; IHO Ex. I.
7. He experienced difficulties at the school with reading, math, attention, remaining on task, and sensory issues. Ex. 2 at 4-5; see also Exs. 3, 4. Eventually, REDACTED was going to the nurses' office every day as a way of avoiding the sensory difficulties, such as noise, of being in the classroom, and was missing classroom instruction. Tr. 240-241, 252.
8. REDACTED was functioning at about two grade levels behind in reading. Tr. 252. School personnel had difficulty supporting REDACTED. Tr. 241-242, 282; Ex. 21.
9. REDACTED's parents secured counseling outside of school for REDACTED, which he continues; and REDACTED was prescribed medication for REDACTED, which he takes daily. Tr. 255-256, 311.
10. REDACTED also received some speech therapy outside of school which was obtained by his parents. Tr. 260.
11. REDACTED's parents secured a neuropsychological evaluation of REDACTED in summer of 2020. Tr. 244; Ex. 2.
12. REDACTED's WISC-V scores were in the average range: in the high average range on the visual spatial index and in the average range on verbal comprehension, fluid reasoning, working memory, and processing speed indexes. His individual subtest scores ranged from the 16th percentile ((a)picture span, which is a nonverbal working memory task, and (b) coding, which is a task that required graphomotor output, attention to detail, and fast processing speed) to the 84th percentile (visual puzzles). Ex. 2 at 8-9.
13. Testing relating to academics revealed weaknesses in reading fluency and reading comprehension (scoring in the 25th percentile). REDACTED was almost two years below grade level in reading accuracy and more than two years below grade level on two different measures of reading comprehension; two years below grade level in essay writing; and performed in the low average ranges on measures of math fluency. Ex. 2 at 11.
14. Neuropsychological testing revealed "mild language comprehension weaknesses," and weaknesses in visual motor integration and handwriting and some aspects of executive functioning. Testing was conducted while REDACTED was taking prescribed medication for REDACTED, and, with medication, his "sustained attention was fair to good." Ex. 2 at 13.
15. Psychological testing indicated that REDACTED experienced anxiety and physiological symptoms "often associated" with anxiety, such as headaches and stomach aches. Ex. 2 at 16-17.
16. The neuropsychologist recommended that REDACTED receive academic supports and accommodations both in and outside of school to address his reading and writing challenges. The evaluator included a detailed list of such supports. Ex. 2 at 21-23.
17. The neuropsychologist also recommended that REDACTED's parents locate and apply for REDACTED's admission to special education schools for children with learning disabilities. Ex. 2 at 23.
18. REDACTED was enrolled in REDACTED in September 2021 for the 2021-2022 school year. Tr. 248; Ex. 21.
19. On September 27, 2021, REDACTED's parents sent, and the Department's CSE received, a letter via email requesting special education and services for REDACTED through an IEP and consenting to the CSE's evaluation of REDACTED. Exs. D, 20 at 11-13 (SESIS entries); Tr. 258. REDACTED's parents attached the 2020 neuropsychological evaluation to the email. Ex. D.
20. Two days later, on September 29 and in response to the CSE's request, REDACTED's parents forwarded REDACTED's fifth grade REDACTED REDACTED progress reports and report cards. Ex. E.
21. REDACTED's parents promptly participated in a Department social history and consented (via Department's consent form) to the Department's evaluation of REDACTED. Exs. 20 at 6 (SESIS entries), 21 (social history dated October 27, 2021), 24 (signed consent dated November 5, 2021).
22. The Department convened a meeting for REDACTED on December 2, 2021. Ex. 1 at 26.
23. Mr. REDACTED, a school psychologist employed by the Department, attended IEP meetings for REDACTED in December 2021 and April 2022. Tr. 73-75.
24. The following individuals attended the December 2021 meeting: Mr. REDACTED; a special education teacher employed by the Department; a general education teacher employed by the Department; REDACTED's parents; and REDACTED's teacher at REDACTED. Tr. 78-79, 153.
25. The meeting participants considered the 2020 neuropsychological evaluation; reports from REDACTED; reports from the prior school that REDACTED attended (REDACTED REDACTED); and the social history. Tr. 82-83,100, 103-104; Ex. 13 at 1.
26. The Department did not conduct a speech evaluation of REDACTED. Tr. 111.
27. According to Mr. REDACTED, the materials revealed that REDACTED was "meeting or approaching expectations for grade level work," and that he demonstrated areas of weakness, such as reading comprehension. Tr. 83.
28. The IEP's present levels of performance sections largely summarize input from REDACTED's REDACTED teacher, information in the reports from REDACTED REDACTED, and the neuropsychological report. Ex. I at 1-8.
29. REDACTED's teachers indicated that REDACTED demonstrated difficulties maintaining attention in the classroom and with executive functioning, specifically planning and organization. This set of difficulties "inhibit[ed]" his academic progress. Ex. 1 at 7.
30. His teachers also reported that REDACTED demonstrated anxiety and frustration relating to academics and social problem solving. Meeting participants agreed that REDACTED would benefit from both individual and group counseling. Ex. 1 at 7.
31. The IEP notes that REDACTED was functioning on a fifth-grade level in reading and math. Ex. 1 at 26. However, the Department's meeting minutes stated that REDACTED was functioning on a fourth-grade level in reading; the minutes do not specify a functioning level in math. Ex. 16 at 3.
32. REDACTED's parents expressed their concerns about REDACTED's attention, executive functioning, social skills, and anxiety. Tr. 85-86.
33. At the meeting, REDACTED's disability was classified as other health impairment because REDACTED had a diagnosis of REDACTED and he experienced specific learning disabilities with impairments in reading and written expression and additional diagnoses of a language disorder and developmental coordination disorder. Tr. 79-82.
34. The IEP lists, as "Management Needs" for REDACTED, the detailed and specific recommendations found in the 2020 neuropsychological evaluation, for example: specific supports for reading comprehension; highlighting new vocabulary in texts; underlining, highlighting and summarizing texts; previewing materials; teacher support to assist REDACTED in processing texts; supports to assist REDACTED in developing ideas and organizing his written work; teacher monitoring and redirection for attention; teacher support for initiating and organizing tasks and remaining on tasks; teacher support to monitor understanding of instructions; clarification of instructions; teacher support to organize materials, movement breaks; modified worksheets and graph paper for math problems; use of computer for writing assignments; and preferential seating. Ex. 1 at 8-9; see Tr. 88.
35. The IEP includes goals in reading comprehension; writing; math concepts, computation and problem solving; executive functioning; and counseling. Ex. 1 at 11-20.
36. The CSE recommended that REDACTED attend an ICT class for his "core academic classes" and receive the related service of counseling (one 40-minute session per week individually to work on anxiety and self-regulation and one 40-minute session per week in a group to work on social problem solving and peer relations). Ex. 1 at 22; Tr. 86-87.
37. Mr. REDACTED explained that the CSE recommended ICT for REDACTED because REDACTED was purportedly functioning approximately one year below grade level. Tr. 162. A self-contained 12:1 special education class would not have been appropriate for REDACTED because, in those classes, students were performing two or more years below grade level. Tr. 163, 175.
38. Mr. REDACTED explained that with the two teachers, and with the lower student to teacher ratio, the ICT class would address REDACTED's attention and executive functioning challenges which were affecting his academic progress. The teachers would provide prompting if REDACTED were off-task and would differentiate instruction for him. Tr. 87.
39. The recommended counseling would address REDACTED's anxiety and social problemsolving challenges. Tr. 87.
40. At the meeting, REDACTED's parents and his teacher at REDACTED expressed their concerns that the ICT class would be too large and overwhelming for REDACTED and that he would not make progress. Tr. 89, 164.
41. Mr. REDACTED explained that the CSE rejected a 12:1 special education class and an approved non-public special education school for REDACTED because such settings would be too restrictive for him. Tr. 90-92.
42. REDACTED's parents did not receive a copy of REDACTED's IEP at or after the December 2021 meeting. Tr. 267.
43. After the meeting, REDACTED's parents did receive from the Department a recommendation of a public school for REDACTED, REDACTED REDACTED ("Center"). REDACTED's parents appreciated that the school was in their neighborhood. Tr. 268-269; Ex. 13 at 7.
44. Even though REDACTED's parents had not yet received the IEP from the December meeting and were unsure of the precise program that the Department was offering REDACTED, REDACTED's father telephoned the school. Tr. 268-269; see also Ex. 20 (SESIS log showing PWN sent but no entry that IEP sent).
45. REDACTED's father spoke to someone at the school who directed him to the school's website, which was not operational. Tr. 269-271.
46. Ms. REDACTED, the Parent Coordinator at Center, explained that she performs numerous functions at the school, including as the "go between" for parents and school staff. Ex. 120-121.
47. Center includes grades five through eight. During the 2021-2022 school year, there was a sixth grade ICT class at the school. Tr. 123.
48. ICT classes at Center generally included "approximately" twenty students in math classes, eighteen students in literacy classes, and 25 to 28 students in science and social studies classes. Tr. 133.
49. There was no seat available in the sixth grade ICT class in December 2021. Tr. 124.
50. Ms. REDACTED explained that if REDACTED's parents had contacted Center in 2021 to inquire about a "seat" for REDACTED, she would have "field[ed]" the call and informed them that the school did not have "a seat" for REDACTED. Tr. 125; see also Tr. 126-127.
51. Center has turned away special education students when there were no seats at the school for them because "if we do not have a seat for ICT we can't take the kid." Tr. 127.
52. There is a "cap" on the number of students in the school and the number of students who can be in ICT classes. Tr. 128.
53. If the Department had offered REDACTED a small class program, REDACTED's parents would have conferred with REDACTED's therapists and the evaluating neuropsychologist and considered such a public school program. Tr. 313-314.
54. REDACTED's parents, through counsel, submitted a "ten-day" notice letter to the Department on January 19, 2022. Ex. C. They informed the Department that they were placing REDACTED at REDACTED for the remainder of the 2021-2022 school year and would be seeking funding from the Department. They also informed the Department that they had not yet received an IEP for REDACTED and that the Department had, for a number of reasons, denied REDACTED a FAPE. Ex. C.
55. The CSE reconvened on April 29, 2022. Ex. 12.
56. The following individuals attended the April 2022 meeting: Mr. REDACTED; a special education teacher employed by the Department; REDACTED's parents; and REDACTED's teacher at REDACTED. Tr. 77; Ex. 12 at 30.
57. The meeting participants considered the 2020 neuropsychological evaluation; reports from REDACTED (including in the areas of speech and occupational therapies); the social history; and a Department occupational therapy evaluation of REDACTED. Tr. 82, 103-104, 165, 171.
58. The CSE continued to recommend that REDACTED attend an ICT program, and for the same reasons that it recommended ICT for REDACTED in December. Tr. 170.
59. Again, REDACTED's parents and his teacher at REDACTED expressed their concerns that the class size was too large and that REDACTED would not make progress. Tr. 170.
60. According to Mr. REDACTED, the CSE did not recommend occupational therapy for REDACTED because the Department's occupational therapy evaluation did not recommend occupational therapy for him. Tr. 167.
61. Also according to Mr. REDACTED, the CSE did not recommend speech therapy because it did not have a speech evaluation "with normative testing to rely upon to justify" speech services. Tr. 167.
62. REDACTED's parents cooperated with the Department's scheduling and conduct of the occupational therapy evaluation and scheduling of a speech evaluation. Tr. 271-276.
63. REDACTED remained at REDACTED as a sixth-grade student for the entirety of the 2021-2022 school year. Ex. Q at 4.
64. REDACTED needed a "small, language-immersive, scaffolded environment to support his developing language skills and variable attention." He needed prompting from a teacher in order to remain on task in the classroom and to organize both his ideas and his belongings. Ex. Q at 4.
65. He also needed graphic organizers to assist him with oral ad written expression in all his classes. Ex. Q at 5.
66. He demonstrated receptive and expressive language deficits, and REDACTED provided speech and language therapy; REDACTED also provided occupational therapy to address his organizational skills. Ex. Q at 5.
67. During the 2021-2022 school year, REDACTED's schedule at REDACTED included daily reading and math blocks, social studies, science, physical education, lunch, music, writing, advocacy, current events, and photography. Ex. P; Tr. 226.
68. Most of his classes included eleven students with a head teacher and an assistant teacher. Ex. Q at 3. Students are grouped by similarity of ability levels into smaller groups of five or six students for reading and math. Ex. Q at 3.
69. All of REDACTED's reading and math instruction was provided in small groups. Tr. 220.
70. REDACTED developed detailed learning goals for REDACTED for the 2021-2022 school year. Exs. Q at 6, K, M, N.
71. REDACTED needed, and his teachers at REDACTED provided, differentiated instruction, scaffolded instruction, material broken down into small units and explicitly taught, repeated exposure to materials, multisensory instruction, Orton-Gillingham reading instruction, teacher support to follow classroom routines, multistep instructions broken down, previewing of new material, additional processing time, prompting, modeling, repetition, specific strategies for writing (including checklists and outlining), and language support. Exs. 11, M.
72. All REDACTED teachers are trained in Orton Gillingham, which is a "structured, sequential, systematic approach to reading" and "involves multisensory instruction and a strong emphasis on phonics and morphology." Ex. Q at 2. Orton Gillingham is utilized in reading instruction at REDACTED. Ex. Q at 4.
73. The occupational therapist pushed in to one of REDACTED's academic classes one time per week and pulled REDACTED out of a non-academic period one time per week. Tr. 223-224.
74. The occupational therapist targeted REDACTED's executive functioning, including organization and planning. Ex. 9. The REDACTED OT worked with REDACTED to organize his desk, cubby and backpack and to develop strategies to keep track of homework assignments and to hand in his homework consistently; she also requested that REDACTED's sensory difficulties be evaluated. REDACTED had improved the consistency of handing in his homework and organizing his desk. Ex. 9.
75. The speech therapist also pushed in to one of REDACTED's academic classes one time per week and pulled REDACTED out of a non-academic period one time per week. Tr. 224-225, 227.
76. The speech therapist targeted auditory attention, following directions, answering WH question, listening comprehension, vocabulary, organization and formulation of spoken language and written work, narratives, and language concepts. Ex. 10. The speech therapist worked with REDACTED in these areas, and REDACTED made progress. Ex. 10.
77. REDACTED made progress at REDACTED during the 2021-2022 school year (Exs. 11, K, M, N, Q):
a. Increased efficiency of reading sight words; b. Improved reading fluency; c. Increased vocabulary and use of new vocabulary during class discussions and in his written work; d. Improved reading comprehension as demonstrated by writing end of chapter sumREDACTED sentences as well as comparing and contrasting characters and themes using details from texts; e. Improved written expression, particularly in the area of writing complete, expanded and grammatical sentences; f. Fluency with math operations and understanding of math concepts, fractions, decimals and percentages; g. Participated, and learned material, in history and science; h. Improved independence in organizing his academic materials, consistently handing in his homework, and bringing the appropriate materials to class; and i. Improved his listening skills and abilities to ask for repetition of directions and made progress with expressive language in terms of improving the accuracy and clarity of his verbal and written responses, and sentence and paragraph organization and development.
78. REDACTED's parents entered into an enrollment contract with REDACTED for the 2021-2022 school year. The contract obligates REDACTED's mother to pay the entirety of the tuition amount of $72,725.00. Ex. G.
79. REDACTED's parents have paid the entire amount of the 2021-2022 school year tuition. Exs. H, I.
CONCLUSIONS OF LAW
The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121.
A board of education may be required to pay for education services obtained for a child by the child's 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. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents' claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993). A free appropriate public education includes special education and related services designed to meet the student's individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). 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. The school district also must ensure that "[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled" that is, in the student's least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep't of Educ., 725 F.3d 131,143 (2d Cir. 2013).
The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v). The school district must then implement the IEP. 8 N.Y.C.R.R. 200.4(e)(1), (3).
A hearing officer may determine that a school district denied a student a FAPE based upon the district's procedural errors in the development of the IEP, deficiencies in the substance of the educational program set forth in the IEP, or both. See L.O. v. New York City Dep't of Educ., 822 F.3d, 95, 109 (2d Cir. 2016); see also 20 U.S.C. § 1415(f)(3)(E)(i); 8 N.Y.C.R.R. § 200.5(j)(5)(v). If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student's right to a free appropriate public education; (2) "significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education" to the student; or (3) "caused a deprivation of educational benefits." 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. Furthermore, "[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; see also L.O., 822 F.3d at 123-124.
In New York, the school district bears the burden of proof in 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. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85. When was the Department required to offer REDACTED a FAPE?
As a prerequisite to my authority to order relief, if any, in this case, I address the issue of when the Department should have completed its evaluation of REDACTED, considered his eligibility for special education and services, developed an IEP for him, and offered him a special education program and placement. I do this because a hearing officer does not have the authority to adjudicate a reimbursement claim until such time as a school district becomes, or should have become, responsible for offering a FAPE to a student.
As in the instant case, parents may refer their child to a school district for an "initial" evaluation to determine their child's eligibility for special education and services.[3] 8 N.Y.C. R.R. § 200.4(a)(1)(i). A school district has ten "school days" to request the child's parents' consent to conduct an evaluation of the child. 8 N.Y.C. R.R. § 200.4(a)(2)(iv)(a). The school district is then required to conduct the evaluation of the child within 60 days of receiving parental consent. See 8 N.Y.C. R.R. § 200.4(b)(1). In addition, the Department was required, within 60 school days from the date of consent, to determine the child's eligibility for special education, develop an IEP and "arrange for the appropriate special education programs and services" for the child. 8 N.Y.C. R.R. § 200.4(d) & (e).
On September 27, 2021, REDACTED's parents presented a "referral" to the Department for an evaluation of REDACTED, and provided consent for that evaluation. See Ex. D. REDACTED's parents clearly set forth their consent to the Department's evaluation of REDACTED in their September 27 letter. The Department had 60 days (until November 26, 2021), to conduct an evaluation of REDACTED.[4] See 8 N.Y.C.R.R. § 200.4 (b). The Department did not conduct an occupational therapy evaluation until December 15, 2021, and did not complete a speech and language evaluation. The Department had 60 school days from the date of consent (until January 3, 2022) to develop an IEP for REDACTED and "arrange for the appropriate special education programs and services" for him. See 8 N.Y.C. R.R. § 200.4(d) & (e). As a result, the Department was not responsible for offering a FAPE to REDACTED until January 3, 2022.
Did the Department have sufficient evaluative material to develop an IEP for REDACTED?
REDACTED's parents allege that the Department failed to rely on sufficient evaluative materials to develop REDACTED's IEP. Ex. B at 2-4. In order to effectuate the purposes of the IDEA, the statute places an affirmative obligation upon state and local educational agencies, such as school districts, to identify, locate and evaluate all children with disabilities residing in the state. 20 U.S.C § 1412(a)(3)(A); 34 C.F.R. § 300.111(a); 8 N.Y.C.R.R. § 200.2(a); Handberry v. REDACTED, 219 F. Supp. 2d 525, 540 (S.D.N.Y. 2002), aff'd, 436 F.3d 52 (2d Cir. 2006). As stated above, an appropriate educational program "begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services." Application of a Child with a Disability, Appeal No. 07-010; see also 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2).
The New York State regulations carefully spell out the requirements for evaluations of students with disabilities. 8 N.Y.C.R.R. § 200.4(b).
The CSE must address the results of an evaluation in a meeting to develop the student's IEP. The goal of the entire evaluation process (whether an initial evaluation of a student or a subsequent reevaluation) is to enable the CSE to create an appropriate IEP for the student. See, e.g., D.S. v. Trumbull Bd. of Educ., 975 F. 3d 152, 157 (2d Cir. 2020) ("Trumbull"); L.O. v. New York City Dept. of Educ., 822 F.3d 95, 109-111 (2d Cir. 2016); A.R. v. Norwalk Board of Education, 183 F. Supp. 2d 534, 549 (D. Conn. 2002); Application of a Student with a Disability, Appeal No. 10-033 at pp. 30-32.
An evaluation includes "any procedures, tests or assessments used selectively with an individual student . . . as may be necessary to determine whether a student has a disability and the extent of his/her special education needs." 8 N.Y.C.R.R. § 200.1(aa). The purpose of an individual evaluation is "to gather relevant functional, developmental and academic information about the student that may assist in determining . . . the content of the student's [IEP], including information related to enabling the student to participate and progress in the general education curriculum." 8 N.Y.C.R.R. § 200.4(b)(1). An evaluation must also include data to determine the student's "present levels of academic achievement and related developmental needs," whether the student needs special education, and whether the student needs additions or modifications to special education services. 8 N.Y.C.R.R. § 200.4(b)(5)(ii)(a)-(d) (emphasis added). Furthermore, Students must be "assessed in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, vocational skills, communicative status and motor abilities" and the evaluation must be "sufficiently comprehensive to identify all of the student's special education needs, whether or not commonly linked to the disability category in which the student has been identified." 8 N.Y.C.R.R. § 200.4(b)(6)(vii) & (ix); see also Application of a Student with a Disability, Appeal No. 13-215 at pp. 16-17.
In other words, a school district's evaluation of a student must be "comprehensive." Trumbull, 975 F.3d at 157, 163; see also 20 U.S.C. § 1414(b) & (c). The information available to the Department from the 2020 neurological evaluation and school reports made clear that any "comprehensive" evaluation of REDACTED must include both an occupational therapy and a speech-language evaluation. REDACTED's parents challenge only the failure to conduct and consider an occupational therapy evaluation; thus, I will address that allegation.
Given the information available at the time of the IEP meeting about REDACTED's sensory difficulties, executive functioning concerns, and organizational challenges—all as outlined in the 2020 neuropsychological evaluations, the REDACTED REDACTED reports, and parent input at the IEP meeting—it was clear that the CSE should have assessed REDACTED in these areas via an occupational therapy evaluation and then consider the occupational therapy evaluation at the IEP meeting. It is of no import that the occupational therapy evaluation that Department personnel subsequently performed did not recommend occupational therapy for REDACTED. By virtue of the absence of an occupational therapy evaluation for consideration at the December 2021 IEP meeting, REDACTED's parents were denied their right to meaningfully participate in a discussion of REDACTED's OT-related needs—of which an inquiry was an inherent component of a "comprehensive" evaluation of REDACTED—at the IEP meeting. See 20 U.S.C. §1415(f)(3)(E)(ii) (procedural violation that "significantly" impedes parents' opportunity to participate in the decisionmaking process is a FAPE violation). As a result, the failure of the Department to conduct and consider an occupational therapy evaluation at the October 2021 IEP meeting was a denial of FAPE.
Was the Department's failure to provide REDACTED's parents a copy of the IEP a denial of FAPE?
There is a one-word answer to this question: "yes." School districts must provide a copy of a student's IEP to the student's parents so that the parents are able to make informed decisions about whether or not to accept special education and services from the school district. See R.E., 694 F.3d at 186-187, 189-90. REDACTED's parents were denied this opportunity; furthermore, REDACTED's parents informed the Department in their "ten-day" notice letter that they had not yet received a copy of the IEP; the Department did not remedy this problem despite being presented with the opportunity to do so. I find that this failure to provide the IEP is a procedural violation that rises to the level of FAPE deprivation. See 20 U.S.C. §1415(f)(3)€(ii) (procedural violation that "significantly" impedes parents' opportunity to participate in the decision-making process is a FAPE violation). Was the Department's program recommendation substantively appropriate for REDACTED?
REDACTED's parents allege that the program set forth in the Department's IEP for REDACTED failed to address REDACTED's learning disabilities, REDACTED and anxiety. Ex. B at 3-4. The preponderance of the evidence does not demonstrate that the recommended ICT program addressed REDACTED's needs (as described in the 2020 neurological evaluation relied upon by the CSE and the input from REDACTED's teachers and parents). The classes were too large, even with two teachers, for him to receive the level of teacher support recommended in the 2020 neurological evaluation and copied into the IEP under "management" needs. Furthermore, the evidence available to the CSE demonstrated that REDACTED needed related services to support his classroom learning, and counseling alone was not sufficient to address the range of his needs. Without significant supports, interventions and specific instructional strategies, REDACTED's attentional and executive functioning challenges (which impeded his learning) would remain unaddressed, and he would not make appropriate progress. See Endrew F., 137 S. Ct. at 999 (IEP developed by district must be "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"). As a result, the Department did not carry its burden to demonstrate that its program for REDACTED was appropriate for him.
Did the Department offer REDACTED a school placement in which his IEP could be implemented?
REDACTED's parents allege, in the Amended DPC, that the Department failed to offer a placement "suitable to implement" REDACTED's IEP. See Ex. B at 3. On December 2, 2021, the Department held an IEP meeting but failed to provide REDACTED's parents with a copy of the IEP. On December 27, 2021, the Department provided a Prior Written Notice and offered a placement for REDACTED at the REDACTED School. REDACTED's parents were unable to obtain information from the proposed placement school. At the impartial hearing, the clear, unequivocal, credible, convincing and uncontroverted testimony of the Department's witness, Ms. REDACTED, demonstrated that the Department did not offer a school placement that could enroll REDACTED and implement his IEP because there was simply no place available for him in an ICT classroom. As stated above, a school district must implement the student's IEP. 8 N.Y.C.R.R. 200.4(e)(1), (3). See also B.R. ex rel. K.O. v. New York City Dep't of Educ., 910 F. Supp. 2d 670, 678-679 (S.D.N.Y. 2012) (school district must prove that the proposed school is capable of implementing the IEP). As a result, the Department's failure to offer REDACTED a school placement capable to implementing his IEP is a denial of FAPE.
In light of the cumulative impact of the procedural violations as well as the substantive inadequacy of the IEP, the Department did not carry its burden of proof and cannot prevail on the first "prong" of the Burlington/Carter test. Was REDACTED an appropriate placement for REDACTED for the 2021-2022 school year?
REDACTED' parents bear the burden of proof concerning the appropriateness of REDACTED for REDACTED. See, e.g., Frank G. v. Board of Education of the Hyde REDACTED Central Sch. Dist., 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S.Ct. 169 (2007). To meet this burden, REDACTED's mother must show that the educational services provided at REDACTED addressed REDACTED's identified special education needs. See C.F. v. New York City Dep't of Educ., 746 F.3d 68, 82 (2d Cir. 2014); C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free Sch. Dist., 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:
No one factor is necessarily dispositive in determining whether parents' unilateral placement is "reasonably calculated to enable the child to receive education benefits." Rowley, 458 U.S. at 207. 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.
Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App'x 29, 78 IDELR 2 (2d Cir. 2020) (SumREDACTED Order). Furthermore, as the Second Circuit held in R.E.: "parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement." 694 F.3d at 187 n.3.
The preponderance of the evidence establishes that REDACTED provided REDACTED with an educational environment in which his specific and identified special education needs were addressed. In particular, REDACTED addressed REDACTED's need for small classes in which he received direct, differentiated and scaffolded instruction as well as teacher supports and related services that he required in order to address his language-based, executive functioning and attentional challenges so he could learn. The record is clear as to the extent of the individualized special education and other supports that REDACTED personnel provided to REDACTED. See paragraphs 64 through 76, above. REDACTED made progress at REDACTED during the 2021-2022 school year. See paragraphs 75-77, above.
The evidence thus demonstrates that REDACTED provided REDACTED with an appropriate special education program. See, e.g., T.K. v. New York City Dep't of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child's needs and child makes progress); F.B. v. New York City Dep't of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child's needs and which resulted in progress); see also, e.g., Application of a Student with a Disability, Appeal No. 22-002 at pp. 16-19 (prong II burden met when testimony of school witness describes how school's program addresses student's individual needs); Application of a Student with a Disability, Appeal No. 21-063 at pp. 14-16 (same); Application of a Student with a Disability, Appeal No. 21-056 at pp. 18-22 (same).
Considering the "totality of the circumstances" as required by the Second Circuit in Frank G., the evidence supports a finding that the program at REDACTED was appropriate for REDACTED for the 2021-2022 school year. As a result, REDACTED's parent prevails with respect to the second Burlington/Carter criterion. Does the balance of the equities favor REDACTED' parents?
With respect to the third Burlington criterion, whether equitable considerations support REDACTED's parent's claims, the evidence establishes that REDACTED' parents cooperated with the CSE by attending CSE meetings, communicating with Department personnel about their concerns, and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep't of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) ("equitable considerations" include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district). "Important 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." C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).
REDACTED's parents' pursuit of a private school or making payments to a private school prior to the IEP meeting do not constitute a failure to cooperate with the DOE and do not warrant a tuition reduction. Id. See also T.K. v. New York City Dep't of Educ., 810 F.3d 869, 879 (2d Cir. 2016); Application of Bd. of Educ. of the Webster Central Sch. Dist., Appeal No. 17-92 (applying C.L.: "early application or enrollment—in and of itself—is not a factor that weighs against an award of tuition reimbursement; rather, the examination focuses on how the parents conducted themselves with respect to the CSE and IEP development process").
Equitable considerations thus favor the award of relief to REDACTED's parents. As a result, REDACTED's mother prevails with respect to the third Burlington/Carter criterion. For what time period are REDACTED's parents entitled to reimbursement?
REDACTED's parents argue that they are entitled to reimbursement as of December 2, 2021, the date of the IEP meeting because that was the date that the Department "was fully on notice" that REDACTED was eligible for special education and services as per an IEP. IHO Ex. II at [5]. In the alternative, REDACTED's parent argue that they are entitled to reimbursement as of January 19, 2022, the date of their "ten-day" notice letter. 5 IHO Ex. II at 5. The Department then had ten business days to attempt to address the concerns set forth in the letter—by, for example, sending REDACTED's parents a copy of their child's IEP and/or reconvening the IEP meeting and/or conducting a speech evaluation and reconvening the IEP meeting. The Department did none of this. As a result, I find that REDACTED's parents are entitled to reimbursement as of January 19, 2022.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED:
The Department of Education shall reimburse REDACTED's parents for REDACTED' placement at the REDACTED REDACTED School for the time period from January 19, 2022 through June 30, 2022, in an amount totaling $39, 998.75. The amount of reimbursement for the 2021-2022 school year shall not exceed $39,998.75.
SO ORDERED.
DATED: March 26, 2023
Jean Marie Brescia, Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DOCUMENTATION ENTERED INTO THE RECORD
DEPARTMENT EXHIBITS
Ex. # Document Date Pages
1. Individualized Education Program (IEP) 12/2/21 29 pages DOE
2. Neuropsychological Evaluation 8/14/20 32 pages DOE
3. 5th Grade Mid-Year Progress Report (REDACTED REDACTED) undated 10 pages DOE
4. 5th Grade Year-End Progress Report (REDACTED REDACTED) 6/24/21 10 pages DOE
5. 5th Grade First Semester Report Card (REDACTED REDACTED) undated 12 pages DOE
6. 5th Grade Second Semester (Final) Report Card (REDACTED REDACTED) 6/24/21 12 pages DOE
7. Physical Examination 6/14/21 2 pages DOE
8. Occupational Therapy Evaluation 12/15/21 6 pages DOE
9. 6th Grade Mid-year Report Occupational Therapy (REDACTED, 2021-22) undated 2 pages DOE
10. 6th Grade Mid-Year Report Speech and Language (REDACTED, 2021-22) undated 2 pages DOE
11. 6th Grade Mid-Year Report Card Academic (REDACTED, SY 2021- 22) undated 23 pages DOE
12. Individualized Education Program (IEP) 4/29/22 30 pages DOE
13. Prior Written Notice (PWN) of Classification and Program Recommendation, and School Placement/Location Letter (SLL) 12/27/21 13 pages DOE
16. IEP Meeting Minutes 12/2/21 5 pages DOE
20. SESIS Events Log Excerpt (12/10/19 – 6/1/22) – 6/1/22 12/10/19 13 pages DOE
21. Social History Evaluation 10/27/21 3 pages DOE
23. DOE Letter to Parent re Evaluations to be Conducted 9/8/21 6 pages DOE
24. Parental Consent to Evaluation (dated 10/8/21; signed 11/5/21) 11/5/21 2 pages DOE
27. Notice of December 2, 2021 IEP Meeting 10/2/21 3 pages DOE
28. DOE Letter for Obtaining Occupational Therapy Evaluation 1/26/22 8 pages DOE
30. DOE Internal Discharge Form 12/10/19 1 page DOE
PARENT EXHIBITS
A. Exh. # Description Date Pages Request for Impartial Hearing 5/23/22 5 pages
B. Request for Impartial Hearing, Amended 9/16/22 6 pages
C. Ten Day Notice 1/19/22 3 pages
D. Letter to CSE 9/27/21 1 page
E. Email with report cards 9/29/21 3 pages
F. Neuropsychological 8/14/20 33 pages [6]
G. Tuition Contract 2/6/21 7 pages
H. Tuition Statement 21-22 2 pages
I. Proof of Payment Various 18 pages
J. Occupational Therapy Report 21-22, Midyear 2 pages
K. Occupational Therapy Report 21-22, End of Year 1 page
L. Report Card 21-22, Midyear 23 pages
M. Report Card 21-22, End of Year 22 pages
N. Speech Report 21-22, Midyear 2 pages
O. Speech Report 21-22, End of Year 2 pages
P. Student Schedule 21-22 1 page
Q. Affidavit of Direct Testimony 1/20/23 8 pages
IHO EXHIBITS
I. IESP 12/10/2019 1 page IHO
II. Parents' Closing Brief 3/1/2023 16 pages IHO
Footnotes
[1] Exhibits shall be referred to as follows: Parent's exhibits are identified with letters; Department exhibits are identified with numbers; and Impartial Hearing Officer's Exhibits are labelled as "IHO."
[2] Department Exhibit 30 is an internal Department form that indicates that REDACTED's family moved out of New York City in 2019. The Department did not forward this document to REDACTED's family and did not substantiate, at the hearing, the assertion that the family moved. The uncontroverted testimony of REDACTED's father established that REDACTED lives, and continues to live, in New York City. See also Ex. 21 (Department's social history).
[3] I find that this case should be viewed and decided as if it were an "initial" evaluation because (1) the September 27 letter was REDACTED's parents' first request for an IEP; (2) there appears to have been a gap between REDACTED's receipt of IESP services and the September 27 request for an IEP; and (3) the analysis herein does not depend on whether the September 27 request constituted a request for an initial evaluation or a reevaluation.
[4] I take judicial notice of the Department's school calendars for the 2021-2022 and 2022-2023 school years, found at https://www.schools.nyc.gov/about-us/news/2021-2022-school-year- calendar and https://www.schools.nyc.gov/about-us/news/2022-2023-school-year-calendar, respectively.
[5] Parents also argue that they were not required to provide a "ten-day" notice (even though they they did so). IHO Ex. II at 6. I reject this argument. REDACTED's parents were seeking tuition funding from the Department for a unilateral private placement. As such, the "ten-day" notice rule is applicable.
[6] Scored-through exhibits were not admitted in evidence because they were duplicative of exhibits offered by the Department.