NY IHO #228621: New York City... | Special Education Law

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CASE NUMBER: 575909 - NYC: 228621

FINDINGS OF FACT AND DECISION

Student Name: STUDENT

Parent Names: PARENT

Case Number: 228621

Birthdate: REDACTED

District: REDACTED

Hearing Requested By: Parents

Date of Request: 7-07-22

Date(s) of Hearing: 08-31-22, 08-12-22, 08-02-22

Actual Record Closed Date: 9-20-2022 Date of Decision: 10-04-2022

Hearing Officer: Vandana Chak, Esq.

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED Esq.,

STATE EDUCATION DEPARTMENT OF NEW YORK

X In the Matter of a Complaint Pursuant to Part 200 of the Case No.: 228621 Regulations of the Commissioner of Education Regarding, STUDENT, a minor, by and through his/her Parent(s), PARENT FINDINGS OF FACT, CONCLUSIONS OF LAW

Petitioners AND DECISION

-against-

NEW YORK CITY DEPARTMENT OF EDUCATION,

Respondent.

INTRODUCTION AND PROCEDURAL BACKGROUND

• The undersigned hearing officer was appointed to the above matter on September 21, 2022, (IHO Ex. I). This matter came before the hearing officer by way of a due process complaint (“DPC”), filed by the Parent on July 7, 2022, (IHO Ex. II). No written response was provided by the Respondent, the New York City Department of Education (hereinafter “DOE” or “Respondent”). A pre hearing conference was held in this matter on August 2, 2022. On August 12, 2022 a pendency hearing was held and an order dated August 17, 2022 rendered (IHO Ex. III). A final hearing was held on August 31, 2022. It was an open hearing and the Parent was represented by REDACTED, Esq. Respondent (“D.O.E.” or “District”) was represented by REDACTED, Esq. The record was closed on September 20, 2022. In the due process complaint, the Parent requests tuition reimbursement for a unilateral placement of the student beginning April 25, 2022 at REDACTED school for the remainder of the 2021-2022 school year and for the 2022-2023 school year plus for cost of related service providers, costs of transportation and an independent neuropsychological evaluation.

JURISDICTION

• The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter “IDEA”), 20 U.S.C. § 1400 et seq., and the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. § Part 200.

BACKGROUND

• Student is REDACTED year-old female child mandated for a 12 month school year who was diagnosed for traumatic brain injury. Her diagnoses include REDACTED. The student had been unilaterally placed in a private school the SCHOOL (SCHOOL) in 2019 ( Parent Ex. B-4), prior to the 2020-2021 and 2021-2022 school years, which were the subject of a previous due process hearing in which an unappealed IHO Decision dated October 19, 2021, “2021 FOFD”, (Parent Ex. B) granted Parent’s claim for the 2020-2021 and 2021-2022 school years for unilateral placement of Student at SCHOOL. Parent on April 25, 2022, unilaterally has moved student from the unilateral placement at SCHOOL to a different unilateral placement at REDACTED school. Parent on April 5, 2022, gave a 10 day notice to District of this unilateral move to REDACTED from SCHOOL. (Parent Ex. D). The CSE met on May 31, 2022, and developed an IEP, (“May 2022 IEP”), (Parent Ex. F). At this CSE meeting a team of specialists from REDACTED attended to present their assessments and program recommendations for Student. (Parent Ex. E; REDACTED. 122-123). Thereafter, on June 17, 2022 Parent gave a 10 day notice to District rejecting the program and placement recommendations of the May 2022 IEP and continued the unilaterally placement of Student at REDACTED. (Parent Ex. H).
• The DPC alleges that District denied Student a FAPE as required by the Individuals with Disabilities Act, (“IDEA”) by not providing an appropriate program and placement for the 2022-2023 school year. The DPC also alleges the same for the remainder of the school year of 2021-2022 after Student’s unilateral placement was altered to REDACTED. (T. 29).
• Parent asserts a claim for tuition fee, cost of related services and cost of transportation at REDACTED from April 25, 2022 to June 27, 2022 for the 2021-2022 school year, and from July 2022 onwards for the 2022-2023 extended school year.
• Finally, the parent requests an independent neuropsychological evaluation of the student in the due process complaint notice.

Parent’s Position

• The Parents allege that for the period April 25, 2022 to June 27, 2022 Student’s tuition, related services and transportation costs must be reimbursed or funded as REDACTED’s program and placement is similar to SCHOOL’s and Parent’s reasons for moving Student from SCHOOL are sufficient cause.
• The Parent alleges that Student has been denied a FAPE for the 2022/23 school year, due to the failure of District to provide Student with an appropriate IEP or school placement recommendation for the 2022/23 school year. Parent asserts that Student cannot be served appropriately for her unique needs at any District public school. (REDACTED. T. 113).

Districts Position

• District’s position is that Parent cannot unilaterally alter a unilateral placement and seek public funding. District’s cross-examination was conducted to establish the appropriateness of the May 31, 2022 IEP.
• District appeared at the final hearing at the end of Parent’s direct testimony.

Thereafter, the one witness other than the Parent was cross-examined by District. Fourteen days were scheduled for post-hearing briefs, and none was submitted by District.

ISSUES

• The following issues arise:
• Whether FAPE was denied to student for the 2021-2022 school year?
• Whether FAPE was denied to student for the 2022-2023 school year?
• Whether REDACTED is an appropriate placement?
• Whether the equities favor reimbursement in full or in part of tuition, related services and transportation costs?
• Whether parent is entitled to an independent neuropsychological evaluation?

EVIDENCE SUBMITTED AT HEARING

Parent Evidence:

• Parent exhibits comprise of the following; A Due Process Complaint July 7, 2022 B Findings of Fact and Decision October 19, 2021 in IH# 196308 C SCHOOL IEP June 3, 2021 2021-2022 School Year D 04/05/2022 Ten Day Notice April 5, 2022 for 2021-2022 School Year E REDACTED IEP dated May 30, 2022 for 2022-2023 School Year
• NYC DOE IEP dated May 31, 2022
• Ten Day Notice dated June 17, 2022 for 2022-2023 School Year H Determination Report dated June 17, 2022
• REDACTED Enrollment Contract June 14, 2022 for 2022-2023 School Year
• Transportation Agreement dated June 16 2022 for 2022-2023 School Year
• Parent, PARENT, and REDACTED, Special Education Director, REDACTED provided testimony.

District Evidence:

• District did not submit any evidence for the final hearing. District’s disclosure for the pendency hearing is as follows:
• FOFD of October 19, 2021
• No witnesses were presented by District.

FINDINGS OF FACTS

• It is undisputed that on May 31, 2022 the CSE met and developed an IEP for the 2022-2023 school year, (“May 2022 IEP”), and parent participated with a team of specialists from REDACTED (Parent Ex. F-68-69; T-54; T-75). Parent’s witness Ms. REDACTED (“Ms. REDACTED”), special education director at REDACTED identified the May 2022 IEP’s attendance page and the May 2022 IEP. (Parent Ex. F-68; Parent: T. 54; REDACTED: T-124 -125). As the special education director at REDACTED she testified that she attended the May 31, 2022 CSE meeting for Student (REDACTED T-122, 124), that her role at the meeting was to direct as she does at CSE9 meetings the presentation on present levels of performance and REDACTED evaluations information and “then contribute however I can representing -- my answers represent the school as a whole in that one particular department”, (REDACTED: T-123; F-69). In her testimony she describes the sequential steps on how REDACTED developed for Student a private IEP which was shared with District prior to the May 31, 2022 CSE meeting. (REDACTED T, 112). In her testimony on evaluations that inform the May 30, 2022 private REDACTED IEP she references the information on assessments and tests included in it. (REDACTED: T- 129). 2. Ms. REDACTED’s testimony is that the May 2022 IEP while it is generally similar to REDACTED’s private IEP the District’s IEP its more encompassing with additional service of REDACTED and other details (REDACTED. T-125). I find that Parent’s witness Ms. REDACTED in her testimony admits that District’s May 2022 IEP is appropriate.
• Ms. REDACTED’s testimony is that she contributed to establishing 8:1:1 class size, with the other components of the IEP contributed to by REDACTED’s related service providers (REDACTED T-127). District also recommends this class size in the May 2022 IEP. (Parent Ex. F). In her testimony she states that she does not provide direct service to Student but has seen Student 3-4 times briefly in classroom in the last few months, (REDACTED: T: 130-131). Ms. REDACTEDs agrees with the 60 minutes class duration and class size recommended in the May 2022 IEP. (REDACTED T. 112).
• The present levels of academic achievement and functional performance in District’s May 2022 IEP document all the results and conclusions of assessments presented by REDACTED team at the May 31 2022 CSE meeting and presented in its private IEP of May 30, 2022. (Parent Ex. E). The May 2022 IEP recommended an 8:1:1 Special Class for all Subjects at a District 75 Specialized School 35 periods weekly; Occupational Therapy 5 x weekly individual for 60 minutes; Speech and Language Therapy 5 x weekly individual for 60 minutes; Physical Therapy 5 x weekly individual for 60 minutes; Parent counseling and training 1x monthly for 60 minutes at school, Vision Education Service individual 3x weekly 60 minutes; Para professional individual full time; Assistive Technology services individual 2x weekly 60 minutes and the device of REDACTED all day; special transportation with 1:1 para professional in lift bus. (Parent Ex. F-60). District’s has recommended special factors to provide instruction in Braille and the use of Braille to Student in its vision annual goals.(Parent Ex. F-44). The Parent had reported to the CSE that Student does not utilize Braille (Parent Ex. F-26) and Dr. REDACTED had reported that Student had not been provided Braille education (Parent Ex. F-24).
• Ms. REDACTED in her testimony on assessment that inform REDACTED’s private IEP, (REDACTED T. 129-130), points to the speech assessments conducted using CFCS, a functional communication system classification, a communications exchange abilities results, (Parent Ex. E-22 & 24), a top tools evaluation checklist, which references an oral motor feeding results (Parent Ex. E- 25), PD and the DAGG-2 scores review (Parent Ex. E-22), the PD CAT summary (Parent Ex. E-15), with key scores for daily activity, mobility, social, cognitive and an assessment done for a range of motion (Parent Ex. E-13). I find that the assessment materials of the private REDACTED IEP adequately described Student’s needs with respect to vision, cognition, academics, language, social skills, and sensory regulation.
• I find that the May 2022 IEP is informed by the REDACTED assessments and follows closely the recommendations of REDACTED team and incorporate them in the May 2022 IEP. The May 2022 IEP is based upon a reasonable consideration of evaluative information before it and with active parent participation.
• On a leading questing by Parent’s attorney on Music therapy (T. 114, l. 15), Ms. REDACTED testifies that REDACTED’s Music therapy recommendation is not recommended by the CSE. (REDACTED. T. 114). Her testimony is that the addition of music to activities can help information to be processed and learned differently (T-115), improve Student’s receptive and expressive language skills (T 115) and helps Student’s regulation skills. (REDACTED. T. 116).
• District’s May 2022 IEP under present levels of performance and individual needs incorporates the use of music as an instructional tool to support with engagement throughout the day. (Parent Ex. F-13).
• The May 2022 IEP has three visual annual goals both short and long term, that reflect the recommendation of the REDACTED team. (Parent Ex. F -42 to 44). The assistive technology annual goal is geared to allow Student to participate in a variety of activities across different environments and engage in social interactions with others. (Parent Ex. F-45). The speech annual goal cover as recommended by REDACTED her Receptive, Expressive, Pragmatics, Oral Motor/Feeding needs. (Parent Ex. F- 46 to 50). These goals and occupational therapy goals address hearing education needs of Student among her other unique individual needs. I find that the annual goals as part of the May 2022 IEP have an informed, reasonable and viable basis upon which Student could derive an educational benefit for the school year.
• In her testimony Ms. REDACTED explains that different therapists work together to achieve goals by integrating them in the classroom session like teaching Student how to self-feed, an ADL goal, to speech goals. (REDACTED. T-100). I find that the 60 minutes sessions mandate for services providers overlap to integrate Student’s learning.
• In her testimony Ms. REDACTED states that she does not provide direct service to Student but has seen Student 3-4 times briefly in classroom in the last few months, (REDACTED: T: 130- 131).
• Ms. REDACTED was in agreement with the programs of the May 2022 IEP but in strong disagreement with the recommendation by District to serve Student in a public school setting. (REDACTED. 112-113). Her testimony is that in her opinion its inconceivable to her how any public school can accommodate for both the vision and trauma disability needs of Student. (REDACTED. T. 114). On CBST non-public schools her opinion is that none would be appropriate as they are tailored to trauma or vision but not both. (REDACTED T. 114). I find Ms. REDACTED’s testimony is too speculative and vague to present a challenge if at all, to where the student would have been assigned a school. (see Application of a Student with A Disability, Appeal No. 22025. It rejects a public school placement.
• I find that the May 2022 IEP has considered parent’s concerns as memorialized therein as: “Parent concerns and priorities- STUDENT’s parents expressed priority for establishing a regular toileting routine for STUDENT. Her parents are interested in an adaptive toilet chair for the home. The parents also expressed interest in a compression vest or weighted blanket to help with sensory regulation for STUDENT. Additionally, her parents expressed desire to reduce tactile defensiveness and increase her tolerance to activates such as nail trimming. Additionally, her parents have expressed desire to avoid Applied Behavior Analysis Theory tactics and strategies in the school setting, as it was previously used and potentially led to skill and behavioral regression. Instead, they wish to use Trust-Based Intervention.” (Parent Ex. F-13).
• Parent sent District a ten-day notice on April 5, 2022 (Parent Ex. D) which is a notification of their decision to move Student to REDACTED for the remaining months of the school year and to pursue public funding due to Student’s “current needs”. This letter has no allegation that the district failed to fund the student's services or otherwise caused an interruption to the delivery of education or services.
• The CSE in its May 2022 IEP recommended placement at a NYC DOE Specialized School. (Parent Ex. F-65). This IEP notes the concerns that Ms. REDACTED similarly states in her testimony disfavoring a public-school placement and as does the Student’s father. (Parent Ex. F-69).
• Parent’s testimony on the intent of the June 17, 2022, ten day notice is to put the CSE on notice that “we were not moving her back to District 75. She was going to stay at REDACTED.” (T. 55). The DPC asserts clearly that “Parents disagreed with the District 75 recommendation at the IEP meeting but agreed to visit any proposed school location.” (Parent Ex. A- 4). I find that Parent had decided to place Student at REDACTED and alter the unilateral placement from SCHOOL and never intended to place Student at a public school.
• Parent’s testimony is that Student was referred to CSE in April of 2019. (Tr. 42). She was initially placed at P.S. REDACTED and was due to be evaluated in fall. (Tr. 44). In May 2019 Parent gave District a notice of the unilateral move to SCHOOL and she began attending in June of 2019. (Tr. 44). Parent’s testimony is that he believes an 8:1:1 classroom is for students with Autism (Tr.73), that music as a service was not recommended (Tr. 74) or hearing services. (Tr.74).
• I find that Parent did not wait for the CSE to convene prior to moving Student from one unilateral placement to the other at REDACTED.
• I find that Parent altered the unilateral placement prior to the CSE meeting with forethought and with no intention to place Student in a public school.
• Parent on June 14, 2022 entered into an enrollment contract with REDACTED, (Parent Ex. I) and a private transportation contract on June 16, 2022. (Parent Ex. K). The enrollment contract holds in abeyance payment of tuition and other costs as long as litigation continues in this case.
• Next on June 17, 2022, Parent sent a ten-day notice to District, (Parent Ex. G).

At paragraph 3 the notice states that District has not provided a school location letter and at paragraph 2 Parent write that they intend to “remove student from DOE’s recommended school”. At the date of this letter, I find Student was attending REDACTED. Parent is asking for public funding for its placement. I find the 10-day notice to be self-serving and its assertions contradict the evidence and testimony provided in this case by Parent.

• More importantly, Parent notified the district that Parent had enrolled Student at REDACTED and intended to pursue public funding. (Parent Ex. B and G). These letters demonstrate that Parent did not need more information about the IEP or about Student’ recommended school placement to make the decision to pursue a private school education and seek tuition reimbursement. Parent had already made up their mind based on their existing concerns about public schools.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Applicable Legal 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]).

• The term “free appropriate public education” means special education and related services that –
• have been provided at public expense, under public supervision and direction, and without charge;
• meet the standards of the State educational agency;
• include an appropriate preschool, elementary school, or secondary school education in the State involved; and
• are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
• Comparisons of a unilateral placement to the public placement are not a relevant inquiry when determining whether the district offered the student a FAPE; rather, an IHO must determine whether or not the district established that it complied with the procedural requirements set forth in the IDEA and State regulations with regard to the specific issues raised in the due process complaint notice, and whether the IEP developed by its CSE through the IDEA's procedures was substantively appropriate because it was reasonably calculated to enable the student to receive educational benefits—irrespective of whether the parent's preferred program was also appropriate (Rowley, 458 U.S. at 189, 206-07; R.E, 694 F.3d at 189-90; M.H., 685 F.3d at 245; Cerra, 427 F.3d at 192; Walczak, 142 F.3d at 132; see R.B. v. New York City Dep't. of Educ., 2013 WL 5438605 at *15 [S.D.N.Y. Sept. 27, 2013] [explaining that the appropriateness of a district's program is determined by its compliance with the IDEA's requirements, not by its similarity (or lack thereof) to the unilateral placement], aff'd, 589 Fed. App'x 572 [2d Cir. Oct. 29, 2014]; M.H. v. New York City Dep't. of Educ., 2011 WL 609880, at *11 [S.D.N.Y. Feb. 16, 2011] [finding that "'the appropriateness of a public school placement shall not be determined by comparison with a private school placement preferred by the parent'"], quoting M.B. v. Arlington Cent. Sch. Dist., 2002 WL 389151, at *9 [S.D.N.Y. Mar. 12, 2002]; see also Angevine v. Smith, 959 F.2d 292, 296 [D.C. Cir. 1992] [noting the irrelevancy comparisons that were made of a public school and unilateral placement]; B.M. v. Encinitas Union Sch. Dist., 2013 WL 593417, at *8 [S.D. Cal. Feb. 14, 2013] [noting that "'[e]ven if the services requested by parents would better serve the student's needs than the services offered in an IEP, this does not mean that the services offered are inappropriate, as long as the IEP is reasonably calculated to provide the student with educational benefits'"], quoting D.H. v. Poway Unified Sch. Dist., 2011 WL 883003, at *5 [S.D. Cal. Mar. 14, 2011]).
• 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).

• The IDEA requires a school district to have an Individualized Educational Plan (IEP) in effect for each child with a disability at the beginning of each school year. See 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a); see 71 Fed. Reg. 46682 [stating that the IDEA "is clear that at the beginning of each school year, each [district] must have an IEP in effect for each child with a disability in the agency's jurisdiction. Further, An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii). At the earliest, the school year in New York commences on July 1, (see N.Y. Educ. Law § 2(15)), although cases that have dealt with the issue of a delayed FNR have considered the school year to start in September, see Tarlowe, 2008 WL 2736027, at *6; Bettinger, 2007 WL4208560, at *8.
• State regulations additionally provide that, if parents believe that their child's placement is no longer appropriate, they "may refer the student to the [CSE] for review" (8 NYCRR 200.4[e][4]). In guidance letters, the United States Department of Education indicated that it is the district's responsibility to determine when it is necessary to conduct a CSE meeting but that parents may request a CSE meeting at any time and, if the district determines not to grant the request, it must provide the parents with written notice of its refusal, "including an explanation of why the [district] has determined that conducting the meeting is not necessary to ensure the provision of FAPE to the student" (Letter to Frumkin, 79 IDELR 233 [OSERS 2021]; Letter to Anonymous, 112 LRP 52263 [OSEP Mar. 7, 2012]; see 34 CFR 300.503; 8 NYCRR 200.5[a]). The United States Department of Education's Office of Special Education Programs has indicated that "[g]enerally, an IEP meeting must take place before a proposal to change the student's placement can be implemented" (Letter to Green, 22 IDELR 639 [OSEP 1995]).
• The United States Department of Education has opined that the IDEA does not provide a general entitlement to parents of students with disabilities to observe proposed school placement options for their children (Letter to Mamas, 42 IDELR 10 [OSEP 2004]); see G.J. v. Muscogee County Sch. Dist., 668 F.3d 1258, 1267 [11th Cir. 2012] [noting that rather than forbidding or mandating access for parents, "the process contemplates cooperation between parents and school administrators"]; J.C. v New York City Dep't of Educ., 2015 WL 1499389, at *24 n.14 [S.D.N.Y. Mar. 31, 2015] [acknowledging that courts have rejected the argument that parents have a right under the IDEA to visit assigned schools and listing authority]; E.A.M., 2012 WL 4571794, at *11 [finding that a district has no obligation to allow a parent to visit an assigned school or proposed classroom before the recommendation is finalized or prior to the school year]; S.F., 2011 WL 5419847, at *12 [same]). On the other hand, there is some district court authority indicating that a parent has a right to obtain information about an assigned public school site (F.B. v New York City Dep't of Educ., 2015 WL 5564446, at *11-*18 [S.D.N.Y. Sept. 21, 2015] [finding "implicit" in the reasoning of the Second Circuit's decision in M.O. the proposition that parents have the right to obtain information on which to form a judgment about an assigned school]; V.S. v New York City Dep't of Educ., 25 F. Supp. 3d 295, 299-301 [E.D.N.Y. 2014] [finding that the "parent's right to meaningfully participate in the school selection process" should be considered, rather than, the "parent's right to determine the actual school selection"]; C.U. v. New York City Dep't of Educ., 2014 WL 2207997, at *14-*16 [S.D.N.Y. May 27, 2014] [holding that "parents have the procedural right to evaluate the school assignment" and "acquire relevant information about" it]).
• 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]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), 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]).
• An IEP has to be based upon appropriate evaluations. 34 C.F.R.

§300.324(a)(iii). See also 34 C.F.R. §§300.303-300.311, 300.315; 8 N.Y.C.R.R. § 200.4(f). All reevaluations shall be conducted by a multidisciplinary team, including a specialist in the area of the student’s disability. 8 N.Y.C.R.R. § 200.4(b)(4). Children must be assessed “in all areas of suspected disability” using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” 20 U.S.C. §1414(d); 34 C.F.R. § 10.

• Parents should be central members of IEP teams. See 20 U.S.C. §§ 1414(a)(1)(A), 1414(c), 1414(d)(1)(B)(i); 34 C.F.R. §§300.15; 300.303. Further, regulations provide that the parent must have an adequate opportunity to participate in the development of the child’s IEP Cerra v. Pawling Cent. School District, 427 F.3d 186, 192 (2d Cir. 2005, requiring that the Parent be properly notified of the IEP meeting and that such meeting be scheduled at a “mutually agreed upon time and place.” 34 C.F.R. § 300.322. When determining whether a district complied with the IDEA's procedural requirements, the inquiry focuses on whether the parents "had an adequate opportunity to participate in the development" of their child's IEP (Cerra, 427 F.3d at 192). Moreover, "the IDEA only requires that the parents have an opportunity to participate in the drafting process'" (D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *11 [E.D.N.Y. Sept. 2, 2011], aff'd, 506 Fed. App'x 80 [2d Cir. Dec. 26, 2012], quoting A.E. v. Westport Bd. of Educ., 463 F. Supp. 2d 208, 216 [D. Conn. 2006]; see T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009] [noting that the IDEA gives parents the right to participate in the development of their child's IEP, not a veto power over those aspects of the IEP with which they do not agree]).
• An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 C.F.R. § 300.320[a][3]).
• 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 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).

• 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).

2021-2022 School Year:

• The facts established demonstrate that on April 25, 2022 when Student’s placement was altered to REDACTED no issue on the appropriateness of the program and placement offered to the Student by the District for the 2021-2022 school year existed as Student was attending private school pursuant to a decision on merits, including a determination of the appropriateness of the unilateral placement in favor of Parent, (Parent Ex. B). Neither on April 5, 2022, when the ten day notice was given nor on April 25, 2022 did there exist an IEP dispute for the 2021-2022 school year.
• An IHO does not have the authority to enforce or stand in review of another IHO's decision (see Educ. Law §§ 4404[1][a]; [2]; see, e.g., A..R. v. New York City Dep't of Educ., 407 F.3d 65, 76, 78 n.13 [2d Cir. 2005]. The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
• If a due process complaint had been pending in April 2022, 20 U.S.C. § 1415 (j) does not impose any affirmative obligations on a school board to seek out alternative placements during pendency, District thus cannot be held subsequently to an affirmative obligation for the same duration particularly since an adjudicated placement was in place. Further, On April 5, 2022 Student was at SCHOOL and no order of the court had been obtained to change the unilateral placement from SCHOOL to REDACTED.
• Having arranged for and agreed to the delivery of education and services by SCHOOL, the parent elected to carry the responsibility for ensuring the delivery of the 2021 FOFD, with the district remaining responsible only for funding the services so delivered. As such, the parent assumed the risk that unforeseen events would cause the terms of unilateral placement at SCHOOL to be undesirable. Application of a Student with a Disability, Appeal No. 21-182.
• The unforeseen and not so unforeseen events that Parent testifies to made SCHOOL undesirable were: a “new teacher and therapists” had joined (Parent T. 46) which disturbed the student. Parent had to request to be “transferred back to the original teacher, and they allowed that”. (Parent T. 47). Parent’s testimony relates that the school ownership changed which brought new people and ideas like behavior therapists (Parent T.66), the para-professional who worked with student left without a farewell with Student which impacted her eating that became problematic ( Parent T. 60), the “earlier para returned to the school to request some belongings or something” and met Student, (Parent T.59), Parent requested a team meeting which did not take place until November 2021, (Parent T. 61), Parent suggested a trust based behavioral therapy as the proper course and SCHOOL insisted on ABA, which Parent states is not suited for Student and in fact very detrimental (Parent T. 61), had drawn attention to the curriculum being too advanced for Student, Parent T. (65), during the pandemic hybrid teaching schedule Student tuned out her teacher’s voice. (Parent T. 47), as Student’s mother works at SCHOOL there has developed animosity between parent and management (Parent T.65) and Parent relates experiences of intimidation, (Parent T. 67). During this period parent appeared at the hearing of the prior case for which an FOFD was rendered on October 19, 2021. As of February 18, 2022 parent had sought a reference from REDACTED. (Parent Ex. F-23). These reasons would be best tested before a court against the requirement of legal standards for seeking the relief of change in placement.
• To get an alteration in placement for the period April 25, 2022 to June 27, 2022 Parent and District would have to have come to an agreement, or Parent would have to seeks an injunction or determination from court. The party seeking such an injunction bears the burden of demonstrating entitlement to such relief under the standards generally governing requests for preliminary injunctive relief. That more is required to effect a change in placement pursuant to section 1415(i)(2)(B)(iii) than the maintenance of placement pursuant to section 1415(j) is consistent with the presumption created by Congress that a child should remain in the then-current educational placement. (See id. at 328, 108 S.Ct. 592).
• The appropriateness of District’s May 2022 IEP developed for the subsequent school year of 2022/23 is irrelevant to a determination for tuition and costs funding of the unilateral placement of the preceding 2020-2021 school year, which already stood decided by the 2021 FOFD.
• Parent’s argues in the DPC the similarities of the SCHOOL program with that of REDACTED as reason to render a decision in favor of the unilateral re-placement is best made before the court. This is not an argument that can override an unappealed 2021 FOFD.
• If the Parent wanted a change, as it appears they did, they should have requested such relief under section 1415(i)(2)(B)(iii).

2022-2023 School Year

• State regulations provide that, if parents believe that their child's placement is no longer appropriate, they "may refer the student to the CSE for review (8 NYCRR 200.4[e][4]). Parent did not follow this step. The 10 day notice does not seek a CSE review. (Parent Ex. D). Rather it’s a notice of parent’s decision to move Student to the next altered unilateral placement, REDACTED, when it states “which Parents have identified as an appropriate placement”. The United States Department of Education's Office of Special Education Programs has indicated that "[g]enerally, an IEP meeting must take place before a proposal to change the student's placement can be implemented" (Letter to Green, 22 IDELR 639 [OSEP 1995]).

May 31, 2022 IEP

• District in response to the April 5, 2022 notice scheduled a CSE meeting on May 31, 2022 and developed an IEP for Student.
• It is uncontested that the IEP team was duly constituted. It is uncontested that Parent meaningfully participated at the May 31, 2022 IEP meeting with a team of specialist providers from REDACTED. Parent introduced the May 2022 IEP into evidence (Parent Ex. F) and Ms. REDACTED the director of special programs at REDACTED admitted to the appropriateness of the recommendations of the IEP. Her only disagreement was with the placement recommendation being public school. I find her testimony and, that of Parent that no public or non-public school in New York city can provide a FAPE to the Student unconvincing. (Grim, 346 F.3d at 381-82 [holding that the district was not liable for a denial of a FAPE where the challenged IEP was determined to be appropriate, but the parents chose not to avail themselves of the public school program]). The burden of proof doctrine to prove a fact will not apply to Parent’s position against any public school recommendation, and does not rest on District to prove otherwise.
• Parent rejected a public school recommendation at the May 31, 2022 CSE meeting itself and had enrolled Student at REDACTED at Parent’s own financial risk. The prior April 5, 2022 ten day notice did not ask for a CSE meeting. The June 17, 2022 ten day notice, given after the CSE meeting had developed an appropriate IEP tailored to the unique needs of Student, complains about not receiving a school location letter when Parent rejects any location to a public school. The IDEA gives parents the right to participate in the development of their child's IEP, not a veto power over those aspects of the IEP with which they do not agree. Parent then on July 7, 2022 filed the present due process complaint seeking tuition and related services cost funding of the altered unilateral placement. Even though the school year begins on July 1 the District still had until September 1 to find an appropriate placement. The July 7, 2022 due process complaint inserted Parent’s claim during this time frame.
• In circumstances explained above and the evidence adduced a public school location letter would be futile to achieving a public school placement. The parent cannot mandate where the district implements the student's recommended program. Rejection of public school as a recommendation even before a placement undermines the claim of failure to implement the IEP.
• In developing each child’s IEP, the IEP Team must consider—(i) The strengths of the child; (ii) The concerns of the parents for enhancing the education of their child;
• The results of the initial or most recent evaluation of the child; and (iv) The academic, developmental, and functional needs of the child.( 34 CFR § 300.324: Development, review, and revision of IEP.) I find that the evidence establishes that the May 2022 IEP had clear measurable goals, recommended sufficient support services and each of the requirements for developing an IEP were followed which makes it substantially adequate and reasonably calculated to enable the student to receive educational benefits.
• Pursuant to regulations the May 2022 IEP was in effect prior to the school year beginning July 2022. (34 CFR § 200.4 (e)
• District in developing the May 2022 IEP for a child who is blind or visually impaired complied with the consideration of special factors to provide instruction in Braille and the use of Braille (Parent Ex. F-44). (34 CFR § 300.324(a)(2)(iii)).
• Ms. REDACTED who participated and led the REDACTED team at the May 31, 2022 CSE meeting is in agreement that both the District’s May 2022 IEP and the private REDACTED IEP are basically similar. Her testimony lays the foundation of the assessments that inform the REDACTED private IEP which are the basis of the May 2022 IEP. Parent exhibit F is the May 2022 IEP. On examination of the testimony and evidence in this case on the preponderance of the evidence establishes that District developed an appropriate IEP for Student. This fact was not contradicted by evidence on the record. It was Parent’s evidence that proved its appropriateness. Parent’s assertion that no district school can address the needs of the Student is ambiguous and unspecific to hold any merit. I find that District provided FAPE to student and hold Prong 1 of the Burlington/Carter test in favor of District.
• As Prong I has been proven in favor of District it does not require me to proceed to decide on Prong II and Prong III of the Burlington/Carter rule.

Claim For An Independent Neuropsychological Evaluation

• The IDEA and State and federal regulations guarantee parents the right to obtain an 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]). Guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, "the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs" (Letter to Baus, 65 IDELR 81 [OSEP 2015]; see Letter to Carroll, 68 IDELR 279 [OSEP 2016]). 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]).

• Here, Parent did not seek an IEE leading up to the due process complaint notice and instead requested that District allow an independent psychoeducational evaluation of the student (Parent. Ex. A-6). As discussed above, the May 2022 CSE had before it several sources of information provided by Parent, which were sufficient for the CSE to develop a summary of the student's academic achievement and functional performance, including recommendations on how to assist the student in meeting her goals consistent with the IDEA and the implementing regulations (20 U.S.C. § 1414[c][5][B][ii]; 34 CFR 300.305[e][3]; 8 NYCRR 200.4[c][4]).
• Parent asserts that its DPC makes a claim for an independent neuropsychological evaluation which District has failed to respond to. The regulations may not be reasonably read as asserting a claim that the parent disagreed with an evaluation that had been conducted by the district or requested an IEE as contemplated by the regulations, for the first time in the hearing request (see 8 NYCRR 200.5[g][1]. The hearing record contains no testimony on the issue. Even assuming that the district was obligated to conduct a triennial reevaluation of the student or evaluate the student in response to Parent's requests in the DPC, any failure by the district to complete the evaluation was a procedural violation I find it does not rise to the level of a denial of a FAPE (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]), particularly given that the student's IEP had already been developed for the 2022-23school year (see Parent Ex. F ), there is no allegation that the May 31 2022 CSE had insufficient evaluation information before it. Parent may directly request the CSE for an evaluation or an independent evaluation. Parent’s testimony suggests that Student was moved to SCHOOL prior to District scheduling Student’s evaluations. (Parent T. 44)
• As such, I find that the District developed an appropriate IEP for the student for the 2022-2023 school year and, as a result, the student was offered a FAPE for the 2022-2023 school year.

Music Therapy As A Related Service

• Student has been at a unilateral placement now over three years. Although the May 2022 IEP does not include a recommendation for music therapy goals or services specifically as a related service, Student's needs that were addressed by music therapy at REDACTED were targeted by appropriate goals, services, and supports included in the May 2022 IEP. The annual goals and the resources identified to address the student's management needs targeted the receptive, expressive, social pragmatic and oral motor/feeding skills (Parent Ex. F. 46-50), engagement in play activities, multi sensory art activities, emotional regulation and communication skills, (Parent Ex. F. 53), social (greet peers/teachers, comment in class, take turns,) communication (facial expressions/gestures, and vocalizations) skills underlying REDACTED's recommendation for music therapy. (see N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 592-93 [S.D.N.Y. 2013] [finding that, although the evidence may have supported that music therapy was beneficial for the student, it did not support the conclusion that the student could not receive a FAPE without it]).
• An IEP must include a statement of the related services recommended for a student based on such student's specific needs (8 NYCRR 200.6[e]; see 20 U.S.C. § 1414[d][1][A][i][IV]; 34 CFR 300.320[a][4]). "Related services" is defined by the IDEA as "such developmental, corrective, and other supportive services... as may be required to assist a child with a disability to benefit from special education" and includes psychological services as well as "recreation, including therapeutic recreation" (20 U.S.C. § 1401[26][A] [emphasis added]; see 34 CFR 300.34[a]; 8 NYCRR 200.1[qq]).
• Although it is undisputed that REDACTED recommended that the student receive music therapy during the 2022-23 school year (Parent Ex. E-62), comparisons of a unilateral placement to the public placement are not a relevant inquiry when determining whether the district offered the student a FAPE.
• No witness providing music therapy to Student testified at the hearing even though REDACTED employs 5 -6 music therapists. (REDACTED. T.122). Parent’s testimony does not explain the benefits of music therapy on Student or how it is being delivered. Ms. REDACTED’s testimony on music therapy came more as a general explanation and not as a therapist on a leading question. As such, review of the District's May 2022 IEP reveals that it recommended related services—albeit in a different way than those the parent preferred—and supports to address the student's needs that REDACTED addressed through music therapy.
• I find that evidence does not support a finding that there was a denial of a FAPE to the student because the district did not opt to recommend music therapy as a related service in the same manner as REDACTED. The evidence may support that music therapy was beneficial for the student, it does not support the conclusion that the student could not receive a FAPE without it. Application of a Student with a Disability, Appeal No. 22-055; Application of a Student with a Disability, Appeal No. 21-007.
• Student is entitled to special transportation between home and school pursuant to New York Education Law §4402(4)(d).
• Lastly, to the extent there are other relief requested in the DPC not specifically addressed at hearing, such relief are denied for lack of proof.

ORDER

Based on the Findings of Fact and Conclusions of Law and all evidence before the impartial Hearing Officer, it is hereby ORDERED that:

• Reimbursement or funding of tuition, cost of related services and other costs for 2022-2023 twelve month school year at REDACTED is NOT GRANTED;
• Reimbursement or funding of tuition, cost of related services and other costs accrued since April 25, 2022 to end of 2021-2022 school year at REDACTED is NOT GRANTED.
• Award of an independent neuropsychological evaluation is NOT GRANTED.
• District shall provide suitable special transportation.

The foregoing constitutes the order of the Impartial Hearing Officer.

Dated: October 4, 2022

Vandana Chak, 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

IHO EXHIBITS

No.

Document

Date

Pages

Appointment of Hearing Officer

7-22-22

Due Process Complaint

7-6-22

III

Pendency Order

8-17-22

Transcript

8-31-22

133

Transcript

8-12-22

Transcript

8-02-22

VII

2 orders of extension

DISTRICT EXHIBITS

No.

Document

Date

Pages

FOFD

October 19, 2021

PARENT EXHIBITS

No.

Document

Date

Pages

A Due Process Complaint July 6, 2022 8

B Findings of Fact and Decision in IH# 196308 October 19, 2021 18

C SCHOOL IEP 2021-2022 School Year June 3, 2021 31

D Ten Day Notice for 2021-2022 School Year April 5, 2022 2

E REDACTED IEP 2022-2023 School Year May 30, 2022 64

F NYC DOE IEP May 31, 2022 69

G Ten Day Notice 2022-2023 School Year June 17, 2022 2

H DOE Determination Report June 17, 2022 1

I REDACTED Enrollment Contract for 2022-2023 SY June 14, 2022 6

J Transportation Agreement for 2022-2023 SY June 16 2022 5

New York City Department of Education, Impartial Hearing Decision

JURISDICTION

BACKGROUND

ISSUES

ORDER