New York City Department of Education, Impartial Hearing Decision

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

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

PETITIONER FINDINGS OF FACT

AND DECISION

against Case # 240892 THE NEW YORK CITY Dustin Johnson, Esq. DEPARTMENT OF EDUCATION, Impartial Hearing Officer

RESPONDENT

FINDINGS OF FACT AND DECISION

I. Introduction

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

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

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][^[1]][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur Findings of Fact and Decision – NYC: 240892 between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151- 300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an Impartial Hearing Officer (“IHO”) (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]- [3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). III. Background and Procedural History

Petitioner is the parent of [REDACTED] (“Student”). On October 18, 2022, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), alleging generally that the DOE failed to provide the student a free appropriate public education (“FAPE”) for the 2020-2021, 2021-2022, and 2022-2023 school years, and seeking direct funding for the parent’s unilateral placement, as well as reimbursement for related services unilaterally obtained, private duty nursing services, a paraprofessional, and transportation, among other ancillary requests (see generally P-A).

On January 11, 2023, the undersigned IHO was appointed to preside over this matter. On January 25, 2023, a Prehearing Conference was held (See Exhibit IHO-I). On February 28, 2023, an impartial hearing on the merits of the DPC convened and concluded the same day.

No representative for the DOE appeared at the February 28, 2023, hearing, despite having a representative present at the January 25, 2023, Prehearing Conference when the disputed hearing date was selected, despite being sent WebEx invitations, despite being copied on Findings of Fact and Decision – NYC: 240892 numerous emails regarding disclosures of Petitioner’s evidence in advance of the hearing, and despite email reminders from the undersigned IHO during the hearing. 1

At the February 28, 2023, hearing, originally scheduled as a combined pendency hearing and disputed hearing on the merits of the DPC, the parent withdrew her request for a pendency hearing and pendency order, preferring to proceed only with a disputed hearing on the merits. V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (“LRE”) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

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

Findings of Fact and Decision – NYC: 240892

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

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that their unilateral placement provides every service necessary to maximize the student's potential, but rather, must demonstrate that the placement provides education instruction specially designed to meet the unique needs of a student (M.H., 685 F.3d at 252; Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 365). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

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

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Findings of Fact and Decision – NYC: 240892

Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

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

VI. Findings of Fact and Discussion

The student has been classified by the DOE as a student with a disability classification of “Traumatic Brain Injury” (see P-C). On June 17, 2022, the parents provided the DOE with notice of their intent to unilaterally place the student at [REDACTED] d/b/a [REDACTED], Ltd. (“[REDACTED]”) for the 2022-2023 extended school year and seek tuition reimbursement (P- H).

A. FAPE

As indicated above, no representative for the DOE appeared at the February 28, 2023, hearing. Furthermore, at no point prior to the February 28, 2023, hearing did the DOE provide any evidentiary disclosures or exhibit/witness lists. As such, having failed to appear and participate in this litigation, and having failed to meet its statutory burden of proof regarding the provision of a Free Appropriate Public Education, I find that the DOE failed to offer the student a Free Appropriate Public Education for the 2020-2021, 2021-2022, and 2022-2023 school years, as required by federal and state law.

B. Unilateral Placement

In this case, having found that the District failed to offer the student a FAPE, the next issue to determine is whether the parent’s unilateral placement of the student at [REDACTED] for a portion of the 2021-2022 and full 2022-2023 school year was appropriate.

The Parent argues that [REDACTED] is an appropriate unilateral placement for the student as it provides instruction and services that are specifically designed to meet the student’s unique needs and that enable the student to make meaningful progress there. The District, having failed to appear and participate, likewise failed to take any position or make any

Findings of Fact and Decision – NYC: 240892 arguments alleging that [REDACTED] was not an appropriate unilateral placement. For the reasons described below, I find that the Parent’s unilateral placement was appropriate.

The question of whether [REDACTED] was an appropriate unilateral placement is principally determined by analyzing whether the program provided "educational instruction specially designed to meet the unique needs of [the student]" (Rowley, 458 U.S. at 188-89; see Gagliardo, 489 F.3d at 115; Frank G., 459 F.3d at 365). Furthermore, even if the District were to allege that the hearing record did not contain sufficient information to determine the student's needs, as discussed below, a review of the hearing record establishes that the evidence submitted by the Parents in this case was sufficient to identify the student's unique individual needs and to satisfy the Parents' burden to establish the appropriateness of the student's unilateral placement at

[REDACTED].

1. The Student’s Needs

In this instance, although the student's needs are not directly in dispute, a discussion thereof provides context for the discussion of the disputed issue to be resolved—namely, whether the student's unilateral placement at [REDACTED] was appropriate.

Here, the parent’s unrebutted testimony via affidavit indicated that the student has severe needs resulting from his neurological disorder which have adversely affected his educational performance (P-M). Additionally, testimony from the [REDACTED] Director of Special Education further expounds upon the student’s needs (P-N).

2. The [REDACTED] School

The hearing record fully supports a finding that [REDACTED] provides the student with specially designed instruction to address his identified academic needs (see generally P-L; P-M; and P-N). 3. Progress

Although not dispositive, the hearing record also contains evidence to support a finding that the student made progress at [REDACTED] (see P-M and P-N).

With respect to the student's progress at [REDACTED], a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78, 2013 WL 1277308 [2d Cir. Mar. 29, 2013]; D.DS. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81, 2012 WL 6684585, [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486- 87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364). However, a finding of progress is, nevertheless, a Findings of Fact and Decision – NYC: 240892 relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

Based upon the foregoing, the hearing record demonstrates sufficient evidence describing how [REDACTED] addressed the student's special educational needs and how the program is reasonably calculated to confer educational benefits on the student. Therefore, I find that [REDACTED] was an appropriate unilateral placement for the student.

C. Equitable Considerations

Having determined that the District failed to offer the student a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years, and that [REDACTED] constituted an appropriate unilateral placement for the student, the final criterion for a reimbursement award is that the parent’s claim must be supported by equitable considerations.

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]).

With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412 [a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may also be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 10 business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 14129(a)(10)(C)(iii)(I); see 34 CFR 300.148(d)(1)). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is Findings of Fact and Decision – NYC: 240892 discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68). Parents of students enrolled in private school are not exempted from 10-day notice requirements (S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-63 [S.D.N.Y. 2009]).

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

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

On the record before me, I see no equitable factors that would weigh against full tuition reimbursement to the Parents for the 2022-2023 school year. The Parent submitted evidence that they provided the District with appropriate Prior Written Notice of the Parent’s intent to unilaterally place the student for the 2022-2023 school year and seek reimbursement, in full compliance with the statutory notice mandate (P-H).

However, the same cannot be said of the request for reimbursement for the unilateral placement that occurred during the 2021-2022 school year. The parent testified and provided evidence that she removed the student from the DOE’s recommended placement and unilaterally placed the student at [REDACTED] starting February 8, 2022 (P-B; P-M). The parent failed to offer any evidence that she provided the DOE with prior written notice of her intent to unilaterally place the student at [REDACTED] in February 2022 and seek reimbursement from the DOE, as she appropriately did for the 2022-2023 school year, or that her failure to provide such notice should be excused for any of the legally permissible reasons. Furthermore, Petitioner’s Exhibit H, the June 17, 2022, Ten Day Notice for the 2022-2023 discussed above, clearly indicates the Petitioner’s awareness of and ability to comply with the statutorily required notice mandates. As such, I do not find the equities support tuition reimbursement for the 2021- 2022 school year and decline to so order. D. Related Services The Petitioner here is requesting an Order for reimbursement of unilaterally obtained related services. After a thorough review of the record and consideration of the parent’s Findings of Fact and Decision – NYC: 240892 testimony on this issue, for the reasons discussed below, I decline to order the parent’s requested relief.

Following the sloppy and unprofessional preparation on the part of petitioner’s counsel, and after being provided an opportunity by the undersigned to further develop the record on this issue, the parent haphazardly testified to the related services of Occupational, Physical, Speech, and Aquatic therapy the parent unilaterally obtained for the student throughout the various school years.

The parent testified that the student was in fact provided many of these related services by the student’s school, at various frequencies. The parent testified that despite being provided services by the school, the parent still sought to obtain additional related services outside of what was already being provided by the school. Furthermore, the parent testified that some of the unilaterally obtained services, such as Aquatic Therapy, were not prescribed by a doctor and not recommended within the student’s IEP, yet the parent still sought to unilaterally obtain those services and would like reimbursement for them.

I note here that 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).

I do not find that the evidence in the hearing record supports a claim for reimbursement here. Nor do I find that the record supports a determination that all of the parent’s unilaterally obtained related services were appropriate. Furthermore, I do not find the Parent’s vague testimony regarding the exact frequency of the services provided, and the amounts being requested, to be entirely credible. In testifying, the parent repeatedly utilized qualifying and noncommittal language such as “approximately” “about” and “around” in summarizing her self-serving request to be reimbursed for over $100,000 worth of unilaterally obtained related services. Even assuming arguendo that the parent was entitled to all the unilaterally obtained services she is seeking, I would not be inclined to grant the vague amount requested without sufficient supporting evidence in the form of affidavits, invoices, and corresponding proof of payment. To do so would be tantamount to giving the parent a blank check based on her word alone, which I did not find to be credible.

Based upon a review of the record, and for the reasons indicated above, I decline to grant any reimbursement for the parent’s unilaterally obtained related services.

E. Independent Education Evaluations

In the DPC, Petitioner requests funding for an independent education evaluation in the form of an independent neuropsychological evaluation (see P-A). Despite Petitioner’s failure to adequately substantiate this request for relief, an independent examination of the record finds that no relief is warranted. Findings of Fact and Decision – NYC: 240892

The IDEA provides parents with a number of procedural safeguards. Among them is the "right . . . to obtain an independent educational evaluation of the child," which in turn means "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" (34 CFR 300.502[a][1], [3][i]; see 8 NYCRR 200.1[z]). 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 River 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 that was sought for additional information]). 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]).

The IDEA and state and federal regulations guarantee parents the right to obtain an Independent Educational Evaluation (“IEE”) (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]), which is defined by State regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 200.1[z]; see 34 CFR 300.502[a][3][i]). Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]).

If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]). Additionally, both federal and state regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). The Second Circuit Court of Appeals has recently found that, if a district and a parent agree that a student should be evaluated before the required triennial evaluation, "the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs" or "[o]therwise, Findings of Fact and Decision – NYC: 240892 the parent's disagreement will be rendered irrelevant by the subsequent evaluation" (D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 170 [2d Cir. 2020]).

A review of the hearing record shows that the parent first requested funding for evaluations in the October 2022 due process complaint (see P-A). In past decisions, SROs have held that a parent may request a district funded IEE in a due process complaint notice in the first instance (see Application of a Student with a Disability, Appeal No. 19-094). This is not exactly the process contemplated by the IDEA and its implementing regulations (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]), and, in most instances it is likely that a parent would be in a better position to elicit an agreement from the district to fund an IEE if the IEE was requested outside of the more formal context of an impartial hearing. The practice of a parental "due process compliant IEE request" is increasing in frequency and I am likewise not convinced that it is permissible for a parent to commence an impartial hearing to seek an IEE at public expense and/or communicate their disagreement with a district evaluation for the first time therein (see Application of a Student Suspected of Having a Disability, Appeal No. 22-105).

Here, the record is devoid of testimony or evidence of any actual dispute regarding evaluations or a request by the parent outside the instant DPC for an independent evaluation. Therefore, for the above reasons, funding for independent evaluations is not appropriate and is denied.

F. Statute of Limitations

On February 3, 2023, the then-assigned DOE Agency Attorney indicated via email that the “DOE will not be filing a motion concerning the statute of limitations in this matter.” As such, I find that the DOE waived all claims to any purported dispute, request for findings, and orders for relief for the 2020-2021 school year. As such, I decline to address this issue herein. VIII. Orders A. Direct Payment

The Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework" (E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 [2d Cir. 2014]; see also Mr. and Mrs. A. v. New York City Dep't of Educ.,769 F. Supp. 2d 403, 430 [S.D.N.Y. 2011] [finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, have not done so due to a lack of financial resources]).

Based on the above, the equities and the evidence in the hearing record supports a finding that the parent has demonstrated a legal obligation to pay the costs of tuition and an inability to do so necessitating an award of direct tuition payment to [REDACTED] in the amount of Findings of Fact and Decision – NYC: 240892 $175,000.00, reflecting the amount of base tuition due for the 2022-2023 school year (see Exhibit P-F; and P-M).

Due to concerns regarding the vague amounts calculated in the lump sum request for supplemental tuition, which includes various related services, transportation paraprofessional, individual nursing services, and assistive technology devices, I decline to order the requested supplementary tuition as a lump sum, and instead opt for a detailed per service order as outlined below. IX. Conclusion and Orders

In summary, a review of the evidence in the hearing record demonstrates that the District denied the student a FAPE, the parent sustained their burden to establish that [REDACTED] was an appropriate unilateral placement for the student for the 2022-2023 school year, and equitable considerations support an award of direct payment for the 2022-2023 school year only, as discussed above.

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

IT IS HEREBY ORDERED that within 60 calendar days from the date of this decision, the District shall directly pay [REDACTED] $175,000.00, reflecting the amount of base tuition due to [REDACTED] for the 2022-2023 school year. For the purposes of this Order, I find the evidence submitted in Petitioner’s Exhibit F to be adequate proof of the amount that is due to [REDACTED] and the evidence submitted in Petitioner’s Exhibit M to be adequate proof of the Petitioner’s inability to directly pay [REDACTED] and seek reimbursement. Furthermore, I find that the District has already been provided with adequate proof of the amount due via this proceeding and so the District shall directly pay [REDACTED] within 60 calendar days from the date of this decision without any action on the part of Petitioner or [REDACTED].

IT IS FURTHER ORDERED that, for the 2022-2023 extended school year only, the student is entitled to related services, and it is Ordered that the below related services shall be reimbursed to [REDACTED] upon [REDACTED]’s submission to the DOE of an itemized invoice with an accompanying affidavit sworn to by each service provider attesting to the service provider’s qualifications to provide such services as well as the exact date and time that each of the billed services were provided for the following services only:

1) Individual Occupational Therapy: 60 minutes x 4 times per week, at a rate not to exceed $112.00 per hour;

2) Individual Physical Therapy: 60 minutes x 5 times per week, at a rate not to exceed $112.00 per hour;

3) Individual Speech and Language Pathology: 60 minutes x 4 times per week, at a rate not to exceed $112.00 per hour;

Findings of Fact and Decision – NYC: 240892

4) Group Speech and Language Pathology: 60 minutes x 1 times per week, at a rate not to exceed $56.00 per hour;

5) Individual Vision Education Services: 60 minutes x 3 times per week, at a rate not to exceed $112.00 per hour;

6) Individual Assistive Technology Services: 60 minutes x 2 times per week, at a rate not to exceed $112.00 per hour;

7) Individual Music Therapy: 60 minutes x 2 times per week, at a rate not to exceed $112.00 per hour;

8) Group Music Therapy: 60 minutes x 1 times per week, at a rate not to exceed $112.00 per hour;

9) Parent Counseling and Training: 1 time per month at a reasonable market rate.

a. ANY ADDITIONAL SERVICES NOT INCLUDED ABOVE ARE

NOT ORDERED AND SHALL NOT BE REIMBURSED TO

[REDACTED] ABSENT THE CONSENT OF THE DOE.

IT IS FURTHER ORDERED that the District shall either: (1) arrange for the provision of appropriate transportation via a District obtained contractor going forward, which should include limited travel time, a 1:1 nurse or paraprofessional (but not both), air conditioning, and a lift bus; or (2) in the alternative, the District shall directly pay the parent’s unilaterally obtained transportation provider, [REDACTED] Travel and Transportation Services, LLC, (“[REDACTED]”) as reflected in Parent’s Exhibit G, at a rate not to exceed $345.00 for each daily trip, not to exceed two daily trips each day the student actually attends school. Notwithstanding either option selected by the District, the District is Ordered to directly pay [REDACTED] for the transportation services already provided from the beginning of the 2022- 2023 extended school year up to the date of this Order. For the purposes of this Order, with regards to any direct payment to [REDACTED] shall submit to the DOE an itemized invoice with an accompanying affidavit sworn to by the provider attesting to the actual provision of such services as well as the exact date and time such services were provided for each week that [REDACTED] is seeking reimbursement, along with a notarized attendance report from [REDACTED] indicating the dates the student was in attendance and in need of transportation services.

IT IS FURTHER ORDERED that, if they have not already done so, the District CSE is to convene a meeting with the parents within 60 calendar days of the date of this decision to review all updated evaluations for this student obtained by the parent, conduct any reevaluations the district deems appropriate or that are required by law, and develop an IEP for the student for the 2023-2024 school year in accordance with the Student's present levels of performance and special education needs.

DATED: SO ORDERED

3/31/2023 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

Findings of Fact and Decision – NYC: 240892

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act. If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed. An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Findings of Fact and Decision – NYC: 240892

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

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

DATED: CERTIFIED BY

3/31/2023 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

CASE # 240892 EXHIBITS

PARENT EXHIBIT DATE DESCRIPTION NUMBER OF

PAGES

Due Process A 10/18/2022 Complaint 14

[REDACTED] Enrollment B 02/04/2022 Contract 8

NYC DOE IEP

C 04/12/2022 58 Prior Written Notice D 05/27/2022 6 Prior Written Notice E 06/10/2022 5

[REDACTED] Enrollment F 06/15/2022 Contract 6

Transportation Agreement G 06/16/2022 7 Ten Day Notice H 06/17/2022 2

Findings of Fact and Decision – NYC: 240892 Determination Letter I 07/06/2022 1

NYC DOE IEP

J 08/14/2020 20

NYC DOE IEP

K 08/12/2021 18

[REDACTED] IEP

L 04/11/2022 60 M Affidavit

02/2023 5 N Affidavit

02/23/2023 6

IHO EXHIBIT DESCRIPTION NUMBER OF

DATE

PAGES

IHO-I Prehearing Conference

01/25/2023 Summary and Order 9

Findings of Fact and Decision – NYC: 240892

Footnotes

[1] On February 3, 2023, the DOE Attorney who attended the Prehearing Conference indicated via email that this matter had been reassigned to a new DOE Attorney. The newly assigned DOE Attorney failed to file a Notice of Appearance as instructed by the undersigned, failed to provide any disclosures in advance of the February 28, 2023, hearing, and failed to file an Affidavit of Unavailability, either before or after the missed hearing, as ordered by the undersigned. On March 3, 2023, the previously assigned DOE Attorney who attended the Prehearing Conference and who was copied on emails regarding the missed appearance, emailed the undersigned and indicated that the assigned Attorney was unexpectedly out on leave and requested to re-open the record to provide additional information. That application was denied by the undersigned. 3 Findings of Fact and Decision – NYC: 240892