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Special Education Law
DECISIONParent PrevailedIHO Case No. 242806

New York City Department of Education, Impartial Hearing Decision

March 28, 2023·Daniel Ajello·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 592123 - NYC: 242806

FINDINGS OF FACT AND DECISION

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 01/31/2023

02/17/2023

Actual Record Close Date: 03/17/2023

Decision Date: 03/28/2023

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/31/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], ESQ.

Consultant Impartial Hearing Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/17/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED]., Attorney

[REDACTED], Parent Student

[REDACTED], PSY.D., Clinical Director

[REDACTED] School

For the Department of Education:

[REDACTED], ESQ.

Consultant Impartial Hearing Representative

DOCUMENTATION ENTERED INTO THE RECORD PARENT

A. Entered 01/31/2023 Exhibit Date Description Page(s) Private Neuropsychological Evaluation 12.05.19 20 pages

B. [REDACTED] (“[REDACTED]”) Educational Evaluation 2020-2021 (Q4 Report) 6.18.21 8 pages

C. [REDACTED] Program Description 2021-2022 7.14.21 2 pages

D. [REDACTED] Remote Learning Plan Description 2021-2022 2 pages

E. [REDACTED] Educational Evaluation 2021-2022 (Q1 Report) 11.3.21 9 pages

F. [REDACTED] Educational Evaluation 2021-2022 (Q2 Report) 1.19.22 7 pages

G. Parent Notice of Unilateral Placement 2022-2023 2.2.22 1 page

H. Parent Referral to CSE and Notice of Unilateral Placement through Counsel 2.2.22 2 pages

I. [REDACTED] Student Attendance Record 2021-2022 1 page

J. [REDACTED] Student School Schedule 2021-2022 1 page

K. [REDACTED] Educational Evaluation 2021-2022 (Q3 Report) 3.23.22 1 page

L. Psychoeducational Evaluation Report by NYCDOE 5.4.22 5 pages

M. Level 1 Vocational Interview – Student 4.26.22 2 pages

N. Social History Evaluation 5.18.22 4 pages

O. Occupational Therapy Assessment 5.2.22 8 pages

P. [REDACTED] Teacher Reports by [REDACTED], Psy.D. 6.3.22 6 pages

Q. Classroom Observation Explanation 6.10.22 1 page

R. Individualized Education Program 6.10.22 25 pages

S. [REDACTED] Educational Evaluation 2021-2022 (Q4 Report) 6.16.22 8 pages

T. [REDACTED] Secondary School Transcript 6.2022 2 pages

U. [REDACTED] Program Description 2022-2023 7.1.22 2 pages

V. [REDACTED] Summer Educational Evaluation (ESY Report) 7.29.22 4 pages

W. Confidential Notice of Unilateral Placement 2022-2023 8.12.22 2 pages

X. [REDACTED] Student School Schedule 2022-2023 2 pages

Y. [REDACTED] Attendance Record 2022-2023 11.1.22 1 page

Z. 2.3.23, 3.2.22, [REDACTED] Tuition Affidavits (2022-23, 5.17.22 2020-21) 2021-22 3 pages

AA. [REDACTED] Educational Evaluation 2022-2023 (Q1 Report) 11.7.22 10 pages

BB. Affidavit of [REDACTED], Psy.D, [REDACTED] Sworn to on 02/17/2023 1.24.23 12 pages

CC. Affidavit of Parent, [REDACTED] 1.30.23 10 pages

DD. Due Process Complaint 11.22.22 16 pages

DEPARTMENT OF EDUCATION (DOE)

Entered 01/31/2023 Ex DATE DESCRIPTION Page(s)

1 EXCLUDED

2 06/10/2022 Individualized Education Program (IEP) Attendance Page 1 3 05/04/2022 IEP Meeting Notice 3 4 08/19/2022 Prior Written Notice 13

5, 6, 7 & 8 EXCLUDED

9 19-20 Secondary School Record 2 10 02/07/22 to SESIS Events Log 12

08/19/22

IMPARTIAL HEARING OFFICER

Entered 02/17/2022 I Notice of Appointment, 01/17/2023, 4 pages

Entered 03/14/2023 II Parent Closing Brief, 03/14/2023, 31 pages III DOE Closing Brief, 03/14/2023, 10 pages

INTRODUCTION

On 01/17/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Hearing commenced, on 01/31/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC.

Hearing continued, on 02/17/2023.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Due Process Complaint (DPC) alleges a failure of the DOE to offer a Free Appropriate Public Education (FAPE), for the 20-21, 21-22 and 22-23 school years. (Ex D 1)

Parent seeks a variety of forms of relief to remedy the alleged failure, including:

- DOE Reimbursement Funding for Student’s unilateral placement (UP), at [REDACTED] School (UP), for Student attendance since March of 2021 (20-21, 21-22 & 22-23 School Years) (Ex DD16, T 19-20); - Transportation costs to and from the UP; - Reimbursement for Neuropsychological Evaluation, of November 20, 2019 (Ex A); and - The DOE will conduct an independent Psychological Evaluation of the Student based upon objection to the DOE evaluation of 04/26/2022 (Ex L). (Ex DD 16)

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 its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

THE POSITION OF EACH PARTY

The DOE presented its position via submission of Documents, and a Closing Brief.

(IHO Ex III, T 19)

At Hearing, the Parent sought to support its position via Documentary Evidence, Written and Oral Testimony. The evidence is found to be credible and supportive of the Parent’s position, as considered below: [REDACTED], PSY.D., Clinical Director, [REDACTED] School Witness Testimony included:

- Swearing to Affidavit Ex BB (T 52); - Average class size, at the UP, is 5 to 10 students, with a cap at 12 students; - Most UP students, at the UP, have a disability classification (Ex 54); - Student’s: ‘classmates may vary somewhat in age because they are grouped into classes by our curriculum coordinator based on a kind of skill… and their readiness for a class in each subject area that makes sense given what they've previously taken and any testing that has been done.” (T 55); - The UP will: “put together individualized programs for students in terms of what we provide with supports through the advising program, our clinical program, and then the personalized scheduling.” (T 57); - Student program individualized supports include: individualized schedule; appropriate classes; small classroom setting; redirecting; timelines extended to complete work; discussions of time management; dialectic behavior therapy (DBT) skills; goal setting through advising group; and personalized clinical support (T 60-62); - Student is in weekly outpatient therapy, with whom the UP clinical team collaborates (T 65); - Student has on demand access to the UP full clinical team (T 66 & 73); - UP advisors meet three times daily with students (T 67); - Student struggles included: “being disengaged from school or not attending classes, asking excessively to leave school at her prior school, but no externalizing behaviors.” (T 69); - Details relating to DBT (T 76-77); and - Student services are tailored to Student, weekly (T 78).

[REDACTED], Parent

Testimony included:

- Providing Evaluation to the Student’s school, but not the CSE: “I was not aware that I should do that.” (T 80-81); - Student did not respond well to remote learning: “She felt very disconnected and very anxious all the time….and apart from, you know -- along with the fact that we live in an area where…there's multiple hospitals around, so there were ambulances all day long, and was contributing an incredible amount of anxiety…So she wasn't turning her camera on…so I had began speaking to the school almost, you know, multiple times a week, trying to figure out how to get her…to participate in the remote learning. (T 84); - Prior to remote learning Student had struggles; - Parent hired an executive functioning tutor; - Neuro-psychological Evaluation was done beginning of the 2019 school year; - “Even though she didn't have letter grades, she had a lot of struggles with not want to go -- going to school, constantly going to the nurse's office, coming home from school all the time, having a lot of anxiety centered around school. So there was a lot of issues prior to that.” (T 86); - Student grades were comparable prior to and through remote learning (T 87); - Student struggled through remote learning, and the situation improved, at the UP, when in person learning started (T 87-88); - Upon learning reimbursement was available, the Parent referred to Student to the CSE (T 88-89); - Parent had not seen the Prior Written Notice (Ex 4), until last month (January 2023), noting it was her fault as she was involved in various personal matters (T 93-94); and - Student attended summer sessions, at the UP, to try and make up for failed classed, while at the previous school (T 96) A 12.05.19 Private Neuropsychological Evaluation Evaluation was sought regarding Student’s academic functioning. (Ex A 1) Results include: - Diagnosis of: Specific Learning Disability in Reading (Slow Rate); Specific Learning Disability in Math( Calculations, Reasoning, Slow Rate); Executive Functioning Disorder( Monitor Attention); and Generalized Anxiety Disorder (Ex A 15); - Recommendations include: executive functioning coach; math tutor; and continued therapy (Ex A 14).

9 19-20 Secondary School Record

Indicates passing grades for the 19-20 school year ([REDACTED]th grade – [REDACTED]), and some failing grades during the 20-21 school year ([REDACTED]th grade [REDACTED]).

B 6.18.21 [REDACTED] Educational Evaluation 2020-2021 (Q4 Report)

Indicates areas of concern, including: lateness, participation and social skills. (Ex B 1)

Notes areas of academic success. (Ex B 5-7)

C 7.14.21 [REDACTED] Program Description 2021-2022

General characteristics, of the UP, include:

- independent school that provides a therapeutic day program for students in New York City; - combines academic, advising, and clinical program components; - mission is to promote the emotional mastery needed for learning and living, bringing students into a strong academic and therapeutic environment and propelling them towards postsecondary independence and success; - program provides every student individually formulated support in a structured and respectful environment; - a desire to welcome students with complex emotional profiles and provide them the conditions needed to experience school anew; - Teaching and learning occur through an intentional mingling of structure, flexibility, and care…Supported by clinical and advising resources, classes are a time for engagement, connection, and growth; - clinical program includes unlimited access to services in our Counseling Center; - clinical staff consists of doctoral level psychologists and a doctoral level school psychology intern with training in evidence-based therapies for ADHD, anxiety, and mood disorders; - Individual counseling is available on demand; - Therapy outside of school is mandatory for all students; - offers a range of therapeutic support groups, which students can elect to join; - advising program operates through three meetings each day, two of which bookend the school day; - Advising group meetings are used to provide deep, regular attention to academic, social, and emotional experiences; - Executive functioning, interpersonal interactions, coping skills, and self-advocacy are all targeted areas for development (Ex C 1); - serves adolescents who have struggled to negotiate the academic, social, and emotional pressures of the typical school environment; - students are intelligent, social, resourceful, and creative; - Many have come from competitive independent and public schools where they have demonstrated significant achievement in areas of particular interest; - students may have shut down in the past, refusing to work or sometimes even to attend school; - Some have looked to escape their struggles through behaviors that put them at risk; - Students at may be struggling with Attention Deficit Hyperactivity Disorder (ADHD) adjustment problems, anxiety, depression, difficulties with peers, and learning issues; and - specially designed program and integrated support systems teach students to trust themselves and others, gain confidence and self-esteem, and meet the challenges of college and everyday life. (Ex C 2) D 2021-2022 [REDACTED] Remote Learning Plan Description Details the [REDACTED] Remote Learning Plan.

E 11.3.21 [REDACTED] Educational Evaluation 2021-2022 (Q1 Report)

Areas of concern are noted to have diminished. (Ex E 1)

Notes areas of academic success. (Ex E 3-7)

F 1.19.22 [REDACTED] Educational Evaluation 2021-2022 (Q2 Report)

Areas of concern are noted to have diminished. (Ex F 1)

Notes areas of academic success. (Ex F 3-7)

G 2.2.22 Parent Notice of Unilateral Placement 2022-2023

Parent notifies the DOE of the Student’s diagnosed learning disorders, of December 2019 (Ex A); belief that the Student requires accommodations, tutoring and mental health counseling; Student is attending [REDACTED]; Parent seeks guidance with the special education process; and seeks funding for [REDACTED].

H 2.2.22 Parent Referral to CSE and Notice of Unilateral Placement through Counsel

Parent’s previous Attorney provides Ten Day Notice Letter (TDN), notifying the District of the UP placement, and Parent intent to seek District funding.

I 2021-2022 [REDACTED] Student Attendance Record

Student UP attendance for the 21-22 school year.

J 2021-2022 [REDACTED] Student School Schedule

Student academic and support schedule, which includes ADVISING.

K 3.23.22 [REDACTED] Educational Evaluation 2021-2022 (Q3 Report)

Areas of concern are noted to have diminished. (Ex K 1)

Notes areas of academic success. (Ex K 2-8) L 5.4.22 Psychoeducational Evaluation Report by NYCDOE

Includes noting Student diagnosis and Parent concerns.

Does not make a specific recommendation, or conclusion.

M 4.26.22 Level 1 Vocational Interview – Student

Student interview regarding vocation.

3 05/04/2022 IEP Meeting Notice

Notification of upcoming 06/10/2022 IEP meeting.

N 5.18.22 Social History Evaluation

Recounts Student history, including, difficulty with remote learning, and several years of therapy and tutoring. (Ex N 1-3)

O 5.2.22 Occupational Therapy (OT) Assessment

OT assessment was originally sought, however, Parent withdrew the request. (Ex 10-4)

P 6.3.22 [REDACTED] Teacher Reports by [REDACTED], Psy.D.

Notes Student diagnosis, areas of weakness, goals and supports for: Reading (Ex P 1-2); Writing (Ex P 2-3); Math (Ex P 3); Executive Functioning (Ex P 4); and Generalized Anxiety Disorder (Ex P 5).

Q 6.10.22 Classroom Observation Explanation

No classroom observation was conducted.

R 6.10.22 Individualized Education Program

Completed at the end of the Student’s [REDACTED]th grade school year, and includes:

- Classification of Other Health Impaired; - Student diagnosis (Ex R 1); - A variety of Student supports, provided by the UP, such as: redirection, on-task prompts, visual aids, computer for writing assignments, small class size, and 1:1 academic support (Ex R 1-2); - Management Needs include: frequent check ins to assess understanding preferential seating on task focusing prompts movement breaks as needed access to school counselor (Ex R 6); - Recommendations include: Counseling, and Access to Counselor (Ex R 18) and a 10 month school year (Ex R 19); and - Instructional Functional Levels of: [REDACTED]th grade for Reading and [REDACTED]th Grade for Math. (Ex R 23)

Despite the Student heading into [REDACTED]th grade and being expected to be two years behind (Ex R 23) her peers, the IEP only includes one vague Math goal. (Ex R 14)

The IEP does include a specific areas of Student weakness, related to Math: computation and math facts fluency skills fall in the low average range. (Ex R 4)

No goal is created to address this area to Student weakness.

Reading and Writing goals are detailed, though it is unclear how these goals will be addressed in a general education class, in light of the Student’s need for 1:1 academic support. (Ex R 2 & 7-13)

2 06/10/2022 Individualized Education Program (IEP) Attendance Page

Notes those who attended the Student’s IEP meeting, on 06/10/2022.

S 6.16.22 [REDACTED] Educational Evaluation 2021-2022 (Q4 Report)

Continues to show Student progress, and UP supports.

Specifically noting Student support delivered via Advisory: “Students meet with their advisors three times daily, both individually and in small groups. Morning check-ins are designed to help prepare students for the day and assess whether there are any issues that might impact their functioning that need to be addressed. Mid-morning advising time is structured to help students maintain organization, compose weekly goals, learn coping skills, and participate in group discussions. Each week, advisors meet individually with students to provide feedback about their academic and behavioral progress in each class. At check-out, advisors meet with students to review their planbooks and ensure that they have all materials necessary to complete homework. Additionally, advisors and students meet as needed to resolve any additional issues (eg., resolve conflicts with peers; request accommodations from teachers).” (Ex S 1)

Notes areas of academic success. (Ex ES 2-8)

T 6.2022 [REDACTED] Secondary School Transcript

Indicates passing grades for the 19-20 school year ([REDACTED] grade – [REDACTED]), and some failing grades during the 20-21 school year ([REDACTED]th grade [REDACTED]).

For the 21-22 school year, the Student is shown to be doing well, and passing all classes.

U 7.1.22 [REDACTED] Program Description 2022-2023

Reflects general characteristics, of the UP, as detailed above. (Ex C)

V 7.29.22 [REDACTED] Summer Educational Evaluation (ESY Report)

Notes Student success, academically, and socially, during the summer of 2022.

W 8.12.22 Confidential Notice of Unilateral Placement 2022-2023

Parent’s previous Attorney provides Ten Day Notice Letter (TDN), notifying the District of the rejection of the 06/10/2022 IEP, the UP placement, and Parent intent to seek District funding.

4 08/19/2022 Prior Written Notice

Notice of Student recommended services, as drafted at the 06/10/2022 IEP meeting.

10 02/07/22 to 08/19/2022 SESIS Events Log

Briefly notes inputted information regarding Student evaluations, and coordination, leading up to the IEP meeting.

The DOE notes asking for Student related repost/evaluations, via emails, starting on 02/07/2022. (Ex 10-10) X 2022-2023 [REDACTED] Student School Schedule

Student academic and support schedule, which includes ADVISING.

Y 11.1.22 [REDACTED] Attendance Record 2022-2023

Student, UP, attendance for the beginning of the 22-23 school year.

Z 2.3.23, 3.2.22, 5.17.22 [REDACTED] Tuition Affidavits (2022-23, 2021-22, 2020-21)

Affidavit details Student UP Tuition:

2020-2021 School Year: $[REDACTED].00 Balance Due: $0.00

2021-2022 School Year $[REDACTED].00

Balance Due: $0.00

2022 (22-23 School Year) Summer Program: $[REDACTED].00

2022-2023 School Year: $[REDACTED].00 (Total $[REDACTED].00)

Balance Due: $[REDACTED].00

AA 11.7.22 [REDACTED] Educational Evaluation 2022-2023 (Q1 Report)

Areas of concern are noted to include lateness. (Ex AA 1)

Notes areas of academic success. (Ex AA 2-9)

BB 1.24.23 Affidavit of [REDACTED], Psy.D, [REDACTED] Sworn to on 02/17/2023

Clinical Director, of the UP, provides Testimony, which includes:

- Witness qualifications (Ex BB 1-2); - General characteristics of the UP: o Student supports include: “Daily Student Prep Time in which all students receive additional assistance, including individual or small group academic support; additional time provided after school 4 times per week for students who need extra time completing assignments and/or additional support with organizational and study skills; quarterly student reports, which are used to provide assessment of the current quarter’s work and create objectives for the subsequent reporting periods; “Wednesday Sheets,” which provide individual feedback for each student are reviewed 1:1 with students by their advisor on a weekly basis. A copy is also shared with parents each week; our Learning Specialist, who is a certified special education teacher, assists and trains teachers to address various learning needs as well as works with individual students who need further individualized support.” (Ex BB 2-4); - Familiarity with the Student, who came to the UP in April of 2021 (Ex BB 4); - Review of the UP admissions process (Ex BB 5-6); - A review of qualifications of staff involved with the Student (Ex BB 6-7); - Review of Student’s 21-22 School Year: o Student Class schedule (Ex BB 7); o End of year report set forth individual goal and services, for Reading, Writing, Math, Communication, Self Regulation and Social Emotional Needs (Ex BB 8-10); - Review of the 2022 Extended School Year: o Student Class schedule; o Academic and social; success (Ex BB 10); - Review of 22-23 School Year: o Student progress is noted, and it is anticipated the Student will graduate, in June of 2023 (Ex BB 10-11); AND - Student is noted to have: made progress, at the UP; received clinical support from the counseling center; and continues to require ongoing support to sustain motivation, stay organized, and manage her time. (Ex BB 12)

CC 1.30.23 Affidavit of Parent, [REDACTED]

Student’s mother provides Testimony that included; - A review of Student educational history: Attendance at [REDACTED], prior to the UP; long standing anxiety starting in [REDACTED]nd grade; engaging with a school counselor through middle school while having panic attacks (Ex CC 1-2); - Obtained a Private Neuropsychological Evaluation (Ex A), at the end of 2019, which revealed several diagnosis related to Student’s education (Ex CC 2); - Report (Ex A), was provide to the [REDACTED] School in December of 2019 (Ex CC 3); - 20-21 School Year: Student did not do well during the pandemic and would avoid going to class online; school attempted support, which were unsuccessful; Student was seeing a therapist and wanted to “drop out” (Ex CC 3); Student anxiety increased, Student exhibited depressive symptoms (Ex CC 4); Witness is not aware of any Student support DOE provided to the [REDACTED] School; Witness was not provided supports from the DOE (Ex CC 4); in spring, of 2021, [REDACTED]

School advised the Parent they could no longer meet the needs of the Student; and without DOE support, the Parent was referred to the UP, via a [REDACTED] School counselor (Ex CC 4).

- In March, of 2021, Parent engaged the UP and placed the Student (Ex CC 4-5); - Student, upon receiving appropriate therapeutic support, improved; - Student [REDACTED]th grade, 20-21, Report Card revealed some academic challenges (Ex CC 4).

- For the 21-22 school year the Student made significant progress, and benefitted from the structured Advisory program, offered by the UP (Ex CC 5); - Referral was made to the DOE, CSE, on February 2, 2022, for special education services, noting Student was attending the UP, and reimbursement would be sought if a DOE placement could not be found (Ex CC 6); - TDN was sent, on 02/02/2022 (Ex CC 6); - The DOE evaluated the Student, and Parent believed the evaluation was not sufficient, therefore Parent requests an independent Psychoeducational Evaluation (Ex CC 6-7); - IEP, of 06/10/2022 (Ex R), was inappropriate, in part, due to not recommending a special education program (Ex CC 8); - The DOE failed to conduct a classroom observation, which impaired the CSE ability to understand the Student’s needs (Ex CC 9); and - Parent believes the UP has been, and remains, appropriate for the Student and therefore seeks funding for the Student’s attendance, at the UP. (Ex CC 10)

DD 11.22.22 Due Process Complaint (DPC)

Details allegations of a DOE failure to offer the Student a FAPE, for the 2022-2023, 2021-2022, 2020-2021, in part, due to a violation of the DOE’s child find obligations (Ex DD 1); and the insufficiency of the IEP, of 06/10/2022 (Ex R) (Ex DD 11-12).

The DPC reviews the Student educational history, as borne out by the documentary evidence, and Testimony, considered above. (Ex DD 2-10)

Parent seeks relief that includes:

1. The NYCDOE shall provide the Parent reimbursement for tuition and all related expenses, as well as other appropriate costs, for a portion of 2020-2021 (March through June) school year, the 2021-2022 school year and the 2022-2023 school year for the Student’s placement at the UP.

2. The NYCDOE shall reimburse the Parent for transportation costs from home to [REDACTED], as the School provides similar services to her IEPs had they been timely and appropriate.

3. The NYCDOE shall reimburse the Parents for the Neuropsychological Evaluation dated November as it provided needed evaluative information for the June 2022 IEP.

4. The NYCDOE shall conduct an Independent Psychoeducational Evaluation, pursuant to 8 NYCRR 200.5(g), based on the Parents’ disagreement with the April 26, 2022 Psychoeducational Evaluation and the inappropriate and incomplete testing. (Ex DD16)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (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 v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. 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; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; 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. Florida 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]). 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., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

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; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

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 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 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]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [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 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). 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 the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents' 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 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 ten 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. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2020-2021, 2021-2022 & 2022-2023 School Years The DOE submitted a Closing Brief, as considered below.

The DOE did not present a Prong I case to argue an offer of a FAPE for the 2022-2023 school year. In stead, the DOE argues that no obligation to offer a FAPE existed, prior to 02/02/2022, the date of referral to the CSE. (Ex H)

For the partial 2020-2021 and extended 2021-2022 school years, the DOE asserts that the evidence showed it had “no obligation to provide the student with a FAPE, because the student was not known to the DOE then and therefore not eligible for special education services. The evidence showed that the student first became eligible for special education services on June 10, 2022, the end of the 2021-2022 school year, when the CSE conducted its initial IEP evaluation and classified the student with a disability entitling her to special education services. Thus, the Parent’s requested relief for those school years must be denied.” (IHO Ex III 1)

Regarding the 22-23 school year, the DOE argues the Parent did not evidence the appropriateness of the UP. (IHO Ex III 1-2)

The DOE argues equities do not favor the Parent. (IHO Ex III 1-2)

Regarding funding of an Independent Educational Evaluation (IEE), the DOE argues that the evidence “showed that DOE funding for a psychoeducational IEE is not required, because the Parent did not formally request the evaluation, which is a prerequisite to obtaining DOE funding.” (IHO Ex III 2)

The DOE contends a child find obligation did not exist, until the Student was referred to the CSE, on February 2, 2022, “at which time the CSE followed the required process and timelines for evaluating the student and determining if she was eligible for special education services. Parent Ex. CC, at 6, 8-9. The Parent, however, contends that the DOE had a “child find” obligation to identify the student when she began exhibiting signs of a disability, which was causing struggles in school, during her 2020-2021 school year at The [REDACTED] School. Parent Ex. DD, at 2.” (IHO Ex III 5)

The DOE does not contest that the Parent provided the Student’s school ([REDACTED]) a copy of the 2019 neuropsychological evaluation (Ex A) (IHO Ex III 5)

The DOE also does not contest the Parent Testimony that “she thought that by providing the information to the [REDACTED] School, it would alert the DOE to her daughter’s need for special education services.” (Ex DD 2) (IHO Ex III 5)

The DOE is correct in noting that there is neither evidence that the [REDACTED] School, provided the evaluation (Ex A) to the CSE; nor is there evidence that the Parent contacted the CSE directly or provided any information about their Student prior to the referral to the CSE in February 2022. (IHO Ex III 5)

The DOE argues that since there is “no evidence that any DOE employee or representative had any knowledge of the student’s need for an evaluation and special education services, until that referral.” (IHO Ex III 5, Ex G & H)

The DOE argues that: “In reviewing whether the district satisfied its child find obligations, the child find inquiry "must focus on what the [d]istrict knew and when". Application of a Student with a Disability, No. 21-080, at 16, citing K.B., 2019 WL 5553292, at *8; J.S., 826 F. Supp. 2d at 652. (IHO Ex III 5)

In this case the DOE contends knowledge of the Student’s potential need for special education services did not exist until the referral notice, 02/02/2022. (IHO Ex III 5-6 & Ex G & H)

The DOE argues that: “The Parent has offered speculation about what The [REDACTED] School official did with the evaluation once it was provided. Because the DOE did not know about the student until February 2022 and did not become eligible for special education services until after the June 10, 2022 IEP meeting, the DOE had no obligation to provide a FAPE to the student for the partial 2020-2021 and extended 2021-2022 school year, and as a result, the Parent’s relief must be denied.” (IHO Ex III 6)

Child Find issue is considered further below.

Regarding the 2022-2023 School Year, the DOE has not evidenced development of an appropriate IEP. (Ex R)

Despite the Student heading into [REDACTED]th grade and being expected to be two years behind (Ex R 23) her peers, the IEP only includes one vague Math goal. (Ex R 14)

The IEP does include a specific areas of Student weakness, related to Math: computation and math facts fluency skills fall in the low average range. (Ex R 4)

No goal is created to address this area to Student weakness.

Reading and Writing goals are detailed, though it is unclear how these goals will be addressed in a general education class, in light of the Student’s need for 1:1 academic support. (Ex R 2 & 7-13)

Parent Attorney argues that the DOE failed to develop an appropriate IEP. (IHO Ex II 13-14)

Parent Attorney argues the IEP is insufficient in that it fails to offer the Student a special education program, and failed to properly evaluate the Student. Parent Attorney notes a classroom observation was not conducted. (IHO Ex 13-14)

Regarding 12 month services, the IDEA does not automatically require the provision of school services during the summer months for all students with disabilities; rather, such services must be provided when they are a necessary element of a FAPE for the student (see Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010]).

Pursuant to State regulations, students "shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression" (8 NYCRR 200.6[k][1]).

State regulation defines substantial regression as a "student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year" (8 NYCRR 200.1[aaa]; see 34 CFR 300.106).

Generally, a student is eligible for a 12-month school year service or program "when the period of review or reteaching required to recoup the skill or knowledge level attained by the end of the prior school year is beyond the time ordinarily reserved for that purpose at the beginning of the school year" ("Extended School Year Programs and Services Questions and Answers," VESID Mem. [Feb. 2006], available at http://www.p12.nysed.gov/specialed/applications/ESY/2014-QA.pdf). Typically, the "period of review or reteaching ranges between 20 and 40 school days," and in determining a student's eligibility for a 12-month school year program, "a review period of eight weeks or more would indicate that substantial regression has occurred" (id. [emphasis in original]).

In this case an allegation is made that the CSE did not consider appropriate extended school year services. (Ex DD 12)

Evidence is not presented that the Student indeed requires 12 month services, to meet her unique special education needs.

I find the IEP developed for the 22-23 school year fails to offer the Student a FAPE.

An extended school year is not found to be part of a program enabling the Student to be offered a FAPE, for the 22-23 school year.

Child Find

The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1], [7]).

The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [S.D.N.Y. Oct. 28, 2019], aff'd, 2021 WL 745890 [2d Cir. Feb. 26, 2021]; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]).

The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]).

To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7]).

Because the child-find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094).

A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]).

To support a finding that a child find violation has occurred, school officials must have "overlooked clear signs of disability" and been "negligent in failing to order testing," or have "no rational justification for deciding not to evaluate" the student (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting Bd. of Educ. of Fayette County, Ky. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225). S

In this case the District did not have enough reason to believe that Student had a potential disability, nor that the Student’s disability required special education.

Evidence includes a lack of any information being made available to the DOE which would trigger Child Find obligations. Testimony includes that Student grades were comparable prior to and through remote learning. Student struggled through remote learning, and the situation improved, at the UP, when in person learning started. (T 87-88)

Upon learning reimbursement was available, the Parent referred the Student to the CSE. (T 88-89)

As noted throughout the case, the Parent referred the Student to the CSE, on February 2, 2022. (Ex G & H) The Parent did provide information, via evaluation (Ex A), to the Student’s school, at the end of 2019, expecting it to be forwarded to the DOE. (Ex CC 2-3)

Parent also engaged support services, such as a tutor, for the Student starting in 2019. (T 86)

The fact that the [REDACTED] School did not forward the information, to the CSE, and the Parent did not follow up with [REDACTED] or the CSE, does not place obligation upon the DOE to trigger Child Find obligations. Though challenges with remote learning arose, Student grades were not evidenced to have declined to a degree that would warrant DOE attention. (Ex T)

Parent acknowledges that Student grades were comparable prior to and through remote learning. (T 87)

Parent argues, via Closing Brief, that the DOE obligations under Child Find arose once the Student began exhibiting signs of struggle, back in the fall of 2019. (IHO Ex II 3)

At that time the Parent obtained an evaluation, which was submitted to [REDACTED].

(Ex A & IHO Ex II 3)

The evaluation was never sent to the DOE.

Whatever concerns the Parent had regarding the Student struggles, evidence does not exist that the school held the same concerns, at that time.

Specific evidence does not exist that the [REDACTED] school felt special education services may be warranted, for the Student, at any time during her attendance.

Parent Attorney argues that Student struggles increased, during the 20-21, remote learning, school year. This prompted Parent to engage a therapist, for the Student. (IHO Ex II 3-4)

Evidence is not presented that the Parent provided any information regarding the Student’s therapy to the DOE. Parent argues the DOE should have offered supports, however, no information was presented to the DOE indicating a potential need for supports.

It is notable that the School that the Student attended for many years is not evidenced to have taken any action regarding the Student’s decline over the past several years. The [REDACTED] school was in direct contact with the Parent and Student, received an evaluation (Ex A), and is not evidenced to have raised any concern or taken any action regarding the Student’s potential need for special education services.

Parent Attorney contends the Parent was desperate, in March of 2021, and placed the Student, at the UP. (IHO Ex II 4-5)

Parent removed the Student from [REDACTED], and placed the Student at the UP, where she believes appropriate interventions began, improving the Student’s academic experience. (IHO Ex II 4-5)

Parent Attorney acknowledges that the referral to the DOE was made, on 02/02/2022, and evaluation process commenced. (IHO Ex II 12, Ex G & H)

Evaluation process is alleged to be insufficient. (IHO Ex II 12-13)

In this regard, the Parent is correct. The DOE conducted a minimal evaluation and relied primarily upon the Parent’s evaluation. In part, the DOE failed to delve into the Student’s social challenges related to school attendance, failed to conduct a classroom observation, and failed to develop appropriate transition planning. (IHO Ex II 12-13, Ex A)

Therefore, as indicated above, regarding the portion of the 20-21 and 21-22 school year, I do not find the DOE obligated to act under Child Find to evaluate and conduct and IEP meeting, for the Student.

The DOE obligation arose once referral was made, on 02/02/2022, essentially placing an obligation on the DOE to act to offer a FAPE, for the 22-23 school year. (Ex G & H)

UP Placement for the 22-23 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 22-23 school year.

The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.

Parent Attorney correctly argues the UP provided appropriate service and supports for the Student, alleviating the Student challenges, and allowing for academic and social success. (Ex E, F, K S, BB, CC, IHO Ex II 5-6)

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex A, B, C, D, E, F, J, K, P, S, T, U, V, X, AA, BB & CC, T 60-62, 65, 66, 73, 76-77 & 78)

The UP provides appropriate services and supports during the entire time the Student has attended. However, DOE obligation to fund the Student’s UP program only exists for the 22-23 school year.

UP provides special education services specifically tailored to meet the needs of the Student.

I find UP provides an appropriate education and program for the Student for the 22-23 school year.

TUITION FUNDING 22-23 School Year

Parent is entitled to funding for the Student’s, UP, 22-23, Tuition.

The DOE has denied a FAPE to the Student, for the ten month, 22-23 school year.

Parent provided appropriate notice of Student placement, at the UP. (Ex G & W)

Student is attending the UP. (Ex Y)

Tuition for the 10 month UP placement set forth as $[REDACTED].00, which has been paid. (Ex Z 1)

In this matter the Parents choose to continue Student placement at UP, without an appropriate DOE alternative.

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 22-23 school year.

I find the Parent is entitled to DOE reimbursement UP funding as Ordered below.

TRANSPORTATION

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16035). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

The Parent DPC contains sought after relief that includes reimbursement of transportation costs. (Ex DD 16)

There is no evidence presented regarding special education transportation need, nor transportation expenses.

This form of relief is denied.

INDEPENDENT EDUCATIONAL EVALUATIONS

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]). Parents who express a disagreement with an evaluation conducted by the district also have the right to seek an IEE conducted at public expense in some circumstances (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"]; see also Lauren W. v. DeFlaminis, 480 F.3d 259, 275 [3d Cir. 2007] [explaining that parents do not have the right to an IEE at public expense where parents actually agreed with the school's evaluation]; Edie F. v. River Falls Sch. Dist., 243 F.3d 329, 335 [7th Cir. 2001] [explaining that parents do not have the right to an IEE at public expense where their disagreement was with the result of the child's IEP not with a particular diagnosis or methodology of evaluation]; M.C. v. Katonah/Lewisboro Union Free Sch. Dist., 2012 WL 834350, at *11–12 [S.D.N.Y. Mar. 5, 2012]; M.V. v. Shenendehowa Cent. Sch. Dist., 2013 WL 936438, at *6 [N.D.N.Y. Mar. 8, 2013]; 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]). "If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation [m]ust be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child" (34 CFR 300.502[c])

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 the district will not be required to provide it at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]; see A.H. v. Colonial Sch. Dist., 2019 WL 3021232, at *3 [3d Cir. July 10, 2019]). 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 time period for asserting claims based upon a disagreement with a school district's evaluation can be shorter than the mandatory three-year reevaluation period in some cases (see D.S., 357 F. Supp. 3d at 179).

An IEE must use the same criteria as the public agency's criteria (Seth B. v. Orleans Par. Sch. Bd., 810 F.3d 961, 973–79 [5th Cir. 2016]). Informal 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 (Letter to Baus, 65 IDELR 81 [OSEP 2015]), however recent caselaw clarifies that parents may not demand a comprehensive IEE at public expense while at the same time refusing to consent to the school district's offer to conduct the same assessments (D.S. v. Trumbull Bd. of Educ., 357 F. Supp. 3d 166, 178 [D. Conn. 2019], citing N.D.S. v. Acad. for Sci. & Agric. Charter Sch., 2018 WL 6201725, at *5–*7 [D. Minn. 2018] [explaining that where parents request an IEE to challenge an obsolete evaluation, they are entitled to a due process hearing limited only to whether the evaluation was appropriate at the time it was completed; if parents wish for a publicly funded IEE with respect to their child's current condition, then they must allow the school district to conduct a current reevaluation and then request an IEE if they disagree]).

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). In accordance with this burden, the district bears the burden of showing that its evaluation of the student was appropriate in order to prevail in its challenge to the parents' requests for IEEs at public expense

Additionally, an IHO is vested with the authority to direct that a student be evaluated at district expense (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]). IHOs are "granted broad authority in their handling of the hearing process and to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA" (Warren Consolidated Schs., 106 LRP 70659 [LEA MI 2000]).

A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]).

An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).

Under 200.5 (g) of the New York regulations and 34 CFR § 300.502 (b) (1) of the federal regulations, if a Parent disagrees with a district’s evaluation or re-evaluation of her child, she has the right to request an IEE at public expense. Upon Parent IEE request the public agency must, without unnecessary delay, either: (i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or (ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria. 34 CFR 300.502(b)(2).

8 NYCRR § 200.5 (g)

Additionally, IEEs matters must be considered in light of recent decision as reviewed below.

Regulations define an IEE as "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 C.F.R. § 300.502(a)(3)(i) (emphasis omitted). The regulations establish that a parent's right to an IEE at public expense is triggered when the parent "disagrees with an evaluation obtained by the public agency." Id. § 300.502(b)(1) (emphasis omitted). And the regulations provide that "[e]valuation means procedures used in accordance with §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs." Id. § 300.15. Sections 300.304 through 300.11 of the regulations, in turn, parrot and expand upon the mandatory evaluation conduct and procedures outlined in Section 1414 of the IDEA. See, e.g., id. § 300.304; see also J.A. 789 (hearing officer's conclusion of law that "[a]n evaluation under 34 C.F.R. § 300.304 refers to the processes and procedures used to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, that may assist in determining ... [t]he content of the child's IEP, which includes the use of technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors" (internal quotation marks omitted)).

A school has the right in the first instance to obtain a comprehensive evaluation upon which to structure a student's IEP, and only if the child's parents believe that the evaluation is insufficient can they seek an IEE at public expense for the school's additional consideration. The publicly funded IEE protects parents' ability to contribute and have their voices heard; but this right arises in response to school action, it does not preempt it. Nor does it give parents the first and final word. The school, as a beneficiary of federal funds, has the right and obligation to conduct an evaluation in the first instance and to prove that its evaluation was appropriate. Only when those established procedures fall short does a parent get an IEE at public expense. See Schaffer, 546 U.S. at 60-61.

It is noted that a parent’s DPC may serve as a demand for an IEE. A Parent may file a DPC notice with respect to "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]). A sought after IEE may be a proper remedy for disagreement with a District's evaluation. Absent any requirement that the parent express her disagreement with the results of a district evaluation in a specific format, there is no reason why a DPC may not serve the function of expressing the parent's disagreement to the district.

Additionally, the DPC may serve as a basis for an IEE request when the District has failed to evaluate the Student in an area of suspected disability. The District, through a written response, or Resolution Process, can respond with whatever mechanism it has available to dispute the Parent request, or consent to an evaluation of some sort.

When a parent initiates a request for an impartial hearing by filing a DPC notice the IDEA provides for a resolution process that must be followed before a parentally requested hearing can proceed (34 CFR 300.510[a]). The parent cannot unilaterally waive the resolution meeting because the regulation requires both parties to waive a resolution meeting (34 CFR 300.510[a][3]). Accordingly, the District would have up to 30 days to consider and resolve any DPC, including any request for an IEE, before being required to proceed to an impartial hearing to defend its own evaluation, or IEP process which has been undertaken, for a student (see 34 CFR 300.510[b]). During that period, the District could agree to a parent's request for an IEE or seek further information from the parent.

The DOE argues that: “The evidence showed that the Parent is not entitled to reimbursement for the 2019 private evaluation…the DOE had no obligation to provide special education services to the student June 10, 2022. See Parent Ex. R, at 1. In addition, the Parent did not present receipts showing that they actually paid for the evaluation. Thus, the requested relief must be denied.” (IHO Ex III 8)

Parent obtained Neuropsychological Evaluation at the end of 2019. (Ex A)

Parent did not raise special education concerns, to the DOE, until 02/02/2022. (Ex G)

Parent reasonably acted upon their concerns to obtain an evaluation, and address concerns relating to the Student.

Parent has not provided proof of any cost related to the evaluation.

The Parent did not engage the DOE, nor is there found to be a Child Find obligation at the time, which obligates the DOE to pay for the evaluation.

Regarding the request for a private Psychoeducational IEE, the DOE argues that the Parent did not make a formal request for that evaluation, and therefore the request must be denied. (IHO Ex II 8-9)

The DOE evidences a Psychoeducational Evaluation, to which Parent objects. (Ex L, Ex DD)

Parent objected to the Student’s IEP, and sufficiency of the evaluations related to the IEP, via DPC. (Ex DD)

Parent specifically seeks DOE funding of an Independent Psychoeducational Evaluation, via DPC. (Ex DD 16)

The DOE has not evidenced the sufficiency of the DOE evaluation and Parent is this

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 2022-2023 school year.

2. The DOE shall fund Student Tuition, at [REDACTED] School (UP), for the ten month, 22-23 school year, up to the amount of $[REDACTED].00.

3. The DOE shall fund Student Independent Psychoeducational Evaluation.

4. The DOE shall provide Parent with any documents or forms necessary to facilitate payment under this Order, within ten days of the date of this Order.

5. This decision is subject to appeal and review by the State Review Officer.

DATED: March 28, 2023

DANIEL AJELLO

DANIEL AJELLO

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.

Footnotes

[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]; Perricelli, 2007 WL 465211, at *15). 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 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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). 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. Dep't 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 entitled to the requested evaluation, at DOE expense. I find the Parent is entitled to the sought after IEE as Ordered below.