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CASE NUMBER: 592424 - NYC: 243045
FINDINGS OF FACT AND DECISION
Student’s Name [1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: # REDACTED
Hearing Requested by: REDACTED (“Parents”)
Request Date/Date Complaint Filed: 11/29/2022
Date(s) of Hearing: 04/25/2023
Actual Record Closed Date: 05/25/2023
Date of Decision: 06/06/2023
Date of Distribution if Different than Decision Date: n/a
Hearing Officer: Harry A. Christodoulou
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 25, 2023:
For the Student:
REDACTED (hereinafter referred to as “Parents’ representative”)
REDACTED (hereinafter referred to as “Parent 1”)
For the Department of Education:
REDACTED (hereinafter referred to as “District’s representative”)
BACKGROUND AND PROCEDURAL HISTORY
Student is a REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute.
On November 29, 2022, Parents, through Parents’ representative firm, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA (Ex. P-B). I was appointed on January 23, 2023 as the impartial hearing officer (“IHO”), as a previous IHO appointment was rescinded, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC concerning Student’s special education program.
It is asserted in the DPC that, based on stated procedural and substantive grounds, the DOE failed to offer Student a free and appropriate public education (“FAPE”). Parents sought: a finding that the DOE denied Student a FAPE for the 2022-2023 school year (“SY”); an order that the DOE directly fund tuition and reimburse Parents any monies paid towards the tuition owing for Student’s placement at the Attending School (defined on page 21) for the 2022-2023 SY; an order for two independent educational evaluations, namely a neuropsychological evaluation and a speech-language evaluation (“IEEs”) by providers selected by Parents; transportation; attorney’s fees and expenses; and any other relief deemed appropriate (Ex. P-B-4). Although the DPC did indicate that Parents were seeking pendency, Parents’ representative confirmed that there was pendency in place (T. P16).
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[2] and its implementing regulations,[3] and the New York State Education Law[4] and its implementing regulations.[5] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The DOE delegated to the New York City Office of Administrative Trials and Hearings (“OATH”) the authority to adjudicate due process complaints under Section 504.[6] Parents’ representative confirmed that the relief claimed is subsumed under the relief sought under the IDEA and that there was no separate relief under Section 504 of the Rehabilitation Act being claimed that is not covered under the IDEA (T. P19). Accordingly, I do not address section 504 further in this decision.
PARTIES’ POSITIONS AND CASES PRESENTED
District’s representative confirmed at the IH that the DOE was: not putting on a case in the sense that the DOE was not calling any witnesses or submitting any documentation for admission to the record; and was conceding that it failed to provide Student with a FAPE for the SY at issue (T. P18, & P26). District’s representative waived the DOE’s opening and closing statements (T. P26, & P29), and noted that he would let the records stand as it is (T. P29). District’s representative confirmed that the DOE rested its case (T. P27).
Parents, through the Parents’ representative, submitted fourteen documents in support of the Parents’ case. There were no formal objections to any of the documents being admitted at the main hearing (T. P26, & 28). There were three affidavits in Parents’ disclosure (Ex. P-H-7, P-M, & P-N), and District’s representative confirmed that none of the affiants were required for cross-examination (T. P27). Parents’ representative confirmed that no additional witnesses were being called and that the Parents rested their case (T. P28, & P29). All exhibits that are admitted to the record are listed below (see Appendix B).
Parents’ representative made both an opening and closing statement in support of Parents’ case summarizing the Parents’ case, the evidence in support thereof, and the relief claimed (T. P29-P33).
ISSUES IN DISPUTE
The DOE conceded that it failed to provide Student with a FAPE for the SYs at issue (Prong I) (T. P18, & P26). The issues in dispute are whether Parents can satisfy their Prong II burden, and that there are no equitable considerations which would preclude or diminish an award in favor of Parents.
PREVAILING PARTY
Parents are the prevailing party, having found that Parents have met their Prong II burden, and an award or Order is therefore granted in their favor.
LEGAL FRAMEWORK
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits [7].
If a procedural violation is 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 [8].
The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE [9].
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" [10]. To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP [11]. Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" [12].
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim.[13]
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement – which is applicable in this case. [14]
FINDINGS OF FACT AND DECISION
[I] Denial of a FAPE: The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” 15 The DOE elected to concede that it failed to provide Student with a FAPE for the 2022-2023 SY. Given the DOE’s decision to waive/concede Prong I, it has not discharged its burden in these proceedings to establish that it provided Student a FAPE for the 2022-2023 SY. Although it is unnecessary to address given the concession, I do nevertheless note that it is asserted in the DPC that there was no public-school recommendation offered 16 for the 2022-2023 SY (Ex. P-B-3), which also accords with the contents of the DOE’s Due Process Response (Ex. IHO-II-3).
In the circumstances, I find that there was a denial of a FAPE for the 2022-2023 SY (with a risk that this will continue for the remainder of the 2023-2023 SY) and the District did not discharge its burden in this regard. Accordingly, Parents have met the first criterion of the three-part test set out in the Burlington/Carter case for funding for the cost of the tuition for Student’s placement at the Attending School for the 2022-2023 SY.
Prong II - Appropriateness of the Parents’ Placement:
Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student.” [17]
15 Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). 16 In L.B., ex rel. E.B., v. New York City Dep’t of Educ. the U.S. District Judge wrote: “Substantive violations of IDEA may include the failure to propose an IEP or deficiencies in the IEP itself. Id.; Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-39, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). School districts are required to have a written IEP in effect for each child with a disability by the beginning of the school year, 20 U.S.C. § 1414(d)(2)(A), and, in New York State, the school year begins annually on the first day of July. See N.Y. Educ. Law § 2(15). Thus, failure to provide a written IEP by July 1 constitutes a substantive denial of FAPE. C.W.L. and E.L. v. Pelham Union Free Sch. Dist., 149 F. Supp. 3d 451, 465” (122 LRP 8348) [S.D.N.Y. 2015] (citations included). This case addressed a statute of limitations issue, where the parent had relied upon the following failures by the DOE (the “Failures”): to hold an annual review for the student for the relevant school year; to provide the parent with prior written notice of a change, or lack thereof, to the student's IEP; to send a school location letter with a placement for the student for the relevant school year; and to produce an annual IEP by the first day of the relevant school year. It was conceded by the DOE that the Failures had constituted the denial of a FAPE and the DOE did not contest that it had denied the student a FAPE. The IHO Decision, which was the decision being appealed, did not probe whether the denial of a FAPE was procedural, substantive, or both, but found that "the DOE's failure to present a case at the hearing is a concession that it denied the student FAPE ...." (my emphases). The U.S. District Judge wrote, about the Failures, that in “any case, there were clearly both procedural and substantive violations of IDEA that amounted to the denial of a FAPE”. Id.
The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[18] The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child.” [19]
The Judges in the Gagliardo case wrote that “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”[20] (my emphases).
In both instances highlighted above, the focus is on the needs of the child, which are individual and unique, and that the placement must reasonably serve those needs to an extent that permits the child to benefit from the instruction. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP.
Evidence on Record:
Parents’ representative presented detailed testimony by affidavit of Affiant 1 (defined on page 21 below), and Parent 1 and submitted documentary evidence in support of the Parents’ position that the Attending School placement was and is an appropriate placement for the 2022-2023 SY.
Affiant 1 testified (Ex. P-M), inter alia, as to:
Affiant’s title, namely the Academic Dean at the Attending School; Witness’ educational background, credentials, and work experience; the Attending School’s program offerings, in general terms; how the school provides multiple opportunities for professional development; how students are placed in cohorts based on their learning needs as opposed to their age or grade; how grouping of cohorts begins with a review of each student’s psycho-educational evaluation, standardized testing, informal testing, and social-emotional development, and that students are thereafter grouped based on their learning difficulty, skill level, and educational and social-emotional needs, allowing educators to more precisely develop, adjust, and refine curriculum that meets the skills and content needs of each student in a small group; how each student has a one-on-one program in addition to their learning cohort, during which student’s receive intensive daily instruction based on their own individualized curriculum targeting their specific learning goals.
How the school day works, including the various periods that are taught; how the school has counsellors, who meet with students individually or in groups to provide social-emotional support and work on other skills; how the school also has an instructor who works with all of the cohorts and individuals in teaching mindfulness as a strategy to help students practice self-regulation and develop attention; Affiant’s familiarity with Student from when Student started at the Attending School and is familiar with Student’s learning disabilities; how Student’s cognitive weaknesses include a very slow processing speed and low visual-spatial comprehension, which make it difficult for Student to take in and understand information correctly and in a timely manner; how Student also has poor attention and behavioral regulation in a regular classroom, which inhibits Student’s ability to monitor and redirect when attention wanes; how Student’s weaknesses include decoding and spelling, vocabulary, and writing, making it difficult to read new words and spell them; and how Student benefits from a multisensory teaching approach, which targets these areas through Student’s ‘personalized’ curriculum that features instruction in decoding and spelling, reading comprehension including vocabulary development, and written expression.
Student is provided a curriculum that is skill-based that addresses Student’s weaknesses in writing, reading, and executive functioning skills within the curriculum of each class, with a focus on presenting
Student with opportunities throughout the day to build those skills through each subject area; how for the current SY, Student has been grouped with twelve students throughout the day, composed of both 9th and 10th graders; how these students were grouped together because they all struggle with executive functioning tasks such as planning and prioritizing assignments and attention maintenance, as well as some struggling to comprehend higher level texts and struggling with expressive language; and how Student receives counseling services from the school’s counselors as needed.
How Student needs one-to-one support in beginning assigned work and staying attentive during class instruction, especially when the lesson is on new and challenging material; how Student needs individualized support with executive functioning and organization (breaking down assignments, organizing papers, time management, bringing all needed materials to class, etc.), as well as support throughout the writing process, beginning with modeled brainstorming, outlining, sentence starters, checklists and frequent teacher checkins with specific feedback; and how some of the teaching strategies used to support Student’s learning include previewing and repetition, visual supports that matches auditory information to support processing and attention, chunked assignments, and directions to ensure understanding of task, and multi-sensory techniques for the instruction and practice of information.
How language development is targeted by all of Student’s content teachers and integrated into the curriculum because Student is in a group with receptive-expressive language difficulties; how Student uses a computer for all writing, a laptop for notetaking, and paper writing; how all of the classrooms contain smart boards and Student uses assistive technology in the classroom; how instruction provided to Student (and the group Student is in) is carefully constructed, giving students the time necessary to process information; how repetition and a slower pacing of instruction is used given the students’ delays in processing speed, and how the use of visual components is emphasized to help these students make connections with the material.
How the school spends a lot of time working on executive functioning skills, including organization of materials, attention maintenance, self-awareness, self-control, and time management, as well as on having students talk and lead class discussions to address expressive language challenges; how at any given time, Student is working on academic problem solving skills such as applying time management and organization strategies through the use of planners, study schedules and calendars; how Student engages in regular reflective conversations with Student’s teachers to further develop self-awareness and understanding; how active reading strategies are employed to assist Student in understanding increasingly complex reading material; how pre-writing strategies such as brainstorming and outlining help to improve Student’s writing at the paragraph and essay levels and proofreading and editing checklists assist in the revision process; and how practicing perspective taking through class discussions and debates are ways in which Student is addressing expressive language goals in all classes.
How goals set for Student and Student’s peers are focused around strengthening executive functioning skills, developing stronger written expression, and building their expressive language skills; how these goals (which are articulated at length in Student’s fall report – P-J) are the ways that the content, methodology, and delivery of instruction are adapted to address Student’s specific needs that result from Student’s disabilities.
How Student’s entire curriculum is designed to address Student’s weaknesses in the areas of executive functioning and academic problem solving, expressive language, reading comprehension, and written expression; how the teachers assigned to work with Student are highly qualified as a result of their backgrounds and their experience and training they have received at the Attending School; how all of Student’s Teachers (defined on page 21 below), save for one who holds a bachelor’s degree, hold a master’s degree; and what Student’s Teachers are teaching and how they are providing instruction and supports (with examples provided for each class on what is being worked on in Literature and Writing and History, Math, Earth Science, History and a 1:1 ‘specialized’ class, together with progress as applicable).
How at the Attending School, Student’s progress is measured through formal and informal observations as well as curriculum-based assessment tools; how Student’s teachers engaged in classroom discussions and provided Student with projects, worksheets, homework, and consistent feedback, to assess Student’s progress; how Student’s school reports contain accurate descriptions of Student’s educational program and progress; and how in reviewing reports on Student and having conversations with Student’s teachers, it is clear to Affiant 1 that Student is making progress over the course of the 2022-2023 academic year.
How based on Affiant 1’s professional opinion, experience, and interactions with Student and Student’s teacher, Student is appropriately grouped with peers and the program being provided to Student by the Attending School is appropriate to meet Student’s specific learning needs and deficits; and Student is benefitting from the small learning environment, the systematic approach to addressing Student’s academic and executive functioning deficits, and benefits hugely from Student’s daily one-to-one sessions, and the close integration of Student’s teachers, ensuring gains made in each setting transfers into the program at large.
Parent 1 also testified (Ex. P-N), inter alia, as to: how Student benefits from the Attending School’s collaborative teaching and integrated services to address Student’s needs; how she has noticed an improvement in Student’s ability to understand assignments; that Student now does homework independently; reading has improved; that because of the small classes Student is more attentive in school; and that although Student is still below grade level, Student’s writing has improved and includes more details (Ex. P-N-, & P-N-5).
I find that the Student’s program at the Attending School is specifically designed to cater to a class or category of students, namely those with special needs who struggle to function in a general education setting, requiring a small class size with a low student-to-teacher (or high staff-to-student) ratio, a skill-based curriculum, individualized programming and curricula, and small homogenous groupings.
The entire program, including the learning methodologies and the supports provided are designed to meet the needs of this class or category of student. Based on Student’s Diagnoses (defined on page 21 below), Student falls in this class or category. The detailed evidence presented by Affiant 1 substantiating how Student’s teachers specifically tailored the program for Student’s unique and individual needs (i.e., individualizing the program to meet Student’s needs and continually refining it based upon Student’s progress), is uncontested and credible. The evidence on record, which was not disputed through any testimony, let alone any expert testimony contradicting the testimony of Affiant 1, supports Affiant 1’s assertion that the Attending School was and is an appropriate placement for Student.
The testimony of the Parent 1, Affiant 1, and the Parents’ documentary evidence (Ex. P-G, P-I, P-J, P-K, & P-L) establishes that the Attending School is appropriate and is providing Student with educational instruction that is specifically designed to meet Student’s unique special education needs, supported by such services that are necessary to permit Student to benefit from instruction, for the 2022-2023 SY. I find that, based on the Student’s attendance at the Attending School since Student’s enrolment, as testified to by Parent 1, and Affiant 1, Student is making progress and will likely continue to do so for the remainder of the 2022-2023 SY. Parents have therefore met the second criterion of the three-part test set out in the Burlington/Carter case for funding for the cost of the tuition for Student’s placement at the Attending School for the 2022-2023 SY.
Prong III - Equitable Factors:
Equitable considerations are relevant to fashioning relief under the IDEA. [21]
The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge 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. [22]
The IDEA allows that 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 removing 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.” [23]
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.” [24]
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 [25].
The hearing record reflects that Parent, through Parent’s representative, notified the CSE by correspondence dated August 22, 2022 26 of Parents’ intention to enroll Student at the Attending School and seek public funding for the 2022-2023 SY (Ex. P-A). I find that in this letter Parents offered sufficient information to put the DOE on notice about Parents’ concerns regarding the CSE’s failure to make an appropriate program and placement recommendation and informed of Parents’ intentions, giving the DOE an opportunity to cure any deficiencies, which is the intent underlying the ten-day notice requirement. [27]
Although it is apparent from the record that Parents signed a contract enrolling Student in the Attending School prior to the start of the 2022-2023 SY, several months prior to providing the CSE the ten-day notice, namely on May 12, 2022 (Ex. P-H-1), the Second Circuit has explained that, so long as parents cooperate with the CSE, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming . . . that the parents never intended to keep [the student] in public school.”[28] I find that the timing as to when the ten-day notice was sent to the CSE to be of no consequence to Parents’ claim and the relief being granted.
26 Parent’s representative’s email confirmation showing it was sent on August 22, 2022, is attached to Parents’ ten-day notice (Ex. P-A-3). Amounts Claimed: Parents disclosed the enrolment contract covering the cost of Student’s enrollment at the Attending School for the 2022-2023 SY (Ex. P-H). Parent 1 confirmed in her affidavit Parents having signed an enrollment contract with the Attending School obligating them to pay $75,500.00 in tuition for the 2022-2023 SY (Ex. P-N-5).
Affiant 2 (defined on page 21 below), who is described as the Business Manager at the Attending School also confirmed, as of December, 2022, the total contracted annual tuition rate of $75,500.00 29 owing to the Attending School for the 2022-2023 SY for Student’s enrolment from September 7, 2022 through June 14, 2023 (i.e., the regular SY), less a payment received by money order on June 10, 2022 in the sum of $1,000.00 (Ex. P-H-7). Proof of the Postal Money Order is included in Parents’ disclosure and Parent 1 confirmed the amount having been paid (Ex. P-H-8, P-H-9, & P-N-5).
Parents are obligated to pay the tuition pursuant to the provisions of the enrollment contract (Ex. P-H), which was also confirmed by Affiant 1 in her affidavit (Ex. P-M-10). Parent 1 also detailed Parents’ Combine Income (defined on page 21 below) and indicated the number of children living at home. Parent 1 also testified that the executed enrollment contract allows delayed payments due to Parents limited financial ability, while Parents pursue a claim for tuition payment from the DOE (Ex. P-N-5). I accordingly find that Parents have made out a case based upon financial need.
I do not find any factors applicable to warrant a reduction of the claim for tuition reimbursement/funding. Affiant 2 confirmed that Student is regularly participating (Ex. P-H-7) and both of the Attending School’s report cards reflect zero absences (Ex. P-J-1, & P-L-1).
Parents have therefore met the third criterion of the three-part test set out in the Burlington/Carter case for tuition reimbursement/funding. Having met all three criteria of the Burlington/Carter test, Parents are entitled to reimbursement/funding for the cost of Student’s placement at the Attending School for the 2022-2023 SY.
[B] Request for two IEEs to be Ordered/Funded:
29 Whilst I note that Affiant 1 indicated in her affidavit a slightly higher amount, namely $76,101.00, this amount is not stated in the contract and appears to be an error, or otherwise unaccounted for. Evaluation/Re-evaluation:
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 [30]. 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 [31].
A CSE may direct that additional evaluations or assessments be conducted to appropriately assess the student in all areas related to the suspected disabilities [32].
Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP [33].
A district must: Rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors [34]; and ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social, and emotional status [35].
An evaluation of a student must be sufficiently comprehensive to identify all 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 [36].
IEES:
An IEE is 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 [37]. If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense [38].
An IEE may be requested by parents [39]. If an IEE at public expense is requested by parents, “the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria” [40]. A parent is entitled to only one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees [41].
Upon the receipt of the request for an IEE, a school district must either make the evaluation available at public expense “without unnecessary delay” or must file a due process complaint requesting a hearing to “show that its evaluation is appropriate or that the evaluation obtained by the Parent is inappropriate.”
"When an evaluation is conducted in accordance with [34 CFR 300.304 through 34 CFR 300.311] and a parent disagrees with the 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" [42]. When a parent seeks an IEE to make up for a missing assessment, the district may not avoid either filing for due process or funding the IEE by simply conducting the missing assessment [43].
An IEE may also be requested by an impartial hearing officer “as part of a hearing on a due process complaint”.[44] The Regulations do not provide limitations or guidance about hearing officer requests or directives for IEEs. There are however limitations to an IHO’s authority to order IEEs “‘as part of’ the larger process” [45].
It is a prerequisite for parent requested IEEs that the parent must be found to have disagreed with the DOE’s evaluation. The regulations do not speak to how a parent must manifest this disagreement to the district [46].
It has been held that a parent does not need to use a specific word or phrase to express parent’s disagreement with a district evaluation[47] and that a parent may request a district funded IEE in a DPC in the first instance [48]. It has also been stated that because this method can be used unfairly, a parent may be in a better position to elicit district funding of an IEE if the IEE was requested outside of the more formal context of an impartial hearing [49].
It is neither expressly mentioned in the ten-day notice sent by Parents’ representative nor in the DPC that the Parents disagree with a DOE conducted evaluation. Parents basis for requesting IEEs is unequivocally based upon the DOE’s failure to conduct a timely reevaluation. Parent 1 testified that at the time of the October 2021 meeting Student was overdue for Student’s mandated triennial evaluation and that she was not contacted about new testing or told that the triennial evaluation was not necessary (Ex. P-N-3). Parent’s representative mentioned at the IH that “[Student’s] most recent evaluation occurred back in 2019, and you have that, I believe, as Parent's Exhibit C, and that was actually an update from a prior report from, I believe, in 2018” (T. P30; P33, & P36) and that “[n]otably, the DOE hasn’t conducted any evaluations since then, or observed [Student] in a public school setting, yet [Student’s] overdue for a triannual evaluation” (T. P30, & P31).
District’s representative mentioned at the IH in reference to the triennial evaluation that “[i]t looks like in my system, in SESIS here, that one was requested back in November, but obviously it must not have happened yet, so I would just ask, Your Honor, that you take that into consideration in your orders. You know, obviously one needs to get done, one way or another, so that's all I have. Thank you” (T. P35). Parents’ representative objected to District’s representative’s statement on the basis that “it’s really not anything that’s in evidence” (T. P35, & P36).
It was asserted in the DPC, inter alia, that Student was overdue for Student’s mandated triennial evaluation and that the DOE had none of its own evaluations to support the recommendation made (Ex. P-B-2). Its clear from these above assertions that Parent was not disagreeing with a DOE conducted evaluation, express or implied, because there was none to point to. Additionally, even without the District’s representative statement regarding the note in SESIS, the DPC and Parents’ representative’s statements at the IH make it clear that Student is overdue for a triennial evaluation.
In dealing with the alternative basis for the parents’ claim to IEEs based upon their disagreement with the October 2014 Triennial Revaluation, which the District Court had found to be untimely, the Court in the Trumbull Bd of Educ.[50] case stated:
“The IDEA does not provide a statute of limitations for a parent's right to disagree with an evaluation for the purpose of obtaining an IEE at public expense. But that does not mean that a parent will be able to abuse the process to obtain a publicly funded IEE based on their disagreement with an old evaluation. … As a practical matter, a parent's right to disagree with an evaluation and obtain an IEE at public expense is tethered to the frequency with which the child is evaluated. And the IDEA establishes a logical timeframe in which a parent's right to request an IEE is actionable.”
"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 C.F.R. § 300.502(b)(5). Because the only evaluations that trigger a parent's right to an IEE at public expense are the initial evaluation and triennial reevaluations discussed in Section 1414 of the Act, a parent's right to an IEE at public expense ripens each time a new evaluation is conducted. The time within which a parent must express their disagreement with an evaluation and request an IEE depends on how frequently the child is evaluated.
By default, triennial reevaluations must occur at least once every three years. 20 U.S.C. § 1414(a)(2)(B)(ii).
Where, as here, a child is evaluated according to the default evaluation timeline, the parent must disagree with an evaluation within that three-year timeframe. By contrast, should a parent and school agree that the child be evaluated on a more frequent basis, see id. § 1414(a)(2)(A), (a)(2)(B)(i), the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs. For example, if a child is reevaluated each year, the logical time frame within which to contest the evaluation is one year. Otherwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation. … The timeframe within which a parent can disagree must be adjustable because the evaluation that a parent may contest is a moving target.” (my emphases).
The Court went on to find that applied to the facts of the case, the parents’ disagreement with the October 2014 Triennial Reevaluation was not untimely, as they had asserted their general disagreement with all evaluations of the student in that case conducted before his next reevaluation occurred in October 2017 and that the statute of limitations did not apply to the parents' IEE request [51].
The Court in the Trumbull Bd of Educ. case stated that:
“[t]he IEE process attempts to level the playing field between parent and government by securing a parent’s ability to obtain an independent assessment of their child’s disability if the school’s falls short. It provides “parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion,” and it ensures that parents “are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.”” [52]
I find that Parent is seeking the award for IEEs as a remedy for the DOE’s failure to re-evaluate Student. The regulations providing the right of a parent to obtain IEEs at public expense do not cater for IEEs to be awarded for that reason.
Given that there is no DOE conducted evaluation at all, let alone one that “falls short”, there is no risk of Parents being “left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition”.
While the failure to evaluate may be relevant in terms of whether a FAPE was provided to a student, that is not the case here where not only did the DOE elect not to call any witnesses but it conceded Prong I. The purpose of IEEs which is to “level the playing field” between parents and government by securing a parent's ability to obtain an independent assessment of their child's disability if the school's evaluation(s) falls short[53] does not factor in at this time. For these reasons, Parents’ request for an order for the two IEEs is being denied.
The DOE is however reminded of its obligation to conduct the mandated triennial re-evaluation, which 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[54] (my emphasis).
[C] Remaining Relief:
As part of the proposed relief in the DPC, Parent has requested an order for the DOE to continue Student’s transportation for the remainder of the SY (Ex. P-B-4). This relief was not opposed or contested and given my Order regarding tuition funding/reimbursement, it is being granted.
If the proposed relief is seeking an award for payment of attorney’s fees and expenses as part of this decision (Ex. P-B-4), then the relief is not being granted by me as only a court can determine which party is entitled to attorney’s costs, fees, and expenses. I would be exceeding the scope of my authority by determining that the Parents are the prevailing party entitled thereto. [55]
Other than the relief set out in my Order below, I do not find any other basis or evidence in the record supporting any additional relief under the IDEA or Section 504.
ORDER:
Based upon the above Findings of Fact and Decision, it is hereby:
1. ORDERED that, the DOE shall fund Student’s placement at the Attending School for the 2022-2023 school year in the sum of $75,500.00 (Seventy-Five Thousand, Five Hundred Dollars), less any payments already made by the DOE pursuant to or under Stay-Put or Pendency, payable as follows:
a. Reimbursement to Parent in the sum of $1,000.00 (One Thousand Dollars).
b. Direct funding to Attending School in the sum of $74, 500.00[56] (Seventy-four Thousand, Five Hundred Dollars).
2. FURTHER ORDERED that, the DOE shall continue Student’s transportation for Student’s attendance at the Attending School for the remainder of the 2022-2023 SY.
SO ORDERED.
DATED: June 6, 2023
__H.A.C._ (Signed Electronically) ___
Impartial Hearing Officer
Harry A. Christodoulou
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.
APPENDIX A – REDACTION IDENTIFICATION PAGE
REDACTED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENTS’ EXHIBITS
P-A. Notice of Unilateral Placement 08/22/2022 3 pages
P-B. Due Process Complaint 11/29/2022 6 pages
P-C. Neuropsychological Eval. Update 06/28/2019 15 pages
P-D. IEP 10/20/2021 21 pages
P-E. Prior Written Notice 01/11/2022 6 pages
P-F. Communications - Parent and School Representative 05/10/2022 3 pages
P-G. Attending School Program Description 2022-2022 1 page
P-H. Attending School Enrollment Contract 2022-2022 9 pages
P-I. Student's Class Schedule 2022-2022 1 page
P-J. Student’s Fall Report Card 2022-2022 11 pages
P-K. Student’s Winter Progress Report 2022-2022 8 pages
P-L. Student’s Spring Midterm Report Card 2022-2022 1 page
P-M. Affiant 1’s Affidavit (Attending School) 04/20/2023 10 pages
P-N. Parent 1’s Affidavit 04/20/2023 6 pages
DOE’S EXHIBITS
- - - -
IHO’S EXHIBITS
I. IHO’s Prehearing conference summary 02/01/2023 1 page
II. DOE’s Due Process Response 03/03/2023 4 pages
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] 20 U.S.C. § 1400 et seq.
[3] 34 C.F.R. § 300 et seq.
[4] Educ. Law Art. 89 § 4404 et seq.
[5] 8 NYCRR § Part 200.
[6] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504- delegation-Signed.pdf.
[7] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[8] 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[9] 20 U.S.C. § 1415[f][3][E][i].
[10] Rowley, 458 U.S. at 203.
[11] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]
[12] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].
[13] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[14] NYS Educ. Law § 4404(1)(c). The burden was also confirmed by the parties’ representatives at a prior SC (T. P12, & 13).
[17] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].
[18] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].
[19] Gagliardo, 489 F.3d at 115.
[20] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[21] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 [2d Cir., 2014]; 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"].
[22] 20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 192 Fed. App'x 62, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001].
[23] 20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[24] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].
[25] 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. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007].
[27] Greenland Sch. Dist., 358 F.3d at 160.
[28] C.L., 744 F.3d at 840.
[30] 8 NYCRR § 200.4(b)(4); 34 CFR § 300.303(a)(2).
[31] 8 NYCRR § 200.4(b)(4); 34 CFR § 300.303(B)(1)-(2).
[32] 8 NYCRR § 200.4(b)(3).
[33] 20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304(b)(1)(ii); see Letter to Clarke, 48 IDELR 77 [OSEP 2007].
[34] 20 U.S.C. § 1414[b][2][C]; 8 NYCRR 200.4(b)(6)(x); 34 CFR 300.304(b)(3).
[35] 20 U.S.C. § 1414[b][3][B]; 8 NYCRR 200.4(b)(6)(vii); 34 CFR 300.304(c)(4).
[36] 8 NYCRR 200.4(b)(6)(ix); 34 CFR 300.304(c)(6).
[37] 8 NYCRR § 200.1(z); 34 CFR § 300.502(a)(3)(i).
[38] 8 NYCRR § 200.5(g)(1); 34 CFR § 300.502(b).
[39] 8 NYCRR § 200.5(g)(1); 34 CFR § 300.502(b).
[40] 8 NYCRR § 200.5(g)(1)(iv); 34 CFR § 300.502(b)(2)(i)-(ii).
[41] 8 NYCRR § 200.5(g)(1); 34 CFR § 300.502(b)(5).
[42] Letter to Baus, 65 IDELR 81 (OSEP 2015).
[43] Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[44] 8 NYCRR § 200.5(g)(2); 34 CFR § 300.502(d).
[45] Lyons v. Lower Merrion Sch. Dist., 2010 WL 8913276, at *3 [E.D. Pa. Dec. 14, 2010]. See also S. Kingstown Sch. Comm. v. Joanna S., 2014 WL 197859, at *9 n.9 [D.R.I. Jan. 14, 2014], where the opinion that the regulation empowers hearing officers to solicit independent expert opinions was acknowledged, but disagreement was expressed that the regulation gives an IHO "the inherent power to make up remedies out of whole cloth"], aff'd, 773 F.3d 344 [1st Cir. 2014]) [cited in Application of a Student with a Disability, Appeal No. 21-021].
[46] 8 NYCRR § 200.5(g); 34 CFR § 300.502(b)(1).
[47] See Genn v. New Haven Board of Education, 69 IDELR 35 (D. Conn. 2016) at pgs. 14 & 15, where it was indicated that “the Court is not persuaded that a parent must announce in a formalistic manner, "I, Parent, disagree with this assessment!" to be found to have disagreed in substance with the assessment”. The Court found that the parent had expressed disagreement in substance where a more in-depth analysis was sought where the parent felt the assessment was not sufficient to identify the student’s reading difficulties and had provided more than just a generalized request for more information.
[48] See, e.g. Application of a Student with a Disability, Appeal No. 22-008.
[49] See, e.g. Application of a Student with a Disability, Appeal No. 21-170; Application of the Dep't of Educ., Appeal No. 21-135; Application of a Student with a Disability, Appeal No. 19-094.
[50] D.S. v. Trumbull Bd of Educ., 975 F.3d 152 (2d Cir. 2020).
[51] See page 14 and note 12 of the Trumbull Bd of Educ. case.
[52] D.S. v. Trumbull Bd of Educ., 975 F.3d 152 (2d Cir. 2020), quoting Schaffer, 546 U.S. at 60-61.
[53] D.S. v. Trumbull Bd of Educ.
[54] 8 NYCRR 200.4(b)(6)(ix); 34 CFR 300.304(c)(6).
[55] See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); and Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006).
[56] The sum of $75,500.00 (Seventy-Five Thousand, Five Hundred Dollars) less $1,000.00 (One Thousand Dollars) (Ex. P-H-7).