New York City Department of Education, Impartial Hearing Decision

Case Number: 595216 – NYC: 245059

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

Service/Home District: [REDACTED]

Impartial Hearing Officer: Jenna K. Powers

Date of Filing: January 18, 2023

Hearing Requested by: Parent

Date(s) of Due Process Hearing: May 8, 2023

May 30, 2023

June 2, 2023 Record Close Date: July 12, 2023

Date of Decision: July 12, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 8, 2023:

For the Student:

[REDACTED], Parent Attorney

[REDACTED], Mother

For the Department of Education:

[REDACTED], Agency Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 30, 2023:

For the Student:

[REDACTED], Parent Attorney

[REDACTED], Father

[REDACTED], Mother

[REDACTED], Neuropsychologist

[REDACTED], Counselor

[REDACTED], Teacher

For the Department of Education:

[REDACTED], Agency Attorney

[REDACTED], Director

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 2, 2023:

For the Student:

[REDACTED], Parent Attorney

[REDACTED], Mother

For the Department of Education:

[REDACTED], Agency Attorney

PROCEDURAL HISTORY AND BACKGROUND

On January 18, 2023, Parent, through counsel, filed a due process complaint (“DPC”), alleging that the New York City Department of Education (“DOE”) failed to provide Student with a free and appropriate public education (“FAPE”) for the 2016-2017 1, 2017-2018, 2018-2019, 2019-2020, 2020-2021, 2021-2022, and 2022-2023 school years, pursuant to both the IDEA and Section 504 of the Rehabilitation Act of 1973 (“Section 504”)2. (DOE-1) 3. Specifically, Parent alleges that for the 2017-2018 through 2021-2022 school years, the DOE failed in its child find duties by not locating, identifying, and evaluating Student, who at the time was parentally placed at [REDACTED] (“Private Day School”). (Id. at 3). And with respect to the 2022-2023 school year, Parent alleges that the DOE failed to provide an appropriate program and placement for Student. (Id. at 4-6). By way of relief, Parent seeks an award of tuition reimbursement for Student’s attendance during the 2022-2023 school year at [REDACTED] (“Private School”), a private program not approved by the Commissioner of Education for the education of students with disabilities; reimbursement in the amount of $6,500.00 for the cost of an independent Neuropsychological Evaluation conducted by [REDACTED] (“Neuropsychologist”), reimbursement in the amount of $20,475.00 for all out-of-pocket expenses incurred for private tutoring for Student during the school years at issue, and funding for compensatory tutoring

1 At the conclusion of an interim hearing regarding the statute of limitations, Parent withdrew any claims related to the 2016-2017 school year, so I will not address that school year in this decision. (Tr. 5/8/23 at 77-78). 2 At the conclusion of the Due Process Hearing, I asked Parent Attorney to specify in his summation what relief Parent was seeking under Section 504 that was not subsumed by the IDEA claims and Parent Attorney agreed to do so. (Tr. 6/2/23 at 27). Because Parent Attorney did not specify what relief Parent was seeking pursuant to Section 504, I decline to analyze the issues under a Section 504 theory and conclude that all such 504 claims are subsumed by IDEA and the remedy which will be ordered herein. 3 Reference to Parent Exhibits will be cited as P- followed by a letter. Reference to DOE Exhibits will be cited as DOE- followed by a number. IHO Exhibits will be cited as IHO- followed by a Roman Numeral. Reference to the transcript will be cited as Tr. followed by the date and page number. services. (Id. at 9). Furthermore, Parent alleges that the equities support their claim for all relief requested for the school years at issue. (Id. at 6-7).

I was appointed as Impartial Hearing Officer (“IHO”) on March 21, 2023. At the prehearing conference, held on March 24, 2023, Agency Attorney raised the statute of limitations as an affirmative defense. (Tr. 3/24/23 at 6). Specifically, the DOE sought dismissal of claims for the 2016-2017, 2017-18, 2018-19, 2019-20, and 2020-2021 school years on the basis that they are time barred under IDEA’s two-year statute of limitations. (Id.) A motion schedule was created and thereafter, the DOE submitted a Memorandum of Law in Support of Partial Motion to Dismiss Complaint and in response, Parent’s Attorney submitted Parent’s Opposition to District’s Motion to Dismiss. Following a review of both parties’ motions, it was apparent that there existed a disputed factual issue, and at an April 26, 2023 status conference, the parties agreed to schedule a limited hearing to address that factual dispute. Said hearing was held on May 8, 2023. Following the hearing, I found in favor of the Parent and denied the DOE’s motion to dismiss but did not preclude the DOE from raising the issue at the Due Process Hearing (“DPH”), should the evidence develop differently. The DPH was thereafter scheduled for May 30, 2023 and June 2, 2023. On May 30, 2023, DOE sought to enter fourteen (14) exhibits into evidence, all of which were admitted without objection. (DOE-1-14) ^[4]. Parent Attorney sought to enter twenty-six (26) exhibits into evidence, all of which were admitted, with Exhibit Z being entered over Agency Attorney’s objection. (P-A-Z) ^[5]. Both parties made opening statements, and Agency Attorney called [REDACTED] (“Director”), the Director of the Lower Division at Private Day School, to testify virtually. Parent Attorney cross-examined Director and I asked clarifying questions. The DOE then rested. Parent called three witnesses on May 30, 2023, all of whom had submitted unsworn affidavits in lieu of direct testimony (P-W-Y): Neuropsychologist, the neuropsychologist who conducted Student’s Neuropsychological Evaluation; [REDACTED] (“Counselor”), Student’s mental health counselor at Private School; and [REDACTED] (“Teacher”), Student’s Academic Advisor and Humanities teacher at Private School. Each witness appeared virtually, and after swearing to the accuracy of their affidavits, Agency Attorney cross-examined each witness. I asked Neuropsychologist clarifying questions. On June 2, 2023, Parent called [REDACTED] (“Mother”), Student’s mother, who had submitted two affidavits in lieu of testimony, Parent Exhibit A which was entered into evidence originally on May 8, 2023 and Parent Exhibit V. Mother appeared virtually, and after swearing to the accuracy of her affidavit, Agency Attorney cross-examined Mother and I asked clarifying questions. Parent Attorney rested and the parties requested to submit written closing arguments. On June 30, 2023, both parties submitted closing briefs. (IHO-I, II).

A list of the documentary evidence admitted to the record is appended to this decision.

JURISDICTION

The DPH 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 Art 89 § 4404 et seq., and its implementing regulations, 8 NYCRR Part 200.

FINDINGS OF FACT

After considering all the evidence, I make the following findings of fact:

Student is a [REDACTED]-year old child who is classified by the DOE’s Committee on Special Education (“CSE”) as a Student with Other Health Impairment for the 2022-2023 school year. (DOE-11 at 1). Student reached various milestones related to gross and fine motor skills late and demonstrated some sensory issues, feeding issues and speech articulation issues at a young age. (P-A at 1). As a result, Mother obtained Early Intervention (“EI”) services for Student including Speech-Language Therapy (“SLT”), Occupational Therapy (“OT”) and Physical Therapy (“PT”). (Id.). While Student was a preschool student, Student’s teachers recommended that Mother seek special education services from the DOE for Student. (P-A at 2). An Individualized Education Program (“IEP”) meeting was held for Student on July 16, 2015 and the Committee on Preschool Special Education (“CPSE”) classified Student as a preschool student with a disability and recommended that Student receive the following program and services: Special Education Itinerant Teacher (“SEIT”) services for 10 hours per week, and SLT, OT and PT, each two (2) times per week for forty-five minutes. (DOE-2 at 1, P-A at 2). Student received the recommended services and made significant progress. (P-A at 2). At Student’s Turning Five IEP meeting on May 2, 2016, the IEP team determined that Student no longer needed special education services and Student was declassified prior to beginning kindergarten. (Id. at 2-3, DOE4). Mother did not disagree with the declassification because “at the time they had told me [] was doing really well. [Student] had met all the milestones. All of [] providers had said that – especially with like the PT and the OT, they said [] really didn’t need services anymore. [] had made a ton of progress. So, I, I remember at that meeting everybody was very optimistic that [] didn’t need services.” (Tr. 5/8/23 at 56). Student began attending Private Day School for kindergarten during the 2016-2017 school year. (P-V at 1). Student was placed in a small classroom with ten students and two teachers and did well. (Id.). 2017-2018 School Year Student remained at Private Day School for first grade. (Id.). During first grade, Student began to display signs of anxiety and had nightmares. (Id. at 2). Mother attributed this to Student’s teacher, who she described as “particularly harsh with students” and who “frequently singled [Student] out during class when [Student]…fell short of classroom expectations.” (Id. at 1). At the end of the school year, Student began to display symptoms of Selective Mutism6 and Mother brought Student first to a psychologist and then ultimately to a private treatment program specifically for children with Selective Mutism. (Id. at 2). According to Mother, she complained to Private Day School about Student’s teacher and Private Day School was receptive. (Id.). Moreover, Student’s teachers at Private Day School told Mother that Student was keeping pace with curriculum and was on par with Student’s peers academically. (Id.). 2018-2019 School Year Student remained at Private Day School for second grade. (Id.). While the classroom environment was more positive in second grade, Student’s Selective Mutism symptoms continued, and Student continued to work with the same program Student worked with in first grade. (Id.). Student also began to display some issues with attention and impulsivity in school, but Mother attributed that to medication Student was taking for Selective Mutism. (Id. at 2-3). Student’s

6 According to Neuropsychologist, Selective Mutism is an anxiety-based disorder that is often rooted in language difficulties and social pragmatic difficulties. (Tr. 5/30/23 at 71). According to Director, for Student, it manifested as Student not speaking in class. (Id. at 41). teachers at Private Day School told Mother that Student was keeping pace academically and there were no noted concerns in Student’s report cards during second grade. (Id. at 3). 2019-2020 School Year

Student remained at Private Day School for third grade. (Id.). During third grade, Private Day School switched from two teachers per classroom to only one teacher. (Id.). Student continued to display symptoms of Selective Mutism, continued to have issues with attention and selfregulation and began to engage in immature behavior. (Id.). During Student’s third grade year, a private provider from the private treatment program worked with Student and Student’s teachers within Private Day School to address Student’s Selective Mutism. (Tr. 5/30/23 at 49, 54). According to Mother, the provider would take the teacher out of the classroom to do a fade-in so Student would be comfortable talking to the teacher and then the provider would attempt to facilitate Student speaking in the classroom, however, without the provider present, Student did generalize those skills and remained mute in the classroom. (Tr. 6/2/23 at 21).

Moreover, it was during Student’s third grade year that Mother first noticed Student begin to struggle academically. Specifically, Student began to have difficulty with writing tasks and would struggle to write more than a sentence on open-ended tasks. (P-V at 3). Nonetheless, Student’s teachers at Private Day School told Mother that Student was keeping pace academically and that she did not need to be concerned about the writing issues. (Id.). Private Day School did, however, recommend that Mother obtain a private neuropsychological evaluation to better understand Student’s needs and the nature of the issues Student was experiencing. (Id. at 4). Mother began to look for an evaluator in early 2020 but given that March of 2020 was the start of the COVID-19 pandemic, it was not possible for Mother to find a neuropsychologist who was able to evaluate Student. (Id.). 2020-2021 School Year

Student remained at Private Day School for fourth grade but attended the first half of the school year remotely due to the COVID-19 pandemic. (Id.). Student’s struggles became more apparent in fourth grade. Student’s teachers at Private Day School reported that Student struggled with self-advocacy and would rarely seek help when Student had questions about work. (Id.). Student would not speak in class or with Student’s teachers when in person. (Id.). Student had difficulty keeping track of assignments and planning for long-term assignments. (Id.). Student struggled with making inferences in reading and using text-based evidence to respond to questions. (Id.). Student’s teachers reported that Student’s writing was very basic and often consisted of only sentence fragments. (Id. at 4-5). Student required a lot of structure to complete writing assignments and struggled with completing independent assignments. (Id. at 5).

To address Student’s struggles with writing, Mother began to pay out of pocket for Student to receive private tutoring services from [REDACTED] (“Tutor”) in February of 2021. Tutor has a bachelor’s degree in special education, a master’s degree in reading teacher education and is employed fulltime as a learning specialist in a local independent school. (Id.). According to Mother, Tutor routinely updated Mother regarding Tutor’s work with Student. (Id.). This work included developing Student’s academic skills such as inferencing, synthesizing material, and summarizing, as well as the content and structure of written work. (Id.). Tutor also worked on Student’s executive functioning skills such as organization, planning and prioritizing assignments. (Id.). Tutor used strategies such as sentence starters, prompting, modeling, scaffolding, reteaching and redirection and movement breaks. (Id.). Director testified that he was aware that Student received private tutoring outside of school, and that it was not uncommon for students at Private Day School as “if there’s an area that they’re particularly struggling with, we may recommend tutoring if we feel like we can’t support them without some one-to-one remediation.” (Tr. 5/30/23 at 54). Mother testified that Private Day School specifically recommended Tutor at Mother’s request after Student’s teachers expressed to Mother that they were observing deficits in Student’s writing. (Tr. 6/2/23 at 12). Student received tutoring three to four times a week and could not complete homework assignments without tutoring assistance. (Id. at 18). Both Mother and Student’s teachers found that this tutoring helped Student make progress in fourth grade. (P-V at 5-6).

Nonetheless, Student’s fourth grade “home report” demonstrates that Student struggled in many areas throughout fourth grade. (DOE-12). Private Day School generates two “home reports” each school year, in the winter and spring, which are similar to report cards. (Tr. 5/30/23 at 46). Home reports outline some of the student’s curriculum and also outline the student’s progress through the use of checkmarks and short narrative reports. (Id.). Home reports use a four-point system to assess students. (Id. at 47). Grade Appropriate (“GA”) is when a student is displaying independent use and understanding of a behavior, skill or concept, and meeting grade level expectations for the year, which is where Private Day School typically hopes students will fall. (Id.). Progressing (“P”) is where a student has not yet met grade level expectations but is clearly making progress. (Id.). Area of Concern (“AC”) is where a student is rarely displaying use of a behavior, skill or concept without teacher support or guidance and specific attention is placed on that behavior, skill or concept. (Id.). Conversely, Area of Strength (“AS”) is where a student is exceeding expectations. (Id.). While it is not unusual for a student to have some items marked as P, the goal is for all students to receive a GA or AS. (Id. at 47-48). While Student’s fourth grade home report reflects many GAs, it also reflects numerous Ps and some ACs across all subject areas during the spring of 2021. (DOE-12). Moreover, it was during Student’s fourth grade year that Private Day School first expressed to Student’s parents that Private Day School was not a supportive enough environment for Student. (Tr. 5/30/23 at 51).

In June and July of 2021, Student underwent a neuropsychological evaluation conducted by Neuropsychologist. (P-V at 6). Neuropsychologist is a licensed clinical psychologist who has completed approximately 450 neuropsychological evaluations. (P-W at 1, 2). Neuropsychologist’s evaluation of Student took place in person over the course of three three-hour sessions. (Tr. 5/30/23 at 63). It consisted of interviews with Student’s parents and Student’s Selective Mutism clinician, as well as formal testing of Student. (P-W at 3). Neuropsychologist found that Student is of average overall intelligence with relative strength in Student’s processing speed, and average vocabulary, conceptual reasoning, novel problem solving, and visual-spatial abilities. (Id.). However, during testing, Neuropsychologist noted that Student demonstrated a variable ability to sustain attention.

“On tasks that made demands on [Student’s] executive functioning, [Student] demonstrated weaknesses in planning and organization, sustained attention, task monitoring and cognitive flexibility. [Student] struggled with higher order reading and writing skills that require more abstract thinking or synthesizing information…. During testing, [Student] presented with significant deficits in many areas of writing, including clarity, organization, sentence structure, written mechanics, and handwriting quality.” (Id. at 4). Neuropsychologist also noted that Student struggled with flexible thinking, problem-solving, social communication, self-regulation, and anxiety. (Id.). Neuropsychologist concluded that Student met the diagnoses for Attention Deficit Hyperactivity Disorder (“ADHD”), predominantly inattentive type, Specific Learning Disorder with impairment in written expression, Developmental Coordination Disorder, Other Specified Anxiety Disorder, Social (Pragmatic) Communication Disorder and Selective Mutism. (Id. at 4, DOE-9 at 19). Neuropsychologist made a number or recommendations for Student, including: placement in a school setting that is supportive and structured with a small student-to-teacher ratio, peers who have similar learning profiles and needs and ample access to individualized attention; various classroom and testing accommodations; classroom supports such as instruction delivered via multisensory modalities, instructions repeated and explained as needed, preferential seating, and assistive technology; learning support in Language Arts; SLT at least two times per week; OT; and executive functioning and homework support. (DOE-9 at 19-22). In making these recommendations Neuropsychologist was aiming to make recommendations that would allow Student to access the curriculum in a way that Student had previously struggled to do. (Tr. 5/30/23 at 66-67). 2021-2022 School Year Student remained at Private Day School for fifth grade. (P-V at 7). When questioned why Student remained at Private Day School despite Student’s struggles and the recommendations in the Neuropsychological Evaluation, Mother testified that they did not receive the report until August 2021 and at that point Student was already enrolled in Private Day School for the 2021-2022 school year. (Tr. 6/2/23 at 15). Mother also testified that she provided Private Day School with a copy of the report and Private Day School “implied to us…that…there was a place for [Student] and they could accommodate [Student]. (Id.).

Student’s fifth grade class consisted of twelve students and one teacher. (P-V at 7). Student continued to struggle with Selective Mutism, behaved immaturely during class, had attention issues, continued to struggle with writing, and struggled with organization, rushing through work and following multi-step instructions. (Id.). While Student’s home report in winter 2021 was more positive than the one received in spring 2021, particularly with respect to Student’s performance in Math, it does reflect numerous Ps and some ACs in the areas of Language Arts and Science. (DOE-13). Throughout the fifth grade, Student continued to receive private tutoring services from Tutor and was able to complete the fifth grade. (P-V at 8). However, Mother testified that Student required frequent tutoring and could not complete any homework assignments without tutoring assistance. (Tr. 6/2/23 at 18).

In spring of 2022, Mother was informed by Private Day School that Student would not thrive at Private Day School’s middle school and that Student required a more supportive environment. (P-V at 7). As a result, on April 14, 2022, Father wrote to the DOE to provide it with a copy of Neuropsychologist’s report and to request that Student be evaluated for eligibility for special education services. (Id., P-D, DOE-7). In response, and as part of Student’s initial evaluation, DOE conducted a social history evaluation, consisting of an in-person interview with Mother, on May 23, 2022. (DOE-8). On that same date, DOE conducted an educational evaluation. (DOE-10). Standardized testing revealed that Student’s academic skills fell within the average to low average range. (Id. at 3). The DOE psychologist who conducted the evaluation noted that Student was nonverbal throughout the evaluation and provided all responses in written form. (Id.) 2022-2023 School Year The DOE’s CSE held an IEP meeting for Student on July 26, 2022. (Id. at 8, DOE-11 at 18). The meeting was attended by, among others, Mother, Father, and Private Day School’s Lower School Psychologist. (DOE-11 at 20). At the meeting, Student was classified as a student with Other Health Impairment and an IEP was developed recommending the following program and placement: Integrated Co-Teaching (“ICT”) services in all core academic classes, twenty-five times per week in a NYC DOE non-specialized school, with Special Education Teacher Support Services (“SETSS”) five times per week for English Language Arts (“ELA”) and Math, and Counseling, two times per week for 40 minutes individually and one time per week for 40 minutes in a group. (Id. at 11, 17). It was also recommended that Student receive certain testing accommodations, including extended time – double time, five-minute breaks every 30 minutes, on-task focusing prompts, and a separate location in a small group of no more than 12 students. (Id. at 15). The IEP noted that Student was on grade level for most academic subjects, with the exception of reading and writing, and that Student had a hard time staying focused in class, although Student is easily redirected by a teacher. (Id. at 2-3). Student’s parents shared that it was challenging for Student’s teacher to get Student to engage to support Student’s participation, even in a small class of twelve. (Id. at 3). Mother testified that she and Father disagreed with the IEP recommendation at the time of the meeting, namely because they believed an ICT classroom could contain more than 30 students, which would be dysregulating for Student, and expressed their disagreement to the CSE. (P-V at 8). Mother received a school location letter (“SLL”) for Student on August 16, 2022. (Id. at 9). In response, Father sent an email to the principal of the recommended NYC DOE public school asking a number of questions about the school and requesting a tour. (Id., P-E). A representative from the recommended public school contacted Student’s parents and, it appears from the record, attempted to schedule a phone call with both parents, but Father requested that the representative first answer the questions posed via email. (PE). According to Mother, the representative never answered the questions posed. (P-V at 9). On August 24, 2022, Student’s parents, through counsel, sent a ten day notice (“TDN”) letter to the DOE reiterating their concerns with the recommended program, explaining that they had not yet received a copy of the July 26, 2022 IEP, expressing their concerns with the public school recommended in the SLL, and giving notice that absent an appropriate program for Student, they would enroll Student at Private School and seek tuition funding. (P-B). The DOE did not respond to the TDN letter. (P-V at 9). At that point, Student’s parents had already enrolled Student in Private School for the 2022-2023 school year, having signed a student contract form on May 1, 2022 which obligated them to pay Student’s tuition at Private School in the amount of $92,348.00 in two equal payments due on September 1, 2022 and November 1, 2022. (P-F). The contract did, however, contain a clause that would have allowed Student’s parents to withdraw Student from Private School with a $10,000.00 penalty should they have accepted a DOE placement for Student and notified Private School prior to September 9, 2022. (P-F at 3).

Student attended Private School for sixth grade. Private School is a specialized school for students in grades Kindergarten through 12th grade who are highly intelligent but learn differently. (P-X at 1). The admissions process involves submission of a written application, relevant school records and any recent neuropsychological evaluation completed for the prospective student, interviews of the prospective student and their family, and a full day visit to Private School. (Id. at 2). Class sizes at Private School can include up to twelve students and two teachers. (Id. at 1). All head teachers at Private School are required to have a master’s degree and related service providers are required to be licensed in New York State in their area of expertise. (Id.). According to Counselor, Student’s mental health counselor at Private School, when Student began attending Private School, Student struggled with attention, impulsivity, areas of executive functioning including organizing and planning, and would sometimes engage in immature behavior. (Id. at 2). Student struggled with anxiety and would rarely speak at school due to Student’s Selective Mutism, and Student tended to become frustrated and give up on tasks Student perceived as difficult. (Id.). To address Student’s Selective Mutism, Counselor utilized “fade-ins” which she described as a technique used for children with Selective Mutism in which the student is gradually exposed to new individuals in order to increase their comfort levels. (Id.). Counselor testified that the “fade-in” process has been on-going throughout the year and as Student became comfortable speaking to teachers in a one-on-one setting, focus shifted to encouraging Student to participate in larger groups settings through additional “fade-ins” and gradual exposure to speaking in class. (Id.). Student also sees Counselor once a week for individual counseling where they use Cognitive Behavior Therapy (“CBT”) to address anxiety management. (Id. at 2-3). Counselor collaborates with Student’s related service providers, teachers and parents concerning strategies to address Student’s Selective Mutism. (Id. at 4). Student also participates in a Health and Wellness class with four additional students, taught by Counselor, where they focus on issues such as self-awareness, self-regulation, social awareness, relationship skills, and decision making. (Id. at 3).

Student receives both OT and SLT in an integrated OT and social learning or “CoT” class which is taught by a licensed occupational therapist and a licensed speech-language pathologist. (Id.). OT has focused on sensory processing, postural endurance, and social participation. (Id.). The occupational therapist often pushes into Student’s classroom to address foundational skills as they arise during class and to help Student generalize some of the skills that are taught in individual OT sessions. (Id.). Private School’s occupational therapists also collaborate frequently with classroom teachers to integrate OT techniques and supports into classroom instruction including tools to increase self-regulation. (Id.). SLT instruction has primarily focused on communication breakdowns and building self-advocacy skills. (Id.). Student’s speech-language pathologist uses techniques such as repetition and review, positive reinforcement and teacher and peer modeling. (Id. at 4). With such support, Student has made progress communicating verbally with preferred peers and staff and has been observed to incorporate ideas of other during group activities, request feedback from peers and compromise with peers with modeling and support. (Id.). Academically, Student’s teachers implement a number of techniques to address Student’s needs in the areas of attention, impulsivity and executive functioning. (P-Y at 2). According to Teacher, Student’s Academic Advisor and Humanities teacher at Private School: “The small student-to-teacher ratio in each of [Student’s] classes allows [Student] to receive a significant amount of 1:1 instruction. Prompts and reminders are used frequently with [Student] to make sure [Student] is on task. Information is presented in clear and small chunks to allow [Student] to process the information. Multi-step assignments are carefully scaffolded and broken down for [Student]. Additionally, frequent assistance and instruction in areas such as organization are frequently used to address [Student’s] needs in that area.” (Id.). With respect to Student’s classes, Student attends Humanities daily in a class of five students and one teacher and individually two times per week. (Id.). The Humanities curriculum is designed around New York State common core sixth grade standards and differentiated and individualized for Student’s class. (Id.). Student attends math class one-on-one three times per week. (Id. at 3). The curriculum is based on New York State common core sixth grade standards and individualized based on Student’s strengths and needs. (Id.). Student attends science class four times per week – three times per week in class of four students and one time per week individually. (Id.). Student participates in small group writing support once per week and small group learning support twice per week. (Id.). These courses focus on improving Student’s writing and executive functioning abilities and provide Student with an additional layer of support for assignments received in Humanities and ELA. (Id.). According to Teacher, Student has made progress academically during the 2022-2023 school year. With respect to writing, Student has been able to increase the amount of detail in Student’s sentences and improve punctuation, usage, and grammar. (Id. at 4). In Humanities, Student has shown progress in Student’s ability to think critically concerning historical issues and use multiple sources for research. (Id.). Similarly, in science, Student has improved Student’s critical thinking skills and has been able to draw connections between the topics discussed in class and the outside world. (Id.). Student is keeping pace in math class and developing strong problemsolving skills. (Id.). Finally, Student has made progress speaking in class and communicating Student’s needs to teachers and collaborating with peers. (Id.).

LEGAL FRAMEWORK AND ANALYSIS

FAPE Generally

The IDEA establishes a “substantive right to a ‘free appropriate public education’” for children with disabilities. Endrew F. v. Douglas Co. School Dist, 137 S. Ct. 988, 993 (2017) (quoting Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982)).

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 CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). “Not every procedural error will render an IEP legally inadequate.” M.H. v. New York City Dep’t of Educ., 685 F. 3d 217, 245 (2d Cir. 2012) (citation omitted). 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. 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).

In general, an impartial hearing officer’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. School districts are not required to “maximize” the potential of students with disabilities but 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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). 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. Statute of Limitations

A DPC must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint. 20 U.S.C. § 1415(b)(6)(B); 34 C.F.R. § 300.507(a)(7). New York State has adopted a timeline and limitations period that is consistent with the IDEA. 8 NYCRR § 200.5(j)(1(i).

In accordance with the IDEA and New York law, a claim begins to accrue when a party in question knew or should have known of the alleged harm that forms the basis of the complaint (referred to as the “KOSHK date”) and the complaint must be filed within two years of that date. 20 U.S.C. 1415(f)(3); New York State Education Law § 4401(a); 8 N.Y.C.R.R. 200.5 (j)(1)(i); Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 106, 114 (2d Cir. 2008). Calculating the accrual date and determining whether a particular claim is time barred is a fact specific inquiry. K.H. v. New York City Dep't of Educ., 2014 WL 3866430 (E.D.N.Y. 2014).

Moreover, the IDEA creates two tolling exceptions to the two-year statute of limitations period. A claim will not be considered if “the parent was prevented from requesting the hearing due to (i) specific misrepresentations by the local education agency that it had resolved the problem forming the basis of the complaint or (ii) the local educational agency’s withholding of information from the parent “that is required to be provided under the IDEA 20 U.S.C § 1415(f)(3)(D)”. K.H., supra. ^[7]

The IDEA’s statute of limitations is viewed as an affirmative defense in New York. M.G. v. NYC Dept of Educ., 62 IDELR 195 (S.D.N.Y. 2014), citing Somoza, supra. Accordingly, the DOE has the burden of proving that the statute of limitations barred plaintiff’s claims. Id. As an affirmative defense, the statute of limitations is considered waived if not raised at the initial administrative proceeding. Id. For a defendant to avail itself of this affirmative defense, factual development beyond those plead is typically required. Wong v. State Department of Education, 71 IDELR 128 (D. Conn. 2018), citing In re S. African Apartheid Litig., 617 F. Supp 2d 228, 287 (E.D.N.Y. 2009). Child Find

School districts have an ongoing, affirmative duty to identify, locate, and evaluate students 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]; 8 NYCRR 200.2[a][1], [7]; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292 (S.D.N.Y. Oct. 28, 2019), aff'd, 2021 WL 745890 (2d Cir. Feb. 26, 2021). 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". 20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; 8 NYCRR 200.2[a][1], [7]; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292 (S.D.N.Y. Oct. 28, 2019), aff'd, 2021 WL 745890 (2d Cir. Feb. 26, 2021). However, the IDEA is not an absolute liability statute and the Child Find does not ensure that every child with a disability will be found. A.P. v. Woodstock Board of Educ., 50 IDELR 275 (D. Ct. 2008). Child Find does not demand that schools conduct a formal evaluation of every struggling student. 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) (citations omitted). Child Find extends to children "who are suspected of [having] ... a disability ... and in need of special education, even though they are advancing from grade to grade." 34 C.F.R. § 300.111(c)(1). In New York, if a school successfully implements classroom interventions to address students’ particular needs without a referring the student to special education, some courts have recognized that the student school district has not ignored the problems and has not violated its “Child Find” duties. See A.P. v. Woodstock.

Each school district in New York is required generally under New York and federal law to conduct a census of all persons living in the district between birth and age 18, in order to locate and identify all students with disabilities. 8 NYCRR § 200.2 (a)(1); 20 U.S.C. 1412(a)(3);34 C.F.R. § 300.11. The school district must establish a register of students with disabilities in the district who are eligible to attend public school or preschool. 8 NYCRR § 200.2 (a)(1). The IDEA defines a "child with a disability" as a child with specific physical, mental, or emotional conditions, including a learning disability, "who, by reason thereof, needs special education and related services". 20 U.S.C. § 1401[3][A]; Educ. Law § 4401[1].

Child Find extends to private schools as well as public schools. The IDEA requires school districts to conduct Child Find for all children with disabilities who are enrolled by their parents in private, including religious, elementary schools and secondary schools located in the school district. 8 NYCRR § 200.2 (a); CFR 300.131; Doe v. Metropolitan Nashville Pub. Schs., 34 IDELR 256 (6th Cir. 2001), unpublished; Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schs., 80 IDELR^[197] (OSEP 2022); Letter to Wayne, 73 IDELR 263 (OSEP 2019). That school district is responsible for ensuring equitable participation in programs assisted or carried out under IDEA Part B. OSEP 2022 Q&A. The district where the private school is located is responsible for conducting Child Find for parentally placed private school children. The Child Find activities must be “similar” to those undertaken for public school children. 8 NYCRR § 200.2(a)(7); see also 34 CFR 300.131. However, the school district may choose how to conduct Child Find in those private schools. It may conduct the activities itself, or contract with another school district or a third party to do so. 80 IDELR

While the procedures described above apply only to private elementary and secondary schools, a student’s home district must make FAPE available to all students who live within its borders. 34 C.F.R. § 300.11. If a parent asks the home district to evaluate a student's eligibility for IDEA services, the district cannot refuse to do so on the grounds that the student attends private school in another school district. Letter to Eig, 52 IDELR 136 (OSEP 2009).

When a school district receives a written request of a referral, it must initiate an individual evaluation of a student and implement any resulting recommendations for special education and related services within 60 days. See Educ. Law § 4401-a[1]-[3]; 8 NYCRR 200.4[a][1]-[2]; 8 NYCRR 200.4[b]; 8 NYCRR 200.4[e][1]; see also 20 U.S.C. § 1414[a][1][B]; 34 CFR 300.301[b]. If a school district should have evaluated a student but did not do so, and if the child would then have qualified for special education, the school district’s failure to identify the student and provide services may have deprived the student of a FAPE and may require relief.8 Tuition Reimbursement

A private school placement must be "proper under the Act." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). 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. Subject to certain

8 However, if the school district has already made up for any FAPE denials, relief may not be appropriate. See G.L. v Ligonier Val. Sch. Dist. Auth., 802 F.3d 601, 625 (3d Cir. 2015); Phillips v. Dist. of Columbia, 932 F. Supp. 2d 42, 50 & n.4 (D.D.C. 2013) (collecting authority for the proposition that an award of compensatory education is not mandatory in cases where a denial of a FAPE is established). 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).

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. 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).

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.

However, even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009) In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Burden of Proof

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. N.Y. Educ. Law § 4404(1)(c) (2002).

ANALYSIS AND DECISION

Statute of Limitations

In denying the DOE’s motion to dismiss on statute of limitations grounds, I specifically noted in my interim order that “should the evidence at the Due Process Hearing develop differently, I will reconsider this decision in my findings of fact and decision.” (IHO-III). After a full hearing, I find that the facts have developed in largely the same manner with respect to the 2017-2018, 2018-2019 and 2019-2020 school years. As such, I will incorporate the findings of fact regarding those school years from my May 23, 2023 “Interim Order Regarding Statute of Limitations” into this decision and reach the same conclusion, that for those school years, the Parent did not, nor should the Parent have known that Student required special education services. However, the record at the DPH was significantly more developed regarding the 2020-2021 school year – Student’s fourth grade year. It was during this school year that Student’s academic struggles became apparent to both Student’s teachers and parents. The testimony demonstrated that Student struggled with reading and writing, and struggled to keep track of and complete assignments. (PV at 4-5). In response, Private Day School recommended and Parent obtained the services of Tutor, a private tutor who has a special education background and who employed special education supports in her work with Student. (P-V at 5). The first session Tutor charged Mother for took place on January 25, 2021. (P-J at 2). Based on the emails submitted by Parent, these sessions were clearly focused on Student’s academic struggles. (See P-J-S). As such, based on the record developed at the DPH, I find that the “KOSHK” date is January 25, 2021. At that point, it should have been clear to Parent that Student required special education services and Parent could have filed a DPC alleging the Child Find violations alleged in the January 18, 2023 DPC. Nonetheless, the DPC was filed January 18, 2023, which is within the IDEA’s two-year statute of limitations. As such, I am again denying the DOE’s motion to dismiss the 2017-18, 2018-19, 2019-20, and 2020-2021 school years. Child Find

Preliminarily, I am denying Parent’s request that I find that the DOE failed in its Child Find duties for the 2017-2018 and 2018-2019 school years. Although Student’s Selective Mutism first developed during the 2017-2018 school year and persisted through the 2018-2019 school year, the record is devoid of any evidence that the Selective Mutism interfered with Student’s ability to access Student’s education. To the contrary, the record demonstrates that despite Student’s Selective Mutism, Student was keeping pace with Student’s curriculum and was on par with Student’s peers academically. (P-V at 2-3). As such, it cannot be said that the DOE "overlooked clear signs of disability" during those two school years. Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 (2d Cir. 2018) (citations omitted). This conclusion is consistent with the observations of Neuropsychologist who testified that:

“[I]t is clear to me that [Student] required special education support during [Student’s] elementary school years. Services particularly should have been provided once [Student’s] struggles with writing, attention, and executive functioning began to manifest during third grade…. [Student’s] age-appropriate intelligence and [] relative ease when working with rote sequential, and analogical information likely allowed [Student] to get by academically in [Student’s] early elementary school years. [Student’s] nonverbal, big-picture weaknesses, however, became more apparent when assignments became more complex in the third grade.”^[9] (P-W at 7). During the 2019-2020 school year, Private Day School recommended to Mother that she obtain a private neuropsychological evaluation of Student. (P-V at 4). Although Parent may not have understood the significance of that recommendation, the DOE should have and, as a result, should have evaluated Student to determine Student’s eligibility for special education services. Similarly, as detailed above, during the 2020-2021 and 2021-2022 school years, it was apparent to staff at Private Day School and Parent that Student was struggling emotionally and academically. In testifying about Student’s time at Private Day School, Director stated: “We worked with [Student] and [] family through [Student’s] time at [Private Day School]…to try to get [Student] to a point where [Student] was speaking…. [Student] also had a number of other sort of areas of neurodiversity that we noticed things in terms of [Student’s] social functioning, [] physical functioning in terms of how we [sic] control [Student’s] body. And during [Student’s] time at [Private Day School], it became increasingly apparent that, you know, we were having trouble sort of serving [Student] in the way that we would like.” (Id. at 41). However, it appears that DOE had no mechanism in place for identifying students with disabilities who attended Private Day School. According to Director, who has been employed by Private Day School as Director of the Lower Division for the last six years, Private Day School partners with the DOE “as needed or as required… if a student has an IEP, we may or we’ll do meetings through the Board of Ed.” (Tr. 5/30/23 at 39). However, there is no protocol set up between Private Day School and the DOE for identifying students who may need special education services. (Id. at 58). Moreover, the DOE does not affirmatively reach out to Private Day School for the purposes of identifying students with disabilities attending Private Day School. (Id. at 53). Director’s understanding of Private Day School’s process for working with students who may have special education needs was described as follows: “[I]f we feel that a student needs, has, has specific needs, we will recommend that families either reach out to private, private practice practitioner, practitioners sorry or the DOE, as we can typically provide information on, on ways to navigate both. You know, we have found typically that going through private practitioners tends to be faster and a little bit more reliable. But again, there’s a cost associated with that that we know that’s not necessarily available to everyone. So, we try to make sure that we provide resources around the DOE as well.” (Id. at 56). Director’s testimony was the only evidence presented regarding how a student with a disability or suspected disability attending Private Day School could be identified and evaluated. The record is otherwise devoid of evidence of how the DOE complies generally with its Child Find obligations or how it complied specifically in this case, and the burden is on the DOE. As such, I cannot determine what, if any, mechanism DOE had for meeting its Child Find obligations for parentally placed private school children during the school years at issue. As such, I find that DOE failed in its Child Find Duties for the 2019-2020, 2020-2021 and 2021-2022 school years. While this is a procedural violation the record demonstrates that it (a) impeded Student’s right to a FAPE, (b) significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to Student, and (c) caused a deprivation of educational benefits, thereby denying Student FAPE for the 2019-2020, 2020-2021, and 2021-2022 school years. Contrary to Agency Attorney’s argument that the DOE was absolved of its Child Find obligations because it “found” Student when Student was first classified in 2015 and provided services to Student until it was no longer necessary, and again evaluated Student upon parental referral in spring and summer 2022 (See IHO-II at 18), the DOE had an ongoing obligation under the IDEA “’to identify and evaluate all students who are reasonably suspected of having a disability.’” Ridley Sch. Dist. V. M.R., 680 F.3d 260 (3d Cir. 2012), citing P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 738 (3d Cir. 2009). DOE’s contention that “[s]ince the time this Student was declassified (with parental participation) in 2016, [Student’s] education has been solely controlled by Parent” is of no moment. (IHO-II at 18). The Child Find obligation is an affirmative one, thus the IDEA does not require parents to request that the district evaluate their child. Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (holding that “[s]chool districts may not ignore disabled student’s needs, nor may they await parental demands before providing special instruction.”). Tuition Reimbursement for the 2022-2023 School Year The DOE failed to meet or even attempt to meet its burden at this DPH regarding the provision of FAPE for the 2022-2023 school year. Agency Attorney only submitted documentary evidence regarding the provision of FAPE for the 2022-2023 school year. (See DOE-7-11). That evidence, without a witness to explain it, is insufficient to demonstrate that the IEP developed for the 2022-2023 school year was appropriate. I am therefore constrained to find that the DOE failed to offer Student FAPE for the 2022-2023 school year.

Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer FAPE for the 2022-2023 school year. Parent offered the testimony of Neuropsychologist in support of their argument that the July 26, 2022 IEP is inappropriate. Since 2017, Neuropsychologist has been employed as the Senior Director of the ADHD and Behavior Disorders Center at a private institution. (P-W at 1, 2). Neuropsychologist specializes in the evaluation of children, adolescents, and young adults with a wide range of conditions that impact academic, behavioral, and social-emotional functioning including ADHD, language disorders, learning disabilities, social and interpersonal weaknesses, and emotional disorders. (Id. at 1). Neuropsychologist also specializes in the remediation of executive functioning challenges. (Id.). Neuropsychologist has observed a DOE ICT classroom within the last year and testified that a DOE ICT classroom would be too large for Student and such a placement would only exacerbate Student’s issues with participation, self-regulation, communication, and attention. (Tr. 5/30/23 at 67, P-W 5). As to other deficits, Neuropsychologist noted that the July 26, 2022 IEP does not include specific supports for Student’s Selective Mutism which could prevent Student from participating verbally in school. (P-W at 6). Neuropsychologist also noted the IEP does not include SLT which Student requires to help with social thinking skills such as reading social cues, navigating a variety of social circumstances, developing self-awareness and perspective taking, and supporting verbal interactions with peers. (Id.). Finally, the IEP does not mandate an adequate amount of one-to-one support for Student: “[Student’s] constellation of issues with attention, executive functioning, pragmatic communication, and higher-order thinking necessitate that [Student] receive a significant amount of 1:1 support throughout of the school day. The July 26, 2022 IEP, however, mandates no such support.” (Id.). Having found that the DOE did not provide FAPE for the 2022-2023 school year, I now turn to the appropriateness of Private School. Neuropsychologist testified that he is familiar with the program provided at Private School and that, in his professional opinion, Private School is an appropriate placement for Student. (Id. at 7). Indeed, the program offered by Private School is consistent with the educational recommendations made by Neuropsychologist in Student’s neuropsychological evaluation report and detailed above in the findings of fact section. It is a supportive and structured school with a small student-to-teacher ratio where Student receives significant individualized attention and one-on-one instruction. Private School provides Student with counseling, OT and SLT as recommended by Neuropsychologist. Through its small group writing and learning support, it provides the recommended additional Language Arts support recommended by Neuropsychologist. Moreover, the record demonstrates that Student is making progress at Private School as noted above in the findings of fact section and as detailed in Student’s Fall Progress Report (P-I) and Student’s NWEA Growth Report (P-Z), which reflects that Student’s growth from fall 2022 to spring 2023 in the area of reading was in the 84th percentile. Finally, the fade-in protocols described by Counselor, used to address Student’s Selective Mutism, clearly constitute instruction specially designed to meet Student’s unique needs. As such, I find that the program offered to Student at Private School is appropriate in that it 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.

With respect to the equities, Parent provided the necessary notice of Parent’s concerns with the DOE’s offer of FAPE for Student for the 2022-2023 school year through a TDN letter sent by Parent August 24, 2022. (P-B). The letter is detailed and specific regarding Parent’s concerns with the IEP developed on July 26, 2022, explains that they had not yet received a copy of the IEP, expresses their concern with the public school recommended in the SLL and gives notice of Parent’s intention to unilaterally enroll Student at Private School should the DOE not recommend an appropriate program and school placement for Student. (Id.). Moreover, Parent cooperated with the CSE in the development of Student’s special education program and placement. Parent attended the July 26, 2022 IEP meeting and expressed their concerns to the CSE at that time. (DOE-11 at 20, P-V at 8). Upon receipt of an SLL, Father immediately contacted Public School via email to learn more about it. (P-E). Although Parent had already enrolled Student in Private School for the 2022-2023 prior to the July 26, 2022 IEP meeting, having signed the student contract on May 1, 2022, had DOE offered Student an appropriate program and placement, Private School’s enrollment contract would have allowed Parent to withdraw Student from Private School with minimal financial penalty. (P-F at 3). With respect to the amount of tuition owed, Parent entered into evidence Private School’s student contract which indicates that tuition for the 2022-2023 10-month school year is $92,348.00. (Id. at 1). The entirety of Student’s tuition at Private School for the 2022-2023 school year has been paid. (P-V at 10).

By way of relief, Parent seeks reimbursement for the $92,348.00 paid to Private School for Student’s 2022-2023 tuition. I find no issue with the reasonableness of the costs, including tuition, associated with the Private School. Student attended Private School during the 2022-2023 school year. Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2022-2023 school year. Overall and after considering the record at hearing, I find that the equities support the Parents’ claim for tuition reimbursement.

Additional Remedies

In addition to tuition reimbursement for Student’s tuition at Private School during the 2022-2023 school year, Parent is seeking (1) reimbursement in the amount of $6,500.00 10 for the cost of an independent Neuropsychological Evaluation conducted by Neuropsychologist; (2) reimbursement in the amount of $20,475.00 for all out-of-pocket expenses incurred for private tutoring of Student during the 2020-2021 and 2021-2022 school years; and (3) funding for compensatory tutoring services. (DOE-1. at 9)

The relief requested by Parent is equitable in nature, as they are asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide the Student with a FAPE for the 2019-2020, 2020-2021, and 2021-2022 school year and to compensate Student for the lack of educational gains because of the denial of FAPE.

10 Although Parent’s post-hearing brief requests reimbursement in the amount of $6,800.00, Mother testified that she paid $6,500.00 for Neuropsychologist’s evaluation. (compare IHO-I at 1, P-V at 6). As no additional proof of payment was submitted into evidence, I must rely on Mother’s testimony to determine the amount paid for the evaluation.

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations”. See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy” Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16). In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme, 790 F.3d at 454.

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme, 790 F.3d at 454. Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate.” Reid, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). Compensatory education is a “replacement of educational services the child should have received in the first place”, and an award of compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid, 401 F.3d at 518, 524. Compensatory education awards can be used to remedy a school district’s substantive as well as its procedural violations of FAPE. Doe v. East Lyme, 790 F.3d at 456. Additionally, compensatory education awards may include reimbursement for out-of-pocket educational expenses paid by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster v. Bd. Of Educ. of the City of Chicago, 611 Fed. App’x 874, 878-79 (7th Cir. 2015); Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 277-78 (3d Cir. 2014).

With respect to the request for reimbursement for the cost of the independent Neuropsychological Evaluation, I note that the evaluation was obtained during the summer between the 2020-2021 and 2021-2022 school years. I have already determined that the DOE failed in Child Find obligations during those school years, which was a procedural violation that (a) impeded Student’s right to a FAPE, (b) significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to Student, and (c) caused a deprivation of educational benefits, thereby denying Student FAPE for both school years in question. As such, reimbursement for the cost of the independent Neuropsychological Evaluation, which was conducted by an experienced neuropsychologist, is an appropriate compensatory education award for this educational expense paid by Parent for services – an evaluation – not delivered to Student by the DOE. See Application of a Student with a Disability, Appeal No. 20-049 (granting reimbursement for a neuropsychological evaluation based on equities where "the district ha[d] not taken its obligation to evaluate the student seriously for a long period of time").

Similarly, reimbursement for Parent’s out-of-pocket expenses to provide tutoring to Student at a time when the DOE failed in its Child Find obligations, thus denying Student FAPE, is also an appropriate compensatory remedy, provided the tutoring services were appropriate. The DOE argues that the record does not sufficiently establish the appropriateness of the tutoring services because it does not establish Tutor’s credentials and does not establish that the tutoring targeted a specific need. (IHO-II at 12). To the contrary, the uncontroverted testimony of Mother is that Tutor has a bachelor’s degree in special education, a master’s degree in reading teacher education and is employed fulltime as a learning specialist in a local independent school. (P-V at 5). Moreover, a review of the email updates sent by Tutor to Parent demonstrates that Tutor was primarily working with Student on reading, writing and executive functioning skills, which are some of Student’s most severe deficits, by employing various special education support. (See P-JS). Finally, with respect to the tutoring services, Neuropsychologist testified as follows:

“I understand that parents paid for [Student] to receive private tutoring primarily in the areas of writing, reading comprehension, and executive functioning, starting in the spring of 2021 and continuing through present time. In my professional opinion, [Student] required this type of outside support, due to the lack of special education instruction [Student] received during the school day. Based on my understanding of [Student’s] needs, which I have formed based on my evaluation as well as my review of more recent documents, such as [Student’s] IEP and progress report from [Private School], I believe that [Student] should continue to receive such tutoring on a weekly basis for at least another year in order for [Student’s] deficits in writing, executive functioning, and higher-order comprehension skills to continue to be addressed and remediated.” (P-W at 7.) As such, I find that the private tutoring services obtained by Parent to be appropriate and reimbursement for the out-of-pocket costs incurred by Parent for those services to be an equitable remedy in light of DOE’s failure to provide FAPE to Student during the 2020-2021 and 2021-2022 school years. Additionally, Neuropsychologist’s testimony also supports Parent’s final request for funding for compensatory tutoring services. I therefore order DOE to fund a bank of 40 hours of compensatory tutoring by an independent provider of Parent’s choosing at a reasonable market rate.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) Parent’s claim for tuition reimbursement for Student’s unilateral placement at Private School is GRANTED for the 2022-2023 school year in that the District shall reimburse Parent in the amount of $92,348.00 within 35 days of this Order; and (2) Parent’s claim for reimbursement for an Independent Neuropsychological Evaluation conducted by Neuropsychologist on June 9, July 2, and July 14, 2021 is GRANTED in that the District shall reimburse Parent in the amount of $6,500.00 within 35 days of receipt of proof of payment for said Independent Neuropsychological Evaluation; and (3) Parent’s claim for reimbursement for out-pocket-expenses incurred for private tutoring services obtained from Tutor during the 2020-2021 and 2021-2022 school years is GRANTED in that the District shall reimburse Parent in an amount not to exceed

$20,475.00 within 35 days of receipt of proof of payment for said tutoring services; and (4) Parent’s request for funding for 40 hours of compensatory tutoring is GRANTED in that the District shall provide Parent with a bank of 40 hours of compensatory tutoring to be provided by a provider of Parent’s choosing at a reasonable market rate.

SO ORDERED.

DATED: July 12, 2023

Jenna K. Powers

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.

APPENDIX A – ADMITTED EXHIBITS

PARENTS’ EVIDENCE

Exhibit Title Date Pages

A. Affidavit of Mother 5/3/2023 6

B. Ten Day Notice 8/24/2022 3

C. TDN email with DOE Receipt 8/24/2022 2

D. Email from Parent re: Request for IEP Meeting 4/14/2022 1

E. Emails between Parent and Public School 8/18/2022 4

F. Enrollment Agreement Private School 5/1/2022 6

G. Private School Schedule 2022-2023 1

H. Private School Description 2022-2023 24

I. Fall Progress Report 9/8/2022- 10 1/27/2023

J. Email from Tutor re: tutoring update and invoice 2/18/2021 2

K. Email from Tutor re: tutoring update and invoice 4/1/2021 2

L. Email from Tutor re: tutoring update and invoice 5/27/2021 2

M. Email from Tutor re: tutoring update and invoice 8/1/2021 1

N. Email from Tutor re: tutoring update and invoice 12/24/2021 4

O. Email from Tutor re: tutoring update and invoice 1/31/2022 1

P. Email from Tutor re: tutoring update and invoice 3/1/2022 1

Q. Email from Tutor re: tutoring update and invoice 3/31/2023 3

R. Email from Tutor re: tutoring update and invoice 1/31/2023 1

S. Email from Tutor re: tutoring update and invoice 6/29/2022 3

T. 4th Grade Report Card 2020-2021 10

U. 5th Grade Winter Report 2021-2022 10

V. Second Affidavit of Testimony of Parent Undated 11

W. Affidavit of Testimony of Neuropsychologist Undated 9

X. Affidavit of Testimony of Director Undated 4

Y. Affidavit of Testimony of Teacher Undated 4

Z. NWEA Growth Report 5/25/2023 4

DISTRICT’S EVIDENCE

1. Demand for Due Process Hearing 1/18/2023 11 pages DOE

2. Pre-school Individualized Education Program 7/16/2012 29 pages DOE

3. SEIT Services Progress Report 10/29/2015 5 pages DOE

4. Declassification from Special Education Services for Student 5/2/2016 2 pages DOE

5. Attendance Page 5/2/2016 1 page DOE

6. Prior Written Notice (Notice of Recommendation) 5/16/2016 3 pages DOE

7. Request for IEP Meeting for Student 4/14/2022 1 page DOE

8. Social History Evaluation 5/23/2022 3 pages DOE

9. Confidential Neuropsychological & Educational Evaluation 7/14/2021 28 pages DOE

10. Educational Evaluation Report 6/1/2022 3 pages DOE

11. Individualized Education Program (IEP) 7/26/2022 20 pages DOE

12. Private Day School Spring Home Report, Grade: Fourth 2020-2021 10 pages DOE

13. Private Day School Spring Home Report, Grade: Fifth 2021-2022 10 pages DOE

14. Prior Written Notice (Notice of Recommendation) IHO’S EVIDENCE 8/16/2022 11 pages DOE

I. Post-Hearing Brief and Memorandum of Law for the Petitioner 6/30/2023 20 pages

II. NYC Department of Education Closing Brief & Memorandum of Law 6/30/2023 19 pages

III. Interim Order Regarding Statute of Limitations 5/23/2023 12 pages

Footnotes

[4] All but DOE Exhibits 12-14 had previously been admitted into evidence at the interim hearing held on May 8, 2023.

[5] Parent Exhibit A had previously been admitted into evidence at the interim hearing held on May 8, 2023.

[7] 8 NYCRR §200.5(j)(1)(i) provides: “The request for an impartial due process hearing must be submitted within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, except that the two-year timeline shall not apply to a parent if the parent was prevented from requesting the impartial hearing due to specific misrepresentations by the school district that it had resolved the problem forming the basis of the complaint or the school district’s withholding of information from the parent that was required to be provided to the parent under this Part or under Part 201 of this Title.”

[197] (OSEP 2022). The school district must also consult with community members about procedures for Child Find in those private schools. Suggested methods could include but are not limited to holding professional development sessions for private school teachers on IDEA's evaluation and reevaluation requirements, posting flyers in private school facilities to inform stakeholders of the availability of Child Find, and facilitating round table discussions with community members. Id.

[9] Neuropsychologist also testified that even before third grade, Student’s struggles with anxiety and social communication should have been addressed with school-based supports. (P-W at 7). While this may have been helpful to Student, there is nothing in the hearing record to suggest that those struggles interfered with Student’s ability to access Student’s education or make progress prior to the third grade, something Neuropsychologist seems to concede in his testimony as quoted above. Moreover, when questioned about what supports Neuropsychologist envisioned for Student, Neuropsychologist mentioned the private treatment program in which Student was already enrolled to address Student’s Selective Mutism. (Tr. 5/30/23 at 71).