New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 597046 – NYC: 246430

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

School District: N.Y.C. Dept. of Ed., District # [REDACTED]

Impartial Hearing Officer: Cynthia M. Lindblom

Date of Filing: March 6, 2023

Date of Filing (Amended): June 2, 2023

Hearing Requested by: [REDACTED] (“Parents”)

Date of Hearing: September 12, 2023

Record Close Date: October 4, 2023

Date of Decision: October 4, 2023

Time Sensitive: No

Names and Titles of Persons Who Appeared September 12, 2023

For the Student:

[REDACTED], Managing Attorney, [REDACTED] (“Parents’ Attorney”)

[REDACTED], Student’s [REDACTED] (“Parent 1”)

[REDACTED], Student’s [REDACTED] (“Parent 2”)

[REDACTED], Assistant Head of Middle School at Private School

For the Department of Education:

[REDACTED], Agency Attorney

BACKGROUND

Student1 is a [REDACTED] child who is classified by the New York City Department of Education’s (“DOE” or “District”) Committee on Special Education (“CSE”) as a student with Autism (Ex. 1 at 1).2 The Student’s classification is not in dispute. During the 2021-2022 school year, Student was [REDACTED] and attending 7th grade (Ex. 1 at 1; Ex. V at 6).

Parents allege that the DOE failed to provide Student with a Free and Appropriate Public Education (“FAPE”) for the 2021-2022 school year and requests the following findings: 1) the DOE did not provide Student with a FAPE for the 2021-2022 school year; 2) Private School is an appropriate placement for Student; and 3) the DOE directly fund Student’s tuition at Private School for the 2021-2022 school year.

PROCEDURAL HISTORY

On March 6, 2023, Parents filed a due process complaint (“DPC”) against the DOE, on behalf of Student, under Case No. 246430, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”), see 20 U.S.C. § 1415(f), and New York State Education Law §§ 4404(1). On March 7, 2023, I was appointed impartial hearing officer (“IHO”) for this case to determine the claims in the DPC and conduct an impartial hearing pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1). On April 5, 2023, the resolution period expired without the parties reaching an agreement. On April 13, 2023, a pre-hearing conference was held with the representatives of the parties. On May 1, 2023, a status conference was held with the representatives of the parties. On June 5, 2023, a hearing on the merits was scheduled. Initially, Parent^[1] represented Student pro-se; however later indicated that they wanted to hire an attorney for the merits hearing. Parents’ Attorney was hired and filed an amended DPC on June 2, 2023. ^[3] A new resolution period was initiated, which expired on July ^[2], 2023, without the parties reaching an agreement. On July 20, 2023, a pre-hearing conference was held with Parents’ attorney. A hearing on the merits was then scheduled for September 12, 2023.

At the hearing, Parents’ attorney submitted 23 exhibits, 19 of which were admitted into evidence and 4 which were withdrawn. Parents’ attorney made an opening statement (Tr. 97-100),^[4] presented 3 witnesses, that being Assistant Head of Middle School at Private School (“Assistant Head of M.S.”) (Tr. 106), Parent 1 (Tr. 110), and Parent 2 (Tr. 122), and made a closing statement (Tr. 127-129). The DOE submitted 6 exhibits, 3 of which were admitted into evidence and 3 which were withdrawn. The DOE did not present any witnesses (Tr. 101), waived their opening (Tr. 97), briefly cross-examined Assistant Head of M.S. (Tr. 109-110), did not cross examine either Parent 1 (Tr. 116) or Parent 2 (Tr. 124), and waived their closing statement (Tr.127). DOE requested the opportunity to submit a brief regarding the requested relief of the Independent Educational Evaluations (“IEE”) (Tr. 125). Parent did not object and agreed to brief the issue as well (Tr. 126-127).^[5] A list of the documentary evidence in this proceeding is appended to this Order.

JURISDICTION

A decision in this matter is being rendered, pursuant to the 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.

LEGAL FRAMEWORK

FAPE

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 NYCRR § 200.5(j)(4)(ii).

The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded a FAPE. See 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 34 C.F.R. § 300.13. A FAPE is further defined as “educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). Two purposes of the IDEA are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B).

A board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four et al. v. Carter by & Through Carter, 510 U.S. 7 (1993). These three conditions/prongs constitute the Burlington/Carter Test in a tuition reimbursement case.

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 Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion. Florence County Sch. Dist. Four v. Carter by & Through Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002), “a court 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.

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. NYS Educ. Law § 4404(1)(c). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).

Request for Independent Educational Evaluations (IEE)

An Independent Educational Evaluation (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.” See 8 NYCRR § 200.1(z).

The IDEA and State and Federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation. See 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted). In Shaffer v. Weast, the Supreme Court explained the role an IEE plays in parental participation and the IDEA’s regulatory scheme as follows: “[an IEE] ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They 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.” Shaffer v. Weast, 546 U.S. 49, 60-61 (2005).

If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE. See 8 NYCRR § 200.5(g)(1)(i). A school district can set criteria regarding the IEE, including the qualifications of the examiner, but the district’s criteria must be the same as the criteria it uses for its own evaluations, and the district cannot impose additional conditions or timelines related to the IEE. See 34 C.F.R. § 300.502(e)(1); 8 NYCRR § 200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989). For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE, Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 (4th Cir. 2011), nor can it deny an IEE at public expense based solely on financial cost. Letter of OSERS, 2002.

A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE. Letter to Carroll, 68 IDELR 279 (OSEP 2016). Finally, while the school district may “ask for the parent’s reason why he or she objects to the public evaluation,” the district cannot require an explanation or delay providing the IEE until the parent provides an explanation. 8 N.Y.C.R.R. § 200.5(g)(1)(iii).

A parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need. D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020). In D.S., the court stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.” Id. The U.S. Department of Education's Office of Special Education Programs (“OSEP”) has similarly stated that when a parent disagrees with an evaluation because a child was not assessed in a particular area, “the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs.” Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016).

An IEE may also be requested by an impartial hearing officer “as part of a hearing on a due process complaint.” 8 NYCRR §200.5(g)(2); 8 NYCRR §200.5(j)(3)(viii); 34 CFR §300.502(d). 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.” 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).

Furthermore, an impartial hearing officer has broad authority to grant any relief such officer deems necessary, under the particular facts and circumstances of each case as supported by the hearing record, to ensure that a child receives the free and appropriate public education to which the child is entitled. See, Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359,556 IDELR 389 (1985) (IDEA empowers courts [and hearing officers] with the broad authority to fashion appropriate relief, considering equitable factors, which will effectuate the purposes of IDEA); Forest Grove Sch. Dist. v. TA., 557 U.S. 230, 52 IDELR 151, n. 11 (2009); Cocores v. Portsmouth Sch. Dist., 18 IDELR 461 (D.N.H. 1991) (finding that a hearing officer's ability to award relief must be coextensive with that of the court); Letter to Kohn, 17 EHLR 522 (OSEP

1991) ("Although Part B does not address the specific remedies an impartial hearing officer may order upon a finding that a child has been denied FAPE, OSEP's position is that, based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary, inclusive of compensatory education, to ensure that a child receives the FAPE to which he/she is entitled").

FINDINGS OF FACT AND DECISION

I. FAILURE TO PROVIDE A FAPE

In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE. M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017). As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden, at hearing. The DOE did not present a case, did not present any witness testimony, and rested on the documents (Tr. 101). Despite having Student’s March 18, 2021, IEP and other supporting documents admitted into evidence, DOE still failed to offer an explanation as to how the CSE made its recommendation, how the IEP appropriately describes Student, or whether the IEP is meaningfully calculated to confer an educational benefit. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.” Endrew F., 137 S.Ct. at 1002. Therefore, I find that the DOE failed to offer Student a FAPE for the 2021 – 2022 school year.

II. THE STUDENT’S PLACEMENT AT THE PRIVATE SCHOOL When parents unilaterally place their child in a private program and seek funding and/or reimbursement for that program, they must demonstrate the program they have selected is appropriate to meet their child’s needs. A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006), cert. denied, Bd. of Educ. of Hyde Park Cent. Sch. Dist. V. Frank G., 2007 U.S. Lexis 11520 (Oct. 15, 2007)). Parents are not barred from an award of tuition reimbursement or funding even if the private program does not meet the IDEA definition of a FAPE; the selected program need not employ certified special education teachers or develop its own IEP for the student, and parents’ selection of a program that has not been approved by the state does not bar reimbursement. Frank G., 459 F.3d 356 at 364 (citing Carter, 510 U.S. 7 at 14).

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 v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, (2d Cir. 2007) quoting Frank G., 459 F.3d at 364-65.

The hearing record establishes that Private School is appropriately addressing Student’s needs for the 2021-2022 school year. The credible testimonies of Assistant Head of M.S., Parent 1, and Parent 2, coupled with the documentary evidence, support a finding that Private School is the appropriate placement for Student. Private School Private School is a non-profit independent school for students with disabilities from kindergarten through age 21 (Ex. V at 1). Students at Private School “typically have languagebased learning disabilities, academic deficits, and/or deficits in adaptive daily living skills” (Ex. V at 2). Private School’s Middle School (“Middle School”), which serves 6th through 8th grade students, is “closely aligned with the New York State and Common Core Learning Standards, with varying levels of support and modifications to ensure quality individualized learning for each student” (Ex. J at 1). Teachers utilize research-based programs and a multi-sensory approach to differentiate instruction to support students’ greatest academic achievement (Ex. J at 2). Additionally, Middle School provides supplemental services and therapeutic support including speech and language therapy (“SLT”), physical therapy (“PT”), occupational therapy (“OT”) and counseling. Id. Private School’s speech therapists, psychologists and occupational therapists are licensed and certified by the New York State Education Department (Ex. V at 4).

During the 2021 – 2022 school year, there were approximately 305 students at Private School, which included 60 students enrolled in Middle School (Ex. V at 3). Students at Middle School were divided into 5 cohorts, with a maximum of 12 students, along with 1 head teacher, 1 assistant teacher, and 2 paraprofessionals (Ex. V at 4). Head teachers and assistant teachers are responsible for planning of the curriculum, developing goals and delivering instruction; while paraprofessionals provide individualized support as needed. Id. There are weekly cohort meetings during which related service providers meet with teachers to talk about curriculum content, collaborate on ideas and provide valuable feedback (Ex. V at 5). Assistant Head of Middle School at Private School Assistant Head of M.S. has worked at Private School since 2021 and is responsible for coordinating the daily operations at Middle School, holding weekly team meetings, and supervising special education teachers and paraprofessionals (Ex. V at 1). During the 2021 – 2022 school year, Assistant Head of M.S. was familiar with Student who was in a cohort with 10 other students,^[1] head teacher, 1 assistant teacher and 3 paraprofessionals (Ex, V at 6). Student worked 8). In addition, Student received the following related services: 3 sessions of SLT per week for 30 minutes per session (Ex. V at 14); weekly individual and small group counseling sessions as well as weekly check-ins (Ex. V at 15-17); 2 individual weekly sessions of OT for 30 minutes per session (Ex. V at 18); and 1 individual weekly PT session for 30 minutes (Ex. V at 19).

Assistant Head of M.S. had the opportunity to observe Student throughout the day and would meet regularly with their teachers and service providers to discuss Student’s progress. Id. According to Assistant Head of M.S., Student made progress academically, socially, emotionally, and physically throughout the 2021 – 2022 school year which they detailed extensively in their affidavit testimony (Ex. V at 8-21). Additionally, Parents’ attorney submitted progress reports that provided a comprehensive narrative of Student’s development during the 2021 – 2022 school year, (Ex. F; Ex. N). Parent 1 Parent 1 testified and provided a brief history regarding Student’s diagnosis and their time spent within the public school system (Ex. W at 1-2). Parent 1 further testified about their participation at the IEP meeting on March 18, 2021, and the fact that they never received a copy of Student’s IEP until during the hearing proceedings (Ex. W at 2).6 Parent 1 also described the receipt of the school location letter and their inability to determine whether DOE’s recommendation was appropriate absent Student’s IEP (Ex. W at 3). Therefore, Parents filed a Ten-Day Notice (“TDN”) letter on June 15, 2021, informing DOE that Student would be attending Private School (Ex. W at 3-4). Finally, Parent 1 provided credible testimony, via affidavit, as to Student’s progress at Private School with specific examples of their achievements and capabilities (Ex. W at 4).

I find the weight of the evidence and the credible testimonies of Assistant Head of M.S. and Parent 1 clearly demonstrate that the instruction offered by Private School was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. I further find Private School offered educational instruction specifically designed to meet Student’s unique needs during the 2021-2022 school year. Based on the foregoing, I find that Private School is an appropriate placement for Student for the 2021-2022 school year, and Parents have met the second prong of the Burlington/Carter Test for tuition funding.

III. EQUITABLE CONSIDERATIONS

To receive an award of tuition reimbursement associated with a private school program, a weighing of the equities must support that award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” Frank G., 459 F.3d at 363-64; 20 U.S.C. § 1412[a][10][C][iii]. When a school district fails to provide a student with a FAPE and the private placement is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief” Gagliardo, 489 F. 3d 105 at 112, citing Carter, 510 U.S. 7 at 16. “A major consideration . . . is whether the parents have cooperated [with the school district] throughout the process to ensure that their child receives a FAPE” N.R. ex rel. T.R. v. Dept. of Educ., 2009 WL 874061, at *6 (S.D.N.Y. 2009) (citation omitted).

The hearing record does not demonstrate that Parents “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds.” Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 (S.D.N.Y. 2008). There is nothing in the hearing record to suggest, let alone demonstrate, that Parents interfered in any manner with the DOE’s ability to provide Student with a FAPE for the 2021-2022 school year. Parent 1 credibly testified that they participated at the IEP meeting on March 18, 2021, where they presented DOE with Student’s most recent progress reports as well as evaluations and a genetic report (Ex. W at 2). In addition, Parents attempted to determine if the school placement recommended by DOE was appropriate; however, without a copy of Student’s IEP, Parents were unable to make an informed decision (Ex. W at 3). The record also reflects that Parents timely served the DOE with the statutory TDN, wherein Parents detailed their concerns and gave proper notice that they were placing Student at Private School (Ex. B at 11-12).

One of the purposes of the statutory notice provision is to provide the school district with “an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a free appropriate public education can be provided in the public schools” Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004); see also R.B. and H.Z. ex rel. C.Z. v. New York City Dept. of Educ., 713 F. Supp. 2d 235, 248 (S.D.N.Y. 2010). The DOE failed to present any evidence or witness testimony to demonstrate that it replied to Parents’ TDN letter, or that it offered an appropriate placement for Student for the 2021-2022 school year. Based on the foregoing, I find Parents have met the third prong of the Burlington/Carter Test, as a weighing of the equities supports an award of tuition funding and/or reimbursement to Parents.

Parents are seeking direct funding to Private School for the tuition costs of the 2021 – 2022 school year. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”).

Here, the record establishes that Parents incurred an obligation to pay Private School the total sum of $127,025.00 for Student’s enrollment in Private School for the 2021-2022 school year (Ex. I at 2). Parents’ attorney submitted a “2021-2022 Re-Enrollment Contract” with Private School which stated that the tuition amount was $127,025.00 (Ex. M at 1). This figure represents the aggregate amount of the following charges: 10 Month Tuition in the amount of $78,775.00; Summer 1st Session in the amount of $5,875.00; Summer 2nd Session in the amount of $5,875.00; and 1:1 Paraprofessional (full-time) in the amount of $36,500.00.^[7] Id. The hearing record further demonstrates that Parents were unable to pay the tuition as Parent 2 testified that the family’s net income for the 2021 – 2022 school year was approximately $150,000 (Tr. 123). This was the extent of the income earned for Parents’ household which included 2 children (Student and their sibling) as well as other living expenses (Tr. 120).

Tuition funding paid directly to a private school is justified where parents have satisfied the Burlington/Carter Test and have shown that they cannot afford to front the cost of their child’s tuition. E.M. ex rel. N.M. v. New York City Dept. of Educ., 758 F. 3d 442, 452-454 (2d Cir. 2014); Mr. and Mrs. A., 769 F. Supp. 2d at 427. Connors v. Mills, 34 F. Supp. 2d 795, 804 (N.D.N.Y 1998). Accordingly, I find Parents have shown they cannot afford the cost of tuition and therefore Private School is entitled to direct funding for Student’s attendance during the 2021-2022 school year.

Request for Independent Educational Evaluations (IEE)

Parents requested that the District fund the cost of an independent neuropsychological evaluation (“NE”) and an independent speech and language evaluation (“SLE”) (IHO Exhibit II at 4). In terms of payment, Parents argued for the following: If the Parents choose a provider previously funded by DOE within the past 12 months, then the rate should be consistent with the prevailing rate that DOE paid to the provider within the past 12 months or if the provider is someone not previously paid by DOE, then the rate should be a comparable market rate for a comparable provider. Id.

Parents argue that Student should be assessed “in all areas of suspected disability” using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” 20 U.S.C. §1414(d); 34 C.F.R. § 300.304; N.Y.C.R.R. § 200.4(b)(6). Id. at 2-3. Parents further argue that, to date, the District has neither offered any IEEs nor conducted any evaluations of their own. Id. at 2.

The District argues that Parents are not entitled to the requested IEEs because Parents failed to identify or express their disagreement with any evaluation conducted by the District (IHO Exhibit I at 3). In addition, District argues that Parents’ request is untimely since it was raised for the first time in the DPC, filed on June 1, 2023 (IHO Exhibit I at 5).^[8]

For the reasons stated below, I am ordering DOE to fund the requested evaluations in the manner that was prescribed by Parent’s attorney.

As previously mentioned, an impartial hearing officer has broad authority to grant any relief such officer deems necessary, under the particular facts and circumstances of each case as supported by the hearing record, to ensure that a child receives the free and appropriate public education to which the child is entitled. See, Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359,556 IDELR 389 (1985) (IDEA empowers courts [and hearing officers] with the broad authority to fashion appropriate relief, considering equitable factors, which will effectuate the purposes of IDEA); Forest Grove Sch. Dist. v. TA., 557 U.S. 230, 52 IDELR 151, n. 11 (2009); Cocores v. Portsmouth Sch. Dist., 18 IDELR 461 (D.N.H. 1991) (finding that a hearing officer's ability to award relief must be coextensive with that of the court); Letter to Kohn, 17 EHLR 522 (OSEP 1991) ("Although Part B does not address the specific remedies an impartial hearing officer may order upon a finding that a child has been denied FAPE, OSEP's position is that, based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary, inclusive of compensatory education, to ensure that a child receives the FAPE to which he/she is entitled").

According to Parent 1’s testimony, which I credit, Student’s last comprehensive psychological evaluation was conducted on August 18, 2016, and was paid for by Parents (Ex. E; Tr. 113). Parents would then subsequently provide DOE with this psychological evaluation prior to every IEP meeting (Tr. 113). This conduct clearly demonstrates that Parents are not in disagreement with this evaluation. Additionally, Parent 1 testified that every year they would ask DOE to conduct an evaluation of Student either within the DOE or an independent evaluation (Tr. 116). Despite their multiple requests, Parents did not receive an evaluation from DOE (Tr. 117). Thus, I find there were no “evaluations” in existence for Parent to identify and express their disagreement with.

Furthermore, Student is diagnosed with autism and is delayed in multiple domains including cognitive skills, communication skills, fine and gross motor skills, social skills, and daily living activities (Ex. W at 1). There is no evidence in the record that the District ever conducted a triennial reevaluation of Student as required under IDEA. 34 C.F.R. § 300.303(b)(2); 8 NYCRR § 200.4(b)(4). Until such evaluations are completed, the District could not make any informed decisions concerning Student’s present levels of performance and the services needed.

Therefore, under the facts and circumstances of this case, I find that an independent neuropsychological evaluation is appropriate as it would properly assess Student’s cognitive abilities, sensory deficits, and social-emotional needs. I further find that an independent SLE is appropriate since Student has been receiving SLT since 2012 (Ex. W at 2) and it remains an area related to their suspected disability which should be appropriately assessed.

IV. OTHER REQUESTED RELIEF

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

ORDER

Based on the foregoing, it is hereby:

ORDERED that, within 35 days of the date of this Order, the DOE shall directly fund Student’s tuition at Private School for the 2021-2022 school year in the amount of $127,025.00.

ORDERED that, the DOE shall fund the following Independent Evaluations:

1. Neuropsychological Evaluation

2. Speech-Language Evaluation

ORDERED that, upon completion of the evaluations, the DOE shall issue payment directly to the provider, within 35 days of submission of the provider’s invoice, in the following manner: If the Parents choose a provider previously funded by DOE within the past 12 months, then the rate should be consistent with the prevailing rate that DOE paid to the provider within the past 12 months; or if the provider is someone not previously paid by DOE, then the rate should be a comparable market rate for a comparable provider.

ORDERED that, within 14 days of completion of the aforementioned evaluations, the CSE will reconvene in order to develop an appropriate IEP that offers a program that addresses all of Student’s behavioral, academic, and emotional needs.

So Ordered.

/s/Cynthia M. Lindblom Dated: October 4, 2023 Cynthia M. Lindblom 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- REDACTION IDENTIFICATION PAGE

[REDACTED] Information Term Used In FOFD [REDACTED] Student [REDACTED] Parent 1 [REDACTED] Parent 2 [REDACTED] Parents’ Attorney [REDACTED] District or DOE [REDACTED] Assistant Head of Middle School [REDACTED] Private School [REDACTED] Middle School

APPENDIX B- DOCUMENTATION ENTERED INTO EVIDENCE

PARENTS EXHIBIT(S)

A. Amended Due Process Complaint 7/26/22 6/1/23 7 pages

B. Due Process Complaint and Ten Day Notice 6/15/21 13 pages

C. Prior Written Notice 6/14/21 6 pages

D. WITHDRAWN [REDACTED] Report of Comprehensive Psychological

E. Evaluation 8/18/16 5 pages

F. [REDACTED] Progress Report 2021-2022 6/17/22 23 pages

G. [REDACTED] Letter RE: Remote Programming 10/20/21 1 page

H. WITHDRAWN

I. WITHDRAWN

J. [REDACTED] Middle School program description Undated 7 pages

K. WITHDRAWN

L. [REDACTED] Summer Programing Description Undated 2 pages

M. [REDACTED] 2021-2022 Enrollment Contract 5/5/21 3 pages

N. [REDACTED] Progress Report 2021-2022 2/4/22 19 pages

O. [REDACTED] Attendance Report 2021-2022 8/29/23 1 page

P. [REDACTED] Attendance Report, Summer 2021 8/29/23 1 page

Q. [REDACTED] Schedule 9/21 1 page

R. [REDACTED] Summer Academy 2021 Progress Report [REDACTED] Summer Academy Remote Schedule Undated 5 pages

S. August 9-12, 2021 Undated 1 page

T. [REDACTED] Summer Academy Student Schedules 2021 Undated 1 page

U. [REDACTED] Resume Undated 3 pages

V. Affidavit of [REDACTED] 9/6/23 21 pages

W. Affidavit of [REDACTED] DOE EXHIBIT(S) 9/5/23 5 pages

1. Individualized Education Program (IEP) 3/18/21 29 pages DOE

2. Attendance Page 3/18/21 1 page DOE

3. Prior Notice Package for Placement 6/14/21 6 pages DOE

4. Withdrawn Undated 19 pages DOE

5. Withdrawn 5/21/20 42 pages DOE

6. Withdrawn IHO EXHIBIT(S) Undated 21 pages DOE

I. District’s Brief in Opposition 10/2/23 6 pages

II. Parents’ Memorandum of Law 10/2/23 5 pages

Footnotes

[1] No personal identifying information is contained within the body of this Findings of Fact and Decision (“FOFD”). For personal identifying information, please refer to the attached appendix. Further, this FOFD contains no references to the gender binary.

[2] References to the exhibits from the Due Process Hearing are denoted “Ex.”

[3] In light of Parents’ new counsel, the due process hearing scheduled for June 5, 2023, was cancelled.

[4] References to the transcript from the Due Process Hearing are denoted “Tr.”

[5] Both briefs were admitted into evidence as IHO Exhibits.

[1] on 1 with a paraprofessional and used an assistive technology device to communicate (Ex. V at 6 The IEP at issue was provided by DOE to Parents’ attorney on July 21, 2023 (Tr. 68).

[7] I note Student was mandated for twelve-months of services and/or programs according to their IEP, dated March 18, 2021 (Ex. 1 at 22). I further note that the tuition amount includes the related services of SLT, OT, PT and Counseling (Tr. 107).

[8] District further argues that Parents could forfeit their rights to an IEE if they waited too long to make a request (IHO Exhibit I at 4). Specifically, the District argues that if Parents were challenging Student’s 2016 evaluation, given the 6-year delay, Parents would have forfeited their rights to an IEE at public expense. Id. at 5. Here, there is no indication either in the record or in Parents’ Memorandum of Law that they are challenging Student’s 2016 evaluation; therefore, this argument will not be given further consideration.