NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 248564
Student’s Name: [REDACTED] (“Student”
School District: [REDACTED] (“School District”)
Impartial Hearing Officer: Ashley Grant
Date of Filing: 5/24/2023
Hearing Requested by: Parent
Dates of Hearing: 6/27/2023, 7/12/2023, 8/1/2023,8/29/2023
Record Close Date: 9/25/2023
Date of Decision: 10/2/2023
NAMES AND TITLES OF PERSONS WHO APPEARED ON 6/27/2023:
For the Parent:
[REDACTED] (“Parent Counsel”),
For the District:
[REDACTED] (“DOE Counsel”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/12/2023:
For the Parent:
Parent Counsel
For the District:
DOE Counsel
NAMES AND TITLES OF PERSONS WHO APPEARED ON 8/1/2023:
For the Parent:
Parent Counsel
[REDACTED] (“Parent”)
For the District:
DOE Counsel
NAMES AND TITLES OF PERSONS WHO APPEARED ON 8/29/2023:
For the Parent:
Parent Counsel
Parent
[REDACTED] (“Director”)
[REDACTED] (Neuropsychologist”)
For the District:
DOE Counsel
INTRODUCTION AND PROCEDURAL HISTORY
This matter concerns [REDACTED] (“Student”), who is classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”).
[REDACTED] (“Parent”), filed a due process complaint (“DPC”) on or about 5/24/2023. Parent’s DPC alleges that the New York City Department of Education (“DOE”) failed to provide Student with a free and appropriate public education (“FAPE”) for the 2022-23 school year (“School Year”). As relief, Parent seeks tuition funding at [REDACTED] (“Private School”). Ex. A-8. Parent also asserts that she disagrees with a 2022 DOE evaluation and requests funding for an independent educational evaluation (“IEE”) in the form of a neuropsychological evaluation. Ex. A-4. [1]
I was appointed to this matter on 5/26/2023 and held a pre-hearing conference (“PHC”) on 6/27/2023, during which both parties indicated they were interested in settling the matter and requested a status hearing. Tr. 5:13-19 & 5:22-6:2. At the PHC, I advised the parties that I had not received a due process response (“DPR”) from the DOE. Tr. 15:12-16:24. At a status hearing on 7/12/2023, I scheduled the matter for a hearing on 8/1/2023. Tr. 19:11-13. DOE Counsel provided the DOE’s DPR via email on 7/12/2023. IHO Ex. I. On 7/19/2023, Parent Counsel advised, via email, and restated during the 8/1/2023 hearing that two of Parent’s three witnesses were unavailable on 8/1/2023. Tr. 58:20-59:5.
The impartial hearing began on 8/1/2023 and continued on 8/29/2023. To accommodate scheduling constraints of Parent’s two witnesses who were unavailable on 8/1/2023, and at the joint request of Parent and the DOE, I extended the compliance date for this matter to 9/6/2023 (Tr. 598-20) and set a second hearing date for 8/29/2023. Tr. 63:1-2.
On 8/1/2023, the DOE made a brief opening statement indicating that it would not present witnesses and would be “resting on documentary evidence.” Tr. 29:10-12. I admitted The DOE’s Exhibits 1-10 without objection.[2] Tr. 29:19-31:8. Parent made an opening statement and I admitted, without objection, Parent’s Exhibits A through P, which included the affidavit testimony of Parent and of [REDACTED] (“Director”), Director of Academic Support at Private School. Tr 40:11-43:3. Parent’s counsel confirmed that affiants will be made available for cross examination. Tr. 43:4-10.
DOE declined to introduce any witnesses and rested. Tr. 43:18-21. DOE Counsel cross-examined Parent and Parent’s Counsel questioned Parent on redirect. Tr. 46:6-58:19. I then granted the parties’ joint request for an extension of the timeline to allow Director and Parent’s third witness to testify. IHO Ex. II.
On 8/29/2023, I admitted without objection Parent’s Exhibits Q and R, which included the direct testimony via affidavit of [REDACTED] (“Neuropsychologist). Ex. Q; Tr. 69:14-23; Tr: 96:21-97:4. Neuropsychologist swore to the truth of her affidavit and then the DOE cross-examined her. Tr. 98:9-103:20. The parties made oral closing statements. Tr. 104:17-113:18.
A list of the documentary evidence in this proceeding is appended to this decision.
JURISDICTION
The due process hearing was held, and this decision is 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, and Section 504 of the Rehabilitation Act. [3]
FINDINGS OF FACT
After considering all the evidence, as well as the closing arguments of both parties, my findings of fact are as follows: During the 2022-23 school year, Student was [REDACTED] years old in the 6th grade and attended Private School. Ex. O-1. Private school is a New York state approved nonpublic school specializing in serving students with language-based learning disabilities. Ex. P-1.
In February 2019 the DOE paid for Student to receive an independent neuropsychological evaluation. Ex. C. The February 2019 neuropsychological evaluation concluded that Student had “meaningful deficits” in reading, spelling, and writing; and that Student appeared to have dyslexia. Ex. C-15, 16. The evaluation recommended that Student be placed in a small classroom setting with a high adult to student ratio, tailored to students with language-based learning disabilities, providing individualized student support. Ex. C-16. The evaluation concluded that Student would be able to “improve significantly both academically and emotionally if he is provided with an appropriate educational environment and targeted individual interventions.” Ex. C-15.
On July 26, 2023, the DOE conducted a psychoeducational evaluation of Student. Ex. 5. Echoing Student’s February 2019 neuropsychological evaluation, the psychoeducational evaluation noted that Student had noteworthy challenges in reading. Ex. 5-2, 3. On a reading cluster examination given as part of the psychoeducational evaluation measuring Students’ ability to decode and comprehend text, Student tested in the fifth percentile. Ex. 5-3. On a letter-word identification test, measuring Student’s ability to identify letters and read words aloud, Student again tested in the fifth percentile. Ex. 5-3. On a passage comprehension test measuring Student’s ability to understand what he reads, Student tested in the eighth percentile. Ex. 5-3. All these scores were noted as being in the low range. Ex. 5-3. The evaluation concluded that Student’s scores revealed overall “[l]ow performance in reading.” Ex. 5-5. The evaluation provided no information or recommendations concerning placement for the student. Ex. 5-5.
On August 3, 2022, just before the 2022-2023 school year began, the DOE held an IEP meeting for Student. Ex. 1. The IEP noted that, though Student was preparing to start sixth grade, he was reading and writing on a second-grade level. Ex. 1-3. The IEP recommended that Student be placed in an Integrated Co-Teaching (“ICT”) class in a DOE school. Ex. 1-20. The IEP further recommended that the student be provided with Special Education Teacher Support Services (“SETSS”) supports in English Language Arts three times a week, SETSS supports in math twice weekly, individual counseling services once per week, group counseling once per week, individual speech-language therapy once per week, and group speech-language therapy once per week. Ex. 1-21.
In discussing other placement options considered at the IEP meeting, the IEP noted that SETSS alone were considered and deemed inadequate to meet Student’s needs, and that a 12:1 class was considered but deemed too restrictive for the Student at that time. Ex. 1-28. In noting parent concerns, the IEP contained only a brief, single sentence stating that “Parent expressed concern regarding special education placement in a community setting.” Ex. 1-28.
Parent testified that, at the meeting, she expressed substantive concerns about the appropriateness of the special education program the DOE recommended for student. Tr. 49:8-51.14. Parent noted, for instance, disagreement with the recommendation that Student be pulled out to receive related services. Tr. 51:2-14. Parent noted that Student “had a very hard time with being pulled out of his regular classroom.” Tr. 51:5-7. Parent went on to say when receiving related services via pull-out, Student, “felt like he was being singled out and made to feel different than the other students,” and that Parent felt like this really contributed to “feelings that he had of being inferior [], not being smart, not being like the other children.” Tr. 51: 9-14. Parent testified that she expressed these concerns “in great detail” during Student’s August 3, 2022 IEP meeting and that she “was very concerned about the recommendation.” Tr. 52:24-53:1. Parent drew specific attention to the fact that, although she raised these concerns during the meeting, they were not noted in the IEP and, in Parent’s estimation, were ignored. Tr. 53: 12-23. Parent specifically noted, “I think that my concerns were ignored…when I look back at the IEP, there’s one line that says, the parent expressed [] concern regarding special education placement in a community setting….I said so much more than that [] during the meeting.” Tr. 53:18-23.
The DOE provided a prior written notice (“PWN”) dated August 22, 2023. Ex. 2. As the DOE offered no witness testimony, it is not clear when this document was provided to Parent. The PWN did not note any of Parent’s concerns expressed during the IEP meeting and in the section of the PWN listing the material the DOE used to decide on its proposed action, the DOE did not list the 2019 neuropsychological evaluation as an item relied on. Ex. 3-2.
After the IEP, the DOE provided Parent with a school location letter (“SLL”), identifying [REDACTED] (“DOE Middle School”) as the school that would implement Student’s 2023 IEP. Ex. 4, Ex. O-3. After receiving the SLL, Parent attempted to contact the DOE to visit the school to confirm that it would be able to meet Student’s needs. Ex. O-3. Despite multiple outreach attempts by Parent, including calls, voicemails, and direct emails to the Committee on Special Education (“CSE”), the DOE did not respond to any of parent’s outreach efforts. Ex. O-3.
On August 22, 2022, Parent gave the DOE written notice that she intended to unilaterally place Student at Private School for the upcoming 2022-2023 school year. Ex. B. The DOE did not respond to Parent’s written notice.
Student returned to Private School for the 2022-23 school year, a school he had attended during the three prior school years. Ex. O-2. Student began attending Private School during the 2019-2020 school year, after the DOE deferred Student’s IEP to the DOE’s Central Based Support Team (“CBST”) for placement in a nonpublic school. Ex. O-2.
Private School’s school model focuses on small class sizes with no class containing more than 12 students. Ex. P-1. Each class at Private School is cotaught with two teachers, at least one of which with a master’s degree in special education. Ex. P-1. In addition to classroom instruction, during the 2023-23 school year, Student was provided with cognitive-linguistic focused speech-language therapy in a small group of five students. Ex. L-1. Student was also provided with counseling supports in a small group of five students. Ex. M-1.
During Private School’s intake, Director reviewed Student’s neuropsychological evaluation. Tr. 77:4-10. Private School also conducted its own assessments to place Student in appropriate classes. Tr. 77:22-78:25. Director testified that given Student’s needs, Private School concluded that Private School would be appropriate for Student. Director shared about the ways in which Private School’s curriculum helped support students with speech language needs. She stated, “all of our classes are the combined curriculum of the speech and language needs of [Student].” Tr.82:16-18. Director further explained how school staff work collaboratively to ensure that students’ academic instruction helps to support language therapy needs. Tr. 85:12-86:6. Director explained that Private School’s “classroom teachers and [] language therapists collaborate to ensure that the goals that are set within the language therapy sessions are also part of all content areas. So [] the new sounds are being addressed within language therapy. Then these words would also be part of the review and his social studies class…So these are language based needs that help [Student] to understand the content that he is learning in all of his classes.” Tr. 85:12-19, 85:24-86:1. Director also explained that the school provided student with weekly speech language pull-out service sessions that helps support Student’s syntactical, semantic, and social pragmatic needs Tr: 82:18-83:3. Director further noted that Student’s speech therapy sessions were provided by a licensed and certified speech pathologist. Tr: 85:1-3.
Director stated declaratively that she believed that Student was appropriately placed at Private School. Tr. 90:11-25. Direct stating that given “[t]he multiplicity of [Student’s] needs, also the availability and being part of a small school setting with even smaller groupings for his reading, writing, math, and social development needs, [Private School] was the appropriate placement for [Student].” Tr. 90:21-25.
On April 14 and May 4, 2023, Parent obtained an independent neuropsychological evaluation for Student. Ex. D. The evaluation noted note Student continues to have limited ability to decode unknown words and has low fluency skills. Ex. D-2. Despite his challenges, the evaluation noted that the Student is making progress in developing his reading and writing skills and recommended that Student continue attending a full-time small, supportive special education class within a small special education school. Ex. D-4.
When evaluating Student, Neuropsychologist reviewed Student’s IEP, reports from Private School, a DOE psychoeducational evaluation, and a 2019 neuropsychological evaluation. Tr. 102:19-103:9. Neuropsychologist explained that he is familiar with ICT classrooms because, although he did not observe Student in his last ICT class, Neuropsychologist has observed other students in ICT classes as recently as this past spring. Tr. 98:15-20. Neuropsychologist has also observed classes with SETSS services over the past academic year, though he did not observe Student in a SETSS class. Tr. 99:1-13. Neuropsychologist is also familiar with Private School and has referred a “good number” of the more than 3,000 students he has evaluated to Private school; Neuropsychologist has never been paid by Private School for these referrals. Tr. 100:12-101:2.
Neuropsychologist testified credibly that, based on his evaluation, Student needed the type of support he was receiving at Private School and was appropriately placed at Private School. Ex. Q-4. Neuropsychologist specifically noted that Student “requires the kind of direct and specialized multisensory reading instruction that he has been provided with [at Private School]. He is placed among other students with language-based learning disabilities, of similar levels of cognitive development, and without significant social emotional or behavioral challenges, all factors that contribute to an appropriate educational placement for him.” Ex. Q-4.
CONCLUSIONS OF LAW AND ANALYSIS
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)). 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 N.Y.C.R.R. § 200.5(j)(4)(ii).
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.
Under the three-prong test established by the Supreme Court in Sch. Comm. of Burlington, Mass, v. Dep’t of Educ. of Mass, 471 U.S. 359 (1985) and Florence County. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), parents who unilaterally place their children in private school are entitled to reimbursement from the school district if the services offered by the school district were inadequate or inappropriate, the services selected by the parent(s) were appropriate, and equitable considerations support the parent’s claim. See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert. denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 U.S. LEXIS 11520 (Oct. 15, 2007). The first prong of the Burlington-Carter test encompasses whether the student’s IEP provided a FAPE. Brock v. Dutton, 2015 U.S. Dist. LEXIS 44254, *14 (S.D.N.Y. March 31, 2015).
The Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007) (quoting Frank G. v. Bd. of Educ., 459 F.3d at 364-65). The private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.” Frank G. v. Bd. of Educ., 459 F.3d at 364.
The final prong of the Burlington-Carter test involves the balancing of the equities. 20 U.S.C. § 1412(a)(10)(C)(iii). Reimbursement may be limited or denied if the parent failed to act reasonably, did not cooperate with the DOE’s attempts to evaluate the student, or failed to provide proper notice of the parent’s rejection of the student’s placement. See 20 U.S.C. § 1412(a)(10)(C)(iii). When considering whether the parent has shown that the equities weigh in the parent’s favor, it is important to consider “whether the [parent] cooperated with the district in its efforts to meet its obligations under the IDEA.” C.L v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).
Throughout the hearing process, a school district bears the burden to show that it (1) complied with the IDEA’s procedural requirements; and (2) designed an IEP reasonably calculated to confer educational benefit on the student. C.B. ex rel W.B. v. N.Y. City Dep’t of Educ., 2005 U.S. Dist. LEXIS 15215, *37 (E.D.N.Y. June 10, 2005); 20 U.S.C. 1415(i)(2)(C)(iii); see also Walczak, 142 F.3d 119. However, “a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” N.Y. Educ. § 4404(1)(c).
Burlington-Carter Test Prong One
As to Prong I of the Burlington-Carter test, the DOE failed to meet its burden at hearing. DOE submitted documentary evidence and argued that the DOE offered a FAPE but made no specific arguments addressing the allegations in Parent’s DPC except to argue that “documentary evidence may be sufficient to establish that the Student was offered a FAPE. Tr. 109:16-21, citing Application of the New York City Department of Education, Appeal No. 23-005 (SRO NY 2023).
The Supreme Court has found a reviewing court may expect school district staff “to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S.Ct. 988, 1002 (2017). In rare instances, the SRO has sustained IHO determinations, based on documentary evidence alone, that the district provided a FAPE. See e.g. Application of the New York City Department of Education, Appeal No. 23-005. However, the facts of this case are distinguishable. In Appeal 23-005 the program recommended by the district and the program the student was receiving in their private school were nearly identical; in fact , the private school’s director in that case admitted on cross-examination that the private school provided the student with the same class ratio and related services as recommended by the IEP, except that the private school substituted music therapy for IEP-mandated counseling, a service the IHO found was not necessary to provide a FAPE. Appeal 23-005 at 5. Concluding that there was no difference between the program recommended on the student’s IEP and the program the student was receiving at their unilateral placement, the IHO concluded that the district had satisfied prong one of the Burlington-Carter test. Id. In this case, by contrast, although Private School provides Student the same related services as are recommended on Student’s IEP, the ICT class recommended on Student’s IEP is substantively different from the Private School classroom which provides a small, self-contained class of no more than 12 students. See Exs. G-1 and P-1. Parent alleges that Student’s IEP was procedurally and substantively inappropriate for a variety of reasons, including the specific allegation that “[t]he CSE’s recommendation for a community school when all information and materials point to [Student] needing a small, intensive supportive educational environment is a blatant disregard of [Student’s] needs.” Ex. A-7. The DOE failed to address this at hearing.
Moreover, substantive evidence shows that the IEP is inappropriate in light of Student’s individual circumstances, including Student substantive deficits in reading and language comprehension, including particularly poor letter-word identification and passage comprehension skills.. Ex. C-15, 5-3, 5. In light of these deficits, Student’s 2019 and 2023 neuropsychological evaluations both recommend that Student be placed in a small classroom setting designed to support children with language-based learning disabilities. Exs. C-16 and D-4. Student’s May 2023 neuropsychological evaluation specifically states that, “[g]iven the constellation of [Student’s] needs, he continues placement in a full-time small, supportive special education class within a small, special education school.” Ex. D-4. Furthermore Neuropsychologist explicitly testified that, given his familiarity with ICT programs and with Student’s profile, “[a]n ICT classroom in a public school is inappropriately large for [Student].” Ex. Q-4. Elaborating on this assertion, Neuropsychologist added, “[Student] failed to make appropriate progress in that setting, even with related services and SETSS support previously. At the time of my evaluation, [Student] continued to require an intensive level of support and attention to access the curriculum. Ex. Q-4.
Despite all the evidence demonstrating that Student requires a small specialized setting, the DOE at no point explained how an ICT class in a public school is appropriate for Student, nor did it provide any evidence contradicting the evidence and testimony proffered by Parent. As such, the DOE has failed to offer cogent and responsive explanations for their decision. Therefore, I cannot find that the DOE offered Student a FAPE for the 2022-23 school year. In the absence of any defense, or even explanation, from the DOE concerning its recommendation of an ICT placement for Student, and with evidence and credible testimony from Parent alleging that the placement is inappropriate, the weight of the evidence in this matter supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer Student a FAPE for the 2022-2023 school year.
Burlington-Carter Test Prong Two: The Appropriateness of the Parent’s Unilateral Placement
A unilateral private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The relevant standard to apply is whether “the unilateral private placement . . . provides educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115 (quotations omitted). No single factor is dispositive in this analysis. Id. The private placement does not necessarily need to provide certified special education teachers or every special service that could assist in maximizing Student’s potential. Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 2020 U.S. Dist. LEXIS 16007 (S.D.N.Y. 2020), aff’d 2020 U.S. App. LEXIS 39739 (2d Cir. 2020) (citation omitted). Moreover, parental placements are not subject to the same mainstreaming requirements as a school district placement. Frank G. v. Bd. of Educ., 459 F. 3d at 364.
The DOE argued that Parent had not met her burden in providing that Private School was appropriate, contending that private school was not meeting Student’s needs. Tr. 109:22-110:4. However, I find that credibly evidence submitted by Parent demonstrates that Private School is an appropriate for Student.
As noted above, Student’s 2019 and 2023 neuropsychological evaluations both recommend that Student be placed in a small classroom setting focused on supporting students with language-based disabilities. See Exs. C-16 and D-4. Director testified credibly that Private School is a school for children with language-based learning disabilities. See P-1, see also Tr. 91:16-25. When asked directly about the appropriateness of Private School, Director remarked that given, “[t]he multiplicity of [Student’s] needs, also the availability and being part of a small school setting with even smaller groupings for his reading, writing, math, and social development needs, [Private School] was the appropriate placement for [Student].”
Neuropsychologist’s testimony, based on his evaluation of Student, also demonstrate that the type of small classroom setting offered by Private School was appropriate. He explained, “[t]he evaluation revealed that [Student] was struggling with a number of factors, including basic reading skills of word recognition and decoding, which significantly limit his reading fluency, as well as handwriting speed and the overall content and organization of his written language…I therefore recommended continued placement in a full-time special education school setting that could provide a small classroom setting with a low student to teacher ratio with direct, individualized multisensory instruction, frequent teacher support, and placement with students with similar cognitive abilities and language-based learning disabilities, without significant social-emotional or behavioral challenges.” Ex. Q-3.
I find that Parent has met her burden to prove that the private program offers an educational program that meets Student’s needs under Prong Two of the Burlington/Carter standard. The weight of the evidence establishes that Student’s individual special education needs are being addressed by the Private School and that the instruction offered is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364.
Burlington-Carter Test Prong Three: Equitable Factors
Equitable factors are relevant to fashioning relief under the IDEA. Burlington, 471 U.S. at 374; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 (2d Cir., 2014); M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000) (citations omitted); see also Carter, 510 U.S. at 16 (“Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”). Reimbursement of private school tuition may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412(a)(10)(C)(iii); 34 CFR § 300.148(d); see S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 U.S. Dist. LEXIS 11354 (S.D.N.Y. Feb. 4, 2008); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 (S.D.N.Y. 2005).
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” 20 U.S.C. § 1412(a)(10)(C)(iii)(I); see 34 C.F.R. § 300.148(d)(1). This statutory requirement “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools.” Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).
In this case, Parent attended the IEP meeting and expressed her disagreement with the recommendations at the meeting. See Ex. 2-1, Tr. 52:20-53:11. Parent also attempted to contact the proposed school and was unable to do so because the staff member listed on the letter never responded to her. Ex. O-3. Parent provided ten-day notice of her intent to unilaterally place Student at Private School for the 2022-23 school year (Ex. B) however, no evidence was submitted at hearing describing the DOE’s response to the ten-day letter. As such, I find that equitable factors support Parent’s requested tuition funding.
By way of relief, Parent seeks reimbursement for tuition paid to Private School during the 2022-2023 school year. Parent submitted a contract with Private School (Ex. E.), proving Student’s enrollment in Private School, as well as a tuition affidavit, outlining the costs associated with Student’s attendance at Private School for the 2022-2023 school year. The tuition affidavit states that Parent paid a total of $71,500.00 to Private School for Student’s attendance during the 2022-2023 school year. While the amount of tuition at Private School is not insignificant, I do not find that the tuition costs are excessive or unreasonable, given Private School’s educational program for Student. Carter, 510 U.S. 7, 15-16. After considering the entire record presented at hearing, I find that the equities support Parent’s requested relief.
OTHER RELIEF SOUGHT
In addition to tuition funding for Student’s attendance at the Private School, Parent also seeks an IEE in the form of reimbursement for a neuropsychological evaluation. Ex. A-8. At hearing, Parent Counsel clarified that Parent was not seeking a new evaluation, but was seeking reimbursement for the independent evaluation Parent procured between April and May 2023. Tr. 107:16-108:1. Parent Counsel explained that, in the DPC, Parent disagreed with the DOE’s July 2022 psychoeducational evaluation and requested an “immediate educational evaluation in the form of the neuropsychological evaluation” that had already been conducted. Tr. 108: 6-21.
An IEE is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 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. 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.” 546 U.S. 49, 60-61 (2005).
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)).
If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE. 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. 34 C.F.R. § 300.502(e)(1); 8 NYCRR § 200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989). 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).
When a parent disagrees with a school district’s evaluation and requests an IEE at public expense, the school district “must, without unnecessary delay,” either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv) (emphasis added).
In the instant case, Parent asserted her disagreement with the DOE’s 2022 psychoeducational evaluation in her DPC dated May 24, 2023. Ex. A-4. Although parents are not required to provide an explanation for their disagreement with an evaluation when requesting an IEE, the Parent in this case articulated six concerns with the 2022 evaluation. Id. There is no evidence that Parent requested an IEE prior to the DPC. Therefore, while the DOE was not obligated provide parent with an IEE prior to the filing of Parent’s DPC, I find that the DPC triggered the DOE’s IEE obligations under 34 C.F.R. § 300.502(b)(2)(i)-(ii) and 8 NYCRR § 200.5(g)(1)(iv). There is no evidence that after the DPC was filed, the DOE took either of the two options available to it: (1) ensure that an IEE was provided or (2) initiate a hearing to establish that its 2022 evaluation was appropriate. In fact, the District’s due process response makes no reference to an IEE, the DOE offered no witness testimony to explain its evaluation, and offered no evidence to rebut the six concerns with the evaluation articulated by Parent in her DPC. IHO Ex. I. As such, I find that the DOE failed to comply with the requirements of 34 C.F.R. § 300.502(b)(2)(i)-(ii) and 8 NYCRR § 200.5(g)(1)(iv).
As relief, Parent seeks reimbursement for the cost of a 2023 neuropsychological evaluation conducted by Neuropsychologist. Ex. D, R. This evaluation took place in April and May 2023 and was finalized on May 17, 2023, six days before the Parent filed the DPC which triggered the DOE’s IEE obligations. Ex. D, Ex. A. Therefore, although Parent was entitled to an IEE when the DOE failed to respond to her request, reimbursement of a prior-completed IEE puts neither the student nor the parent in the position they would have been in but for the DOE’s failure to comply with state and federal IEE regulations. Therefore, I find that reimbursement is not an equitable remedy for the DOE’s failure to comply with IEE procedures and decline to order reimbursement for the evaluation.
However, to ensure that Student receives a FAPE going forward, I will order that the CSE team working with Student receive training on the DOE’s IEE obligations under 34 C.F.R. § 300.502(b)(2)(i)-(ii) and 8 NYCRR § 200.5(g)(1)(iv). See Forest Grove Sch. Dist. v. Student, No. 3:12-cv-01837-AC, 2014 U.S. Dist. LEXIS 78571, at *105 (D. Or. June 9, 2014) (recognizing that requiring training of all district personnel on proper IDEA procedure was an available remedy); Pharr-San Juan-Alamo Independent School District, 109 LRP 72844, 299-SE-0808 (Tx. SEA 2009) (requiring training on IDEA requirements pertaining to progress reports for all special education and related services personnel responsible for providing progress reports); see also L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 125 (2d Cir. 2016) (citing Burlington, 471 U.S. at 369) (Establishing that IHOs have broad authority regarding relief, “restrained only by the Supreme Court’s directive that ‘the relief is to be appropriate’ in light of the purpose of the Act.”).
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. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
Based above the above Findings of Fact, it is hereby:
1. ORDERED, the DOE shall reimburse Parent for the cost of Student’s placement at Private School for the 2022-23 school year in the amount of $71,500.00.
2. ORDERED the DOE shall provide training for all CSE staff members assigned to Student’s case on a) the DOE’s obligation to furnish IEEs to requesting parents under 34 C.F.R. § 300.502(b)(2)(i)-(ii) and 8 NYCRR § 200.5(g)(1)(iv); and b) the DOE’s process for providing such IEEs to requesting parents.
SO ORDERED.
DATED: 10/2/2023
Ashley Grant (signed electronically)
Impartial Hearing Officer
Ashley Grant
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
DISTRICT’S EVIDENCE
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| 1 | Individualized Education Program (IEP) | 08/03/2022 | 28 |
| 2 | Individualized Education Program (IEP) Attendance Page | 08/03/2022 | 1 |
| 3 | Prior Written Notice | 08/22/2022 | 4 |
| 4 | School Location Letter | 08/22/2022 | 2 |
| 5 | Psychoeducational Evaluation | 07/26/2022 | 5 |
| 6 | Social History Assessment | 07/26/2022 | 2 |
| 7 | Counseling Progress Report | Spring 2022 | 2 |
| 8 | Speech and Language Report | Spring 2022 | 2 |
| 9 | Teacher Report | 06/01/2022 | 7 |
| 10 | Due Process Complaint | 05/24/2023 | 9 |
PARENTS’ EVIDENCE
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| A | Request for Impartial Hearing | 5/24/23 | 8 |
| B | Notice of Unilateral Placement | 8/22/22 | 3 |
| C | Neuropsychological Evaluation | 1/2019-2/2019 | 22 |
| D | Neuropsychological Evaluation | 4/2023-5/2023 | 7 |
| E | Contract | 3/8/22 | 4 |
| F | Tuition Affidavit | 6/7/23 | 2 |
| G | [REDACTED] Program Description | 2022-2023 | 2 |
| H | Class Schedule | 9/23/22 | 2 |
| I | Attendance Report | 9/2022-6/2023 | 1 |
| J | Semester 1 Report Card | 2022-2023 | 14 |
| K | Semester 2 Report Card | 2022-2023 | 14 |
| L | Speech and Language Report | 2022-2023 | 2 |
| M | Counseling Progress Report | 6/15/23 | 2 |
| N | Instructor/Teacher Classroom Report | 5/1/23 | 6 |
| O | [Parent] Affidavit | 7/25/2023 | 5 |
| P | [Director] Affidavit | undated | 6 |
| Q | [Neuropsychologist] Affidavit | Undated | 5 |
| R | Proof of Payment – Neuro | 5/17/2023 | 4 |
IMPARTIAL HEARING OFFICER’S EVIDENCE
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| I | Due process response & email | 7/12/2023 | 12 |
| II | Extension order | 8/1/2023 | 1 |
Footnotes
[1] Prior to filing their DPC, parent procured an independent neuropsychological evaluation at their own expense. The evaluations for this independent evaluation was conducted on 4/14/2023 and 5/4/2023.
[2] The Parent’s exhibits are cited as “Ex.” followed by a letter, and IHO exhibits are cited as “Ex.” followed by a roman numeral. The transcript is cited by “Tr.” followed by a page number.
[3] I find that the Parent’s 504 claims are subsumed within the framework of the IDEA. The Parent did not identify any specific regulatory requirement under 504 that is not subsumed under IDEA and that would merit separate analysis and discussion. Therefore, I will not separately analyze the 504 claims raised in the complaint.