NY IHO #251436: New York City... | Special Education Law

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: 251436

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 08/10/2023 Pre-Hearing Conference

09/11/2023

09/12/2023

Actual Record Close Date: 09/16/2023

Decision Date: 09/17/2023

Hearing Officer: Daniel Ajello Esq. Hearing Officer’s Finding of Fact & Decision

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/10/2023

(All Parties Appeared Via Teleconference)

[REDACTED], ESQ., Attorney — Student

[REDACTED], ESQ., District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/11/2023

(All Parties Appeared Via Teleconference)

[REDACTED], ESQ., Attorney — Student

[REDACTED], ESQ., District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/12/2023

(All Parties Appeared Via Teleconference)

[REDACTED], ESQ., Attorney — Student

[REDACTED], Intern — Student

[REDACTED], ESQ., District Representative — DOE

Hearing Officer’s Finding of Fact & Decision — DOE

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Exhibit Name Date Pages Entered 08/10/2023 A Parent’s Impartial Hearing Request 07/10/23 7

Due Process Complaint (DPC) Entered 09/11/2023 B Prior Written Notice 05/28/21 3 C Individualized Education Program (IEP) 06/21/22 29 D Rate Sheets Current 3 E Ten Day Notice (TDN) 06/16/23 2 F [REDACTED] Parental Guarantee of 2023-2024 Tuition 06/25/23 2 G Tuition Statement 08/10/23 1 H [REDACTED] Class Schedule Undated 1 I [REDACTED] Program Brochure Undated 2 J [REDACTED] Academic Annual Review 04/18/23 4 K [REDACTED] Occupational Therapy Annual Review 04/26/23 4 L [REDACTED] Speech Language Annual Review 04/21/23 4 M [REDACTED] Functional Behavior Assessment (FBA)04/19/23 4 N [REDACTED] Behavior Intervention Plan (BIP) 04/19/23 3 O Affidavit of [REDACTED] 09/06/23 2 P Affidavit of [REDACTED] 09/06/23 9

DEPARTMENT OF EDUCATION (DOE)

None Hearing Officer’s Finding of Fact & Decision

IMPARTIAL HEARING OFFICER

Entered 08/10/2023 I Notice of Appointment, 07/13/2023, 4 pages II Teleconference Notice, 07/13/2023, 1 page III Notice of Appearance, 07/27/2023, 1 page Hearing Officer’s Finding of Fact & Decision

INTRODUCTION

On 07/13/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Pre-Hearing Conference was held, on 08/10/2023.

Parent Attorney noted that an IEP meeting took place, in May of 2023, however, the Parent has not received a copy of the IEP. (T 6)

Hearing commenced, on 09/11/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC.

Ultimately, the DOE opted not to defend against the allegations contained in the DPC, and conceded it did not offer the Student a FAPE, for the 23-24 school year. (T 16)

Hearing continued, and concluded, on 09/12/2023.

Parent Attorney withdrew the request for an FBA and BIP. (T 26)

Parent Attorney confirmed the Student is attending the UP [REDACTED]. (T 26)

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

Due Process Complaint (DPC) relates to the 23/24 School Year, and alleges that the Department of Education (DOE) failed to offer the student a free appropriate public education (FAPE) for the '23/'24 school year. (Ex A 5)

Parent seeks an Order awarding:

- DOE funding, via reimbursement, of Student, 23-24 Tuition, at [REDACTED]

(Unilateral Placement – UP). (Ex A 6, T 17 & 27); and

- Various Independent Educational Evaluations, as detailed below.

(Ex A 4-5, T 27)

At Hearing, of 09/12/2023, the Parent Attorney withdrew the request for an FBA and BIP. Hearing Officer’s Finding of Fact & Decision

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

THE POSITION OF EACH PARTY

The DOE opted not to defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 23-24 school year. The DOE contested no part of the Parent’s allegations or sought after relief. (T 16)

At Hearing, the Parent supported its position via Documentary Evidence and Testimony. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below:

A Parent’s Impartial Hearing Request/Due Process Complaint (DPC) 07/10/2023

Details allegations of a denial FAPE for the 23-24 school year, including, setting forth areas of Student challenge related to special education, and the Student’s recent educational history. (Ex A 1-3)

An IEP meeting was held, on 05/02/2023, and the Parent has not yet received a copy of the IEP. (Ex A 2)

Parent communicated via TDN 6/21/2022, explaining ongoing concerns, and notifying the DOE of the intent to enroll the Student at [REDACTED] (Unilateral Placement – UP). (Ex A 3, Ex E)

The DPC sets forth allegations relating to the alleged failure to offer the Student a FAPE, including a failure to: properly evaluate the Student (Ex A 3); and a failure to offer an appropriate Student program. (Ex A 3-4)

Relief sought includes:

- A finding of a denial of FAPE, for the 23-24 school year;

- DOE funding of independent educational evaluations, at rates not to exceed particular amounts, including: Hearing Officer’s Finding of Fact & Decision o Neuropsychological Evaluation ($[REDACTED])

o Bilingual Speech Language (SLT) Evaluation ($[REDACTED])

o Occupational Therapy (OT) Evaluation ($[REDACTED])

o Physical Therapy (PT) Evaluation ($[REDACTED])

o Assistive Technology (AT) Evaluation ($[REDACTED])

o ABA Skills Assessment via a Licensed Behavior Analyst or Board Certified Behavior Analyst (BCBA) ($[REDACTED]) (Ex A 5)

- DOE funding of Student 23-24 Tuition for attendance at [REDACTED] (UP), including AT and transportation (Ex A 6)

B Prior Written Notice 05/28/21

DOE provides notice of Mandated Three Year Reevaluation.

C Individualized Education Program (IEP) 06/21/22

IEP, of 06/21/2022, confirms Student entitlement to special education services, with a classification of Autism,. (Ex C 1)

Sets forth areas of Student delay and special education need, including the need for 1:1 support. (Ex C 1-10)

Recommends:

o Adaptive Physical Education (Ex C 20)

o Special Class 6:1+1

o OT

o PCAT

o SLT

o Paraprofessional Full Time (Ex C 21)

o 12 month program (Ex C 22)

o Special Transportation (Ex C 25-26)

D Rate Sheets Current

Agency rates for various Assessments and services. Hearing Officer’s Finding of Fact & Decision

E Ten Day Notice (TDN) 06/16/23

Parent notifies the DOE of:

- IEP meeting took place, on 05/02/2023, and an IEP has not yet been received;

- Parent has not received any information from the DOE regarding a placement where Student could receive an appropriate public education for the 2023-2024

school year;

- Student requires a program with a small classroom setting where he can receive one-to-one attention throughout the school day; and requires a program that can implement a sensory diet, a structured behavioral plan, and provide an evidence-based methodology for students with Autism, such as ABA therapy;

- Based on discussions, held at the 05/02/2023 IEP meeting, “my understanding is that the DOE has not made any changes to the IEP from the prior year, and I disagree with that program.” (Ex E 1);

- “In the absence of an appropriate program for [Student], please be advised that I intend to enroll [Student] at [UP], a private school…for the twelve month 2023-2024 school year” (Ex E 1); and

- “I will be seeking public funding and/or reimbursement from the DOE for the cost of tuition, related services, and transportation for the 2023-2024 school year.” (Ex E 1)

F [REDACTED] Parental Guarantee of 2023-2024 Tuition 06/25/23

UP Contract sets forth terms of Student enrollment, for the 2023-2024 school year:

o Student will attend the [REDACTED] ([REDACTED]) program at the Middle School level;

o Student’s total (40) forty week 10-month program cost is

$[REDACTED] which includes related services and a designated 1:1 paraprofessional; and

o The Student’s total (6) six weeks Summer program cost is

$[REDACTED] which includes related services and a designated 1:1 paraprofessional. Hearing Officer’s Finding of Fact & Decision

Total 23-24 Student Tuition is set for as $[REDACTED].

Parent is obligated to payment, under terms of the Contract, via signature. (Ex F 2)

G Tuition Statement 08/10/23

There remains a balance due, for the Student’s 23-24 Tuition, of $[REDACTED].

H [REDACTED] Class Schedule Undated

Sets forth Student’s academic and related service scheduled, for the 22-23 school year.

I [REDACTED] Program Brochure Undated

Sets forth general characteristics of the UP, which include:

- [REDACTED]

o for students with Autism Spectrum Disorders, ages 5-21;

o full day 12-month program

o serves students who require a high degree of individualized attention o utilizes Applied Behavior Analysis (ABA)

o Behavior Specialists analyze maladaptive behaviors, via an FBA, and resulting BIP

o Highly structured learning environment (Ex I 1)

o Individualized Academic Setting

o Language Skills Development

o Social Skills Training

o Opportunities for Integration

o Transition Planning

o Staff is Certified and Trained

o Classes have a maximum of six students (Ex I 2)

J [REDACTED] Academic Annual Review 04/18/23

Student Annual Review includes:

- Student attends the [REDACTED], in a 7:1 class ratio, and related services Hearing Officer’s Finding of Fact & Decision of SLT and OT (Ex J 1);

- Details Student challenges, supports, and goals, in areas of:

o Executive Functioning (Ex J 2)

o Reading

o Written Expression

o Math (Ex J 3)

o Daily Living Skills (Ex J 3-4)

Report Summary concludes Student: requires a 1:1 approach for learning in group instruction and individual work; 1:1 assistance is essential for safety, staying on task, redirection and additional prompting with academics and daily living skills; paraprofessional redirects Student during certain behaviors; and Student benefits from a structured environment, repetition, extra time, and modified worksheets for progress to take place. (Ex J 4)

Report recommends Student continue in the 6:1:1 educational setting with a 1:! Paraprofessional, in the [REDACTED], at the UP, for an extended 12 month school year, to prevent regression. (Ex J 4)

K [REDACTED] Occupational Therapy Annual Review 04/26/23

Sets forth areas of Student challenge, such as sensory processing, and motor skills. (Ex K 2-3)

Sets forth goals and recommends OT services, for the 23-24 school year. (Ex K 3)

L [REDACTED] Speech Language Annual Review 04/21/23

Sets forth areas of Student challenge, such as receptive and expressive language. (Ex L 2-3)

Sets forth goals and recommends SLT services, for the 23-24 school year. (Ex L 3)

M [REDACTED] Functional Behavior Assessment 04/19/23

Sets forth details regarding Student’s adverse behaviors, which interfere with his education. Hearing Officer’s Finding of Fact & Decision

N [REDACTED] Behavior Intervention Plan 04/19/23

Details interventions to address adverse Student behaviors revealed by FBA (Ex M).

O Affidavit of [REDACTED] 09/06/23

Student’s mother provides Testimony, that includes:

- Being unaware of any DOE evaluations in the last three years;

- Attending Student’s, 05/02/2023, IEP meeting;

- Having not received an IEP related to the 05/02/2023 IEP meeting;

- Having not received a Student school location letter, for the 23-24 school year (Ex O 1);

- On 06/16/2023, sending, via attorney, a TDN, to the DOE (Ex E);

- A response was not received, relating to the TDN, and Student began attending the UP, in July of 2023;

- Household income is less than $20,000.00 per year, including Social Security Income, received for the Student;

- An inability to pay the Student’s 23-24 UP Tuition;

- A request for DOE direct funding of Student’s 23-24 UP Tuition. (Ex O 2)

P Affidavit of [REDACTED] 09/06/23

Educational Program Director, at the UP, provided Testimony that included:

- Qualifications and experience (Ex P 1-2);

- The UP is a private special education school for children with Autism Spectrum Disorders, where her role is to interact with student, oversee school personnel, work with the admissions office, and participate in the Committee on Special Education (CSE) process (Ex P 2);

- UP students have challenges relating to social skills, speech and language skills, sensory integration deficits, perseverative behaviors and low muscle tone, all of which impede ability to participate in and gain access to instruction (Ex P 1-2);

- UP provides: specialized programming specifically tailored to allow students Hearing Officer’s Finding of Fact & Decision to access learning; instruction is individualized; and New York State Common Core Standards are followed (Ex P 3);

- A review of staff qualifications, support staff, and training (Ex P 3-4);

- Description of ABA, and how it is utilized to reduce problem behaviors;

- Strategies used to help students self-regulate behavior, and address challenging behaviors (Ex P 4-5);

- Sensory Integration to address difficulty with sensory integration;

- Behavior Management Plans are developed for all students (Ex P 5);

- Social Skills classes are provided (Ex P 5-6);

- A review of components of the UP [REDACTED], which includes:

o Strict ABA instruction

o Vocational goals identified and customized (Ex P 6)

o An Admission process

o Student assessment

- Familiarity with the Student, who has attended the UP, since October 2022 (Ex

P 7);

- Student UP services and supports include:

o The use of ABA in all aspects of his day, including related services o A 6:1:1 class ratio o A paraprofessional o SLT of 3 individual and 1 group sessions weekly o A BIP (Ex P 8)

- Student has made progress in all areas since beginning to attend the UP (Ex P

8-9); and

- The UP serves as an appropriate program, for the Student, and is able to meet all his areas of need. (Ex P 9)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400- 1482) are (1) to ensure that students with disabilities have available to them a FAPE that Hearing Officer’s Finding of Fact & Decision emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A][B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 Hearing Officer’s Finding of Fact & Decision

WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR Hearing Officer’s Finding of Fact & Decision

300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

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

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). Hearing Officer’s Finding of Fact & Decision

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

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

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student Hearing Officer’s Finding of Fact & Decision from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2023-2024 School Year The DOE opted not to present a defense to the Parent’s allegations.

The district has presented no witnesses in this matter. Although an IEP meeting has apparently taken place, for the 23-24 school year, no IEP has been delivered to the Parent, nor has one been submitted into evidence. (Ex A, O 1, T 6)

I conclude that the district has not met its burden to establish that it provided a FAPE, for the 23-24 school year.

The DOE has not evidenced development of an appropriate IEP for the commencement of the 23-24 school year.

The DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 23-24 school year.

I find the DOE failed to offer the Student a FAPE for the 23-24 school year.

UP Placement for the 23-24 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 23-24 school year.

The credibility of the documentary and testamentary evidence was not controverted by Hearing Officer’s Finding of Fact & Decision the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex C, E, H, I, J, K, L, M, N, O & P)

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

I find UP provides an appropriate education and program for the Student for the 23-24 school year.

TUITION FUNDING 23-24 School Year

I find the Parent is entitled to Student’s UP Tuition funding, via the DOE, for the UP, 2324 school year.

Parent evidenced an appropriate TDN. (Ex E)

The UP Contract evidences the terms of Student enrollment, for the 2023-2024 school year:

o Student will attend the Behavioral Academic & Social Enrichment (B.A.S.E.)

program at the Middle School level;

o Student’s total (40) forty week 10-month program cost is $[REDACTED] which includes related services and a designated 1:1 paraprofessional; and o The Student’s total (6) six weeks Summer program cost is $[REDACTED] which includes related services and a designated 1:1 paraprofessional.

Total 23-24 Student Tuition is set for as $[REDACTED].

Parent is obligated to payment, under terms of the Contract, via signature. (Ex F 2)

The Tuition amount, of $[REDACTED], is presently due and owing. (Ex G)

The DOE has denied a FAPE to the Student for the 23-24 school year.

Parent testifies she is unable to pay the UP tuition based on her limited income. (Ex O 2)

With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not Hearing Officer’s Finding of Fact & Decision made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here . . . parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769

F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

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

I find the Parent meets the burden of production and persuasion with respect to whether they have the financial resources to "front" the costs of a unilateral placement and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 23-24 school year.

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

TRANSPORTATION

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

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

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

Parent seeks DOE funding of Student 23-24 Tuition for attendance at [REDACTED] (UP), including AT and transportation (Ex A 6)

The last Student IEP calls for Special Transportation. (Ex C 25-26)

Parent advised the DOE of the need for transportation services, via TDN. (Ex E 1)

The DOE raises no objection to continuing special education transportation.

I find evidence supports the provision of a special education transportation for the Student for the 23-24 school year. Hearing Officer’s Finding of Fact & Decision

INDEPENDENT EDUCATIONAL EVALUATIONS

The IDEA provides parents with a number of procedural safeguards. Among them is the "right . . . to obtain an independent educational evaluation of the child," which in turn means "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" (34 CFR 300.502[a][1], [3][i]).

Parents who express a disagreement with an evaluation conducted by the district also have the right to seek an IEE conducted at public expense in some circumstances (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; see also Lauren W. v. DeFlaminis, 480 F.3d 259, 275 [3d Cir. 2007] [explaining that parents do not have the right to an IEE at public expense where parents actually agreed with the school's evaluation]; Edie F. v. River Falls Sch. Dist., 243 F.3d 329, 335 [7th Cir. 2001] [explaining that parents do not have the right to an IEE at public expense where their disagreement was with the result of the child's IEP not with a particular diagnosis or methodology of evaluation]; M.C. v. Katonah/Lewisboro Union Free Sch. Dist., 2012 WL 834350, at *11–12 [S.D.N.Y. Mar. 5, 2012]; M.V. v. Shenendehowa Cent. Sch. Dist., 2013 WL 936438, at *6 [N.D.N.Y. Mar. 8, 2013]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense that was sought for additional information]). "If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation [m]ust be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child" (34 CFR 300.502[c])

If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv]). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although the district will not be required to provide it at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]; see A.H. v. Colonial Sch. Dist., 2019 WL 3021232, at *3 [3d Cir. July 10, 2019]). Additionally, both federal and State regulations provide that "[a] parent Hearing Officer’s Finding of Fact & Decision is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). The time period for asserting claims based upon a disagreement with a school district's evaluation can be shorter than the mandatory three-year reevaluation period in some cases (see D.S., 357 F. Supp. 3d at 179).

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

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

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

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

Under 200.5 (g) of the New York regulations and 34 CFR § 300.502 (b) (1) of the federal regulations, if a Parent disagrees with a district’s evaluation or re-evaluation of her child, she has the right to request an IEE at public expense. Upon Parent IEE request the public agency must, without unnecessary delay, either:

(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria. 34 CFR 300.502(b)(2). Hearing Officer’s Finding of Fact & Decision procedures used in accordance with §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs." Id. § 300.15. Sections 300.304 through 300.11 of the regulations, in turn, parrot and expand upon the mandatory evaluation conduct and procedures outlined in Section 1414 of the IDEA. See, e.g., id. § 300.304; see also J.A. 789 (hearing officer's conclusion of law that "[a]n evaluation under 34 C.F.R. § 300.304 refers to the processes and procedures used to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, that may assist in determining ... [t]he content of the child's IEP, which includes the use of technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors" (internal quotation marks omitted)).

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

It is noted that a parent’s DPC may serve as a demand for an IEE. A Parent may file a DPC notice with respect to "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). A sought after IEE may be a proper remedy for disagreement with a District's evaluation. Absent any requirement that the parent express her disagreement with the results of a district evaluation in a specific format, there is no reason why a DPC may not serve the function of expressing the parent's disagreement to the district.

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

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

In this case the DOE does not respond to the alleged failure to evaluate the Student for the past three years. (Ex A 3-4, Ex O 1, T 27)

In this case the DOE does not respond to the Parent’s demand for Independent Educational Evaluations, to address the DOE failure.

Specifically, Parent presently seeks:

- DOE funding of independent educational evaluations, at rates not to exceed particular amounts, including:

o Neuropsychological Evaluation ($[REDACTED])

o Bilingual Speech Language (SLT) Evaluation ($[REDACTED])

o Occupational Therapy (OT) Evaluation ($[REDACTED])

o Physical Therapy (PT) Evaluation ($[REDACTED])

o Assistive Technology (AT) Evaluation ($[REDACTED])

o ABA Skills Assessment via a Licensed Behavior Analyst or Board Certified Behavior Analyst (BCBA) ($[REDACTED]) (Ex A 5)

Various evidenced rates are uncontested. (Ex D)

Evidence acknowledges the need for Student to be evaluated. (Ex B)

The DOE does seek opportunity to conduct the requested evaluations moving forward.

The Parent correctly argues for the Student’s need to be evaluated.

Parent appropriately advised the DOE of the need for Student evaluations, and the DOE failed to respond. Hearing Officer’s Finding of Fact & Decision

I find the Parent is entitled to the sought after IEEs as Ordered below.

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 23-24

school year.

2. The [REDACTED] (UP) provides Student with an appropriate program and placement, for the 23-24 school year.

3. The DOE shall directly fund Student, 12-month, 23-24 Tuition, at [REDACTED] (UP) in the amount of $[REDACTED].

4. The DOE shall provide the Student with special education transportation for the 23-24 school year, to and from [REDACTED] (UP).

5. The DOE shall authorize the following Independent Educational Evaluations (IEEs), via Parent chosen evaluator(s), are reasonable market rate(s), including those rates evidenced, as indicated below:

o Neuropsychological Evaluation ($[REDACTED])

o Bilingual Speech Language (SLT) Evaluation ($[REDACTED])

o Occupational Therapy (OT) Evaluation ($[REDACTED])

o Physical Therapy (PT) Evaluation ($[REDACTED])

o Assistive Technology (AT) Evaluation ($[REDACTED])

o ABA Skills Assessment via a Licensed Behavior Analyst or Board

Certified Behavior Analyst (BCBA) ($[REDACTED])

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

Order.

7. This decision is subject to appeal and review by the State Review Officer. Hearing Officer’s Finding of Fact & Decision

DATED: September 17, 2023

DANIEL AJELLO

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[8] NYCRR § 200.5 (g) Regulations define an IEE as "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question." 34 C.F.R. § 300.502(a)(3)(i) (emphasis omitted). The regulations establish that a parent's right to an IEE at public expense is triggered when the parent "disagrees with an evaluation obtained by the public agency." Id. § 300.502(b)(1) (emphasis omitted). And the regulations provide that "[e]valuation means

New York City Department of Education, Impartial Hearing Decision

Order.